Gunawardana v. American Veterinary Medical Association

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SUBHADRA GUNAWARDANA and

DAVID SEELY,

Plaintiffs,

v. Case No. 19-cv-96-NJR

AMERICAN VETERINARY MEDICAL

ASSOCIATION, EDUCATIONAL

COMMISSION FOR FOREIGN

VETERINARY GRADUATES, and

COUNCIL ON EDUCATION,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion to Dismiss Plaintiffs Dr. Subhadra

Gunawardana and Mr. David Seely’s First Amended Complaint filed by Defendant

American Veterinary Medical Association (“AVMA”) (Doc. 80). For the reasons set forth

below, the motion is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Obtaining a license to practice veterinary medicine is a critical step for all

veterinarians. For foreign graduates seeking licensure, the AVMA administers a

certification process known as the Educational Commission for Foreign Veterinary

Graduates (“ECFVG”). The ECFVG includes the Clinical Proficiency Exam (“CPE”), a

“performance based exam intended to assess the practical clinical veterinary skills of the

candidate” (Doc. 81, p. 2).

Dr. Gunawardana, a foreign veterinary graduate, started the ECFVG process in

September 2009 (Doc. 63, p. 6). As a part of the ECFVG process, Dr. Gunawardana signed

a document that contained the following release provision:

I hereby release, discharge, and exonerate the AVMA, the ECFVG . . . from

all actions, suits, obligations, damages, claims and demands arising out of,

or in connections with, this application, the grade or grades given with

respect to the examinations or the failure of the ECFVG to issue me a

certificate. It is understood that the decision as to whether my examinations

qualify me for a certificate vests solely and exclusively in the ECFVG and

its decision is final.

(Doc. 81, p. 24).

After signing the release and completing the appropriate steps, Dr. Gunawardana

worked towards completing the CPE. Dr. Gunawardana’s first attempt at the CPE was in

September 2015 (Doc. 63-1, p. 64). Unfortunately, Dr. Gunawardana did not pass the

surgery, anesthesia, and equine sections.

Dr. Gunawardana’s second attempt at the CPE took place October 17-19, 2016 (Id.

at p. 65). But seven days before the retake of the surgery, anesthesia, and equine sections

of the CPE, Dr. Gunawardana was diagnosed with osteoarthritis of the first

carpometacarpal joint (Id. at p. 59). The next day, on October 11, 2016, Dr. Gunawardana

requested accommodations including an assistant to help on the surgery section, use of a

hand-brace during the equine and anesthesia sections, and time to stop between tasks to

take pain medication during all sections (Id. at p. 60). AVMA denied this request because

their CPE Testing Accommodation Policy requires candidates to submit the necessary

documentation at least 90 days in advance (Id. at p. 61). Ultimately, Dr. Gunawardana

failed the anesthesia section of the October 2016 CPE (Id. at pp. 62-63).

Determined to attain her ECFVG certification, Dr. Gunawardana retook the

anesthesia section of the CPE in November 2017 (Id. at p. 4). Unfortunately, Dr.

Gunawardana again failed the anesthesia section (Id.). Dr. Gunawardana filed a petition

for reconsideration and a petition for review, but both affirmed Dr. Gunawardana’s

failing score (Id. at pp. 1-18). Notably, Dr. Gunawardana did not cite lack of

accommodations for the November 2017 CPE.1

On February 1, 2019, Dr. Gunawardana and her husband, David Seely, filed a

complaint against AVMA, ECFVG, and the Council on Education (“COE”)2 (Doc. 63). Dr.

Gunawardana brings seven counts against AVMA under various state and federal laws,

including: Section 2-302 of the Illinois Uniform Commercial (Count I), Title VII of the

Civil Rights Act 42 U.S.C. § 2000e, et seq (“Title VII”) (Count II), 42 U.S.C. § 1981 (Count

III); Fourteenth Amendment’s Equal Protection Clause (Count IV); Sherman Antitrust

Act (Count V); 42 U.S.C. § 1985(3) (Count VI); and the Americans with Disabilities Act

(“ADA”) (Count VII). Mr. Seely brings two counts against AVMA under federal law,

including: the ADA (Count VIII) and Sherman Antitrust Act (Count IX). The Court has

federal question jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and

supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

On May 14, 2019, AVMA was granted time to answer or respond to the complaint

(Doc. 18). AVMA then timely moved to dismiss the complaint (Doc. 22). On September

1 The record is unclear whether Dr. Gunawardana requested accommodations for the November 2017 CPE.

2 The COE is a branch of the AVMA (Doc. 63, p. 2). The COE allegedly provides educational accreditation

and certification programs (Id. at p. 5). The COE, according to Dr. Gunawardana, conducted Dr.

Gunawardana’s petition of review (Id. at pp. 7-10).

10, 2019, before deciding AVMA’s Motion to Dismiss, Magistrate Judge Beatty ordered

the parties to appear for a settlement conference on October 17, 2019 (Doc. 38). A week

before the conference, Dr. Gunawardana and Mr. Seely admitted that they served

discovery on AVMA on September 21, 2019, and, as a result, would not be prepared to

answer the items in the settlement statement (Doc. 41). Accordingly, Dr. Gunawardana

and Mr. Seely asked to reset the settlement conference to November 14, 2019 (Id.).

Magistrate Judge Beatty ultimately held the settlement conference on February 20, 2020,

but the case did not settle.

On November 30, 2019, Dr. Gunawardana and Mr. Seely moved to amend their

complaint (Doc. 51). On January 6, 2020, this Court granted Dr. Gunawardana and Mr.

Seely’s motion to amend (Doc. 62). On January 12, 2020, Dr. Gunawardana and Mr. Seely

filed their First Amended Complaint (Doc. 63). AVMA subsequently filed this Motion to

Dismiss arguing the First Amended Complaint fails to state a claim under the Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. 81).

LEGAL STANDARD

To survive a motion seeking dismissal under Federal Rule of Civil Procedure

12(b)(1), a plaintiff must “‘clearly . . . allege facts demonstrating’ each element” required

to establish he has standing. See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (quoting

Warth v. Seldin, 95 S.Ct. 2197, 2215 (1975)). The “irreducible constitutional minimum” of

standing requires a showing that a plaintiff has “(1) suffered an injury in fact, (2) that is

fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Id. The burden of establishing these three

elements falls on the party invoking the court’s jurisdiction. Id.

Whether a defendant argues that a complaint fails to (1) properly state a claim, or

(2) properly plead the elements of standing, courts apply the same analysis. See Silha v.

ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). The factual allegations contained within a

complaint must “raise a right to relief above the speculative level, on the assumption that

all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 554-55 (2007) (internal citations omitted); see also Warth v. Seldin,

422 U.S. 490, 501 (1975) (“[T]rial and reviewing courts must accept as true all material

allegations of the complaint, and must construe the complaint in favor of the complaining

party.”). Complaints that contain only “naked assertion[s] devoid of further factual

enhancement” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks omitted).

Further, courts “need not accept as true legal conclusions, or threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements.” Brooks v.

Ross, 578 F.3d 574, 581 (7th Cir. 2009). On the other hand, “[a]t the pleading stage, general

factual allegations of injury resulting from the defendant’s conduct may suffice, for on a

motion to dismiss [during the pleading stage] we ‘presum[e] that general allegations

embrace those specific facts that are necessary to support the claim.’“ Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife Fed., 497 U.S. 871,

889 (1990)).

ANALYSIS

I. Timeliness of AVMA’s Motion to Dismiss

Dr. Gunawardana and Mr. Seely argue that the Court should deny AVMA’s

Motion to Dismiss outright because the filing was untimely, and enter default judgment

(Doc. 91). The Court will not. This Court—as well as Magistrate Judge Beatty—has

granted Dr. Gunawardana and Mr. Seely’s multiple extensions and requests to continue

(Docs. 41, 82, 98). Additionally, this Court has even allowed Dr. Gunawardana and Mr.

Seely to amend their complaint while AVMA’s First Motion to Dismiss was pending

(Doc. 51).

Not only has this Court extended deadlines and granted Dr. Gunawardana and

Mr. Seely’s requests to continue, but their amended complaint was not filed until January

2020. January 2020 was the beginning of COVID-19 outbreak that has impacted all 50

states, and countries around the world. In March, this Court extended the deadline for

answering or otherwise responding to most complaints by sixty days. While AVMA’s

response became due before this Court extended the deadline because of COVID-19, this

does not mean the Court should ignore the impact COVID-19 had on the parties. Thus,

the Court will exercise its discretion in allowing AVMA’s untimely Motion to Dismiss.

See e.g., Mommaerts v. Hartford Life & Accident Ins. Co., 472 F.3d 967, 968 (7th Cir. 2007)

(district court properly exercised its discretion in allowing answer to complaint to be filed

after responsive pleading deadline had passed where the delay was “harmless”); Deere &

Co. v. Ohio Gear, 462 F.3d 701, 706-07 (7th Cir. 2006) (“district courts have broad discretion

to manage their dockets . . . .”).

More importantly, Dr. Gunawardana and Mr. Seely have not suffered prejudice.

AVMA’s First Motion to Dismiss contained almost the identical arguments as the

pending Motion to Dismiss (Docs. 23, 81). Indeed, Dr. Gunawardana and Mr. Seely admit

in their response to AVMA’s motion that “Defendants’ instant motion largely repeats the

same arguments presented in their original motion to dismiss . . . with many identical

paragraphs” (Doc. 91, p. 2). This is significant because Dr. Gunawardana and Mr. Seely

had two opportunities to address or resolve the issues in their complaint. See Cherry v.

Davis, 2013 WL 1628236, at *3 (N.D. Ill. Apr. 15, 2013) (acknowledging that “[u]nless a

defendant can demonstrate prejudice from an untimely filed motion to dismiss, a court

has the discretion to consider the merits of the motion”).

Besides the lack of prejudice, Dr. Gunawardana and Mr. Seely waived their

objection as to the timeliness of AVMA’s Motion to Dismiss at the Court’s status

conference on July 22, 2020 (Doc. 86). At the status conference, this Court inquired as to

the reasons why AVMA’s Motion to Dismiss was filed far out of time. The Court then

asked for Dr. Gunawardana’s response. Rather than objecting to AVMA’s Motion to

Dismiss, Dr. Gunawardana simply asked for more time to respond. Accordingly, this

argument was waived.

II. Dr. Gunawardana’s Claims

A. Release of Claims by Waiver

According to the AVMA, this case should be dismissed because Dr. Gunawardana

signed a waiver releasing AVMA and the ECFVG from any legal action as recourse for

poor performance on certification examinations (Doc. 81, p. 4). Dr. Gunawardana argues

the waiver is unenforceable because it is unconscionable and void as a matter of public

policy (Doc. 91, p. 3). Dr. Gunawardana supports this point by noting that “the waiver in

question is an adhesion contract, which all candidates are required to sign when enrolling

in the ECFVG program” (Doc. 92, p. 6). Dr. Gunawardana continues by asserting that

“[t]he language of the waiver is entirely one-sided, releasing and exonerating the AVMA

and ECFVG from any and all claims arising from or related to any part of the certification

process . . . .” (Id.).

To consider documents attached to pleadings without converting a motion to

dismiss into a motion for summary judgment, the documents must be referred to in the

complaint and central to the plaintiff’s claims. Adams v. City of Indianapolis, 742 F.3d 720,

729 (7th Cir. 2014); see Geinosky v. City of Chicago, 675 F.3d 743, 745 (7th Cir. 2012) (noting

that “[a] motion under Rule 12(b)(6) can be based only on the complaint itself, documents

attached to the complaint, documents that are critical to the complaint and referred to in

it, and information that is subject to proper judicial notice”). Here, Dr. Gunawardana

references the waiver in the operative complaint (Doc. 63, p. 19). She asserts that “[the]

[i]ntent of unequal bargaining power is further evidenced by the mere existence of the

waiver, which exonerates the AVMA from any and all claims arising from or related to

the certification process, thus allowing AVMA/ECFVG to perform any act of negligence

or injustice without consequence” (Id.). Accordingly, the Court finds that it is appropriate

to consider the waiver at this stage of the litigation.

Here, the parties have not raised a conflict of law issue and have instead briefed

the release issue on the merits under Illinois law. The Court, as a result, will apply the

law of Illinois. Illinois law recognizes covenants not to sue. Sanjuan v. Am. Bd. of Psychiatry

& Neurology, Inc., 40 F.3d 247, 249 (7th Cir. 1994). Further, a waiver releasing a certifying

organization from any legal action as recourse for poor performance on certification

examinations is not an unconscionable contract of adhesion. Id. In Sanjuan, two

psychiatrists failed an oral examination administered by the American Board of

Psychiatry and Neurology. Id. at 248. The psychiatrists signed nearly the identical release

as the one signed by Dr. Gunawardana. Id. Like Dr. Gunawardana, “[p]laintiffs went back

on their word, suing instead of accepting the outcome of the internal appeals.” Id. at 249.

