Phelps v. Illinois Department of Corrections (IDOC)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KEITH PHELPS,

Plaintiff,

Case No. 22 C 932

v.

Judge Harry D. Leinenweber

ILLINOIS DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Keith Phelps (“Phelps”) filed a Complaint against

Defendants Illinois Department of Corrections (“IDOC”), and three

of its employees — Mindi Nurse (“Nurse”), Rob Jeffreys

(“Jeffreys”), and Catherine Larry (“Larry”) — in their official

and individual capacities, bringing Counts I, II, and III under

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e-2, against Defendant IDOC for sex discrimination,

retaliation, hostile work environment, respectively; Count IV

against all Defendants for violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; Count V against

all Defendants for intentional infliction of emotional distress;

and Count VI against all Defendants for violation of the Illinois

Whistleblower Act (“IWA”), 740 ILCS 174, et seq. Defendants have

moved to dismiss some of the counts as discussed herein pursuant

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt.

No. 15.) For the reasons stated herein, the Courts grants in part

and denies in part the Motion.

I. BACKGROUND

In his Complaint, Plaintiff Phelps alleges the following

facts.

A. Parties

The Illinois Department of Corrections (“IDOC” or

“Institutional Defendant”) operates the Joliet Correctional

Treatment Center (“JCTC”) (Compl. ¶ 3, Dkt. No. 1) and employs all

other parties in this suit. (Id. ¶¶ 4-10.)

Mr. Keith Phelps (“Phelps”) is an African American male, older

than 40 years old at all times relevant to his Complaint. (Id.

¶¶ 2, 130.) Phelps began working at IDOC on December 11, 2017, as

a Corrections Officer, and is currently employed there today. (Id.

¶ 10.) Phelps came to IDOC with 18 years of experience working

with a department of corrections in a different state (Id. ¶ 10),

as well as mental health trainings and certifications from that

state. (Id. ¶ 15).

Mindi Nurse (“Nurse”) directly supervised Phelps at the IDOC

until her November 2021 transfer to another correctional center in

Illinois. (Id. ¶ 6 & n.1) From April 2018 until January 2020,

Nurse worked as a Corrections Treatment Senior Security Supervisor

(“CTSSS”) at JCTC. (Id. n.1) She then assumed the role of

Assistant Warden of Operations at JCTC, a position she held until

her transfer. (Id.) Nurse presents as a white woman. (Id. ¶ 6.)

Defendant Rob Jeffreys (“Jeffreys”) was employed as the

Director of IDOC at all times relevant to this action. (Id. ¶ 4.)

Dr. Catherine Larry (“Larry”) was employed as the Warden of

JCTC at all times relevant to this action. (Id. ¶ 5.)

B. Management Styles

Phelps prided himself on his “style of management that

includes respect for inmates and treating them as human beings, in

hopes that they reform and rehabilitate.” (Id. ¶ 15) Although his

fellow officers’ safety was his primary concern when making

decisions, Phelps believed that priority could be properly

balanced with inmates’ well-being and fair treatment. (Id. ¶ 16.)

Phelps “ma[de] sure that residents are treated fairly and given

every element of what they are entitled to regarding their safety,

security, mental health treatment, and medical needs.” (Id.)

Inmates shared numerous positive reviews of Phelps’s work. (Id.)

On or around March 16, 2019, Phelps was promoted to a

Correctional Treatment Officer Supervisor (“CTOS”). (Id. ¶ 11.)

On or around April 11, 2019, at a meeting with Assistant

Warden Godwin, Phelps, and other CTOSs and crews, Nurse accused

Phelps of “staff splitting” and of being too respectful to inmates.

(Id. ¶¶ 12-13). She contended that the respect he showed inmates

made his colleagues’ jobs more difficult. (Id. ¶ 13.) Nurse

instructed Phelps to “be more punitive and aggressive with the

inmates of JCTC” and to “just say ‘no’ to [inmates’] issues or

concerns.” (Id.) With prompting from Nurse, the other CTOSs

present agreed. (Id.)

Phelps communicated his refusal to adopt Nurse’s philosophy,

which Phelps understood as “more about punishment.” (Id. ¶¶ 14-

15.) He “fe[lt] that the meeting was an attack on his value system,

work ethic, and the IDOC core values that he lives by while on the

job.” (Id. ¶ 14.) Indeed, Phelps had previously found himself at

odds with his colleagues who favored the penal-based approach

espoused by Nurse. (Id. ¶ 15.)

C. Work Environment

Phelps believed Nurse and her associates made him feel like

he should quit, skipped over him for promotions, and harassed and

undermined him because of their conflicting approaches to inmate

management. (Id.) For instance, Nurse frequently watched Phelps on

camera to keep a “close eye” on him. (Id. ¶ 17.)

In August 2019, Nurse denied Phelps the mental health crisis

training that he requested. (Id. ¶ 18.) Nurse explained that she

was too busy to train Phelps, but around the same time, Nurse

provided training to Phelps’ colleagues, including Elizabeth Vera

(“Vera”), who maintained a lower rank than Phelps. (Id. ¶¶ 18-20.)

Vera mocked Phelps in front of others. (Id. ¶ 18.) Phelps made

subsequent requests for training that Nurse denied. (Id. ¶ 19-20.)

In the Fall of 2019, Phelps and an investigator overheard

Nurse and CTOS Allen in then - Warden Andrea Tack’s office

“conspiring” to place Phelps under IDOC investigation. (Id. ¶ 21.)

