Johnson v South Bend Community School Corporation et al

Filing 26

OPINION AND ORDER DENYING IN PART AND GRANTING IN PART 20 MOTION to Dismiss Amended Complaint filed by South Bend Community School Corporation. The Motion is DENIED with respect to Counts I and II, which remain pending. The Motion is GRANTED with respect to Count III, which is DISMISSED WITHOUT PREJUDICE, granting leave for Johnson to re-file and cure the pleading deficiencies within 30 days from the date of this Order. Signed by Judge Philip P Simon on 5/22/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARK JOHNSON,
Plaintiff,
vs.
SOUTH BEND COMMUNITY
SCHOOL CORPORATION,
Defendant.

)
)
)
)
)
)
)
)
)
)

3:17-cv-00825-PPS

OPINION AND ORDER
Mark Johnson, a Caucasian teacher and basketball coach at South Bend Riley
High School, brings three claims against his former employer, the South Bend
Community School Corporation, based upon allegations that African American
employees interfered with and criticized his coaching because of his race, and the
school failed to respond to his reports of racial harassment. There are two federal
claims: Count I is a race discrimination disparate treatment claim and Count II is a claim
that Johnson was retaliated against for complaining about the discrimination. There is
also a state law claim alleged in Count III of the Amended Complaint. That claim is for
negligent failure to supervise and failure to train employees against committing racial
discrimination. SBCSC seeks dismissal of the Amended Complaint on the grounds that
it fails to state a claim. [DE 20.] For the reasons detailed below, the motion will be
DENIED as to Count I (race discrimination) and Count II (retaliation) because the

Amended Complaint states plausible claims for relief on these claims. The Motion will
be GRANTED as to Count III (negligent failure to supervise) because this count fails to
state a claim. But Johnson will be granted leave to re-file and cure the pleading
deficiencies.
Factual Background
Let’s start with the facts as they are alleged in the Amended Complaint which I
accept as true for present purposes. Johnson was a teacher and boys’ basketball coach
at South Bend Riley High School for 15 years. [Am. Compl. ¶¶ 11, 14.] Prior to the start
of the 2016-2017 basketball season, Principal Francois Bayingana (who is African
American) did something unusual; he directed Johnson to keep a certain number of
players on the boys’ basketball teams. [Id. at ¶¶ 18, 20.] Leslie Wesley is an African
American member of the school board, and Johnson was also specifically instructed by
Principal Bayingana to keep Wesley’s son on the varsity basketball team. [Id. at ¶¶ 16,
21.] Against his own wishes, Johnson complied with the instructions. [Id. at ¶ 24.] This
was new to Johnson; he had never before been told that he had to keep a certain amount
of players or a specific player on his teams. [Id. at ¶ 22.] South Bend Community
School Corporation has four high schools (Adams, Clay, Riley and Washington), and
Johnson is not aware of any other basketball coach in SBCSC that received similar
directions. [Id. at ¶ 23.]
During the season, Ms. Wesley, the School Board member, tried to interfere with
Johnson’s coaching authority. For example, she made negative comments about him in
2

the community and complained to the Indiana High School Athletic Association about
Johnson’s qualifications. [Id. at ¶¶ 25-26.] In addition, Johnson claims that Wesley went
public with the complaints about him and his coaching. In particular, she went on
Facebook and publicly accused him of hidden racism. [Id. at ¶ 27.]
Wesley wasn’t the only one harassing Johnson. As luck would have it, Wesley’s
sister, Charan Richards, is the head guidance counselor at South Bend Riley. According
to Johnson, in the midst of the basketball season, Richards started to do Wesley’s
bidding. On February 12, 2017, Richards sent an email to Johnson, carbon copying
Principal Bayingana and the athletic director, saying “Mark, from [South Bend] LaSalle
to [South Bend] Riley you have done African American males (team players) wrong”
and “I’m on to you Mark . . . .” [Id. at ¶ 28.] The message even had the whiff of a threat
to it; Richards told Johnson that “I am watching you this year . . . .” Id.
According to Johnson, throughout the school year, he sought guidance and help
from his superiors in dealing with the alleged harassment. [Id. at ¶ 29.] For example,
on the day he received the email described above, he immediately reported the
harassment to Principal Bayingana and the South Bend Riley athletic director telling
them that he believed Richards’ and Wesley’s actions constituted harassment. [Id. at
¶30.] Pursuant to the SBCSC Anti-Harassment policy, Johnson asked for a meeting
with his building administrator — Principal Bayingana — to discuss his complaints of
unlawful harassment. [Id.] However, for reasons that are unclear, the Principal did not
meet with Johnson. [Id. at ¶ 31.] Dr. Kenneth Spells, the Superintendent for the SBCSC,
3

