IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RUSSELL J. BUDZBAN,

Plaintiff,

v.

DuPAGE COUNTY REGIONAL OFFICE

OF EDUCATION, ADDISON SCHOOL

DISTRICT 4, JOHN R. LANGTON

and JONATHAN HITCHCO,

Individually,

 Defendants.

Case No. 12 C 900

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Board of Education for Addison

School District 4, Addison School District 4, John R. Langton, and

Jonathan Hitchco’s Motion to Dismiss Plaintiff’s Second Amended

Complaint. For the reasons stated herein, the Motion is granted in

part and denied in part.

I. FACTUAL BACKGROUND

Plaintiff Russell J. Budzban (hereinafter, “Budzban” or the

“Plaintiff”) was the Director of Building and Grounds at Defendant

Addison School District 4 (“the District”). Plaintiff’s employment

with the District began in or about December 1995 and lasted until

his termination on February 10, 2010. The instant case concerns

the circumstances surrounding Plaintiff’s termination. 
In his Second Amended Complaint, Plaintiff alleges that

Defendant John R. Langton, the superintendent of the District

(“Langton”) conspired with former assistant superintendent Jonathan

Hitchco (“Hitchco”) to terminate Plaintiff. Specifically,

Plaintiff claims that on or about March 29, 2009, Langton and

Hitchco brought Plaintiff into their office and presented him with

a letter that purported to be from a law firm. The letter accused

Plaintiff of sexual harassment and threatened him with civil

charges. Apparently, Langton and Hitchco presented this letter to

Plaintiff as a practical joke. 

Plaintiff, however, was not amused. He contends that this

letter was the beginning of a “scheme” to drive Plaintiff out of

his job. Pl.’s Second Amended Compl. at 1. He claims that the

purpose of the letter was to put him in a constant state of fear

that his job was in jeopardy and avers that letter prompted further

harassment from Langton and Hitchco. 

Plaintiff also claims that he suffers from two disabilities -

osteoarthritis and obesity. Id. at 4. Despite these disabilities,

Plaintiff states that throughout his employment with Defendants he

performed his job at satisfactory levels and never received “a

meritorious complaint” about his job performance. Id. at 5. He

contends that Defendants Langton and Hitchco were aware of his

disabilities and the March 2009 letter was an attempt to aggravate

Plaintiff’s existing medical conditions. 

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In the summer of 2009, Marci Boyan (“Boyan”) replaced Hitchco

as assistant superintendent, and took the role of Plaintiff’s

supervisor. Plaintiff claims that almost immediately after Boyan

took the position, she purposely sought to make Plaintiff’s job

more difficult in order to eventually terminate Plaintiff. 

Specifically, Plaintiff claims that Boyan gave him assignments that

were beyond his job description without offering any additional

training. 

In the fall of 2009, Plaintiff claims he arranged a meeting

with Langton to discuss the increased stress levels he was

suffering as a result of the new job duties Boyan assigned him. 

Allegedly, Plaintiff asked Langton to talk to Boyan about the

stress Boyan was imposing on Plaintiff. Langton refused to

intervene on Plaintiff’s behalf. 

Shortly after the meeting with Langton, Plaintiff met with

Boyan himself and informed her that he needed to schedule time off

from work to undergo bariatric and knee replacement surgeries. At

this time, Plaintiff assured Boyan that he would continue to

perform his job satisfactorily until his surgeries and stated that

he expected to return to work after the surgeries. Plaintiff

claims that after this meeting, Boyan continued to make him feel

that his job was in jeopardy and continued to aggravate his medical

condition. 

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On or about February 8, 2010, Plaintiff received a letter from

Administrative Services, informing him that he was being

terminated. Plaintiff contends that the reason for the termination

was the “pretext of a position elimination.” Id. at 4. 

On or about November 22, 2010, Plaintiff filed a charge of

discrimination against the District with both the Illinois

Department of Human Rights and Equal Employment Opportunity

Commission (the “EEOC”). In January 2012, the EEOC issued

Plaintiff a Right-to-Sue letter. See Pl.’s Compl.; Ex. D at 1. 

On February 8, 2012, Plaintiff filed a Complaint in this Court

against Defendants Langton, Hitchco, Board of Education for Addison

School District 4 (“the Board), the District, and DuPage County

Regional Office of Education. In his Second Amended Complaint,

Plaintiff lodges twelve separate claims against various Defendants. 