Phelps heard them plan to fabricate a story, which “an inmate who

was known to be racist” would corroborate, that Phelps had

mistreated this particular inmate. (Id.) It was common knowledge

in the facility that this inmate harbored distain for Phelps

because of Phelps’ African American race. (Id.) Upon hearing this

plan, Phelps walked into the office and said something to the

effect of, “I’m right here, are you serious? This isn’t right,”

(id. ¶ 22.), which led Nurse to immediately walk out of the room

“with a ghostly white face.” (Id.) In January 2020, Phelps filed

a complaint against Nurse to Larry, alleging discrimination and

harassment. (Id. ¶ 24.) Shortly after, Phelps was denied a

promotion for Temporary Assignment (“T.A.”) as a Corrections

Treatment Senior Security Shift Supervisor (“CTSSS”) despite

Phelps’s eligibility due to his seniority. (Id. ¶ 25.) Nurse was

on the board charged with making this decision. (Id.) By the time

Phelps received his first T.A. to the CTSSS position, he had

applied over eight times, six of which occurred prior to his

January 2020 denial. (Id.)

On April 1, 2020, Phelps emailed Warden Larry, alleging

harassment, bias, discrimination, the spreading of lies, rumors,

false reports, and innuendo; expressing his feelings of

alienation; and relaying his concerns of having no support and

ethical attacks against him in the workplace. (Id. ¶ 26.) In his

email, Phelps requested a private meeting with Larry to discuss

his concerns and any opportunity to a transfer to the Elgin

facility. (See April 1, 2020, Email, Compl. Exhibit A, Dkt. No. 1.)

On or about May 20, 2020, Nurse orally reprimanded Phelps for

the false accusation that Phelps had failed to pack and inventory

the property of an inmate who was taking a temporary absence.

(Compl. ¶ 27.) In June 2020, Phelps wrote an incident report in

his defense and submitted it to Warden Larry. (Id.)

On or about June 6, 2020, Phelps filed a grievance related to

a May 31, 2020, event in which a resident was not given their

property back, and Phelps accused Nurse of treating White CTOSs

differently than African American CTOSs. (Id. ¶ 28.)

On or about June 12, 2020, Phelps sent an email to Julie

Anderson, (“Anderson”), a Human Resources employee at JCTC and a

known associate of Nurse. (Id. ¶¶ 29, 98). Phelps carbon copied

Larry on this email regarding Phelps’ two (2) absences on May 23

and 24, 2021. (Id. ¶ 29.) Phelps turned in an electronic doctor’s

note for the missed days, but Anderson claimed the note was a fake.

(Id.)

In July 2020, while Phelps was working as the CTOSs on duty,

Nurse authorized a CTOS to spray an inmate, who was having a mental

and emotional breakdown, in the face with OC (pepper spray). (Id.

¶ 30.) According to JCTC policies, Phelps should have been

consulted before this spray, but he was not. (Id. ¶¶ 30-31.)

Phelps told Nurse that he did not feel comfortable writing a report

about a matter that was kept from him and for conduct that he would

never authorize. As a result, Nurse told Phelps that he did not

have to write the report, and instead “could go home.” (Id. ¶ 32.)

On July 31, 2020, Phelps attempted to apply for a CTSSS

Position. (Id. ¶ 33.) Phelps’ qualifications, according to the

qualifying factors for position, should have guaranteed Phelps an

interview. However, around September 20, 2020, Phelps discovered

that Anderson had failed to submit Phelps’ application to IDOC.

(Id. ¶ 33-34.) By the time IDOC finally received his application,

interviews had already been scheduled. (Id. ¶ 37.) Phelps believed

that Anderson had deliberately failed to submit Phelps’

applications, because Anderson had submitted applications for

other coworkers that were close associates of Nurse. (Id.)

In September 2020, Phelps saved an inmate from committing

suicide. (Id. ¶ 38.) Afterwards, Nurse told Phelps something to

the effect of, “here at JTC, we do not stop or attempt to stop

residents from self-harming and committing suicide by opening the

door to check on them if you cannot observe the resident by window

or food port.” (Id.)

For around four months starting in approximately September

2020, while Phelps was working as a CTSSS, neither Anderson nor

Nurse notified Phelps of the requirement that he had to submit an

overtime slip to Nurse. (Id. ¶ 39.) Instead, Nurse had given Phelps

incomplete information. (Id.) When Phelps finally learned of the

proper procedure from his colleagues, Phelps alerted Anderson that

he had been underpaid. (Id.) Anderson responded that too much time

had elapsed to approve pay for the past work. (Id. ¶ 40.) As a

result, Phelps did not collect his overtime pay for his work during

this time. (Id. ¶¶ 39-40.)

On or around October of 2020 Phelps broke his toe falling

down the stairs at work. (Id. ¶ 41.) Phelps wrote an incident

report on the injury and gave it to Nurse. (Id.) Phelps’ doctor

approved Phelps to work with a walking boot, (id. ¶ 42.), which

contained no object that residents could use as a weapon. (Id.

¶ 43.) Anderson denied Phelps’ ability to work with the boot, even

though one of his female coworkers had been allowed to work in a

boot around the same time. (Id. ¶¶ 42-43.) Phelps then considered

filing a workers compensation claim, but Nurse refused to offer

the incident report required for the claim. (Id. ¶ 44.) Thus,

Phelps could not recover on that account. (Id.)

One night, in or around December 2020, one of Phelps’

coworkers, CTOS Oliver, put feminine hygiene menstrual pads in

Phelps’ locker, and though it amused his coworkers, Phelps felt

humiliated. (Id. ¶ 45.)

On or about December 5, 2020, an IDOC human resource

specialist informed Phelps that his grade was rejected by CMS for

a CTSSS position in Concordia. (Id. ¶ 46.)

Sometime between December 2020 and February 2021, when Phelps

managed first and second shift, CTSSS Brown and CTSSS Crudup

(associates of Nurse) made Phelps’ management more difficult by

sending incomplete shift rosters. Brown and Crudup’s failure to

provide complete rosters resulted in unnecessary paperwork for

Phelps and tardiness to his responsibility of sending writs. (Id.

