The only rational basis brought forth for any of the defenses' actions was that the
scheduling of two lunch supervisory periods and three teaching periods was the result of
the grievance hearing. It is alleged that the. action taken at the grievance hearing was one
of many retaliatory actions, wrought with unfairness, though. The decision of the
grievance hearing may supply a rational basis for one of the actions of the defendants,
but paragraph 21 of the complaint alleges ten separate retaliatory actions. The majority,
if not all, of these alleged actions have no ‘rational relation to any legitimate state interest
and, as alleged, were purely motivated by ill-will and vindictiveness. The court cannot
find at this time that the alleged retaliatory actions engaged in by the defendants have a
rational basis. Therefore, the court denies the defendants motion to dismiss Count II

alleging Equal Protection violations under 42 U.S.C. § 1983.

Conspiracy Claims
Counts III and IV alleging a conspitacy under 42 U.S.C. § 1985 and failure to

prevent a conspiracy under 42 U.S.C. § 1986 are dismissed without prejudice.

Intentional Inflection of Emotional Distress Claim
Defendants correctly argue that if all other claims in this case are dismissed, there
is no jurisdiction over the Illinois state tortintentional infliction of emotional distress
under 28 U.S.C. § 1367 and the claim should be dismissed under Federal Rule of Civil
Procedure 12(b)(1). Since the motion to dismiss has been denied as to the First and
Fourteenth Amendment claims, and the Illinois state law intentional infliction of
emotional distress claim arises out of the same nucleus of operative facts, the United

13



work and failing to obtain substitute teachers on those occasions, failing to properly
record disciplinary referrals written by the plaintiffs, failing to honor grievance rights of
the plaintiffs when the Board allowed Robert Hain and Diane McFarlin to act as part of
the Executive Session discussing the grievance, making untrue and disparaging remarks
about the plaintiffs to other faculty members and parents of students at Streamwood High
School, canceling pre-approved field trips that were a part of the Special Education
students Individualized Education Programs. and Behavior Management Plans without
notice, removing plaintiffs as special education case managers without notice, and failing
to notify plaintiffs of Individualized Education Program meetings until the last moment
thereby depriving the plaintiffs the opportunity to adequately prepare for the meetings.

Plaintiffs allege that the defendants, through this conspiratorial sequence of
events, have violated their First and Fourteenth Amendment rights as well as

intentionally inflicted severe emotional distréss upon them.

DISCUSSION

Defendants have filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). The defendants assert that the plaintiffs' complaint fails to state a claim upon
which relief can be granted.

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not
to decide its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). On
a motion to dismiss all well-plead factual allegations are admitted as true and are
construed in a light most favorable to the plaintiff, as are all inferences from the facts.
Roots Partnership v. Lands' End, Inc., 965.F.2d 1411, 1416 (7th Cir. 1992). A court

4


Amendment. For the reasons set forth below, the court finds the plaintiffs allege speech
that was a matter of public concern.

In Cliff v. Board of School Commissioners of the City of Indianapolis, 42 F.3d
403, 410 (7th Cir. 1994), the Seventh Circuit.concluded that a teacher's complaints
concerning her own class size and lacking student discipline were not matters of public
concern. Although the speech engaged in by. Andrekus and VanZuidam concerned the
same topics, it addressed them in a vastly different manner. The letter to the ISBE and
other complaints about class size and teacher scheduling were in the context of harm to
disabled students, not personal complaints. The overriding purpose for the letter was of
public concern, the educational disadvantages being placed on special education students
at Streamwood High School, not of their tangential personal difficulties. See Colburn v.
Trustees of Indiana University, 973 F.2d 581, 587 (7th Cir. 1992). A fair reading of the
letter sent to the ISBE clearly demonstrates this purpose. The letter began by stating that
is was being written on behalf of the ED/BD. students at Streamwood High School for
non-compliance with state guidelines. The letter went on to discuss class size and
availability of special education teachers to reduce the illegal class sizes, knowledge of
the illegalities and a lack of corrective action. Finally, and importantly, the letter detailed
the adverse educational impact these illegalities were having on students such as trouble
grasping concepts due to scarce personal attention. From our reading of the letter, we
conclude there is no doubt that the plaintiffs! speech addressed a matter of public
concern.