On October 10, 2012, Defendants the Board, the District,

Hitchco, and Langton filed a Motion to Dismiss the entirety of

Plaintiff’s Complaint. In response, Plaintiff consented to the

dismissal of Counts II, V, VIII, IX, XI, and XII, but argues

dismissal of the remaining Counts is unwarranted. 

II. LEGAL STANDARD

When evaluating dismissal under Rule 12(b)(6), the Court takes

all well-pleaded allegations of the Complaint as true and views

them in the light most favorable to the plaintiff. Appert v.

Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir.

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2012). To satisfy the notice-pleading standard of Rule 8, a

complaint must provide a “short and plain statement of the claim

showing that the pleader is entitled to relief, and is sufficient

to provide the defendant with fair notice of the claim and its

basis.” Id. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. 

Id. Determining whether a complaint states a plausible claim is

context-specific, requiring the reviewing court to draw on its

experience and common sense. Ashcroft v. Iqbal, 556 U.S. 662, 663-

664 (2009). 

III. ANALYSIS

A. Count I

Count I alleges that all Defendants are liable under 42 U.S.C.

§ 1983. Defendants argue that Count I of Plaintiff’s Complaint

must be dismissed because Plaintiff fails to allege that he was

deprived of a federal right. 

To establish a prima facie case under Section 1983, a

plaintiff must plead that “(1) the deprivation of a right secured

by the Constitution and the laws of the United States; and (2) that

the deprivation was committed by a person acting under the color of

state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Thus, the

initial determination is whether Defendants deprived Plaintiff of

a constitutional right. In Count I, Plaintiff claims Defendants

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deprived him of liberty and property interests without due process

of law. Plaintiff also alleges Defendants violated the Equal

Protection clause of the Fourteenth Amendment. 

1. Liberty Interest

In order to plead the deprivation of an occupational liberty

interest, a plaintiff must allege “(1) the employer made

stigmatizing comments; (2) the comments were publicly disclosed;

(3) the plaintiff suffered a tangible loss of other employment

opportunities as a result.” Bryant v. Gardner, 545 F.Supp.2d 791,

800 (N.D. Ill. 2008). In instances such as these, the “employee’s

good name, reputation, honor, or integrity must be called into

question in a manner that makes it virtually impossible for the

employee to find new employment in his chosen field.” RJB

Properties, Inc. v. Bd. of Educ. of the City of Chicago, 468 F.3d

1005, 1011 (7th Cir. 2006). In his Complaint, Plaintiff’s claimed

liberty right is that he is entitled “not to be falsely accused of

crimes, civil wrongs, or other acts that would be damaging to the

Plaintiff’s reputation.” Pl.’s Memo. In Opp. to Defs.’ Mots. to

Dismiss the Second Amended Comp. at 7. However, Plaintiff fails to

allege anywhere in his complaint that the comments in the March

2009 letter were publicly disclosed and fails to allege that the

actions of Langton and Hitchco and the comments in the letter have

prevented Plaintiff from securing employment elsewhere. As such,

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the Court does not find Plaintiff has alleged a liberty interest

for the purposes of Section 1983. 

2. Property Interest

Plaintiff claims he is entitled to the property interest of

“not being deprived of his public employment in ways that would

violate the employer’s established policies or established state

and federal law.” Pl.’s Comp. at 13. Defendants argue that

Plaintiff fails to allege a protected property interest. The Court

agrees. 

To have a property interest protected by the Fourteenth

Amendment, a Plaintiff must have “more than a unilateral

expectation of [the claimed interest].” Santana v. Cook County Bd.

of Review, 679 F.3d 614, 621 (7th Cir. 2012). Instead, a plaintiff

must “have a legitimate claim of entitlement to it.” Id. An

entitlement arises when “statutes[,] regulations [or a

contract] . . . establish a framework of factual conditions

delimiting entitlements which are capable of being explored at a

due process hearing.” Id. citing Khan v. Bland, 630 F.3d 519, 527

(7th Cir. 2010). 

Plaintiff alleges that the entitlement to his property

interest stems from “the employer’s established policies or

established state and federal law.” Pl.’s Compl. at 13. He

specifically references the Illinois School Code. Id. at 16. 

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For starters, Plaintiff fails to identify any state or federal

law which purports to provide Plaintiff a continued right to

employment as the Director of Building and Grounds. Given the

Supreme Court’s pleading standards in Bell Atlantic Corp. v.

