# Agbefe v. Board of Education of the City of Chicago

> District Court, N.D. Illinois · May 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10144863

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** May 11, 2021
- **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/10144863

## How later opinions describe it (automated extraction)

- holding that Title VII is the “exclusive” remedy for federal employment discrimination

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DORIS AGBEFE, )
)
Plaintiff, ) 19 C 4397
)
vs. ) Judge Gary Feinerman
)
BOARD OF EDUCATION OF THE CITY OF )
CHICAGO, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Doris Agbefe, a public school teacher, brings this suit against the Chicago Board of
Education, alleging that it violated Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681 et seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the
Fourteenth Amendment’s Equal Protection Clause by failing to properly address unchecked
sexual harassment by her students and by retaliating against her for complaining about the
harassment. Doc. 1. The Board moves to dismiss the complaint under Civil Rule 12(b)(6).
Doc. 14. The motion is granted in part and denied in part.
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 Agbefe’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 Agbefe 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).

Agbefe has been a Chicago public school teacher for decades. Doc. 1 at ¶ 7. Most
recently, she has taught at York Alternative High School, a school for juveniles detained in the
Cook County Jail. Id. at ¶ 8. Since mid-2015, Agbefe has taught in Division 9, the Jail’s
maximum security division. Id. at ¶ 9.
While teaching in Division 9, Agbefe has endured sexual harassment from her students
almost every day. Id. at ¶¶ 10-14. Her students expose themselves to her, masturbate in class
while staring at her, use sexually explicit and demeaning language toward her, and at times touch
her inappropriately or threaten her. Id. at ¶¶ 11-13. Agbefe has repeatedly complained to the
York administration about this misbehavior, but the administration’s response has been weak and
ineffectual. Id. at ¶¶ 16-17, 20, 23. The administration also underreports student misconduct to

the Chicago Public Schools system, making York seem like a safer environment than it in fact is.
Id. at ¶ 21. The Board has been unhelpful as well; in response to Agbefe’s complaints, it offered
only to place an additional staff member in her classroom—a measure that would not have
improved her students’ behavior. Id. at ¶¶ 23, 48. The combination of unbearable harassment
from her students and lack of support from her administration forced Agbefe to take a medical
leave of absence. Id. at ¶ 22.
In September 2017, the Chicago Public Schools Office of the Inspector General (“OIG”)
released a report that was highly critical of York and its administration. Id. at ¶¶ 26-27. The
report accused the school of inflating its enrollment and attendance data, pressuring teachers to
issue unearned credit to students, and discouraging teachers from reporting incidents of violence
and sexual misconduct. Ibid. The report recommended the termination of York’s principal,
Sharnette Sims. Id. at ¶¶ 10, 28.
In response to the OIG report, the Board fired Sims and conducted its own investigation

of York. Id. at ¶ 29. The investigation was led by James Ciesil, the Board’s deputy general
counsel. Id. at ¶ 30. In an interview with Ciesil, Agbefe confirmed many of the OIG report’s
findings, including that she endured inappropriate sexual behavior in the classroom and that she
was pressured into giving unearned credit to a student. Id. at ¶¶ 30-32.
By contrast to Agbefe, most teachers at York did not agree with the OIG report’s
findings. Id. at ¶¶ 35-38. Nearly every teacher interviewed by Ciesil reported that it was rare to
be threatened by a student, and experts visiting York had never witnessed a threat. Id. at ¶¶ 35-
37. A report that Ciesil prepared after his investigation singled out Agbefe as the only person he
interviewed who expressed fear for her safety while teaching at York and portrayed her as
dishonest and overly sensitive. Id. at ¶ 38. Ciesil’s report also suggested that those who were

critical of York and of Sims were motivated by racial bias. Id. at ¶ 39. Although Ciesil
promised Agbefe that her name would not appear in any publicly disclosed version of his report,
the version published in the Chicago Sun-Times named Agbefe and disclosed her complaints
about York. Id. at ¶¶ 33-34.
Ciesil’s report vindicated Sims, whom the Board reinstated as principal. Id. at ¶¶ 41-42,
44. When she returned to York, Sims vowed that her family would seek revenge against those
responsible for her firing. Id. at ¶ 44. Sims has made good on that promise, using her family and
York staff to “work against” Agbefe and others who provided negative comments to the OIG.
Id. at ¶¶ 43, 45.
Discussion
The complaint asserts five counts against the Board. First, it claims that Agbefe’s
students’ unrelenting sexual harassment rendered her classroom a hostile work environment, in
violation of Title IX. Id. at ¶¶ 49-56. Second, it claims that the Board retaliated against her for

