IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THERESA A. JOHNSON,

Plaintiff,

v.

ZION SCHOOL DISTRICT NO. 6,

Defendant.

Case No. 12 C 5067

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant’s Motion to Dismiss portions of

Plaintiff’s Complaint. For the reasons stated herein, the Motion

is granted in part and denied in part.

I. BACKGROUND

The following facts are taken as stated in Plaintiff’s

Complaint and response. While several allegations are unclear, as

best as the Court can make out, pro se Plaintiff Theresa A. Johnson

(hereinafter, “Johnson” or “Plaintiff”) applied to teach as a

substitute teacher at Defendant Zion School District No. 6

(hereinafter, “Zion” or “Defendant”) in August 2011. Plaintiff

said she had previously made Defendant aware, through a 2005

application, that she was unable to climb stairs. Two days after

applying, she requested “in writing for long-term [work] only

because it accommodated my Disability.” Pl.’s Resp. at 4. The

Court is uncertain as to whether this means she modified her
application to request only long-term substitute teaching positions

or whether she was modifying her application to request only a

full-time, non-substitute teaching position. That same month, Zion

“deactivated” her application. Id. at 5. Plaintiff discovered

this when she went into Zion’s Human Resources Department in

February 2012. At that time, the Human Resources Department called

four elementary schools in the district to ascertain whether they

were single-story schools that could accommodate Plaintiff’s

disability. During that interaction, Plaintiff saw in her

personnel folder a complaint letter that another teacher filed

sometime in 2007 or 2008. (The substance of the complaint was that

Plaintiff “injured or taught an ‘evil’ subject to students.” Pl.’s

Resp. at 7.) Plaintiff says the teacher’s complaint is false and

Defendants refuse to remove it from her file. She believes the

complaint kept her from being hired in 2011. Plaintiff notes that

Defendant has the same law firm that represented a neighboring

school district in an earlier disability lawsuit by her (Johnson v.

Waukegan School Dist. 60, 10 CV 2183) and that Zion is retaliating

against her for that lawsuit against another school district.

Plaintiff’s Complaint is literally of the fill-in-the-blank,

form variety. It alleges age and disability discrimination. 

Specifically, it alleges that Defendant (1) failed to hire

Plaintiff; (2) terminated the Plaintiff’s employment; (3) failed to

promote the Plaintiff to a long-term position; (4) failed to

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reasonably accommodate Plaintiff’s disabilities; (5) retaliated

against the Plaintiff because Plaintiff did something to assert

rights protected by the ADEA and ADA; and (6) committed a personnel

file violation (slander and libel). She goes on to allege that the

Defendant hired uncertified teachers before her, a certified

substitute teacher and hired younger applicants. Finally,

Plaintiff alleges that Defendant discriminates against the disabled

because its substitute teacher manual contains the following

provision:

HEALTH REQUIREMENTS. All substitute teachers working

with children in schools in Illinois must have a recent

physical and negative TB X-ray or skin test on file. The

state also requires freedom from communicable disease and

physical and mental fitness to teach. 

Pl.’s Resp. at 2, Pl.’s Supplemental Filing, at 2 (ECF No. 30,

PageID 84). 

Defendants move to dismiss portions of Plaintiff’s Complaint

on the grounds that it fails to state a claim upon which relief can

be granted.

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.

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

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

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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. Defamation

The Court is unfamiliar with any cause of action known as

“personnel file violation” and so interprets this complaint as one

for defamation. As Defendant points out, to state a claim for

defamation, the Plaintiff must allege that (1) Defendant made a

false statement about her, (2) there was an unprivileged

publication of the defamatory statement to a third party by

Defendant, and (3) the Plaintiff was damaged. Morton Grove

Pharms., Inc. v. Nat’l Pediculosis Ass’n, 494 F.Supp.2d 934, 939

(N.D. Ill. 2007). 

