Rivera v. Township High School District 214

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EDGAR RIVERA,

Plaintiff

No. 23 CV 14977

v.

Judge Jeremy C. Daniel

BOARD OF EDUCATION FOR

TOWNSHIP HIGH SCHOOL

DISTRICT #214,

Defendant

AMENDED MEMORANDUM OPINION AND ORDER

Plaintiff Edgar Rivera brings this lawsuit against the defendant, the Board of

Education for Township High School District #214, alleging race and national origin

discrimination under Title VII, 42 U.S.C. § 2000e et seq. (“Title VII”) (Counts I and

II), disability discrimination under the Americans with Disabilities Act, 42 U.S.C. §

12112 (“ADA”) (Count IV), retaliation for reporting a disability under the ADA and

retaliation for reporting harassment related to racial or national origin

discrimination under Title VII (Count V), and discrimination by a state actor under

color of law under 42 U.S.C. § 1983 (Count III). (R. 19 (“Second Amended Complaint

or “SAC”).)1 The defendant moves to dismiss all counts, and to strike Rivera’s request

for punitive damages. (R. 21.) For the reasons that follow, the defendant’s motion to

dismiss is granted in part and denied in part.

1 For ECF filings, the Court cites to the page number(s) set forth in the document’s ECF

header unless citing to a particular paragraph or other page designation is more appropriate.

BACKGROUND

From July 2017 through June 30, 2022, Rivera was employed as a Division

Head of Student Success, Safety, and Wellness at Elk Grove High School (“Elk

Grove”). (SAC ¶ 10.) According to Rivera, throughout the entirety of his employment

at Elk Grove, he received no complaints regarding his job performance. (Id. ¶ 17.)

Rivera alleges a coworker, Justin Penio, made discriminatory remarks to Rivera

based on Rivera’s race and national origin. (Id. ¶ 20A.) According to the Second

Amended Complaint, over the course of his time at Elk Grove, Rivera made his

superiors aware, via a handful of in-person conversations, of Penio’s conduct. (See,

e.g., id. ¶¶ 26, 32, 33–35, 38.) Also, during this time, Rivera began to suffer from

anxiety and depression, which he alleges was linked to his work environment. (Id. ¶¶

27–29.) Rivera alerted his supervisors to his mental health challenges; this was

acknowledged via text message by the principal of Elk Grove, Paul Kelly. (Id. ¶¶ 29–

31, 37–40.) Rivera contends his claims of harassment by Penio were never

investigated and he received no assistance with his disability. (Id. ¶¶ 31, 35, 40.)

In October 2021, Penio left Elk Grove for a position at Buffalo Grove High

School, a position Rivera regards as an unlisted promotion. (Id. ¶¶ 47–48.) On

December 17, 2021, Rivera was told by Kelly and Interim Assistant Principal Steven

Kolodziej that he “would not be back at Elk Grove the following year.” (Id. ¶ 50.) No

reasons for this decision were given. (Id. ¶ 51.) In the months leading up to his last

day, June 30, 2022, Rivera attempted to secure other education related employment;

according to the Second Amended Complaint, he applied for positions in school

administration and teaching, both in and out of District 214. (See generally, id., ¶¶

73A–H.) In some instances, Rivera was informed that Kelly had given the potential

new employers negative reviews about Rivera’s work. (Id. ¶¶ 73C, F.) Despite his

efforts, Rivera was unable to secure education related employment. (Id. ¶ 75.)

On May 13, 2022, Rivera filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) claiming race, national origin, and disability

discrimination. (Id. ¶ 6; see also R. 19-1.) The defendant filed a written response to

the charge in May 2023, (SAC ¶ 6; see also R. 19-8), to which Rivera replied on June

6, 2023 (SAC ¶ 7; see also R. 19-9.) The EEOC issued a Right to Sue notice on July

18, 2023. (SAC ¶ 7; see also R. 19-2.) Rivera’s Second Amended Complaint was filed

on June 28, 2024. (SAC.) The defendant now moves to dismiss under Federal Rule of

Civil Procedure 12(b)(6). (R. 21.)

LEGAL STANDARD

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

matter, accepted as true, to state a claim to relief that is plausible on its face.”