¶ 47.) Nurse reacted by telling Phelps, “[y]ou better get that

f***ing writ out!” (Id.)

For two (2) months starting in February 2021, Phelps ran the

third shift by himself, despite repeatedly asking for assistance,

which Nurse denied. (Id. ¶ 48.)

Nurse denied training to Phelps for years on the Glock pistol

(Id. ¶ 49), D.O.A. (Id. ¶ 50), and roster management (Id. ¶ 51).

In February 2021, Phelps asked Nurse why she repeatedly denied

his requests for training. (Id. ¶ 52.) Nurse responded that she

opposed “men managing everything.” Nurse told Phelps something to

the effect of “since you men want to manage the facility, you can

prep your own rosters [without her help or further training].”

(Id.) Shortly after that discussion, one of Phelps’ male coworkers,

CTOS Richardson, resigned from JCTC due to the ignorance and

constant harassment by Nurse. (Id. ¶ 53.)

Also in February 2021, Nurse yelled false accusations that

Phelps had mandated that “officers [stay] late and of unjustifiably

moving officers from their assigned post on the master roster.”

(Id. ¶ 54.) Phelps told Nurse that he moved officers to prevent

burn-out and to keep up officer morale after he received complaints

that many officers felt burnt out in JCTC Dorm 7 and 8, and that

they did not feel safe down there. (Id.)

However, Nurse continued yelling until she was escorted out

of the office by another CTOS. (Id. ¶ 55.) As this other CTOS

escorted Nurse out of the office, they told Nurse that “Phelps

does a good job on night shift,” to which Nurse responded, “I am

not going to talk you!” [sic.] Nurse later called Phelps to

apologize to him after her outburst. (Id.)

Sometime between December 2020 and February 2021, Nurse told

Phelps that since Phelps was “a man and wanted to manage” the JCTC

facility as a CTSSS, she would not provide him the tools he needed

to do his job as a senior shift supervisor. (Id. ¶ 56.) Despite

JCTC policy that requires that a senior shift supervisor prep at

least 48 hours prior to the designated shift, Nurse did not prepare

rosters on time for Phelps, and did not give him access to prepare

and print his own rosters. (Id. ¶¶ 56-57.) As a result, Phelps

would be forced to stay over two (2) to three (3) hours to complete

the preparation for the next shift. On multiple occasions when

Phelps asked where the rosters were, Nurse or her associate blamed

Phelps for losing them. (Id. ¶¶ 57-58.)

Between December 2020 and February 2021, Nurse forbade Phelps

from attending mandatory senior shift supervisor meetings, where

supervisors obtained the latest information pertaining to the

operation of the JCTC facility. (Id. ¶ 59.) Missing these meetings

made it difficult for Phelps to manage his shift. (Id.)

On March 10, 2021, Nurse assigned Phelps menial tasks such as

cleaning out closets in Dorm 7. (Id. ¶ 60.) That night, while

Phelps was on a phone call in the supervisor office, CTSSS Crudup

interrupted him to yell and curse at him, demanding in an hour a

report on a hunger strike that Phelps volunteered to write after

another CTSSS had failed to do so. (Id. ¶ 61.) Phelps stopped what

he was doing and completed the report in the timeframe. (Id.) After

that, CTSSS Crudup went back to her office and called Nurse to

complain about the situation, “menacingly posturing” towards

Phelps while she slammed objects on her desk, floor, and walls.

(Id. ¶ 62.)

The following day, on March 11, 2021, Nurse denied Phelps the

opportunity to complete a recent CTSSS assignment, which trains

CTOSs to manage a shift and to complete noted shift documentation

such as rosters, payroll sheets, overtime and hiring equilibrium

programs. (Id. ¶ 63.) When Phelps asked Nurse why she denied him

the opportunity, she fabricated an excuse. (Id. ¶ 64.) When Phelps

asked Nurse for this statement in writing, Nurse claimed that she

had a right to take away the job without cause. (Id.) Phelps argued

that the Administrative Directive did not authorize this. (Id.)

After the conversation, Phelps felt dizzy and weak, so he headed

to the emergency room. (Id. ¶ 65.) As he was en route, Nurse called

Phelps, demanding that he bring a doctor’s note upon his return to

work. (Id.). Phelps perceived the call and demand to be harassing.

(Id.)

On March 11, 2021, Nurse falsely accused Phelps of failing to

serve a written reprimand to CTOS Wilson. (Id. ¶ 66.) And even

though CTOS Wilson had recently been reprimanded, Nurse gave CTOS

Wilson the CTSSS assignment that Nurse had just denied Phelps.

(Id.)

In March 2021, Phelps learned that Nurse instructed other

CTOS supervisors try to convince officers to write slanderous

misleading information about Phelps in an effort to pack his

personnel file with false allegations. (Id. ¶ 67.)

D. Leave and Overtime

On April 8, 2021, Phelps took a non-service disability leave

of absence, and was out of work between March 11, 2021, and May 1,

2021. (Id. ¶ 69.) During this time, on or about April 14, 2021,

Nurse told Officer Catala to call Phelps and tell him that he

missed two days of work (April 11, 2021, and April 14, 2021) —

despite Phelps being on leave. (Id. ¶ 69.) While Phelps was on

leave, Anderson further required Phelps to call in every day for

three weeks to let her know that he was not coming into work. (Id.

¶ 70.)

Around May 24, 2021, Phelps attempted to take benefit time

for personal family matters. (Id. ¶ 71.) However, Officer Brda in

JTCT’s payroll department explained that Larry denied it with the

understanding that Phelps was still on FMLA medical leave. (Id.)

Anderson should have known that Phelps’s FMLA leave expired on

May 1, 2021, and that he would have been permitted to take personal

benefit time off. (Id.)