also knew of Johnson’s complaints but failed to investigate the harassment allegations.
[Id. at ¶ 33.] Johnson alleges that SBCSC failed to follow its own Anti-Harassment
policies. [Id. at ¶ 34.]
After Bayingana and Dr. Spells failed to investigate his harassment complaints,
Johnson “did not believe he had the support of his administration and he did not
believe he could remain an effective teacher and coach since he is a Caucasian male in a
school with a large minority student, teacher, and administrative population.” [Id. at ¶
36.] So Johnson retired from his teaching and coaching position. [Id. at ¶ 35.]
Post retirement, Johnson agreed to teach summer school during the summer of
2017 at SBCSC. [Id. at ¶ 37.] However, following the June 5, 2017 school board meeting,
Johnson was the only teacher not approved for summer school. [Id. at ¶ 38.] Johnson
alleges he was singled out and not hired to teach summer school because he publicly
complained about the harassment. [Id. at ¶ 39.] His allegations received media
attention by various South Bend media outlets, including TV stations and the South
Bend Tribune. [Id. at ¶ 40.]
As noted above, the Amended Complaint asserts three claims against SBCSC:
Count I is for race discrimination in violation of 42 U.S.C. § 2000e, et. seq. based upon a
hostile work environment which Johnson says led to his constructive discharge; Count
II is for retaliation based upon Johnson not getting hired to teach summer school after
he complained of racial harassment in violation of 42 U.S.C. § 2000e, et. seq.; and Count
III is for negligent failure to supervise and train in violation of Indiana state law.
4

Discussion
SBCSC has moved to dismiss the Amended Complaint in its entirety under
Federal Rule of Civil Procedure 12(b)(6). In order to survive a motion to dismiss under
Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted); accord Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). While I must accept all factual allegations as true and draw all
reasonable inferences in the complainant’s favor, I don’t need to accept threadbare legal
conclusions supported by purely conclusory statements. See Iqbal, 556 U.S. at 678.
Johnson must allege “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Making the
plausibility determination is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Count I - Race Discrimination
To survive a motion to dismiss a claim for race discrimination, Johnson “need
only aver that the employer instituted a (specified) adverse employment action against
[him] on the basis of [his race].” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (2008).
Because Johnson is not a racial minority, in a case of reverse discrimination like this one,
he ultimately bears the burden of showing that SBCSC had a reason or inclination to
discriminate against white men or that there is something fishy about the facts at hand.
See Good v. Univ. of Chicago Med. Ctr., 673 F.3d 670, 679 (7th Cir. 2012); Nagle v. Village of
5

