Appendix — Whitmore v. Board of Education of DeKalb Community School District No. 428

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

LINDA WHITMORE,

Petitioner

VS.

BOARD OF EDUCATION OF DEKALB

COMMUNITY SCHOOL DISTRICT NO. 428,

JOHN REY, President of Board of Education

School District No. 428, Individually,

BERNARD LOONEY, Principal, Individually,

DR. JACK DEERE, District Superintendent,

Individually, KEN KENNEDY, Assistant Principal,

Individually, and ROBERT WILLIAMS,

Assistant Superintendent, Individually,

Respondents.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Edward F. Diedrich

(Counsel of Record)

Edward F. Diedrich & Associates

261 E. Lincoln Hwy., Suite 205

DeKalb, Illinois 60115

(815) 758-4441

Attomeys for Petitioner

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UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 4, 1993.

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. JESSE E. ESCHBACH, Senior Circuit Judge

LINDA WHITMORE,

Plaintiff-Appellant,

] Appeal from the

] United States

]) District Court

No. 92-2442 Vi ] for the Northern

] District of

BOARD OF EDUCATION ) Illinois, Western

OF DEKALB COMMUNITY ] Division.

SCHOOL DISTRICT NO. 428, ]

individually, BERNARD J

LOONEY, Principal, ]

individually, et al., ]

]

]

se,

No. 90 C 20143

Philip G.

Reinhard, Judge.

Defendants-Appellees. ee

ORDER |

Linda Whitmore appeals from the district

court's denial of her motion to reconsider under

Federal Rule of Civil Procedure 60. We affirm.

I

Whitmore, a high school teacher, sued the

DeKalb school board and various school district

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officials after the board voted not to renew her

contract. She sought relief pursuant to 42

U.S.C. §§ 1983, 1985, 2000e-h, as well as under

state law for intentional infliction of

emotional distress.

The district court granted in part and denied

in part the defendants' motion under Federal

Rule of Civil Procedure 12(b)(6). Initially,

the court found that Whitmore had not received

sufficiently specific reasons for her

termination. Subsequently, however, the

district court vacated that order and deleted

its finding that Whitmore had received tenure

under state law.

Another judge took over the case and granted

the defendants' motion for summary judgment as

to all of Whitmore's claims. She then filed a

"motion to reconsider" the summary judgment

pursuant to Federal Rule of Civil Procedure

60(b), but before the time for taking a direct

appeal had expired. The district court denied

this motion and Whitmore appealed.

If

A motion under Rule_ 60(b) seeks an

extraordinary remedy. Merit Insurance Co. v.

Leatherby Insurance Co., 714 F.2d 673, 683 (7th

Cir.), cert. denied, 464 U.S. 1009 (1983). That

is especially true under Rule 60(b) (6).

Although this "catch-all provision", id.,

authorizes the district court to vacate its

order or judgment for "any reason justifying

relief from the operation of the judgment", Rule

60(b) (6) is not as open-ended as its language or

nickname suggest. Relief is available only (1)

if Rules 60(b)(1) through (5) do not apply; and

(2) if the district court, in its sound

discretion, finds that equitable action is

necessary to accomplish justice. Peacock v.

Board of School Comrs., 721 F.2d 210, 214 (7th

Cir. 1983) (per curiam). These conditions will

obtain only in "extraordinary circumstances that

create a substantial danger that the underlying

judgment was unjust." Margoles v. Johns, 798

F.2d 1069, 1073 (7th Cir. 1986), cert. denied,

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482 U.S. 905 (1987); C.K.S. Engineers, Inc. v.

White Mountain Gypsum Co., 726 F.2d 1202, 1204-

05 (7th Cir. 1984)("the general rule in this

circuit is that relief from a judgment under

[RJule 60(b) is an extraordinary remedy and is

granted only in exceptional circumstances.").

Cf. Pioneer investment Services Co. v. Brunswick

Assocs. Ltd. Partnership, 113 S.Ct. 1489, 1497

(1993).

Our cases emphasize that Rule 60(b) is a

substitute neither for direct appeal nor for a

motion under Rule 59. In Parke-Chapley

Construction Co. v. Cherrington, 865 F.2d 907

(7th Cir. 1989), for instance, Judge Cummings

explained the rationale for this limitation on

Rule 60(b):

If plaintiff believed the district court

was mistaken as a mater of law in

dismissing the original complaint, he

should have appealed . . . or he might

have filed a timely motion under FRCP 59

to vacate the judgment of dismissal and

for leave to amend his complaint...

The policy behind such a reading of FRCP

60(b) is clear; parties should not be

allowed to escape the consequences of

their failure to file a timely appeal by

addressing questions of law to the trial

court for reconsideration. That is the

function of appellate courts. If allowed

to raise the same questions in a FRCP

60(b) motion that would have been raised

in an appeal from the merits, a party

would be able to effect an indirect

extension of the time for appeal by

appealing the FRCP 60(b) motion within

thirty days of its disposition.

Id. at 915 (quotations and citations omitted).

The function of Rule 60(b) necessarily

narrows the scope of this court's review to a

"most limited" consideration. Reinsurance

Company o a. e

Stat, 902 F.2d 1275, 1277 (7th Cir. 1990).

Regardless of whether "relief from the judgment

might have been obtained had an appeal been

taken", Parke-Chapley Construction Co., 865

F.2d at 915 (quotation and citation omitted),

the court may consider only whether the

district court abused its discretion. In the

absence of extraordinary circumstances,

reaching the merits of the underlying judgment

is not permissible. v. Riv est, 936

F.2a 976, 979 (7th Cir. 1991). Brennan v.

Midwestern United Life Insurance Co., 450 F.2d

999, 1003 (7th Cir. 1971) (court's function in

reviewing the denial of a Rule 60(b) motion is

"not to determine whether the court was

substantively correct in entering the judgment

from which relief was sought but is limited to

deciding whether’ the judge abused his

discretion . . ." in ruling that motion failed

to show sufficient grounds for

relief) (citations omitted), cert. denied, 450

U.S. 999 (1972).

Whitmore's arguments in favor of her motion

fail to satisfy the rigorous standards of Rule

60(b). The district court found that

Whitmore's motions contained no- grounds

justifying relief under subsection (1)

(mistake, inadvertence, surprise, or excusable

neglect), or under subsection (2) (newly

discovered evidence that could not have been

discovered by due diligence in time to move for

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a new trial). Moreover, the district court

judge concluded that Whitmore was not entitled

to relief under subsection (6). In reaching

this conclusion, the district court neither

committed an error of law nor exceeded

permissible bounds of judgment.

Whitmore fails to argue on appeal what she

needs to show: that the district court abused

its discretion. Instead, she appears to be

challenging the district court's order granting

summary judgment, presenting her arguments as

through this court were engaged in de novo

review of a question of law. Our review of the

denial of a motion under Rule 60(b)(6) in

certain circumstances will require us to

consider the merits underlying a summary

judgment. But whitmore seems to think that

there was a substantial danger that this

underlying judgment was unjust because the

judge who granted the summary judgment reached

what her lawyer characterized at oral argument

as a different conclusion than the first judge.

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There are at least three things wrong with this

description of events.

The two judges, first of all, were not

engaged in the same type of review. So it is

not surprising that they could have reached

"different conclusions." The first judge

considered the defendants' motion to dismiss

the complaint pursuant to Federal Rule of Civil

Procedure 12(b) (6). The second judge

entertained the defendants' motion for summary

judgment. A court's consideration of whether a

complaint states a legal claim versus its

determination whether the absence of a material

issue of fact entitles a party to judgment

easily can lead to different conclusions. Many

a complaint--this one, for instance--clears the

hurdle of a Rule 12(b)(6) motion only to

succumb to a motion for summary judgment. If

one judge happens to deny the 12(b)(6) motion

and another grants summary judgment, neither

one nor the other need have reached “the wrong

result."

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but the judges here did not, as whitmore

alleges, reach different legal conclusions. In

granting in part and denying in part the motion

under Rule 12(b)(6), the first judge initially

found that Whitmore was not given sufficiently

specific reasons for her termination--a

requirement under Illinois law. Accordingly,

he found her to be tenured as a matter of law.

In response, the defendants filed exceptions to

that ruling, arguing that they were entitled to

present evidence that Whitmore's evaluations

provided actual notice of her deficiencies.

The district court subsequently struck its

original order a premature and entered an

amended order that deleted the finding that

Whitmore had achieved tenure. That is how

matters stood when the second judge assumed

control of the case. After considering the

pleadings, Judge Reinhard granted summary

judgment to the defendants on all claims. His

decision held that under [Illinois law the

performance deficiencies noted in Whitmore's

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evaluations, in conjunction with written

notice, met the statutory requirements.

Accordingly, she was not tenured. This is the

very same conclusion arrived at by the first

judge after he recognized that he had ruled

prematurely on the issue.

Third, even if Whitmore were correct that the

two judges reached opposite conclusions, we

fail to see how there would be a substantial

danger that the last judgment necessarily would

be unjust.

Unlike many of the parties in cases we see

involving Rule 60(b), Whitmore was not

attempting to evade the time limits of direct

appeal under Rule 4(a). She filed her motion

under Rule 60(b) before the 30-day period for

appeal had expired. Since Whitmore in essence

is seeking to challenge the district court's

conclusions of law in entering summary

judgment, she should have filed a direct appeal

in a timely manner. Rule 60(b)(6) does not

allow her attorney to undo his strategic

mistakes.

AFFIRMED.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

LINDA WHITMORE, )

Plaintiff, )

)

Vv. ) No. 90-C-20143

)

BOARD OF EDUCATION OF )

DEKALB COMMUNITY )

SCHOOL DISTRICT )

NO. 428, JOHN REY, )

President of the Board )

of Education School )

District No. 428, )

Individually, BERNARD )

LOONEY, Principal, )

Individually, DR. JACK )

DEERE, District )

Superintendent, )

Individually, KEN )

KENNEDY, Assistant )

Principal, Individually),

and ROBERT WILLIAMS, )

Assistant )

Superintendent, )

Individually, )

)

)

Dated: February 12,1991

Defendants.

ORDER

Before the court is Defendants' motion to

dismiss Plaintiff's complaint. For the reasons

set forth in this Order, the court grants in

part and denies in part Defendants' motion.

Further, the court grants Plaintiff leave to

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file an amended complaint within thirty days in

accordance with this Order.

BACKGROUND

On May 15, 1990, Plaintiff, Linda Whitmore,

filed a complaint in this court against the

following Defendants: Board of Education of

DeKalb Community School District No. 428

(hereinafter "Board"); and, in their individual

capacities, Board President John Rey, Principal

Bernard Looney, District Superintendent Dr. Jack

Deere, Assistant Principal Ken Kennedy, and

Assistant Superintendent Robert William.

Plaintiff alleges a cause of action against

Defendants under 42 U.S.C. Sections 1983, 1985,

1988 (1988), under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. Sections 2000e - 2000h

(1988), and also aé_e state law claim of

intentional infliction of emotional distress.

The following information is taken from

Plaintiff's complaint. Defendant Board employed

Plaintiff as a full-time high school teacher

form the fall 1987 semester until 1989. In July

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1988, Plaintiff was raped and became pregnant

as a result of the rape. In November 1988

Plaintiff informed Principal Looney of the rape

and pregnancy. Assistant Principal Kennedy and

Principal Looney evaluated Plaintiff's teaching

performance on three occasions: November 23,

1988; January 6, 1989; and March 2, 1989. In

the first two evaluations, Plaintiff was rated

in the excellent to superior range, and in the

third evaluation she was rated in the

satisfactory to excellent range.

On or about March 19, 1989, the Board adopted

and passed a resolution dismissing Plaintiff

from her employment. On March 29, 1989,

Plaintiff was notified of her termination

through a letter from Board President Rey. This

letter stated that Plaintiff was being

terminated because the performance of her duties

had failed to meet the District's expectations.

