DISCUSSION

I. Motion to Dismiss

Inruling 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 (7th 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. Conley, 355 U.S. at 45-46. A motion to dismiss tests the
sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990).
Il. Section 1981 claim

DaMota contends reassignments are not actionable under § 1981. Section 1981 prohibits
intentional discrimination on the basis of race or ethnicity in making or enforcing a contract. 42
US.C. § 1981; Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). To establish a § 1981
claim, Huynh must show: (1) she is a member of a racial minority; (2) DaMota intended to
discriminate on the basis of race; and (3) the discrimination concerned one of the activities
enumerated in the statute, i.e. the making or enforcing of a contract. Morris v. Office Max, Inc., 89
F.3d 411, 413 (7th Cir. 1996). A claim of employment discrimination is actionable under § 1981.
Sanghvi v. St. Catherine’s Hosp., Inc., 258 F 34570 (7th Cir. 2001); Vakharia v. Swedish Covenant
Hosp., 190 F.3d 799 (7th Cir. 1999).

It is undisputed Huynh sufficiently alleges the first two elements. However, DaMota
contends Huynh’s allegations of reassignments at Clemente do not concern the enforcement of a

contract. In 1991, Congress amended § 1981 to overrule Patterson vy, McLean Credit Union, 491


of performance. She asked for parental assistance in improving their aptitude. Huynh sent copies
of that letter to DaMota, Paul G. Vallas, Chairman of the Board, and Jean M. Bloechl,
communications manager for Clemente. Compl. Ct. III at ]24. In addition, Huynh sent a personal
letter to Vallas addressing her concerns about her students’ performance, and informing Vallas of
DaMota’s harassment. Jd. at { 25. Those actions do not involve speech on issues of public concern.
In Cliff, plaintiff complained about the size of her math class and the lack of student discipline at the
school. The court noted plaintiff's criticism was directed at her student’s classroom performance
and her inability to maintain control of the class. Cliff, 42 F.3d at 410-11. While the court
recognized class size and discipline are of interest to the public, it held plaintiff's complaints were
made for her own personal benefit. Id.

Cliff is factually analogous. Huynh was unsatisfied with her mathematics students’ work.
Huynh’s letters to their parents was an attempt at improving student performance. Compl. Ct. IIT at
24. Huynh’s subsequent letter to Vallas merely reiterated that concern. Jd. at ]25. Although the
subject matter of Huynh’s letters tangentially concern education, the expression addressed Huynh’s:
personal interests only. See Davis v. William Leonard Public Library, No. 93 C 854, 1994 WL
24321, at *8 (N.D. Ill. Jan. 26, 1994) (employee’s complaints about the operation of a public library
do not raise an issue of public concern). Huynh does not allege she ‘complained about the general
performance of math students at Clemente or other Chicago public schools. Nor did she complain
about a practice at Clemente of promoting students that fail to understand basic mathematics.
Huynh’s allegations are limited to expression regarding her mathematics students in her classroom.
See also Fogarthy v. City of Chicago, No. 01 C 2157, 2001 WL 946477, at *4 (N.D. Ill. Aug. 20,

2001) (dismissing § 1983 claim where plaintiff’ s grievance of political affiliation discrimination was


Huynh subsequently sent DaMota a letter protesting DaMota’s discriminatory behavior, and
complained to her union. The union initiated a grievance on her behalf. After a meeting between
DaMota and the union, DaMota agreed to reassign Huynh to teach mathematics. Jd. at ]9I-J. On
January 28, 2000, DaMota informed Huynh she was assigned to a mathematics class. When Huynh
expressed concern about disrupting her class by changing teachers, DaMota told Huynh she was
reassigned because DaMota was unable to give Huynh an unsatisfactory rating in her present
position. Jd. at {9 K. On February 10, 2000, DaMota suggested Huynh should look for another job.

In February 2000, Huynh claims her advanced algebra/trigonometry class was incapable of
solving basic algebra problems. Thus, Huynh began reviewing basic algebra with her students. On
March 31, 2000, Huynh claims she was verbally attacked by DaMota and Mr. Cox, the mathematics
department chair. They chastised her for teaching basic algebra, and for giving her students low
grades. Id. at 19 O. At that meeting, Huynh was also told she was reassigned to teach basic algebra.
DaMota confirmed this assignment in a memorandum, which also criticized Huynh for the poor
performance ofher students. As a result of these events, Huynh took médical leave from April 2000
to the end of the school year. Jd. at § 9 P-Q.

In August 2000, Huynh returned to work and realized she was not assigned classes for that
semester. She alleges DaMota’s continued discrimination and harassment forced her to take medical
leave from October 2000 to the present, Jd. at {Q. On June 15, 2000, Huynh filed a charge with the
Equal Employment Opportunity Commission (“EEOC”). Compl., Ex. A. She received a right to

sue letter, and timely filed this action within 90 days.


