# Greenberg v. McLean County Unit 5 School District

> District Court, C.D. Illinois · January 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10136567

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** January 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136567

## How later opinions describe it (automated extraction)

- noting that unwanted touching was the “most serious misconduct” in the case
- clarifying that the correct legal standard “is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action”
- noting the McDonnell Douglass burden-shifting approach survived Ortiz

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

LANELL GREENBERG, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-1434-JES-JEH
)
MCLEAN COUNTY UNIT 5 SCHOOL )
DISTRICT, )
)
Defendant. )

ORDER AND OPINION

This matter is now before the Court on Defendant’s Motion (Doc. 5) to Dismiss and
Plaintiff’s Response (Doc. 7) thereto. For the reasons set forth below, Defendant’s Motion (Doc.
5) is granted in part and denied in part.
BACKGROUND
The following facts are taken from Plaintiff’s Complaint, which the Court accepts as true
for the purposes of a motion to dismiss. Bible v. United Student Aid Funds, Inc., 799 F.3d 633,
639 (7th Cir. 2015). Plaintiff, Lanell Greenberg, began her employment with McLean County
Unit 5 School District during the 2003-2004 school year. In 2008, Greenberg worked as a school
administration manager. In 2012, Greenberg accepted a position as Administrative Assistant to
the Superintendent of Unit 5. She also acted as the Clerk of the Board of Education for the Unit 5
School Board. Plaintiff remained employed with Unit 5 until her resignation on October 26,
2018. Doc. 1 at 1-3.
In July of 2018, Greenberg left her position as Administrative Assistant to the
Superintendent and Clerk of the Board of Education to start a new position as Administrative
Assistant to the Associate Principal of Unit 5. Prior to her transfer, Plaintiff alleges she was
exposed to repeated comments and gestures of a sexually explicit nature committed by the
Executive Director of Human Resources, James Harden. Plaintiff further alleges she was
exposed to retaliatory conduct by the Superintendent, in concert with members of the Unit 5
School Board during times when Plaintiff was working and attempting to perform her job duties

for Unit 5. Specifically, Plaintiff claims she was exposed to harassment and retaliation after she
opposed the unlawful employment practices of senior management personnel of Unit 5 and
reported the unlawful conduct.
The harassing and retaliatory conduct included: (a) while walking past a large conference
table, James Harden asked Greenberg to have the conference table delivered to his home so he
could “make love on it to his wife” and proceeded to act out “making love” on the table by
getting on the table in front of Plaintiff; (b) Harden referred to Greenberg and other women in the
Unit 5 office by his wife’s name and asked Plaintiff if sharing information about local food
restaurants would get him “laid”; (c) on multiple occasions while entering Plaintiff’s office,
Harden would take candy from Greenberg’s candy dish and then, while eating a Hershey’s

Chocolate Kiss, make gestures with his mouth and comments of a sexually explicit nature
offensive to Greenberg and other females employees of Unit 5; (d) Harden would make
unspecified derogatory and sexually suggestive comments and gestures toward Plaintiff during
working hours; and (e) the Superintendent, after being advised of the above by Plaintiff and other
Unit 5 employees, imposed different workplace rules on Plaintiff unlike those imposed on other
employees of Unit 5 who had not made complaints of sexual harassment and hostile work
environment. Doc. 1 at 3-4.
Plaintiff reported Harden’s conduct and comments to those with supervisory authority
over him, including Barry Hitchins, Board President of the School Board of Unit 5. Plaintiff
alleges the comments, gestures, and actions of Harden toward Plaintiff were unwanted,
intentional, harassing, and discriminatory. Plaintiff further alleges that, as a consequence of
Harden’s actions and the failure of Unit 5 to address the concerns and complaints raised by
Plaintiff, she was forced to request a transfer from her position as Administrative Assistant to the

Superintendent of Unit 5 and Clerk of the Board of Education. According to Plaintiff, she went to
another position within Unit 5 in hopes of eliminating her exposure to the ongoing
discrimination, harassment, and retaliation. However, despite her transfer, her complaints were
not addressed and the workplace harassment and retaliation continued, particularly when
Plaintiff was communicating with the Office of the Superintendent or members of the school
board. Doc. 1 at 4-5.
Plaintiff alleges she was forced to resign her position with Unit 5 on October 26, 2018
because of the work environment at Unit 5, the failure of Unit 5 to take action to stop the
discriminatory actions in the workplace, and due to retaliation occurring as a consequence of
Plaintiff’s opposition to the unlawful conduct of senior management employees of Unit 5 and her

