Thurmon v. Mount Carmel High Sch.

191 F.Supp.3d 894

Kevin THURMON Sr. and Tiffany Thurmon, jointly Kevin Thurmon Sr., individually; Tiffany Thurmon, individually and Kevin Thurmon Jr., individually, Plaintiffs,

v.MOUNT CARMEL HIGH SCHOOL, John Stimler, jointly and individually; Frank Lenti, jointly and individually, and Jerrold Blew, jointly and individually, Defendants.

No. 15 C 4500

United States District Court, N.D. Illinois, Eastern Division.

Signed June 13, 2016

Rose E. Joshua, Attorney at Law, Terri J. Blanchard, Barclay Law Group, P.C., Chicago, IL, for Plaintiffs.

Tiffany Thurmon, pro se.

Kevin Thurmond Jr., pro se.

Andrew Kopon, Jr., Patrick Francis Sullivan, III, Vincenzo R. Chimera, Kopon Airdo, LLC, Thomas Edward Roche, Keeley, Kuenn & Reid, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

James B. Zagel, United States District Judge

Before the Court is Defendants Mount Carmel High School, John Stimler, Frank Lenti and Jerrold Blew's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, Defendants' Motion to Dismiss is granted.

I. BACKGROUND

This case arises out of a disciplinary incident and related actions that Defendants Mount Carmel High School ("Mount Carmel"), John Stimler ("Stimler"), Frank Lenti ("Lenti") and Jerrold Blew ("Blew") (collectively "Defendants") took against Plaintiff Kevin Thurmon Jr. ("Plaintiff" or "Kevin Jr."). Mount Carmel is a private parochial school that relies on tuition, grants, charitable donations and federal funds. Kevin Jr., a former student and football player at Mount Carmel, is an African-American male. Defendants Stimler, Lenti, and Blew are non-African Americans employed by Mount Carmel. At the time of the incidents in question, Stimler was the school principal and Lenti and Blew were both teachers and football coaches.

Kevin Jr. began attending Mount Carmel in his freshman year of high school, during which time he was diagnosed with attention deficit hyperactivity disorder ("ADHD") and classified as a student with learning disabilities under the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. 1401(3)(i)(ii). Beginning in Kevin Jr.'s freshman year, Mount Carmel provided him with accommodations for his disability including extra time on tests and tutoring opportunities.

Plaintiff alleges that in or around August 2014, Defendants Lenti and Blew began to repeatedly harass and threaten him by telling him that he would "fail and repeat the 12^thgrade," that he "had no talent," that he "was not a good football player," and that he was "not as good as he thought he was." Plaintiff also alleges that at some point he was falsely accused of cheating "which significantly lowered his grade," although he does not identify his accuser. Additionally, Plaintiff asserts that Blew refused to grant him accommodations he was entitled to because of his ADHD and that, behind Plaintiff's back, Lenti contacted Division 1 schools that had offered Kevin Jr. football scholarships and told the schools that Kevin Jr. planned to reject their offers. As a result, Plaintiff says, the schools retracted their scholarship offers.

In April of 2015, during his senior year, Kevin Jr. was involved in a disciplinary incident with several other students. Neither Plaintiff's Third Amended Complaint ("TAC") nor these briefings explain what the incident involved, but each of the implicated students was suspended for three days. However, Kevin Jr. alone was suspended for the rest of the school year, required to complete his semester at home, and prohibited from attending school functions including graduation and prom. Defendants assert that the other students were all African-American although Kevin Jr. says that one of the other students was Caucasian.

Following this incident, Plaintiff requested to meet with Mount Carmel and review his suspension but this request was denied. Plaintiff filed this lawsuit on May 21, 2015. In the TAC, he alleges violation of 42 U.S.C. § 1981 (Count I), violation of § 504 of the Rehabilitation Act (Count II), and state law claims including intentional interference with prospective economic advantage (Count III), breach of contract (Count IV), and intentional infliction of emotional distress (Count V). Plaintiff also filed a Temporary Restraining Order ("TRO") in May 2015 requesting permission to attend his graduation ceremony, which was denied by Judge Dow sitting in as Emergency Judge for this Court.

