Veljkovic v. Bd. of Educ. of Chi.

DANIELA VELJKOVIC, Plaintiff, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.

20 C 1551

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

December 22, 2020

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Daniela Veljkovic claims that her former employer, the Chicago Board of Education, discriminated against her because she is white and retaliated against her for opposing race and sex discrimination, in violation of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., id. § 2000e et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Doc. 1. The Board moves to dismiss under Civil Rule 12(b)(6). Doc. 22. The motion is granted, though Veljkovic will be given an opportunity to replead.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Veljkovic's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to Veljkovic as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).

The Board employed Veljkovic as a teacher from 1995 until she resigned on January 8, 2019. Doc. 1 at ¶¶ 9, 39. From 2013 through her resignation, she taught art at Consuella York Alternative High School, which is the high school for juveniles detained at the Cook County Jail. Id. at ¶¶ 7, 9. Veljkovic is white. Id. at ¶ 1.

The principal of York, Sharnette Sims, who is Black, discouraged teachers from reporting student disciplinary infractions. Id. at ¶¶ 10-12. This practice gave a false impression of the safety conditions at York and thereby endangered faculty and students. Id. at ¶¶ 11-12. In Fall 2016, the Board's Office of the Inspector General ("OIG") launched an investigation into allegations that Sims had engaged in this and other misconduct. Id. at ¶ 13. Veljkovic agreed to be interviewed by the OIG and truthfully conveyed "her knowledge of practices and incidents at York." Id. at ¶¶ 13-14.

On September 12, 2017, the OIG issued its report, a copy of which is attached to the complaint. Id. at ¶ 15; Doc. 1-1. The OIG report described "extensive improper practices" at York, Doc. 1-1 at 2, including inaccurate enrollment and attendance reporting, improper practices for issuing credits, deficient course structures, and inflated performance scores, id. at 4-7. The report stated that "many teachers" had complained that Sims "discouraged them from reporting dangerous incidents at the school," including "chronic classroom masturbation" and "threatening conduct by an organized faction of students who committed sexual assaults in the jail." Id. at 7. The OIG report did not attribute any complaints to any specific teacher, and the complaint does not allege that Veljkovic made any particular statement to the OIG. The OIGreport recommended that Sims be removed from her position as principal. Doc. 1 at ¶ 17; Doc. 1-1 at 7.

The Board temporarily removed Sims as principal, though she continued to perform administrative duties. Doc. 1 at ¶¶ 18-19. The Board then undertook its own investigation of the matter, led by Deputy General Counsel James Ciesil. Id. at ¶¶ 21-22. Veljkovic agreed to be interviewed by Ciesil and confirmed the allegations and complaints that she and her colleagues had made to the OIG. Id. at ¶ 22. Ciesil issued a report on November 2, 2017, a copy of which is attached to the complaint. Id. at ¶ 24; Doc. 1-2. Although the Ciesil report was labeled "Attorney-Client Privileged Work Product," Doc. 1-2 at 2, 8, the Board released an unredacted version to the news media, Doc. 1 at ¶¶ 24-27.

The Ciesil report broadly rejected the OIG's findings. It noted that the OIG report was largely based on interviews of eleven current and former York teachers, nine of whom had previously been disciplined by Sims. Doc. 1-2 at 5, 27. The Ciesil report also noted that the OIG had interviewed only two Black teachers, even though 70 percent of York's teaching staff is Black. Id. at 5, 26-27, 29. In part based on those figures, the Ciesil report concluded that there had been "a racial element to the OIG's investigation" and that "race play[ed] a part in the OIG investigation." Id. at 5, 16 n.21. The Ciesil report ultimately found that the OIG report "contain[ed] serious errors, omissions and an exaggeration of key factual conclusions," id. at 5, and determined that there was insufficient evidence to warrant discipline against Sims, id. at 48. The report identified the name and race of the eleven teachers that the OIG interviewed, including Veljkovic's. Id. at 27-29.

After the Ciesil report was released, Chicago Public Schools CEO Forrest Claypool issued a statement thanking Sims and apologizing for the "blight on her reputation" caused bythe OIG report. Doc. 1 at ¶ 32. A person referred to in Veljkovic's complaint as the "Network Chief" recommended that everyone read the Ciesil report because it vindicated Sims. Id. at ¶ 31. The Board reinstated Sims to her position as principal of York. Id. at ¶ 33.

After Sims's reinstatement, she stoked anger against Veljkovic among Veljkovic's colleagues at York. Id. at ¶ 36. Veljkovic was moved from division to division within York and excluded from important communications and invitations, and some colleagues no longer worked cooperatively with her. Id. at ¶ 37. Veljkovic fell ill with a condition exacerbated by the treatment she experienced, and she resigned her employment on January 8, 2019. Id. at ¶ 39.

Discussion

Veljkovic claims that she was subjected to the above-described mistreatment because she is white, in violation of Titles VI and VII. Id. at ¶¶ 41-46, 66-71. She also claims that the Board retaliated against her for opposing race discrimination through her participation in the OIG and Ciesil investigations, in violation of Titles VI and VII. Id. at ¶¶ 47-57, 72-82. Finally, she claims that the Board retaliated against her for opposing sex discrimination through her participation in the OIG and Ciesil investigations, in violation of Title IX. Id. at ¶¶ 58-65. The Board moves to dismiss all her claims. Doc. 22.

I. Title VI Claims

Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. The Board argues that Veljkovic's Title VI claims should be dismissed because Title VI does not extend to its employment relationship with her. Doc. 22 at 5-6. The Board is correct, for two distinct but related reasons.

First, by its express terms, Title VI may not be construed "to authorize action ... by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment." 42 U.S.C. § 2000d-3 (emphasis added). Congress enacted § 2000d-3 out of "concern that the receipt of any form of financial assistance might render an employer subject to the commands of Title VI rather than Title VII." Johnson v. Transp. Agency, 480 U.S. 616, 627 n.6 (1987). In Ahern v. Board of Education of Chicago, 133 F.3d 975 (7th Cir. 1998), the Seventh Circuit interpreted § 2000d-3 to limit employment discrimination claims under Title VI to cases in which "(1) providing employment is a primary objective of the federal aid, or (2) discrimination in employment necessarily causes discrimination against the primary beneficiaries of the federal aid." Id. at 978 (quoting Trageser v. Libbie Rehab. Ctr., Inc., 590 F.2d 87, 89 (4th Cir. 1978)); see Doe ex rel. Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411, 419 n.12 (7th Cir. 1986) ("Although section 2000d-3 expressly addresses only agency action, courts have uniformly held that, even in private actions under Title VI, the primary objective of the federal grant must be to provide employment."), overruled on other grounds by Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487 (7th Cir. 1996).

Veljkovic's allegations meet neither prong of the Ahern test. As to the first, it is true that the Board receives federal education funds under Title I of the Elementary and Secondary Education Act, 20 U.S.C. § 6301 et seq. Doc. 1-2 at 15 (indicating that the Board allocates Title I funds to York). But the statutorily defined purpose of Title I is "to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps." 20 U.S.C. § 6301. Because the "primary objective" of Title I aid is to educate students, and because employing teachers is only a means to that end,Veljkovic's claims fail to satisfy the first Ahern prong. In fact, the Department of Education, which administers Title I, has promulgated regulations enumerating the statutes that, in its considered view, have employment as a primary objective, and Title I is not among them. See 34 C.F.R. § 100.3(c)(1); id. pt. 100, app. A.

As to the second Ahern prong, race discrimination in teacher employment can sometimes cause discrimination against students, the primary beneficiaries of Title I funds. See Ahern, 133...