Twombly and Ashcroft v. Iqbal, the Court does not find Plaintiff’s

bald assertion that there is some state or federal law that

entitles him to continued employment sufficient to claim a property

interest. See generally 550 U.S. 544 (2007); 556 U.S. 662 (2009). 

Next, the Court finds Plaintiff’s reference to the Illinois

School Code as the source of his property interest lacks merit. 

In Bruce v. Board of Education of the City of Chicago, an

employee levied a Section 1983 claim against various employer

defendants claiming that he had a property interest in his job

because of the relevant provisions in the Illinois School Code. 

Bruce v. Board of Education of the City of Chicago, No. 10-CV-1519,

2011 U.S. Dist. LEXIS 99411 at *19-21 (N.D. Ill. Aug. 31, 2011). 

In finding the plaintiff’s claimed property right infirm, the court

noted that the plaintiff only claimed an entitlement to certain

procedures, and he failed to point to anything other than a

provision in the Illinois School Code which provided him a

protected interest in his job. Id. at *18-19. The plaintiff in

Bruce claimed that the Illinois School Code was part of Illinois

law and the defendants violated the Code because they failed to

provide him 30 days’ written notice, failed to provide him “a

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statement of honorable dismissal[,]” and failed to offer him any

new position that became available in the next calendar year. Id.

at *19 citing 105 ILCS 5.10-23.5. 

The court in Bruce was not persuaded. It held “a violation of

state or local procedure is not a denial of constitutional due

process.” Id. at *20 citing Osteen v. Henley, 13 F.3d 221, 225

(7th Cir. 1993). Rather, “when the claimed deprivation of property

is the loss of a job, the entitlement must be to a job, rather than

just to a set of disciplinary procedures.” Campbell v. City of

Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991). 

The Court finds Plaintiff’s allegations in this case analogous

with the ones the Plaintiff made in Bruce. Here, Plaintiff cites

the exact same provisions of the Illinois School Code as the

plaintiff in Bruce as support of his claimed property interest. 

Moreover, nowhere in Plaintiff’s complaint does he claim that he

was a tenured employee or entitled to continued employment. 

Accordingly, the Court finds Plaintiff fails to establish a

protected property interest for Section 1983 purposes. 

3. Equal Protection

Finally, Plaintiff argues that he has a viable Section 1983

claim because Defendants violated his Fourteenth Amendment right to

equal protection. Plaintiff claims Defendants discriminated

against him on the basis of his disability. 

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In order to state an equal protection claim under § 1983, this

Court has held that a plaintiff must demonstrate that (1) he is a

member of a protected class; (2) he was similarly situated to

individuals not of the protected class; (3) he was treated

differently than those similarly-situated individuals; and (4)

those who treated him differently acted with discriminatory intent. 

Guy v. State of Illinois, 958 F.Supp. 1300, 1307 (N.D. Ill. 1997)

(Leinenweber, J.) citing Johnson v. City of Fort Wayne, 91 F.3d

922, 944-45 (7th Cir. 1996). 

Even assuming that the entirety of Plaintiff’s allegations are

true, the Court finds Plaintiff’s Section 1983 equal protection

pleadings deficient. In his complaint, Plaintiff merely states:

[a]s a citizen of the United States and the State of

Illinois, Plaintiff enjoyed numerous statutory

protections in his employment by the Defendant, including

the right not to be discriminated against on the basis of

age or disability, as well as the protections of the

Illinois School Code, which have been cited above. 

Pl.’s Compl. at 13. 

While Plaintiff seems to imply that because he is disabled he

is a member of a protected class, he fails to allege that he was

similarly situated to other educational support staff employees who

were not disabled, and he was treated differently than those

similarly situated employees. As such, the Court finds Plaintiff

fails to state sufficiently an equal protection 1983 claim. 

Because the Court finds Plaintiff’s pleadings fail to allege

a liberty or property interest, and fail to allege an equal

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protection claim under Section 1983, the Court dismisses Count I of

Plaintiff’s Complaint. 

B. Counts III & IV

In Counts III and IV, Plaintiff alternatively claims that

Defendants Langton and Hitchco are liable under Section 1983 in

their individual capacities. In his Complaint, Plaintiff

incorporates the allegations from Count I as support for Counts III

and IV. 

