Indiana Gaming Corp., 351 F.3d 294, 300 (7" Cir. 2003). Accordingly, the court properly

denied plaintiff leave to add a state law breach of contract claim to her complaint, and

declined to exercise jurisdiction over the remaining state law claims.

_ For the foregoing reasons, the plaintiffs motion to alter or amend the court’s

III, CONCLUSION

decision of June 2, 2004, is denied.

SO ORDERED THIS 17th DAY OF AUGUST, 2004.

Mets. rllous

MORTON DENLOW

Copies mailed to:

Kent D. Sinson

Sinson & Sinson, Ltd.

111 West Washington Street
Suite 737

Chicago, Illinois 60602
Counsel for Plaintiff

UNITED STATES MAGISTRATE JUDGE

13

Katherine A. Rodosky
Schueler, Dallavo & Casieri
233 South Wacker Drive
Suite 6150

Chicago, Illinois 60606
Counsel for Defendant


Complaining that the Defendants had Sexually Harassed and Sexually Discriminated Against
Plaintiffi.” (“Plaintiff's Motion”). The motion included the letter to which the prolix title
referred, and asked the court to vacate Judge Bobrick’s ruling and to grant her leave to
amend her complaint.

Following briefing of this motion, on August 4, 2004, the Court heard oral argument.
During the course of that argument, it became clear that plaintiff’s original Title IX claim
was, as Judge Bobrick had concluded, exclusively concerned with discrimination and
harassment motivated by plaintiff’s sexual orientation. Admitting this, and conceding that
sexual orientation is not protected under Title IX, plaintiff's counsel voluntarily dismissed
the original Title IX claim — Count I of the complaint — with prejudice. With the sua sponte
dismissal of the plaintiff's original Title IX claim no Jonger an issue, the question becomes
whether Judge Bobrick properly denied plaintiff leave to add a retaliation claim and a breach
of contract claim. After reviewing that decision and considering all of plaintiff's arguments
and additional case citations, this Court agrees with Judge Bobrick and once again denies
plaintiffs motion to amend her complaint because her retaliation claim does not state a cause
of action and would be futile.

I. ANALYSIS
A. STANDARD FOR AMENDING A COMPLAINT
Plaintiff submits that, in considering her motion to amend her complaint, it was

improper for the court to question whether her allegations demonstrated that her complaint


underlying Title VII discrimination claim alleged disparate treatment compared to male
pilots); Holland. , 883 F.2d at 1314-16 (female plaintiff alleged she was retaliated against for
complaining about her male supervisor’s sexually offensive remarks and threatening to file
EEOC charges); Jennings v. Tinley Park Community Consolidated School Dist. No. 146,796
F.2d 962 (7th Cir.1986) (female plaintiff alleged male employees were eligible for overtime
while female employees were not); or racial discrimination. Rucker v. Higher Educational
Aids Board, 669 F.2d 1179, 1182 (7th Cir.1982) (plaintiff opposed racial discrimination
against a co-worker). Plaintiffs two remaining citations— McDonnell v. Cisneros, 84 F.3d
256 (7" Cir. 1996) and Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir.1980) — while
failing to lend support to her retaliation claim, warrant some additional attention.

In McDonnell v. Cisneros, 84 F 3d 256 (7" Cir. 1996), the plaintiffs — a pair of male
and female co-workers — alleged harassment stemming from an abusive investigation of
charges that they had engaged in job-related sexual misconduct. According to the complaint,
the process of investigating the anonymous charges created a hostile environment, in which
the pair were subjected to verbal abuse of a sexual nature. The Seventh Circuit concluded
that a viable claim of sexual harassment might arise from the verbal harassment alleged, but
affirmed the district court’s dismissal of the complaint, holding that “an investigation of
sexual harassment that exceeds the proper limits is [not] itself a form of actionable sexual

harassment.” Jd. at 260-61. Thus, the court did not find the underlying claim “completely

groundless,” Jd. at 259, but instead refused to interpret the law so as to find an employer,