From around March 2021 through May 2021, Nurse refused to

submit Phelps’ overtime slips. (Id. ¶ 73.) Phelps noticed that

the slips would disappear, or that he was not paid for his overtime

work completed in earlier months, totaling $4,000 worth. (Id.) On

May 31, 2021, when Phelps confronted Nurse about this, Nurse

claimed she did not know where these overtime slips were and did

not have them, adding that maybe the slips were in Phelps’ mailbox.

(Id. ¶ 74.) On May 30, 2021, no overtime slips had been in his

mailbox. (Id. ¶ 75.) However, after Nurse’s comment, the slips

were discovered in his mailbox that day. (Id.) The slips were not

signed, and when Phelps asked Nurse why that was the case, Nurse

responded that she could not sign slips older than five days. Thus,

Phelps did not receive payment for that overtime. (Id.)

E. Complaints

On May 31, 2021, Phelps sent an email to the Confidential

Assistant to IDOC Director Rob Jeffreys, detailing Phelps’

allegations of retaliation, hostile work environment, and

discrimination up to that point, and asking for the opportunity to

be transferred to the Elgin treatment center. (See May 31, 2021,

Email, Compl. Exhibit B, Dkt. No. 1; see also Compl. ¶ 72.)

On or about June 1, 2021, Phelps reported Nurse to IDOC. (Id.

¶ 77.) On or about June 2, 2021, IDOC’s assistant deputy chief

legal counsel and ethics officer sent an email to Phelps with

guidance to file a complaint with the Office of Executive General

in the Department of Human Services, noting that she had filed the

complaint for him on June 1, 2021. (See id. ¶ 78; June 2, 2021,

Email, Compl. Exhibit C.) On or about July 9, 2021, the Deputy

Inspector General for the Office of the Executive Inspector General

(“OEIG”) for the Agencies of the Illinois Governor, sent Phelps a

letter stating that his complaint was referred to IDOC’s Office of

Affirmative Action. (See July 9, 2021, Email, Compl. Exhibit D,

Dkt. No. 1.)

On or about August 16, 2021, Phelps filed a claim with the

Equal Employment Opportunity Commission (“EEOC”), detailing the

discriminatory acts by Nurse and others at JCTC, as EEOC Claim

No.: 440-2021-03662. (See Charge of Discrimination, Compl.

Exhibit E, Dkt. No. 1.)

On January 21, 2022, Phelps was reassigned to his previous

shift of 3:00 PM — 11:00 PM (“second shift”), effective

February 10, 2022, by CTSSS Jonathan Brown pursuant to directions

of Warden Larry. (See Memorandum of Reassignment, Compl.

Exhibit F, Dkt. No. 1.) This reassignment came as Phelps’ claims

for discrimination, hostile work environment, and whistleblower

protection were still under investigation by Affirmative Action

Department of the IDOC. (Compl. ¶ 81.)

On or about November 22, 2021, Phelps received his Right to

Sue Letter from the EEOC. (See Notice of Right to Sue, Compl.

Exhibit G, Dkt. No. 1.)

On or about February 11, 2022, Phelps filed an official

grievance with the American Federation of State, County, and

Municipal Employees (“AFSCME”) regarding his reassignment back to

the second shift. (Compl. ¶ 83.) In his grievance, Phelps expressed

his desire to be “placed back on [third] shift permanently or to

be transferred to Elgin Treatment Center” for his “mental,

emotional, and physical well-being.” (Id.)

Phelps timely filed this Verified Complaint within 90 days

receipt of the Right to Sue letter pursuant to 42 U.S.C. § 2000(e)-

5(f)(1). (Id. ¶ 84.)

In this suit, Phelps brings six counts of employment

discrimination. He brings Counts I-III under Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2,

against Defendant IDOC for sex discrimination, retaliation,

hostile work environment, respectively. (Compl. ¶¶ 17–23.)

Count IV is brought against all Defendants for violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et

seq. (Id. ¶¶ 23–24.) Count V is brought against all Defendants

for intentional infliction of emotional distress. (Id. at 24–25.)

Count VI is brought against all Defendants for violation of the

Illinois Whistleblower Act (“IWA”), 740 ILCS 174, et seq. (Id.

¶¶ 25–26.)

II. LEGAL STANDARD

Rule 12(b)(1) is the proper vehicle to adjudicate sovereign

immunity. See Titus v. Ill. Dep’t of Transp., 828 F.Supp. 2d 957,

965 (N.D. Ill. 2011). “[T]he party asserting jurisdiction bears

the burden of proof.” Id. (citing Glaser v. Wound Care Consultants,

Inc., 570 F.3d 907, 913 (7th Cir. 2009)).

To survive dismissal on a Rule 12(b)(6) motion, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). The plausibility standard “is not akin

to a probability requirement, but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. (cleaned

up). Though a complaint need not give “detailed factual

allegations,” it cannot merely provide “labels and conclusions,

and a formulaic recitation of the elements of a cause of action.”

Id. at 545.

When evaluating a motion to dismiss Rules 12(b)(1) and

12(b)(6), the Court draws all reasonable inferences in the

plaintiff’s favor and accepts as true all well-pleaded

allegations. Titus, 828 F.Supp. 2d at 965 (citing Long v. Shorebank

Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999)). Dismissal is

appropriate “when it is clear from the face of the complaint, and

matters of which the court may take judicial notice, that the

plaintiff’s claims are barred as a matter of law.” Parungao v.

Comty. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017)

(cleaned up).

III. DISCUSSION

A. Jurisdiction

The Court first considers whether it maintains supplemental

jurisdiction over Plaintiff’s state law claims, and then turns to

the issue of sovereign immunity under the Eleventh Amendment when

it is raised by Defendants. A federal district court has

supplemental jurisdiction over any claim that is “so related to

claims in the action within such original jurisdiction that they

form part of the same case or controversy.” 28 U.S.C. § 1367(a).