In light of the Court’s finding that Plaintiff failed to

allege a valid liberty or property interest and failed to allege an

equal protection claim under the Fourteenth Amendment, the Court

dismisses Counts III and IV. 

C. Count VI

Count VI alleges that the District and the Board violated 42

U.S.C. § 12112(a) for failing to accommodate Plaintiff because of

his disabilities. Defendants argue Count VI of Plaintiff’s

Complaint should be dismissed because Plaintiff fails to allege how

Defendants neglected to accommodate Plaintiff and fails to allege

that his disability limited his ability to perform his job. 

In order to establish a failure to accommodate claim under the

Americans with Disabilities Act (“ADA”), a plaintiff must claim

that (1) he is “a qualified individual with a disability”; (2) the

defendant was aware of the disability; and (3) the defendant failed

to reasonably accommodate the disability. EEOC v. Sears, Roebuck

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& Co., 417 F.3d 789, 797 (7th Cir. 2005). The ADA defines

disability as “(1) physical or mental impairment that substantially

limits one or more of the major life activities of such individual;

(2) a record of such impairment; and (3) being regarded as having

such impairment.” Id. citing 42 U.S.C. § 12102(2). 

In his Complaint, Plaintiff alleges that his disabilities are

osteoarthritis and obesity. Pl.’s Compl. at 22. Plaintiff also

claims that Defendants were aware of Plaintiff’s disabilities and

were aware that he would need reasonable accommodations. Id. at

23. He states that his disabilities limited his ability to do his

job because the disabilities made it more difficult for Plaintiff

to “get into schools[,]” and to perform tasks involving “physical

labor.” Id. at 5; 23. Plaintiff also claims that Defendants

failed to accommodate Plaintiff by refusing to provide Plaintiff

additional training for the new job duties, refusing to reassure

Plaintiff that his job was secure, refusing to accommodate

Plaintiff’s request to reduce his stress, refusing to provide

Plaintiff “assistance with physical labor,” and refusing to allow

Plaintiff to increase the use of his assistants because of his

disabilities. Id.

While the Court agrees with Defendants that many of

Plaintiff’s allegations with respect to Count VI are inactionable

under the ADA, the Court finds plausible Plaintiff’s claims that

Defendants failed to provide Plaintiff additional assistance with

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physical labor and refused to allow Plaintiff to use his assistants

more frequently in light of his disabilities. The Court reminds

Plaintiff it will be his burden to prove that reasonable

accommodations for Plaintiff existed. Accordingly, the Court finds

Count VI states a valid claim. 

D. Count VII

Count VII alleges that the District and the Board violated the

ADA by retaliating against Plaintiff because he was disabled. 

Defendants argue Count VII should be dismissed because Plaintiff

fails to allege a “causal link between protected activity and his

release from employment.” Defs.’ Mot. to Dismiss Pl.’s Second

Amend. Compl. at 11. 

The ADA prohibits employers from retaliating against employees

who assert their right to be free from discrimination. 42 U.S.C.

§ 12203(a). A retaliation claim under the ADA can be established

using either direct or indirect proof. Kersting v. Wal-Mart

Stores, Inc., 250 F.3d 1109, 1117 (7th Cir. 2001). To state a

claim of under the direct proof method, a plaintiff must show (1)

that he engaged in a statutorily protected activity; (2) that he

suffered an adverse action; and (3) that a causal connection

between the two exists. Casna v. City of Loves Park, 574 F.3d 420,

427 (7th Cir. 2009). 

Plaintiff alleges that he informed Boyan he would need time

off shortly before he was terminated. Plaintiff also claims that

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he complained of “the discriminating conduct and request[ed]

accommodations . . .” shortly before he was terminated. Since the

termination shortly followed Plaintiff’s request for accommodations

and alleged complaints of discrimination, the allegations

demonstrate a plausible connection between the protected activity

and the adverse action. See Ryan v. Pace Suburban Bus Div. of

Reg’l Transp. Auth., 837 F.Supp.2d 834, 840 (N.D. Ill. 2011). 

Thus, the Court denies Defendants’ motion to dismiss Count VII. 

E. Count X

Count X of Plaintiff’s Complaint alleges a Title VII hostile

environment claim against all Defendants based on Plaintiff’s

disability. Defendants contend this claim fails because Title VII

does not provide a cause of action for disability discrimination.