reporting the sexual harassment, also in violation of Title IX. Id. at ¶¶ 57-62. Third, it claims
that the Board discriminated against her because she is African American, in violation of
Title VI. Id. at ¶¶ 63-67. Fourth, it claims that the Board retaliated against her for her
participation in Ciesil’s investigation, also in violation of Title VI. Id. at ¶¶ 68-73. And fifth, it
claims under § 1983 that the Board mistreated her because she is a woman, in violation of the
Equal Protection Clause. Id. at ¶¶ 74-79. Also, Agbefe intends to amend her complaint to add a
Title VII claim once she receives a right-to-sue notice from the Equal Employment Opportunity
Commission. Docs. 32, 45-47, 49-52, 56, 58-60.
I. Title VI Claims
Title VI provides that “[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d. The Board argues that Agbefe’s Title VI claims should be dismissed because
Title VI does not extend to claims arising from its employment relationship with her. Doc. 14 at
12-13. The Board is correct.
By its terms, Title VI may not be construed “to authorize action … by any department or
agency with respect to any employment practice of any employer, employment agency, or labor
organization except where a primary objective of the Federal financial assistance is to provide
employment.” 42 U.S.C. § 2000d-3 (emphasis added). Congress enacted § 2000d-3 out of
“concern that the receipt of any form of financial assistance might render an employer subject to
the commands of Title VI rather than Title VII.” Johnson v. Transp. Agency, 480 U.S. 616,
627 n.6 (1987). In Ahern v. Board of Education of Chicago, 133 F.3d 975 (7th Cir. 1998), the
Seventh Circuit interpreted § 2000d-3 to limit employment discrimination claims under Title VI
to circumstances in which “(1) providing employment is a primary objective of the federal aid, or

(2) discrimination in employment necessarily causes discrimination against the primary
beneficiaries of the federal aid.” Id. at 978 (quoting Trageser v. Libbie Rehab. Ctr., Inc., 590
F.2d 87, 89 (4th Cir. 1978)); see also Doe ex rel. Doe v. St. Joseph’s Hosp. of Fort Wayne, 788
F.2d 411, 419 n.12 (7th Cir. 1986) (“Although section 2000d-3 expressly addresses only agency
action, courts have uniformly held that, even in private actions under Title VI, the primary
objective of the federal grant must be to provide employment.”), overruled on other grounds by
Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487 (7th Cir. 1996). Agbefe’s allegations
satisfy neither prong of the Ahern test.
As to the first prong, Agbefe alleges that the Board receives federal funding, Doc. 1 at
¶ 64, but she says nothing about that aid’s “primary objective,” let alone that it is to “provid[e]

employment,” Ahern, 133 F.3d at 978. That failure is enough to sink her claim. See 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. That is true
whether it is an affirmative argument in support of a motion to dismiss or an argument
establishing that dismissal is inappropriate.”) (citations omitted); Lekas v. Briley, 405 F.3d 602,
614-15 (7th Cir. 2005) (holding that the plaintiff abandoned a claim where “he did not present
legal arguments or cite relevant authority to substantiate that claim in responding to defendants’
motion to dismiss”).
Even if the point were not forfeited, Agbefe could not meet the first Ahern prong. As this
court noted in a similar suit involving York and the fallout from the OIG report, York receives
federal education funds under Title I of the Elementary and Secondary Education Act, 20 U.S.C.
§ 6301 et seq. See Veljkovic v. Bd. of Educ. of Chi., 2020 WL 7626735, at *3 (N.D. Ill. Dec. 22,

