Swearengin v. Board of Education of the City of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TIANNA SWEARENGIN, )

an individual, )

)

Plaintiff, ) No. 24 C 5279

)

v. ) Magistrate Judge Jeffrey Cole

)

THE BOARD OF EDUCATION OF )

THE CITY OF CHICAGO, and )

SHEILA BARLOW, in her individual )

and official capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I.

Plaintiff has brought a number of claims against the defendants: retaliation for exercising her

freedom of speech (Count I), retaliation for exercising her freedom of association with her son

(Count II), denial of due process when she was fired without a pre-termination or a post-termination

hearing (Count III), violation of the Illinois Whistle Blower Act (Count IV), common law retaliatory

discharge (Count V), conspiracy to deprive her of her First Amendment rights (Count VI), and

common law intentional infliction of emotional distress (Count VII). The defendants have moved

to dismiss all these claim under Fed.R.Civ.P.12(b)(6) with prejudice. To survive a motion to dismiss

pursuant to Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556, 127 S.Ct. 1955). Put simply, a complaint's factual allegations “must be enough to raise a right

to relief above the speculative level.” Twombly, 550 U.S. at 555. Reviewing those factual allegations

at the pleadings stage, the court must accept them as true and view them in the light most favorable

to the plaintiff, drawing all reasonable inferences in the plaintiff’s favor. Emerson v. Dart, 109 F.4th

936, 941 (7th Cir. 2024); Approved Mortg. Corp. v. Truist Bank, 106 F.4th 582, 588 (7th Cir. 2024).

Indeed, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of

those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at

556.

The defendants’ arguments in their motion ultimately fail to sufficiently adhere to these

standards. Obviously, a complaint is always just a compendium of allegations. It is a plaintiff’s

version of a “story” which may not, in the long run, turn out to be entirely accurate – at least in the

eyes of an ultimate fact finder. But, a defendant’s initial – or for that matter ultimate – version of

events may not necessarily be accurate either. At this early point, however, a defendant – and the

court must accept as true the plaintiff’s version of events alleged in the complaint – so long, of

course, as the adumbration is consistent with pleading requirements under the Federal Rules of Civil

Procedure and principles articulated in appropriate case law. “The reason why judges accept a

[C]omplaint's factual allegations when ruling on motions to dismiss under Rule 12(b)(6) is that a

motion to dismiss tests the legal sufficiency of a pleading. Its factual sufficiency will be tested

later—by a motion for summary judgment under Rule 56, and if necessary by trial.” Szabo v.

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). A defendant cannot – as the

defendants’ briefs in this case tend to do – ignore certain allegations or construe others in a light

more flattering to them. A defendant cannot be dismissive of a complaint’s well pled allegations so

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long as they satisfy the applicable Rules governing the standards by which a pleading must be judged

in the face of a Motion to Dismiss a complaint.

II.

The Plaintiff’s Story

The plaintiff began working at Adam Clayton Powell, Jr. Paideia Academy (“Powell

Elementary School”), an elementary school, in 2016. She said she was a “staff member,” but her

position was classified as “Miscellaneous Employee.” [Dkt. #1, Par. 7]. Perhaps these phrases might

be legalese or human resources “speak” for “teacher,” which is what plaintiff refers to herself as later

in her complaint. In any event, after a few years, in the Fall of 2023, her son enrolled there. Not

long after that, he became the target of bullies at the school. [Dkt. #1, Par. 11]. Plaintiff reported the

bullying to her superior, Sheila Barlow, the school’s Principal, but nothing allegedly was done. [Dkt.

#1, Par. 12]. Instead, one of plaintiff’s colleagues threatened her. [Dkt. #1, Par. 13].

Things came to a head in February of 2024 when three Powell Elementary School attendees

attacked plaintiff’s son in a school restroom and stole his shoes. [Dkt. #1, Par. 16]. As seems to be

the norm nowadays, the three assailants proudly posted their attack on Tik Tok. [Dkt. #1, Par. 17].

