or “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b) (“Rule
60(b)”). Cardwell asserts relief is justified because his motion to dismiss response was postmarked
on the day of the court’s deadline, which was January 31°. However, the response was due to be filed
in the clerk’s office, not merely postmarked by January 31". Additionally, Cardwell’s counsel did not
send a courtesy copy of the response to chambers, as requested in this court’s standing order. In fact,
the court did not receive a copy of Cardwell’s response until the motion for reconsideration was filed
on February 16, 2001. Even though Cardwell’s counsel has failed to comply with deadlines and
proper procedures, this court will grant Cardwell’s motion for reconsideration and consider his
response on the merits. Under the circumstances, Cardwell will not be punished for his counsel’s lack
of diligence.
II. 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 (Ci
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).
WII. Counts I and Ili

Cardwell sues all defendants for disability discrimination and retaliation, pursuant to the ADA.
Defendants move to dismiss all those individually named from this count. Individual employees cannot

be found liable under the ADA. United States Equal Employment Opportunity Commission v, AIC


making fair representation claims and the labor relations board has exclusive jurisdiction over fair
representation claims). Accordingly, Count V must be dismissed with prejudice.”
VI. Count VI

Count VI alleges defendants are liable for intentional infliction of emotional distress. To state
aclaim for intentional infliction of emotional distress, a plaintiff must allege: (1) defendant’s conduct
was extreme and outrageous; (2) defendant intended to inflict severe emotional distress or knew such
infliction was likely; and (3) defendant’s conduct caused severe emotional distress. Van Stanv. Fi ancy
Colours & Co., 125 F.3d 563, 567 (7" Cir. 1997). Conduct is extreme and outrageous only if “the
conduct has been so outrageous in character and so extreme in degree, as to go beyond all possible
bounds of decency.” /d. Cardwell has not satisfied the basic pleading requirements for an intentional
infliction of emotional distress claim. He has not alleged defendants’ conduct was extreme and
outrageous, nor has he alleged facts suggesting such behavior. He merely makes numerous allegations
of workplace harassment, none of which come close to exceeding the bounds of decency. Workplace
harassment, standing alone, fails to state an actionable claim for intentional infliction of emotion
distress. Piech v. Arthur Anderson & Co., 841 F.Supp. 825, 831 (N.D. Ill. 1994). Accordingly,

Count VI must be dismissed.>

To the extent Cardwell’s contract claim is based on the duty of fair representation, the claim
also would be barred by the statute of limitations. Duty of fair representation claims must be filed
within six months of the alleged wrongful conduct. 115 ILCS 5/15. Cardwell does not dispute the
Union’s contention that its alleged breaches relate to events occurring in June 1999. In addition,
Cardwell’s complaint fails to cite dates other than June 1999 when referring to the Union’s activities.
Cardwell did not file this action until November 14, 2000, almost one and a half years after the
Union’s alleged wrongful conduct took place. Therefore, Count V is time-barred.

*Defendants’ contention that Cardwell’s emotional distress claim is barred by the Workers’
Compensation Act is moot.


Cardwell claims that beginning in October 1998, he was denied opportunities to work
overtime, but overtime opportunities were given to employees with less seniority. Cardwell further
claims Kelly and Negrete issued the directive that he not be given overtime. 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 contends that after he failed his eye examination in October 1998, Negrete told
Cardwell he should quit his job. Negrete and Bromley made similar comments to him after he was
demoted in June 1999, 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, shunned his mother who worked in the school’s cafeteria, and attempted to turn the 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 claims that the Board retaliated
against him for filing this complaint by not restoring him to full-time employment status until October
10, 2000. Cardwell further claims the Union took management’s side during the grievance process.