2020). But the statutorily defined purpose of Title I is “to provide all children significant
opportunity to receive a fair, equitable, and high-quality education, and to close educational
achievement gaps.” 20 U.S.C. § 6301. Because the “primary objective” of Title I aid is to
educate students, and because employing teachers is only a means to that end, Agbefe’s claims
fail to satisfy the first Ahern prong. In fact, the Department of Education, which administers
Title I, has promulgated regulations enumerating the statutes that, in its considered view, have
employment as a primary objective, and Title I is not among them. See 34 C.F.R. § 100.3(c)(1);
id. pt. 100 app. A.
As to the second Ahern prong, Agbefe argues that the Board’s conduct had a
discriminatory effect on York students. Doc. 22 at 7-9. True enough, race discrimination in

teacher employment can sometimes cause discrimination against students, the primary
beneficiaries of Title I funds. See Ahern, 133 F.3d at 977 (explaining that a 1977 desegregation
plan for the Chicago Public Schools system included faculty hiring provisions because “the
Title VI ban against discrimination in federal programs might be violated by certain patterns of
faculty and staff assignments”); Afogho ex rel. A.A. v. Ill. Cent. Sch. Dist. 104 Bd. of Educ., 421
F. Supp. 3d 585, 593-94 (S.D. Ill. 2019) (holding that the complaint sufficiently alleged that race
discrimination against Black basketball coaches denied students “meaningful, nondiscriminatory
participation in school activities”); 34 C.F.R. § 100.3(c)(3) (providing that Title VI applies to
employment practices “to the extent necessary to assure equality of opportunity to, and
nondiscriminatory treatment of, beneficiaries”). Agbefe’s allegations do not match this theory,
however, because she does not identify any nexus between the Board’s racially discriminatory
treatment of her and any substandard educational environment for York’s students.
In her opposition brief, Agbefe explains that the Board “subjected her and the students at

York to improper educational practices,” Doc. 22 at 8 (citing Doc. 1 at ¶¶ 25-29), “failed to
follow proper disciplinary protocol, resulting in a dangerous classroom environment,” ibid.
(citing Doc. 1 at ¶¶ 26-29), and reinstated Sims as principal for race-based reasons, ibid. (citing
Doc. 1 at ¶¶ 7-8, 25-29, 42-44). She concludes that in reinstating Sims, the Board chose “to
leave the York students languishing with substandard instruction … in addition to the hostile
educational environment in [Agbefe’s] classroom,” though she alleges that the Board would have
intervened on the students’ behalf if York’s principal had been white. Id. at 9.
In staking her Title VI claims on this theory, Agbefe effectively abandons any argument
that York students were harmed by the Board’s racially discriminatory treatment of her, and
instead suggests that York students were harmed by the Board’s racially preferential treatment of

Sims. That theory does not satisfy the second Ahern prong, even putting aside the fact that the
complaint’s factual allegations do not support it. The reason is plain: it has absolutely nothing to
do with Agbefe, which necessarily means that she is not the proper plaintiff to vindicate
whatever (if any) Title VI violations might arise from the Board’s allegedly preferential
treatment of Sims. See Veljkovic, 2020 WL 7626735, at *4 (discussing Title VI’s “zone of
interests”).
In sum, because Agbefe does not satisfy the Ahern test, her Title VI claims are dismissed.
II. Title IX Claims
The Board argues that because Agbefe’s Title IX claims arise from her employment with
the Board, they are precluded by Title VII. Doc. 14 at 7-8; Doc. 23 at 2-3. In Waid v. Merrill
Area Public Schools, 91 F.3d 857 (7th Cir. 1996), abrogated on other grounds by Fitzgerald v.
Barnstable Sch. Comm., 555 U.S. 246 (2009), the Seventh Circuit held that Title VII precludes
other causes of actions for employment discrimination to the extent that Title VII would provide
an equivalent remedy. See id. at 861-62. As the court explained, “[w]hen Congress creates a

comprehensive statutory scheme for protecting a right, it may impliedly express the intention that
this scheme should be exclusive.” Id. at 861 (citing Middlesex Cnty. Sewerage Auth. v. Nat’l Sea
Clammers Ass’n, 453 U.S. 1, 20 (1981)). Because Title VII “provides a comprehensive statutory
scheme for protecting rights against discrimination in employment,” the court added, “[i]t is
well-established that Title VII’s own remedial mechanisms are the only ones available to protect
the rights created by Title VII.” Id. at 861-62. Applying these principles, the Seventh Circuit
held that the plaintiff in Waid, who alleged employment discrimination, could not invoke
Title IX to seek injunctive relief, which was the only form of relief available under Title VII at
the time. Id. at 862; see also Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378
(1979) (holding that 42 U.S.C. § 1985(3) cannot be the basis for a claim to vindicate a right