When the plaintiff reported this incident to Principal Barlow, Barlow told her that she was not

wanted at the school, to “keep [her] mouth shut” about bullying, and threatened plaintiff that her son

would be beaten the following year if she didn’t stop complaining. [Dkt. #1, Par. 20]. As Barlow did

nothing about the situation, about a month later, plaintiff’s son was choked in gym class by the same

assailants and, once again, they posted their violent handiwork on Tik Tok. [Dkt. #1, Par. 21]. Still,

nothing was done about it. Later, one of the three assailants complained to the principal that the

plaintiff was trying to intimidate him by following him with her eyes. [Dkt. #1, Par. 26].

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By this time, plaintiff had had enough of her complaints and fears for her son’s well-being

going unaddressed and reposted the assailants’ videos for commentary on social media and posted

that Principal Barlow had done nothing about the incidents. This is what finally got the attention of

Principal Barlow. She drafted a statement for CPS that said:

On social media platforms, Tianna Swearengin is posting the student’s names (D and

A) and calling them names. There are individuals in the comments stating that they

wanted to harm the students. Tianna Swearengin also posted that I as the principal

and the dean did nothing about the incident. I immediately contacted CPS Safety and

Security to make them aware.

[Dkt. #1, Par. 28]. Principal Barlow had the bullies make statements that plaintiff was making faces

at them. [Dkt. #1, Par. 29]. Just a couple of days later, Jennifer Reger, Executive Director of

Administrative Hearing, sent the plaintiff a termination letter. Plaintiff was fired for “discourteous

treatment of students and staff members and engaged in other inappropriate behavior . . . .” [Dkt. #1,

Par. 30]. Plaintiff was “barred from working in any capacity for CPS, but she was also barred from

volunteering in any capacity at a CPS-affiliated event.” [Dkt. #1, Par. 31].

Plaintiff’s sister wrote to CPS to explain the situation, relating the attacks on her nephew and

noting the assaults were ignored by Principal Barlow. [Dkt. #1, Par. 32]. Plaintiff wrote to CPS

relating the attacks on her son and explaining that she had been fired for posting the video after the

principal refused to take any action. [Dkt. #1, Par. 34]. She asked that the “do not hire” designation

be removed, but CPS, through Reger, refused. [Dkt. #1, ¶ 35].

III.

Federal Claims

A.

First Amendment Retaliation Claims (Counts I and II)

Like all public employees, employees do not relinquish their First Amendment rights by

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accepting government employment. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527 (2022);

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). On the other hand, government employers, like all

employers, must be able to curtail speech that interferes with the operations of the government entity

in order to promote “the efficiency of the public services it performs through its employees.”

Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). In cases like these,

courts apply a two-step balancing test which began with Pickering and was later modified by

Connick v. Myers, 461 U.S. 138 (1983). At the first step, a court must ask if the employee spoke (1)

as a private citizen and (2) on a matter of public concern. Kennedy, 597 U.S. at 527–28; Connick,

461 U.S. at 147; Pickering, 391 U.S. at 568; Brockett v. Effingham Cnty., Illinois, 116 F.4th 680,

683–84 (7th Cir. 2024). If the answer to either of these questions is “no,” then the employee has no

First Amendment cause of action. Garcetti, 547 U.S. at 418. Otherwise, the court proceeds to a

second step, asking whether the interest of the state, as an employer, in promoting the efficiency of

the public services it performs through its employees “outweighs” the interests of the [employee],

as a citizen, in commenting upon matters of public concern. Pickering, 391 U.S. at 568; Brockett,

116 F.4th at 684.

The defendants argue that the plaintiff’s First Amendment retaliation claims must be

dismissed because (1) the plaintiff did not speak as a private citizen but as a public employee

pursuant to her official duties; (2) the plaintiff did not speak on a matter of public concern; and (3)

the Board of Educations’s interest in efficiency outweighs the plaintiff’s interests.