On that date, Plaintiff was nine months pregnant

and unmarried. Plaintiff was able to secure

other employment as a teacher after repeated

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efforts over a long period of time.

DISCUSSION

In analyzing a motion to dismiss, this court

will not dismiss a complaint unless it is clear

there are no set of facts that Plaintiffs could

prove consistent with the pleadings that would

entitle them to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984); Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Murphy v-

Lane, 833 F.2d 106, 107 (7th Cir. 1087); Vaden

v. Village of Maywood, 809 F.2d 361, 363 (7th

Cir.), cert. denied, 482 U.S. 908 (1987). The

court will accept all well-pleaded factual

allegations in the complaint as true. Vaden,

809 F.2d at 363; e v :

Fort Wayne, 788 F.2d 411, 414 (7th Cir. 1986).

In addition, this court will view the

allegations in a light most favorable to the

non-moving party. C S j . Vv

Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984),

cert. denied, 470 U.S. 1054 (1985); Wolfolk v.

Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).

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Defendants filed their motion to dismiss on

July 5, 1990. Defendants advance several

arguments in support of their motion, the first

of which is that Plaintiff's complaint is barred

by the statute of limitations. Defendants argue

that the one-year statute of limitations found

in the Illinois Tort Immunity Act applies.

Ill.Rev. Stat. ch. 85, para. 8-101 (1989). The

Supreme Court's ruling in Qwens v. Okure, 488

U.S. 235 (1989(, is the final word on the

statute of limitations for Section 1983 actions.

The Owens court stated:

We accordingly hold that where state law

provides multiple statutes of limitations

for personal injury actions, courts

considering Sections 1983 claims should

borrow the general or residual statute for

personal injury actions.

Id. at , 109 S. Ct. at 582.

Therefore, Section 1983 actions brought in

Illinois are subject to the one general statute

of limitations for personal injury actions.

The Seventh Circuit has ruled that Illinois's

two-year statute of limitations for personal

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injury applies to Section 1983 actions brought

in Illinois. j Vv. j j y

Corrections, 879 F.2d 276, 277 (7th Cir. 1989).

The Illinois Code of Civil Procedure provides

that personal injury actions shall be brought

within two years after the cause of action

accrued. Ill. Rev. Stat. ch. 110, para. 13-

202 (1989). The court finds that Plaintiff's

claims under 42 U.S.C. Sections 1985 and 1988,

because they relate to and depend upon,

respectively, Plaintiff's Section 1983 claims,

are also subject to the two-year statute of

limitations.

Defendant does not specifically argue that

Plaintiff's Title VII claim is also barred by

the statute of limitations. Therefore, the

court need not address the timeliness of

Plaintiff's Title VII claim.* Defendant does

In Illinois, persons complaining of Title

VII violations must file discrimination charges

with the Illinois Department of Human Relations

within 180 days of the discriminatory act. Haag

v. Board of Education, 655 F. Supp. 1267, 1270

(N.D. Ill. 1987).

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contend that Plaintiff's pendent state claim

for intentional infliction of emotional

distress was not timely filed. Defendant

implies that the statute of limitations began

to run for this claim on March 20, 1989, the

date Plaintiff says she received notice of

termination from Defendants. Therefore,

Defendants argue, Plaintiff missed the one-

year statute of limitations because she filed

suit on May 15, 1990.

The court rejects Defendants’ argument.

Plaintiff's pendent state claim alleges an

intentional tort: intentional infliction of

emotional distress. Plaintiff alleges that

Defendants committed this tort by terminating

her, and also because "({a]js a direct result of

the said dismissal, Plaintiff became the

subject of frequent and negative comments and

sayings by other employees of Defendant Board."

Plaintiff's complaint, filed May 15, 1990, at

11. The Seventh Circuit has ruled that the

statute of limitations does not begin to run

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for a continuing wrong until the wrong is

finished. Taylor v. Meirick, 712 F.2d 1112,

1118 (7th Cir. 1983). Where a tort involves

repeated injury, the statute of limitations

begins to run on the date of the last injury,

or when the tortious activity ends. Gass v.

Metro-East Sanitary Dist., 186 Ill. App. 3d

1077, , 542 N.E. 2d 1229, 1234, appeal

denied, 128 Ill. 2d 663, 548 N.E.2d 1068

(1989). It is reasonable to infer that

Plaintiff is alleging that the emotional

distress she suffered was a continuing injury,

which did not end on March 20, 1989, and that

the “frequent and negative comments and

sayings" about her extended past that date.

Therefore, the court finds that Plaintiff filed

her pendent state law claim within the one-

year statute of limitations of the Illinois

Tort Immunity Act.

Employment Status

Defendants argue that Plaintiff had no

ae

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property or liberty interest in continued

employment because she was 4a nontenured,

probationary teacher at the time of her

dismissal. Defendants allege that the letter

informing Plaintiff of her dismissal complied

with the requirements of the Illinois School

Code of 1961. The relevant portion of the

School Code reads:

Any teacher who has been employed in any

district as a full-time teacher for a

probationary period of 2 consecutive

school terms shall enter upon contractual

continued service unless given written

notice of dismissal if

reason therefor, by certified mail, return

receipt requested by the employing board

at least 60 days before the end of such

period.

Ill. Rev. Stat. ch. 122, para. 24-11 (1989)

(emphasis added).

According to Plaintiff, Defendant Rey's

letter to her "stated that the reason for the

discharge was, 'the performance' of your duties

has failed to meet the District's

expectations." Plaintiff's complaint at 5.

One Illinois appellate court defined "specific

reason", under the portion of the School Code

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quoted above, as a reason which fairly apprises

the teacher of the alleged deficiency upon

which the dismissal is based, and which is

sufficiently specific for the teacher to be

able to refute the charge. Wade v. Grantie

city Community Unit School Dist. No. 9, 71 Ill.

App. 2d 34, 36, 218 N.E.2d 19, (1966).

Another Illinois appellate court found to be

sufficiently specific a dismissal letter giving

the reason “your inability to adequately

supervise employees under your control."

Howard v. Board of Educ. of Freeport School

Dist. No. 145, 160 Ill. App. 3d 309, » S23

N.E.2d 545, 547 (1987). The court noted that

this notice was sufficient because it

"contained a specific reference to plaintiff's

supervisory duties", and also because the

plaintiff had been advised .of his specific

performance deficiencies on numerous occasions.

Id. at ___, 513 N.E.2d at 547-48. Here,

Plaintiff's notice of dismissal made no

reference to specific performance deficiencies;

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further, she had not been advised of any

specific deficiencies prior to her dismissal.

Therefore, the "reason" given Plaintiff

contains none of the specificity required under

Wade and Howard. The court finds’ that

Defendants did not give Plaintiff sufficiently

specific reasons for her termination, contrary

to the requirements of the School Code.

Therefore, Plaintiff was under’ continued

contractual service as of the last day of her

employment, and she had a protectable property

interest in employment.

Property and Liberty Interests in Employment

As just noted, Plaintiff was no longer a

probationary teacher at the end of her

employment with Defendant Board. Therefore,

Plaintiff possessed a property interest in

continued employment as a teacher by virtue of

the Illinois School Code, Ill. Rev. Stat. ch.

122, para, 24-11 (1989).

To show that she has been denied procedural

due process, Plaintiff must allege that she was

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denied notice and/or an opportunity for a

hearing, the two elements which are the essence

of procedural due process. The court dismisses

the portions of Plaintiff's complaint which

allege that she was deprived of her property

interest in employment without due process of

law. However, the court grants Plaintiff leave

to amend her complaint to allege specifically

how she was denied notice and/or opportunity

for a hearing regarding her dismissal.

Plaintiff also claims that Defendants

deprived her of liberty interest in employment.

The Seventh Circuit has held that only a

dismissal that is accompanied by serious public

charges of misconduct preventing the employee

from obtaining other employment of comparable

responsibility may deprive the employee of his

or her liberty interest in employment. Jungels

v. Pierce, 825 F.2d 1127, 1131 (7th Cir. 1987).

Plaintiff's allegations regarding her liberty

interest in employment do not state that the

reason for her dismissal was made public, nor

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that the reason given was a serious charge of

misconduct. Plaintiff alleges only that

because Defendants dismissed her, she was

unable to secure other employment as a teacher

for a long period of time. Therefore,

Plaintiff has not met the Jungels test for

deprivation of liberty. Accordingly, the court

dismisses the portions of Plaintiff's complaint

that allege deprivation of liberty interest

without due process of law. However, the court

grants Plaintiff leave to amend her complaint

in accordance with the test in Jungels vv.

Pierce, 825 F.2d 1127 (7th Cir. 1987).

Equal Protection

Defendants argue that Plaintiff has failed to

state a Section 1983 claim for denial of equal

protection. A person may state a claim for

denial of equal protection by alleging that the

government has infringed on a fundamental

right. Supreme Court precedent clearly shows

that a person's decisions regarding marriage

and child bearing represent fundamental rights

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which are constitutionally protected from

improper state infringement. Paul v. Davis,

424 U.S. 693, 713 (1976) ("matters relating to

marriage, procreation, contraception, family

relationships, and child rearing and

education" are constitutionally protected);

Eisenstadt v. Baird, 405 U.S. 438, 453-54

(1972) (the right of privacy includes the right

of persons, whether married or singie, to

decide whether to bear children). This court

has noted that without question, an unmarried

woman has a substantive due process right to

conceive and raise her child without

unwarranted state intrusion. Eckmann vy. Board

of Educ. of Hawthorn School Dist. No. 17, 636

F. Supp. 1214, 1218 (N.D. ai B 1986).

Therefore, Plaintiff, an unmarried woman who

chose to bear and raise her child, has

sufficiently pleaded a claim for denial of

equal protection.

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Violations of the Bill of Rights

Plaintiff has pleaded that Defendants have

deprived her of her rights under the first,

fourth, fifth, sixth, ninth, tenth, and

fourteenth amendments. In her answer brief to

Defendants' motion to dismiss, Plaintiff

concedes that the fourth, sixth, and tenth

amendments are inapplicable. Therefore, the

court dismisses the portions of Plaintiff's

complaint which allege a cause of action under

the fourth, sixth, and tenth amendments to the

U.S. Constitution.

Plaintiff's complaint does not identify in

what particular way Defendants violated her

rights under the remaining constitutional

amendments. Rather, Plaintiff states only

generally that Defendants:

have acted under color of State Law to

wrongfully invade WHITMORE'S private life

and otherwise to deprive her of her right

to privacy free from governmental

interference guaranteed by the list, 4th,

5th, 6th, 9th, 10th, and 14th Amendments

to the Constitution of the United States,

and by the Constitution of the State of

Illinois.

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Plaintiff's complaint at 6.

The only portion of the first amendment which

the court can conceive of as applicable is the

right "to petition the Government for a redress

of grievances." U.S. Const. amend. I.

Plaintiff has nowhere alleged that’ she

requested and was denied the opportunity for a

hearing concernirg her dismissal. The first

amendment has been found to confer a right to

privacy in speech or association, but not in

matters of freedom of choice in the matters of

family and marriage. Thus, the court finds

that Plaintiff has failed to state a claim

under the first amendment. Accordingly, the

court dismisses those portions of Plaintiff's

complaint which state a cause of action based

on the first amendment to the U.S.

Constitution. However, as noted on page 7 of

this Order, the court grants Plaintiff leave to

amend her complaint to allege that she

requested and was denied the opportunity for a

hearing regarding her termination.

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Plaintiff has alleged that Defendants

deprived her of a recognized substantive due

process right: the right of an unmarried woman

to bear and raise a child out of wedlock. The

grand jury clause is the only clause in the

fifth amendment which the Supreme Court has

specifically held is not incorporated into the

fourteenth amendment. Therefore, Plaintiff can

properly allege that her substantive due

process right emanates from the fifth and

fourteenth amendments. Further, as described

in the above section on Equal Protection,

Plaintiff has properly pleaded a cause of

action under the equal protection clause of the

fourteenth amendment.