complaint must involve discrimination that is prohibited by [the statute].’” 320 F.Supp.2d at
720 (quoting Hamner, 224 F.3d at 707). When Judge Bobrick examined plaintiffs
allegations, it became evident that, as the plaintiff now concedes, the complaint involved
discrimination that Title IX did not proscribe: discrimination or harassment based on sexual
orientation. 320 F.Supp.2d at 723-25. In both Hamm and Hamner, the Seventh Circuit held
that a plaintiff could not maintain a retaliation claim where the conduct opposed was
discrimination or harassment based on sexual orientation. Hamm, 332 F.3d at 1066; Hamner,
224 F.3d at 707. Following these two holdings, Judge Bobrick denied plaintiff's motion to
add a retaliation claim to her complaint. 320 F.Supp.2d at 724.

The plaintiff continues to maintain that her proposed retaliation claim states a cause
of action that would survive a motion to dismiss. Plaintiff focuses on that portion of Hamner
in which the court explained that, even if a plaintiff complained of discrimination or
harassment that was not sufficiently severe to implicate the statute’s protection, she could
nevertheless advance a retaliation claim if she had a sincere and reasonable belief that she
was opposing an unlawful practice. (Plaintiffs Motion, at 2). In so doing, she seems to
suggest that she had a sincere and reasonable belief that the conduct she opposed —
discrimination or harassment based on sexual orientation — was actionable under Title IX.
In Hamner, however, the court made it clear that a plaintiff must not only have a subjective
belief that she was opposing unlawful conduct, but that her belief must be objectively

reasonable as well. 224 F.3d at 707. That means the complaint “cannot be without legal


involved discrimination that Title IX prohibited. (Plaintiff's Motion, at 3). Operating under
a misapprehension as to the law applicable to a motion under Rule 15(a), the plaintiff argues
that the court ought to have confined its ruling to whether the defendant would suffer undue
prejudice if she were allowed to amend her complaint. (Plaintiff's Motion, at 3). As the
court indicated in its Memorandum Order, Fed.R.Civ.P. 15(a) instructs that leave to amend
a complaint be freely given when justice so requires, but does not mandate that leave be
granted in every case. 320 F.Supp.2d at 719-20. While undue prejudice is one factor the
court must consider in evaluating a motion to amend, the court must also consider whether
the proposed amendment would be futile; that is, whether the amendment would withstand
a motion to dismiss. Park, 297 F.2 at 612-13; Vargas-Harrison v, Racine Unified School
Dist, 272 F.3d 964, 974 (7" Cir. 2001).
B. THE PROPOSED RETALIATION CLAIM IS FUTILE

In his evaluation of plaintiff's proposed retaliation claim under Title IX, Judge
Bobrick relied fairly extensively on Hamm v. Weyauwega Milk Products, Inc., 332 F.3d
1058 (7" Cir. 2003) and Hamner v. St. Vincent Hosp. and Health Care Center, 224 F.3d
701(7" Cir. 2000). The court acknowledged that, under Title IX, an individual is protected
not only from discrimination on the basis of sex, but from retaliation for complaining about
the type of discrimination the statute prohibits. 320 F.Supp.2d at 720. The court allowed
that a retaliation claim might be valid even if the discrimination or harassment at issue were

not sufficiently severe to implicate Title IX’s protections, but emphasized that “‘the


deciding motion to dismiss without converting motion to one for summary judgment), Even
with that concession, however, and after consideration of the cases plaintiff cites, the court
holds that plaintiff's proposed Title IX retaliation claim would not survive a motion to
dismiss.

Plaintiff first raised Dey in support of her Title IX retaliation claim in the briefing on
her Rule 15(a) motion. (Plaintiff's Reply to Defendant’s Response to Plaintiff's Rule 15(a)
Motion, at 4). As Judge Bobrick noted in his Memorandum Order, the Dey court held that
a plaintiff's Title VII retaliation claim might survive even if a trial revealed the instances of
gender-based harassment the plaintiff detailed in her main claim were not sufficiently severe
to depict a hostile work environment. 28 F.3d at 14557-58, cited in Howell, 320 F Supp.2d
at 721 n.3. Significantly, in Dey, there was no question that the type of harassment of which
the plaintiff complained was proscribed by Title VII: the female plaintiff there alleged that
her male supervisor subjected her to instances of sexually-explicit commentary and sexual
innuendo. 28 F.3d at 1453. This makes Dey distinguishable from plaintiff's case.