protected by Title VII); Brown v. Gen. Servs. Admin., 425 U.S. 820, 828-29 (1976) (holding that
Title VII is the “exclusive” remedy for federal employment discrimination).
Agbefe’s Title IX claims sound squarely in employment discrimination. Doc. 1 at ¶ 51
(“The Board created and/or subjected Plaintiff to a hostile work environment in violation of
Title IX … .”); id. at ¶ 57 (“Title IX prohibits retaliation against employees who oppose sex
discrimination.”). And Agbefe does not identify any remedy she seeks under Title IX that would
be unavailable under Title VII. Under Waid, then, she cannot bring a Title IX claim. See
Ludlow v. Nw. Univ., 125 F. Supp. 3d 783, 789-91 (N.D. Ill. 2015) (“Although Waid dealt only
with a claim for equitable relief (because that was all that was available to Ms. Waid under
[Title VII] at the time her claim arose), other courts in this district have interpreted Waid as
holding that Title VII precludes any Title IX employment discrimination suit. … Ludlow’s
Title IX claim is one for employment discrimination and therefore pre[cluded] under Title VII
… .”); Howard v. Bd. of Educ. of Sycamore Cmty. Unit Sch. Dist. No. 427, 893 F. Supp. 808,

814-15 (N.D. Ill. 1995) (dismissing a Title IX claim for sex-based employment discrimination
“as being precluded by Title VII”).
Granted, some decisions hold that, Waid notwithstanding, Title VII does not preclude
certain Title IX retaliation claims. See, e.g., Cieslik v. Bd. of Educ. of Chi., 2021 WL 1172575,
at *5-6 (N.D. Ill. Mar. 29, 2021); Burton v. Bd. of Regents of the Univ. of Wis. Sys., 171
F. Supp. 3d 830, 839-40 (W.D. Wis. 2016). In those cases, however, the plaintiffs engaged in
protected conduct by opposing their employers’ actions regarding matters within the heartland of
Title IX—discrimination in education, not discrimination in employment. See Cieslik, 2021 WL
1172575, at *5 (explaining that the defendant’s Title VII preclusion argument failed “[i]n this
particular case” because “the Plaintiffs alleged their opposition to sexual harassment in an

educational setting, not in the context of an employer-employee relationship”); Burton, 171
F. Supp. 3d at 834-35 (same, where the plaintiff’s protected conduct was advocating for a student
who alleged sexual harassment by a professor); see also id. at 840 (relying on Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005), “which allowed a teacher to bring a
retaliation claim under Title IX based on allegations that he received negative performance
reviews and was removed from a coaching position in retaliation for complaining about unequal
funding for a girls basketball team”). In such circumstances, it stands to reason that Title VII
does not preclude a Title IX retaliation claim, as it is difficult to see how Title VII would provide
a cause of action on a retaliation theory in the absence of an unlawful employment practice. See
42 U.S.C. § 2000e-3(a) (barring retaliation against an employee “because he has opposed any
practice made an unlawful employment practice by [Title VII], or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
[Title VII]”) (emphasis added).

Here, the theory behind Agbefe’s Title IX retaliation claim is that the Board subjected her
to retaliation for opposing sex-based discrimination against herself, not against her students. See
Doc. 1 at ¶ 58 (describing Agbefe’s protected activity as “opposing the sex discrimination and
harassment to which she was subjected”) (emphasis added). In other words, the alleged
retaliation against Agbefe was due to her opposition to a discriminatory employment practice;
such a claim, unlike the ones in Cieslik, Burton, and Jackson, is exactly what Title VII allows.
And thus, under the preclusion principle set forth in Waid, Agbefe may not bring that claim
under Title IX.
III. Equal Protection Claim
The Board argues that Agbefe fails to state a § 1983 equal protection claim, which
necessarily rests on a Monell theory. Doc. 14 at 13-15; see Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 694 (1978). Agbefe did not respond to this argument in her opposition brief. Doc. 22.
Accordingly, in its reply brief, the Board urged the court to deem the Monell claim forfeited.
Doc. 23 at 5-6.
The court ultimately allowed Agbefe to file a surreply addressing the Monell claim.
Doc. 60. In her surreply, Agbefe disputes that she forfeited that claim, Doc. 63 at 1-3, 5-6, and
defends it on its merits, id. at 3-5. As to forfeiture, Agbefe points out that her opposition brief
requested leave to amend her complaint under Civil Rule 15(a)(2). Id. at 2 (citing Doc. 22 at 13).
While the court disagrees with Agbefe’s contention that her opposition brief adequately
responded to the Board’s Monell argument, the court agrees that she properly sought leave to
replead, a request that the court would have granted. See Runnion ex rel. Runnion v. Girl Scouts
of Greater Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 2015) (“Ordinarily, … a plaintiff whose
original complaint has been dismissed under Rule 12(b)(6) should be given at least one
opportunity to try to amend … .”). And because the Monell issue has been fully briefed by the