Defendants argue that the ninth amendment is

inapplicable because of her condition as a

pregnant unmarried woman. This is an argument

on the merits of Plaintiff's claim, and not an

explanation of why the ninth amendment is

inapplicable. For the purpose of this motion

to dismiss, the court must assume that

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Plaintiff's allegations are true. If they are

true, then Plaintiff has a cause of action

under the ninth amendment right to familial

privacy, as articulated in Griswold v.

Connecticut, 381 G.8. 479, 484 (1965).

Plaintiff asserts the right to decide the

composition of her own family; in other words,

her decision not to marry, and to raise a

child.

Conspiracy under 42 U.S.C, Section 1985

Evidence of a conspiracy is rarely proven

directly, and is often proven by circumstantial

evidence. Hampton v. Hanrahan, 600 F.2d 600,

621 (7th Cir. 1979), rev'd in part on other

grounds, 446 U.S. 754 (1980). However, to

survive a motion to dismiss, a claim of civil

rights conspiracy nust be sufficiently

specific. Conclusory allegations alone are

insufficient; if they are part of the claim,

they must at least be accompanied by supporting

factual allegations. Sparkman v. McFarlin, 601

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F.2d 261, 265-66 (7th Cir. 1979) (Sprecher, J.,

concurring), citing Hansen v. Ahlgrimm, 520

F.2d 768 (7th Cir. 1975), and other Seventh

Circuit cases so holding.

Plaintiff has alleged that Defendants acted

in concert to deprive Plaintiff of equal

protection through dismissing her. The concept

of intracorporate immunity is inapplicable

because Defendant Board has not shown that it

is a corporation; because the other Defendants

are named in their individual capacities; and

because, even if Defendant Board were a

corporation, the individual employees of

Defendant Board are named as co-conspirators.

Cross v. General Motors Corp., 721 F.2d 1152,

1156 (8th Cir. 1983) cert. denied, 476 U.S.

1170 (1986). The court finds that Plaintiff's

claim of civil rights conspiracy meets the

requirements of the Seventh Circuit, as noted

in Sparkman, and also the notice pleading

requirements of the Federal Rules of Civil

Procedure.

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Title VII Damages

Count IV of Plaintiff's complaint seeks

redress for violation of Title VII of the Civil

Rights Act of 1964. Count IV seeks damages of

$1,000,000.00 plus costs and attorney's fees,

as well as reinstatement, backpay, and

retroactive seniority. Defendants correctly

note that Seventh Circuit precedent bars this

court from awarding punitive or compensatory

damages in Title VII cases. Brooms v. Regal

Tube Co., 881 F.2d 412, 423 (7th Cir. 1989).

Therefore, the remedy which Plaintiff may seek

for Title VII violations is limited to

equitable relief.

The court dismisses the portion of Count IV

of Plaintiff's complaint which seeks damages of

$1,000,000.00. The court presumes that this

sum represents Plaintiff's request for punitive

or compensatory damages. The court grants

Plaintiff leave to amend her complaint to

demand the additional equitable relief of

backpay. The court allows to stand as pleaded

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the portion of Count IV of Plaintiff's

complaint which requests an injunction against

Defendants. A prevailing party in a Title VII

action may, in the court's discretion, be

awarded attorney's fees and costs. Brooms, 881

F.2d at 425. Thus, the court allows to stand

as pleaded the portion of count IV of

Plaintiff's complaint which requests attorney's

fees and costs.

, Plicti = ;, 1 pj

Defendants argue that, as a matter of law,

Plaintiff has not stated a claim for

intentional infliction of emotional distress,

because 1) the alleged conduct is not extreme

and outrageous, an essential element of the

tort; and 2) the Illinois Workers'

Compensation Act is the exclusive remedy for

the tort. The court rejects both of these

arguments.

Illinois law does recognize a cause of action

for intentional infliction of emotional

A - 33

distress. To state a claim for this tort, the

plaintiff must plead and prove that the

defendant intentionally engaged in extreme and

outrageous conduct which caused the plaintiff

to suffer sever emotional distress. Clay v.

Quartet Mfg. Co., 644 F. Supp. 56, 61 (N.D.

Ill. 1986), citing Public Finance Corp. v.

Davis, 66 Ill. 2d 85, 360 N.E.2d 765 (1976).

In Illinois, the extreme and outrageous nature

of the conduct is an essential element of the

tort. Baily v. Unocal Corp., 700 F. Supp. 396,

399 (N.D. Ill, 1988). The conduct must be so

outrageous in character and so extreme in

degree as to go beyond all possible bounds of

decency. Public Finance, 66 Ill. 2d at 88, 360

N.E.2a at 767. The relationship of the parties

is an important factor in determining whether

certain conduct is extreme and outrageous.

Bailey, 700 F.Supp. at 399. If the defendant

has abused or exploited a relationship, a lower

threshold of liability applies. Id., citing

Bahr v. Ellis & Robertson, Inc., 1985 WL 3074

A - 34

(N.D. Ill. 1985).

As noted earlier in this Order, an unmarried

woman's decision to bear and raise her child is

a fundamental right. If Defendants did, as

Plaintiff alleges, terminate her because of her

status as an unmarried pregnant woman, then

that conduct might be found to be outrageous

and extreme. Further, the nature of and

circumstances surrounding the "frequent

negative comments and sayings" of other

employees of Defendant Board might rise to the

level of extreme and outrageous conduct. In

any event, Plaintiff's allegations of

intentional infliction of emotional distress

are sufficiently pleaded to meet the liberal

standard of notice pleading of the Federal

Rules of Civil Procedure. Fed.R.Civ.P.8(a).

Defendants argue that the exclusivity

provision of the Illinois Workers' Compensation

Act, Ill. Rev. Stat. ch. 48, para. 138 - 138.30

(1989), bars Plaintiff's claim for intentional

infliction of emotional distress. As support

A =- 35

for this position Defendants cite Brooms v.

Regal Tube Co., 881 F.2d 412, 426 (7th Cir.

1989). Because this is an issue of

interpretation of a state statute, this court

must follow the state's highest court's ruling

on the issue. Less than three months ago, the

Illinois Supreme Court spoke to this very

question in Meerbrey v. Marshall Field & Co.,

No. 69652 (Ill. S. Ct. Nov. 30, 1990) (1990 WL

186385). The Meerbrey court held that "[tjhe

exclusivity provisions [of the Illinois

Workers' Compensation Act) will not bar a

common law cause of action against an employer,

however, for injuries which the employer or its

alter ego intentionally inflicts upon an

employee or which were commanded or expressly

authorized by the employer." Id., slip op. at

7 (citing A. Larson, Law of Workmen's

Compensation Section 68.21 (1988)).

In Count V of her complaint, Plaintiff has

alleged that two intentional acts of Defendants

caused her to suffer emotional distress: 1)

A=- 36

Defendants terminated her employment; and 2)

Defendants allowed commentary and dialogue

about Plaintiff to continue. The first act is

necessarily not “accidental,” and the second

act might be shown to be not “accidental” on

Defendants' part. Plaintiff may seek to prove

that Defendants "commanded or expressly

authorized" the negative comments or sayings

made about Plaintiff by other of Defendants’

employees. Such a showing would render

Defendants' actions intentional. Thus, the two

alleged acts are not conclusively within the

exclusive purview of the [Illinois Workers'

Compensation Act. The court allows Count V of

Plaintiff's complaint to stand as pleaded.

sualified I r

Defendants argue that those among them named

in their individual capacities are entitled to

qualified immunity. The court rejects this

argument. To establish personal, or

individual, liability in a Section 1983

A- 37

action, the plaintiff need show only that the

officials, acting under color of state law,

caused the deprivation of a federal right.

K uc Vv. , 473 U.S. 159, 166 (1985).

If, as Plaintiff alleges, the individually

named Defendants dismissed her based on her

status as an unmarried pregnant woman, then

they violated Plaintiff's substantive due

process rights, and they would therefore have

individual liability under Section 1983.

E Vv.

Dist. No. 17, 636 F. Supp. 1214, 1225 (N.D.

Ill. 1986). Plaintiff has alleged that all

Defendants violated a clearly established

constitutional right: the right of an

unmarried woman to bear and raise her child.

Such an allegation means that the defense of

qualified immunity is not available to the

individually named defendants. Id. at 1227.

Therefore, the court refuses to dismiss the

individually named defendants from this action.

Punitive Damages

Punitive damages may be awarded against the

individually named defendants if they showed

reckless or callous disregard of, or

indifference to, Plaintiff's federally

protected right to bear and raise her child.

Smith v. Wade, 461 U.S. 30, 56 (1983).

Therefore, the court allows to stand as pleaded

Plaintiff's claim for punitive damages against

the individually named defendants.

Governmental entities, including school

boards, are immune from punitive damages for

Section 1983 liability. City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

Further, the school board is a “local public

entity" which, according to the Illinois Tort

Immunity Act, is immune from punitive damages.

Ill.Rev.Stat. ch. 85, para. 2-102 (1989).

Therefore, the court dismisses all portions of

Plaintiff's complaint which demand punitive

damages against Defendant Board of Education.

A= 39

Attorneys’ Fees Under 42 U.S.C. Section 1988

As this Order has stated, Plaintiff has

stated a cause of action against Defendants

under 42 U.S.C. Sections 1983 and 1985 (1988).

The prevailing party in a suit under either of

these two sections may seek an award of

attorneys' fees and costs. 42 U.S.C. Section

1988. Therefore, because the court is not

dismissing Plaintiff's claims under Sections

1983 and 1985, it allows Plaintiff's claim for

attorneys' fees and costs, under Section 1988,

to stand as pleaded.

Conclusion

For the reasons set forth in this Order, the

court grants in part and denies in part

Defendants' motion to dismiss. The court

dismisses the following portions of Plaintiff's

complaint: allegations that Plaintiff was

deprived of her liberty and property interests

in employment without due process of law;

allegations that Defendants violated

A - 40

Plaintiff's first amendment rights; the request

for damages of $1,000,000.00; and the request

for punitive damages against Defendant Board of

Education. Further, the court grants Plaintiff

leave to file an amended complaint within

thirty days, in accordance with this Order,

regarding the following allegations:

allegations that Plaintiff was deprived of her

liberty and property interests in employment

without due process of law; allegations that

Defendants violated Plaintiff's first amendment

rights; and the court grants Plaintiff leave to

file an amended complaint to add a demand for

the equitable relief of backpay. The court

notes that the amended complaint should include

all of Plaintiff's claims before the court.

The amended complaint should incorporate the

viable portions oof Plaintiff's existing

complaint with the amended portions which this

Order describes.

ENTER:

STANLEY J. ROSZKOWSKI, JUDGE

UNITED STATES DISTRICT COURT

DATED: February 12, 1991

A - 42

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

LINDA WHITMORE,

Plaintiff,

Vv. No. 90-C-20143

BOARD OF EDUCATION OF

DEKALB COMMUNITY

SCHOOL DISTRICT

NO. 428, JOHN REY,

President of the Board

of Education School

District No. 428,

Individually, BERNARD

LOONEY, Principal,

Individually, DR. JACK

DEERE, District

Superintendent,

Individually, KEN

KENNEDY, Assistant

Principal, Individuall

and ROBERT WILLIAMS,

Assistant

Superintendent,

Individually,

, Dated:May 29, 1991

TE OR eT a ee a Ne

Defendants.

AMENDED ORDER

Before the court is Defendants' motion to

dismiss Plaintiff's complaint. For the reasons

set forth in this Order, the court grants in

part and denies in part Defendants' motion.

Further, the court grants Plaintiff leave to

ae

A - 43

file an amended complaint within thirty days in

accordance with this Order.

