Tanner v. Freemont School District 79

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL TANNER )

) Case No. 21 CV 2713

Plaintiff, )

)

v. ) Judge John Robert Blakey

)

BOARD OF EDUCATION OF FREMONT )

SCHOOL DISTRICT 79, COUNTY OF )

LAKE, STATE OF ILLINOIS )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

In this employment discrimination case, Plaintiff Michael Tanner brings

claims of discrimination and retaliation under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and breach of contract against

his former employer, Defendant Board of Education of Fremont School District 79

(the “Board”). [16]. The Board moves to dismiss Plaintiff’s ADEA discrimination

claim and breach of contract claim pursuant to Federal Rule of Civil Procedure

12(b)(6). For the reasons explained below, the Court grants the Board’s motion to

dismiss [18] in part and denies it in part.

I. Facts

The following facts are taken from Plaintiff’s amended complaint, [16], and are

assumed to be true for purposes of the Board’s motion to dismiss. The Board governs

the Fremont School District in Mundelein, Illinois and is responsible for the financial

and organizational governance of the schools in the district. [16] ¶¶ 8–9. In July

2010, Plaintiff began his employment with the Board as the Director of Business

Services. Id. ¶ 10. When the Board terminated him on or about October 25, 2018,

Plaintiff was 56 years old. Id. ¶ 11.

In April 2017, Plaintiff entered into a five-year, performance-based agreement

with the Board to serve as the Fremont School District’s Associate Superintendent

for Finance and Operations, beginning July 1, 2017, through June 30, 2022. Id. ¶¶

35, 36; [16-1] at 1.1 The agreement required the Board to provide Plaintiff with a

written evaluation of his performance during the term of the agreement based upon

Plaintiff’s rapport with the Board and Superintendent, the performance of Plaintiff’s

duties set forth in the agreement, and “such other factors of appraisal as may be

established by the Board.” [16-1] at 2. The agreement goes on to list Plaintiff’s

primary responsibilities as the Associate Superintendent for Finance and Operations,

all of which relate to overseeing the financial operations of the Fremont School

District. Id. The agreement further states that Plaintiff’s evaluation “will align to

PERA compliant process” and that fifty percent of the overall performance evaluation

would be based on the “Local Growth Model.” Id.

In July 2017, the Board hired Dr. William Robertson as the superintendent.

[16] ¶ 13. Plaintiff alleges that, upon Dr. Robertson’s hire, the Board engaged in a

1 Plaintiff attached a copy of the employment agreement to his amended complaint, which the Court

may consider on a 12(b)(6) motion to dismiss because it is considered part of the pleadings. See Fed.

R. Civ. P. 11(c); Geinosky v. City of Chi., 675 F.3d 743, 746 n.1 (7th Cir. 2012) (“A motion under Rule

12(b)(6) can be based only on the complaint itself, 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.”).

pattern of discrimination against its older employees, including him by, among other

things, demeaning, humiliating, and intimidating them; making age-based

employment decisions such as disciplining older workers under false pretenses;

treating younger employees more favorably; and refusing to take action against

employees who engaged in harassment and discrimination. Id. ¶ 14. Specifically, on

a “nearly daily and regular basis,” Dr. Robertson referred to Plaintiff as “old man,”

“grandpa,” “crusty,” “fossil,” and referred to Plaintiff’s car and phone as “ancient.” Id.

¶ 15. Plaintiff alleges that Dr. Robertson also began to create a paper trail to justify

Plaintiff’s termination and that in January 2018, Dr. Robertson disciplined Plaintiff

based on a fabricated charge that he had acted in a hostile manner toward another

Board employee. Id. ¶¶ 16, 17. Of the eighteen employees over the age of forty

employed by the Board, Dr. Robertson’s forced out eleven of those employees through

similar tactics. Id. ¶ 18.