DISCUSSION
I. Motion for reconsideration

Motions for reconsideration serve a limited purpose. On reconsideration, a party may not
introduce new evidence or legal theories that could have been presented earlier. Caisse Nationale de
Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7" Cir. 1996). However, a court may

relieve a party from final judgment or order for “mistake, inadvertence, surprise, or excusable neglect”


Sec. Investigations, Ltd., 55 F.3d 1276, 1279 (7 Cir. 1995). The ADA only provides a cause of
action against individuals who meet the ADA’s statutory definition of employers. Jd. Cardwell
contends the board members meet the definition of employer because they are the “alter ego” of the
employer. The court need not address whether “alter ego” employees fall under the ADA’s definition
of employer. Cardwell fails to allege facts suggesting the board members acted as the “alter ego” of
their employer. Supervisors are not considered “alter egos” of their employees. Hunt-Golliday v.
Metropolitan Water Reclamation District of Ill, 104 F.3d 1004, 1017 (7" Cir. 1997). Accordingly,
Counts I and III must be dismissed as they pertain to the members of the board.
IV. Counts II

Cardwell’s complaint asserts a claim against the School District for violations of § 1983. In
order to recover under § 1983, plaintiffs must establish they were deprived of their constitutional rights
by an individual acting under the color of state law. See 42 U.S.C. § 1983; Pickrel v. Springfield, 45
F.3d 115, 118 (7" Cir. 1985). To state a claim against the School District under § 1983, Cardwell
must set forth two elements: (1) the defendants deprived him ofa constitutionally protected right and
(2) 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). Cardwell makes vague statements about
“the right to enjoy employment and reputation” and his “right to enjoy employment under the First and
Fourteenth Amendments.” Cmplt. at 144-45. Under liberal notice pleading, conclusory statements
are sufficient for a § 1983 claim against a municipality if plaintiffs set out enough facts to give
defendants a complete understanding of the claims against them. McCormick v. City of Chicago, 230

F.3d 319, 324 (7" Cir. 2000). Cardwell’s vague statements do not give the School District any clue


VII. Punitive damages

Cardwell requests punitive damages under § 1983 and the ADA. Punitive damages may not
be assessed against local government entities under the ADA or § 1983. Newport v. Facts Concerts,
Inc., 453 U.S. 247, ? (1981). Therefore, Cardwell’s punitive damages claims must be stricken.

CONCLUSION

Cardwell’s motion to reconsider the dismissal orders of February 6, 2001 is granted.
Defendant Local 726's motion to dismiss Counts V and V1 is granted. The School District
defendants’ motion to dismiss and to strike Cardwell’s claims for punitive damages is granted.
Count II is dismissed without prejudice. Count VI is dismissed with prejudice. The individual

defendants are dismissed with prejudice from Counts I and III.

ENTER:

( oe J iii ( dmb
Suzange B. Conlon

March 12, 2001 United States District Judge


Minute Order Form (05/97)

United States District Court, Northern District of Illinois

Sitting Judge if Other

sani Magiswate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 00 C 7147 DATE 3/12/2001
CASE JEFF 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, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of
the motion being presented.

(al)

MOTION:

DOCKET ENTRY:

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

(2) a Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue___.

(4) o 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) Q Trial[set for/re-set for] on at

(8) im} [Bench/Jury trial] [Hearing] held/continuedto___—_at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) CO FRCP41(a)(2).

(10) Ml [Other docketentry] _ Cardwell’s motion to reconsider the dismissal orders of February 6, 2001 [13-

1] is granted.
District defendants’ motion to dismiss [6-1] and to strike Cardwell’s claims for punitive damages [6-2] is
granted. Count IT is dismissed without prejudice. Count VI is dismissed with prejudice. The individual
defendants are dismissed with prejudice from Counts I and III. Defendants are directed to answer
remaining counts by March 22, 2001. ENTER MEMORANDUM OPINION AND ORDER.

[For further detail see order attached to the original minute order.

Defendant Local 726's motion to dismiss Counts V and VI [5-1] is granted. The School

No notices required

Mail AO 450 form,

No notices required, advised in open court,

Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices.

Copy to judge/magistrate judge.