U.S. 164 (1989). In Patterson, the Supreme Court held the prior version of § 1981 did not prohibit
discrimination after the initial formation of the contract. Jd. In amending § 1981, the committee
report specifically noted § 1981 now extended to “claims of harassment, discharge, demotion,
promotion, transfer, retaliation and hiring.” See H.R. 102-40(ID) at 37 (emphasis added), quoted in
Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1034 (7th Cir. 1998). The committee
report stated that list was only illustrative and not exhaustive. Gonzalez, 133 F.3d at 1034. In
addition, Congress added subsection (b) to § 1981, which states:

(b) “Make and enforce contracts” defined”

For the purpose of this section, the term “make and enforce contracts” includes the

making, performance, modification, and termination of contracts, and the enjoyment

of all benefits, privileges, terms, and conditions of a contractual relationship.
TLR. Rep. 102-40(ID, reprinted in 1991 U.S.C.C.A.N. 549, 730-31; 42 U.S.C. § 1981.

Huynh’s allegations support a reasonable inference her reassignments constitute a transfer
or demotion under § 1981. In the fall 1998 semester, Huynh was assigned as a substitute teacher
after instructing regular mathematics classes for several years. Shortly thereafter, she was reassi gned
to teach mathematics in a storage room. In August 1999, she taught a skills program briefly before
areassignmentto teach students with emotional behavior problems. The following semester she was
given an advanced mathematics class. However, she was reassigned to a basic mathematics class
before the school year ended. Huynh alleges employment actions of sufficient severity and
frequency to state a § 1981 claim. See Moses v, City of Evanston, No. 96 C. 5469, 1998 WL 111568
(N.D. Il. Mar. 11, 1998) (reassignment can constitute a demotion under § 1981). In addition, § 1981
is not limited to transfer or demotion claims but includes a broad range of employment actions.

Gonzalez, 133 F.3d at 1034. Congress’ list of employment disputes in its committee notes was not

exhaustive. Jd. Indeed, in Title VII actions, it is well-settled a reassignment can alter the terms and

5


a private attempt to vindicate his rights).

Likewise, Huynh’s reliance on her correspondence to Vallas does not save her § 1983 claim.
In that letter, Huynh outlined the discriminatory treatment she suffered personally at Clemente.
Compl. Ct. III at | 25. Huynh does not allege she advocated against a policy or practice of
discrimination at Clemente. Instead, she expressed her dissatisfaction with DaMota’s behavior. See
Collins v. Village of Woodridge, 96 F.Supp.2d 744, 754 (N.D. Ill. 2000) (employee’s complaints
about gender discrimination was not for broader social cause but were criticism of obstacles to her
own advancement). Individual employee disputes are not entitled to First Amendment protection.
Campbell v. Towse, 99 F.3d 820, 827 (7th Cir. 1996). Viewing all reasonable inferences in favor of
Huynh, the content of Huynh’s alleged speech establishes she was not acting as a concerned citizen,
but as an aggrieved employee. See Mata v. Illinois State Police, No. 00 C 0676, 2001 WL 292804,
at *5 (NLD. Ill. Mar. 22, 2001) (dismissing § 1983 claim where employee speaks to matters on her
own employment conditions). Accordingly, Count III must be dismissed.

CONCLUSION

DaMota’s motion to dismiss is granted as to Count III and denied as to Count II.

October 12, 2001 ENTER:

7 B. Conlon :

United States District Judge


Minute Order Form (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 01 C 2893 DATE 10/12/2001
CASE HOI THI HUYNH vs. CHICAGO BOARD OF EDUCATION and
TITLE IRENE M. DAMOTA
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due.
(4) Oo Ruling/Hearing on __ set for at
(5) Oo 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) Oo Trial[set for/re-set for] on___at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OUFRCP4(m) (General Rule21 CFRCP41(a)(1) O FRCP41(a)(2).
ao [Other docket entry] _DaMota’s motion to dismiss [17-1] is granted in part. Count Ill is dismissed
with prejudice. The motion to dismiss Count Il is denied. DaMota shall answer the complaint by October
22, 2001. ENTER MEMORANDUM OPINION AND ORDER.
di) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber ofroties
Y | Notices mailed by judge’s staff.

Notified counsel by telephone

Docketing to mail notices.

Mail AO 450 form.

sdocketing depaty initials

Copy to judge/magistrate judge.

vori22001

date maited notice
courtroom

deputy’s cB
initials

SB

Date/time received in
central Clerk’s Office

mailing deputy initials



conditions of employment to constitute an adverse employment action. Stutler v. Ill. Dept. of Corr.,
263 F.3d 698 (7th Cir. 2001); Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999). Significantly,
§ 1981(b) utilizes the same “terms and conditions” language in defining enforcement of contracts.