reports of sexual harassment against Harden. Doc. 1 at 5.
Count 1 of Plaintiff’s Complaint asserts a claim for gender discrimination and sexual
harassment, in violation of Title VII of the Civil Rights Act of 1964. Specifically, Plaintiff
alleges she was meeting her employer’s legitimate business expectations, actions of senior Unit 5
management personnel created a hostile work environment and interfered with her performance,
she was forced to resign as a result, and Unit 5 senior management personnel knew about and
showed a reckless disregard as to whether Unit 5’s conduct violated the protections afforded
Plaintiff under Title VII of the Civil Rights Act of 1964. Doc. 1 at 6-7.
Count 2 sets forth a claim for retaliation under Title VII of the Civil Rights Act of 1964.
Therein, Plaintiff alleges that in response to her reports of sexual harassment, Plaintiff was
subjected to verbal harassment and a hostile work environment by individuals including
unidentified senior management personnel as well as the Superintendent and members of the

Unit 5 School board. Plaintiff alleges these individuals undermined and interfered with her work
performance in unspecified ways as a result of Plaintiff’s reports and complaints. Plaintiff alleges
the conduct of the unidentified senior management personnel was outrageous and done with
malice and a conscious disregard for Plaintiff’s rights. Finally, Plaintiff alleges the conduct was
intentional and Unit 5 authorized, condoned and/or ratified the unlawful conduct. Doc. 1 at 8.
LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) challenges whether a complaint
sufficiently states a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The
Court accepts well-pleaded allegations in a complaint as true and draws all permissible
inferences in favor of the plaintiff. See Bible, 799 F.3d at 639. To survive a motion to dismiss, the

complaint must describe the claim in sufficient detail to put defendants on notice as to the nature
of the claim and its bases, and it must plausibly suggest that the plaintiff has a right to relief. Bell
Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007). A complaint need not allege specific
facts, but it may not rest entirely on conclusory statements or empty recitations of the elements
of the cause of action. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
DISCUSSION
Defendant has filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6).
Doc. 5. First, Defendant argues Plaintiff fails to establish a hostile work environment or sexual
harassment claim under Title VII. Id. at 3. As part of this argument, Defendant asserts Plaintiff
fails to demonstrate the alleged harassment was based on gender. Id. at 4. Separately, Defendant
argues the conduct alleged by Plaintiff is not sufficiently severe or pervasive to establish a hostile
work environment. Id. at 5. Second, Defendant argues Plaintiff fails to allege facts sufficient to

support a constructive discharge claim. Id. at 7. Third, Defendant asserts Plaintiff fails to
establish a retaliation claim under Title VII. Id. at 9.
1. Hostile Work Environment/Sexual Harassment
In order to establish a prima facie case of hostile environment sexual harassment under
Title VII, Plaintiff is required to show that: “(1) she was subjected to unwelcome sexual
harassment in the form of sexual advances, requests for sexual favors or other verbal or physical
conduct of a sexual nature; (2) the harassment was based on sex; (3) the sexual harassment had
the effect of unreasonably interfering with the plaintiff’s work performance in creating an
intimidating, hostile or offensive working environment that affected seriously the psychological
well-being of the plaintiff; and (4) there is a basis for employer liability.” Valentine v. City of

Chicago, 452 F.3d 670, 677 (7th Cir. 2006), as amended (July 6, 2006).
A. Harassment Based on Gender
Defendant first argues Plaintiff has failed to allege the harassment was based on gender.
Doc. 5 at 4. Specifically, Defendant claims “there is no indication that Harden’s alleged conduct
was directed at Greenberg by virtue of being female.” Id. In support, Defendant notes that the
Seventh Circuit has recognized that “occasional vulgar banter, tinged with sexual innuendo of
coarse or boorish workers” generally does not create a hostile work environment that a
reasonable person would find intolerable. Doc. 5 at 4; Hilt-Dyson v. City of Chicago, 282 F.3d
456, 463 (7th Cir. 2002). In her Response, Plaintiff argues the allegations in her Complaint,
viewed in the light most favorable to her, give Defendant sufficient notice of her claim that
Harden acted in a particular derogatory manner towards her by his comments and gestures of a
sexual nature due to Plaintiff being female. Doc. 7 at 4. Further, Plaintiff points out the
allegations regarding Harden were commonly directed towards female employees and not male

employees. Given the sexual nature of the alleged statements by Harden, together with the fact
that statements were made to female employees and not male employees, the Court finds
Plaintiff has sufficiently demonstrated that Harden’s conduct and statements were based on her
gender. To the extent Defendant argues the comments were isolated or minor, such an argument
is better directed at the next element of a hostile work environment claim—whether the alleged
conduct was sufficiently severe or pervasive.
B. Severe or Pervasive Requirement
Next, Defendant argues the conduct alleged by Plaintiff is not sufficiently severe or
pervasive to establish a hostile work environment. Doc. 5 at 5. Specifically, Defendant argues
“[t]his is not the case of sexual assault or other unwanted physical contact, uninvited solicitations

