# Phelps v. Illinois Department of Corrections (IDOC)

> District Court, N.D. Illinois · June 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10149007

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** June 15, 2023
- **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/10149007

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

=_ 326 =_

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10149007. Public record. Not legal advice.