Molloy v. Acero Charter Schools, Inc.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARGARET MOLLOY, )

)

Plaintiff, ) 19 C 785

)

vs. ) Judge Gary Feinerman

)

ACERO CHARTER SCHOOLS, INC., HEALTHPRO )

HERITAGE, LLC, WALLACE MANAGEMENT )

CORPORATION, and MELISSA SWEAZY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Margaret Molloy alleges in this suit that Acero Charter Schools, Inc., Santiago School

Principal Melissa Sweazy, and staffing agencies HealthPro Heritage, LLC and Wallace

Management Corporation illegally retaliated against and terminated her from her teaching job for

voicing concerns about violations of disability-related laws and for refusing to participate in

activities that would violate those laws. Doc. 1. The complaint asserts claims under § 504 of the

Rehabilitation Act, 29 U.S.C. § 794(a), Title II of the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. § 12101 et seq., 42 U.S.C. § 1983, the Illinois Whistleblower Act (“IWA”),

740 ILCS 174/1 et seq., and common law retaliatory discharge. Acero and Sweazy move under

Civil Rule 12(b)(6) to dismiss the claims against them. Doc. 27. Their motion is denied.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative

complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.

Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider

“documents attached to the complaint, documents that are critical to the complaint and referred

to in it, and information that is subject to proper judicial notice,” along with additional facts set

forth in Molloy’s brief opposing dismissal, so long as those additional facts “are consistent with

the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013)

(internal quotation marks omitted). The facts are set forth as favorably to Molloy as those

materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the

facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United

States, 881 F.3d 529, 531 (7th Cir. 2018).

HealthPro and Wallace are staffing agencies that place educational professionals in

schools. Doc. 1 at ¶ 10. One or both agencies arranged an interview of Molloy by Acero’s

Special Education Director. Id. at ¶ 17. Molloy was hired the next day and assigned as a Full-

Time Reading Specialist at Santiago School, ibid., a public charter school operated by Acero, id.

at ¶ 12. Molloy began work on March 5, 2018. Id. at ¶ 18.

Shortly thereafter, Molloy identified various practices at Santiago School that, she

believed, violated the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et

seq., and other laws requiring public educators “to identify students in need of special education,

follow prescribed processes when diagnosing a student with a specific learning disability, and

once identified, provide those qualifying students with an Individual Education Plan or ‘IEP.’”

Id. at ¶ 21. Specifically, Molloy believed that Acero was failing to follow the “multi-tiered

system of supports,” or “MTSS,” system that Santiago School implemented to comply with its

legal obligations. In Molloy’s understanding, federal and Illinois law require public schools to

follow an MTSS approach to assessing, diagnosing, and developing interventions for students

who might have learning disabilities. Id. at ¶ 22. MTSS requires that students be sorted into

tiers based on their educational needs, with Tier 1 being a “general education program,” Tier 2

consisting of “targeted intervention or students not making adequate progress in Tier 1,” and Tier

3 adding “intensive, supplemental, individualized intervention for students not responding to

Tier 2 instruction.” Id. at ¶ 23.

Based on available data, Molloy determined that certain Santiago School students needed

appropriate MTSS interventions and instruction. Id. at ¶¶ 28-29. But when Molloy suggested

interventions to Sweazy and teacher Elizabeth Kruger, she was told that they were unnecessary.

Ibid. Molloy then immediately began voicing concerns that the school’s refusal to conduct

appropriate interventions violated state and federal law. Id. at ¶ 29.