In the spring and fall of 2018, Plaintiff had three conversations with the

Board’s president, Jason Bonds, to complain about Dr. Robertson’s behavior. Id. ¶

18. In the summer of 2018, Plaintiff also complained to Board Secretary Gabriela

Whipple about Dr. Robertson’s harassment. Id. Despite Plaintiff’s complaints, the

Board terminated Plaintiff’s employment on October 25, 2018. Id. ¶ 20. At the time

of his termination, Plaintiff was 56 years old. Id. ¶ 11. Although Plaintiff had been

terminated, Dr. Robertson and the Board falsely stated that Plaintiff resigned. Id.

¶¶ 19–22.

On March 7, 2019, Plaintiff filed a charge with the U.S. Equal Employment

Opportunity Commission (“EEOC”). Id. ¶ 4. The EEOC issued its right to sue letter

on February 19, 2021. Id. ¶ 5. Plaintiff initiated this lawsuit on May 19, 2021, [1],

and amended his complaint on August 16, 2021, [16]. In the amended complaint,

Plaintiff asserts claims against the Board for discrimination (Count I) and retaliation

(Count II), both under the ADEA, and breach of contract (Count III) and seeks

backpay, liquidated damages, reinstatement, compensatory damages, punitive

damages, costs, and attorneys’ fees. Id. at 7–8. The Board’s 12(b)(6) motion to dismiss

seeks dismissal of Counts I and III. [18].

II. Legal Standard

To survive a motion to dismiss, a complaint must allege “sufficient factual

matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim has facial plausibility “when the pleaded factual content allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Plausibility,

however, “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. Mere “labels and conclusions” or a “formulaic recitation of the

elements of a cause of action” are insufficient. Id. A plaintiff must allege “factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. In evaluating the complaint, this Court draws

all reasonable inferences in the plaintiff’s favor and accepts all well-pleaded

allegations as true; the Court need not, however, accept legal conclusions or

conclusory allegations. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)

(citing Iqbal, 556 U.S. at 681).

III. Analysis

As a preliminary matter, the Board moves to dismiss Plaintiff’s discrimination

claim to the extent it asserts a disparate impact claim under the ADEA and moves to

strike Plaintiff’s request for punitive damages for his breach of contract claim. [18]

¶¶ 18, 32–35. In his response brief, Plaintiff abandons any discrimination claims

based on a disparate impact theory and concedes he cannot seek punitive damages.

[22] at 1 n.1. Accordingly, the Court grants the Board’s motion to dismiss Count I

insofar it asserts a disparate impact theory of discrimination and strikes Plaintiff’s

request for punitive damages under his breach of contract claim. The Court

addresses the Board’s remaining arguments below.

A. ADEA Discrimination Claim (Count I)

1. Timeliness

The Board argues that, because Plaintiff filed his EEOC Charge on March 7,

2019, any unlawful employment practice that occurred prior to May 12, 2018, is time-

barred. [18] ¶¶ 28–31. The Board also moves to strike all allegations of

discriminatory conduct that occurred prior to May 12, 2018. Id. ¶ 31. Plaintiff

counters that all events that occurred prior to May 12, 2018, can be considered under

the continuing violation doctrine because they relate to the Board’s “pattern” of age-

based discrimination against its older employees. [22] at 9–10.

Before a plaintiff brings an ADEA claim, he or she must file an administrative

charge with the EEOC within 300 days of the alleged unlawful employment practice.

See 29 U.S.C. § 626(d)(1)(B); Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632,

637 (7th Cir. 2004) (“In Illinois, an employee may sue under the ADEA . . . only if he

files a charge of discrimination within 300 days of the alleged ‘unlawful employment

practice.’”). Claims for events that occurred more than 300 days before the filing of

the charge are not timely.