The defendants contend that the plaintiff was “acting in her role as a CPS employee when

she reported multiple instances of employee and student misconduct to the administration at Powell

elementary School. . . . Plaintiff alleges that as a ‘teacher,’ she felt compelled to report the incidents.”

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Id. at ¶ 12. [Dkt. #15, at 5]. As was stressed earlier, however, the court must accept a complaint’s

allegations as true and must draw all reasonable inferences in the plaintiff’s favor. Emerson, 109

F.4th at 941; Approved Mortg. Corp., 106 F.4th at 588. Yes, the complaint says at one point that the

plaintiff is a teacher [Dkt. #1, Par. 12], but, more importantly, the complaint repeatedly makes clear

that plaintiff is the mother of the student who, according to the complaint, was being bullied. [Dkt.

#1, Pars. 10, 11, 12, 16-21, 43]. Being a teacher does not trump being a mother, nor does the former

eliminate the fact of the latter. Here, as always, “reality must dominate judgment.” Copperweld

Corp. v. Independence Tube Corp., 467 U.S. 752, 774 (1984). There is more than enough in the

complaint to allege that plaintiff was speaking as a private citizen, and the allegations in the

complaint make it certainly more than just plausible that that was the greater motivation for her

speaking out. Tellingly, the defendant seems to unwittingly concede this when it argues that plaintiff

was not speaking on a matter of public concern because she was motivated out of “concerns about

her own child.” [Dkt. #15, at 7]. “The fact that an employee has a personal stake in the subject matter

of the speech does not necessarily remove it from the scope of public concern.” Spiegla v. Hull, 371

F.3d 928, 938 (7th Cir. 2004). The complaint alleges more than enough to get over defendants’

private citizen/public employee objection.

This provides a segue to the most surprising assertion in the defendants’ brief namely that

the plaintiff did not speak on a matter of public concern. [Dkt. #15, at 6-7]. It is difficult to imagine

a matter of public concern more dire and of greater import than that alleged in the challenged

complaint. “[W]here the employer brings a motion to dismiss the employee's free speech claim on

the basis of the pleadings rather than on the facts in the record, the speech may be presumed to

involve a matter of ‘public concern’ if it touches upon ‘any matter for which there is potentially a

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public interest.” Pugel v. Bd. of Trustees of Univ. of Illinois, 378 F.3d 659, 668 (7th Cir. 2004). Only

jaundiced partisanship could suggest that, at this point in our history, bullying in our public schools

is not a “matter for which there is potentially a public interest.” I am confident that the Board of

Education of the City of Chicago – or a Board of Education anywhere in this country – would take

the stance that it does not regard bullying in its schools as a matter of public interest. Yet, curiously

that seems to be the stance taken in the defendants’ brief. The public pays for those schools and pays

the salaries of administrators like Principal Barlow, and pays the salaries of the members of the

Board. The public certainly has a strong interest in the safety of the students in those schools and

a strong interest in whether administrators and Board members are adequately responding to attacks

of students on school grounds made known to them. Not surprisingly, other courts have indicated

this is a matter of public importance. See, e.g., Peoples v. Oswego Cmty. Sch. Dist., No.

19-CV-00568, 2020 WL 1330652, at *7 (N.D. Ill. Mar. 22, 2020); Meredith v. Cnty. of Jefferson,

No. 3:18-CV-105, 2019 WL 1437821, at *23 (W.D. Pa. Apr. 1, 2019); Thibault v. Spino, 431 F.

Supp. 3d 1, 10 (D. Conn. 2019). Indeed, the City of Chicago has conceded that this is a matter of

public concern. Thus, the City’s own website has stressed: “There are about 160,000 children that

miss school every day out of fear of being bullied. Nationwide surveys of 6th through 10th graders

conducted by the national institute of Child Health and Human Development revealed that 17% of

children in the 6th through 10th grade are bullied sometimes or weekly, while 19% bully others

sometimes or weekly.” Https://www.chicago.gov/city/en/depts/cdph/supp_info/behavioral-health/

bullying_prevention1.html. The State of Illinois has echoed the same concerns. See, e.g., 105 ILCS

5/27-23.7(a). It is of no legal significance that the student who was repeatedly attacked at the school

was plaintiff’s son. “A personal aspect contained within the motive of the speaker does not

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necessarily remove the speech from the scope of public concern.” Gustafson v. Jones, 290 F.3d 895,

908 (7th Cir. 2002). The plaintiff’s retaliation claims will not be dismissed on the basis of the

defendants’ contention that the case does not involve a matter of public concern.