The Board moved to dismiss and sought to enforce the psychiatrists’ releases.

On these facts, the Seventh Circuit affirmed the district court’s finding that the

motion to dismiss was proper. The Court disagreed with the plaintiffs’ assertions that the

releases were unconscionable contracts of adhesion. Id. Specifically, the Court noted that

the psychiatrists’ releases were not more unconscionable “than the other standards for

application, including paying fees and passing tests.” Id. The Court continued

acknowledging that “[i]f the Board as a private organization is entitled to set the rules of

application and membership, it is entitled to insist that applicants agree to a legal cease-

fire.” Id.

The Seventh Circuit in Sanjuan, 40 F.3d at 249, however, suggested that its holding

might be different if membership was an “economic necessity.” See id. (acknowledging

that the release might be in jeopardy if membership is an “economic necessity”). Dr.

Gunawardana relies on this portion of Sanjuan and argues that an ECFVG certification is

an “economic necessity” because this certification is required for a foreign graduate to

get licensed (Doc. 92, p. 8).

Under Illinois law, courts will review a private association’s denial of an

application for membership or the benefits thereof when what is applied for constitutes

an “economic necessity.” Treister v. Am. Acad. of Orthopaedic Surgeons, 396 N.E.2d 1225,

1231 (Ill. App. Ct. 1979). Besides alleging facts showing such economic necessity, federal

review of a voluntary association’s actions with respect to its members is limited to

consideration of whether the decisions are “arbitrary and unreasonable” and whether

they are supported by “substantial evidence.” Peoria Sch. of Bus., Inc. v. Accrediting Council

for Continuing Educ. & Training, 805 F. Supp. 579, 583 (N.D. Ill. 1992).

Not only does Dr. Gunawardana fail to plead economic necessity, but also she fails

to allege sufficient facts suggesting that AVMA’s actions were arbitrary and

unreasonable. Additionally, Dr. Gunawardana has not provided authority that the

Seventh Circuit’s holding in Sanjuan does not apply. Dr. Gunawardana points to a few

sentences in Sanjuan where the Court mentions that if membership is an “economic

necessity,” then the waiver of release “would be in jeopardy.” Sanjuan, 40 F.3d at 249. But

this Court has not found authority limiting the applicability of Sanjuan or evaluating a

waiver of release when the membership is an “economic necessity.” Accordingly, Dr.

Gunawardana is barred from bringing all claims, unless clarified below.

A. Violation of Section 2-302 of Illinois Uniform Commercial (Count I)

Even if Dr. Gunawardana’s claim was not barred by her release, Dr. Gunawardana

still fails to state a claim under Section 2-302 of the Illinois Uniform Commercial Code

(“UCC”). 810 ILCS 5/2-302. Under Section 2-302, “[i]f the court as a matter of law finds

the contract or any clause of the contract to have been unconscionable at the time it was

made the court may refuse to enforce the contract, or it may enforce the remainder of the

contract without the unconscionable clause, or it may so limit the application of any

unconscionable clause as to avoid any unconscionable result.” In general, Article 2 of the

Illinois UCC, applies solely to “transactions” involving “goods.” 810 ILCS 5/2-102; see

also Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770 N.E.2d 177, 194 (Ill. 2002)

(acknowledging that Article 2 is limited to “transactions in goods”).

Here, Plaintiffs allege “ECFVG engages in a contract with each candidate for a

service in exchange for money, to evaluate their professional knowledge and skills for a

certificate making them eligible to apply for US licensure.” (Doc. 63, p. 18). But the simple

fact is Dr. Gunawardana cannot plausibly allege facts showing that the contract is

unconscionable under the Illinois UCC because the code applies only to transactions

involving goods, not services. Accordingly, Count I must be dismissed.

B. Title VII (Count II)

Although the release bars Dr. Gunawardana’s claim under Title VII,3 AVMA

further points out that “[Dr. Gunawardana] cannot state a claim against the AVMA for

violation of Title VII because the AVMA is not Plaintiff’s employer” (Doc. 81, p. 6). The

Seventh Circuit, however, has not definitively decided that a plaintiff must have been an

employee of defendant in order to have a Title VII claim. See Alexander v. Rush N. Shore

Med. Ctr., 101 F.3d 487, 493 (7th Cir. 1996) (limiting its ruling and noting that the Court

3 See Wagner v. NutraSweet Co., 95 F.3d 527, 532 (7th Cir. 1996) (noting that “[i]t is clear that a plaintiff may

waive a claim under Title VII (and, by extension, under the Equal Pay Act) as part of a voluntary settlement,

provided that her consent to the release was voluntary and knowing”).

“[has] no occasion to go further and determine if a Title VII plaintiff must always

demonstrate that he [or she] is an employee of the defendant employer”).

District courts in the Seventh Circuit are divided on whether a plaintiff must

demonstrate employment with the defendant in order to have a Title VII claim. See e.g.,

EEOC v. Foster Wheeler Const., Inc., 1999 WL 515524, at *5 (N.D. Ill. July 14, 1999) (finding

that “an employee of one Title VII employer may sue a different Title VII employer whose

discriminatory actions interfere with the employee’s employment conditions”); Morrison

v. Am. Bd. of Psychiatry & Neurology, Inc., 908 F. Supp. 582, 584-87 (N.D. Ill. 1996) (noting

that plaintiff’s “Title VII claim is not a mainstream Title VII claim because she does not—

and could not—allege that Board is her employer[,]” but because plaintiff alleged that the

“lack of Board certification will significantly inhibit her future employment

prospects . . . [her claim] survive[d] Board’s motion to dismiss”); but see Kerr v. WGN

Cont’l Broad. Co., 229 F. Supp. 2d 880, 887 (N.D. Ill. 2002) (acknowledging that “the

Seventh Circuit[,] [in dicta,] has rejected the idea that Title VII creates a class of defendants

that can be liable to individuals, without the limitation of an actual or de facto

employment relationship . . . .”).

Dismissing Dr. Gunawardana’s Title VII by adopting a narrow reading of Title

VII—as covering only traditional employment relationships—may be imprecise. Courts,

instead, have used common law agency principles in employment discrimination cases

to determine whether a defendant is liable for the alleged Title VII violations. But using

common law agency principals “is difficult to do [ ] without a more fully developed

factual record, which is probably why . . . such issues [are] determined at the summary

judgment stage rather than on a motion to dismiss.” Brown v. Cook Cty., 2018 WL 3122174,

at *7 (N.D. Ill. June 26, 2018) (collecting cases).

