A. Deprivation of a constitutional right

In denying Cardwell’s motion to reconsider the order dismissing Count II, the court found
that his § 1983 claim did not give defendants notice of the conduct that allegedly violated his
constitutional rights. See McCormick v. City of Chicago, 230 F.3d 319, 325 (7" Cir. 2000)
(plaintiffs must allege the facts necessary to give defendants an understanding of the charges
against them). The complaint made references to numerous legal theories but failed to offer
factual bases to support them. Defendants contend the amended complaint does not cure this
deficiency. The court disagrees.

The amended complaint, like the original complaint, refers to violations of Cardwell’s
rights to privacy, equal protection, and due process. In addition, the amended complaint refers to
Cardwell’s rights to enjoy employment and a reputation as a high school custodian. The
amended complaint includes factual bases for most of the constitutional deprivation allegations.
Specifically, Cardwell alleges the board engaged in disability discrimination when it failed to: (1)
reinstate him to full-time status; (2) sanction individuals who harassed him; (3) grant him
overtime when non-disabled workers were given overtime; and (4) pay him wages equal to those
of non-disabled workers. Am. Cmplt. at {J 42, 50(a) and (b). Cardwell further alleges
defendants maliciously slandered his reputation by spreading rumors that he solicited another
person to take his driver’s license certification tests. Am. Cmplt. at {] 38(a), 50(c). Defendants
have adequate notice of the factual basis for the discrimination claims.

The fact that Count IJ refers to vague or incorrect legal theories does not mandate
dismissal. “The complaint need not identify a legal theory, and specifying an incorrect theory is

not fatal.” Burton v. Sheahan, 68 F.Supp.2d 974, 976 (N.D. Ill. 1999). Read in a light most

-4.


shunned his mother who worked in the school’s cafeteria, and attempted to turn other custodians
against him. At one point, management threatened to terminate Cardwell’s employment for
failing to empty a garbage can two days in a row and mistakenly throwing out a binder.
Cardwell eventually filed a complaint with the EEOC. He asserts the Board retaliated
against him for filing the EEOC complaint by not restoring him to full-time employment status

until October 10, 2000.

DISCUSSION

I. Motion to dismiss standard

In ruling on a motion to dismiss, the court considers “whether relief is possible
under any set of facts that could be established consistent with the allegations.” Pokuta v. Trans
World Airlines, Inc., 191 F.3d 834, 839 (7" Cir. 1999) (citing Conley v. Gibson, 355 U.S. 41, 45-
46 (1957)). A claim may be dismissed only if there is no set of facts that would entitle the
plaintiff to relief based on the allegations in the complaint. Vonderohe v. B & S of Fort Wayne,
Inc., 36 F.Supp.2d 1079, 1081 (7" Cir. 1999). A motion to dismiss tests the sufficiency of the
complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7" Cir. 1990).
Il. Count II

Cardwell’s amended complaint reasserts a claim against defendants for violations of §

1983. In order to recover under § 1983, Cardwell must establish defendants deprived him of a
constitutionally protected right, and the deprivation was caused by a municipal policy or custom.

Leahy v. Board of Tr. of Comm. College Dist. No. 508, 912 F.2d 917, 922 (7 Cir. 1990).

3.


favorable to Cardwell, Count II implicates equal protection concerns. Accordingly, Cardwell’s
discrimination allegations satisfy § 1983's first prong.

Count II further alleges defendants interfered with Cardwell’s right to privacy by
disclosing “confidential medical and other private information.” Am Cmplt. at J 50(d).
Pursuant to Fed.R.Civ.P. 10(b), “Each claim founded upon a separate transaction or occurrence .
. . Shall be stated in a separate count . .. whenever a separation facilitates the clear presentation
of matters set forth.” Cardwell’s factual basis for his right to privacy claim is distinct from his
discrimination claim. Including both sets of facts in Count II, along with a mixture of legal
theories, is confusing and problematic. In addition, Cardwell’s privacy claim is vague. Although
Cardwell contends the claim is clarified by his deposition testimony, the court is limited to
considering the four corners of the amended complaint. Burton, 68 F.Supp.2d at 978.
Accordingly, {50 (d) must be stricken from the amended complaint. See WCC Funding Limited
v. Gan International, 871 F.Supp. 1017, 1026 (N.D. Ill. 1994) (striking allegations violating
Fed.R.Civ.P. 10(b)).