Molloy also asked that she be allowed to conduct intensive interventions for Tier 3

students in seventh and eighth grade, and Sweazy and Kruger again refused her request. Id. at

¶¶ 31-32. Once again convinced that the school’s refusal violated the law, Molloy began

reporting her concerns to several teachers and administrators, including Sweazy, Santiago Case

Manager and Resource Teacher Amanda Haas, Santiago Instructional Coach Kate Calhoun,

Santiago Case Manager and Resource Teacher Rebecca Gasser, and Acero Section 504/Title II

Coordinator Bridgette Sprovieri. Id. at ¶¶ 33, 35, 37. Molloy also raised her concerns outside

Acero and Santiago School—to Caroline Morrison, her supervisor at HealthPro/Wallace. Id. at

¶ 34. In addition to speaking out about her concerns, Molloy refused to conduct interventions

that she believed were improper under the law. Id. at ¶¶ 35-36.

As a result of her actions, Molloy was subjected to retaliatory measures, including verbal

reprimands and discipline, exclusion from meetings, heightened scrutiny related to scheduling

and hours, and demeaning comments. Id. at ¶ 38. Although Molloy was excluded from IEP

eligibility meetings—which, given her role, she ordinarily would have attended—she

nonetheless attended an April 11, 2018 meeting. Id. at ¶¶ 39-40. At that meeting, Molloy said

that the student under discussion had been improperly diagnosed with a specific learning

disability and did not meet the legal requirements to receive an IEP. Id. at ¶ 41. In response,

teachers and administrators present expressed their disapproval at her participation and

suggestion. Ibid.

On April 13, 2018, Molloy was fired due to her reporting of activity she deemed unlawful

and her refusal to participate in educational activities she deemed unlawful. Id. at ¶ 43.

Discussion

I. Section 504 and ADA Claims

The ADA’s antiretaliation provision states, in relevant part: “No person shall discriminate

against any individual because such individual has opposed any act or practice made unlawful by

this chapter.” Rodrigo v. Carle Found. Hosp., 879 F.3d 236, 243 (7th Cir. 2018) (emphasis

omitted) (quoting 42 U.S.C. § 12203(a)). The Rehabilitation Act incorporates the ADA’s

substantive standards for retaliation claims. See 29 U.S.C. § 794(d). To state a retaliation claim

under either statute, a plaintiff must allege that: “(1) she engaged in a statutorily protected

activity; (2) she suffered an adverse employment action; and (3) there is a causal connection

between the two.” Guzman v. Brown Cnty., 884 F.3d 633, 642 (7th Cir. 2018); see also

Anderson v. Donahoe, 699 F.3d 989, 995 (7th Cir. 2012) (setting forth the same requirements for

a retaliation claim under the Rehabilitation Act).

The “act or practice” opposed by a plaintiff need not actually violate the ADA or

Rehabilitation Act for the plaintiff’s complaint about that act or practice to be covered by their

antiretaliation provisions. Rather, the antiretaliation provisions apply so long as the plaintiff

acted “in good faith and with a reasonable and sincere belief that he or she is opposing unlawful

discrimination.” Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d 1090, 1096 (7th Cir. 1998)

(emphasis omitted); see also ibid. (“[I]n retaliation cases … under … the ADA, it is good faith

and reasonableness, not the fact of discrimination, that is the critical inquiry.”) (internal

quotation marks omitted). Nor must the plaintiff have a disability to bring a retaliation claim, as

the antiretaliation provisions plainly bar discrimination against “any individual”—and not just

against individuals with disabilities—for opposing unlawful acts or practices. 42 U.S.C.

§ 12203(a) (emphasis added); see Wilbanks v. Ypsilanti Cmty. Schs., 742 F. App’x 84, 87 (6th

Cir. 2018) (“The anti-retaliation provisions of the ADA and [Rehabilitation Act] grant standing

[sic] to non-disabled persons who are retaliated against for attempting to protect the rights of the

disabled.”); Barker v. Riverside Cnty. Office of Educ., 584 F.3d 821, 826-28 (9th Cir. 2009)

(holding that a special education teacher who “engaged in activities opposing her school’s

special education policies that allegedly violated the ADA … had standing [sic] to pursue her

claim under [the ADA’s retaliation] clause”); Weber v. Cranston Sch. Comm., 212 F.3d 41, 48

(1st Cir. 2000) (holding that a mother stated a Rehabilitation Act retaliation claim where she

alleged that the defendant school system retaliated against her for trying to enforce her disabled

child’s rights); MacFarlan v. Bd. of Educ. Sch. Dist. 65, 904 F. Supp. 2d 852, 854 (N.D. Ill.