Still, this Court dismisses Dr. Gunawardana’s Title VII claim even under the broad

reading of Title VII—as covering employment agencies and labor organizations—

because the AVMA is neither an “employment agency” nor a “labor organization.” To be

an “employment agency” under Title VII, the entity must “regularly undertak[e] with or

without compensation to procure employees for an employer or to procure for employees

opportunities to work for an employer and includes an agent of such a person.” 42 U.S.C.

§ 2000e. To be a “labor organization” under Title VII, the entity must “[be] engaged in an

industry affecting commerce, and any agent of such an organization, and includes any

organization of any kind, any agency, or employee representation committee, group,

association, or plan so engaged in which employees participate and which exists for the

purpose, in whole or in part, of dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours, or other terms or conditions of employment, and

any conference, general committee, joint or system board, or joint council so engaged

which is subordinate to a national or international labor organization.” Id.

Here, Dr. Gunawardana alleges that the “AVMA is an employment agency under

Title VII because they are the gatekeeper for all veterinary graduates seeking employment

in the US, and maintains a career center which functions as a liaison between potential

employers and employees” (Doc. 63, p. 20) (emphasis added). Dr. Gunawardana further

alleges that the “career center helps match potential employees with employers, and

provides job-seeker assistance through tools such as career coaching, resume writing,

reference checking, and career learning presentations” (Id.) (emphasis added).

Dr. Gunawardana fails to allege that the AVMA actively refers veterinarians to

animal clinics, hospitals, or other organizations that employ veterinarians. See Zamani v.

Am. Dental Ass’n, 1998 WL 812545, at *4 (N.D. Ill. Nov. 18, 1998) (finding that “[o]nly those

persons who refer employees to employers, as that term is defined in the statute, are

employment agencies”) (emphasis added). The closest action to referring as explained in

Dr. Gunawardana’s opposition to AVMA’s Motion to Dismiss is apparently

“maintain[ing] an employment website to assist veterinarians with employment . . .”

(Doc. 92, p. 10) (emphasis added).

Additionally, the AVMA is not a “labor organization” under Title VII because

“[o]nly those organizations that deal directly with employers concerning working

conditions are considered labor organizations.” Zamani, 1998 WL 812545 at *4. Dr.

Gunawardana does not assert that the AVMA deals directly with any veterinary

employers on issues relating to the working conditions of veterinarians, thus the AVMA

is not a “labor organization” under Title VII.

Even under the broadest reading of Title VII—as covering entities beyond

employment agencies and labor organizations—Count II must be dismissed because

there are no allegations that AVMA discriminated against Dr. Gunawardana based on

her race, color, religion, sex, or national origin. Dr. Gunawardana, instead, asserts

discriminatory policies and practices against foreign veterinary graduates.4 Therefore,

4 Also, under the “scope of the charge” doctrine, a plaintiff may only bring in federal court claims that were

previously presented to the EEOC. See Alexander v. Gardner–Denver Co., 415 U.S. 36, 47 (1974); Miller v. Am.

Airlines, 525 F.3d 520, 525 (7th Cir. 2008). Dr. Gunawardana provided her notice of right to sue letter, but

Dr. Gunawardana’s Title VII claim, Count II, must be dismissed.

C. Section 1981 (Count III)

Aside from Dr. Gunawardana’s release, her claim under 42 U.S.C. § 1981 also must

be dismissed for failure to state a claim. See Getachew v. PartyLite Worldwide, Inc., 2011 WL

5507382, at *2 (N.D. Ill. Nov. 10, 2011) (dismissing plaintiff’s claim under 42 U.S.C. § 1981,

though at summary judgment, because plaintiff signed a release “relinquishing any right

to bring suit under any federal or state employment law”). Under 42 U.S.C. § 1981, all

persons within the jurisdiction of the United States are protected from racial

discrimination in the “making, performance, modification, and termination of contracts,

and the enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.”

Courts define “race” broadly, and the concept of race discrimination has been

expanded to include discrimination on the basis of ancestry or ethnic characteristics.

Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223, 229 (7th Cir. 1995) (citing Saint

Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (“Congress intended to protect from

discrimination identifiable classes of persons who are subjected to intentional

discrimination solely because of their ancestry or ethnic characteristics”)). But allegations

of discrimination based only on “the place or nation of [plaintiff’s] origin” are not

sufficient to state a section 1981 claim. Saint Francis Coll., 481 U.S. at 613. Without an

allegation of racial animus, “either explicit or reasonably inferable from the pleadings,”

failed to provide her EEOC charges, and there are still questions of the scope of Dr. Gunawardana’s EEOC

charges, and whether they are properly before this Court.

a section 1981 claim must be dismissed. Anooya v. Hilton Hotels Corp., 733 F.2d 48, 50 (7th

Cir. 1984).

AVMA contends that Dr. Gunawardana fails to allege that she was discriminated

against based on her race or ethnicity (Doc. 81, p. 8). The Court agrees. Dr. Gunawardana

alleges that the AVMA discriminated against her due to her birthplace in Sri Lanka and

against all foreign graduates (Doc. 63, p. 22-23). Dr. Gunawardana also alleges that “the

AVMA’s practices disfavor the entry of non-white races into the US workforce, either

directly or indirectly” (Id. at p. 23). Dr. Gunawardana continues pleading that the AVMA

created the ECFVG policies in such a way as to single out entire groups to minimize their

entry to the veterinary field (Id. at p. 22).

These are serious allegations, but they are insufficient to state a claim under

42 U.S.C. § 1981. See e.g., Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 352 (7th Cir.

1987) (reversing the district court’s decision to dismiss plaintiff’s section 1981 claim when

plaintiff not only alleged “‘[he] [is] an Egyptian born naturalized citizen’ but also that he

is ‘not a member of the white or caucasion [sic] race, but is rather a member of the Negro

or Brown race[]’ [and] [t]he complaint further elaborated that, during his employment,

[plaintiff] had ‘received numerous ethnic slurs from co-employees and supervisory

personnel,’ . . . many of which were racially-motivated”); Doe on Behalf of Doe v. St. Joseph’s

Hosp. of Fort Wayne, 788 F.2d 411, 418 (7th Cir. 1986), overruled on other grounds by

Alexander, 101 F.3d 487 (finding that a Korean plaintiff’s allegations were sufficient

because she “expressly alleged the defendant had discriminated against her because of

her race”); Padron v. Wal-Mart Stores, Inc., 783 F. Supp.2d 1042, 1054 (N.D. Ill. 2011)

(denying defendant’s motion to dismiss because plaintiffs “allege[d] that they have dark-

colored skin, eyes and hair and that they are members of a racial minority, which could

give rise to an inference of racial animus”); Abdulrahim v. Gene B. Glick Co., 612 F. Supp.