Calumet Park, 554 F.3d 1106, 1119 (7th Cir. 2009).
But for now, Rule 8 only requires a short and plain statement of the claim
showing the pleader is entitled to relief. Fed. R. Civ. P. 8(a). The rules do not require a
plaintiff to plead facts. Rapid Test Prods., Inc. v. Durham Sch. Servs., 460 F.3d 859, 860-61
(7th Cir. 2006). Rather, a claim must simply contain sufficient factual matter to state a
claim to relief that is plausible on its face and not one that is merely speculative.
Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Particular to pleading
under Title VII, the Seventh Circuit has said the following, even after Twombly:
We previously have stated, on numerous occasions, that a plaintiff
alleging employment discrimination under Title VII may allege
these claims quite generally. A complaint need not “allege all, or
any, of the facts logically entailed by the claim,” and it certainly
need not include evidence. Bennett v. Schmidt, 153 F.3d 516, 518
(7th Cir. 1998) (quoting Am. Nurses’ Ass’n v. Illinois, 783 F.2d 716,
727 (7th Cir. 1986)); see also Kolupa v. Roselle Park Dist., 438 F.3d 713,
714 (7th Cir. 2006) (“Federal complaints plead claims rather than
facts.”). Indeed, “litigants are entitled to discovery before being
put to their proof, and treating the allegations of the complaint as a
statement of the party’s proof leads to windy complaints and
defeats the function of [Federal Rule of Civil Procedure] Rule 8.”
Bennett, 153 F.3d at 519.
Tamayo, 526 F.3d at 1081 (emphasis in original). Indeed, “[a] plaintiff still must
provide only enough detail to give the defendant fair notice of what the claim is and the
grounds upon which it rests, and, through his allegations, show that it is plausible,
rather than merely speculative, that he is entitled to relief.” Id. at 1083 (quotation
omitted). In other words, even if the alleged facts appear doubtful, or recovery seems
remote, I can’t dismiss a complaint for failure to state a claim if, when the alleged facts
6

are taken as true, a plaintiff has “nudged their claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 555, 570.
SBCSC argues that Johnson’s hostile work claim fails because he has not pleaded
egregious and intolerable working conditions. The Seventh Circuit has recognized that
an employee’s constructive discharge can come in two forms. Wright v. Illinois Dep’t of
Children & Family Servs., 798 F.3d 513, 527 (7th Cir. 2015). The first entails an employee
who resigns due to discriminatory harassment. “Such cases require a plaintiff to show
working conditions even more egregious than that required for a hostile work
environment claim because employees are generally expected to remain employed
while seeking redress, thereby allowing an employer to address a situation before it
causes the employee to quit.” Id. (quotation omitted). The second form of constructive
discharge occurs when “an employer acts in a manner so as to have communicated to a
reasonable employee that she will be terminated.” Id. (quotation omitted).
Here, Johnson proceeds under the first prong of constructive discharge. Johnson
alleges that he was told by the Principal to keep a certain number of players on the
basketball team (including the son of a school board member), a member of the school
board made negative comments about Johnson in the community (including a Facebook
post which accused Johnson of hidden racism), he was sent an email from the head
guidance counselor accusing him of treating African American players unfairly and
stating she was “watching [him] this year,” and that he complained of the racial
harassment and no one investigated his unlawful harassment complaints. [Am .
7

Compl. ¶¶ 20-21, 25-28, 30-31, 33.] Furthermore, Johnson tells me he was forced to
retire because SBCSC did precisely nothing in response to his complaints of harassment.
In particular, it failed to investigate his harassment claims in accordance with its AntiHarassment policy, and he did not believe he could remain an effective teacher and
coach. [Id. at ¶¶ 30-31, 36.] Johnson also alleges that these actions were intentional,
purposeful, and part of a plan to eliminate him from holding a teaching and coaching
position, and that SBCSC’s actions were motivated in whole or part by Johnson’s race.
[Id. at ¶ 49.]
Johnson has pleaded sufficient factual detail to put SBCSC on notice of a
plausible claim that he was constructively discharged, and the allegations do rise above
the speculative level. I will concede that the factual allegations are a bit tepid at this
point, but they are enough, if barely so, to get the case to discovery. And to the extent
SBCSC argues that Johnson hasn’t said enough about how egregious his working
conditions were, I think that is something best left for summary judgment, after
discovery has fleshed out all the facts of the case. See Moriarty v. Dyson, Inc., No. 09 C
2777, 2010 WL 2745969, at *6 (N.D. Ill. Jul. 8, 2010) (denying motion to dismiss
constructive discharge claim in employment discrimination case, finding “[d]efendant’s
motion seeks to require plaintiff to plead her proof. This argument is more appropriate
for summary judgment. At the pleading stage, however, plaintiff has provided enough
factual allegations to raise a right to relief above the speculative level.”).
One more thing on the discrimination claim: SBCSC contends that the Amended
8