BACKGROUND

On May 15, 1990, Plaintiff, Linda Whitmore,

filed a complaint in this court against the

following Defendants: Board of Education of

DeKalb Community School District No. 428

(hereinafter "Board"); and, in their individual

capacities, Board President John Rey, Principal

Bernard Looney, District Superintendent Dr. Jack

Deere, Assistant Principal Ken Kennedy, and

Assistant Superintendent Robert Willian.

Plaintiff alleges a cause of action against

Defendants under 42 U.S.C. Sections 1983, 1985,

1988 (1988), under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. Sections 2000e - 2000h

(1988), and also a estate law claim of

intentional infliction of emotional distress.

The following information is taken from

Plaintiff's complaint. Defendant Board employed

Plaintiff as a full-time high school teacher

form the fall 1987 semester until 1989. In July

A - 44

1988, Plaintiff was raped and became pregnant

as a result of the rape. In November 1988

Plaintiff informed Principal Looney of the rape

and pregnancy. Assistant Principal Kennedy and

Principal Looney evaluated Plaintiff's teaching

performance on three occasions: November 23,

1988; January 6, 1989; and March 2, 1989. In

the first two evaluations, Plaintiff was rated

in the excellent to superior range, and in the

third evaluation she was rated in the

satisfactory to excellent range.

On or about March 19, 1989, ti« Board adopted

and passed a resolution dismissing Plaintiff

from her employment. On March 29, 1989,

Plaintiff was notified of her termination

through a letter from Board President Rey. This

letter stated that Plaintiff was being

terminated because the performance of her duties

had failed to meet the District's expectations.

On that date, Plaintiff was nine months pregnant

and unmarried. Plaintiff was able to secure

other employment as a teacher after repeated

A - 45

efforts over a long period of time.

DISCUSSION

In analyzing a motion to dismiss, this court

will not dismiss a complaint unless it is clear

there are no set of facts that Plaintiffs could

prove consistent with the pleadings that would

entitle them to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984); Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Murphy v.

Lane, 833 F.2d 106, 107 (7th Cir. 1087); Vaden

v. Village of Maywood, 809 F.2d 361, 363 (7th

Cir.), cert. denied, 482 U.S. 908 (1987). The

court will accept all well-pleaded factual

allegations in the complaint as true. Vaden,

809 F.2d at 363; Doe v. St. Joseph's Hosp. of

Fort Wayne, 788 F.2d 411, 414 (7th Cir. 1986).

In addition, this court will view the

allegations in a light most favorable to the

non-moving party. Car Carriers, Inc. v. Ford

Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984),

cert. denied, 470 U.S. 1054 (1985); Wolfolk v.

Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).

A - 46

Stat ; Limitati

Defendants filed their motion to dismiss on

July 5, 1990. Defendants advance several

arguments in support of their motion, the first

of which is that Plaintiff's complaint is barred

by the statute of limitations. Defendants argue

that the one-year statute of limitations found

in the Illinois Tort Immunity Act applies.

Ill.Rev. Stat. ch. 85, para. 8-101 (1989). The

Supreme Court's ruling in Owens v. Okure, 109 S.

Ct. 153 (1989), is the final word on the statute

of limitations for Section 1983 actions. The

Owens court stated:

We accordingly hold that where state law

provides multiple statutes of limitations

for personal injury actions, courts

considering Section 1983 claims should

borrow the general or residual statute for

personal injury actions.

Id. at 582 , 109 S. Ct. at 582.

Therefore, Section 1983 actions brought in

A - 47

Illinois are subject to the one general statute

of limitations for personal injury actions.

The Seventh Circuit has ruled that Illinois's

two-year statute of limitations for personal

injury applies to Section 1983 actions brought

in Illinois. Kalimara v. Illinois Dep't of

Corrections, 879 F.2d 276, 277 (7th Cir. 1989).

The Illinois Code of Civil Procedure provides

that personal injury actions shall be brought

within two years after the cause of action

accrued. Ill. Rev. Stat. ch. 110, para. 13-

202 (1989). The court finds that Plaintiff's

claims under 42 U.S.C. Sections 1985 and 1988,

because they relate to and depend upon,

respectively, Plaintiff's Section 1983 claims,

are also subject to the two-year statute of

limitations.

Defendant does not specifically argue that

Plaintiff's Title VII claim is also barred by

the statute of limitations. Therefore, the

court need not address the timeliness of

A - 48

? Defendant does

Plaintiff's Title VII clain.

contend that Plaintiff's pendent state claim

for intentional infliction of emotional

distress was not timely filed. Defendant

implies that the statute of limitations began

to run for this claim on March 20, 1989, the

date Plaintiff says she received notice of

termination from Defendants. Therefore,

Defendants argue, Plaintiff missed the one-

year statute of limitations because she filed

suit on May 15, 1990.

The court rejects Defendants' argument.

Plaintiff's pendent state claim alleges an

intentional cort: intentional infliction of

emotional distress. Plaintiff alleges that

Defendants committed this tort by terminating

her, and also because "[a)s a direct result of

the said dismissal, Plaintiff became the

3mn Illinois, persons complaining of Title

VII violations must file discrimination charges

with the Illinois Department of Human Relations

within 180 days of the discriminatory act. Haag

v. Board of Education, 655 F. Supp. 1267, 1270

(N.D. Ill. 1987).

A - 49

subject of frequent and negative comments and

sayings by other employees of Defendant Board."

Plaintiff's complaint, filed May 15, 1990, at

11. The Seventh Circuit has ruled that the

statute of limitations does not begin to run

for a continuing wrong until the wrong is

finished. Taylor v. Meirick, 712 F.2d 1112,

1118 (7th Cir. 1983). Where a tort involves

repeated injury, the statute of limitations

begins to run on the date of the last injury,

or when the tortious activity ends. Gass v.

Metro-East Sanitary Dist., 186 Ill. App. 3d

1077, | , 542 N.E. 2d 1229, 1234, appeal

denied, 128 Ill. 2d 663, 548 N.E.2d 1068

(1989). It is reasonable to infer that

Plaintiff is alleging that the emotional

distress she suffered was a continuing injury,

which did not end on March 20, 1989, and that

the “frequent and negative comments’ and

sayings" about her extended past that date.

Therefore, the court finds that Plaintiff filed

her pendent state law claim within the one-

A - 50

year statute of limitations of the Illinois

Tort Immunity Act.

Employment Status

Defendants argue that Plaintiff had no

property or liberty interest in continued

employment because she was a nontenured,

probationary teacher at the time of her

dismissal. Defendants allege that the letter

informing Plaintiff of her dismissal complied

with the requirements of the Illinois School

Code of 1961. The relevant portion of the

School Code reads:

Any teacher who has been employed in any

district as a full-time teacher for a

probationary period of 2 _ consecutive

school terms shall enter upon contractual

continued service unless given written

notice of dismissal

stating the specific

reason therefor, by certified mail, return

receipt requested by the employing board

at least 60 days before the end of such

period.

Ill. Rev. Stat. ch. 122, para. 24-11 (1989)

(emphasis added).

According to Plaintiff, Defendant Rey's

letter to her "stated that the reason for the

A-=- 51

discharge was, 'the performance' of your duties

has failed to meet the District's

expectations." Plaintiff's complaint at 5.

One Illinois appellate court defined "specific

reason", under the portion of the School Code

quoted above, as a reason which fairly apprises

the teacher of the alleged deficiency upon

which the dismissal is based, and which is

sufficiently specific for the teacher to be

able to refute the charge. Wade v. Grantie

City Community Unit Schoo] Dist. No. 9, 71 Ill.

App. 2d 34, 36, 218 N.E.2d 19, (1966).

Another Illinois appellate court found to be

sufficiently specific a dismissal letter giving

the reason "your inability to adequately

supervise employees under your’ control."

Howard v. Board of Educ. of Freeport School

Dist. No. 145, 160 Ill. App. 3d 309, » Sad

N.E.2d 545, 547 (1987). The court noted that

this notice was sufficient because it

"contained a specific reference to plaintiff's

supervisory duties", and also because the

A = 32

plaintiff had been advised of his specific

performance deficiencies on numerous occasions.

Id. at ____—, 513 N.E.2d at 547-48. Here,

Plaintiff's notice of dismissal made _ no

reference to specific performance deficiencies;

further, she had not been advised of any

specific deficiencies prior to her dismissal.

Therefore, the "reason" given Plaintiff contains

none of the specificity required under Wade and

Howard. The court finds that Plaintiff has

sufficiently alleged that Defendants did not

give Plaintiff sufficiently specific reasons for

her termination, contrary to the requirements of

the School Code. Plaintiff has sufficiently

alleged 1) that she was under’ continued

contractual service as of the last day of her

employment, and 2) that she had a protectable

property interest in employment.

Pro a s

As just noted, Plaintiff has alleged that she

was no longer a probationary teacher at the end

A= 53

was no longer a probationary teacher at the end

of her employment with Defendant Board.

Therefore, Plaintiff has alleged that she

possessed a property interest in continued

employment as a teacher by virtue of the

Illinois School Code, Ill. Rev. Stat. ch. 122,

para, 24-11 (1989).

To show that she has been denied procedural

due process, Plaintiff must allege that she was

denied notice and/or an opportunity for a

hearing, the two elements which are the essence

of procedural due process. The court dismisses

the portions of Plaintiff's complaint which

allege that she was deprived of her property

interest in employment without due process of

law. However, the court grants Plaintiff leave

to amend her complaint to allege specifically

how she was denied notice and/or opportunity

for a hearing regarding her dismissal.

Plaintiff also claims that Defendants

deprived her of liberty interest in employment.

The Seventh Circuit has held that only a

A= $4

dismissal that is accompanied by serious public

charges of misconduct preventing the employee

from obtaining other employment of comparable

responsibility may deprive the employee of his

or her liberty interest in employment. Jungels

v. Pierce, 825 F.2d 1127, 1131 (7th Cir. 1987).

Plaintiff's allegations regarding her liberty

interest in employment do not state that the

reason for her dismissal was made public, nor

that the reason given was a serious charge of

misconduct. Plaintiff alleges only that

because Defendants dismissed her, she was

unable to secure other employment as a teacher

for a long period of time. Therefore,

Plaintiff has not met the Jungels test for

deprivation of liberty. Accordingly, the court

dismisses the portions of Plaintiff's complaint

that allege deprivation of liberty interest

without due process of law. However, the court

grants Plaintiff leave to amend her complaint

in accordance with the test in Jungels v.

Pierce, 825 F.2d 1127 (7th Cir. 1987).

a = &©

Equal Protection

Defendants argue that Plaintiff has failed to

state a Section 1983 claim for denial of equal

protection. A person may state a claim for

denial of equal protection by alleging that the

government has infringed on a fundamental

right. Supreme Court precedent Clearly shows

that a person's decisions regarding marriage

and child bearing represent fundamental rights

which are constitutionally protected from

improper state infringement. Paul _v. Davis,

424 U.S. 645, 713 (1976) ("matters relating to

marriage, procreation, contraception, family

relationships, and child rearing and education"

are constitutionally protected) ; Eisenstadt v.

Baird, 405 U.S. 438, 453-54 (1972) (the right

of privacy includes the right of persons,

whether married or single, to decide whether to

bear children). This court has noted that

without question, an unmarried woman has a

substantive due process right to conceive and

ica

A - 56

raise her child without unwarranted state

intrusion. Eckmann v. Board of Educ. of

Hawthorn School Dist. No. 17, 636 F. Supp.

1214, 1218 (N.D. Ill. 1986). Therefore,

Plaintiff, an unmarried woman who chose to bear

and raise her child, has sufficiently pleaded a

Claim for denial of equal protection.