As Plaintiff correctly notes, under the continuing violation doctrine a plaintiff

can obtain relief for a time-barred act by “linking it with an act that is within the

limitations period.” Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 2002). The Supreme

Court refined this doctrine in National Railroad Passenger Corp. v. Morgan, however,

holding that it does not apply to easily identifiable discrete acts—such as a

termination or a failure to promote—because each discrete act of discrimination

“constitutes a separate unlawful employment practice.” 536 U.S. 101, 114 (2002).2

“[D]iscrete acts are not actionable if time-barred, even when they are related to acts

alleged in timely filed charges.” Id. at 113. The Court held, however, that this same

reasoning did not apply to discrimination claims based upon a hostile work

environment, because such claims are “composed of a series of separate acts that

2 Although Morgan examined the continuing violation doctrine under Title VII, Morgan is equally

applicable to the ADEA. Both statutes have a similar limitations period, compare 42 U.S.C. § 5000e-

5(a) with 29 U.S.C. § 626(d)(1)(B), and courts assess the timeliness of claims brought under both

statutes together. See Nagle v. Village of Camulet Park, 554 F.3d 1106, 1121 n.4 (7th Cir. 2009). In

addition, other courts in this district have applied Morgan to the ADEA. See, e.g., Outley v. City of

Chicago, 407 F. Supp. 3d 752, 761 (N.D. Ill. 2019) (applying Morgan to ADEA claim); Jones v. Chi. Bd.

of Educ., No. 11-cv-8326, 2013 WL 1499001, at *4 (N.D. Ill. Apr. 10, 2013) (same); Maze v. Towers

Watson Am., LLC, No. 11-cv-8120, 2012 WL 568683, at *4 (N.D. Ill. Feb. 21, 2012) (same).

collectively constitute one unlawful employment practice” and are timely so long as

“any act falls within the statutory time period.” Id. at 115, 120 (internal quotations

omitted).

In this case, Plaintiff filed his charge with the EEOC on March 7, 2019. [16] ¶

4. Thus, any discrete discriminatory acts that occurred more than 300 days before

that date—May 12, 2018—are time-barred. In his amended complaint, Plaintiff only

alleges two discrete discriminatory acts: his January 2018 discipline and October

2018 termination; and Plaintiff does not assert a hostile work environment theory of

discrimination under the ADEA.3 Of these two discrete discriminatory acts, only

Plaintiff’s October 2018 termination remains actionable because it is the only discrete

event that occurred within the 300-day limitations period. Although Plaintiff argues

that the January 2018 discipline is part of a pattern of age-based discrimination by

the Board and can be considered timely under the continuing violation doctrine,

Morgan’s dictate is clear: a plaintiff “seeking redress for a series of discrete

discriminatory acts cannot avoid the effect of the limitations period by arguing that

the discrete acts are ‘plausibly or sufficiently related.’” Adams v. City of Indianapolis,

742 F.3d 720, 730 (7th Cir. 2014) (quoting Morgan, 536 U.S. at 114). Accordingly, the

3 Although the Seventh Circuit has assumed without deciding that hostile work environment claims

are actionable under the ADEA, see Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005),

the only age-based harassment described with any specificity in the amended complaint are Dr.

Robertson’s comments referring to Plaintiff as “old man,” “grandpa,” “crusty,” and “fossil.” [16] ¶¶ 14–

15. Even assuming arguendo that Plaintiff intended to assert a hostile environment claim, the current

allegations, without more, fail to assert misconduct severe or pervasive enough to serve as the factual

basis for such a claim. See Tyburski v. City of Chi., 964 F.3d 590, 601 (7th Cir. 2020) (“Even insults

specifically referencing age do not necessarily rise to the level of actionable harassment.”).

Court grants the Board’s motion to dismiss Plaintiff’s ADEA discrimination claim to

the extent that it is based upon the January 2018 discipline.

The Court, however, denies the Board’s motion to strike the untimely

allegations from the complaint. Although these allegations cannot serve as the basis

for Plaintiff’s ADEA discrimination claim, they can be considered as background

evidence to his timely claims. See National Railroad Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002) (“Nor does the statute bar an employee from using the prior acts

as background evidence in support of a timely claim.”); West v. Ortho-McNeil

Pharmaceutical Corp., 405 F.3d 578, 581 (7th Cir. 2005) (“We have interpreted

[Morgan] as allowing time-barred acts as support for a timely claim.”). Accordingly,

the Court denies the Board’s motion to strike Plaintiff’s allegations of discriminatory

conduct that occurred prior to May 12, 2018.

