Inojosa v. Board of Trustees of the City Colleges of Chicago, Community College District 508

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FRANKLIN INOJOSA, )

)

Plaintiff, )

)

v. ) 20 C 1114

)

BOARD OF TRUSTEES OF THE CITY ) Judge Charles P. Kocoras

COLLEGES OF CHICAGO, COMMUNITY )

COLLEGE DISTRICT 508, a municipal )

corporation, )

)

Defendant. )

ORDER

Before the Court is Defendant’s Board of Trustees of the City Colleges of

Chicago, Community College District 508’s (“CCC”) Motion to Dismiss Franklin

Inojosa’s (“Inojosa”) Complaint. For the following reasons, the Court grants-in-part

and denies-in-part CCC’s Motion.

STATEMENT

For purposes of this motion, the Court accepts as true the following facts from

the complaint. Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013). All

reasonable inferences are drawn in Inojosa’s favor. League of Women Voters of

Chicago v. City of Chicago, 757 F.3d 722, 724 (7th Cir. 2014).

Inojosa is a full-time professor of World Languages and English Language

Learning at Harold Washington College (“HWC”), one of the seven colleges in the

CCC system. At HWC, Inojosa’s primary discipline is Spanish. Inojosa has worked as

a CCC professor since 2001 and has held the rank of full professor at HWC since 2009.

Inojosa is (1) 64 and the oldest member of his department; (2) one of a few Hispanic

full professors at HWC; (3) one of three faculty members born outside the United

States; (4) the only member of Venezuelan origin; and (5) the only male among the

three highest seniority holders in the department.

The complaint principally alleges that Inojosa is subject to discrimination at

HWC in the way his courses are assigned, arranged, and facilitated. HWC course

selection for professors occurs in part under contract and is based on seniority and an

alternate “round robin” process. Under this process, professors first fulfill their course

obligations inside their department and only then teach courses outside their department

when there are no remaining intra-departmental courses.

In 2009, Inojosa taught courses outside of his department and accordingly did

not receive courses based on either the seniority or the “round robin” process. Inojosa’s

course schedule was more onerous as a result in part because his courses were scheduled

at worse days and times. These difficulties continued through 2018 when Inojosa

requested the opportunity to teach courses within his department. Thereafter, HWC did

not honor his seniority and he received even less favorable courses. Inojosa had certain

low-enrollment courses cancelled at the last minute which forced him to conduct

additional preparation. However, other non-Hispanic and non-Venezuelan faculty were

still allowed to teach low-enrollment courses and did not similarly suffer a heightened

preparatory burden as a result. Inojosa has also not been allowed to select available

computer classrooms for online courses as other faculty members have.

The complaint also alleges that Inojosa was not given a slate of classes after a higher

seniority faculty member went on sabbatical in the fall of 2019. The classes were

cancelled instead of being given to Inojosa. Inojosa complained about discrimination

to HWC through established avenues for redress and HWC has continued to place

limitations on his ability to teach. Inojosa’s complaint attaches an Equal Employment

Opportunity Commission (“EEOC”) right-to-sue letter dated November 21, 2019,

following his November 15, 2019 submission of an EEOC charge.1

Against this factual backdrop, Inojosa claims: (1) national origin discrimination

prohibited by Title VII, 42 U.S.C. § 2000e-2 (Count I); (2) race/color discrimination

prohibited by Title VII, (Count II); (3) age discrimination prohibited by the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1) (Count III); (4)

discrimination prohibited by Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq

(Count IV); (5) sex discrimination prohibited by Title VII (Count V); and (6) retaliation

prohibited by Title VII (Count VI).

CCC moved to dismiss under Federal Rule of Civil Procedure 12 and makes

three principle arguments. First, that Inojosa’s complaint should be dismissed for lack

of subject-matter jurisdiction because the Court does not have jurisdiction over the

1 Inojosa’s EEOC right-to-sue letter was attached to the complaint and is, therefore, considered part of the

complaint. N. Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452–53 (7th Cir.

1998).

interpretation of a collective bargaining agreement (“CBA”). Second, that Counts V

and VI, alleging sex discrimination and retaliation, respectively, fail to properly state a

claim. And third, that Inojosa is not entitled to punitive or exemplary damages because

CCC is a municipal corporation. We address each argument in turn.

1. Subject Matter Jurisdiction

CCC first argues that Inojosa’s complaint “inherently involves” the

interpretation of a CBA and that we lack subject-matter jurisdiction over Inojosa’s

federal employment discrimination claims as a result. We disagree.

In general, the Court has “original jurisdiction of all civil actions arising under

the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[W]hen

federal law creates a private right of action and furnishes the substantive rules of

decision, the claim arises under federal law, and district courts possess federal-question

jurisdiction under § 1331.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 378–79

(2012). States do not have the power “to enlarge or contract federal jurisdiction.” Zahn

v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016) (internal quotation

omitted). Nor is there anything “novel about recognizing that substantive rights in the

labor relations context can exist without interpreting collective-bargaining

agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411 (1988).

