King v. Elementary Sch. Dist., 17 C 4637

DR. NINA GREGORY KING Plaintiff, v. ELEMENTARY SCHOOL DISTRICT #159, Defendant.

No. 17 C 4637

UNITED STATES DISTRCT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

April 10, 2018

Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Dr. Nina Gregory King alleges two counts of employment discrimination against the Board of Education of Elementary of School District #159 ("Defendant" or "the Board") under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. ("ADEA"). (Am. Compl. (Dkt. No. 16) ¶¶ 27-37.) Presently before us is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 21.) For the reasons set forth below, we grant Defendant's motion in part, and deny it in part.

BACKGROUND

For purposes of a motion to dismiss, we accept all well-pled factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir. 2016). Plaintiff has been employed by Defendant as a school principal since 2003. (Am. Compl. ¶ 8.) Elementary School District No. 159 is a public school district in Cook County, Illinois. (See Mot. to Dismiss ("Mot.") (Dkt. No. 21) at 2.) Plaintiff alleges she applied for various promotional positions within the school district, but in each instance Defendant filled the position with a younger, less qualified applicant, "despite the fact that Plaintiff was the most qualified applicant." (Am. Compl. ¶¶ 10-22.)

Specifically, in 2007, Plaintiff applied for a Director of Human Resources position within the school district, but she learned in March 2008 that the position was given to a "much younger applicant who had no administrative or classroom experience and lower academic qualifications" than Plaintiff. (Id. ¶¶ 11-12.) Next, Plaintiff applied for an Assistant Superintendent of Curriculum and Instruction position in 2011, but Defendant selected a younger applicant who Plaintiff alleges was suspected of misappropriating school funds at her previous position. (Id. ¶¶ 14-15.) In 2013, Plaintiff applied for an Assistant Superintendent Teaching and Learning position. (Id. ¶ 17.) She later learned that Defendant selected a younger applicant with "nearly a decade less of principal experience" for the position. (Id. ¶ 18.) Finally, in April 2016, Plaintiff applied for a position as the Superintendent of Elementary School District No. 159. (Id. ¶ 20.) However, in September 2016, Plaintiff learned she was not selected for the position. (Id. ¶ 21.) Instead, Defendant selected a "much younger and less qualified applicant." (Id.)

At the time of each alleged failure to promote, Plaintiff was over 40 years of age. (Id. ¶ 29.) Plaintiff asserts that in each instance Defendant did not promote her because of her age. (Id. ¶ 30.) Plaintiff further alleges "one or more members of the District's Board of Education have made comments saying that Dr. Gregory King's age is a concern when considering her for some or all of these promotional opportunities." (Id. ¶ 26.) Following each failure to promote, Plaintiff complained that she was being discriminated against because of herage.¹ (Id. ¶¶ 13, 16, 19, 22.) Plaintiff claims that she is still being barred from promotional opportunities within the District as a form of retaliation for these prior complaints. (Id. ¶ 25.)

Plaintiff exhausted her administrative remedies and received her right-to-sue letter from the EEOC on March 20, 2017. (Id. ¶ 4.) Plaintiff filed her initial complaint on June 20, 2017. (Dkt. No. 1.) After Defendant moved to dismiss for failure to state a claim, we granted Plaintiff's motion to amend her complaint. (Dkt. Nos. 10, 15.) Plaintiff filed her first amended complaint on October 22, 2017, asserting two claims under the ADEA: age discrimination for failing to promote her (Count I), and retaliation (Count II). (Am. Compl. ¶¶ 27-37.) Defendant again moved to dismiss the amended complaint for failure to state a claim, which is presently before us. Defendant argues that several of the alleged discriminatory acts with respect to Count I are time-barred. (Mot. at 4-7.) Defendant also argues that the facts as pled are insufficient to establish plausible claims with respect to Counts I and II. (Id. at 8-12.)

LEGAL STANDARD

A motion to dismiss tests the sufficiency of the complaint, not the merits of the case. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 585, 127 S. Ct. 1955, 1982 (2007). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts "to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50 (2009) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). "Aclaim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. Although a facially plausible complaint need not give "detailed factual allegations," it must allege facts sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65; Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013) (citing Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011)). "A complaint must allege facts to support a cause of action's basic elements." Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12, 122 S. Ct. 992, 997 (2002); Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013) (observing that Swierkiewicz survived Twombly and Iqbal). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S Ct. at 1949. These requirements ensure that the defendant receives "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964.

ANALYSIS

Defendant argues that Count I should be dismissed in part because all but one of the alleged discriminatory acts contained in Count I are time-barred. (Mot. at 4-7.) Defendant further contends that the remainder of Count I should be dismissed because Plaintiff fails to plead a prima facie case of age discrimination. (Id. at 8-9.) Finally, Defendant argues that Count II should be dismissed in its entirety because "Plaintiff fails to plead Defendant[] did anything that can give rise to liability." (Id. at 9-12.) We address each of Defendant's arguments in turn.

I. COUNT I: FAILURE TO PROMOTE

A. Statute of Limitations

Defendant first argues that Plaintiff's age discrimination claim is largely time barred. (Mot. at 4-7.) Although "complaints do not have to anticipate affirmative defenses to survive a motion to dismiss," an exception exists where "the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations." United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). If there exists "a conceivable set of facts, consistent with the complaint, that would defeat a statute-of-limitations defense, questions of timeliness are left for summary judgment (or ultimately trial)." Sidney Hillman Health Ctr. of Rochester v. Abbott Labs Inc., 782 F.3d 922, 928 (7th Cir. 2015).

The timely filing of a charge of discrimination with the EEOC is a prerequisite to commencing a civil action under the ADEA. See 29 U.S.C. § 626(d); Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 637 (7th Cir. 2004). In a state that has an agency with authority to investigate allegations of employment discrimination, as Illinois does, a claimant must file his charge with the EEOC "within 300 days after the alleged unlawful practice occurred." Id. § 626(d)(1)(B); Anderson v. Ill. Tool Works, Inc., 753 F.2d 622, 624 (7th Cir. 1985). "An 'unlawful employment practice' includes various discrete acts such as 'termination, failure to promote, denial of transfer, or refusal to hire.'" Mull v. Abbott Labs., 563 F. Supp. 2d 925, 929 (N.D. Ill. 2008) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 2073 (2002)). Discrete discriminatory acts are "not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 536 U.S. at 113, 122 S. Ct. at 2072.Because the requirement for filing a charge in the ADEA context is not jurisdictional, equitable estoppel or equitable tolling may toll the limitations period. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990). Equitable estoppel applies "if the defendant takes active steps to prevent the plaintiff from suing on time." Id. at 450. To invoke equitable tolling, a plaintiff must show that "[s]he could not by the exercise of reasonable diligence have discovered essential information bearing on [her] claim." Id. at 451. A plaintiff may also toll the applicable statute of limitations by establishing a "continuing violation," but only when the discriminatory character of the earlier acts was not apparent when they were committed. 29 U.S.C. § 626(d)(1); Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 282 (7th Cir. 1993). The continuing violation doctrine is not available for discrete discriminatory acts such as a failure to hire or promote. Morgan, 536 U.S. at 113, 122 S. Ct. at 2072. Rather, "[e]ach discriminatory act starts a new clock for filing charges alleging that act." Id. at 113, 122 S. Ct. 2061; see also Adams, 742 F.3d at 730.

In her amended complaint, Plaintiff bases her age discrimination claim in part on three separate discriminatory acts that allegedly occurred in 2007, 2011, and 2013. Plaintiff does not dispute she filed her charge of discrimination with the EEOC on December 14,...