2012) (holding that a teacher’s claim seeking recovery under the Rehabilitation Act for actions

taken against her for “oppos[ing] allegedly-disability-based discrimination against the students

under her charge” was sufficient to state a claim).

Molloy’s allegations suffice to state a retaliation claim under the ADA and the

Rehabilitation Act. The complaint alleges that Molloy had a good faith, reasonable belief that

Acero’s failures to properly execute the MTSS program violated the law, that she complained of

those failures, and that she was fired due to her complaints. Doc. 1 at ¶¶ 21-22, 25, 43, 48, 51-

52. The court understands Molloy’s position to be that the disability laws she cites, taken as a

whole, require schools to implement a comprehensive intervention system like MTSS, and that a

failure to properly implement MTSS violates those laws. Doc. 36 at 4. Given that those laws

detail an array of requirements for implementing a system to identify and evaluate students

suspected of having disabilities, that Acero schools implemented MTSS to comply with their

obligations, and that the alleged deficiencies concern core parts of the MTSS system, Molloy’s

belief that Acero and Sweazy were violating the law appears reasonable and sincere, at least

through the lens applicable at the pleading stage. No more is needed to survive a motion to

dismiss.

In any event, although Acero and Sweazy argue that Molloy’s understanding of disability

law is wrong, they do not maintain that it was unreasonable or that she did not hold her beliefs in

good faith. Acero and Sweazy therefore forfeited any argument that Molloy lacked a good-faith,

reasonable belief that the complained of acts or practices were unlawful. See M.G. Skinner &

Assocs. Ins. Agency v. Norman-Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir. 2017)

(“Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal

authority.”); G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We

have repeatedly held that a party waives an argument by failing to make it before the district

court.”); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“We apply [the forfeiture]

rule where a party fails to develop arguments related to a discrete issue … .”).

II. First Amendment Retaliation Claim

A. Whether Molloy’s Speech Was Protected by the First Amendment

Molloy alleges that her complaints about Acero’s and Sweazy’s conduct were protected

speech under the First Amendment. “For a public employee’s speech to be protected under the

First Amendment, the employee must show that (1) [she] made the speech as a private citizen,

(2) the speech addressed a matter of public concern, and (3) [her] interest in expressing that

speech was not outweighed by the state’s interests as an employer in promoting effective and

efficient public service.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (internal

quotation marks omitted); see also Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[T]he First

Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen

addressing matters of public concern.”). Thus, “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications from employer

discipline.” Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016) (quoting Garcetti, 547

U.S. at 421). “Determining the official duties of a public employee requires a practical inquiry

into what duties the employee is expected to perform, and is not limited to the formal job

description.” Ibid. (internal quotation marks omitted). “The determination of whether speech is

constitutionally protected is a question of law.” Ibid.

For an employee’s speech to fall outside the First Amendment’s scope, it is not enough

that the speech took place “inside [an] office, rather than publicly,” or that it “concerned the

subject matter of [the plaintiff’s] employment.” Garcetti, 547 U.S. at 420-21; see also Bivens v.

Trent, 591 F.3d 555, 561 (7th Cir. 2010) (“[T]he fact that … speech was entirely internal does

not itself render the speech unprotected.”) (citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S.

410, 415-16 (1979)). The key question, rather, is whether the speech was made “pursuant to [the

employee’s] official duties,” Garcetti, 547 U.S. at 420-21, that is, whether the speech “owe[d] its

existence to a public employee’s professional responsibilities,” id. at 421-22; see also Janus v.