Calderon-Ramirez v. McCarment, 877 F.3d 272, 275 (7th Cir. 2017) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotations omitted). The Court “draw[s]

all reasonable inferences in [Rivera’s] favor.” Chaidez v. Ford Motor Co., 937 F.3d

998, 1004 (7th Cir. 2019) (internal citations omitted). “The purpose of a motion to

dismiss is to test the sufficiency of the complaint, not to decide the merits.” Triad

Assocs. Inc. v. Chi. Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). Any ambiguities

in the complaint are construed in Rivera’s favor. Kelley v. Crossfield Catalysts, 135

F.3d 1202, 1205 (7th Cir. 1998).

ANALYSIS

I. FAILURE TO EXHAUST – COUNTS I, II, IV AND V

First, the defendant moves to dismiss Counts I, II, IV and V for failure to

exhaust administrative remedies. (R. 21 at 3.) “As a general rule, a Title VII plaintiff

cannot bring claims in a lawsuit that were not included in h[is] EEOC charge.” Cheek

v. W. and S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (citing Alexander v.

Gardner-Denver Co., 415 U.S. 36, 47 (1974)). This rule serves two purposes: “[i]t

affords the employer some notice of the conduct underlying the employee’s

allegation,” Cervantes v. Ardagh Grp., 914 F.3d 560, 564 (7th Cir. 2019), and it “also

‘affords the agency and the employer an opportunity to attempt conciliation without

resort to the courts,’” id. (quoting Rush v. McDonalds Corp., 966 F.3d 1104, 1110 (7th

Cir. 1992)). That said, courts recognize that “most EEOC charges are completed by

laypersons, rather than by lawyers.” Cheek, 31 F.3d at 500. Therefore, “a Title VII

plaintiff need not allege in an EEOC charge each and every fact that combines to form

the basis of each claim in h[is] complaint.” Id. (citing Taylor v. W. & S. Life Ins. Co.,

966 F.2d 1188, 1195 (7th Cir. 1992)). Claims that are “like or reasonably related to

the EEOC charge, and can be reasonably expected to grow out of an EEOC

investigation of the charges” may be brought. Sitar v. Ind. Dept. of Transp., 344 F.3d

720, 726 (7th Cir. 2003) (citing Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d

164, 167 (7th Cir. 1976) (en banc)). For a claim to be “like or reasonably related to”

the allegations in an EEOC charge, there must be a factual relationship between the

charge and the claim, Cheek, 31 F.3d at 501, meaning that at minimum, they

“describe the same circumstances and participants.” Cervantes, 914 F.3d at 565

(quoting Connor v. Ill. Dept. of Nat. Res., 433 F.3d 675, 680 (7th Cir. 2005) (internal

quotations omitted)).

The Court considers Count I, II, IV, and V in turn.

A. Count I

As to Count I, the defendant argues that it should be dismissed because

Rivera’s EEOC charge is void of details describing how he was “subjected to racial

harassment or discrimination.” (R. 21 at 4.) Though Rivera did not “check the box”

for racial discrimination, he wrote that he believed he was being discriminated

against because of his “national origin, Hispanic[.]” (R. 19-1.) There is “uncertainty

about what constitutes race versus national origin discrimination under Title VII.”

Salas v. Wis. Dept. of Corrs., 493 F.3d 913, 923 (7th Cir. 2007) (citing Torres v. City

of Chi., No 99 C 6622, 2000 WL 549588, at *2 (N.D. Ill. May 1, 2000)). However, courts

in this district have found that alleging discrimination based on being “Hispanic”

would reasonably cause the EEOC to investigate race and national origin

discrimination. See, e.g., Torres, 2000 WL 549588, at *2; see also Gaytan v. City of

Chi., No. 11 C 8624, 2012 WL 2597932, at * 5–6 (N.D. Ill. July 5, 2012).

In Torres, the plaintiff did not “check the race discrimination box on [his]

EEOC charges” when alleging he was discriminated because of his “national origin,

Hispanic,” but brought discrimination claims based on both national origin and race.

Torres, 2000 WL 549588, at *1–2. The court explained that “the term ‘Hispanic’ is

unique, encompassing the concepts of race and national origin[.]” Id. at *2. As a

result, the “dual understanding of the term Hispanic would reasonably cause the

EEOC to investigate discrimination based both on national origin and race[.]” Id.

(internal citations omitted). Similarly, in Gaytan, the district court determined that

the plaintiff’s use of the term “Hispanic,” when not connected to a specific country of

origin, “would reasonably have alerted the EEOC to his race discrimination claim.”