Complaint should be dismissed because Johnson fails to allege that similarly situated
non-white employees were treated more favorably. But that is an evidentiary standard
used during summary judgment. It is not a pleading requirement. Indeed, the United
States Supreme Court has rejected this exact argument (on several grounds), including
the explanation that the McDonnell Douglas prima facie framework “is an evidentiary
standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510
(2002).
The result is the same with Johnson’s hostile work environment claim which
survives dismissal. To state a claim for racial harassment, Johnson must set forth
sufficient factual matter to make it plausible that: “(1) [he] was subject to unwelcome
harassment; (2) the harassment was based on . . . [a] reason forbidden by Title VII; (3)
the harassment was severe or pervasive so as to alter the conditions of employment and
create a hostile or abusive working environment; and (4) there is a basis for employer
liability.” Huri v. Office of the Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826,
833-34 (7th Cir. 2015); see also Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017).
Although SBCSC claims Johnson fails to plead discriminatory animus, this is
simply incorrect. Johnson does allege that the harassment occurred because of his race.
Indeed, the Amended Complaint reads “Defendant, SBCSC, discriminated against Mark
Johnson on account of Mark Johnson’s race in violation of 42 U.S.C. § 2000e, et seq.”
[Am. Compl. ¶ 43.] And, to the extent SBCSC argues that Johnson has failed to allege
that the harassment was so severe and pervasive as to create a hostile working
9

environment, while I acknowledge that this is not an easy standard to meet, this
scrutiny is more properly addressed at the summary judgment stage. “Motions to
dismiss do not test whether plaintiffs will prevail, they merely test the sufficiency of the
complaint.” Cotton v. South Suburban Hosp., No. 02 C 6000, 2002 WL 31572116, at *2
(N.D. Ill. Nov. 19, 2002) (denying motion to dismiss hostile work environment claim
where plaintiff alleged only one incident of non-physical harassment). Considering all
of the circumstances described in the Amended Complaint, the hostile work
environment claim is sufficient to survive this motion to dismiss.
Count II - Retaliation
The parties agree that to state a claim for retaliation, a plaintiff must allege (1) he
engaged in a legally protected activity; (2) he suffered an adverse employment action;
and (3) a causal connection between the protected activity and the adverse action.
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). That is where the
agreement ends. SBCSC argues that Johnson failed to plead protected activity and that
he did not sufficiently plead an adverse employment action.
“Merely complaining in general terms of discrimination or harassment, without
indicating a connection to a protected class or providing facts sufficient to create that
inference, is insufficient.” Orton-Bell v. Indiana, 759 F.3d 768, 776 (7th Cir. 2014) (quoting
Tomanovich, 457 F.3d at 663)). Rather, to be protected under Title VII, the complaint
must indicate “the discrimination occurred because of sex, race, national origin, or some
other protected class . . . .” Id. Here, the Amended Complaint sufficiently alleges that
10