CCC has not persuaded us that a state statute which precludes courts from

exercising jurisdiction over state common-law claims somehow divests this Court of

jurisdiction over claims arising under federal law. See Chicago Teachers Union Local

1 v. Bd. of Educ. of City of Chicago, 2018 WL 1561724, at *3 n.1 (N.D. Ill. 2018)

(appropriately characterizing the narrow issue as “whether a state statute precludes

courts from exercising jurisdiction over a state common-law claim”). Inojosa’s

complaint does not directly allege an “unfair labor practice” under Illinois law and is

instead “outside the CBA.”2 Ferkel v. Bd. of Educ. of City of Chicago, 45 F. Supp. 3d

824, 838 (N.D. Ill. 2014). Indeed, we see little indication that the federal law allegations

are somehow reliant on Inojosa’s “contractual rights.” See Pryner v. Tractor Supply

Co., 927 F. Supp. 1140, 1146 (S.D. Ind. 1996), aff'd, 109 F.3d 354 (7th Cir. 1997).

The instant dispute does not involve interpreting contractual language to resolve

Inojosa’s claims. “If that were an accurate description of [Inojosa’s] claims, we would

agree” with CCC. Rabe v. United Air Lines, Inc., 636 F.3d 866, 872-73 (7th Cir. 2011).

Instead, the rights Inojosa asserts arise under federal employment discrimination laws

which are “independent of” any CBA. Id. at 873. “The mere mention of or reference

to” a contract in Inojosa’s complaint does not automatically render it non-justiciable.

Id. This is especially true because the “principal focus” of Inojosa’s complaint is the

“subjective reason[]” underlying CCC’s actions which does not “require the [C]ourt to

interpret” a CBA. Id.

2 The Court notes that there is no citation to or attachment of any CBA to the complaint or CCC’s motion.

Even if course selection rights do “derive[] from” a CBA, the thrust of the complaint concerns CCC’s

discriminatory actions as a matter of federal employment discrimination law—not state common law.

CCC’s citation to Cessna v. City of Danville, among other Illinois cases, does

not prevent us from exercising jurisdiction. 296 Ill. App. 3d 156 (1998). Because

Inojosa’s claim depends on a “factual inquiry” into the existence of discrimination,

rather than a dispute over the meaning of the CBA itself, we exercise jurisdiction.

Carlson v. CSX Transp., Inc., 758 F.3d 819, 833 (7th Cir. 2014). Indeed, under Illinois

law, only where an employee’s claim arises “entirely out of a collective bargaining

agreement” does the employee lack standing “without first exhausting any remedies

provided for in the agreement.” Gelb v. Air Con Refrigeration & Heating, Inc., 356 Ill.

App. 3d 686, 695 (2005) (emphasis added). “[T]he mere existence of a dispute between

an employee and an employer is insufficient to make the disputed matter subject to” the

CBA. Id. (emphasis added). Thus, as here, where Inojosa’s right arises “from another

statute,” the CBA does not govern. Semmens v. Bd. of Educ. of Pontiac Cmty. Consol.

Sch. Dist. No. 429, Livingston Cty., 190 Ill. App. 3d 174, 179 (1989).

Accordingly, we exercise subject-matter jurisdiction over Inojosa’s claims.3

3 CCC’s argument on reply—notably in tandem with a 12(b)(1) not a 12(b)(6) argument—that Inojosa has

not pled an adverse employment action does not preclude subject-matter jurisdiction. Because CCC makes

this argument for the first time in its reply brief, it is waived. See Niedermaier v. Warren Rosen & Co.,

2012 WL 1142472, at *2 (N.D. Ill. 2012) (noting the “familiar rule that arguments raised for the first time

in a reply brief are waived”). In addition, CCC notes that it “is not insisting that the evidentiary value of

these actions be evaluated at this early stage[.]” We agree that a motion to dismiss is not the proper vehicle

for the disposition of Inojosa’s claims.

2. Motion to Dismiss Counts V And VI For Failure To State A Claim

CCC moves to dismiss Inojosa’s sex discrimination claim and retaliation claim

under Federal Rule of Civil Procedure 12(b)(6). The Court addresses each claim in

turn.

a. Sex Discrimination Claim Under Title VII

CCC argues that Inojosa has failed to state a claim for sex discrimination under

Title VII because Inojosa has failed to allege an “additional factor” or something “fishy”

as Gore v. Indiana Univ., 416 F.3d 590 (7th Cir. 2005) requires at the summary

judgment stage. We disagree.