2012 WL 2597932, at *6. In addition, several courts in this district have cited to

Torres’s reasoning to highlight the uniqueness of the term “Hispanic” in this context.

See, e.g., Goodlet v. City of Chi., No. 22 C 570, 2024 WL 3105883, at *4 (N.D. Ill. June

24, 2024) (considering Torres); Segura v. TLC Learning Ctr., No. 12 C 7020, 2013 WL

1283827, at *5 (N.D. Ill. Mar. 26, 2014) (same); Gaytan, 2012 WL 2597932, at *5–6

(N.D. Ill. July 5, 2012) (same); Oranika v. City of Chi., No. 04 C 8113, 2005 WL

2663562, at *3 (N.D. Ill. Oct. 17, 2005) (same).

Here, the Court is persuaded by the reasoning in Torres. And because “charges

are to be construed with the ‘utmost liberality,’” Babrocky v. Jewel Food Co., 773 F.2d

857, 866 (7th Cir. 1985) (quoting Eggleston v. Chi. Journeymen Plumbers’ Local

Union No. 130, 657 F.2d 890 (7th Cir. 1981)), the Court finds that Rivera’s reference

to “Hispanic” in the EEOC charge provided notice to the defendant of Rivera’s race

discrimination claim. Administrative exhaustion is met for Count I.

B. Count II

Administrative exhaustion was similarly met for Count II. The defendant

focuses on the four corners of the charge to argue that “[n]othing in [Rivera’s]

charging document refers to any specific conduct that could reasonably be related to

a hostile work environment claim.” (R. 21 at 6.) But that ignores both the defendant’s

and Rivera’s “position papers.” (R. 19-8, 19-9); see Williamson v. Curran, 714 F.3d

432, 436 (7th Cir. 2013) (“When ruling on a motion to dismiss, the court may consider

documents . . . attached to the complaint . . .”). According to Rivera, the defendant

filed a written response to the EEOC charge in May 2023, to which Rivera responded

on June 6, 2023. (See SAC ¶¶ 6–7; see generally, R. 19-8, 19-9.) Both documents were

submitted prior to the EEOC issuing Rivera’s Notice of a Right to Sue. (See SAC ¶ 7;

R. 19-2.) The defendant’s position paper describes in significant detail its view of the

alleged harassment Rivera suffered. (See R. 19-8 at 8–10.) Rivera’s response goes into

greater detail about the alleged harassment and how it contributed to a hostile work

environment. (See, e.g., R. 19-9 at 7, 14–16.) “[I]ssues implied by a charge and

communicated to the employer in the course of investigation can enlarge the set of

claims open to the investigation[.]” O’Rourke v. Continental Cas. Co., 983 F.2d 94, 97

(7th Cir. 1993). And “[a]llegations outside the body of the charge may be considered

when it is clear that the charging party intended the agency to investigate the

allegations.” Cheek, 31 F.3d at 502. Drawing all reasonable inferences in Rivera’s

favor, the parties’ act of addressing the hostile work environment claims in their

respective position papers, seemingly filed as part of the EEOC case, suggests that

the defendant was on notice of the hostile work environment claims. Cf. Cervantes,

914 F.3d at 566 (“[W]e must remember that [plaintiff’s] counsel submitted the letter

. . . ex parte; it therefore did not provide [the defendant] with any notice of [the

plaintiff’s] potential discrimination claims.”). Thus, Count II was administratively

exhausted.

C. Count IV

Count IV alleges disability discrimination under the ADA. (SAC ¶¶ 97–106.)

As with Title VII, a plaintiff bringing a claim under the ADA must first file a charge

with the EEOC before filing a lawsuit against an employer. Whitaker v. Milwaukee

Cnty, Wis., 772 F.3d 802, 812 (7th Cir. 2014). Rivera’s complaint appears to raise two

causes of action under the ADA; disparate treatment—that he was fired because of

his disability, and failure to accommodate. (See SAC ¶ 101 (“The Board failed . . . to

engage with Rivera in the interactive process to understand his disabilities and offer

him a reasonable accommodation . . .”), ¶ 102 (“. . . the Board eventually terminated

Rivera’s employment because of his disabilities.”).) “A claim for failure to

accommodate is separate and distinct under the ADA from one of disparate treatment

because of a disability.” Green v. Nat. Steel Corp., Midwest Div., 197 F.3d 894, 897

(7th Cir. 1999). As such, the Court considers each theory in turn.2

1. Disparate Treatment

With respect to disparate treatment, the ADA forbids discrimination based on

disability “in regard to . . . discharge of employees . . .” Scheidler v. Indiana, 914 F.3d

535, 541 (7th Cir. 2019) (quoting 42 U.S.C. § 12112 (a)). Rivera’s EEOC charge reads

that “[a]fter informing [the defendant] of [his] disability, on or about December 17,

2021, [he] was notified [he] will be discharged on June 30, 2022 . . . [He] also believe[s]

that [he] ha[s] been discriminated against because of [his] disability . . .” (R. 19-1.)