“Mark Johnson suffered various forms of unlawful racial discrimination while
employed by SBCSC” and that Johnson “informed South Bend Riley Principal Francois
Bayingana that Mark Johnson had suffered unlawful racial discrimination.” [Am.
Compl. ¶¶ 54-55.] This is quite different from the cases cited by SBCSC, including
Tomanovich, where the plaintiff only filed a general grievance alleging “discriminatory
treatment with respect to [plaintiff’s] pay,” Tomanovich, 457 F.3d at 663, and Buchanan v.
Cook Cnty., No. 12 C 4951, 2013 WL 2637875, at *3-4 (N.D. Ill. June 12, 2013), where the
grievance only alleged discrimination in violation of a collective bargaining agreement.
In this case, Johnson does specifically allege that he informed SBCSC of the unlawful
racial discrimination, and that he was retaliated against because of his action in
reporting the racial harassment and publicly criticizing SBCSC in the media.
SBCSC also argues that Johnson failed to sufficiently allege an adverse action. In
a discrimination claim, a plaintiff must allege to have suffered from an “adverse
employment action.” See Tamayo, 526 F.3d at 1084. “[C]ourts have found the criteria for
materially adverse employment action to be met [where the] employee’s compensation,
benefits or other financial terms of employment are diminished.” Tart v. Ill. Power Co.,
366 F.3d 461, 475 (7th Cir. 2004) (internal quotations omitted). “A materially adverse
change might be indicated by a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices that might be unique
to a particular situation.” Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132,
11

136 (7th Cir. 1993). Notably, “[a]dverse employment action has been defined quite
broadly in this circuit.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (citation
omitted). Retaliatory conduct is actionable if the challenged actions are ones that a
reasonable employee would find to be materially adverse such that the employee
would be “dissuaded” from engaging in the protected activity. Burlington Northern &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Here, Johnson alleges he was denied the opportunity to teach summer school
and SBCSC knew that by not approving him to teach summer school, his pension
would be negatively affected (Johnson’s pension is based on his last five years of
income). [Am. Compl. ¶¶ 38, 41.] Even though the denial occurred after Johnson
retired, he has met the broad definition of adverse employment action by alleging a
material loss of income and an action that could be found by a fact finder to dissuade an
employee from engaging in protected activity. As such, the motion to dismiss the claim
of retaliation is denied. See, e.g., Jefferson v. City of Chicago, No. 97 C 4895, 1999 WL
116223, at *6 (N.D. Ill. Feb. 26, 1999) (denying motion to dismiss retaliation claim under
Title VII, noting that while the plaintiff “pleads these allegation[s] in a conclusory
fashion, he is certainly entitled to do so.”).
Count III - Negligent Failure to Supervise
Count III of the Amended Complaint is titled “Negligent Failure to Supervise.”
Johnson alleges that SBCSC owed him a duty, it breached that duty by failing to train its
employees to not commit racial harassment, and that as a result of SBCSC’s breaches,
12

Johnson was injured. [Am. Compl. ¶¶ 67-72.]
A claim for negligent supervision or failure to train is distinct from respondeat
superior liability, as the former cause of action regards the employer’s own negligence,
rather than the employer’s vicarious liability for negligence of its employee. Willyard v.
Wal-Mart Stores, Inc., No. 09-cv-295-DRH, 2010 WL 487080, at *4 (S.D. Ill. Feb. 8, 2010).
Negligent training and supervision imposes liability on an employer when an employee
“steps beyond the recognized scope of his [or her] employment to commit a tortious
injury upon a third party.” Elwell v. First Baptist Church of Hammond, No. 2:16-CV-158,
2016 WL 4920021, at * 2 (N.D. Ind. Sept. 15, 2016) (quotation omitted). In contrast,
under the doctrine of respondeat superior, an employer can be liable for employee acts
committed within the scope of their employment. Id.
Here, the Amended Complaint alleges a claim for negligent failure to supervise.
The count contains that title, and the allegations deal with the actions of the employer SBCSC’s failure to train its employees and its failure to supervise and protect Johnson
from harassment. A bit of confusion arises in the briefing, though, because SBCSC
argues: (1) that Johnson’s negligent supervision claim is barred by the ITCA (which
seems to be an argument premised upon respondeat superior theory); and (2) that it
also fails because Johnson does not allege SBCSC’s employees acted outside their scope
of employment (which seems to be a negligent supervision and training theory). To
complicate things further, Johnson does not address the argument that he failed to state
a claim for negligent failure to supervise because he did not allege the employees acted
13