“Congress enacted § 1367 to codify long-standing principles of

pendent and ancillary jurisdiction, whereby federal courts may

exercise supplemental jurisdiction over a state claim if the state

and federal claims derive from a common nucleus of operative fact.”

Hansen v. Bd. of Trs of Hamilton Se. Sch. Corp., 551 F.3d 599, 607

(7th Cir. 2008) (citing City of Chi. v. Int’l Coll. of Surgeons,

522 U.S. 156, 164–65 (1997) and United Mine Workers v. Gibbs, 383

U.S. 715, 725 (1966)).

Even if the Court finds supplemental jurisdiction, “a

defendant invoking [the Eleventh Amendment’s] sovereign immunity

deprives a federal court of jurisdiction over the claims against

that defendant.” McHugh v. Ill. Dep’t of Transp., 55 F.4th 529,

533 (7th Cir. 2022) (citing FEC v. Cruz , 142 S.Ct. 1638, 1646

(2022)).

Here, neither party disputes that the federal and state claims

against all Defendants form part of the same case or controversy.

All claims arose out of the same facts: Phelps’s treatment by his

supervisors and colleagues at IDOC. Defendants invoke sovereign

immunity defenses in their Counts VI and V. The Court herein

evaluates those arguments and others under the respective counts

in which Defendant raised them. Because the Court maintains

supplemental jurisdiction over these claims, it will assess

whether sovereign immunity applies according to each claim for

which the defense was raised.

B. Counts I, II, III, IV: 2020 Promotion Denials

Defendants do not seek to dismiss Plaintiff’s four counts of

discrimination in their entirety but instead to limit from

consideration certain incidents, namely, Phelps’s promotion

denials in January 2020 and September 2020.

Defendants argue that Plaintiff’s discrimination claims

against IDOC should be dismissed to the extent he contends he was

denied promotions in January 2020 and September 2020 because

Plaintiff did not file a Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”) within 300 days of the

alleged discrimination.

Plaintiff argues that the continuing violation doctrine

renders these two incidents actionable. This doctrine “allows a

court to consider as timely all discriminatory conduct relevant to

a claim, so long as there is sufficient evidence of a pattern or

policy of discrimination.” Haugerud v. Amery Sch. Dist., 259 F.3d

678, 690 (7th Cir. 2001) (cleaned up).

Courts in this district consider it “well settled,” however,

that “an employer’s failure to promote an employee is a discrete

act not subject to the continuing violation doctrine.” Carter v.

Dart, 262 F.Supp. 3d 713, 720 (N.D. Ill. 2017) (citing e.g., Beamon

v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860 (7th Cir. 2005)

(“[D]iscrete discriminatory employment actions such as

termination, failure to promote, denial of a transfer, or refusal

to hire are deemed to have been taken on the date they occurred,

even if they form part of an ongoing practice or are connected

with other acts.”)); see also National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 114 (2002). Instead, “a plaintiff raising

claims of discrete discriminatory or retaliatory acts must file

his charge within the appropriate time period.” Morgan, 536 U.S.

at 122 (2002).

A plaintiff must file his charge of employment discrimination

within 300 days of the alleged unlawful employment practice. Moore

v. Vital Prods., 641 F.3d 253, 256 (7th Cir. 2011). Here, Plaintiff

filed his EEOC charge on August 16, 2021, more than 300 days after

both instances of alleged conduct.

It follows that Phelps cannot base his discrimination claims

on the denial of his promotions in January 2020 or September 2020.

C. Count IV: ADEA

Defendants argue that Plaintiff’s ADEA claim against

Defendants Jeffreys, Larry, and Nurse should be dismissed because

the ADEA does not afford recovery through an individual liability

theory.” Defendants invoke long-held precedent dictating that

“there is no individual liability under the ADEA.” Horwitz v. Bd.

of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 n.2 (7th

Cir. 2001); see also, e.g., Cheng v. Benson, 358 F.Supp. 2d 696,

700 (N.D. Ill. 2005) (dismissing an employee’s complaint under the

ADEA against his individual supervisor).

Plaintiff argues that the Supreme Court’s decision in Mt.

Lemmon Fire Dist. v. Guido, 139 S.Ct. 22 (2018), effectively

overruled Horwitz and decades of precedent in this circuit that

does not recognize individual liability under the ADEA.

Plaintiff’s attorney brought this very argument to another judge

in this district who rejected it. See Cullotta v. United Surgical

Partners Int’l, Inc., No. 19-CV-06490, 2021 WL 3367193, at *10

(N.D. Ill. 2021). So, too, does this Court today.

Accordingly, Defendants Nurse, Larry, and Jeffreys, as

individuals, are improper parties to Plaintiff’s ADEA claim.

Phelps’s ADEA claims in Count IV against Defendants Jeffreys,

Larry, and Nurse are dismissed.

D. Count VI: IWA

Defendants set forth four arguments in hopes of dismissing

Phelps’s claims under the Illinois Whistleblower Act (“IWA”), 740

ILCS 174, et seq., for retaliation. Specifically, Defendants argue

that (1) the Institutional Defendant IDOC is out of IWA’s reach

because education is not a major function of IDOC; (2) all

Defendants are protected from suit by sovereign immunity; (3) the

individual Defendants, operating as agents of an employing

institution, cannot be “employers” under IWA; and (4) Plaintiff

has failed to state a claim under the IWA against Defendants Larry

and Jeffreys.

1. Institutional Defendants

Defendants argue that the Institutional Defendant IDOC cannot

be reached by the IWA because it is not a “State agency whose major

function is providing educational services.” 740 ILCS 174/5.