2. Sufficiency of Plaintiff’s ADEA Discrimination Claim

In its motion to dismiss, the Board makes various arguments challenging the

factual sufficiency of Plaintiff’s amended complaint. See [18] ¶¶ 22 (“Plaintiff has not

alleged any connection between alleged stray age-related comments and his

separation from the School District in October of 2018.”), 23 (“Plaintiff has not

satisfied the third and fourth elements [of a prima facie ADEA discrimination

claim].”), 25 (“Plaintiff has not provided a connection about his age and his separation

from employment.”), 27 (“Plaintiff does not satisfy the elements of an ADEA claim

because he fails to provide plausible facts that could lead to a reasonable inference

Plaintiff’s age was the ‘but-for’ cause of his alleged involuntary separation from

employment.”); see also [23] at 2 (“The Board has not argued that Plaintiff has to

prove his claims now, but he does have to plead enough facts to set forth the basic

elements to state a claim.”). The Boards’ arguments, however, are unavailing.

In an employment discrimination claim, a complaint “need only aver that the

employer instituted a (specified) adverse employment action against the plaintiff on

the basis of” a protected characteristic. Tamayo v. Blagojevich, 526 F.3d 1074, 1084

(7th Cir. 2008). Thus, at the pleading stage, the plaintiff is “not required to include

allegations—such as the existence of a similarly situated comparator—that would

establish a prima facie case of discrimination under the ‘indirect’ method of proof.”

Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014); see also Chapman v.

Yellow Cab Cooperative, 875 F.3d 846, 848 (7th Cir. 2017) (“Ever since their adoption

in 1938, the Federal Rules of Civil Procedure have required plaintiffs to plead claims

rather than facts corresponding to the elements of a legal theory.”). Rather, “a

plaintiff need only identify the type of discrimination, when it occurred, and by

whom.” Clark v. Law Office of Terrence Kennedy, Jr., 709 Fed. Appx. 826, 828 (7th

Cir. 2017); see also Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir. 2022)

(“A litigant’s best shot at stating a plausible employment discrimination claim is to

explain, in a few sentences, how she was aggrieved and what facts or circumstances

lead her to believe her treatment was because of her membership in a protected

class.”).

Here, Plaintiff brings a discrimination claim against the Board under the

ADEA, which makes it unlawful for an employer to take adverse action against an

employee who is forty years or older “because of such individual’s age.” 29 U.S.C. §§

623(a)(1), 631(a). Drawing all inferences in Plaintiff’s favor (as required on a motion

to dismiss), Plaintiff’s amended complaint plausibly alleges a claim for discriminatory

termination under the ADEA. Plaintiff alleges that he was a member of a protected

class because he was 56 years old at the time of termination on or about October 25,

2018. [16] ¶¶ 11, 20. Plaintiff also asserts that upon Dr. Robertson’s hire, the Board

began taking age into account with respect to employment decisions and started

treating younger employees favorably compared to older workers. Id. ¶ 14. He

further alleges that Dr. Robertson’s actions caused eleven employees over the age of

40 to leave their employment with the Board. Id. ¶ 18. Plaintiff also claims that Dr.

Robertson subjected him to age-based comments such as “old man,” “grandpa,”

“crusty,” and “fossil” on a near daily basis and that Dr. Robertson believed Plaintiff

too old to be helpful to the Board. Id. ¶¶ 15, 16. Also, as the superintendent, Dr.

Robertson was ostensibly a decision maker, because Dr. Robertson disciplined

Plaintiff in January 2018 based on a “fabricated charge,” which was one of several

disciplinary actions that Plaintiff experienced until his termination. Id. ¶ 17.

Finally, Plaintiff alleges that after his termination in October 2018, Dr. Robertson

and the Board falsely stated that Plaintiff had resigned. Id. ¶ 21. These allegations,

taken together, allege enough “factual content that allows the court to draw the

reasonable inference” that he was terminated because of his age. Iqbal, 556 U.S. at

678. That is, Plaintiff identified the type of discrimination (termination because of

age), when it occurred (on or around October 25, 2018), by whom (Dr. Robertson), and

the facts or circumstances that led Plaintiff to believe that age was the reason for his

termination. See Clark, 709 Fed. Appx. at 828; Kaminski, 23 F.4th at 777. Federal

pleading standards require nothing more at this stage of the proceedings.