256, 262 (N.D. Ind. 1985) (granting defendant’s motion to dismiss even when plaintiff

alleged that he is Syrian descent whose “skin pigmentation is such that he may be

perceived as non-white”); De La Torres v. Gianni Furniture Co., 1986 WL 6407, at *2 (N.D.

Ill. June 5, 1986) (granting defendant’s motion to dismiss because “plaintiff’s status as a

Cuban-American, in itself, does not provide him with membership in a non-white racial

group”). Because Dr. Gunawardana fails to allege that the AVMA discriminated against

her because of her race, Count III must be dismissed.

D. Fourteenth Amendment (Count IV)

The Fourteenth Amendment protects citizens from conduct by the government—

generally not from conduct by private actors. See Nat’l Collegiate Athletic Ass’n v.

Tarkanian, 488 U.S. 179, 191 (1988) (acknowledging that “[a]s a general matter the

protections of the Fourteenth Amendment do not extend to ‘private conduct abridging

individual rights’”) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961)).

However, “the conduct of private actors, in some cases, can constitute state action.”

Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009).

A private actor’s conduct will be characterized as state action when the alleged

deprivation of constitutional rights are “caused by the exercise of some right or privilege

created by the State or by a rule of conduct imposed by the State or by a person who may

fairly be said to be a state actor.” Id.(quotations omitted).

“The Supreme Court has identified numerous situations where private action can

become that of the state, such as: when private actors conspire or are jointly engaged with

state actors; where the state compels the discriminatory action; when the state controls a

nominally private entity or is entwined with its management or control; or when the state

delegates a public function to a private entity.” Whitney v. Window to the World Commc’ns,

Inc., 837 F. Supp. 2d 854, 857 (N.D. Ill. 2011) (citing Hallinan, 570 F.3d at 815–16). “Over

time, Supreme Court and Seventh Circuit precedent have revealed that these cases do not

so much enunciate a test or series of factors, but rather demonstrate examples of outcomes

in a fact-based assessment.” Hallinan, 570 F.3d at 816.

The AVMA is not a state actor—it is a private association. As a result, AVMA

argues that Dr. Gunawardana does not properly plead facts that, if true, establish AVMA

as a state actor (Doc. 81, pp. 9-11). The Court agrees. Dr. Gunawardana pleads “[a]ll state

regulatory boards require applicants to complete AVMA-accredited or AVMA-

administered programs as a prerequisite for state veterinary licensure” (Doc. 63, p. 23).

Dr. Gunawardana alleges “[t]he United States Department of Education [USDE]

recognizes the AVMA COE as the sole accrediting authority for veterinary education, and

tapped them for additional responsibilities previously held by a USDE subcommittee”

(Id.). Dr. Gunawardana continues by pleading that “AVMA is a gatekeeper for Title IV

and Title VII federal funding, and administers/distributes federal grants” (Id.). As a

catch-all, Dr. Gunawardana includes an allegation that “AVMA officials are pervasively

intertwined with state agencies including regulatory boards, federal departments and the

military” (Id. at p. 24).

In Sanjuan, the Seventh Circuit rejected a Fourteenth Amendment claim that a

certifying board was a state actor:

We agree with the district court, however, that the Board is a private

association. It does not issue licenses to practice; it simply certifies

achievement of a standard of excellence . . . [The fact that] states make

certification by the Board a prerequisite for some public positions does

not convert the Board into a state actor, any more than a state’s insistence

that some employees have advanced degrees converts every college and

university into a state actor. If the Board’s certification processes are

unreliable, that may be a reason why the state should not depend on them;

public beliefs that they are reliable (and consequent willingness to rely) do

not bestow governmental power on the Board. State and local governments

are responsible for their own decisions, and persons aggrieved by those

decisions must complain against their authors (the states themselves) rather

than against the Board.

40 F.3d at 250 (emphasis added).

Indeed, Dr. Gunawardana’s complaint and briefs are full of allegations about the

relationship between AVMA, AVMA’s branches, the United States Department of

Education, and other government agencies and commissions. But nothing in the

complaint or briefing reaches the ultimate issue: whether AVMA makes the sole decision

to issue a veterinary license. Like the medical board in Sanjuan, 40 F.3d at 250, AVMA

issues certifications—not licenses to practice veterinary medicine.

Even if AVMA’s actions could be construed as state action, Dr. Gunawardana

must allege a deprivation of a property right. Citizens Health Corp. v. Sebelius, 725 F.3d

687, 694 (7th Cir. 2013) (noting that “[t]he threshold question in any due process challenge

is whether a protected property or liberty interest actually exists”). “To maintain a claim

of property over a government-issued benefit, such as a license or permit, a plaintiff must

show she has ‘a legitimate claim of entitlement to it’ rather than a ‘unilateral expectation

to it.’” Dyson v. City of Calumet City, 306 F.Supp.3d 1028, 1041 (N.D. Ill. 2018) (quoting Bell

v. City of Country Club Hills, 841 F.3d 713, 717 (7th Cir. 2016) (citations omitted). “More

specifically, ‘where state law gives people a benefit and creates a system of

nondiscretionary rules governing revocation or renewal of that benefit, the recipients

have a secure and durable property right, a legitimate claim of entitlement.’” Quick v.

Illinois Dep’t of Fin. & Prof’l Regulation, 468 F. Supp. 3d 1001, 1007 (N.D. Ill. 2020) (quoting

Chicago United Indus., Ltd. v. City of Chicago, 669 F.3d 847, 851 (7th Cir. 2012)).

Dr. Gunawardana claims AVMA violated her protected property interest in a “US

veterinary license she is entitled to” (Doc. 63, p. 27). The problem is Dr. Gunawardana’s

license was not revoked, nor was Dr. Gunawardana renewing her license. Dr.

Gunawardana failed the anesthesia section of the CPE three times (Doc. 63-1). Without

completing the CPE, Dr. Gunawardana has not earned the ECFVG certification. Without

the ECFVG certification, Dr. Gunawardana is not entitled to a veterinary license because

“the ECFVG tests the professional skills of foreign veterinary graduates seeking to

practice in the USA, and provides the educational certification necessary for that

purpose” (Id. at p. 5). Thus, Dr. Gunawardana does not have a property right in a

veterinary license, and Count IV must be dismissed.