At the Court’s request, following oral argument, plaintiff provided the Court with a
list of additional cases she feels support her retaliation claim. None of these cases explain
how the plaintiffs belief that she was opposing unlawful conduct might have been
objectively reasonable. In nearly all of these cases, as in Dey, there was no question that the
plaintiff was opposing conduct unlawful under Title VII, be it gender discrimination; Fine

v. Ryan International Airlines ,305 F.3d 746, 750-52 (7" Cir. 2002) (female pilot’s


* Minute Orde Form (06/97)

United States District Court, Northern District of Illinois 0 R | G | N AL

Name of Assigned Judge Sitting Judge if Othe
or Magistrate Judge Morton Denlow than Assigned Judge
CASE NUMBER 02 C 7163 DATE 8/17/2004
CASE Danielle Howell vs. North Central College, et al
TITLE
[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:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) oa Brief in support of motion due
(3) a 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) 0 Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) im Trial{set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (OLocal Rule 41.1 COFRCP41(a\(1) [FRCP41(a)(2).
(0) «i [Other docket entry] Enter Memorandum Opinion and Order denying plaintiff's motion to alter or
amend the court’s decision of 6/2/04 [49-1], [49-2].
(11) @f [For further detail see order attached to the original minute order.]

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.

ype

umber of notices

pug 1 8 204

te docketed

peeling initials

courtroom 5214 Lt Soy neaz dumbed poles
deputy’s

initials

Datedtlme fetbived in
central Clerk’s Office

mailing deputy initials



granted the employer’s motion for summary judgment. The Seventh Circuit reversed,
holding that plaintiff's belief that she was opposing an unlawful practice was reasonable at
the time, even where the practice was later determined not be unlawful. 612 F.2d at 1045.
Inso holding, the court noted that, prior to the Supreme Court holding, EEOC guidelines and
six courts of appeals all considered withholding of pregnancy benefits to be unlawful under
Title VII. 612 F.2d at 1043-44. Indeed, the plaintiff in Berg had even gone so far as to
acquaint herself with the state of the law on the issue. 612 F.2d at 1045. In the instant case,
to the contrary and as the plaintiff has conceded, the law is resoundingly settled that sexual
orientation is not protected under Title VII or, by analogy, Title IX. Hamm, 332 F.3d at
1062; Spearman v. Ford Motor Co., 231 F.3d 1080, 1084 (7" Cir. 2000); Hamner, 224 F.3d
at 707; Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7" Cir. 1984). The Berg case, then,
fails to demonstrate how the plaintiff's belief that she was opposing unlawful conduct was
objectively reasonable.

Finally, we come to the letter, dated May 4, 2001, in which plaintiff's parents
complained of the treatment plaintiff had received from her coaches. The letter, however,
like all of plaintiff's submissions in this matter, describes discrimination and harassment
motivated by sexual orientation. (Plaintiff's Motion, at 2-3; Ex. A). Plaintiff's parents
accuse one coach of having a homosexual affair with a player, and speculate as to whether
the coaches favored homosexual players with playing time. (Plaintiff's Motion; Ex. A, at

1). They complain that plaintiff was not allowed to wear a ribbon in her hair because “it

1



whose investigation of sexual harassment charges might overstep proper bounds, guilty of
sexual harassment. Jd. at 261. As such, when the court assessed the male plaintiff's
allegation that he was retaliated against for his failure to prevent the female co-worker from
filing a sexual harassment charge, it had no occasion to evaluate the sincerity or
reasonableness of his belief that he was opposing unlawful conduct. Instead, the court
addressed the question of whether the male plaintiff's “passive opposition” came under the
protection of Title VII’s retaliation provision, concluding that it did. Id. at 262. There is
nothing in the holding to suggest that an underlying harassment claim that is objectively
groundless —such as the plaintiff's sexual orientation claim here — can provide the basis for
aretaliation claim. Id. at 259 (“It is improper to retaliate for the filing ofa claim of violation
of Title VII even if the claim does not have merit ~ provided it is not completely
groundless.”).