The Board, however, argues that Plaintiff’s allegations concerning the

discrimination experienced by other employees is not relevant and cannot be

considered in a motion to dismiss. Not so. First, these allegations, if proven, can

provide circumstantial evidence of discriminatory intent. See e.g., Burks v. Union

Pac. R. Co., 793 F.3d 694, 700 (7th Cir. 2015) (noting evidence raising an inference of

discriminatory intent can include “behavior toward or comments directed at other

employees in the protected group.”). Second, these allegations are in Plaintiff’s

complaint and on a motion to dismiss the court “must consider the complaint in its

entirety.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)

(emphasis added). At the pleading stage, the complaint “need only allege enough

facts to allow for a plausible inference that the adverse action was connected to [a

plaintiff’s] protected characteristic,” Kaminski, 23 F.4th at 777, and the allegations

concerning other older employees help make it plausible that Plaintiff’s termination

was because of his age. Accordingly, the Court denies the Board’s motion to dismiss

Count I of the amended complaint.

B. Breach of Contract (Count III)

Finally, the Board moves to dismiss Plaintiff’s breach of contract claim arguing

that Plaintiff’s multi-year contract is void as a matter of law because it contains no

goals and indicators of student performance and academic improvement as required

under 105 ILCS 5/10-23.8a.

Under the Illinois School Code, “school districts may only employ principals,

assistant principals, and other school administrators under either a contract for a

period not to exceed one year or a performance-based contract for a period not to

exceed 5 years, unless the provisions of Section 10.23-8b of this Code or subsection (e)

of Section 24A-15 of this Code otherwise apply.”4 105 ILCS 5/10-23.8a. The Illinois

School Code requires that performance-based contracts under 105 ILCS 5/10-23.8a

“be linked to student performance and academic improvement attributable to the

responsibilities and duties of the principal, assistant principal, or administrator,” and

requires that “[e]ach performance-based contract shall include the goals and

indicators of student performance and academic improvement” used by the local

school board to evaluate the administrator’s performance. Id. Finally, the statute

mandates that no “performance based-contract shall be extended or rolled-over prior

to its scheduled expiration unless all the performance and improvement goals

contained in the contract have been met,” which contemplates that a performance-

based contract under the statute include these goals and indicators of student

performance and academic improvement at the time of the contract’s execution. Id.

Thus, 105 ILCS 5/10-23.8a requires that a performance-based contract for principals,

4 Section 10-23.8b and subsection (e) of section 24A-15 of the Illinois School Code apply only to

principals and assistant principals. See 105 ILCS 5/10-23.8b (discussing the reclassification of

principals and assistant principals upon the non-renewal of their contract); 105 ILCS 5/24A-8(e)

(discussing the extension of a principal’s or assistant principal’s contract where a school district fails

to evaluate the principal or assistant principal during the term of the contract). Because Plaintiff was

not a principal or assistant principal, these exceptions to 105 ILCS 5/10-23.8a do not apply.

assistant principals, and other school administrators specifically identify the “goals

and indicators of student performance and academic improvement” used by a local

school to evaluate the performance of the principal, assistant principal, or other

school administrator. Id. Performance-based contracts for school administrators

that do not comply with the statute’s requirements are null and void. See Shlay v.

Montgomery, 802 F.2d 918, 922 (7th Cir. 1986). And a “municipal contract which is

legally prohibited or beyond the power of the municipality is absolutely void and

cannot be ratified by later municipal action.” McMahon v. City of Chi., 789 N.E.2d

347, 352 (Ill. App. Ct. 2003).