Specifically, Defendants argue that “the mere fact that IDOC offers

education resources to incarcerated individuals does not support

a plausible inference that the ‘major function’ of IDOC is to

provide educational services.” (Reply, Dkt No. 24 at 8.) Defendants

appear to conflate mistakenly a “major function” with the primary

function.

The Illinois corrections system appears to understand that

education is fundamental to the corrections process. For instance,

IDOC’s “juvenile and adult divisions provide full ranges of

educational services from basic literacy through high school

completion” and “[s]ome facilities also offer college-level

academic courses.” People v. Martin, 674 N.E.2d 90, 94 (Ill. App.

1st Dist. 1996). Moreover, “[e]very facility also offers some

form of special education services, career counseling and

vocational training.” Id. Likewise, the federal corrections

system incorporates education. See Mistretta v. United States, 488

U.S. 361, 367 (1989) (noting that Congress made clear with the

Sentencing Reform Act of 1984, 18 U.S.C. § 3553, that “punishment

should serve retributive, educational, deterrent, and

incapacitative goals”) (emphasis added); see also 18 U.S.C. § 3553

(a)(2)(D) (codifying that judges should consider the need to

“provide the defendant with needed educational or vocational

training” when imposing criminal sentences).

Neither party cites precedent definitively clarifying the

IWA’s applicability to IDOC regarding its educational function.

Left with a question better suited for a trier of fact, this Court

declines to adopt Defendants’ suggestion that education is, by

definition, not a major function of Illinois’s corrections system.

The Court declines to dismiss this count on this ground.

That said, the Court questions the relevance of this inquiry.

Since its enactment, the IWA has ushered an array of defendants

towards accountability by enabling employees to refuse “to engage

in unlawful conduct by their employers.” Young v. Alden Gardens of

Waterford, LLC, 30 N.E.3d 631, 654 (Ill. App. Ct. 2015). Courts

have observed that the IWA’s employer definition delineated

educational roles to clarify for prospective whistleblowers that,

in order to receive protection under the Act, they must report

alleged violations outside of their employer. See Smith v. Madison

Mut. Ins. Co., No. 05-CV-00142-DRH, 2005 U.S. Dist. LEXIS 12760,

at *4 (S.D. Ill. June 21, 2005) (noting that the IWA does not

protect an employee who disclosed information to their own

company). In any event, the Court does not find that the IWA itself

forecloses suit against IDOC.

The Court must, however, dismiss the count against the state

agency IDOC on grounds of sovereign immunity. See Murphy v. Smith,

844 F.3d 653, 659 (7th Cir. 2016), aff’d, 138 S.Ct. 784 (2018)

(“The Illinois sovereign immunity statute protects the State

against being made a defendant or party in any court.”) (internal

quotations omitted); Harris v. Illinois, 753 F.Supp. 2d 734, 742

(N.D. Ill. 2010) (“[T]he Whistleblower Act is not specifically

mentioned as an exception to the State’s immunity from suit in the

Immunity Act nor is there any indication that the Illinois

legislature intended to waive the State’s sovereign immunity when

expanding the Whistleblower Act’s definition of employer.”).

2. Individual Defendants

While sovereign immunity exists for charges against IDOC,

sovereign immunity does not exist for charges against the

individual Defendants under the Illinois Whistleblower Act. The

doctrine of sovereign immunity “affords no protection, however,

when it is alleged that the State’s agent acted in violation of

statutory or constitutional law or in excess of his authority.”

Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001) (emphasis

added) (quoting Healy v. Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990);

see also Murphy, 844 F.3d at 659; Leetaru v. Bd. of Trs. of Univ.

of Ill., 32 N.E.3d 583, 595 (Ill. 2015). Also known as the “officer

suit” exception, when an officer of the State commits an

unconstitutional act or violates a statute, this doctrine

stipulates that the suit is not against the State itself, “because

the State is presumed not to violate its own constitution or

enactments.” Turpin v. Koropchak, 567 F.3d 880, 884 (7th Cir. 2009)

(citing PHL, Inc. v. Pullman Bank & Trust Co., N.E.2d 351, 357

(Ill. 2005).

Defendants next argue that the Court should dismiss Count VI

against the individual Defendants because the IWA only provides

for claims by an “employee” against an “employer,” not claims

against the employer’s agents. The Court is not convinced by this

reasoning.

Under the IWA, an “employer” is:

an individual, sole proprietorship, partnership, firm,

corporation, association, and any other entity that has

one or more employees in this State, including a

political subdivision of the State; a unit of local

government; a school district, combination of school

districts, or governing body of a joint agreement of any

type formed by two or more school districts; a community

college district, State college or university, or any

State agency whose major function is providing

educational services; any authority including a

department, division, bureau, board, commission, or

other agency of these entities; and any person acting

within the scope of his or her authority express or

implied on behalf of those entities in dealing with its

employees.

740 ILCS 174/5. While Courts within this district remain split

regarding whether individuals are subject to liability under the

IWA, see Wheeler v. Piazza, 364 F.Supp. 3d 870, 884 (N.D. Ill.

2019) (collecting cases), this Court is persuaded by the findings

of other courts in this district that the IWA applies to individual

agents. See id.

Thus, because the Court finds that neither the IWA itself nor

the doctrine of sovereign immunity bar claims against individual

defendants for IWA violations, this count remains as to the

individual Defendants.

3. Stating a Claim

Now that the Court has arrived at the legal ability of Phelps

to bring a claim, it turns to whether he actually has done so.

To state a claim under the IWA, an employee must allege: “(1)

an adverse employment action by his or her employer, (2) which was

in retaliation, (3) for the employee’s disclosure to a government

or law enforcement agency, (4) of a suspected violation of an

Illinois or federal law, rule, or regulation.” Smith v. Bd. of

Educ., No. 20-cv-03069, 2021 WL 4459529, *7–8 (N.D. Ill. 2021)

(citing Sweeney v. City of Decatur, 70 N.E.3d. 184, 188 (Ill. App.