The plaintiff in Berg claimed her employer discharged her in retaliation for
complaining that her employer’s failure to provide pregnancy benefits constituted
gender-based discrimination. After she was fired, and while her case was pending in district
court, the United States Supreme Court ruled that a disability benefits plan does not violate
Title VII because of its failure to cover pregnancy related disabilities. General Electric Co.

y. Gilbert, 429 U.S. 125, 97 S.Ct. 401 (1976).' Based upon that holding, the district court

In response to the Gilbert decision, Congress passed the Pregnancy
Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k), effective
October 31, 1978. The PDA specifies that sex discrimination
includes discrimination on the basis of pregnancy.

10


foundation, but must concern the ‘type of activity that, under some circumstances, supports
a charge of sexual harassment.’” Jd. (quoting Holland v. Jefferson National Life Ins. Co.,
883 F.2d 1307 (7" Cir. 1989).

Discrimination or harassment based on sexual orientation is not that type of activity.
Hamm, 322 F.3d at 1066; Hamner, 224 F.3d at 707. Discrimination or harassment based on
sexual orientation is, however, the type of activity at issue here. As plaintiff stated when
seeking to file her amended complaint, “[hJad she been a homosexual, this case would not
exist.” (Plaintiff's Reply to Defendant’s Response to Plaintiff's Rule 15(a) Motion, at 4).
She conceded at oral argument that her complaint involved discrimination or harassment
based exclusively on her sexual orientation. As a result, the Court finds that her belief was
not objectively reasonable.

Plaintiff submits that the letter her parents wrote to the college’s athletic director is
her proof of both the sincerity and reasonableness of her belief. (Plaintiff's Motion, at 2).
At oral argument, plaintiff maintained that, had Judge Bobrick considered this letter under
Dey v. Colt Const. & Development Co., 28 F.3d 1446 (7" Cir. 1994) — as well as several
other cases plaintiff has since submitted for this Court’s perusal — he would have been
constrained to find she had a valid retaliation claim under Title IX. In order to assure the
plaintiff of every opportunity to present her best case, the Court will treat the letter as though
it were an attachment to the plaintiff's proposed amended complaint. See Tierney v. Vahle,

304 F.3d 734, 738-39 (7" Cir. 2002) (court may consider letter attached to complaint in


the discrimination she opposed, and concluded that her complaint involved discrimination,
or harassment, based on her sexual orientation as a heterosexual. After reviewing analogous
Title VII case law, the court determined that Title IX did not proscribe discrimination or
harassment based on one’s sexual preference. 320 F.Supp.2d at 721-24. Accordingly, Judge
Bobrick denied plaintiffs motion to amend her complaint as futile, finding her proposed
retaliation claim would not survive a motion to dismiss. 320 F.Supp.2d at 724.

Plaintiff's motion to add a retaliation claim necessitated an examination by Judge
Bobrick of her original Title IX claim. That examination revealed that plaintiff's original
Title IX claim did not state a cause of action because it was based on sexual orientation.
Satisfied that the parties had already sufficiently argued the issue of the nature of the
plaintiff's original Title IX claim in connection with plaintiffs proposed retaliation claim,
the court dismissed the original claim sua sponte. 320 F.Supp.2d at 724-25. With the basis
for federal jurisdiction gone, the court denied plaintiff leave to add her breach of contract
claim and relinquished jurisdiction over her state law claims under 28 U.S.C. § 1367(c)(3).
320 PSupp.2d at 725-26.

On June 24, 2004, this matter was reassigned to this Court pursuant to Local Rule
40.1(f), following Judge Bobrick’s retirement from the bench. That same day, plaintiff filed
a “Motion of Plaintiff for this Court to Alter or Amend its Sua Sponte Decision to Dismiss
the Plaintiff's Title IX Retaliation Claim Without First Granting Plaintiff Leave to Amend

Her Complaint and without Consideration of the Letter Written to School Administrators


Amendments of 1972, 20 U.S.C. § 1681 ef seq., violation of her due process rights under 42
U.S.C. § 1983, and intentional and negligent infliction of emotional distress. On January 27,
2003, Judge Suzanne B. Conlon dismissed plaintiffs Title IX claims against the individual
defendants, her § 1983 claims against all defendants, and all her claims against defendant
Richard Norenberg.