AFSCME, Council 31, 138 S. Ct. 2448, 2474 (2018) (“When an employee engages in speech that

is part of the employee’s job duties, the employee’s words are really the words of the employer.

The employee is effectively the employer’s spokesperson.”).

Settled law establishes when a public employee’s report of official wrongdoing is

protected by the First Amendment. If a public employee reports official misconduct in the

manner directed by official policy, to a supervisor or to an external body with formal oversight

responsibility, then the employee speaks pursuant to her official duties and her speech is

unprotected by the First Amendment. See Roake v. Forest Pres. Dist. of Cook Cnty., 849 F.3d

342, 346-47 (7th Cir. 2017) (where a police officer complained to his employer about racial

profiling and unlawful disciplinary action within the force); Kubiak, 810 F.3d at 481-82 (7th Cir.

2016) (where a police officer reported to her supervisor, her office director, and her Internal

Affairs Division that a colleague “verbally assaulted” her); Fairley v. Andrews, 578 F.3d 518,

522 (7th Cir. 2009) (where Cook County Jail guards filed internal complaints in the manner

required by General Orders); Tamayo v. Blagojevich, 526 F.3d 1074, 1091 (7th Cir. 2008)

(where an Illinois Gaming Board administrator reported agency misconduct to “a legislative

committee responsible for overseeing the [Gaming Board’s] activities”); Vose v. Kliment, 506

F.3d 565, 570-71 (7th Cir. 2007) (where a police sergeant reported misconduct to his

supervisors); Sigsworth v. City of Aurora, 487 F.3d 506, 511 (7th Cir. 2007) (where a detective

reported colleagues’ alleged misconduct to his supervisor, as required by established policy);

Spiegla v. Hull, 481 F.3d 961, 965-67 (7th Cir. 2007) (where a correctional officer reported other

officers’ violations of prison security rules to a supervisor, consistent with official policy). By

contrast, if an employee testifies about misconduct to a jury or grand jury, or reports misconduct

outside official channels or in violation of official policy, she speaks as a private citizen and her

speech is constitutionally protected. See Kristofek v. Vill. of Orland Hills, 832 F.3d 785, 793-94

(7th Cir. 2016) (where a police officer reported improperly voided citations to fellow officers

and to an outside agency despite lacking the express obligation to do so); Chrzanowski v.

Bianchi, 725 F.3d 734, 739-40 (7th Cir. 2013) (where a county prosecutor testified under

subpoena before a grand jury and at trial regarding alleged wrongdoing by his supervisors);

Chaklos v. Stevens, 560 F.3d 705, 709-12 (7th Cir. 2009) (where an Illinois State Police (“ISP”)

employee protested an ISP contract award to an ISP procurement official, rather than to the

individuals—the Attorney General of Illinois and the chief procurement officer—required by the

Illinois Procurement Code); Houskins v. Sheahan, 549 F.3d 480, 491 (7th Cir. 2008) (where a

county jail social worker reported to the city police, and not to the county sheriff, that a county

correctional officer hit her).

Molloy’s allegations support the reasonable inference that she engaged in protected First

Amendment speech. Her speech indisputably addressed a matter of public concern: the proper

diagnosis and education of public school students with disabilities. See Thompson v. Bd. of

Educ. of Chicago, 711 F. Supp. 394, 402 (N.D. Ill. 1989) (“[Q]uality of education and conditions

in the Chicago public schools constitute matters of vital public concern.”); Sorescu v. Harper,

2017 WL 1927696, at *7 (N.D. Ill. May 10, 2017) (same). In any event, Acero and Sweazy

forfeited any argument to the contrary by not disputing that proposition. See M.G. Skinner &

Assocs., 845 F.3d at 321; G & S Holdings, 697 F.3d at 538; Alioto, 651 F.3d at 721. Nor do

Acero and Sweazy suggest that countervailing state interests justified the adverse actions taken

against Molloy, thereby forfeiting that point as well.