The charge names Township High School District 214 as the participants in the

alleged discrimination. (Id.) In its position paper, the defendant states that there is

2 The parties’ briefing with respect to Count IV does not address the allegation that Rivera

was subjected to disparate treatment because of his disability; instead, it focuses solely on

the allegation that Rivera’s disability was not accommodated. However, because the EEOC

charge alleges discrimination based on disability (see R. 19-1), the Second Amended

Complaint also includes that allegation (see SAC ¶ 102), and Rivera is the nonmovant, the

Court considers the allegation of disparate treatment.

no “evidence that the District’s decision not to offer [Rivera] a new contract at the end

of his employment contract was based on his alleged disability.” (R. 19-8 at 7.) This

supports an inference that the defendant was on notice that Rivera believed he was

fired from his job because of his disability. Therefore, to the extent Count IV alleges

disparate treatment based on disability, it has been administratively exhausted.

2. Failure to Accommodate

As for the failure to accommodate theory, under the ADA, it is unlawful to “fail

to make reasonable accommodations to the known physical or mental disabilities of

an otherwise qualified individual with a disability.” Green, 197 F.3d at 897 (citing 42

U.S.C. § 12112(b)(5)(A)). The Seventh Circuit has said that because failure to

accommodate claims are “separate and distinct” from disparate treatment claims,

“one cannot expect a failure to accommodate claim to develop from an investigation

into a claim that an employee was terminated because of a disability.” Riley v. City of

Kokomo, 909 F.3d 182, 190 (7th Cir. 2018) (quoting Green, 197 F.3d at 897).

However, courts in this district do not necessarily read Green to mean that a

“discrimination claim is per se incapable of supporting an accommodation claim—no

matter the facts.” See e.g., Morales v. Goodwill Indus. Of Se. Wis., Inc., 14 C 2370,

2014 WL 4914255, at *4 (N.D. Ill. Sep. 30, 2014) (Shah, J.) (collecting cases); see also

Whitaker, 772 F.3d at 812 (acknowledging EEOC’s position that “there can be cases

where a discriminatory termination claim can be so closely related to a reasonable

accommodation claim that it would be appropriate to consider an unstated reasonable

accommodation claim along with a stated discriminatory discharge claim.”). The

distinction drawn is whether the conduct underlying the discrimination charge had

something to do with the underlying accommodation claim. Compare Green, 197 F.3d

at 898 (“[W]e fail to understand how [the plaintiff] could expect her claim that she

suffered inadequate working conditions would develop from the investigation of

reasons for her discharge.”) with Morales, 2014 WL 4914255, at *4 (finding that it

would “not be unreasonable to think an investigation into the plaintiff’s termination

would grow into an investigation into defendant’s failure to accommodate” when the

defendant refused plaintiff’s accommodation request and fired her when she would

not work in an unaccommodated space) and King v. HEI/Hotel Chi. Downtown

Autograph Collection, No. 20 C 1283, 2020 WL 7771139, at *1, 3 (N.D. Ill. Dec. 29,

2020) (determining that the “circumstances involving the employer’s failure to

accommodate were intertwined with the circumstances involving the claimed

discriminatory” treatment when the plaintiff was refused an accommodation of

modified schedules and subsequently disciplined for absenteeism and tardiness). In

other words, the failure to accommodate was directly related to the alleged

discriminatory act, such that they were “like or reasonably related to the allegations

in the EEOC charge.” Cheek, 31 F.3d at 501 (internal quotations omitted).