Plaintiff has pled herself out of court on this count. By her

own filings, she admits that the Defendant did not make this

defamatory statement, an unnamed teacher did. Plaintiff also fails

to allege the Defendant ever published this statement to a third

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party. Because the Court cannot fathom how keeping someone’s

complaint in a personnel file could constitute defamation,

amendment in regards to this claim would be futile. Hukic v.

Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (noting

District Courts have broad discretion to deny leave to amend where

there is undue delay, bad faith, dilatory motive, repeated failure

to cure deficiencies, undue prejudice to the defendants, or where

the amendment would be futile). The defamation claim is dismissed

with prejudice.

B. Retaliation

Defendant moves to dismiss the ADA retaliation claim because

Plaintiff never identified any protected conduct for which she was

retaliated against. In her response, Plaintiff alleges that

because Defendant and a completely unrelated district share the

same law firm, she was retaliated against for filing suit against

the unrelated district. As she argues, “[a] jury could reasonable

[sic] believe that 2 neighboring schools refused to hire Plaintiff

during the 2011-12 is not a Coincidence!” Pl.’s Resp. at 7. The

Court respectfully disagrees. To survive a motion to dismiss, a

complaint draws all reasonable inferences in a Plaintiff’s favor,

but “unless well-pled factual allegations move the claims from

conceivable to plausible, they are insufficient to state a claim.” 

Magnus v. St. Mark United Methodist Church, No. 10-C-380, 2010 U.S.

Dist. LEXIS 111152, at *7 (N.D. Ill. Oct. 19, 2010) (citing Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff’s

tortured law firm connection is far from plausible, purely

speculative and not sufficient to survive a motion to dismiss.

To the extent Plaintiff is alleging retaliation due to the

teacher’s complaint from 2007-2008, Defendants are correct that

this does not allege any activity protected by the ADA. Jones v.

Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010) (claim for

retaliation must demonstrate Plaintiff engaged in statutorily

protected activity). The retaliation claim is dismissed.

C. Failure to Accommodate

Defendant argues that Plaintiff’s Complaint failed to allege

that she requested any accommodation for her disability. 

Plaintiff’s response does clarify that Plaintiff asked to be

assigned to single-story schools. However, Defendants further

argue that Plaintiff cannot plead this cause of action because she

failed to identify it in her EEOC charge. Defendant, rather than

Plaintiff, attached a copy of the EEOC complaint to its filings.

Ordinarily, consideration of matters outside the pleadings

requires conversion of the motion to dismiss to a motion for

summary judgment and the Plaintiff must be given an opportunity to

respond. FED. R. CIV. P. 12(d). However, where a Plaintiff refers

to a document in her Complaint and that document is central to her

claim, the Court may consider it without converting the motion to

dismiss to one for summary judgment. Geinosky v. City of Chicago,

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675 F.3d 743, 745 n.1 (7th Cir. 2012). Plaintiff mentioned her

EEOC charge in her Complaint, and it is certainly central to her

Title VII claim because she cannot file suit without making such an

EEOC charge and exhausting her administrative remedies. 42 U.S.C.

§ 2000e-5(e), (f). Thus, the Court may consider Plaintiff’s EEOC

charge and whether the failure to accommodate charge is within the

scope of that EEOC charge.

At a minimum, the Complaint filed in the district court and

the charge filed with the EEOC must describe the same circumstances

and participants. Conner v. Illinois Dep’t. of Natural Res., 413

F.3d 675, 680 (7th Cir. 2005). In Connor, the Court dismissed a

failure-to-promote claim when that failure to promote occurred one

month after the EEOC charge was filed, reasoning that the charge in

the lawsuit was necessarily outside the scope of the EEOC charge.

Id. See also Teal v. Potter, 559 F.3d 687, 692-692 (7th Cir.