B. Municipal policy or custom

Defendants assert Cardwell failed to properly allege that a constitutional deprivation was
caused by a municipal policy or custom. In order for Cardwell to establish that a municipal
policy violated his constitutional rights, he must show: (1) defendants had an express policy that
caused a constitutional deprivation; (2) defendants engaged in a widespread practice so
permanent and well-settled that it constituted a custom or usage within the force of law; or (3)
the constitutional injury was caused by a person with final policymaking authority. McCormick,

230 F.3d at 324.

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n

Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Suzanne B. Conlon Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 00 C 7147 DATE 7/9/2001
CASE CARDWELL vs. BOARD OF EDUCATION, REAVIS COMMUNITY HIGH
TITLE SCHOOL DISTRICT NO. 220, ET AL.
[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) oO Answer brief to motion due . Reply to answer brief due

(4) o Ruling/Hearing on set for at

(5) OQ Status hearing[held/continued to] [set for/re-set for] on set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) o Trial{set for/re-set for] on at

(8) im [Bench/Jury trial] [Hearing] held/continued to at

(9) (ia This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ClGeneral Rule21 CIFRCP41(a)(1) CO FRCP41(a)(2).

(10) Mi [Otherdocket entry] The motion to dismiss Count II is denied. Defendants are directed to answer
Count II by July 17, 2001. Paragraph 50(d) of the amended complaint is stricken. ENTER
MEMORANDUM AND OPINION ORDER.

(1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

< Document "~
Number .

oY | Notices mailed by judge’s staff,

JUL 4.2 2001

Bate docketed

mou

Notified counsel by telephone.

Docketing to mail notices

Mail AO 450 form.

Copy to judge/magistrate judge.

‘19/2001
PAT 33
courtroom gi JUL V1 dan acdsee
sb deputy’s _
initials

Date/time received in
central Clerk's Office

maiting deputy initiats

SO



Cardwell alleges defendants were final policymakers and their discriminatory actions
were the result of a municipal policy. Am. Cmplt. at {{ 44-49. These allegations are sufficient
for purposes of a motion to dismiss. Jd. (phrases such as “highest policymaking officers” and
“widespread custom” enable a § 1983 plaintiff to withstand a motion to dismiss). “[F]ederal
courts and litigants must rely on summary judgment and control of discovery to weed out
unmeritorious claims sooner rather than later.” Jd. (internal citations omitted). Accordingly,

defendants’ motion to dismiss Count II must be denied.

CONCLUSION

The motion to dismiss Count II is denied. Paragraph 50(d) of the amended complaint

asserting a violation of the right to privacy is stricken.

ENTER:

l,

‘idanne B. Conlon
United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED

EASTERN DIVISION JUL 12 2001
JEFF CARDWELL, )

Plaintiff, } No. 00 C7147
Vv. } Suzanne B. Conlon, Judge

BOARD OF EDUCATION, REAVIS ;
COMMUNITY HIGH SCHOOL DISTRICT NO.)
220, et al. )
Defendants. }

MEMORANDUM OPINION AND ORDER

Jeff Cardwell (“Cardwell”) sues the Board of Education, Reavis Community High
School District No. 220 (“the board”), various school officials, and members of the Board
(collectively “defendants”) for violations of the Americans With Disabilities Act, 42 U.S.C. §
12111 (Count J, violations of 42 U.S.C. § 1983 (“§ 1983") (Count II), retaliation (Count II},
breach of contract (Counts IV-V), and intentional infliction of emotional distress (Count VI).
The State and Municipal Teamsters and Chauffeurs and Helpers Union Local No. 726 (“the
union”) was dismissed from this action. This court dismissed Count II without prejudice and
denied Cardwell’s motion for reconsideration. Cardwell filed an amended complaint on April
18, 2001. Defendants move to dismiss Count II of the amended complaint, pursuant to

Fed.R.Civ.P. 12(b)(6).

-1-

ing


» BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the
complaint as true and draws all reasonable inferences in favor of the nonmovant. Stachon v.
United Consumers Club, Inc., 229 F.3d 673, 675 (7" Cir. 2000). The board hired Cardwell as a
full-time school custodian/driver on October 28, 1991. Prior to 1991, the union and the board
entered into a collective bargaining agreement concerning employment terms and conditions for
the school’s employees. As a term of employment, Cardwell was required to submit to yearly
physical and eye examinations. Cardwell was born legally blind in his right eye. From 1991
through 1998, the doctors who examined Cardwell found his vision was adequate for a
commercial driver’s license.

In October 1998, the board used a new optometrist for the eye examinations. The
new optometrist refused to certify Cardwell’s vision as adequate for a license. Consequently, the
board no longer allowed Cardwell to drive a bus. Cardwell then applied for a full-time custodian
position and was hired. His salary as a custodian was lower than his salary as a custodian/driver.

Cardwell contends that beginning in October 1998, he lost overtime opportunities to
employees with less seniority. Tom Kelly and Ray Negrete (“Negrete”), members of the board,
issued a directive that he not be given overtime. In addition, Negrete told Cardwell he should
quit his job. On June 28, 1999, Cardwell was demoted to a part-time employee with a lower
salary. Another custodian with less seniority remained a full-time employee.

Cardwell further contends he was harassed by supervisors, managers, and coworkers after
he refused to quit. They allegedly spread false rumors, made false allegations about his work,

deliberately altered seniority rules, deliberately delayed processing his child support payments,

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