We then turn to the question of whether the government’s “interests as employer outweigh

even an employee's private speech on a matter of public concern.” Kennedy, 597 U.S. at 531;

Brockett, 116 F.4th at 684; Hicks v. Illinois Dep't of Corr., 109 F.4th 895, 900 (7th Cir. 2024). Here,

the defendants argue that “the Board’s interests in maintaining efficacy within its schools certainly

outweighs Plaintiff’s interests,” and “that it is self-evident that CPS, an entity entrusted with both

the education and welfare of students, must be able to protect those students from imminent threats

of harm.” [Dkt. #15, at 7-8]. But, according to the complaint, neither CPS nor Principal Barlow were

doing those things. A student was attacked – at least twice – and the school administrator told the

employee who reported what had occurred – at least twice – to shut up about it or things might get

worse for the student. If true, these allegations are of significant public concern.

Moreover, the defendants’ argument is rather vague, and that’s unhelpful in the context of

an inquiry that the Supreme Court has said “sometimes has proved difficult.” Garcetti, 547 U.S. at

418. The balancing part of this inquiry is a highly fact-intensive one. Hicks, 109 F.4th at 901;

McGreal v. Ostrov, 368 F.3d 657, 675 (7th Cir. 2004). It involves an examination of several

interrelated factors, Hicks, 109 F.4th at 901, which the defendants have failed to sift through in their

briefing. One cannot simply pronounce something “self-evident” and have a complaint dismissed.

“Pickering balancing is not an exercise in judicial speculation.” Harnishfeger v. United States, 943

F.3d 1105, 1116 (7th Cir. 2019)(quoting Gustafson, 290 F.3d at 909). Indeed, speculation is

anathema to informed decision making.

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Overall, the question of whether an employer’s interests outweigh an employee’s First

Amendment rights is generally ill-suited to resolution “through the lens of [a] liberal, undemanding

pleading standard.” Brockett, 116 F.4th 684. If the defendants were to move for summary judgment

on the Pickering balancing defense, they would have to lay out the elements of the defense, cite the

facts which they believe satisfy those elements, and demonstrate why the record is so one-sided as

to rule out the prospect of a finding in favor of the plaintiff. Harnishfeger, 943 F.3d at 1116.

Obviously, the defendants have fallen far short of that here, and, in any event, this is a Rule 12(b)(6)

motion, where a plaintiff is entitled to the benefit of the doubt. The defendants’ motion to dismiss

Counts I and II of the complaint is denied.

B.

Qualified Immunity

The defendants also argue that Principal Barlow is entitled to qualified immunity because her

conduct did not violate a clearly established constitutional right. See, e.g., Purtell v. Mason, 527

F.3d 615, 621 (7th Cir. 2008). But, as noted earlier, as with a fair portion of the Motion to Dismiss,

its argument puts out of view the fact that the complaint’s well pled allegations must be taken as true,

and all reasonable inferences must be drawn in plaintiff’s favor. See, e.g., Emerson, 109 F.4th at 941;

Approved Mortg. Corp., 106 F.4th at 588. Here, the defendants’ argument is based on their

interpretation of the complaint and what they feel is true; this portion of the defendants’ motion to

dismiss cannot be granted.

The flaw in the defendants’ argument is made clear when its interpretation of the complaint

is set against its actual allegations. According to the defendants’ reading of the complaint:

Here, Principal Barlow did not report Plaintiff’s actions to CPS superiors to silence

or retaliate against Plaintiff for advocating for her son. Rather, it is clear from

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Plaintiff’s Complaint that it was Principal Barlow’s intention and priority to protect

the students who were entrusted in her care. See Compl. ¶ 28.