Defendants next argue that the retaliatory actions were mere trivial grievances,

not rising to the level of adverse employment.actions. In order to have a materially

9



denies remedying their grievances, it has. officially approved of the retaliatory actions.
See Koch-Weser, 1999 WL 519065, 7 (N.D. Ill. 1999); See also Jones v. City of Chicago,
856 F.2d 985, 988 (7th Cir. 1988) (improper conduct by police officers known about by
the department was sufficient to create department custom and impose supervisor
liability). Therefore, the plaintiffs properly allege that the Board of Education, with final
policymaking authority, caused their constitutional injury, and through a pattern of such
behavior it became policy or custom to retaligte against the plaintiffs.

The court finds that these allegations sufficiently support the plaintiffs’ official
policy or custom claim against the Board of Education. In the present case, the Board of
Education was aware of the complaints and did nothing to remedy the situation. Tn fact it
is alleged that the Board actively engaged in the retaliatory actions against Debbie
Andrekus and Deborah VanZuidam. Accordingly, the court finds the Board of Education
to be a person within the meaning of 42 U.S.C. § 1983 and subject to liability under the

Monell test.

Preemption Over Claims Through the.Illinois Educational Labor Relations Act
Defendants argue that the Illinois Educational Labor Relations Act (IELRA)

preempts all claims made by the plaintiffs because the court will need to interpret the
governing teacher contract in order to determine the issues. However, the IELRA was
designed to create an alternative system from the courts to resolve labor disputes, not to
eliminate causes of action for constitutional violations. Jones v. Harris, 1989 WL 24132,
6 (N.D. III. 1989) (emphasis added). Parallel to other acts, the IELRA has been held to
be preemptive in its focal area and the Illinois Labor Relations Board has exclusive

6


should dismiss a claim only if "it is clear that no relief could be granted under any set of
facts that could be proven consistent with the allegations of the complaint. Cook v.
Winfrey, 141 F.3d 322, 327 (7th Cir. 1998). Defendants assert that the plaintiffs’ claims

are subject to dismissal because they do not.meet this burden as a matter of law.

Board of Education Immunity

The Eleventh Amendment provides immunity from prosecution under 42 U.S.C.
§ 1983 for states and their officials acting in their official capacities, as states do not fit
into the definition of a person for purposes of the section. Will v. Michigan Department
of State Police, 491 U.S. 58, 64 (1989). The.same does not hold true for municipalities
and other local governmental units, such ‘as-school boards. Monell v. Department of
Social Services of the City of New York, 436 U.S. 658, 690, 696 (1978). Under Monell, a
school district cannot be held liable under a respondeat superior theory. In order to
recover against a school board under 42 U.S.C. § 1983 the plaintiffs must show that the
civil rights violations resulted from either (1) an express policy of the district, (2) a
widespread practice or custom within the district, or (3) the actions of a person with final
policymaking authority. See Id. at 691, 694; see also Looper Maintenance Serv. v. City of
Indianapolis, 197 F.3d 908, 912 (7th Cir. 1998).

Plaintiffs pled in paragraph 21 of the complaint that the defendants "individually
and collectively engaged in a pattern of harassment" against the plaintiffs. (Compl. § 21.)
Additionally, under Illinois state law the Board of Education has final policymaking

authority. 105 ILCS 5/10-20.5 (West 2002). When a Board vested with policymaking

5



Andrekus and VanZuidam complained of constitutional violations by the defendants. As
such, it is of no consequence that the letter to.the ISBE was authored by only one of the

plaintiffs; both may proceed as plaintiffs.in.this action.

§ 1983 First Amendment Claim

In Count I of the complaint, plaintiffs allege that the defendants violated their
First Amendment rights when they retaliated against them for making various complaints
concerning violations of special education ¢lass size and teaching assignments that were
in non-compliance with state law, producing a negative effect on special education
students and teachers. To state a claim for retaliation under 42 U.S.C. § 1983 and the
First Amendment, the plaintiffs must allege that they were engaged in constitutionally
protected speech, that retaliation having a materially adverse employment action
occurred, and the plaintiffs complaints were_a substantial motivating factor in the adverse
employment action. Pickering v. Board of. Education, 391 US. 563 (1968); DeGuiseppe
v. Vilalge of Bellwood, 68 F.3d 187 (7th Cir..1995).

Defendants first argue that the speech in question, numerous complaints to
supervisors, the teachers union and the ISBE concerning education standards, was not
constitutionally protected. In order for speek to be protected, it must address a matter of
public concern as determined by the content, context, and form of the statements.
Connick v. Myers, 461 U.S. 138, 147 (1983);. Gonzales v. City of Chicago, 239 F.3d 939,
940 (7th Cir. 2001). Defendants assert that.the speech in question was voiced in personal

terms and of a purely personal nature, not of public concern. Plaintiffs, however, argue

that the speech engaged in was of a publi¢‘concern and is protected by the First

8



"Minute Order Form (06/97)
Yn -

United States District Court, Northern District of Illinois

Name of Assigned Judge Ronald A. Guzman "Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 3960 DATE 3/18/2003
CASE Debbie Andrekus, et al vs. Board of Education of Dist. U-46, 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
of the motion being presented.]