Violations of the Bill of Rights

Plaintiff has pleaded that Defendants have

| deprived her of her rights under the first,

fourth, fifth, sixth, ninth, tenth, and

fourteenth amendments. In her answer brief to

Defendants' motion to dismiss, Plaintiff

concedes that the fourth, sixth, and tenth

amendments are inapplicable. Therefore, the

court dismisses the portions of Plaintiff's

complaint which allege a cause of action under

the fourth, sixth, and tenth amendments to the

U.S. Constitution.

Plaintiff's complaint does not identify in

what particular way Defendants violated her

A - 87

rights under the remaining constitutional

amendments. Rather, Plaintiff states only

generally that Defendants:

have acted under color of State Law to

wrongfully invade WHITMORE'S private life

and otherwise to deprive her of her right

to privacy free from governmental

interference guaranteed by the ist, 4th,

Sth, 6th, 9th, 10th, and 14th Amendments

to the Constitution of the United States,

and by the Constitution of the State of

Illinois.

Plaintiff's complaint at 6.

The only portion of the first amendment which

the court can conceive of as applicable is the

right "to petition the Government for a redress

of grievances." U.S. Const. amend. tI.

Plaintiff has nowhere alleged that she

requested and was denied the opportunity for a

hearing concerning her dismissal. The first

amendment has been found to confer a right to

privacy in speech or association, but not in

matters of freedom of choice in the matters of

family and marriage. Thus, the court finds

that Plaintiff has failed to state a claim

under the first amendment. Accordingly, the

el ied

cee!

A- 58

court dismisses those portions of Plaintiff's

complaint which state a cause of action based

on the first amendment to tthe U.s.

Constitution. However, as noted on page 7 of

this Order, the court grants Plaintiff leave to

amend her complaint to allege that she

requested and was denied the opportunity for a

hearing regarding her termination.

Plaintiff has alleged that Defendants

deprived her of a recognized substantive due

process right: the right of an unmarried woman

to bear and raise a child out of wedlock. The

grand jury clause is the only clause in the

fifth amendment which the Supreme Court has

specifically held is not incorporated into the

fourteenth amendment. Therefore, Plaintiff can

properly ailege that her substantive due

process right emanates from the fifth and

fourteenth amendments. Further, as described

in the above section on Equal Protection,

Plaintiff has properly pleaded a cause of

action under the equal protection clause of the

A - 59

fourteenth amendment.

Defendants argue that the ninth amendment is

inapplicable because they dismissed Plaintiff

on the basis of her teaching performance, and

not because of her condition as a pregnant

unmarried woman. This is an argument on the

merits of Plaintiff's Claim, and not an

explanation of why the ninth amendment is

inapplicable. For the purpose of this motion

to dismiss, the court must assume that

Plaintiff's allegations are true. If they are

true, then Plaintiff has a cause of action

under the ninth amendment right to familial

privacy, as articulated in Griswold v.

Connecticut, 381 U.S. 479, 484 (1965).

Plaintiff asserts the right to decide the

composition of her own family; in other words,

her decision not to marry, and to raise a

child.

Conspiracy under 42 U.S.C. Section 1985

Evidence of a conspiracy is rarely proven

A - 60

directly, and is often proven by circumstantial

evidence. Hampton v. Hanrahan, 600 F.2d 600,

621 (7th Cir. 1979), rev'd in part on other

grounds, 446 U.S. 754 (1980). However, to

survive a motion to dismiss, a claim of civil

rights conspiracy must. be sufficiently

specific. Conclusory allegations alone are

insufficient; if they are part of the Clain,

they must at least be accompanied by supporting

factual allegations. Sparkman v. McFarlin, 601

F.2d 261, 265-66 (7th Cir. 1979) (Sprecher, J.,

cencurring), citing Hansen v. Ahlgrimm, 520

F.2d 768 (7th Cir. 1975), and other Seventh

Circuit cases so holding.

Plaintiff has alleged that Defendants acted

in concert to deprive Plaintiff of equal

protection through dismissing her. The concept

of intracorporate immunity is inapplicable

because Defendant Board has not shown that it

is a corporation; because the other Defendants

are named in their individual capacities; and

because, even if Defendant Board were a

A - 61

corporation, the individual employees of

Defendant Board are named as co-conspirators.

Cross _v. General Motors Corp., 721 F.2d 1152,

1156 (8th Cir. 1983) cert. denied, 476 U.S.

1170 (1986). The court finds that Plaintiff's

Claim of civil rights conspiracy meets the

requirements of the Seventh Circuit, as noted

in Sparkman, and also the notice pleading

requirements of the Federal Rules of Civil

Procedure.

Title VII Damages

Count IV of Plaintiff's complaint seeks

redress for violation of Title VII of the Civil

Rights Act of 1964. Count Iv seeks damages of

$1,000,000.00 plus costs and attorney's fees,

as well as reinstatement, backpay, and

retroactive seniority. Defendants correctly

note that Seventh Circuit precedent bars this

court from awarding punitive or compensatory

damages in Title VII cases. Brooms v. Regal

Tube Co., 881 F.2d 412, 423 (7th Cir. 1989).

A = 632

Therefore, the remedy which Plaintiff may seek

for Title VII violations is limited to

equitable relief.

The court dismisses the portion of Count IV

of Plaintiff's complaint which seeks damages of

$1,000,000.00. The court presumes that this

sum represents Plaintiff's request for punitive

or compensatory damages. The court grants

Plaintiff leave to amend her complaint to

demand the additional equitable relief of

backpay. The court allows to stand as pleaded

the portion of Count IV of Plaintiff's

complaint which requests an injunction against

Defendants. A prevailing party in a Title VII

action may, in the court's discretion, be

awarded attorney's fees and costs. Brooms, 881

F.2d at 425. Thus, the court allows to stand

as pleaded the portion of count Iv of

Plaintiff's complaint which requests attorney's

fees and costs.

intentional Infliction of Emotional Distress

Defendants argue that, as a matter of law,

q

}

4

?

|

A - 63

Plaintiff has not stated a claim for

intentional infliction of emotional distress,

because 1) the alleged conduct is not extreme

and outrageous, an essential element of the

tort; and 2) the Illinois Workers’

Compensation Act is the exclusive remedy for

the tort. The court rejects both of these

arguments.

Illinois law does recognize a cause of action

for intentional infliction of emotional

distress. To state a claim for this tort, the

plaintiff must plead and prove that the

defendant intentionally engaged in extreme and

outrageous conduct which caused the plaintiff

to suffer sever emotional distress. Clay v.

Quartet Mfg. Co., 644 F. Supp. 56, 61 (N.D.

Ill. 1986), citing Public Finance Corp. y.

Davis, 66 Ill. 2d 85, 360 N.E.2d 765 (1976).

In Illinois, the extreme and outrageous nature

of the conduct is an essential element of the

tort. Baily v. Unocal Corp., 700 F. Supp. 396,

399 (N.D. Ill, 1988). The conduct must be sO

A- 64

outrageous in character and so extreme in

degree as to go beyond all possible bounds of

decency. Public Finance, 66 Ill. 2d at 88, 360

N.E.2d at 767. The relationship of the parties

is an important factor in determining whether

certain conduct is extreme and outrageous.

Bailey, 700 F.Supp. at 399. If the defendant

has abused cr exploited a relationship, a lower

threshold of liability applies. Iqd.,, citing

Bahr v. Ellis & Robertson, Inc., 1985 WL 3074

(N.D. Ill. 1985).

As noted earlier in this Order, an unmarried

woman's decision to bear and raise her child is

a fundamental right. If Defendants did, as

Plaintiff alleges, terminate her because of her

status as an unmarried pregnant woman, then

that conduct might be found to be outrageous

and extreme. Further, the nature of and

circumstances surrounding the "frequent

negative comments’ and sayings" of other

employees of Defendant Board might rise to the

level of extreme and outrageous conduct. in

i ein

A - 65

any event, Plaintiff's allegations of

intentional infliction of emotional distress

are sufficiently pleaded to meet the liberal

standard of notice pleading of the Federal

Rules of Civil Procedure. Fed.R.Civ.P.8(a).

Defendants argue that the exclusivity

provision of the Illinois Workers' Compensation

Act, Ill. Rev. Stat. ch. 48, para. 138 - 138.30

(1989), bars Plaintiff's claim for intentional

infliction of emotional distress. As support

for this position Defendants cite Brooms vy.

Regal Tube Co., 881 F.2d 412, 426 (7th Cir.

1989). Because this is an issue of

interpretation of a state statute, this court

must follow the state's highest court's ruling

on the issue. Less than three months ago, the

Illinois Supreme Court spoke to this very

question in Meerbrey v. Marshall] Field & Co.,

No. 69652 (Ill. S. Ct. Nov. 30, 1990) (1990 WL

186385). The Meerbrey court held that "(t)jhe

exclusivity provisions {of the Illinois

Workers' Compensation Act] will not bar a

A - 66

common law cause of action against an employer,

however, for injuries which the employer or its

alter ego intentionally inflicts upon an

employee or which were commanded or expressly

authorized by the employer." Jd,, slip op. at

7 (citing A. Larson, Law of Workmen's

Compensation Section 68.21 (1988)).

In Count V of her complaint, Plaintiff has

alleged that two intentional acts of Defendants

caused her to suffer emotional distress: 1)

Defendants terminated her employment; and 2)

Defendants allowed commentary and dialogue

about Plaintiff to continue. The first act is

necessarily not "accidental," and the second

act might be shown to be not "accidental" on

Defendants' part. Plaintiff may seek to prove

that Defendants “commanded oor expressly

authorized" the negative comments or sayings

made about Plaintiff by other of Defendants’

employees. Such a showing would render

Defendants' actions intentional. Thus, the two

alleged acts are not conclusively within the

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exclusive purview of the Illinois Workers’

Compensation Act. The court allows Count V of

Plaintiff's complaint to stand as pleaded.

Qualified Immunity

Defendants argue that those among them named

in their individual capacities are entitled to

qualified immunity. The court rejects this

argument. To establish personal, or

individual, liability in a Section 1983

action, the plaintiff need show only that the

officials, acting under color of state law,

caused the deprivation of a federal right.

Kentucky v. Graham, 473 U.S. 159, 166 (1985).

If, as Plaintiff alleges, the individually

named Defendants dismissed her based on her

status as an unmarried pregnant woman, then

they violated Plaintiff's substantive due

process rights, and they would therefore have

individual liability under Section 1983.

Eckmann v. Board of Educ. of Hawthorn School

Dist. No. 17, 636 F. Supp. 1214, 1225 (N.D.

+ oe peel ath eid

A - 68

Ill. 1986). Plaintiff has alleged that all

Defendants violated a clearly established

constitutional right: the right of an

unmarried woman to bear and raise her child.

Such an allegation means that the defense of

qualified immunity is not available to the

individually named defendants. Id. at 1227.

Therefore, the court refuses to dismiss the

individually named defendants from this action.

Punitive Damages

Punitive damages may be awarded against the

individually named defendants if they showed

reckless or callous disregard of, or

indifference to, Plaintiff's federally

protected right to bear and raise her child.

Smith v. Wade, 461 U.S. 30, 56 (1983).

Therefore, the court allows to stand as pleaded

Plaintiff's claim for punitive damages against

the individually named defendants.

Governmental’ entities, including’ school

boards, are immune from punitive damages for

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Section 1983 liability. City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

Further, the school board is a "local public

entity" which, according to the Illinois Tort

Immunity Act, is immune from punitive damages.

I1l.Rev.Stat. ch. 85, para. 2-102 (1989).

Therefore, the court dismisses all portions of

Plaintiff's complaint which demand punitive

damages against Defendant Board of Education.

Attorneys’ Fees Under 42 U.S.C. Section 1988

As this Order has stated, Plaintiff has

stated a cause of action against Defendants

under 42 U.S.C. Sections 1983 and 1985 (1988).