E. Sherman Act (Count V)

Unlike Dr. Gunawardana’s other claims, the release does not bar her from bringing

antitrust claims. See Sanjuan, 40 F.3d at 250 (“conclud[ing] that plaintiffs’ release does not

prevent them from making an antitrust claim in court”). Dr. Gunawardana’s antitrust

claims are based on the alleged violations of Sections 1 and 2 of the Sherman Act. “The

purpose of the Sherman Act is to protect consumers from injury that results from

diminished competition.” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th

Cir. 2012) (citing Banks v. NCAA, 977 F.2d 1081, 1087 (7th Cir. 1992)). To plead a violation

of Section 1 of the Sherman Act, Plaintiffs must plead: “(1) a contract, combination, or

conspiracy; (2) a resultant unreasonable restraint of trade in [a] relevant market; and

(3) an accompanying injury.” Id. at 335 (quoting Denny’s Marina, Inc. v. Renfro Prods., Inc.,

8 F.3d 1217, 1220 (7th Cir. 1993)).

“Substantial market power is an essential ingredient of every antitrust case under

the Rule of Reason.” Sanjuan, 40 F.3d at 251 (citations omitted). Dr. Gunawardana has not

pled that AVMA’s activities led to a decrease in output in the market which causes higher

prices to consumers. In fact, Dr. Gunawardana pleads the opposite. According to Dr.

Gunawardana, AVMA is flooding the veterinary market (Doc. 63, p. 30). See id. (“[b]y

flooding the market with graduates from distributive model schools, [AVMA] place[s]

active restrictions against specific groups including foreigners, minorities and graduates

from traditional research-model institutions”). To allege that AVMA’s activities has led

to higher prices to consumers, Dr. Gunawardana continues by noting that “[g]raduates

from the vocational model schools are provided incentives for employment in the

Banfield system, which, according to clients’ accounts, charges inflated prices and

prescribes numerous unnecessary services” (Id. at p. 32). Accordingly, Dr.

Gunawardana’s claims regarding violations of Section 1 of the Sherman Act must be

dismissed.

Section 2 of the Sherman Act prohibits “the employment of unjustifiable means to

gain that power” and requires “two elements: (1) the possession of monopoly power in

the relevant market and (2) the willful acquisition or maintenance of that power as

distinguished from growth or development as a consequence of a superior product,

business acumen, or historical accident.” United States v. Grinnell Corp., 384 U.S. 563, 570–

71 (1966). The first element “contains two-sub requirements: (1) a relevant market; and

(2) possession of monopoly power in that market.” Ploss v. Kraft Foods Grp., Inc., 197 F.

Supp. 3d 1037, 1069 (N.D. Ill. 2016).

Here, Dr. Gunawardana has failed to identify a relevant market. See id. at 1070–71

(acknowledging that “[c]ourts should dismiss antitrust claims based on a market

argument only when it is certain that ‘the alleged relevant market clearly does not

encompass all interchangeable substitute products or when a plaintiff fail[s] even to

attempt a plausible explanation as to why a market should be limited in a particular

way’”) (quoting In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 767 F. Supp. 2d 880,

901 (N.D. Ill. 2011)). “In an area that is not obviously commercial, and thus where the

Sherman Act’s application is not clearly apparent, [ ] it is incumbent on the plaintiff to

describe the rough contours of the relevant commercial market in which anticompetitive

effects may be felt, even when a quick-look approach is all that is called for.” Agnew, 683

F.3d at 345.

Even assuming that Dr. Gunawardana’s relevant market is the “veterinary

market,” Dr. Gunawardana’s complaint still falls short as she fails to plead that AVMA’s

actions have an anticompetitive effect on the veterinary market. Again, Dr. Gunawardana

pleads that AVMA conspires with the Banfield Hospital and several distributive model

veterinary schools to flood the market with graduates from distributive model schools,

thus actively restricting against specific groups “including foreigners, minorities and

graduates from traditional research-model institutions” (Doc. 63, p. 29-30). While this is

a serious allegation, “the Sherman Act is not a precursor to the Civil Rights Act of 1964.”

Sanjuan, 40 F.3d at 252.

Stopping the analysis at this initial step, while proper, would be incomplete

because Dr. Gunawardana fails to state a claim under Section 2 of the Sherman Act for

additional reasons. For instance, Dr. Gunawardana fails to allege facts supporting the

notion of AVMA’s possession of monopoly power. “Ultimately, the allegations must

show that the defendant has the ‘power to control prices or exclude competition in a

relevant market.’” Ploss, 197 F. Supp. 3d at 1071 (quoting MCI Commc’ns Corp. v. Am. Tel.

& Tel. Co., 708 F.2d 1081, 1106 (7th Cir. 1983)). Dr. Gunawardana’s allegations do not

include facts regarding AVMA’s power to control prices or exclude competition in any

market. If the relevant market is the “veterinary market,” the high prices, according to

Dr. Gunawardana’s allegations, is a result of the Banfield system—not AVMA. As far as

excluding competition in the veterinary market, Dr. Gunawardana again alleges that the

AVMA is flooding the veterinary market. Changing the relevant market to the “veterinary

market in Missouri” does not help Dr. Gunawardana, as her allegations fall victim for the

same reasons. If the relevant market is the market over certifying foreign graduates for

licensure purposes, Dr. Gunawardana admits that AVMA’s ECFVG is actually more

practical, viable, and less expensive than the alternative (Doc. 92, p. 15).

Besides failing to plead facts demonstrating the first element of a monopolization

claim under Section 2 of the Sherman Act, Dr. Gunawardana also fails to plead facts

demonstrating the second element of a monopolization claim—that AVMA engaged in

anticompetitive conduct. Thus, Dr. Gunawardana fails to state a claim under the Section

2 of the Sherman Act, and Count V must be dismissed.

F. Section 1985(3) (Count VI)

Dr. Gunawardana also fails to state a claim under Section 1985(3). “A plaintiff

raising a claim under Section 1985(3) must allege (1) the existence of a conspiracy, (2) a

purpose of depriving a person or class of persons of equal protection of the laws, (3) an

act in furtherance of the alleged conspiracy, and (4) an injury to person or property or a

deprivation of a right or privilege granted to U.S. citizens” Majeske v. Fraternal Order of

Police, Local Lodge No. 7, 94 F.3d 307, 311 (7th Cir. 1996).

Here, Dr. Gunawardana fails to plausibly allege any conspiracy. Dr. Gunawardana

brings suit against the AVMA and its subsidiaries asserting “AVMA’s membership is

widespread; that they perform many different functions; and have affiliations with many

organizations including state and federal entities, a conspiracy within AVMA members,

within its committees, and/or between AVMA and outside entities, is more than

plausible” (Doc. 63, p. 34). From Dr. Gunawardana’s complaint, this Court may be able

to generously construe an allegation that AVMA conspired with Banfield, vocational and

distributive model veterinary schools, and other agencies and organizations. “But

without any detail to flesh out this conclusory assertion, it lacks plausibility . . . .” Ma v.