MOTION:

DOCKET ENTRY: a

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

(2) im Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer brief due.

(4) im Ruling/Hearing on__set for__ at —_

(5) QO Status hearing{held/continued to] [set for/re-set for]on__——ssetfor__—at

(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor__———sat__
(7) oO Trial[set for/re-set for]on___—__at

(8) oO [Bench/Jury trial] [Hearing] held/continued to... __at

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

COFRCP4(¢m) CO) Local Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

do) =f [Other docket entry) . ENTER MEMORANDUM OPINION AND ORDER: Defendants’ motion
to dismiss the plaintiffs’ complaint is granted as to Counts III, IV, and V and denied without prejudice
as to Counts I and II [5-1].

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

No notices required, advised in open court.

No notices required.
req umber of notices

MAR 2 0.2903

dite docketed

Notices mailed by judge’s staff.

Notified counsel by telephone.

En.

Y | Docketing to mail notices.

Mait AO 450 form. Lun

oo alyisia’s'n

ya
Copy to judge/magistrate judge.
29:0 KY 61 BWW
courtroom
me fees oT-03-d91ls
Date/time received in
central Clerk’s Office mailing deputy initials



of the complaints. The plaintiffs made several complaints prior to the letter of September
26, 2001. These included a grievance with the Union concerning teacher scheduling and
resulting educational deficiencies for special education students. The retaliatory conduct
began as a result of these initial complaints and was heightened after the letter of
September 26. Paragraphs 21 and 22 of the complaint allege that the following conduct
was a result of the plaintiffs' complaints concerning the violation of standards in special
education classrooms. The complaints made by the plaintiffs were a substantial
motivating factor in the retaliatory conduct engaged in by the defendants. Therefore, the
court denies the defendants motion to dismiss Count I alleging First Amendment

violations under 42 U.S.C. § 1983.

§ 1983 Equal Protection Claim

In Count H], the plaintiffs allege that the defendants treated the plaintiffs
differently than other similarly situated teachérs in the district. Three categories of Equal
Protection claims exist: (1) the singling out members of a vulnerable group for unequal
treatment, (2) a law or policy that makes irrational distinctions, and (3) a powerful public
official that singles out a person out of sheer.vindictiveness. Esmail vy. Mccrane, 53, F.3d
176, 178 (7th Cir. 1995); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Under Olech, there must also be no rational basis for the distinction made. /d. For a class
of one equal protection claim, the plaintiff must allege that he or she was intentionally
and vindictively treated differently than other similarly situated individuals and that there

is no rational basis for the distinction. Jd.

11



adverse consequence, the conduct must be more than a simple inconvenience or
alteration of responsibilities. DeGuiseppe, 68 F.3d at 192. The Supreme Court has held a
wide variety of conduct that may constitute adverse job actions; including a refusal to
hire, refusal to promote, demotions, reduction in pay, or reprimands. Rutan v. Republican
Party, 497 U.S. 62, 74 (1990). Simple allegations of inflexible scheduling, heavier work
assignments, or having to work in constant fear of retaliation are sufficient to withstand a
motion to dismiss. Ufomi v. Cook County, 1999 WL 787480, 2 (N.D. Ill. 1999). For the
reasons set forth below, the court finds the ‘defendants! conduct had an adverse
employment effect.

The retaliatory conduct in question was substantial and had a clear adverse effect
on the two complaining teachers. Employing students to spy on the teachers, making
false and disparaging remarks to other teachers, false accusations of improper absence
procedures, removing the teachers from special education cases, canceling necessary
aspects of IEP programs, and not giving notice of important meetings all had adverse
effects on teaching ability and the individual reputations of these two teachers.
Additionally, scheduling two certified special.education teachers to supervise the
cafeteria during several consecutive lunch periods was more than a simple shift in
responsibilities; practically, it served as a demotion from certified educator to lunchroom
monitor. The plaintiffs have pled sufficient facts to constitute adverse employment
actions on the part of the defendants. :

Finally, defendants argue that the letter to the ISBE could not be the substantial
motivating factor in the actions, due to the occurrence of several of the incidents prior to
the letter being sent. This argument takes.a,much too narrow view of the circumstances

10


jurisdiction over the same focal area, labor disputes. Jd.