[Dkt. #15, at 3-4]. But, that is not clear in the least. What is clear is that the complaint alleges that

plaintiff’s son was attacked by two or three Powell Elementary attendees on at least two occasions

– in a bathroom and during gym class. [Dkt. #1, Pars. 16, 21]. The bullies recorded their attacks and

posted them on Tik Tok. [Dkt. #1, Pars. 16, 21]. When plaintiff complained, Principal Barlow

initially instructed her staff to do nothing [Dkt. #1, Par. 19]. She later told plaintiff that she was not

wanted in her job, and that she should shut up about the incidents or her son was likely to be attacked

in high school as well. [Dkt. #1, Par. 20]. Repeatedly dismissed, rebuffed, and threatened, the

plaintiff took the matter to the public forum. Principal Barlow then set plaintiff’s termination in

motion, and it happened in very quick succession. So, no, nothing in the complaint suggests that

Principal Barlow was motivated by a desire to “protect the students who were entrusted to her care,”

although Principal Barlow may think otherwise. In fact, according to the facts set forth in the

complaint, she did not even follow the Chicago Public Schools Policy for Addressing Bullying that

the defendants attach to their Motion to Dismiss. [Dkt. #15-1, Page 7-9 of 12]. Instead – again,

according to the allegations in the complaint – she did exactly what CPS Policy warned her not to

do: “Dismiss bullying as typical student behavior or assume it is not serious.” [Dkt. #15-1, Page 9

of 12]. It is difficult to imagine a complaint that more completely informs the defendant of the claims

against it. Whether those allegations are true or not remains to be seen. But the contention that what

is alleged is insufficient is rejected.

C.

Due Process Claim (Count III)

Defendants contend that the denial of due process claim in Count III must be dismissed

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because plaintiff was an at-will employee with no property interest in her job and was, therefore, not

entitled to any due process. In order to proceed on a due process claim, a plaintiff has to allege the

existence of a constitutionally-protected property interest in continued employment. O'Gorman v.

City of Chicago, 777 F.3d 885, 890 (7th Cir. 2015); Moss v. Martin, 473 F.3d 694, 700 (7th

Cir.2007). Property interests are not created by the Constitution, but rather are created and defined

by existing rules or understandings that stem from an independent source such as state law.

O’Gorman, 555 F.3d at 590; Chicago Teachers Union, Local No. 1, Am. Federation of Teachers v.

Bd. of Educ. of the City of Chicago, 662 F.3d 761, 763 (7th Cir.2011). Such property interests

usually arise from rights created by state statutes, state or municipal regulations or ordinances, and

contracts with public entities. O’Gorman, 555 F.3d at 590; Ulichny v. Merton Community School

Dist., 249 F.3d 686, 700 (7th Cir.2001).

Here, the plaintiff alleges that:

[a]s a public employee, [she] was entitled to both a pre-termination hearing prior to

her termination, as well as a post-termination hearing after her termination. This

pre-termination hearing is an initial check against mistaken decisions—essentially,

a determination of whether there are reasonable grounds to believe that the charges

against the employee are true and support the proposed action. . . . A public entity

prior to the termination must provide oral or written notice of the charges against the

employee, an explanation of the employer’s evidence, and an opportunity to present

her side of the story.

[Dkt. #1, Pars. 69-70]. But, where does such entitlement come from? Indeed, it would seem that,

under Illinois law, only tenured teachers have a constitutionally protected property interest in

continued employment, a necessary predicate to a due-process claim. Mascow v. Bd. of Educ. of

Franklin Park Sch. Dist. No. 84, 950 F.3d 993, 995 (7th Cir. 2020); Harbaugh v. Bd. of Educ. of City

of Chicago, 716 F.3d 983, 988 (7th Cir. 2013). Perhaps plaintiff has some other source of a property

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interest in mind – she speculates in her response brief that it might be an employment regulation, an

employee handbook, or other policy statement [Dkt. #21, at 6] – but she fails to allege what it is.