Board in its motion to dismiss, Doc. 14 at 13-15, and its response to Agbefe’s surreply, Doc. 66,
the court will address it now rather than await an amended complaint.
To state a Monell claim, “[a] plaintiff must [allege facts] show[ing] that the violation was
caused by (1) an express government policy; (2) a widespread and persistent practice that
amounted to a custom approaching the force of law; or (3) an official with final policymaking
authority.” Howell v. Wexford Health Sources, Inc., 987 F.3d 647, 653 (7th Cir. 2021). The
Board argues that the complaint fails to allege facts that would support a Monell claim through
any of these avenues. Doc. 14 at 13-15; Doc. 66. The Board is mistaken.
It is necessary to address only the second way to state a Monell claim—allegations of an
unofficial but widespread practice. As to that theory, the Board argues only that “[Agbefe’s]

claim consists of alleged discriminatory and retaliatory conduct at one school, … which is not
enough to support a Monell claim.” Doc. 14 at 14; see also Doc. 66 at 2 (raising no new
arguments on this front). To support its argument, the Board cites Cornfield ex rel. Lewis v.
Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir. 1993), which affirmed the
dismissal of a Monell claim where plaintiff did “not allege that there [wa]s a widespread practice
of nonconsensual and unconstitutional searches of students in [the school district] that would
support a conclusion of municipal liability.” Id. at 1326; see Doc. 14 at 14.
Cornfield is easily distinguished, as Agbefe’s complaint does allege a widespread
practice. Specifically, the complaint alleges that the Board has a “polic[y] or custom[]” not to
“report sexually-motivated misbehavior of the students,” “investigate the misconduct of the
students,” or “adequately train and supervise School District employees with regard to
maintaining, preserving, and protecting teachers and staff” from harassment and violence.
Doc. 1 at ¶ 76. The complaint further alleges that this practice extends beyond Agbefe’s own

situation and affected other Board employees. Id. at ¶ 77. And the complaint alleges that the
practice has, unsurprisingly, had a “disparate impact against female employees.” Id. at ¶ 78.
True enough, the complaint is light on details as to other teachers’ experiences with sexual
harassment by students in the classroom, but it does allege that such harassment occurs and that
the Board’s practice is to ignore it. And even if it were true that the alleged practice spreads no
further than York, the Board provides no authority as to why a practice that affects several
teachers in a single school cannot give rise to Monell liability.
Accordingly, Agbefe states a viable § 1983 equal protection claim.
IV. Statute of Limitations
The Board argues that all Agbefe’s claims are untimely. Doc. 14 at 4-6; Doc. 23 at 1-2.
Because only the § 1983 equal protection claim survives dismissal, the court addresses the

timeliness of only that claim.
At the outset, Agbefe argues that the statute of limitation governing her § 1983 claim is
four years, under 28 U.S.C. § 1658(a), instead of the typical statute of limitations for § 1983
claims, which is two years. Doc. 22 at 5; see Regains v. City of Chicago, 918 F.3d 529, 533 (7th
Cir. 2019) (“[W]e look to the law of the state in which the personal injury occurred to determine
the length of the [§ 1983] statute of limitations. Under Illinois law, a plaintiff must bring a
personal injury action within two years after its accrual.”). Section 1658(a) sets a four-year
limitations period for “civil action[s] arising under an Act of Congress enacted after”
December 1, 1990. 28 U.S.C. § 1658(a); see Federal Courts Study Committee Implementation
Act of 1990, Pub L. No. 101-650, tit. III, § 313(a), 104 Stat. 5104, 5115. Agbefe tries to fit her
equal protection claim under § 1658(a) by relating it to 42 U.S.C. § 1981, which was amended in
1991. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071, 1071-72. That
argument fails because § 1981 is about racial discrimination and Agbefe’s equal protection