The prevailing party in a suit under either of

these two sections may seek an award of

attorneys' fees and costs. 42 U.S.C. Section

1988. Therefore, because the court is not

dismissing Plaintiff's claims under Sections

1983 and 1985, it allows Plaintiff's claim for

attorneys' fees and costs, under Section 1988,

to stand as pleaded.

a = 76

For the reasons set forth in this Order, the

court grants in part and denies in part

Defendants' motion to dismiss. The court

dismisses the following portions of Plaintiff's

complaint: allegations that Plaintiff was

deprived of her liberty and property interests

in employment without due process of law;

allegations that Defendants violated

Plaintiff's first amendment rights; the request

for damages of $1,000,000.00; and the request

for punitive damages against Defendant Board of

Education. Further, the court grants Plaintiff

leave to file an amended complaint within

thirty days, in accordance with this Order,

regarding the following allegations:

allegations that Plaintiff was deprived of her

liberty and property interests in employment

without due process of law; allegations that

Defendants violated Plaintiff's first amendment

rights; and the court grants Plaintiff leave to

A- 71

file an amended complaint to add a demand for

the equitable relief of backpay. The court

notes that the amended complaint should include

all of Plaintiff's claims before the court.

The amended complaint should incorporate the

viable portions of Plaintiff's existing

complaint with the amended portions which this

Order describes.

ENTER:

STANLEY J. ROSZKOWSKI, JUDGE

UNITED STATES DISTRICT COURT

DATED: May 20, 1991

~ ee i Ee ei

A- 72

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

LINDA WHITMORE,

Plaintiff,

Vv. No. 90-C-20143

BOARD OF EDUCATION OF

DEKALB COMMUNITY

SCHOOL DISTRICT

NO. 428, JOHN REY,

President of the Board

of Education School

District No. 428,

Individually, BERNARD

LOONEY, Principal,

Individually, DR. JACK

DEERE, District

Superintendent,

Individually, KEN

KENNEDY, Assistant

Principal, Individuall

and ROBERT WILLIAMS,

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee

, Dated:March 18, 1992

Te

Assistant

Superintendent,

Individually,

Defendants.

ORDER

Introduction

Linda Whitmore, plaintiff, filed a second

amended complaint against defendants: the Board

of Education of DeKalb Community School District

No. 428; John Rey, president of the Board of

Education; Bernard Looney, principal; Jack

A=- 73

Deere, district superintendent; Ken Kennedy,

assistant principal; and Robert Williams,

assistant superintendent. The second amended

complaint contains five counts. All five counts

arise from defendant's dismissal of plaintiff as

a high school teacher. Count I is brought

pursuant to 42 U.S.C. §1983 alleging defendants

violated plaintiff's constitutional rights of

equal protection nd both substantive and

procedural due process. Count I seeks punitive

damages based on the §1983 claim. Count III

alleges a violation of 42 U.S.C. §1985. Count

IV claims that defendants violated 42 U.S.C.

§2000e (Title VII) by discharging plaintiff

based on her sex. Count V alleges intentional

infliction of emotional distress. Defendants

filed a motion for summary judgment, and

plaintiff filed a cross-motion for partial

summary judgment.

Facts

Plaintiff is a female teacher who was hired

to teach at DeKalb High School beginning the

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fall semester of 1987. Plaintiff received two

successive annual contracts which ran from the

fall of 1987 to the end of school term in June

of 1989. When plaintiff accepted employment,

she was aware that a two-year probationary

period existed.

Between November 1987 and March 1989,

plaintiff was evaluated six times. Ken Kennedy,

the assistant principal, evaluated plaintiff

four of the six times, and Bernard Looney, the

principal, evaluated plaintiff on the other two

occasions. Plaintiff received a copy of an

evaluation form and later attended a meeting

which explained the evaluation process. The

ratings on the form were the following: 4

(superior), 3 (excellent), 2 (satisfactory) and

1 (unsatisfactory). According to Jack Deere,

the district superintendent, the process was

inflated so that a satisfactory rating actually’

meant that a teacher was not doing well. Each

of plaintiff's six evaluations consisted of a

pre-evaluation conference, a classroom

A=- 75

observation and a post-observation conference.

During several of the post-observation

conferences, plaintiff was informed of a

perceived lack of enthusiasm. After the second

evaluation, a comment under the heading

"summative rating" stated, "Due to improvement

in delivery and planning I feel that a rating

in the high satisfactory range is appropriate at

this time, with the continued improvement a

future excellent rating is a definite

possibility." (Emphasis in original.) After

plaintiff's third evaluation, she was rehired

for the next academic year. After the fifth

evaluation, the summative rating comment stated,

"Linda continues to strive for improvement.

Based upon this class observation, an excellent

rating would be appropriate." Following the

sixth and final evaluation, the summative rating

comment stated, "Satisfactory to Excellent

Rating."

On March 23, 1989, at the post-observation

conference of the sixth evaluation, Looney told

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plaintiff that he would not recommend that she

be retained and given tenure because she did not

meet the Board's expectations. Plaintiff

received a letter dated March 20, 1989,

notifying her that she was dismissed from her

duties as a school teacher effective the last

day of the school tern. The letter stated,

"This action is being taken because the

performance of your duties has failed to meet

the Distric*.'s expectations." In addition to

plaintiff, another teacher, Sandy Larkin, was

not recommend for tenure, and Larkin's final

evaluation was better than plaintiff's.

In June 1988, plaintiff became pregnant as a

result of a rape. In November 1988, plaintiff

informed Looney of the rape and pregnancy.

After receiving notice of her termination,

plaintiff and her mother met with Deere. At the

meeting, Deere referred to plaintiff's pregnancy

and said he had empathy and sympathy for

plaintiff's mother. Plaintiff had personal

knowledge of only one negative comment regarding

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her pregnancy and that comment was made by Ms.

Helen Farley who is not a defendant in this

case. The statement plaintiff alleges that

Helen Farley made was, "That there was something

wrong with that special education staff and all

of its promiscuous teachers, they got one

unmarried and pregnant and another running

around." Plaintiff never head any defendant

make a negative comment about her pregnancy, and

no defendant suggested that she seek an

abortion, resign before her pregnancy showed or

that she give up her child for adoption. In

March 1989, Ester Solar, who was also pregnant

at the time, was given tenure.

Contentions

Defendants contend as to Count I that they

followed the proper procedures for terminating

plaintiff under the Illinois statute, I11.Rev.

Stat. ch. 122, par. 24-11 (1989). By following

the proper statutory procedures, defendants

claim that plaintiff had no property interest

under the Fourteenth Amendment in remaining

Pepecrete <n

A - 78

employed. Defendants also contend that there is

no evidence showing a violation of plaintiff's

other constitutional rights, and there is no

evidence of intentional discrimination so as to

violate the equal protection clause of the

Fourteenth Amendment. As to plaintiff's §1985

claim in Count III, defendants contend that it

is barred by the intracorporate conspiracy

doctrine. Defendants also contend that

plaintiff has failed to meet her prima facie

case under her Title VII claim in Count IV.

Finally, defendants contend that plaintiff in

Count V has failed to show that defendants’

conduct was extreme and outrageous as required

for an intentional infliction of emotional

distress claim.

In plaintiff's cross-motion for partial

summary judgment, she contends that she was a

tenured teacher as a matter of law because

defendants failed to comply with the statutory

requirements; namely, they failed to give her a

"specific reason" for her dismissal. As a

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tenured teacher, plaintiff contends that she was

entitled to certain protections under the

Fourteenth Amendment.

Discussion

This court will not grant any summary

judgment motion unless all of the pleadings and

supporting documents, if any, indicate that

there is no genuine issue as to any material

fact and that the moving party is entitled to

judgment as a matter of law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 147 (1986);

Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.

1976). Facts are material so as to preclude

summary judgment if they might affect the

outcome of the suit under the governing law.

Anderson, 477 U.S. at 248. A dispute about a

material fact is genuine if the evidence is such

that a reasonable jury could return a verdict

for the non-moving party. Anderson, 477 U.S. at

248. However, the district court is not

required to evaluate every conceivable inference

that can be drawn from evidentiary matters, but

> = eal

A - 80

only reasonable ones. Spring v. Sheboygan Area

School District, 865 F.2d 883, 886 (7th Cir.

1989). To demonstrate a genuine issue of

material fact in opposition to a motion for

summary judgment, the non-moving party must do

more than raise a "metaphysical doubt" as to the

material facts. Matsushita Electric Industrial

Co., Vv. Zenith Radio Co., 475 U.S. 574, 586

(1986). The mere existence of a scintilla of

evidence in support of a party's position is

insufficient; there must be evidence on which

the jury could reasonably find for the party.

Anderson, 477 U. S. at 252. The inquiry to be

made on a motion for summary judgment is whether

the evidence presents a sufficient disagreement

to require submission to a jury or whether it is

so one-sided that one party must prevail as a

matter of law. Anderson, 477 U. S. at 251-52.

Count 1°

. Included in Count I of plaintiff's

second amended complaint are allegations which

are legally and factually incorrect. For

example, plaintiff has alleged that defendants,

a local government body and its employees,

A- 81

Plaintiff's main thrust in Count I is that

she was a tenured teacher. She contends she was

dismissed contrary to the Illinois statute

governing such action because defendants failed

to give plaintiff a specific reason for her

dismissal. See Ill. Rev. Stat., ch. 122, par.

24-11 (1989). Plaintiff contends that as a

tenured teacher she had a property interest

violated the Fifth Amendment's due process

clause. Without belaboring the point, it is

noted that the Fifth Amendment's due process

Clause applies to the Federal government. See

, 32 U.S. 243 (1833). Also

included in Count I are allegations that

defendants violated the Iliinois constitution;

however, claims under §1983 must be based on

deprivations of rights secured by the Federal

Constitution or Federal laws. Flagg Brothers.

Inc. v. Brooks, 436 U. S. 149, 155 (1978);

“ , 826 F.2d 671, 677 (7th Cir.

1987). These allegations are so contrary to

Clearly established law that they need no

discussion.

Further, some of plaintiff's factual

allegations in Count I are contrary to

plaintiff's own deposition testimony. Plaintiff

alleged that she was "unable to obtain

employment for a long period of time." However,

plaintiff testified in her deposition that

during the summer of 1989 she held the same

teaching position which she had held for every

summer for 16 years, and she also started

working as a special education teacher in August

1989.

A- 82

which could not be deprived without due process.

Defendants contend that plaintiff was dismissed

in accordance with the Illinois statute, and

therefore, she had no property interest as a

nontenured teacher.

Property interests are not create by the

Constitution. Rather, they are created and

their dimensions are defined by existing rules

or understandings that stem from an independent

source such as state law. Board of Regents of

State Colleges _v. Roth, 408 U.S. 564, 577

(1972). In this cause of action, plaintiff

attempts to create a property interest under

§24-11 of the Illinois School Code (Code). I1l.

Rev. Stat., ch. 122, par. 24-11 (1989). If

plaintiff was a tenured teacher, she would be

entitled to the protections of the Fourteenth

Amendment. However, the Seventh Circuit has

held that under §24-11 of the Code nontenured

teachers' claims of entitlement to their

positions are insufficient to constitute a

property interest within the meaning of the

£

4

4

A - 83

Fourteenth Amendment. Miller v. School District

Number 167, Cook County, Illinois, 500 F.2d 711,

712 (7th Cir. 1974); see also Austin v. Board of

Education of Georgetown Community Unit School

District No. 3, 562 F.2d 446, 452 (7th Cir.

1977). Thus, plaintiff's entire property

interest is premised on whether she was a

tenured teacher because she was not properly

dismissed according to §24-11 of the Code.

Section 24-11 of the Code provides the

following:

"Any teacher who has been employed in any

district as a full-time teacher for a

probationary period of 2 consecutive

school terms shall enter upon contractual

continued service unless given written

notice of dismissal stating the specific

reason therefor, by certified mail, return

receipt required by the employing board at

least 60 days before the end of such

period."

Ill. Rev. Stat., ch. 122, par. 24-11 (1989).