SB

deputy. 1 |

Nefetiog

3/12/2001

date mailed noti
courtroom led notice

deputy’s

Peary jad
initials y

Date/time received in
central Clerk’s Office

mailing deputy initials



as to the specific constitutional rights that are at issue or the specific conduct that allegedly violated
these rights. Accordingly, Counts II is dismissed without prejudice.
Vv. Count V

Cardwell contends the Union is liable for breach of contract because it failed to fulfill various
duties. The Union contends the substance of these allegations amount to a duty of fair representation
claim. Federal courts have no subject matter jurisdiction over duty of fair representation claims made
by public school employees against their labor unions. Strasburger v. Bd. of Ed., Hardin County
Comm. Unit School District No. 1, 143 F.3d 351, 359-60 (7" Cir. 1998).

Cardwell contends he is not asserting a duty of fair representation claim and points to Count
V’s title, namely breach of contract. A breach of contract title does nothing to dispel the Union’s
argument. Duty of fair representation claims are a type of contract claim. See Utomi v. Cook County,
No. 98 C 3722, 1999 WL 787480, at *5 (NLD, Ill. 1999). In addition, it appears clear from the
complaint that Cardwell, at least in part, asserts a fair representation claim. Specifically, the complaint
states the Union breached the contract by “refusing to represent Jeff in his grievance before the Board,
in refusing to arbitrate the grievance, and in taking management’s side. . . “ Cmplt. at 445.

Even assuming Cardwell’s claims are not based on the duty of fair representation, he still
would not be able to sue the Union for breach of contract. “Since a union is normally the exclusive
bargaining agent for union members, union members lack standing to sue for breach of a collective
bargaining agreement unless they also claim that the union beached its duty of fair representation.”

Cleveland v. Porca Co., 38 F.3d 289, 297 (7" Cir. 1994) (holding that standing is dependent on


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JEFF CARDWELL, )
)
Plaintiff, ) No. 00C7147
)
v. ) 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 following defendants: Board of Education, Reavis
Community High School District No. 220 (“the Board”); John W. Lennon, Jeffrey Wells, Kevin
Mayer, Diane Dominguez, James Rokaitis, Stanley Smola, Jr., and Ralph Stocchio (“members of the
Board”); Louis P. Ross, Dr. Glen Marin, Lawrence Daker (“school officials”) (collectively “the School
District”); and the State and Municipal Teamsters and Chauffeurs and Helpers Union Local No. 726
(“the Union”). Cardwell sues the Board, members of the Board, and school officials for disability
discrimination and retaliation, pursuant to 42 U.S.C. § 12111, the American with Disabilities Act
(“ADA”) (Counts I and III) and denial of constitutional rights, pursuant to 42 U.S.C. § 1983 (“8
1983") (Count II). Cardwell sues all defendants for breach of contract (Counts IV and V) and
intentional infliction of emotional distress (Count VI). On January 16,2001, defendants filed motions
to dismiss Counts II, V, and VI against all defendants and Counts J and III against all individually
named defendants, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The School District further moved

to strike Cardwell’s punitive damages claims, pursuant to Fed.R.Civ.P. 12(f).


Cardwell’s response to defendants’ motions was due on January 31,2001. Cardwell failed to
timely respond. On February 6, 2001, the court granted defendants’ uncontested motions to dismiss.
Cardwell moves for reconsideration of the February 6" orders, pursuant to Fed.R.Civ.P. 60(b), and
requests that the court consider his response to defendants’ motions to dismiss.'

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). Prior to 1991, the Union and Reavis High
School entered into a collective bargaining agreement (“‘the contract”), which addressed the terms and
conditions of employment for the school’s employees, including Cardwell.

Cardwell was hired by the Board as a full-time custodian for Reavis High School on October
28, 1991. Asaterm ofemployment, Cardwell was required to submit to yearly physical examinations,
including eye examinations. Cardwell has been legally blind in his right eye since birth. From 1991
through 1998, the eye 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
examination. 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 the
position of custodian at Reavis High School and was hired. His salary as a custodian was lower than

his salary as a driver.

‘In his response, Cardwell requests that this court grant him leave to amend his complaint.
This request must be made in a separate motion with a copy of the proposed amended complaint
attached.