Rivera acknowledges he did not specifically refer to the defendant’s alleged

failure to accommodate in his EEOC charge. (R. 24 at 9.) So, as it did with Count II,

the Court considers the parties’ position papers. (R. 19-8, 19-9.) The defendant’s

position paper states that Rivera did not “make any comment which suggested he

needed any accommodations to assist him in performing his job,” nor specifically

“request any accommodation.” (R. 19-8 at 7–8.) Rivera’s only specific reference to an

accommodation is that from the point he alleges he notified his superiors of his

disability, “no accommodation or support [was] put in place to help [him].” (R. 19-9 at

19–20.) These statements do not suggest that the “circumstances involving the

employer’s failure to accommodate intertwined with the circumstances involving the

claimed discriminatory termination.” King, 2020 WL 7771139, at *3. “Even assuming

that [the defendant] did fail to accommodate [Rivera’s] alleged disability, that has

nothing to do with [his] complaint that [he] was wrongfully terminated.” Green, 197

F.3d at 898. Accordingly, to the extent Rivera alleges a claim for failure to

accommodate, that has not been exhausted in front of the EEOC.

D. Count V

Count V alleges retaliation for reporting a disability and for reporting

harassment related to racial or national origin discrimination. (SAC ¶¶ 108–09.) The

defendant raises no arguments regarding retaliation based on disability

discrimination. (See R. 21 at 7–8 (arguing that the plaintiff did not identify protected

activity engaged in related to race or national origin); R. 25 at 5–6 (“Plaintiff’s EEOC

Charge failed to give notice of a possible claim for retaliation for national origin or

race discrimination . . . nowhere does it indicate any adverse action or protected

activity connected with Plaintiff’s claim of national origin (or lack of claim for race

discrimination).”).) The Court interprets this to mean that the parties do not dispute

that retaliation as to Rivera’s disability was exhausted. See Stransky v. Cummins

Engine Co., Inc., 51 F.3d 1329, 1335 (7th Cir. 1995) (“The federal courts will not

invent legal arguments for litigants.”).

As to Rivera’s claim for retaliation based on race and national origin, typically

“discrimination and retaliation claims are not considered to be ‘like or reasonably

related to one another.’” Swearnigen-El v. Cook Cnty. Sheriff’s Dept., 602 F.3d 852,

864–65 (7th Cir. 2010) (quoting Sitar, 344 F.3d at 726). And to allege retaliation in

an EEOC charge, the exercise of a protected right or some adverse consequence must

be identified. O’Rourke, 983 F.2d at 97. Here, Rivera argues that his EEOC charge

ties his termination from the district to his reporting of his Title VII and ADA claims.

(R. 24 at 9.) The defendant counters that the charge does not identify any complaints

or protected activity related to race or national origin. (R. 21 at 7–8, R. 25 at 5–6.)

Looking at the EEOC charge, Rivera did not “check the box” for retaliation (R.

19-1); see also Swearnigen-El, 602 F.3d at 864 (noting that the plaintiff did not check

the box for retaliation “or otherwise indicate that action had been taken against him

for reasons other than his race and gender.”). The explanation in the charge also

states that “[a]fter informing [the defendant] of [his] disability, on or about December

17, 2021, [he] was notified [he] will be discharged . . .” (R. 19-1 (emphasis added).)

Rivera’s charge does not say that he was fired because of allegations of race or

national origin discrimination. The same is true in Rivera’s position paper, which was

written by an attorney. See O’Rourke, 983 F.2d at 97 (acknowledging that while

laypersons “cannot be expected to know the legal buzzwords,” the same standard is

not applied to those who have an attorney). Rivera’s paper starts by saying that he

was retaliated against for disclosing a hostile work environment, and for raising his

claim of disability. (R. 19-9 at 1.) Then, he argues that he “not only faced

discrimination, but also retaliation for raising a disability based upon anxiety and

depression.” (Id. at 2.) And that while “the Principal thanked [ ] Rivera for alerting

Elk Grove to the existence of this disability[, t]he retaliatory response was to

terminate [ ] Rivera’s employment.” (Id. at 2–3.) There is no reference to retaliation

against Rivera on the basis of his race or national origin. Absent any reference to

complaints or protected activity related to race or national origin, race or national

origin retaliation would not reasonably be expected to grow out of the EEOC’s

investigation into disability retaliation. Accordingly, to the extent Count V alleges

retaliation based on race or national origin, that claim has not been administratively

exhausted.

In sum, the Court finds that Counts I and II have been administratively

exhausted, as well as Count IV to the extent it alleges discrimination based on

disparate treatment and Count V to the extent it alleges retaliation based on

disability. The claim of failure to accommodate in Count IV has not been

administratively exhausted, nor has the claim of retaliation based on race and

national origin in Count V.

