# Rivera v. Township High School District 214

> District Court, N.D. Illinois · October 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10645925

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** October 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10645925

## How later opinions describe it (automated extraction)

- 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 …

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10645925. Public record. Not legal advice.