Ct. 2017)).

Phelps has satisfactorily pled the third and fourth prongs of

an IWA claim by alleging that on August 16, 2021, he filed with

the EEOC (a government agency) a charge alleging discrimination

(in violation of federal and Illinois law).

Defendants argue that Phelps failed to allege that he suffered

an adverse employment action by either Defendant Jeffreys or

Defendant Larry and, as such, has failed to state a claim against

these Defendants under the IWA. Plaintiff alleges that Larry

reassigned him to a different shift on January 21, 2022. But

according to Defendants, who cite Place v. Abbott Lab., Inc., 215

F.3d 803, 810 (7th Cir. 2000), a lateral transfer without a loss

in benefits does not constitute an adverse employment action.

Defendants are incorrect. An adverse employment action is

one that “well might have dissuaded a reasonable worker from making

or supporting a charge of discrimination.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68, (2006) (citation omitted)).

“A lateral job transfer within an organization may constitute an

adverse employment action, for example, if it reduces the

employee’s ‘opportunities for future advancement.’” O’Neal v. City

of Chicago, 588 F.3d 406, 409 (7th Cir. 2009) (quoting Nichols v.

S. Ill. Univ.-Edwardsville, 510 F.3d 772, 781 (7th Cir. 2007)).

Whether Phelps’s lateral transfer on January 21, 2022,

constituted an adverse employment action is a factual question

ripe for discovery. So, too, is whether the purpose of the

transfer was retaliatory. The allegations of Phelps’s preferences

for third shift, the timing of the transfer within months of his

EEOC filing, the pervasive animus, and IDOC’s culture of indirect

communication make both findings plausible.

Defendants next argue that Phelps has failed to allege that

Jeffreys was involved in retaliatory conduct. Specifically,

Defendants assert that Plaintiff’s allegations that he sent an

email complaining of discrimination to an assistant at IDOC rather

than Jeffreys himself, fail to plausibly suggest that Jeffreys was

aware of Phelps’s complaints or that he later engaged in any

retaliatory conduct.

However, drawing all reasonable inferences from the alleged

facts, it is indeed plausible that Jeffreys may have been notified

of Phelps’ discrimination allegations after his “Confidential

Assistant” received Phelps’ email on May 31, 2021. And more

importantly, as Director of IDOC, Jeffreys would have plausibly

been made aware that Phelps’s filed an EEOC charge alleging similar

discrimination charges on August 16, 2021. While discovery can

elucidate what happened, Phelps adequately alleged Jeffreys’

involvement at this stage of proceedings.

The Court grants Defendants’ Motion to Dismiss the IWA count

as to IDOC and denies Defendants’ Motion to Dismiss the IWA count

as to the individual defendants.

The Court notes that it drew all reasonable inferences and

viewed the facts in the Plaintiff’s favor to find the plausibility

that the Defendants were acting in their individual capacities,

but more facts establishing individual capacities are needed to

prevail such claims.

E. Count V: IIED

Defendants argue that Plaintiff’s claims in Count V of

intentional infliction of emotional distress (“IIED”) against all

Defendants are barred by sovereign immunity.

In his response, Phelps argues that the state remains subject

to suit under the 14th Amendment on account of his allegation that

IDOC took away his liberty interest without due process. To allege

properly a procedural due process claim based on the deprivation

of a liberty interest, a plaintiff “must sufficiently allege (1)

that [he] had a cognizable liberty interest under the Fourteenth

Amendment; (2) that [he] was deprived of that liberty interest;

(3) and that the deprivation was without due process.” Mann v.

Vogel, 707 F.3d 872, 877 (7th Cir. 2013). A deprivation of a

protected 14th Amendment liberty interest occurs when “a right or

status previously recognized by state law [is] distinctly altered

or extinguished.” Paul v. Davis, 424 U.S. 693, 711 (1976); see

also Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 753–55

(7th Cir. 2012).

Phelps did not charge a Fourteenth Amendment violation in his

complaint. The Court need not consider counts first introduced in

the responsive briefing. See FED. R. CIV. P. 12(b)(6). Still, the

Court anticipates difficulty finding a deprivation of a cognizable

liberty interest in the facts alleged. See Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564 (1972).

Thus, the Court is reviewing the state tort claim as it was

brought in the complaint: as a state tort claim.

1. Institutional Defendants

Under Illinois law, the Illinois Court of Claims maintains

exclusive jurisdiction over all claims against the state for

damages in cases sounding in tort. 705 ILCS 505/8. Although the

State of Illinois has waived Eleventh Amendment sovereign immunity

for actions in tort in the Court of Claims, it has not done so for

federal courts. Feldman, 171 F.3d at 498.

Here, Phelps’s allegations against individual defendants that

arise out of their alleged supervision of Phelps at IDOC are in

their official capacity. Therefore, the acts committed in their

official capacity are ultimately attributed to the state agency,

IDOC. See Patton, 2022 WL 865835, at *3. Since IDOC maintains

sovereign immunity in state tort claims, the Court must dismiss

this count against IDOC and the individual defendants in their

official capacity. The individual defendants maintain no such

immunity. See supra.

2. Individual Defendants Generally

Phelps brought his IIED count against all Defendants, which

ostensibly includes Nurse, Larry and Jeffreys in their individual

capacities. To determine whether an act occurred in an official

capacity, “The question to ask . . . is whether the defendant

breached a duty owed by all citizens, or whether he breached a

duty held uniquely by State employees holding the job at issue.”