A - 84

The term "specific reason" means that the

reason “must fairly apprise the teacher of the

alleged deficiency upon which the employer-

school board bases its dismissal action, and

with sufficient specificity to enable the

teacher to refute the charge." Howard v. Board

of Education of Freeport, 160 I11.App.3d 309,

513 N.E.2d 545, 547 (1987). The purpose of the

specificity requirement is to prevent arbitrary

dismissals which state vague or nebulous

reasons or no reasons at all, and to compel

school boards to state the actual reason for

the dismissal. Burns v. Board of Education of

Fairfield School District No. 112 of Wayne

County, 47 Ill.App.3d 589, 362 N.E.2d 353, 355

(1977). Prior evaluations before the dismissal

which give notice of perceived deficiencies may

help fulfill the statutory requirement of a

specific reason. See Howard, 160 I11.App.3d at

, 513 N.E.2d at 548.

Based on the prior evaluations of plaintiff

and the notice she received in those

A - 85

asics sc: |

2 fae A

evaluations of the perceived deficiencies,

defendants met their statutory requirement that

plaintiff receive a specific reason for her

dismissal. Although the March 20, 1989, letter

merely stated that plaintiff was dismissed

because she "failed to meet the District's

expectations," she was repeatedly told during

her evaluations that her lack of enthusiasm was

a problem which needed to be corrected. When

considered in conjunction with the prior

evaluations, the March 20, 1989, letter fairly

apprised plaintiff as to why she was being

dismissed and fulfilled the purpose of the

statute. This is sufficient to meet the

"specific reason" requirement of §24-11. See

Howard, 160 Ill.App.3d at __, 513 N.E.2d at

548.

Because plaintiff was dismissed in accordance

with the Illinois statute, plaintiff has no

property interest protected by the Fourteenth

Amendment. See Miller, 500 F.2d at 712; see

also Roth, 408 U.S. at 578. Therefore,

A - 86

plaintiff's cross-motion for partial summary

judgment is denied.

Count I also alleges other violations of

plaintiff's constitutional rights including

what appears to be a claim that she was

deprived of a liberty interest without due

process of law in violation of the Fourteenth

Amendment, a claim that she was deprived of

substantive due process and a claim that she

was denied equal protection under_ the

Fourteenth Amendment.

As to the contention that she was deprived of

a liberty interest without due process of law,

the general rule is that for a person to be

deprived of a liberty interest in continued

employment the discharge must affect the

reputation, good name, honor or integrity of

the person. See Roth, 408 U. S. at 573.

However, in some circumstances, a combination

of stigma to reputation plus failure to rehire

may state a claim under 42 U.S.C. §1983.

Austin, 562 F.2d at 450. although some stigma

A - 87

attaches whenever an employee is dismissed,

this type of harm does not infringe on an

employee's liberty interests. Ratliff v. City

of Milwaukee, 795, F.2d 612, 625 (7th Cir.

1986). Here, plaintiff was dismissed because

she did not meet the expectations of defendants

based on the lack of enthusiasm. The dismissal

was not based on allegations of misconduct such

as taking indecent liberties with a minor. Cf,

Austin, 562 F.2d at 450. The failure to rehire

plaintiff did not deprive her of a protected

liberty interest.

As to plaintiff's substantive due process

Claim, because there was no violation of

plaintiff's procedural due process rights to

property and liberty, plaintiff's substantive

due process claim must also fail. See Stebbins

v. Weaver, 537 F.2d 939, 942 (7th Cir. 1976).

Next, in analyzing plaintiff's equal

protection claim, it must first be determined

whether the claim involves a suspect class or

a fundamental right. Pryor _v. Brennan, 914

A - 88

F.2d 921, 923 (7th Cir. 1990). It appears in

Count I that plaintiff is claiming both that

she is member of a suspect class, her sex, and

that the claim involves a fundamental right,

her decision to bear and rear a child.

To establish a prima facie case of

discrimination in violation of the equal

protection clause, a plaintiff is required to

show that he or she is a member of a protected

Class, that he or she is otherwise similarly

situated to members of the unprotected class

and that he or she was treated differently from

members of the unprotected class. McMillian v.

Svetanoff, 878 F.2d 186, 189 (7th Cir. 1989).

In showing a prima facie violation of equal

protection, the plaintiff must show both

differential treatment and discriminatory

intent. Sims _v. Mulcahy, 902 F.2d 524, 539

(7th Cir. 1990).

Plaintiff has failed to establish a prima

facie case of an equal protection violation

under §1983 in order to prevent summary

A - 89

judgment. See Randle V. LaSalle

Telecommunications, Inc., 876 F.2d 563, 568

(7th Cir. 1989). Plaintiff has not produced

any showing that she was intentionally treated

differently because of her sex or her

pregnancy. In fact, another pregnant women was

given tenure at the time plaintiff received

notice that she would not be given tenure.

For the foregoing reasons, as to Count I of

plaintiff's second amended complaint,

defendant's motion for summary judgment is

granted and plaintiff's cross-motion for

partial summary judgment is denied.

Count II

Because Count II requests punitive damages

based on Count I and defendants’ motion for

summary judgment as to Count I is granted and

plaintiff's cross-motion for partial summary

judgment is denied, defendants' motion for

summary judgment as to Count II is granted.

Count III

Count III of plaintiff's second amended

A - 90

complaint alleges a violation of 42 U.S.C.

§1985(3). Defendants contend that such a claim

is barred by the intracorporate conspiracy

doctrine as outline in Dombrowski v. Dowling,

459 F.2d 190 (7th Cir. 1972).

Although there is a split among the circuits,

see Travis v. Gary Community Mental Health

Center, 921 F.2d 108, 109 (7th Cir. 1990), the

Seventh Circuit applies the intracorporate

conspiracy doctrine to §1985 claims, see e.g.,

Dombrowski v. Dowling, 459 F.2d 190, 196 (7th

Cir. 1972); Travis, 921 F.2d at 110. The

rationale is that an entity is able to act only

through its employees and agents and to hold

that it can conspire through its employees and

agents is to say that it is conspiring with

itself. Lac du Flambeau Band v. Stop Treaty

Abuse -- Wisconsin, Inc., 759 F.Supp. 1339,

1351 (W.D. Wis. 1991). The intracorporate

conspiracy doctrine has been used to grant

summary judgment for defendants in a §1985(3)

Claim who were all agents or employees of the

same school board. Hull _v. Cuyahoga Valley

Board of Education, 926 F.2d 505, 509-10 (6th

Cir. 1991) cert denied 111 S.Ct. 2917 (1991).

In this case, because all defendants are

employees of the Board, the intracorporate

conspiracy doctrine applies, and defendants’

motion for summary judgment is granted.

Count IV

Count IV of plaintiff's second amended

complaint alleges that defendants violated 42

U.8.€. §2000e (Title VIIO -because they

intentionally dismissed plaintiff because of

her sex, because she was pregnant and because

she was unmarried.

Initially, defendants contend that marital

status is not a protected class under Title

VII. It should be noted that this case does

not involve a no-marriage rule, cf. EEQC v.

Delta Air Lines, Inc., 578 F.2d 115 (5th Cir.

1978); Stroud v. Delta Airlines, Inc., 544 F.2d

892 (Sth Cir. 1977); Sprogis v. United Airlines

inc., 444 F.2d 1194 (7th Cir. 1971), or a rule

A - 92

which forbids or restricts the employment of

married women but which is not applicable to

married men, cf. 29 CFR §1604.4(a). Rather,

this cause of action involves the dismissal of

a pregnant woman who happens to be unmarried.

In determining the meaning of a statute, a

federal court must first look to the plain

language of the statute before looking beyond

the words themselves. Oneida Tribe of Indians

v. Wisconsin, 951 F.2d 757, 760-61 (7th Cir.

1991). Discrimination based on marriage is not

forbidden by the language of Title vII.

C.Antieau, Federal civil Rights Acts Civil

Practice §402 (2d Ed. 1980). The clear

language of the statute does not enumerate

marital status as a protected class, and

discrimination based on marital status standing

alone does not violate the protected

Classification of sex.

Because statutory interpretation is a

question of law, United States v. Powell, 929

F.2d 1190, 1193 (7th Cir. 1991), defendants’

A- 93

motion for summary judgment is granted as to

the relief required in paragraph 29(b) of Count

IV. However, plaintiff's claims of

discrimination based on her sex must be

addressed.

The basic allocation of burdens and

presentation of proof in a Title VII individual

disparate treatment case based on sex was

articulated in Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981). A

plaintiff has the burden of providing by a

preponderance of the evidence a prima facie

case of discrimination; if the plaintiff

succeeds in proving a prima facie case, the

burden shifts to the defendant to articulate

some legitimate, nondiscriminatory reason for

the employee's rejection; and if the defendant

meets this burden, the plaintiff must prove by

a preponderance of the evidence that the

legitimate reasons offered by the defendant

were not its true reasons, but were a pretext

for discrimination. Burdine, 450 U.S. at 252-

A- 94

53.

To show a prima facie case, the plaintiff

must prove by a preponderance of the evidence

that she applied for an available position for

which she was qualified but was rejected under

circumstances which give rise to an inference

of unlawful discrimination. Burdine, 450 U.S.

at 253. Although the burden of establishing a

prima facie case of disparate treatment is not

onerous, Burdine, 450 U.S. at 253, any Title

VII plaintiff must carry the initial burden of

offering evidence adequate to create an

inference that an employment decision was based

on a discriminatory criterion illegal under the

Act. International Brotherhood of teamsters v.

United States, 431 U.S. 324, 358 (1977). A

plaintiff must demonstrate at least that the

action did not result from the two most common

legitimate reasons on which an employer might

rely: an absolute or relative lack of

qualifications or the absence of a vacancy in

the job sought. Teamsters, 431 U.S. at 358 n.

A- 95

44. Because facts will vary in Title VII

cases, what is required to show a prima facie

case will also vary. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 n. 13 (1973).

Here, defendants argue that because plaintiff

has failed to meet her prima facie case,

summary judgment should be granted. See

Randle, 876 F.2d at 568. Plaintiff has not met

her burden of showing a prima facie case of

disparate treatment. Plaintiff has only shown

that she was a pregnant woman who did not

receive tenure. Plaintiff has not shown by a

preponderance of the evidence that she was

rejected under circumstances that give rise to

an inference of unlawful discrimination. In

fact, Ester Solar, who was pregnant at the time

of plaintiff's notice of dismissal, was given

tenure. Further, plaintiff's final evaluation

was the worst of all seven second-year

probationary teachers at DeKalb High School in

1988-89.

A - 96

Count V

Count V of plaintiff's second amended

complaint alleges intentional infliction of

severe emotional distress. Plaintiff alleges

that the dismissal, "in and of itself,"

resulted in severe emotional distress and that

certain employees made comments about plaintiff

"([ajs a direct result of said dismissal."

Defendants essentially claim that the facts

alleged in the second-amended complaint and

plaintiff's deposition do not rise to the level

necessary to support such a clain.°?

To state a cause of action for intentional

infliction of emotional distress, the plaintiff

must establish the _ following: (1) the

defendant's conduct was extreme and outrageous;

> Although a Federal District Court can

grant a motion for summary judgment in favor of

a defendant on a claim of intentional infliction

of emotional distress, see, e.g., Bast v. Ford

, 631 F.2d 508, 511 (7th Cir.

1980), a motion to dismiss would be a more

appropriate procedure, see

, 181

I1l.App.3d 954, 537 N.E.2d 887, 889 (1st Dist.