Although the actions complained of, in part, touch on the collective bargaining
agreement and one of the many alleged retaliatory actions took place in the context of a
grievance hearing, as a whole this action concerns repeated violations of the
constitutional rights of the plaintiffs. The incident is simply used as one of many
examples of alleged retaliatory conduct on thé part of the defendants. Many other
alleged incidents of misconduct completely independent of the grievance hearing are
sufficient to place these claims outside the scope of the IELRA. As such, the IELRA
does not preempt federal claims for constitutional violations by the defendants in this

case,

Inclusion of Deborah VanZuidam as a Plaintiff

The defendants argue that since the complaining letter to the ISBE was authored
solely by Debbie Andrekus and nowhere mentions Deborah VanZuidam by name as a
complaining party that VanZuidam cannot.use the letter to substantiate her claims. The
court, in deciding a motion to dismiss takes all facts alleged as true and is only testing the
sufficiency of the complaint not the merits.of the case.

In paragraphs 13-15, 17, 18, 20-22 of the complaint the plaintiffs allege that both
Andrekus and VanZuidam were making the complaints to the ISBE. Additionally, the
letter to the ISBE is authored from a plural standpoint. It contains language concerning
"ED/BD self contained students” generally, a meeting between "Behavior Disorder
Teachers", a conversation between Mr. Hain and "teachers", and several other examples.
These allegations and the language of the letter sent to the ISBE clearly allege that both

7



in each class. The defendants did not take any action concerning these initial complaints
until August 9, 2001, two weeks prior to the beginning of the school year. At the
hearing, the district representative ignored the explanation that the assigned schedules
were not beneficial to either the students or.the teachers at Streamwood High School and
upheld the scheduling, in spite of known violations.

Then, on September 26, 2001, Debbie Andrekus sent a written complaint to the
Illinois State Board of Education (ISBE) stating various violations of the law by the
Special Education Department of Streamwood. The ISBE was made aware of the
compliance problems at Streamwood High School, and on December 4, 2001 notified
Marvin Edwards and Maria Smith that the district was in violation of the law. By
February 7, 2002, the district had not fully complied with the required remedial action.

Prior to the complaints concerning the violations of Special Education
regulations, the plaintiffs had always received positive performance evaluations and were
treated the same as other similarly situated employees. Since the complaints, the
defendants, both individually and collectively, have allegedly engaged in a pattern of ill
willed and malicious harassment against the plaintiffs in retaliation for bringing the
illegal acts of the defendants to the attention of the Union and the ISBE. Examples of
such alleged behavior include: assigning the two plaintiffs (certified, tenured special
education instructors) to two consecutive lunch monitoring periods when no other teacher
in the school has more than one, soliciting students to spy on the plaintiffs and report
back to Robert Hain and Diane McFarlin, hiring a non-certified substitute teacher to
teach the plaintiff's classes while they were assigned to three supervisory periods
throughout the day, false accusations of failures to give proper notice of absences from

3


States District Court for the Northern District of Illinois may exert supplemental
jurisdiction over the claim.

The defense next argues that the Workers Compensation Act bars a claim for
intentional infliction of emotional distress. Under Collier v. Wagner Castings Co., 408
N.E.2d 198, 202 (1980), a case incorrectly cited by the defendant, the Act is not
applicable if the injury was intentional. The allegations in this case are of intentional
conduct on the part of the defendants in retaliation for bringing violations to the attention
of the ISBE. Therefore, the Act does not bar the pending claim.

The Illinois Supreme Court clearly delineated the necessary elements to establish
a cause of action for an intentional infliction of emotional distress claim in Public
Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976). First, the conduct of the
defendant must be of an extreme and outrageous nature, beyond all bounds of decency.
Id. Next, the distress must be so severe that.no man should be expected to endure it. Jd.
Defendants argue that plaintiffs have failed to allege facts which establish conduct rising
to the level of extreme and outrageous.

In Davis, the court dismissed the complaint when the conduct complained of
consisted of harassing phone calls and harsh and abusive language. Also in Wainwright
v. Doria, 1994 WL 178347 (N.D. Ill. 1994), the court dismissed an intentional infliction
of emotional distress claim where there were no threats made, acts of violence, racial
slurs, or acts calculated to terrorize or demean the plaintiff. There were also no
supporting factual allegations of psychiatric or emotional damage. /d.