Accordingly, the plaintiff’s due process claim (Count III) is dismissed, but contrary to the

defendants’ wishes, it is dismissed without prejudice. See O'Brien v. Vill. of Lincolnshire, 955 F.3d

616, 628 (7th Cir. 2020)(“Ordinarily, after an original complaint is dismissed under Rule 12(b)(6),

a court should allow at least one opportunity to amend the complaint before dismissing the entire

action.”); Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510,

519 (7th Cir. 2015).

D.

Civil Conspiracy Claim (Count VI)

A civil conspiracy is “a combination of two or more persons acting in concert to commit an

unlawful act, or to commit a lawful act by unlawful means.” Beaman v. Freesmeyer, 776 F.3d 500,

510 (7th Cir. 2015); Scherer v. Balkema, 840 F.2d 437, 441 (7th Cir.1988). The elements of a

conspiracy claim are: (1) the individuals reached an agreement to deprive plaintiff of her

constitutional rights, and (2) overt acts in furtherance actually deprived him of those rights.

Daugherty v. Page, 906 F.3d 606, 612 (7th Cir. 2018); Beaman, 776 F.3d at 510. The plaintiff falls

short of stating a claim under this Count. Contrary to her response brief, her allegations have no

common ground with those found sufficient in Geinosky v. City of Chicago, 675 F.3d 743, 749 (7th

Cir. 2012), where “several members of the same police unit allegedly acted in the same inexplicable

way against a plaintiff on many different occasions, . . . .” Plaintiff may have alleged a pattern of

harassment as in Geinosky but, according to the complaint, the only one doing the harassing was

Principal Barlow. The principal then crafted the tale to suit her needs in a letter to CPS, which then

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acted upon the principal’s letter. Capping that off with a conclusory allegation that “Defendants,

along with Jennifer Reger, Executive Director of Administrative Hearings, made an agreement to

deprive [plaintiff] of her constitutional rights” [Dkt. #1, Par. 86] is not enough. Indeed, as the

complaint reads, Reger did not have what the plaintiff considers to be the real story, only Barlow’s

version. Accepting the complaint’s allegations as true, as we must, Principal Barlow was driving the

retaliation school bus, and Reger and CPS were merely the last stop. The defendants’ Motion to

Dismiss is granted as to Count VI, and the plaintiff’s civil conspiracy claim is dismissed, again,

without prejudice. O'Brien, 955 F.3d at 628; Runnion, 786 F.3d at 519.

IV.

State and Common Law Claims

A.

Illinois Whistleblower Act (Count IV)

In their reply brief, the defendants withdraw the bulk of their arguments for dismissal of the

plaintiff’s Illinois Whistleblower Act claim1 because they misread the plaintiff’s claims being

brought under 740 ILCS 174/15. [Dkt. #22, at 8]. Instead, the complaint specifically alleges that

Count is brought under 740 ILCS 174/20.1. [Dkt. #1, Par. 76 (emphasis added)]. Under Sec. 20.1:

Any other act or omission not otherwise specifically set forth in this Act, whether

within or without the workplace, also constitutes retaliatory action by an employer

under this Act if the act or omission would be materially adverse to a reasonable

1 While it is unclear whether defendant is withdrawing its Tort Immunity Act arguments as well,

their Reply brief [Dkt. #22, at 8] ignores the plaintiff’s arguments and case citations for why tort

immunity does not apply here [Dkt. #21, at 9-11] and, so, those points are conceded. Webb v. Frawley,

906 F.3d 569, 581 (7th Cir. 2018)(“[P]laintiff has waived any counterarguments he may have had by not

responding to Frawley's argument on this topic in his reply brief.”); Bonte v. U.S. Bank, N.A., 624 F.3d

461, 466 (7th Cir. 2010)(“Failure to respond to an argument . . . results in waiver.”); United States v.