The only remaining question is whether Molloy has adequately alleged that she spoke as

a private citizen rather than pursuant to her official duties. Molloy’s internal reports to Principal

Sweazy, Doc. 1 at ¶¶ 31-33, and to Acero’s Section 504/Title II coordinator, id. at ¶ 37, are

properly characterized as internal complaints, closely tied to her work and made to supervisors or

individuals charged with oversight—and thus are not entitled to First Amendment protection.

But Molloy also alleges that Acero retaliated against her for complaints made to coworkers and,

more significantly, to the staffing agency that placed her at Santiago School. Complaints about

an employer’s conduct, made to an outside staffing agency that must determine whether to

maintain its ongoing relationship with the employer, cannot—at least on the present allegations

and through the lens applicable on a motion to dismiss—properly be characterized as purely

internal or made pursuant to official reporting obligations.

Acero and Sweazy disclaim any argument that Molloy, like a police officer, was under

“some general duty to report misconduct.” Doc. 41 at 6-7. Instead, they submit that Molloy’s

“speech lacks constitutional protection because it pertained to her specific duties to identify

students in need of MTSS interventions and to implement such interventions.” Id. at 7. But

speech does not fall outside the First Amendment simply because it “pertains” to an employee’s

official duties. See Garcetti, 547 U.S. at 411 (“The dispositive factor … is not that … the

[expression] concerned the subject matter of [the plaintiff’s] employment.”). Rather, as noted,

“the controlling factor is [whether the employee’s] expressions were made pursuant to [her]

official duties.” Ibid. For the reasons just given, Molloy’s speech to the staffing agency, at the

very least, was not made pursuant to her official duties.

B. Monell Liability Against Acero

Molloy’s First Amendment claim against Acero, an operator of public charter schools, is

governed by the municipal liability standards set forth in Monell v. New York City Department of

Social Services, 436 U.S. 658 (1978). “A municipality may not be held liable under § 1983

based on a theory of respondeat superior or vicarious liability. A municipality only may be held

liable under § 1983 for constitutional violations caused by the municipality itself through its own

policy or custom.” Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). To state a Monell

claim, the plaintiff must allege facts sufficient to show that a municipal employee’s

unconstitutional act was caused by: “(1) an express [municipal] policy that, when enforced,

causes a constitutional deprivation; (2) a widespread practice that, although not authorized by

written law or express municipal policy, is so permanent and well settled as to constitute a

custom or usage with the force of law; or (3) an allegation that the constitutional injury was

caused by a person with final policymaking authority.” Gable v. City of Chicago, 296 F.3d 531,

537 (7th Cir. 2002) (citation omitted); see also Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 379

(7th Cir. 2017) (en banc). In addition to showing that the municipality acted culpably in one of

those three ways, the plaintiff must allege causation, meaning that the municipality, “through its

deliberate conduct, … was the ‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs

v. Brown, 520 U.S. 397, 404 (1997) (emphasis omitted).

Molloy alleges that Acero is liable under Monell because she was fired both (1) by a

“final policymaker” and (2) pursuant to a “widespread practice” of retaliation. Doc. 36 at 8-10.

Molloy need only allege facts adequate under one of those theories for her claim to survive a

motion to dismiss, and because her allegations satisfy the “final policymaker” theory, there is no

need to consider the “widespread practice” theory at this juncture.

“State law determines who legally constitutes a final policymaker.” Darchak v. City of

Chicago Bd. of Educ., 580 F.3d 622, 630 (7th Cir. 2009). “Final policymaking authority may be

granted directly by statute or delegated or ratified by an official having policymaking authority.”

Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 737 (7th Cir. 1999). A person has final

policymaking authority for employment purposes if she has authority to set policy for hiring and

firing. See id. at 739 (“There must be a delegation of authority to set policy for hiring and firing,

not a delegation of only the final authority to hire and fire.”). The complaint alleges that

“Sweazy possessed and was delegated final policymaking authority for personnel issues arising

within the Santiago School,” Doc. 1 at ¶ 14; that Acero (through Sweazy) fired Molloy in

retaliation for protected speech, id. at ¶¶ 43, 55-60; and that Acero ratified Sweazy’s conduct in

so doing, id. at ¶ 60. Those allegations suffice at the pleading stage to state a Monell claim

against Acero under a “final policymaker” theory. See Kristofek, 712 F.3d at 987 (holding that

allegations that the police chief “was fully in charge of the police department and that his firing

decisions were not reviewed” were sufficient to infer at the pleading stage that the chief had final

policymaking authority over hiring and firing).

In pressing the contrary result, Acero argues that a provision of the Illinois School Code,

105 ILCS 5/10-21.4a, divests school principals of personnel-related policymaking authority, and

instead vests such power exclusively in the school board. Doc. 28 at 10; Doc. 41 at 9-10.

Acero’s argument fails because 105 ILCS 5/10-21.4a does not govern charter schools like the

Santiago School. See 105 ILCS 5/27A-5(g) (providing that charter schools are exempt from “all

… State laws and regulations in this Code governing public schools and local school board

policies,” except for specific provisions not pertinent here). Rather, a charter school principal’s

authority is governed by the charter school’s board or other governing body (here, Acero)

consistent with the school’s charter. See 105 ILCS 5/27A-5(c) (“A charter school shall be

administered and governed by its board of directors or other governing body in the manner

provided in its charter.”). The complaint alleges facts suggesting that Acero’s governing body

administered and governed Santiago School in a manner that granted Sweazy final policymaking

authority over personnel decisions like Molloy’s termination. Doc. 1 at ¶ 56. Absent any

argument that Acero’s charter rendered that delegation impossible, Molloy’s Monell claim

against Acero survives dismissal under a “final policymaker” theory.

C. Sweazy’s Assertion of Qualified Immunity

Sweazy argues that even if Molloy adequately alleged that her firing violated the First

Amendment, Sweazy is entitled to qualified immunity. Doc. 28 at 10-11. “The doctrine of

qualified immunity protects government officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known. … A state official is protected by qualified immunity

unless the plaintiff shows: (1) that the official violated a statutory or constitutional right, and (2)

that the right was clearly established at the time of the challenged conduct.” Reed v. Palmer, 906

F.3d 540, 546 (7th Cir. 2018) (internal quotation marks omitted). “Because a qualified immunity

defense so closely depends on the facts of the case, a complaint is generally not dismissed under

Rule 12(b)(6) on qualified immunity grounds.” Id. at 548 (internal quotation marks omitted); see

also Tamayo, 526 F.3d at 1090 (“[W]e have cautioned that the rule that qualified immunity must

be resolved at the earliest possible stage must be tempered by the notice pleading requirements

of Rule 8.”) (citations omitted).

The complaint alleges that Molloy’s protected speech activities—at a minimum, her

external complaint to the staffing agencies working with Acero—motivated Sweazy to fire her.

At all relevant times, “[t]he law [wa]s settled that as a general matter the First Amendment

prohibits government officials from subjecting an individual to retaliatory actions for speaking

out.” Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012) (alteration omitted) (quoting

Hartman v. Moore, 547 U.S. 250, 256 (2006)). It follows, at least at the pleading stage, that

Sweazy is not entitled to qualified immunity.

Other than her argument that Molloy’s speech was not in fact protected by the First

Amendment, Sweazy offers only the suggestion that a right must be “clearly established in a

particularized … sense” for a claim to survive qualified immunity. Doc. 28 at 11 (quoting

Landstrom v. Ill. Dep’t of Children & Family Servs., 892 F.2d 670, 674-76 (7th Cir. 1990)). But

Sweazy provides no explanation—other than her and Acero’s legal argument, already rejected

above—for why that standard has not been met here. Sweazy accordingly has forfeited any

further argument that the First Amendment right invoked by Molloy was not clearly established

at the time Sweazy acted. See M.G. Skinner & Assocs., 845 F.3d at 321; Batson v. Live Nation

Entm’t, Inc., 746 F.3d 827, 833 (7th Cir. 2014) (“[A]s the district court found, the musical

diversity argument was forfeited because it was perfunctory and underdeveloped.”).