claim is based on sex discrimination. See 42 U.S.C. § 1981(a); Doc. 1 at ¶¶ 75-78. In any event,
because “§ 1983 remains the exclusive remedy for violations of § 1981 committed by state
actors,” the statute of limitations for any § 1983 claim against the Board—including for racial
discrimination under § 1981—would be two years. Campbell v. Forest Preserve Dist. of Cook
Cnty., 752 F.3d 665, 671 (7th Cir. 2014); see ibid. (“[Section] 1981 does not create a private
right of action against state actors … .”). The governing statute of limitations for Agbefe’s equal
protection claim is two years, not four.
Agbefe filed this suit on June 28, 2019. Doc. 1. To be timely under a two-year
limitations period, her § 1983 claim must therefore arise from conduct occurring on or after
June 28, 2017. The § 1983 claim is premised on the sexual harassment that Agbefe faced from

her students and the Board’s insufficient response to her complaints of that harassment. Doc. 1
at ¶ 75 (“The Board deprived [Agbefe] of her right to Equal Protection of the laws by failing to
investigate Plaintiff’s complaints of sexual harassment and hostile work environment, failing to
appropriately discipline students and maintain order in the classroom, covering up and/or failing
to report student behavioral issues, and manifesting deliberate indifference to the on- going
harassment of Plaintiff and other female employees.”).
According to Agbefe, her complaint alleges that “the hostile work environment at York
persisted even after the OIG cited it in his September … 2017 report.” Doc. 22 at 6. The
complaint does not expressly allege that, but nor does it allege that the harassment ceased at any
particular point. (Although the complaint mentions a medical leave of absence, Doc. 1 at ¶ 22, it
does not state the date of that leave.) The complaint also seems to suggest that Agbefe taught at
York at some point after the release of Ciesil’s report, id. at ¶ 43 (“[Agbefe] quickly felt the
repercussions from the interview with Mr. Ciesil and the resulting report.”), which would

necessarily mean she taught there at some point after the September 2017 release of the OIG’s
report, id. at ¶ 26. The murkiness in the timeline favors Agbefe at this stage, as the court cannot
conclude from the complaint—or any other materials it may consider on a Rule 12(b)(6)
motion—that all the alleged sex-based misconduct by Agbefe’s students, and all the Board’s
insufficient response to her complaints about that misconduct, occurred before June 28, 2017.
See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002) (holding, in the Title VII
context, that a hostile work environment claim is timely “so long as all acts which constitute the
claim are part of the same unlawful employment practice and at least one act falls within the time
period”); see also Barnes v. Bd. of Trs. of the Univ. of Ill., 946 F.3d 384, 389 (7th Cir. 2020)
(equating § 1983 equal protection claims in the employment context with Title VII claims);

Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1029-30 (7th Cir. 2003) (same).
The Board emphasizes that Agbefe “has not alleged she was subject to any to sexual
harassment and physical threats by the student-detainees after [June] 28, 2017.” Doc. 23 at 2.
But as noted, neither does the complaint allege that the harassment ceased before that date, and
there is no requirement that it be plain from the face of the complaint that Agbefe’s claims are
timely, as a complaint need not plead around a statute of limitations defense. See Chi. Bldg.
Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613-14 (7th Cir. 2014) (“Because
complaints need not anticipate and attempt to plead around defenses, a motion to dismiss based
on failure to comply with the statute of limitations should be granted only where the allegations
of the complaint itself set forth everything necessary to satisfy the affirmative defense.”) (citation
and internal quotation marks omitted).
Conclusion
The Board’s motion to dismiss is denied as to the § 1983 claim and granted as to the
Title VI and Title IX claims. Although it is difficult to see how Agbefe might cure the
deficiencies in the Title VI and Title IX claims, she will be given an opportunity to replead them.
See Runnion, 786 F.3d at 519. If Agbefe wishes to replead the Title VI and Title IX claims, she
must file an amended complaint by June 2, 2021. If Agbefe does not replead within that
timeframe, the dismissals of those claims will convert automatically to dismissals with prejudice,
and the Board shall answer the surviving portions of the complaint by June 16, 2021.

May 11, 2021
United States District Judge

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10144863. Public record. Not legal advice.