Farris, 532 F.3d 615, 619 (7th Cir.2008) (“[Defendant] failed to respond to the Government's argument

in a Reply Brief, and accordingly, we find that [Defendant] waived his sufficiency of the evidence

challenge[.]”).

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employee and is because of the employee disclosing or attempting to disclose public

corruption or wrongdoing.

740 ILCS 174/20.1. The defendants argue in their reply brief that plaintiff fails to present facts

showing she was terminated because she reported that her son was being bullied. [Dkt. #22, at 8].

But, again, the defendants clearly demand too much from the complaint. Here, the allegations

adequately state that plaintiff was fired in retaliation for complaining about her son being bullied and

reposting the bullies’ own videos of those attacks on social media when Principal Barlow repeatedly

refused to take any action. In response to the social media reposting, Principal Barlow wrote to CPS

and plaintiff’s termination followed. [Dkt. #1, Par. 78]. Surely, these facts are adequate to state a

claim at the pleading stage.

B.

Retaliatory Discharge (Count V)

Defendants’ argument for dismissal of the retaliatory discharge claim (Count V) depends

entirely on the failure of plaintiff’s Illinois Whistleblower Act claim. [Dkt. #15, at 13]. But, as

already noted, the defendant has misread the Illinois Whistleblower Act and thus the challenged

claim must stand. Based on the defendants’ Reply brief, it would appear that the defendants’ only

remaining argument for dismissal of Count V is based on the public policy argument that was

essentially rejected in connection with Counts I and II.

An employee can state a valid retaliatory discharge claim under Illinois' common law if he

or she alleges they were discharged from their employment in retaliation for certain activities and

“that the discharge violated the clear mandate of public policy.” Villegas v. Princeton Farms, Inc.,

893 F.2d 919, 920 (7th Cir. 1990); Callahan v. Edgewater Care & Rehab. Center, Inc. 374

Ill.App.3d 630, 313 Ill.Dec. 568, 872 N.E.2d 551, 552–53 (Ill.App.Ct. 2007). As already discussed,

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it is impossible to accept the defendants’ argument regarding whether bullying in our schools is a

matter of public concern. It is, not only by the defendants’ own admissions and those of other Illinois

officials, but of common sense, which is not to be ignored. See Peak v. United States, 353 U.S. 43,

46 (1957)(“Common sense often makes good law.”). See also United States v. Ingham, 502 F.2d

1287, 1291 (5th Cir. 1974)(“The law... allows for common sense.”). Not surprisingly, as the

complaint alleges, Illinois has a clearly mandated public policy in favor of providing a safe and civil

school environment for students to learn and achieve without bullying. [Dkt. #1, Par. 80]; see 105

ILCS 5/27-23.7(a). The defendants, of course, have a different view of the events and gloss over the

attacks on plaintiff’s son and recast them as “[plaintiff’s] son in the bathroom with other students

from Powell” [Dkt. #15, at 2, 6] or “elementary students in . . . an intimate setting” [Dkt. #22, at 9].

But, here as always, “we must think things not words...” Holmes, Law and Science and Science and

Law, 12 Harv.L.Rev. 443, 460 (1899). They claim, without evidence – of course not, as this is a Rule

12(b)(6) proceeding – that the bullies were threatened on social media. Perhaps; perhaps not. It’s

perhaps worth noting that it was the bullies, craving attention, who originally posted their attacks on

social media, and the defendants seemed to have no concern about that, however humiliating it might

have been to plaintiff’s son and however distressing it might have been to the plaintiff. But those

are matters for summary judgment or trial. Szabo, 249 F.3d at 675. Overall, the defendants’ softening

of the plaintiff’s allegations and the seemingly dismissive view of a principal ignoring a student

being attacked and choked and having his shoes stolen tends to undermine their stance that they are

concerned with “protecting school environments from such endangerment . . . .” [Dkt. #22, at 9].

The defendants’ Motion to Dismiss Count V’s retaliatory discharge claim is denied.

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C.