Here, Plaintiff was employed as an administrator for the Fremont School

District and his employment agreement was for a term of five years (July 1, 2017,

through June 30, 2022). [16] ¶ 36, [16-1] at 1. Plaintiff’s agreement states that he

would be evaluated according to the criteria set forth in the agreement, which consists

of his rapport with the Board and the superintendent, his performance of various

financial-related duties as an Associate Superintendent for Finance and Operations,

and “such other factors of appraisal as may be established by the Board.” [16-1] at 2.

The agreement further states that his “evaluation will align to [sic] PERA compliant

process and will have 50 percent of the overall performance evaluation based on the

Local Growth Model.” Id. The agreement does not define the terms “PERA compliant

process” and “Local Growth Model,” and does not otherwise contain any other

evaluation criteria relating to student performance and academic improvement as

required by the statute.

Although there is no dispute that Plaintiff was employed as a school

administrator, see [22] at 2, Plaintiff argues that 105 ILCS 5/10-23.8a does not govern

his employment agreement with the Board because his main functions as an

Associate Superintendent were limited to overseeing the financial and business

operations of the Fremont School District. [22] at 11. Plaintiff points to the statute’s

language requiring performance-based contracts be “linked” to student performance

and academic improvement “attributable” to an administrator’s duties. Relying on

Schau v. Board of Education of Peoria Public School Dist. No. 150, No. 11-1262, 2014

WL 1716246 (C.D. Ill. May 1, 2014), he argues that his duties did not “directly impact”

student performance and, thus, 105 ILCS 5/10-23a does not apply to him, [22] at 11–

12.

In Schau, the defendant school board moved in limine to limit the damages

available in a breach of contract lawsuit brought by a school comptroller, arguing that

the contract at issue was void because it did not contain goals and indicators of

student performance and academic improvement as required by 105 ILCS 5/10-23.8a.

Schau, 2014 WL 1716246, at *2. The Schau Court denied the school board’s motion,

finding that 105 ILCS 5/10-23.8a only applied to multi-year contracts of

administrators “whose responsibilities and duties involve student performance and

academic improvement through instructional leadership, planning, operation, and

evaluation of the educational program at the school.” Id. Because nothing in the

record indicated that student performance and academic improvement were

attributable to plaintiff’s duties as a comptroller/treasurer, the Schau Court held that

105 ILCS 5/10-23.8a did not apply to plaintiff’s contract. Id.

Plaintiff’s reliance on Schau is misplaced. As an initial matter, Plaintiff’s

argument contradicts what is alleged in his amended complaint, see [16] ¶ 36 (“The

contract was a valid, five-year performance-based contract under 105 ILCS 5/10-

23.8a.”), and a plaintiff cannot amend the complaint in a response brief. See, e.g.,

Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d

436, 448 (7th Cir. 2011) (noting “the axiomatic rule that a plaintiff may not amend

his complaint in his response brief.”).

In any event, the Schau Court’s interpretation of 105 ILCS 5/10-23.8a does not

control here. Nothing in the plain language of the statute limits its application to

school administrators “whose responsibilities and duties involve student performance

and academic improvement through instructional leadership, planning, operation,

and evaluation of the educational program at the school.” Schau, 2014 WL 1716246,

at *2. Rather, the statute explicitly applies to all “principals, assistant principals,

and other school administrators” and requires that multi-year performance-based

contracts “be linked to student performance and academic improvement attributable

to the responsibilities and duties of the . . . administrator” and that the school board

evaluate the administrator’s performance in accordance with the goals and indicators

included in the contract itself. 105 ILCS 5/10-23.8a. It also clearly states that the

performance-based contract must contain the goals and indicators of student

performance and academic improvement that a school board will use to evaluate the

school administrator’s performance. The statute does not exclude school

administrators whose main functions are limited to the business and financial

aspects of operating a school district (which, of course, indirectly effect student

performance and academic improvement).