II. FAILURE TO STATE A CLAIM – ALL COUNTS

The defendant also argues that all five counts in Rivera’s Second Amended

Complaint fail to state a claim. The Court considers each count in turn.3

3 Because the Court has already determined that Count IV, to the extent it alleges

disability discrimination based on failure to accommodate, and Count V, to the extent it

alleges retaliation on the basis of race and national origin, were not administratively

exhausted, the Court will not consider the defendant’s arguments as to whether a claim was

stated for these counts. (See R. 21 at 11–12 (arguing claims not stated for failure to

accommodate and retaliation based on race and national origin).) For the reasons already

A. Counts I and II

As to Counts I and II, the defendant argues that Rivera failed to state a claim

under Title VII for race or national origin discrimination. (R. 21 at 9–11.) To state

such a claim, Rivera must allege that he is a member of a protected class, that he was

meeting his employer’s expectations, that he suffered an adverse employment action,

and that similarly situated employees outside of his protected class were treated more

favorably. Lauderale v. Ill. Dept. of Human Servs., 876 F.3d 904, 910 (7th Cir. 2017).

The defendant concedes that Rivera is a member of a protected class. (R. 21 at 10.)

Rivera alleges that he was meeting his employer’s expectations; the Second Amended

Complaint describes how Rivera received an evaluation of “excellent” for four

consecutive years and an evaluation of “proficient” in his last year. (SAC ¶ 15.) Rivera

suffered an adverse employment action: he was let go from his position. (Id. ¶¶ 50,

81.) Finally, Rivera alleges that Penio, a similarly situated employee who is not a

member of Rivera’s protected class, was treated more favorably; the Second Amended

Complaint details how Penio moved to an “unlisted” position where he would serve

as the “sole” Division Head of Student Success, Safety, and Wellness. (Id. ¶ 48.)

According to Rivera, that was a promotion. (Id. ¶ 47.) “A complaint that identified the

type of discrimination that plaintiff thought occurred, by whom, and when, was all

the plaintiff needed to put in [his] complaint.” Huri v. Office of the Chief Judge of the

Cir. Ct. of Cook Cnty., 804 F.3d 826, 833 (7th Cir. 2015) (internal quotations and

provided, Counts IV and V, based on those theories, cannot be considered by the Court.

Likewise, the defendant did not move to dismiss Count IV’s disparate treatment claim nor

Count V’s disability-based retaliation claim under Rule 12(b)(6). Therefore, those claims

survive.

citations omitted) (cleaned up). Rivera has done that here. (See, e.g., SAC ¶¶ 81, 89

(identifying the type of discrimination, when it occurred, and by whom).) The

defendant’s motion as to Counts I and II is denied.

B. Count III

The defendant moves to dismiss Count III, arguing that Rivera failed to allege

a viable theory under Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658

(1978). Monell applies here because the school board is a municipal defendant.

However, “there can be no Monell liability where there is no underlying constitutional

violation.” LaChance v. Cmty. Consolidated School Dist. 93, No. 22 C 01266, 2024 WL

1254182, at *6 (N.D. Ill. Mar. 25, 2024) (citing Sallenger v. City of Springfield, Ill.,

630 F.3d 499, 504 (7th Cir. 2010)).

Here, Rivera alleges that he had a “liberty interest in continuing his

employment with the Board.” (SAC ¶ 96; see also R. 24 at 10.) But only “the

individual’s liberty to pursue a particular occupation . . . not the individual’s right to

any one job,” is protected. Bryant v. Gardner, 545 F. Supp. 2d 791, 798 (N.D. Ill. 2008)

(citing Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001)). In other words, Rivera

does not have a liberty interest in continuing his specific employment with the Board,

but rather has a liberty interest in his ability to pursue his chosen occupation.