III. IWA Claims

Molloy alleges that Acero and Sweazy violated § 15 of the IWA by retaliating against her

because of her complaints, and that they violated § 20 of the IWA by retaliating against her

because of her refusal to participate in illegal activities.

A. Section 15 Claim

Section 15 provides, in pertinent part: “An employer may not retaliate against an

employee for disclosing information to a government or law enforcement agency, where the

employee has reasonable cause to believe that the information discloses a violation of a State or

federal law, rule, or regulation.” 740 ILCS § 174/15(b). “[T]o establish a cause of action under

section 15(b), the employee must show (1) an adverse employment action by his or her

employer, (2) which was in retaliation (3) for the employee’s disclosure to a government or law

enforcement agency (4) of a suspected violation of an Illinois or federal law, rule, or regulation.”

Sweeney v. City of Decatur, 79 N.E.3d 184, 188 (Ill. App. 2017).

The complaint alleges that Molloy reported suspected violations of federal and Illinois

law to Santiago’s principal (Sweazy), Doc. 1 at ¶¶ 29-36, and also to Acero’s Section 504/Title II

Coordinator (Sprovieri), id. at ¶ 37. The complaint further alleges that Acero, as an operator of

public schools, is a governmental body. Id. at ¶ 15. And the complaint alleges that after Molloy

made her complaints, Acero and Sweazy retaliated against her. Id. at ¶ 68. That is all the

complaint needs to do to state a § 15 claim.

Contrary to Acero and Sweazy’s submission, Sweeney does not require that a § 15

plaintiff report the alleged legal violation to a government entity other than her employer.

Rather, “the plain language of the Act supports” “a cause of action for disclosing suspected

unlawful activity to one’s own employer who also happens to be a government or law-

enforcement agency.” Brame v. City of N. Chicago, 955 N.E.2d 1269, 1271 (Ill. App. 2011).

Sweeney stands only for the proposition that a plaintiff is generally not protected under § 15 if

she merely reports a violation to the very person who committed the act in question. See

Sweeney, 79 N.E.3d at 189-90 (distinguishing Sweeney’s allegations from those in Brame

because Sweeney did not report the violator’s wrongdoing to the wrongdoer’s supervisor, but

instead merely told the wrongdoer that his acts were improper). Here, the complaint alleges that

Molloy reported wrongdoing to Acero’s Section 504/Title II Coordinator and to Sweazy. At the

very least, Molloy’s report to the Section 504/Title II Coordinator renders Sweeney inapposite.

B. Section 20 Claim

Section 20 provides: “An employer may not retaliate against an employee for refusing to

participate in an activity that would result in a violation of a State or federal law, rule, or

regulation, including, but not limited to, violations of the Freedom of Information Act.” 740

ILCS § 174/20. To plead a § 20 claim, “a plaintiff must [sufficiently allege] (1) a refusal to

participate in an activity that would result in a violation of a state or federal law, rule, or

regulation and (2) [that] the employer retaliated against the employee because of said refusal.”

Roberts v. Bd. of Trs. Cmty. Coll. Dist. No. 508, 105 N.E.3d 923, 933 (Ill. App. 2018), rev’d in

part on other grounds, 2019 IL 123594 (Ill. 2019). In so doing, a plaintiff “must identify a law,

rule or regulation that her employer asked her to violate.” Young v. Alden Gardens of Waterford,

LLC, 30 N.E.3d 631, 643 (Ill. App. 2015).