Emotional Distress (Count VII)

The defendants argue that the plaintiff’s claim for intentional infliction of emotional distress

must be dismissed because she does not sufficiently plead extreme and outrageous conduct. [Dkt.

#15, at 13-14]. In Illinois, a claim for intentional infliction of emotional distress involves three

elements: that the actor’s conduct was extreme and outrageous; that the actor intended to inflict

severe emotional distress or knew that there was at least a high probability that his conduct would

have caused such distress; and that the conduct in fact caused severe emotional distress. Sun v. Xu,

99 F.4th 1007, 1013 (7th Cir. 2024). The tort does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities. Sun, 99 F.4th at 1013. In the employment context,

a claim can arise where an employer “clearly abuses the power it holds over an employee in a manner

far more severe than the typical disagreements or job-related stress caused by the average work

environment.” Trahanas v. Nw. Univ., 64 F.4th 842, 860 (7th Cir. 2023). The everyday job stresses

resulting from discipline, personality conflicts, job transfers or even terminations do not give rise

to emotional distress claims, otherwise nearly every employee would have a cause of action. Sun,

99 F.4th at 1013; Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006). As has been

already been seen, the defendants clearly have a different perspective on what went on at Powell

Elementary School, and they also have a very different perspective on what is extreme or

“outrageous” conduct. But, once again, accepting the plaintiff’s allegations as true and drawing all

reasonable inferences in her favor, the complaint easily passes muster.

Principal Barlow held a position of authority over plaintiff. She was also in charge of the

school plaintiff’s son attended, and as is undeniable, and, as we are told repeatedly in defendants’

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submissions, she had a duty to keep students safe. But when plaintiff complained to the principal

about attacks on her son, Barlow not only ignored those attacks and left plaintiff’s son to whims of

the bullies, she told plaintiff to stop complaining or her son would likely continue to be beaten. In

the context of school bullying and a mother’s concerns for her child, that certainly qualifies as

outrageous and would clearly cause any mother emotional distress. With nowhere to turn, plaintiff

took the matter to the public forum and, soon thereafter, was terminated at the behest or at least at

the suggestion of Principal Barlow. That made the conduct alleged only more outrageous and the

distress more severe. The defendants’ motion to dismiss this Count must be denied.

D.

Punitive Damages

Finally, the defendants argue that because the Board of Education is a government agency

and local government entity, it is immune from punitive damages on the plaintiff’s state law claims.

See 105 ILCS 5/34-2; Biggs v. Chicago Bd. of Educ., 82 F.4th 554, 557 n.1 (7th Cir. 2023); City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); 745 ILCS 10/2-102 (“Notwithstanding

any other provision of law, a local public entity is not liable to pay punitive or exemplary damages

in any action brought directly or indirectly against it by the injured party or a third party.”); Simonsen

v. Bd. of Educ. of City of Chicago, No. 01 C 3081, 2001 WL 1250103, at *8 (N.D. Ill. Oct. 17,

2001)(“The Board argues that as a municipality, it cannot be held liable for punitive damages under

§§ 1981, 1983, 1985 or Title VII. We agree.’). The plaintiff makes no mention of punitive damages

or defendants’ argument in her response brief, so she has waived any challenge to it. Webb, 906 F.3d

at 581; Bonte, 624 F.3d at 466; Farris, 532 F.3d at 619. The plaintiff’s claims for punitive damages

against the Board is stricken.

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CONCLUSION

The Defendant’s Motion to Dismiss the Complaint [Dkt. #14] is denied as to Counts I, II

(First Amendment Claims and qualified immunity), IV (Illinois Whistleblower Act), V (retaliatory

discharge), and VII (intentional infliction of emotional distress). While the Motion to Dismiss is

granted as to Counts III (Due Process) and VI (civil conspiracy), the dismissal is without prejudice.

The defendants’ Motion is also granted as to plaintiffs claim for punitive damages against the Board

of Education.

ENTERED: Ua

UMTED STATES MAGISTRATE JUDGE

DATE: 2/24/25

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