II. LEGAL STANDARD

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) does not test the merits of a claim, but rather the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). In deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, "legal conclusions and conclusory allegations merely reciting the elements of the claim" are not entitled to a presumption of truth. McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir.2011) (citing Iqbal , 556 U.S. at 680–81, 129 S.Ct. 1937 ). Rather, claimants "must give enough details about the subject-matter of the case to present a story that holds together." Id. "A complaint should not be dismissed for failure to state [a] claim unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle the plaintiff to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 1959, 167 L.Ed.2d 929 (2007).

III. DISCUSSION

As a preliminary matter, Defendants argue that I should take judicial notice of the findings established in this Court's May 23, 2015 Order ruling on the TRO, including the testimony that the other students involved in the disciplinary incident apologized and showed contrition for their role, while Kevin Jr. did not. But as Plaintiff correctly points out, the Seventh Circuit is cautious about permitting a court to take judicial notice of facts from prior proceedings. Garden City Employees' Retirement System v. Anixter Intern., Inc. , 2011 WL 1303387 at *11 (N.D.Ill.2011). In any case, my reasoning does not rely on the contents or outcome of the TRO hearing. Thus I am considering the motions and the TAC on their own merits without establishing judicial notice of facts drawn from the TRO proceeding.

A. The § 1981 Claim (Count I)

Defendants assert that Plaintiffs have failed to state a cause of action under § 1981. To state a claim under § 1981, a claimant must "(1) be a member of a racial minority; (2) show that the defendants intended to discriminate on the basis of race; and (3) show that the defendants' activities concern the making, performance, modification, or termination of a contract, the enjoyment of the benefits of a contractual relationship, or the conditions of a contractual relationship." Jacobeit v. Rich Tp. High School Dist. 227 , 673 F.Supp.2d 653, 660 (N.D.Ill.2009). I agree with Defendants that Plaintiff has not adequately pleaded prongs two and three.

Plaintiff asserts that the totality of circumstances he was subjected to—including the alleged verbal harassment, cheating accusation, unauthorized contact with colleges, and disciplinary action—was a result of racial discrimination that was not visited upon white students at Mount Carmel. Yet to the extent that Plaintiff does allege a nexus between racial discrimination and Kevin Jr.'s specific treatment, it is a conclusory and unsupported allegation that does not meet the Iqbal /Twombly standards laid out above. Indeed, the TAC itself does not reference racial discrimination when recounting the factual allegations except to state tautologically at the end of the facts section that "the treatment of Plaintiffs was based on their race in that non-black students received substantially better treatment." To supplement this argument, Plaintiff offers in his brief that one of the other students involved in the disciplinary incident who received a lighter punishment was a white student. Nevertheless, without a more detailed set of allegations describing the foundation for Plaintiff's belief that his race was the basis for his treatment by Defendants, I find that he has not demonstrated the second factor of the three-part test.

Likewise, the third prong requires a showing of deprivation of a contractual relationship that Plaintiff has not sufficiently alleged. In his TAC, Plaintiff attached Mount Carmel's Registration/Tuition Payment Contract, the Parent-Student Handbook, and Kevin Jr.'s Learning Disability Accommodation Guide and points to these as the contractual basis of the § 1981 claim. The Registration/Tuition Payment Contract does not contain any terms that were violated based on the facts presented in the TAC. Thus, to the extent there is a contractual relationship at issue in this case, it must be based on the Anti-Discrimination/Harassment Policy in the Parent-Student Handbook and the accommodations provided in Kevin Jr.'s Accommodation Guide.

The Anti-Discrimination/Harassment Policy does provide for progressive discipline including requiring a student to complete a semester from home, so Kevin Jr.'s suspension would not constitute a deprivation of the contractual relationship. Plaintiffs also allege harassing conduct by Defendants Lenti and Blew that could serve as a basis for deprivation of a contractual relationship. However, the Anti-Discrimination/Harassment Policy only prohibits such conduct if it is based on the target's protected status. As discussed above, Plaintiff made only vague and conclusory allegations of racial and disability discrimination, without providing any facts necessary to draw a causal inference between Defendants' actions and Plaintiff's race and/or disability. The same is true for an alleged violation based...