1989).

a - 97

(2) the emotional distress suffered by the

plaintiff was severe; and (3) the defendant

knew that severe emotional distress was certain

or substantially certain to result from such

conduct. McGrath v. Fahey, 126 I1l.2d 78, 533

N.E.2d 806, 809 (1988). Defendant's conduct

must be so outrageovs in character and so

extreme in degree as to go beyond all possible

bounds of decency, and the distress must be so

severe that no reasonable man could be expected

to endure it. Public Finance Corp. v. Davis,

66 Ill.2d 85, 360 N.E.2d 765, 767 (1976). The

slight hurts that individuals must endure in a

complex society do not constitute extreme and

outrageous conduct. Douglas v. American

Information Technologies Corp., 877 F.2d 565,

571 (7th Cir. 1989).

It cannot be said that the dismissal of

plaintiff, standing alone, is enough to show

intentional infliction of emotional distress,

and the facts presented are sc one-sided that

summary judgment must be granted. As the

A- 98

comments made by other employees, plaintiff

only has personal knowledge of a statement of

Helen Farley and that statement does not show

intentional infliction of emotional distress as

a matter of law. Therefore, defendants! motion

for summary judgment is granted as to Count V.

Conclusion

For the reasons mentioned above, defendants'

motion for summary judgment is granted, and

plaintiff's cross-motion for partial summary

judgment on Count I is denied.

ENTER:

PHILIP G. REINHARD, JUDGE

UNITED STATES DISTRICT

COURT

DATED: March 18, 1992

A- 99

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

LINDA WHITMORE, )

Plaintiff, )

)

Vv. ) No. 90-C-20143

)

BOARD OF EDUCATION OF )

DEKALB COMMUNITY )

SCHOOL DISTRICT )

NO. 428, JOHN REY, )

President of the Board )

of Education School )

District No. 428, )

Individually, BERNARD )

LOONEY, Principal, )

Individually, DR. JACK )

DEERE, District )

Superintendent, )

Individually, KEN )

KENNEDY, Assistant )

Principal, Individually), Dated:June 9, 1992

and ROBERT WILLIAMS, )

Assistant )

Superintendent, )

Individually, )

)

)

Defendants.

On March 18, 1992, the court’ granted

defendant's motion for summary judgment and

denied plaintiff's cross motion for partial

summary judgment. On April 15, 1992, this

court granted plaintiff's motion for leave to

file a motion to reconsider. Plaintiff's

A - 100

motion is brought pursuant to Fed.R.Civ.P.

60(b)(1), (2) and (6).

Rule 60(b), in relevant part states, "On

motion and upon terms as are just, the court

may relieve a party . . . from a final

judgment, order, or proceeding for’ the

following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence

could not have been discovered in time to move

for a new trial .. . or (6) any other reason

justifying relief from the operation of the

judgment." Relief from a judgment under Fed.

R. Civ. P. 60(b) is an extraordinary remedy and

is granted only in exceptional circumstances.

Reinsurance Co. v. Administratia Asigurarilor,

902 F.2d 1275, 1277 (7th Cir. 1990). A party

cannot use Fed.R.Civ.P. 60(b) as a substitute

for appeal. Andrews v. Heinold Commodities

Inc., 771 F.2d 184, 188 (7th Cir. 1985).

After careful review, plaintiff's motion

states no grounds for relief under Fed.R.Civ.P.

A= i101

60(b). No excusable neglect, newly discovered

evidence or other reason justifying relief

under Fed. R. Civ.P. 60(b) is presented.

Plaintiff's motion is denied.

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UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

September 8, 1993.

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. JESSE E. ESCHBACH, Senior Circuit Judge

LINDA WHITMORE,

Plaintiff-Appellant,

] Appeal from the

] United States

] District Court

No. 92-2442 Ve ] for the Northern

] District of

BOARD OF EDUCATION ] Illinois, Western

OF DEKALB COMMUNITY ] Division.

SCHOOL DISTRICT NO. 428, ]}

individually, BERNARD ]

LOONEY, Principal, ]

individually, et al., ]

]

]

No. 90 C 20143

Philip G.

Reinhard, Judge.

Defendants~-Appellees.

ORDER

On consideration of the petition for

rehearing and suggestion for rehearing en banc

filed by plaintiff-appellant on August 18,

1993, no judge in active service has requested

a vote thereon, and all the judges on the

original panel have voted to deny the petition.

hh

A - 103

Accordingly,

IT IS ORDERED that the petition for rehearing

and suggestion for rehearing en banc be, and

the same is hereby, DENIED.

A - 104

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21 -- Civil Rights

Subchapter I -- Generally

Section 1983. Civil action for

deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to. the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party redress.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.

Section 1985. Conspiracy to interfere

with civil rights

(1) Preventing officer from performing

duties

If two or more persons in any State or

a

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A - 105

Territory conspire to prevent, by force,

intimidation, or threat, any person from

accepting or holding any office, trust, or

place of confidence under the United States, or

from discharging any duties thereof; or to

induce by like means any officer of the United

States to leave any State, district, or place,

where his duties as an officer are required to

be performed, or to injure him in his person or

property on account of his lawful discharge of

the duties of his office, or while engaged in

the lawful discharge thereof, or to injure his

property so as to molest, interrupt, hinder, or

impede him in the discharge of his official

duties;

(2) Obstructing justice; intimidating

party, witness, or juror

If two or more persons in any State or

Territory conspire to deter, by force,

intimidation, or threat, any party or witness

in any court of the United States from

attending such court, or from testifying to any

matter pending therein, freely, fully, and

A - 106

truthfully, or to injure such party or witness

in his person or property on account of his

having so attended or testified, or to

influence the verdict, presentment, or

indictment lawfully assented to be him, or of

his being or having been such juror; or is two

or more persons conspire for the purpose of

impeding, hindering, obstructing, or defeating,

in any manner, the due course of justice in any

State or Territory, with intent to deny to any

citizen the equal protection of the laws, or to

injure him or his property for object of such

conspiracy, whereby another is injured in his

person or property, or deprived of having and

exercising any right or privilege of a citizen

of the United States, the party so injured or

deprived may have an action for the recovery of

damages occasioned by such injury or

deprivation, against any one or more of the

conspirators.

A - 107

United States Code Annotated

Title 5. Government Organization and Employees

Part III -- Employees

Subpart E -- Attendance and Leave

Chapter 63 -- Leave

Subchapter V -- Family and Medical Leave

Section 6382. Leave requirement

(a)(1) Subject to section 6383, an employee

shall be entitled to a total of 12

administrative workweeks of leave during any

12-month period for one or more of the

following:

(A) Because of the birth of a son or

daughter of the employee and in order to care

for such son or daughter.

(B) Because of the placement of the son or

daughter with the employee for adoption or

foster care.

(C) In order to care for the spouse, or a

son, daughter, or parent, of the employee, if

such spouse, son, daughter or parent has a

serious health condition.

(D) Because of a serious health condition

that makes the employee unable to perform the

A - 108

functions of the employee's position.

(2) The entitlement to leave under

subparagraph (A) or (38) of paragraph (1) based

on the birth or placement of a son or daughter

Shall expire at the end of the 12-month period

beginning on the date of such birth or

placement.

(b)(1) Leave under Subparagraph (A) or (B)

of subsection (a)(1) shall not be taken by an

employee intermittently or on a reduced leave

schedule unless the employee and the employing

agency of the employee agree otherwise.

Subject to paragraph (2), subsection (e) (2),

and section 6383(b) (5), leave under

Subparagraph (C) or (D) of subsection (a) (1)

may be taken intermittently or on a reduced

leave schedule when medically necessary. In

the case of an employee who takes leave

intermittently or on as reduced leave schedule

pursuant to this paragraph, any hours of leave

so taken by such employee shall be subtracted

from the total amount of leave remaining

A - 109

available to such employee under subsection

(a), for purposes of the 12-month period

involved, on an hour-for-hour basis.

(2) If an employee requests intermittent

leave, or leave on a reduced leave schedule,

under subparagraph (C) or (D) of subsection

(a)(1), that is foreseeable based on planned

medical treatment, the employing agency may

require such employee to transfer temporarily

to an available alternative position offered by

the employing agency for which the employee is

qualified and that --

(A) has equivalent pay and benefits; and

(B) better accommodates recurring periods of

leave than the regular employment position of

the employee.

(C) Except as provided in subsection (da),

leave granted under subsection (a) shall be

leave without pay.

(D) An employee may elect to substitute for

leave under subparagraph (A), (B), (C), or (D)

of subsection (a)(1) any of the employee's

A - 110

accrued or accumulated annual or sick leave

under subchapter I for any part of the 12-week

period of leave under such subsection, except

that nothing in this subchapter shall require

an employing agency to provide paid sick leave

in any situation in which such employing agency

would not normally provide any such paid leave.

(E)(1) In any case in which the necessity

for leave under subparagraph (A) or (B) of

subsection (a)(1) is foreseeable based on an

expected birth or placement, the employee shall

provide the employing agency with not less than

30 days' notice, before the date the leave is

to begin, of the employee's birth or placement

requires leave to begin in less than 30 days,

the employee shall provide such notice as is

practicable.

(2) In any case in which the necessity for

leave under subparagraph (C) or (D) of

subsection (a)(1) is foreseeable based on

planned medical treatment, the employee- (A)

shall make a reasonable effort to schedule the

A - iii

treatment so as not to disrupt unduly the

operations of the employing agency, subject to

the approval of the health care provider of the

employee or the health care provider of the

son, daughter, spouse, or parent of the

employee, as appropriate; and

(B) shall provide the employing agency with

not less than 30 days' notice, before the date

the leave is to begin, of the employee's

intention to take leave under such

subparagraph, except that if the date of the

treatment requires leave to begin in less than

30 days, the employee shall provide such notice

as is practicable.

A - 112

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21 -- Civil Rights

Section 2000e-2. Discrimination because

of race, color, religion,

sex or national origin.

(a) Employers. It shall be an unlawful

employment practice for an employer --

(1) to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex, or

national origin; or

(2) to limit, Segregate, or classify his

employees or applicants for employment in any

way which would deprive or tend to deprive any

individual of employment opportunities or

otherwise adversely affect his status as an

employee, because of such individual's race,

color, religion, sex, or national origin.

United States Constitution

Amendment I

Congress shall make no law respecting an

A - 113

establishment of religion, or prohibiting the

free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble, and

to petition the Government for a redress of

grievances.

Amendment V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual

service in time of War or public danger; nor

Shall any person be subject for the same

offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall private property

be taken for public use, without just

compensation.

A- 114

Amendment IX

The enumeration in the Constitution, of

certain rights, shall not be construed to deny

or disparage others retained by the people.

Amendment XIV

Section 1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

A= i135

Federal Rules of Civil Procedure

Rule 60

(b) Mistakes; Inadvertence; Excusable

Neglect; Newly Discovered

Evidence; Fraud, etc.

On motion and upon such terms as are just,

the court may relieve a party or a party's

legal representative from a final judgment,

order, proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered

evidence which by due diligence could not have

been discovered in time to move for a new trial

under Rule 59(b); (3) fraud (whether

heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an

adverse party; (4) the judgment is void; (5)

the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it

is based has been reversed or otherwise

vacated, or it is no longer equitable that the

judgment should have prospective application;

or (6) any other reason justifying relief from

the operation of the judgment...

APPENDIX A

Appellate Opinion A- 1

of August 4, 1993.

Order of Judge Roszkowski A- 12

Amended Order of Judge Roszkowski A - 42

Summary Judgment of Judge Reinhard A - 72

Denial of Motion to Reconsider A- 99

Order Denying Rehearing A - 102

of Appellate Opinion

United States Code Annotated A - 104

Title 42, Chapter 21,

Section 1983

United States Code Annotated A - 104

Title 42, Chapter 21,

Section 1985

United States Code Annotated A - i107

Title 5, Section 6382

United States Code Annotated A - 112

Title 42, Chapter 21,

Section 2000e-2

United States Constitution A - 113

Amendment I

United States Constitution A - 113

Amendment V

United States Constitution A- 114

Amendment IX

United States Constitution A- 114

Amendment XIV

Federal Rules of Civil Procedure A - 115

Rule 60(b)