The complaint alleges that Acero was obligated under the IDEA, 34 C.F.R. § 300.304,

and certain sections of the Illinois Administrative Code to follow MTSS procedures for

identifying students with learning disabilities and for implementing proper interventions. Molloy

takes the position—as does, according to the complaint, the Illinois State Board of Education

(“ISBE”)—that those laws mandate the use of an MTSS intervention and diagnosis process.

Doc. 1 at ¶¶ 21-22. And the complaint alleges that Molloy refused to conduct interventions she

understood to be unlawful and refused to facilitate the improper identification of a student as

having a particular learning disability. Id. at ¶ 66.

Acero and Sweazy argue that the complaint does not state a § 20 claim because it “fails to

identify a provision within said regulations that any of the Defendants supposedly asked Plaintiff

to violate.” Doc. 28 at 14. But they cite no authority for the proposition that a plaintiff must

identify not only the section of the cited statute or regulation, but the particular subsection, to

state a § 20 claim, thereby forfeiting the argument. See Windy City Metal Fabricators & Supply,

Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 668 n.3 (7th Cir. 2008) (“We have made it clear

that a litigant who fails to press a point by supporting it with pertinent authority … forfeits the

point.”) (internal quotation marks omitted). In any event, Molloy identifies a practice—

diverging from MTSS requirements—and alleges that it violated the law. And Molloy properly

identifies the specific laws and regulations she claims that practice violated.

Acero and Sweazy also argue that the actions in which Molloy refused to participate

would not actually have been unlawful. Somewhat unhelpfully, Acero and Sweazy develop that

argument only in responding to Molloy’s ADA and Rehabilitation Act retaliation claims, for

which the answer does not matter. In any event, they do not do enough to rebut Molloy’s

understanding of why those actions would have been unlawful. Instead, Acero and Sweazy

contend that “MTSS … is not required by federal law,” observe that Molloy does not identify

specific students with disabilities to whom she was unable to provide MTSS interventions, and

argue that the ISBE does not require MTSS interventions to be delivered in any prescribed

manner. Doc. 28 at 5-6. The first point is presented without development or explanation. The

second, as Molloy notes, Doc. 36 at 5, misapprehends the thrust of her complaints—that Acero’s

deficient MTSS processes prevented her from properly identifying students with disabilities in

the first place. And as to the final point, Acero and Sweazy may be correct that the law does not

require perfect adherence to any particular MTSS process. But given that MTSS was the system

in place at Santiago School for ensuring compliance with governing law, and given that some of

Molloy’s allegations concern substantial deficiencies in core features of that system—disability

diagnosis and the provision of interventions to students with disabilities—Acero and Sweazy

must do more at the pleading stage to rebut the commonsense inference that the failures alleged

here, viewed in the light most favorable to Molloy, would violate the law.

Accordingly, Molloy has adequately pleaded a § 20 claim.

IV. Common Law Retaliatory Discharge Claim

To state a common law retaliatory discharge claim, Molloy must allege that: “(1) [her]

employer discharged [her], (2) in retaliation for [her] activities, and (3) that the discharge

violates a clear mandate of public policy.” Walker v. Ingersoll Cutting Tool Co., 915 F.3d 1154,

1157 (7th Cir. 2019) (quoting Turner v. Mem’l Med. Ctr., 911 N.E.2d 369, 374 (Ill. 2009)).

“Actions that are protected by the public policy of Illinois” include “retaliation for complaints

about an employer’s unlawful conduct.” Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277

F.3d 936, 940-41 (7th Cir. 2002). Like the antiretaliation provisions of the ADA and the

Rehabilitation Act, the retaliatory discharge tort “does not require the employee to have been

correct about the unlawfulness of the conduct, as long as she had a good-faith belief that it was

unlawful.” /bid. Accordingly, the common law retaliatory discharge claim survives dismissal

for the same reasons as do the ADA and Rehabilitation Act retaliation claims.

Conclusion

Acero and Sweazy’s motion to dismiss is denied. They shall answer the complaint by

October 24, 2019.

October 10, 2019

United States District Judge

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