CVS Pharmacy, Inc., 2020 WL 6257028, at *3 (7th Cir. Oct. 23, 2020).

Dr. Gunawardana provides no basis for inferring that Banfield or other entities

agreed, explicitly or implicitly, with AVMA to deprive her of equal protection of the laws.

See id. (citing Twombly, 550 U.S. at 556-57; Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665

F.3d 930, 939 (7th Cir. 2012)). Also, Dr. Gunawardana’s complaint lacks any suggestion

that Banfield shared in a common purpose with AVMA to obstruct her rights. Dr.

Gunawardana alleges certain “vocational schools have received massive financial

support from the Banfield hospital system owned by MARS Inc.” (Doc. 63, p. 32). The

complaint also alleges “[i]n conspiracy with the Banfield system and several vocational

model veterinary schools, the AVMA continues to restrict the market against graduates

from both non-accredited institutions and traditional institutions” (Id. at p. 38). But the

complaint “lacks allegations permitting an inference that the alleged conspirators had a

racial or other class-based motive . . . .” Ma, 2020 WL 6257028 at *3. Instead, based on Dr.

Gunawardana’s allegations, Banfield has financial motives and the schools’ motives are

grounded in providing employment for their graduates. Thus, AVMA’s Motion to

Dismiss is granted as to Count VI.

G. Title III of the ADA, 42 U.S.C. §§ 12181–12189 (Count VII)

Although the release bars Dr. Gunawardana’s claim under 42 U.S.C. § 12189,5

Count VII also should be dismissed as untimely. “[D]ismissal is appropriate when the

plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint’s

5 See Mancuso v. Danfoss, Inc., 6 F. App’x 391, 395 (7th Cir. 2001) (holding that district court did not abuse

its discretion enforcing settlement agreement and dismissing plaintiff’s ADA claims where plaintiff agreed

to waive her ADA claim).

tardiness.” Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 674–75 (7th Cir.

2009) (citations omitted).

The Seventh Circuit has acknowledged that “the most appropriate state limitations

period applies” to a plaintiff’s claim of discrimination under 42 U.S.C. § 12189. Soignier v.

Am. Bd. of Plastic Surgery, 92 F.3d 547, 550 (7th Cir. 1996). In Soignier, the plaintiff, a plastic

surgeon from Dallas, Texas, failed the oral portion of the Board certification process four

times. Id. at 549. Determined to pass the oral portion, the plaintiff attempted the oral

portion again in November 1992. Id. Unlike his other attempts, the plaintiff asked the

Board to accommodate his disabilities by requesting “more time to take the test, use of

models and paper drawings during the test, time to rephrase questions or rewrite them

if necessary, and different examiners than those who had administered his past tests” Id.

at 549–50. The Board did not accommodate all of the plaintiff’s requests, and he failed the

oral portion for a fifth time. Id. at 550. The plaintiff then appealed this outcome to the

Board. Id. In November 1994, the Board upheld the November 1992 examination result

because the Board found that the examination was conducted fairly. Id. On May 9, 1995,

the plaintiff sued the Board under 42 U.S.C. § 12189 of the ADA in the United States

District Court for Northern District of Illinois. Id.

To evaluate whether the plaintiff’s discrimination claim against the Board under

42 U.S.C. § 12189 was time-barred, the district court had to determine the applicable

statute of limitations and when the claim began to accrue. Id. The district court

acknowledged that Illinois’ two-year statute of limitations period for personal injury

actions applied because the case was brought in Illinois. Id. The district then found that

the plaintiff’s claim accrued in November 1992, but plaintiff did not file his complaint in

federal court until May 1995. Id. Accordingly, the district court dismissed the suit as time-

barred. Id.

On appeal, the Seventh Circuit confirmed that the district court “correctly applied

Illinois’ two-year statute of limitations for personal injuries as the most analogous

limitations period for [plaintiff’s] ADA claim.” Id. at 551. The Seventh Circuit then held

that the two-year clock starts on the date that the plaintiff took the exam without the

accommodations requested, because by that date plaintiff “was aware of each of the

elements of his ADA claim: (a) [plaintiff] was a qualified person with a disability; (b) the

law required the Board to provide [plaintiff] with reasonable accommodations during the

test; and (c) the Board allegedly failed to provide those accommodations.” Id. at 553-54

(citations omitted).

Following the Seventh Circuit’s decision in Soignier, Dr. Gunawardana’s claim

under 42 U.S.C. § 12189 must be dismissed as untimely. Like Soignier, Illinois’ two-year

statute of limitations period for personal injury actions applies as it is the most analogous

limitations period for Dr. Gunawardana’s ADA claim. Under Illinois’ two-year statute of

limitations period, Dr. Gunawardana had until October 2018 to file her complaint as she

took the anesthesia portion of the CPE exam without the accommodations requested in

October 2016 (Doc. 63, p. 35; Doc. 63-1, pp. 60-63). But Dr. Gunawardana filed her

complaint on February 1, 2019—four months after the statute of limitations expired

(Doc. 2).

Dr. Gunawardana argues that her claim is not barred because it is a continued

violation and relies on Scherr v. Marriott Int’l, Inc., 703 F.3d 1069 (7th Cir. 2013). In Scherr,

the plaintiff requested an ADA-compliant hotel room. Id. at 1071. However, the hotel had

installed spring hinge doors on the bathroom doors of some of its rooms, including the

plaintiff’s ADA-complaint room. Id. Ultimately, the plaintiff was injured when the spring

hinged door closed automatically and knocked the plaintiff down. Id. The plaintiff

brought suit under Title III of the ADA seeking injunctive relief against the hotel and

fifty-six of the hotel’s other locations for using spring-hinged doors. Id.

In Scherr, “[plaintiff] brought her ADA claim in November 2010 . . . more than four

years after her actual injury in March 2006.” Id. at 1075. The hotel contended that the

plaintiff’s claim was “time-barred because she knew of the alleged problem with the

spring-hinged doors long before she filed her personal injury action, let alone her ADA

claim.” Id. The plaintiff, on the other hand, argued that “a plaintiff seeking injunctive

relief from ongoing violations, the cause of action continues to accrue each day the

defendant remains in violation of the ADA.” Id. The Seventh Circuit noted that the

plaintiff “alleged that she is currently aware of what she believes to be ongoing ADA

violations at the [hotel], and that she would return to the hotel but for these ongoing

violations.” Id. at 1076. The Court then held that “[b]ecause the violations [plaintiff]

alleges are continuing, the applicable statute of limitations does not bar her claim.” Id.