Notably, we recently rejected CCC’s exact contention in Phillips v. Baxter, 2020

WL 2197842, at *6 (N.D. Ill. 2020) (Kocoras, J.). There, we denied a motion to dismiss

because the Gore analysis concerns proof at the summary judgment stage, not on a

motion to dismiss. We noted that the Seventh Circuit has held that “the pleading

standards in [sex discrimination] cases are different from the evidentiary burden a

plaintiff must subsequently meet when using the method of indirect proof under

McDonnell Douglas.” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir.

2013). Accordingly, we allowed Baxter’s claim to proceed.

We see no reason to deviate from Baxter here. Generally, employment

discrimination claims must adhere to a minimal pleading standard. Tamayo v.

Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008); E.E.O.C. v. Concentra Health Servs.,

Inc., 496 F.3d 773, 781 (7th Cir. 2007). Inojosa has met that standard: he has pled that

he is within a protected category based on his sex and that different terms and conditions

of employment were imposed on him by CCC because of his sex. Specifically, Inojosa

claims that CCC gave him less desirable courses than other faculty; cancelled Inojosa’s

courses at the last minute which increased his preparatory burden; and declined to allow

Inojosa to select available computer classrooms needed for teaching hybrid-blended

courses.

Taken together, these allegations are enough to put CCC on notice of the claim

and the grounds upon which it rests. Accordingly, we deny CCC’s motion to dismiss

Inojosa’s sex discrimination claim.

b. Retaliation

CCC also argues that Inojosa has failed to state a claim for retaliation under Title

VII because Inojosa’s complaint has not adequately alleged “but-for” causation or a

discrete retaliatory act sufficient to establish an inference of discrimination. On both

fronts, we disagree.

“Pleading a retaliation claim under Title VII requires the plaintiff to allege that

she engaged in statutorily protected activity and was subjected to an adverse

employment action as a result. The protected activity must be specifically identified.”

Carlson, 758 F.3d 819, 828 (7th Cir. 2014) (quotations omitted).

Inojosa has done just that: his complaint attaches an Equal Employment

Opportunity Commission right-to-sue letter following his submission of an EEOC

charge; he alleges that he complained about discrimination using “established avenues”

for redress; and he alleges that he suffered discrimination, including limitations on his

ability to select courses and classroom facilities, as a result.

Both of CCC’s specific arguments in support of dismissal do not persuade us

otherwise. CCC’s first contention that Inojosa must establish but-for causation as raised

by Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013), among other

cases, is as we observed in Baxter, a question of proof, not pleading. See Baxter, 2020

WL 2197842, at *6. And second, that discrimination against Inojosa may have been

“ongoing” does not itself fail to state a claim under Rule 12(b)(6); if anything, we must

view his complaint through that lens. Carlson, 758 F.3d at 829. Indeed, the Seventh

Circuit cautioned in Carlson that an event-by-event “parsing” in the context of a

retaliation claim “los[es] sight of the bigger picture” which is “plausible and survive[s]

Rule 12(b)(6).” Id.; see also Conner v. Bd. of Trustees for Univ. of Illinois, 2019 WL

5179625, at *8 (N.D. Ill. 2019) (denying a motion to dismiss where there was ongoing

retaliation).

Accordingly, we deny CCC’s motion to dismiss Inojosa’s Title VII retaliation

claim.

3. Punitive and Exemplary Damages

CCC moves to strike Inojosa’s request for punitive or exemplary damages

because such damages are not recoverable against a municipal corporation like CCC.

Inojosa agrees that punitive damages should be stricken from all counts relying arising

under Title VI and VII (Counts I, II, IV, V and VI). Accordingly, the Court strikes

Inojosa’s request for punitive damages in Counts I, II, IV, V and VI. See Shaikh vy.

Watson, 2011 WL 589638, at *2 (N.D. Ill. 2011) (granting motion to dismiss punitive

damages claim in favor of CCC because punitive damages are “barred under the Local

Governmental and Governmental Employees Tort Immunity Act’).

Inojosa argues, and CCC does not refute, that Inojosa’s claim arising under the

ADEA allows the recovery of “liquidated damages” against a municipality like CCC

Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 373 (3d Cir. 2004) (concluding that

the “language of the ADEA itself makes it clear that Congress intended to subject

municipalities” “to the liquidated damages provision of the ADEA”) (citing Orzel v.

City of Wauwatosa Fire Dep't, 697 F.2d 743, 759 (7th Cir.1983)). Accordingly, Inojosa

may maintain his claim for liquidated damages under the ADEA (Count III).

CONCLUSION

For the reasons stated above, the Court grants-in-part and denies-in-part CCC’s

motion to dismiss. Status is set for 10/13/2020 at 10:20 a.m. It is so ordered.

Dated: 9/15/2020

Charles P.Kocoras

United States District Judge

10