for sex, intimidation or threats, pornography, or even obscene language or gestures.” Doc. 5 at 6.
Further, Defendant notes there are no allegations Harden inappropriately touched Plaintiff,
solicited sex from her, or intimidated or threatened her. While acknowledging that Harden’s
comments and conduct were inappropriate in an employment context, Defendant argues the
alleged conduct was neither sufficiently severe nor pervasive to amount to a hostile work
environment under applicable Seventh Circuit precedent. Id. at 6-7 (citing Hostetler v. Quality
Dining, Inc., 218 F.3d 798, 809 (7th Cir. 2000); Smith v. Sheahan, 189 F.3d 529, 532 (7th Cir.
1999)).
A hostile work environment must be “both objectively and subjectively offensive, one
that a reasonable person would find hostile or abusive, and one that the victim did in fact
perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998). “For
workplace conduct to constitute a hostile work environment actionable under Title VII, the

harassment ‘must be sufficiently severe or pervasive to alter the conditions of the plaintiff's
employment and create an abusive environment.’ ” Tutman v. WBBM-TV, Inc./CBS, Inc., 209
F.3d 1044, 1048–49 (7th Cir. 2000) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65
(1986)). “In determining whether contested conduct actually creates an objectively hostile work
environment, a number of factors may be considered including ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Hilt-
Dyson, 282 F.3d at 463 (quoting Faragher, 524 U.S. at 787–88)). Further, “the alleged
discriminatory conduct cannot be considered in a vacuum; rather, an employee’s claim must be
evaluated in light of the social context in which events occurred.” Id.

Whether complained of conduct rises to the level of severe or pervasive depends on the
totality of the circumstances. Nischan v. Stratosphere Quality, LLC, No. 16-3464, 2017 WL
3275149, at *5 (7th Cir. Aug. 2, 2017). Here, the allegedly harassing conduct included: (a) while
walking past a large conference table, James Harden asked Greenberg to have the conference
table delivered to his home so he could “make love on it to his wife” and proceeded to act out
“making love” on the table by getting on the table in front of Plaintiff; (b) Harden referred to
Greenberg and other women in the Unit 5 office by his wife’s name and asked Plaintiff if sharing
information about local food restaurants would get him “laid”; (c) on multiple occasions while
entering Plaintiff’s office, Harden would take candy from Greenberg’s candy dish and then,
while eating a Hershey’s Chocolate Kiss, make gestures with his mouth and comments of a
sexually explicit nature offensive to Greenberg and other females employees of Unit 5; (d)
Harden would make unspecified derogatory and sexually suggestive comments and gestures
toward Plaintiff during working hours; and (e) the Superintendent, after being advised of the

above by Plaintiff and other Unit 5 employees, imposed different workplace rules on Plaintiff
unlike those imposed on other employees of Unit 5 who had not made complaints of sexual
harassment and hostile work environment. Doc. 1 at 3-4. Although the conduct at issue did not
involve improper touching, the allegations in Plaintiff’s Complaint, when viewed in the light
most favorable to her, are sufficient to meet the severe and/or pervasive requirement at the
motion to dismiss stage and provide sufficient notice to Defendant as to what alleged conduct is
at issue. Cf. Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir. 1998) (noting that
unwanted touching was the “most serious misconduct” in the case). Further, each of the cases
discussed by Defendant addressed the severe and/or pervasive requirement in the context of
summary judgment. See, e.g., Hostetler, 218 F.3d at 807 (“But the acts described in these cases

lie at the outer boundaries of conduct that can be labeled nonsevere at the summary judgment
stage.”).
2. Constructive Discharge Claim
Next, Defendant argues Plaintiff’s constructive discharge claim should be dismissed.
Doc. 5 at 7-8. Noting the standard for a constructive discharge claim is even higher than the
standard for a hostile work environment claim, Defendant argues Plaintiff cannot meet this
standard because she does not allege Harden continued to harass her following her transfer to the
position of Administrative Assistant to the Associate Principal of Unit 5.
In her Complaint, Plaintiff alleges that after her transfer “her complaints were not
addressed and the workplace harassment and retaliation continued; in particular when Greenberg
was communicating with the Office of the Superintendent or members of the School Board.”
Doc. 1 at 4-5. Further, Plaintiff “was forced to resign her position with Unit 5 on October 26,