outside the scope of their employment. Instead, Johnson dives right into the immunity
argument under the ITCA. I will focus my attention on the simple question of whether
Count III states a claim for negligent failure to supervise, and I find that it does not.
SBCSC argues that a claim of negligent failure to supervise must contain
allegations that the employees acted outside their scope of employment. They are
correct on this score. Under Indiana law, negligent supervision, retention and training
may impose liability on an employer when an employee acts beyond the scope of his or
her employment to commit a tortious injury upon a third party. Perron v. JP Morgan
Chase Bank, N.A., No. 1:12-cv-01853-TWP-TAB, 2014 WL 931897, at * 5 (S.D. Ind. Mar. 10,
2014). “A cause of action based on negligent hiring, training and supervision is
appropriate only where it is alleged that the employee acted outside the scope of his or
her employment; otherwise the doctrine of respondeat superior provides the proper
vehicle for a direct action aimed at recovering the damages resulting from a specific act
of negligence committed by an employee within the scope of his employment.” Id.
(quoting Tindall v. Enderle, 320 N.E.2d 764, 768 (Ind. Ct. App. 1974)); see also Friday v.
Magnifique Parfumes and Cosmetics, Inc., No. 3:17-cv-380 JD, 2017 WL 6048887, at *1 (N.D.
Ind. Dec. 7, 2017); Sedam v. 2JR Pizza Enters., LLC, 84 N.E.3d 1174, 1179 (Ind. 2017).
In this case, Johnson alleges that SBCSC “negligently failed to supervise its
employees and failed to adequately train its employees regarding their responsibility
not to commit unlawful racial harassment and SBCSC failed to train its employees
regarding SBCSC’s Anti-Harassment policies.” [Am. Compl. ¶ 67.] Johnson fails to
14

include any allegations anywhere in the Amended Complaint that the employees were
acting outside the scope of their employment. This is fatal to the Amended Complaint.
See, e.g., Friday, 2017 WL 6048887, at *1 (dismissing negligent hiring, training or
supervision claim where complaint did not allege supervisor was acting outside the
scope of his employment); Hansen v. Bd. of Trustees of Hamilton Se. Sch. Corp., 551 F.3d
599, 612 n.2 (7th Cir. 2008) (noting that claim for negligent hiring, supervision, and
retention requires a plaintiff to plead that the employee’s actions were outside the scope
of his employment); Gordon v. Bank of New York Mellon Corp., No. 4:12-cv-18, 2017 WL
662856, at *8 (N.D. Ind. Feb. 17, 2017) (“the tort of negligent hiring and supervision is
inapplicable when an employee is acting within the scope of his employment.”).
What’s more, as noted above, Johnson does not bother to even address this
argument in his response, and he has therefore waived the issue in any event. See
Haywood v. Novartis Pharms. Corp., No. 2:15-CV-373, 2016 WL 5394462, at *5 (N.D. Ind.
Sept. 27, 2016)(finding failure to respond to an argument in a motion to dismiss results
in waiver); see also Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010).
In sum, the Amended Complaint as currently written alleges a claim for
negligent failure to supervise, but Johnson does not allege that the SBCSC employees
were acting outside the scope of their employment. Therefore, I find it warranted to
grant the motion to dismiss as to Count III. Count III will be dismissed without
prejudice, granting leave for Johnson to re-file only Count III and cure the pleading
deficiencies as discussed in this opinion.
15

Conclusion
For the reasons stated above, South Bend Community School Corporation’s
Motion to Dismiss [DE 20] is DENIED IN PART AND GRANTED IN PART. The
Motion is DENIED with respect to Counts I and II, which remain pending. The Motion
is GRANTED with respect to Count III, which is DISMISSED WITHOUT
PREJUDICE, granting leave for Johnson to re-file and cure the pleading deficiencies
within 30 days from the date of this Order.

SO ORDERED.
ENTERED: May 22, 2018

/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

16