# Tanner v. Freemont School District 79

> District Court, N.D. Illinois · July 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10147122

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** July 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10147122

## How later opinions describe it (automated extraction)

- noting evidence raising an inference of discriminatory intent can include “behavior toward or comments directed at other employees in the protected group.”
- noting “the axiomatic rule that a plaintiff may not amend his complaint in his response brief.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10147122. Public record. Not legal advice.