Next, Plaintiff avers that, even if the statute controls, his employment

agreement meets the statute’s requirements because it mandates that his evaluation

comply to a “PERA compliant process” and be based in part on a “Local Growth

Model.” [22] at 12–13. Citing Hayes v. Elementary School District No. 159, No. 10 C

7095, 2011 WL 1059890, at *5 (N.D. Ill. March 21, 2011), he argues that these terms

may constitute the evaluation criteria based on student performance and academic

improvement required under the statute. This argument fares better because the

Court cannot determine whether these criteria satisfy the statute’s requirements

based on the pleadings alone, thus foreclosing dismissal at the pleading stage.

In Hayes, the performance-based contract at issue made express reference to

“student performance and academic improvement goals” that were to be “established

by mutual agreement” between the administrator and the school board. 2011 WL

1059890, at *5. The court in Hayes declined to dismiss the breach of contract claim

because it could not determine from the pleadings alone whether the parties had later

reached mutual agreement on the statutorily required “student performance and

academic improvement goals” in an addendum or other written agreement. Id.

Although Plaintiff’s employment agreement here makes no mention of any future

meeting with the Board to establish the goals and indicators of student performance

and academic improvement used to evaluate Plaintiff’s performance, the agreement

does mandate that Plaintiff’s evaluation align to a “PERA compliant process” and

that the evaluation be based in part on a “Local Growth Model.” The pleadings do

not indicate what these terms mean but they could theoretically entail many things

including the goals and indicators of student performance and academic improvement

required under 105 ILCS 5/10-23.8a. Thus, it is premature to find that Plaintiff’s

agreement with the Board was ultra vires and void as a matter of law.

The Board, however, contends that Plaintiff’s agreement contains no express

mention of the terms “goals and indicators” or “student performance” and cites

Woods-Clendening v. Bd. of Educ., No. 02 C 3578, 2002 WL 1732921, at *1 (N.D. Ill.

July 25, 2002) to argue that Plaintiff’s agreement violates the requirements of the

statute. [23] at 11-12. The Court disagrees. First, Woods-Clendening is inapposite

because that case involved a procedural due process challenge to a school

administrator’s termination; the validity of a performance-based contract under 105

ILCS 5/10-23.8a was not at issue in that case. See 2002 WL 1732921, at *1. Second,

the statute does not mandate that the contract use the express terms “goals and

indicators” or “student performance”. Rather, an administrator’s performance-based

contract must contain the goals and indicators of student performance and academic

improvement attributable to the administrator’s duties that will be used to evaluate

the administrator’s performance under the agreement. As discussed above, the Court

is unable to determine at the pleading stage whether the “PERA compliant process”

and “Local Growth Model” are the required “goals and indicators of student

performance and academic improvement.” If these terms include goals and indicators

of student performance and academic improvement attributable to Plaintiff’s duties

as an Associate Superintendent for Finance and Operations, then the statute’s

requirements are satisfied. Accordingly, the Court denies the Board’s motion to

dismiss Count III of the amended complaint.5

5 In his response brief, Plaintiff requests leave to amend Count III to assert an entirely new claim for

promissory estoppel and to clarify that Plaintiff alleges that his employment agreement with the Board

was a single-year contract. [22] at 14–15. In light of the Court’s denial of the Board’s motion to dismiss

count III, this issue is moot. In any event, the Court will not consider Plaintiff’s request for leave to

amend unless he files a separate motion requesting such relief, attaching his proposed amendment.

IV. Conclusion

For the reasons explained above, the Court grants Defendant’s motion to

dismiss [18] in part and denies it in part. The Court dismisses Count I to the extent

it relies upon Plaintiffs time-barred January 2018 discipline and a disparate impact

theory of discrimination and strikes Plaintiffs request for punitive damages. The

Court otherwise denies Defendant’s motion, thereby leaving intact Count I (to the

extent it relies on Plaintiffs October 2018 termination), Count II (which was not

subject to Defendant’s motion to dismiss), and Count III. If Plaintiff seeks to amend

his complaint, Plaintiff shall file a motion seeking leave and attaching the proposed

amended complaint on or before July 19, 2022. In the absence of any further

amendment, the Board shall answer all remaining claims on or before August 2, 2022.

All other case management dates stand.

Dated: July 5, 2022 Entered:

Chih. Blakey =

United States District Judge

19