DaMota’s reliance on Klug v. Chicago Sch. Reform Bd. of Trust, 197 F.3d 853, 859 (7th Cir.
1999) is unavailing. Klug did not examine a § 1981 claim. Nor did Klug hold reassignment claims
were inactionable under § 1981. DaMota fails to provide any additional authority in support of her
motion. On a motion to dismiss, the court examines the sufficiency of the complaint only. Huynh
alleges a set of facts that could entitle her to relief. Accordingly, the motion to dismiss Count II must
be denied.
HI. Section 1983 claim

DaMota contends Huynh fails to allege her speech addressed a matter of public concern. To
state a § 1983 First Amendment retaliation claim, Huynh must allege: (1) her conduct was
constitutionally protected; and (2) her actions were a substantial or motivating factor in DaMota's
alleged retaliation. Kelly v. Municipal Courts of Marion County, 97 F.3d 902, 911 (7th Cir. 1996).
At the outset, the court must determine whether Huynh’s speech "addressed a matter of public
concern or a matter of private interest to the employee." Caruso v. De Luca, 81 F.3d 666, 670 (7th
Cir. 1996). To resolve this question, the court focuses on the "content, form and context of the
employee's speech." Jd. (citing Connick v. Myers, 461 U.S. 138, 140 (1983)). The public concern
element is lacking where the conduct “concerns a subject of public interest but the expression
addresses only the personal effect upon the employee.” Cliffv. Bd. of Sch. Of Comm’rs, 42 F.3d 403,
410 (7th Cir. 1994) (emphasis added).

Huynh alleges she sent letters to parents of her students expressing concern about their level


ek Sha a ai

IN THE UNITED STATES DISTRICT COURT DOCKE TED
FOR THE NORTHERN DISTRICT OF ILLINOIS QO

EASTERN DIVISION CT 1 200;
HOI THI HUYNH )
)

Plaintiff, ) No. 01 C 2893
)
v. ) Suzanne B. Conlon, Judge

)
CHICAGO BOARD OF EDUCATION and )
IRENE M. DAMOTA )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Hoi Thi Huynh sues Chicago Board of Education (“Board”) and Irene M. DaMota for race
and sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 20006 et seg. (Count I); 42 U.S.C. § 1981 (Count II); and 42 U.S.C. § 1983
(Count III). DaMota moves to dismiss Counts II and III under Fed. R. Civ. P. 12(b)(6).

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 (7th Cir. 2000). Huynh is a female of Vietnamese national
origin, employed as a teacher by the Board at Robert Clemente Community Academy (“Clemente”)
since September 1986. Complaint (“Compl.”) Count (“Ct.”) I at {] 3-4. The Board is responsible
for management and operation of Chicago schools, including Clemente. Jd. at 2. DaMota was the
principal of Clemente during the alleged incidents. Jd. at FI 1.

On or about August 19, 1998, DaMota informed Huynh she would not be retained for that

1


current school year because she was anon-certified, non-appointed teacher. Huynh told DaMota that
she, in fact, was a certified, tenured teacher. In response, Huynh claims DaMota stated she would
not be able to teach Hispanic children, that only one Vietnamese teacher could work at Clemente,
and that Huynh had an accent. Compl. Ct. lat §9 A-B. During the 1998 fall semester, Huynh did
not have a permanent assignment because her position was given to a Hispanic male teacher who
was not certified. She assisted or substituted for other teachers, cleaned and decorated the hallways.
Id.

In January 1999, Huynh was assigned to teach students froma transitional school ina storage
room. Huynh alleges she never received teaching supplies, although her request for supplies was
approved. In June 1999, Huynh met with DaMota and requested fall semester mathematics classes.
Huynh claims DaMota never responded to her request and assigned the class to a male non-Asian
teacher who normally taught history. Jd. at 49 C-D.

Huynh alleges she did not receive her assignment for the fall 1999 semester until the first day
of work on August 19, 1999. On August 23, 1999, she began teaching a “skills program,” although
she had no experience in teaching that class. On August 30, 1999, Huynh was reassigned to teach
“double demoted freshman with emotional behavior problems” even though she had no background
in that area. /d. at 19 F. Huynh claims DaMota refused to provide a reason for her reassignment.
Id.

Between September and December 1999, Huynh contends DaMota repeatedly subjected
Huynh to unwarranted criticism of her teaching techniques, falsely accused her of not following
policies and procedures, and instigated disputes with parents of Huynh’s students. Jd. at 9G. In

December 1999, DaMota advised Huynh she would meet with her to establish a remediation plan.

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