2018 because of: i) the work environment at Unit 5, the failure of Unit 5 to take action to stop the
discriminatory actions in the workplace; and due to retaliation occurring as a consequence of
Greenberg’s opposition to the unlawful conduct of senior management employees of Unit 5 and
her reports of sexual harassment against James Harden.” Id. at 5. These conclusory allegations
are so devoid of fact they cannot possibly put Defendant on notice as to what individuals and
what conduct created the circumstances giving rise to her constructive discharge. The
allegations, even viewed in the light most favorable to Plaintiff, fall well short of showing
“working conditions so intolerable that a reasonable person would have felt compelled to
resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 146–47 (2004). Finally, Plaintiff’s
reliance on Hostetler in her Response is misplaced as Hostetler did not analyze a constructive

discharge claim. 218 F.3d 789. Accordingly, Plaintiff’s constructive discharge claim is dismissed.
3. Retaliation
Third, Defendant argues Plaintiff has failed to establish a retaliation claim under Title
VII. Doc. 5 at 9. On this issue, both parties agree the relevant frameworks for assessing this
claim are the indirect and direct (burden-shifting) methods of proof. But see Ortiz v. Werner
Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016) (clarifying that the correct legal standard “is
simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s
race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse
employment action”). See also David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d
216, 225 (7th Cir. 2017) (noting the McDonnell Douglass burden-shifting approach survived
Ortiz).
Under the indirect method Plaintiff advances here,
[A]n employee must first present evidence sufficient to establish a prima facie case
that her employer retaliated against her in violation of Title VII. More precisely, an
employee must demonstrate that: (1) she engaged in statutorily protected activity;
(2) she performed her job according to her employer’s legitimate expectations; (3)
despite meeting her employer’s legitimate expectations, she suffered a materially
adverse employment action; and (4) she was treated less favorably than similarly
situated employees who did not engage in statutorily protected activity. See Stone
v. City of Indianapolis Pub. Utils. Div., No. 01–3210, 2002 WL 234239, at *1 (7th
Cir. Feb.19, 2002). Absent direct evidence of retaliation, failure to satisfy any
element of the prima facie case proves fatal to the employee’s retaliation claim.
Once the employee succeeds in proving her prima facie case, the employer must
offer a legitimate, noninvidious reason for the adverse employment action. See
Stone, 2002 WL 234239, at *3; Aviles v. Cornell Forge Co., 241 F.3d 589, 592 (7th
Cir. 2001). Once the employer has done so, the burden of production shifts back to
the plaintiff to demonstrate the pretextual nature of the proffered reason. See Stone,
2002 WL 234239, at *3; Aviles, 241 F.3d at 592. At this point, if the employee fails
to establish pretext, her retaliation claim cannot survive summary judgment.

Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
The jist of Defendant’s argument is that Plaintiff failed to allege a material adverse
employment action against her. Doc. 5 at 9. Specifically, Defendant asserts Plaintiff’s vague
allegations that she was retaliated against fail to identify what form the retaliation took beyond
conclusory, boilerplate allegations. In her Response, Plaintiff states
Greenberg has alleged sufficient facts to put Unit 5 on notice of her claim of
retaliation under Title VII of the Civil Rights Act. Greenberg alleged that as a
consequence of her report of the actions of James Harden to the Superintendent,
she was retaliated against by Harden, the Superintendent and other members of the
Board of Education. Greenberg alleged in her Complaint that the retaliatory actions
of Unit 5 supervisory and executive personnel interfered with her ability to perform
her job; and further alleged that she was treated differently than other similarly
situated employees who had not engaged in protected activity. Finally, Greenberg
alleged that despite the fact that she was meeting Unit 5’s legitimate business
expectations, she was forced to put in for a transfer to another position with Unit 5
due to the retaliatory acts of her supervisors and executives of Unit 5.
Doc. 7 at 9. However, Plaintiff’s Response provides further support for Defendant’s position. A
reader of her Complaint would be left wondering: What retaliatory actions? By whom? How did
the conduct interfere with her ability to do her job? Because these allegations are insufficient to
put Defendant on notice of the claims against it, Plaintiff’s claim for retaliation is likewise

dismissed.
Finally, Plaintiff requests leave to file an amended complaint in the event any of her
claims are dismissed. Doc. 7 at 10. This is Plaintiff’s first request to amend her pleading, and the
Court “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Given that the
defects identified above might be cured by an amended pleading, the Court grants Plaintiff leave
to file an amended complaint consistent with this Order within 21 days, if she has a good-faith
basis for doing so.
CONCLUSION
For the reasons set forth above, Defendant’s Motion (Doc. 5) to Dismiss is granted in part
and denied in part. Plaintiff may file an amended complaint consistent with this Order within 21

days, if she has a good-faith basis for doing so.

Signed on this 20th day of January, 2022.
s/ James E. Shadid
James E. Shadid
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136567. Public record. Not legal advice.