Turpin, 567 F.3d at 883. Although there appears little dispute

that the individual defendants were acting in their official

capacity in many of the facts alleged, additional factual

information is needed about the Defendants’ roles and conduct in

relation to Phelps. See Harris v. City of Chicago, 479 F.Supp. 3d

743, 753 (N.D. Ill. 2020).

3. Stating a Claim

Nevertheless, to plead a cause of action for intentional

infliction of emotional distress, a plaintiff must allege facts to

establish: “(1) that the defendant’s conduct was extreme and

outrageous; (2) that the defendant knew that there was a high

probability that his conduct would cause severe emotional

distress; and (3) that the conduct in fact caused severe emotional

distress.” Bianchi v. McQueen, 58 N.E.3d 680, 699 (Ill. App. Ct.

2016) (citing Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201 (Ill.

1992).

Phelps has not successfully stated a claim for intentional

infliction of emotional distress. The Court remains hard pressed

to find facts that could satisfy any of these elements as to

Jeffreys or Larry. Although he likely pleads enough facts to meet

the standard for extreme and outrageous behavior on the part of

Defendant Nurse, he fails to show that her conduct caused him

severe emotional distress.

In Illinois, “extreme and outrageous behavior requires

conduct that goes beyond all possible bounds of decency, such that

a reasonable person would hear the facts and be compelled to

feelings of resentment and outrage.” Duffy v. Orlan Brook Condo.

Owners’ Ass’n, 981 N.E.2d 1069, 1079 (Ill. App. Ct. 1st Dist.

2012). “Mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities do not constitute extreme and

outrageous conduct for the purposes of an intentional infliction

of emotional distress claim.” Taliani v. Resurreccion, 115 N.E.3d

1245, 1254 (Ill. App. Ct. 3rd Dist. 2018) (citing McGrath v. Fahey,

533 N.E.2d 806, 809 (Ill. 1988)). Although courts are generally

hesitant “to find a claim for intentional infliction of emotional

distress in employment situations,” Graham v. Commonwealth Edison

Co., 742 N.E.2d 858, 867 (Ill. App. Ct. 1st Dist. 2000) (citing

Vickers v. Abbot Lab’ys, 719 N.E.2d 1101, 1115 (Ill. App. Ct. 1st

Dist. 1999)), “Illinois courts have found extreme and outrageous

behavior to exist in the employer/employee context when the

employer ‘clearly abuses the power it holds over an employee in a

manner far more severe than the typical disagreements or job-

related stress caused by the average work environment.’” Naeem v.

McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006) (quoting

Honaker v. Smith, 256 F.3d 477, 491 (7th Cir. 2001)).

The court in Naeem v. McKesson Drug Co. ruled for the

plaintiff in part because the defendant employer had “force[d] Ms.

Naeem to climb up an unstable metal stairway to hook up computer

equipment during her pregnancy; sabotage[ed] Ms. Naeem’s computer

to deny her access and alter her files; publicly criticiz[ed] Ms.

Naeem’s work during meetings with other supervisors; mov[ed] her

office and her transportation files, causing her to be unable to

locate necessary paperwork; and increase[ed] the amount of work

due under the PIPS, knowing that Ms. Naeem would not be able to

meet the deadlines.” Id. at 606.

Here, Defendant Nurse forced Phelps to stay two to three hours

after his shift by deliberately withholding rosters until the end

of his shift, sabotaged his attempts to receive workers

compensation by refusing to hand over the incident report, and

conspired with a coworker to spread false allegations about Phelps

mistreating an inmate, among other alarming actions. It is

plausible that these actions meet, if not exceed, the abuse of

power in Naeem.

Nevertheless, Phelps has not pled the severity element

because he failed to allege sufficient “factual allegations from

which the level of severity could be inferred.” Welsh v.

Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill. App. Ct. 1st

Dist. 1999). He claims that he was, at one point, humiliated after

menstrual pads were found in his locker; however, this incident

was not perpetrated by any of the individual Defendants, and

severity cannot be inferred by this fact alone when millions of

people use this product in their daily life. Nevertheless, this

brief description of humiliation is no more than a characterization

of his distress, and Illinois courts have held that “[m]erely

characterizing emotional distress as severe is not sufficient.”

Id. at 685. Phelps also describes going to the emergency room due

to feeling dizzy and weak following an argument with Defendant

Nurse regarding denial of an opportunity for him to complete a

CTSSS Temporary Assignment. While hospitalization or need to seek

medical care is sufficient to support an allegation of severe

emotional distress, the plaintiff must show a clear and direct

link between the defendant’s conduct and the subsequent medical

care received or injury suffered. See Id. at 684; Milton v. Ill.

Bell Tel. Co., 427 N.E.2d 829, 831 (Ill. App. Ct. 1st Dist. 1981).

Phelps does not do so.

Defendant’s Motion to Dismiss Count V is granted as to IDOC,

Defendant Jeffry, and Defendant Larry and denied as to Defendant

Nurse in her individual capacity. These dismissals are without

prejudice.

Iv. CONCLUSION

For the reasons herein, Defendants’ Motion to Dismiss (Dkt.

No. 15) is granted in part and denied in part as follows:

1. The Motion is granted insofar as Plaintiff is time-barred

from basing discrimination claims in Counts I, II, III, and IV on

his alleged promotion denials in 2020; Plaintiff may not bring his

Count IV ADEA claim against individual defendant; the Court will

not adjudicate Plaintiff’s claims in Counts V and VI against IDOC

and defendants in their official capacity; and the Court dismisses

Count V against Larry and Jeffreys in their individual capacities.

2. The motion is denied as to Count V against Nurse in her

individual capacity and as to Count VI against Defendants Nurse,

Larry, and Jeffreys in their individual capacities.

IT IS SO ORDERED.

Chttirh.

United States District Court

Dated: 6/15/2023

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