The Second Amended Complaint includes an allegation that the defendant’s

“intentional and malicious conduct in defaming [ ] Rivera’s reputation . . . made it

virtually impossible for Rivera to find new employment in his chosen field.” (SAC ¶

98.) Because the Court must construe all ambiguities in the plaintiff’s favor, the Court

reads this as an allegation that the defendant prevented Rivera from pursuing his

chosen occupation. “The government violates an employee’s occupational liberty

interest when, in the course of a discharge, failure to rehire, or other adverse

employment action, the employer stigmatizes the employee by making public

comments that impugn ‘the individual’s good name, reputation, honor, or integrity’

or impose a ‘stigma or other disability on the individual which forecloses other

opportunities.’” Bryant, 545 F. Supp. 2d at 798 (quoting Bd. of Regents v. Roth, 408

U.S. 564, 573 (1972)). Simply put, “[t]o sufficiently plead the deprivation of an

occupational liberty interest, the plaintiff must allege: (1) the employer made

stigmatizing comments; (2) the comments were publicly disclosed; and (3) the plaintiff

suffered a tangible loss of other employment opportunities as a result.” Id. (citing

Townsend, 256 F.3d at 670). Because “any time an employee is involuntarily

terminated, some stigma attaches which affects future employment opportunities . .

. [t]he circumstances of the termination “must make it virtually impossible for the

employee to find new employment in that field.” Lashbrook v. Oerkfitz, 65 F.3d 1339,

1348–49 (7th Cir. 1995) (citing Ratliff v. City of Milwaukee, 795 F.2d 612, 625 (7th

Cir. 1986)). “The public-disclosure element requires the defendant actually

disseminate the stigmatizing comments in a way that would reach potential future

employers or the community at large.” Palka v. Shelton, 623 F.3d 447, 454 (7th Cir.

2010) (citing Ratliff, 795 at 627)). And the government “must have actually

participated in disseminating the information to the public.” Lashbrook, 65 F.3d at

1349.

Rivera alleges that the defendant “discriminated against Rivera when it made

defamatory, pejorative, and stigmatizing comments to various third parties about [ ]

Rivera during and after they terminated his employment.” (SAC ¶ 97.) According to

Rivera, the comments were made to “administrators and other decision-makers” who

reached out to Board employees for information about Rivera. (Id.) Specifically,

Rivera alleges that he learned from one interviewer that Kelly gave Rivera a negative

reference: that “Rivera had difficulty dealing with peer colleague conflict[.]” (Id. ¶

73C.) In another instance, Rivera was told by District 214 human resources that his

“narrative” email bothered some of the district’s principals. (Id. ¶ 74D.) Rivera was

also told that he was “being ‘sandbagged’ by District 214 and the Board.” (Id. ¶ 74F.)

These comments that Rivera identifies in his Second Amended Complaint are the

type of statements one might make when asked for an employee recommendation.

“[S]imply labeling an employee as being incompetent or otherwise unable to meet an

employer’s expectations does not infringe the employee’s liberty.” Head v. Chi. School

Reform Bd. of Trustees, 225 F.3d 794, 801 (7th Cir. 2000) (citing Lashbrook, 65 F.3d

at 1348–49). Rivera’s allegations are not “sufficiently stigmatizing” to show that there

was an infringed liberty interest, Bryant 545 F. Supp. 2d at 800; “a termination is

only stigmatizing if it is accompanied by a publicly announced reason that impugns

[the employee’s] moral character or implies dishonesty or other job-related moral

turpitude.” LaChance, 2024 WL 1254182, at *6. Because the Second Amended

Complaint does not plausibly allege a constitutional violation, there can be no Monell

liability. As a result, the Court need not reach whether the plaintiff pled necessary

facts to meet the Monell standard. Count III is dismissed.

III. PUNITIVE DAMAGES

Finally, the defendant moves to dismiss Rivera’s request for punitive damages.

(R. 21 at 12-13.) Municipalities are immune from punitive damages. First Midwest

Bank Guardian of Estate of LaPorta v. City of Chi., 988 F.3d 978, 985 n.3 (7th Cir.

2021) (citing City of Newport v. Fact Concerts, Inc., 485 U.S. 247, 271 (1981)) (§ 1983);

Passanti v. Cook Cnty., 689 F.3d 655, 677 (7th Cir. 2012) (Title VID. Therefore,

Rivera’s request for punitive damages is stricken.

CONCLUSION

The defendant’s motion to dismiss (R. 20) is granted as to Count III, IV based

on failure to accommodate, and V related to race-based retaliation. The plaintiffs

request for punitive damages is stricken. The motion is denied in all other respects.

The defendant shall respond to the plaintiff's remaining claims (Counts I, IJ, IV—

disparate impact, and V—disability related retaliation) on or before November 11,

2024. The October 22, 2024, status hearing is stricken.

_ A$

Date: October 21, 2024

JEREMY C. DANIEL

United States District Judge

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