2009)(postal worker’s July 2003 termination not within the scope of

EEOC complaint regarding worker’s March 2002 termination); see also

Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 920 (7th Cir. 2000)

(lawsuit’s failure-to-rehire claim not reasonably related to EEOC

termination claim); see also Cheek v. W. & S. Life Ins. Co., 31

F.3d 497, 500-501 (7th Cir. 1994) (insurance saleswoman’s EEOC sex

discrimination charge based on being made to pay client’s premiums

not reasonably related to lawsuit sex discrimination charge based

on transfer of position).

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In this case, Plaintiff checked “retaliation,” “age,” and

“disability” discrimination on her EEOC form. Her description of

the discrimination follows in its entirety:

I applied to work as a Substitute Teacher for Respondent

in or around September 2011. Respondent is aware of my

disability. Respondent has been maintaining a coworker’s

complaint about my substitute teaching in 2007 in my

personnel file. I was not offered employment until

February 23, 2013, although I have been available for

work throughout the school year. I believe that I was

discriminated against because of my disability, in

violation of the Americans with Disabilities Act of 1990,

as amended. I also believe that I was discriminated

against because of my age, 61 (d.o.b. 10-12-1950), in

violation of the Age Discrimination in Employment Act of

1967, as amended. I also believe that I was retaliated

against because of the coworker complaint from 2007.

Def.’s Mot. to Dismiss, Ex. 1. 

The Court sees nothing in the EEOC charge that would indicate

to the EEOC it should investigate a failure to accommodate charge. 

Thus, the Court agrees with Defendant that the failure to

accommodate charge is not “reasonably related” to the EEOC charge

and the failure to accommodate charge is dismissed.

D. Scope of the ADA Discrimination Claim

Defendant makes a similar argument in regards to the

discrimination charge. It argues that the claims that Plaintiff

was terminated from employment and not given long-term employment

are outside the scope of the EEOC claim of failure-to-hire. Def.’s

Mot. to Dismiss at 5. Again, the Court sees nothing in the EEOC

charge that would lead that agency to investigate claims of

discrimination in regards to being fired or not given long-term

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employment. Nowhere does the EEOC charge say she was fired or that

she was even applying for long-term employment. Thus, the Court

agrees with Defendants that these allegations are not reasonably

related to the failure-to-hire claim, and they are dismissed.

Defendant appears to argue also that the ADA discrimination

claim should be dismissed in its entirety because Plaintiff did not

adequately identify her disability. In her response, Plaintiff

stated she suffers from fibromyalgia, arthritis, osteoarthritis and

a sleep disorder. Pl.’s Resp. at 2. The Court deems this

sufficient at the motion to dismiss stage. See Feldman v. Olin

Corp., 692 F.3d 748, 752 (reversing district court decision that

plaintiff with fibromyalgia could not show he was disabled within

the meaning of the ADA). Although Feldman dealt with a sleep

disorder, rather than a mobility disorder as this case seems to, at

the motion to dismiss stage, Plaintiff has alleged adequately that

her multiple, named disorders inhibit a major life activity of

walking (she implicitly alleges she cannot climb stairs). While

the issue may be revisited in more depth if the case proceeds to

summary judgment, at this stage the allegations are sufficient). 

Defendant also alleges that Plaintiff’s listing of these

impairments in the response is insufficient to put it on notice of

her disability. This is incorrect. A Plaintiff has latitude to

state further allegations in a response to defeat a motion to

dismiss. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1

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(7th Cir. 2012) (noting that a Plaintiff may elaborate on his

factual allegations so long as the new elaborations are consistent

with the pleadings). Therefore, the failure-to-hire ADA

discrimination claim may proceed.

IV. CONCLUSION

For the reasons stated herein, the Court grants Defendant’s

Motion to Dismiss the ADA retaliation claim, the defamation claim,

the ADA failure to accommodate claim, the ADA discrimination claim

based on firing, and the ADA discrimination claim based on a

failure to hire to a long-term position.

The ADA discrimination claim based on a failure to hire

remains, and Defendants have not sought to dismiss the age

discrimination claim, so it likewise remains.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE:12/28/2012

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