Dr. Gunawardana’s reliance on Scherr is misplaced. As shown above, Scherr did

not involve a claim of discrimination under 42 U.S.C. § 12189 against a private entity

offering a professional certification. Dr. Gunawardana also has not alleged an ongoing

ADA violation like the ongoing ADA violation in Scherr. Dr. Gunawardana alleges that

the AVMA’s ADA violation is ongoing because it still has a policy of requiring a request

for accommodation 90 days before the exam date (Doc. 63, pp. 35-36). But unlike the

plaintiff in Scherr—who alleged that she would return to the hotel but for the ongoing

violations—Dr. Gunawardana has not alleged that she would retake the CPE but for

AVMA’s ongoing ADA violations. In fact, Dr. Gunawardana alleged she already retook

the CPE in November 2017 (Doc. 63, p. 7; Doc. 63-1, p. 1-15).6

Accordingly, Soignier controls the Court’s decision with respect to Dr.

Gunawardana’s claim under 42 U.S.C. § 12189, and Count VII must be dismissed as

untimely.

II. MR. SEELY’S CLAIMS

A. Standing

Article III of the Constitution limits the judicial power of federal courts to

adjudicating “cases” and “controversies.” Hein v. Freedom From Religion Foundation, Inc.,

551 U.S. 587, 597 (2007). “One of the controlling elements in the definition of a case or

controversy under Article III is standing.” Id. (internal quotations, citations, and

alterations omitted). “[T]he irreducible constitutional minimum of standing consists of

three elements.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). A plaintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable to the defendant’s challenged

conduct, and (3) is redressable by the Court. Id.

6 In her opposition to AVMA’s Motion to Dismiss, Dr. Gunawardana argues that “Plaintiff’s consistent

position was that she is not willing to retake the exam in its current form, with all its violations of civil

rights and equal protections, and complete lack of transparency or oversight” (Doc. 92, p. 17). Nonetheless,

she retook the CPE in November 2017.

Here, Mr. Seely’s alleged injuries are not fairly traceable to AVMA’s challenged

conduct. Mr. Seely allegedly suffered by having to accompany Dr. Gunawardana for the

November 2017 CPE, economic damages from Dr. Gunawardana’s loss of earnings in the

veterinary field, and as a direct consumer of veterinary services—”which are not limited

to companion animal veterinary care” (Doc. 63, p. 38). This creative attempt at pleading

a concrete injury still amounts to indirect suffering, which does not create standing.

Under Mr. Seely’s logic, everyone would be able to sue their spouse’s employer because

of the damages it causes to the household. This logic, however, has been rejected by

district courts in the Seventh Circuit. See e.g., Feng v. Sandrik, 636 F. Supp. 77, 82 (N.D. Ill.

1986) (acknowledging that “spouses of individuals who have been victimized by

employment discrimination cannot be said to fall within the class of persons Title VII was

intended to protect”); Diffay v. Am. Tel. & Tel. Co., 1988 WL 53209, at *12 (N.D. Ill. May 13,

1988) (noting that spouse’s claim is based on the adverse effect of a previous decision as

to her husband—thus “[s]he is without standing to sue under Title VII”); Simonsen v. Bd.

of Educ. of the City of Chicago, No. 01-C-3081 (N.D. Ill. Nov. 8, 2001) (holding that four

relatives lacked standing because “[n]othing in the complaint alleges that any defendant

took any action against them[ ] [and] [the] [fact] [t]hat they may be indirectly suffering

the consequences of [plaintiff’s] suspension is not sufficient to create Article III

standing”). Accordingly, Mr. Seely and his claims (Counts VIII and IX) must be

dismissed.

B. ADA Claim (Count VIII)

Even if Mr. Seely had standing, his ADA claim fails to allege a specific disability.

The Seventh Circuit has held that short, plain statements, as long as they include a specific

disability, pass the Rule 12(b)(6) test. See Tate v. SCR Medical Transp., 809 F.3d 343, 345

(7th Cir. 2015) (“[a]nd surely a plaintiff alleging discrimination on the basis of an actual

disability under 42 U.S.C. § 12102(1)(A) must allege a specific disability”). Here, Mr. Seely

did not allege a specific disability. His ADA discrimination claim, therefore, must be

dismissed.

C. Sherman Act (Count IX)

Besides the lack of standing, Mr. Seely’s Sherman Act claim fails for the same

reasons as Dr. Gunawardana’s claims. Like Dr. Gunawardana’s allegations, Mr. Seely has

failed to allege that AVMA’s activities has led to a decrease in output in the market which

causes higher prices to consumers. Mr. Seely, instead, vaguely alleges:

- The AVMA is the gate-keeper with sole authority on who enters the

veterinary profession in the US;

- AVMA consists of active market players with a personal stake in

controlling the numbers entering the market, thus keeping prices high;

- In conspiracy with the Banfield system and several vocational model

veterinary schools, the AVMA continues to restrict the market against

graduates from both non-accredited institutions and traditional

institutions.

(Doc. 63, p. 37-39). Accordingly, Mr. Seely’s claim regarding violations of Section 1 of the

Sherman Act must be dismissed.

Similar to Dr. Gunawardana’s claim under Section 2 of the Sherman Act, Mr. Seely

also fails to identify a relevant market. The closest Mr. Seely comes to identifying a

relevant market is the “veterinary field.” (Doc. 63, p. 37). Even if Mr. Seely identified a

relevant market, Mr. Seely’s claim does not contain facts that AVMA has the power to

control prices or exclude competition in the market. Mr. Seely conclusively alleges that

AVMA is the gate-keeper with sole authority on who enters the veterinary profession in

the United States, but this is not enough. Ploss, 197 F. Supp. 3d at 1071 (“[uJltimately, the

allegations must show that the defendant has the power to control prices or exclude

competition in a relevant market”) (quotations omitted). Mr. Seely also fails to plead facts

demonstrating the second element of a monopolization claim—that AVMA engaged in

anticompetitive conduct. Thus, Mr. Seely fails to state a claim under Section 2 of the

Sherman Act, and Count IX must be dismissed.

CONCLUSION

For the reasons set forth above, AVMA’s Motion to Dismiss for Failure to State a

Claim (Doc. 80) is GRANTED, and this entire action is DISMISSED with prejudice. The

Clerk of Court shall enter judgment accordingly and close this case.

IT IS SO ORDERED.

DATED: January 28, 2021

NANCY J. ROSENSTENGEL |

Chief U.S. District Judge

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