“Hostile work environment claims are typically associated with

sexual harassment rather than disability claims.” Silk v. City of

Chicago, 194 F.3d 788, 803 (7th Cir. 1999). The Seventh Circuit

has not explicitly recognized an ADA claim based on harassment or

a hostile work environment. Ballard v. Solid Platforms, Inc.,

No. 2:10-cv-238, 2012 U.S. Dist. LEXIS 45447 at *41-42 (N.D. Ill.

March 27, 2012). “It has, however “assumed the existence of such

claims where resolution of the issue has not been necessary.”” Id.

at *41 citing Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005). 

In those cases, it assumes that “the standards for proving such a

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claim would mirror those . . . established for claims of hostile

work environment under Title VII.” Id. 

For the purposes of this Motion to Dismiss, the Court also

assumes that Plaintiff’s claim for hostile work environment based

on his alleged disabilities is theoretically cognizable. As such,

the Court assesses Plaintiff’s pleadings under the same Title VII

standards applicable to hostile work environment claims based on

sex or race. 

In order to state a Title VII claim based on a hostile work

environment, a plaintiff must establish that (1) his work

environment was subjectively and objectively offensive; (2) his

disability was the cause of the harassment; (3) the harassment was

severe or pervasive; and (4) there is a basis for employer

liability. See Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 390

(7th Cir. 2010). Harassment includes all forms of conduct that

unreasonably interfere with an employee’s work performance.

McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 479 (7th Cir.

1996). For the harassment to be actionable it must be so severe

and so pervasive that it alters the conditions of the employee’s

employment and creates an abusive working atmosphere. Id. “Title

VII (or, for purposes of our analysis, the ADA) does not protect

employees from “equal opportunity” harassers, [or] bullies . . .”

Ballard, 2012 U.S. Dist. LEXIS 45447 at *43. 

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Plaintiff points to the March 2009 letter as well as the

additional duties Boyan required him to perform without additional

training as incidents of harassment. Plaintiff claims that such

harassment was “based on Plaintiff’s disability.” Pl.’s Compl. at

27. He goes on to state that the harassment was severe and

pervasive and the District and the Board were aware of it, but took

no action to prevent it. Id. 

Accepting as true Plaintiff’s allegations, the Court finds

Count X states a claim. Thus, the Court denies Defendants’ Motion

to Dismiss Count X of Plaintiff’s Complaint. 

F. Punitive Damages

In their Motion to Dismiss, Defendants also ask the Court to

dismiss Plaintiff’s claims for punitive damages. With respect to

those claims that remain (Counts VI, VII, and X), the Court notes

that punitive damages are available under Title VII. See generally

Crousore v. Bockman, LLC, No. 1:10-cv-353-TLS, 2012 U.S. Dist.

LEXIS 163224 (N.D. Ind. Nov. 15, 2012) (stating a plaintiff may

recover punitive damages for a Title VII violation if the plaintiff

proves that the defendant engaged in discriminatory practices with

malice or with a reckless indifference to the plaintiff’s protected

rights.). Accordingly, the Court refuses to strike Plaintiff’s

punitive damages request under Count X. 

Plaintiff’s other claims, Counts VI and VII, allege violations

under the ADA. While punitive damages are available for Count VI,

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Plaintiff’s failure to accommodate claim, they are not available

under Count VII, Plaintiff’s ADA retaliation claim. See 42 U.S.C.

§ 1981(a); U.S. E.E.O.C. v. AutoZone, Inc., 822 F.Supp.2d 824 (C.D.

Ill. 2011) (finding punitive damages are available in an ADA

failure to accommodate case); Kramer v. Banc of Am. Sec., LLC, 355

F.3d 961, 965 (7th Cir. 2004) (finding an ADA retaliation claim

does not permit punitive damages because it is not listed in

Section 1981(a))). As such, the Court strikes Plaintiff’s request

for punitive damages under Count VII. 

IV. CONCLUSION

For the reasons stated herein, the Court rules as follows:

1. grants Defendants’ Motion to Dismiss Counts I, III, and

IV of Plaintiff’s Second Amended Complaint;

2. denies Defendants’ Motion to Dismiss Counts VI, VII, and

X of Plaintiff’s Second Amended Complaint;

3. grants Defendants’ Motion to Strike Plaintiff’s punitive

damages request under Count VII; and

4. denies Defendants’ Motion to Strike Plaintiff’s punitive

damages request under Counts VI and X. 

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE: 1/14/2013

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