On March 15, 2004, the day discovery closed, plaintiff sought leave to file an
amended complaint to add a claim of retaliation in violation of Title IX and a claim for
breach of contract. Plaintiff's proposed retaliation claim alleges that the defendants took
adverse action against her after her parents wrote a letter to the college’s athletic director
complaining about the treatment she received from her coaches. The plaintiff's proposed
breach of contract claim alleges that the defendants breached a contract with plaintiff that
was set out in certain student handbooks, which prohibited discrimination in college
programs. In a Memorandum Order dated June 2, 2004, Judge Bobrick denied plaintiff leave
to add these claims to her complaint, and dismissed her complaint sua sponte. Howell v.
North Central College, 320 F.Supp.2d 717 (N.Dilll. 2004).

Assessing the plaintiff s proposed retaliation claim, the court acknowledged that Title
IX protects persons from retaliation for complaining about discrimination, but explained that
the “‘complaint must involve discrimination that is prohibited by [the statute].’” 320
F.Supp.2d at 720 (quoting Hamner v. St. Vincent Hosp. and Health Care Center, 224 F.3d

701, 707 (7" Cir. 2000). The court examined plaintiff's allegations regarding the nature of


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

DANIELLE HOWELL,
DOCMETED

Plaintiff,
AUG 1 8 2004

vs. No. 02 C 7163
NORTH CENTRAL COLLEGE,
THE TRUSTEES OF NORTH
CENTRAL COLLEGE, BY AND
THROUGH ITS CHAIRMAN,
RICHARD NORENBERG,
WALTER JOHNSON, LINDA
OLSON, and KAREN SEREMET,

Magistrate Judge Morton Denlow

ww ewe were ee

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Danielle Howell asks this Court to alter or amend the decision of June 2,
2004, in which Magistrate Judge Edward A. Bobrick denied her motion to amend her
complaint, and dismissed her complaint sua sponte. For the reasons stated herein, plaintiff s
motion to alter or amend Magistrate Judge Bobrick’s June 2, 2004 decision is denied.

J. BACKGROUND

Plaintiff attended North Central College from September of 1998, until June of 2003,
and played on the women’s basketball team for a little more than two seasons. During her
time with the team, she claims she was targeted for harassment because she is a heterosexual.
She filed her original four-count complaint on October 4, 2002, which charged the college

and the other defendants with sexual harassment in violation of Title IX of the Educational

55


made her look too feminine.” (/d.), They claim that the other coach talked all the time about
lesbian activity, trying to force her beliefs on the plaintiff. (/d., at 2). There is simply
nothing in this letter — and plaintiff has been unable to point to anything, be it in briefs or at
oral argument — that suggests that plaintiff was opposing anything other than her being
harassed because of her sexual orientation. In order to bring a complaint within the statute’s
protections, an individual “has to at least say something to indicate her [gender] is an issue.”
Sitar vy, Indiana Dept. of Transp., 344 F.3d 720, 727 (7" Cir. 2003). The plaintiff, or more
accurately, her parents, simply did not do so here. No matter how sincerely she or her parents
might have believed, from a subjective standpoint, that she was receiving unfair treatment
that was actionable under Title IX, her belief was not objectively reasonable. Consequently,
she cannot maintain a claim of retaliation under Title IX, and Judge Bobrick properly denied
her motion to add such a charge to her complaint.

Cc. THE PROPOSED BREACH OF CONTRACT CLAIM BELONGS IN STATE
COURT

In her Rule 15(a) motion, plaintiff also seeks leave to add a state law breach of
contract claim to her complaint, based on certain student handbooks she received from North
Central College. Because plaintiffhas voluntarily dismissed her original Title IX claim and
she-cannot allege a retaliation claim that would withstand a motion to dismiss, the basis for
invoking federal jurisdiction is gone. The general rule in such instances, which Judge
Bobrick followed, is that the court should relinquish jurisdiction over pendent state law

claims rather than resolve them on the merits, 28 U.S.C. § 1367(c); Williams v. Aztar

12