The conduct alleged in the plaintiffs complaint does not amount to the outrageous
and extreme conduct required to sustain a claim for intentional infliction of emotional

14


of Streamwood, Cook County, Illinois by District U-46. District U-46 is organized and
operated pursuant to the Illinois School Code, and as such the Board of Education (The
Board) was charged with the duty of running the District pursuant to the Illinois School
Code. On June 4, 2002 plaintiffs filed their complaint against the defendants, who hold
the following positions in the school system; Marvin Edwards, Superintendent of the
District, Richard P. Majka, Assistant Superintendent of the District in charge of labor
issues, Robert Hain, Special Education Supervisor, Dr. Maria Smith, Director of Special
Education, Ron Kalicki, Principal of Streamwood High School, Diane McFarlin, Special
Education Chairperson and Dean of the Special Education students attending
Streamwood High School, and the Board.of Education District U-46 itself.

Count I alleges a First Amendment violation under 42 U.S.C. 1983 against all
defendants. Count II alleges an Equal Protection violation under 42 U.S.C. 1983 against
all defendants. Count III alleges a conspiracy under 42 U.S.C. 1985 against all
defendants, Count IV alleges the failure to prevent a conspiracy under 42 U.S.C. 1986
against all defendants. Count V alleges a,state law tort claim for Intentional Infliction of
Emotional Distress against all defendants. ...

Prior to September 26, 2001, the plaintiffs made numerous complaints to the
Special Education Supervisor and Chairperson concerning various aspects of
administration of the special education department at Streamwood High School. It was
known that the manner in which Special Education classes were assigned violated state
requirements, but at a meeting Robert Hain told the teachers to file a grievance if they did
not like their schedules. On May 7, 2001 a Union grievance was filed concerning the
number of classes assigned to each special education teacher and the number of students

2



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

EASTERN DIVISION
DEBBIE ANDREKUS and DEBORAH )
VANZUIDAM, )
an Illinois Corporation. )
) No. 02 C 3960
Plaintiffs, ) Judge Ronald A. Guzman
)
)
v. )
)
Q
BOARD OF EDUCATION OF DISTRICT ) welt
U-46, et al., ) Po, ED
"tty
Defendants. )

MEMORANDUM OPINION AND ORDER

Pending is Defendants Board of Education District U-46, Marvin Edwards,
Richard P. Majka, Dr. Maria Smith, Ron Kalicki, Robert Hain, and Diane McFarlin’s
motion to dismiss plaintiffs Debbie Andrekus and Deborah VanZuidam's complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below the
motion to dismiss is denied as to Counts I and II and is granted without prejudice as to

Counts III, IV, and V.
BACKGROUND

The plaintiffs, Andrekus and VanZuidam, at the time of filing were both certified,

tenured special education teachers employed_at Streamwood High School in the Village

Id



Plaintiffs’ complaint, paragraph 27, clearly alleges that Andrekus and VanZuidam
were treated differently from other similarly situated teachers. Paragraph 29 of the
complaint unequivocally alleges that the defendants' actions were motivated by ill will
and vindictiveness. Defendants argue that this claim trivializes the Equal Protection
doctrine and should not be allowed. Defendants argue that Equal Protection is trivialized
when used to scrutinize every decision made by the state and local government. For the
reasons set forth below, the court finds the actions of the defendants more than trivial
actions, but material unequal treatment motivated by vindictiveness.

The complaint alleges factual circumstances to support allegations of vindictive
different treatment. The lengthy list of alleged retaliatory behavior listed in paragraph 21
of the complaint demonstrates disparaging treatment directed only at the plaintiffs. The
nature of the actions and timing of such actions in relation to plaintiffs' complaints of
alleged violations lead to an unmistakable conclusion that vindictiveness was the motive
behind the retaliatory actions. The court finds that the plaintiffs adequately allege
unequal treatment and a vindictive motive tiecessary to constitute an Equal Protection
claim.

Defendants finally argue that the claim must fail due to an existing rational basis
for the distinctions made by the defendants, Under a rational basis review, the court
presumes that the challenged governmental action is constitutional; thus, the plaintiff
must allege facts sufficient to overcome the presumption of rationality. Wroblewski v.
City of Washburn, 965 F.2d 452, 458 (7th Cir. 1992). For the reasons set forth below, the
court finds that the conduct engaged in by, the defendants, as alleged by the plaintiffs, has

no rational basis.

12



distress. The allegations on paragraph 21 of the complaint do not go beyond the bounds
of decency. They do describe retaliatory conduct, but not conduct of a nature to shock
the conscience. Allegations such as unfair scheduling, an unfair grievance hearing, and
removal from special education cases do not rise to such an extreme and outrageous
nature. Also, the plaintiffs do not state factual allegations of resulting severe emotional
or psychiatric distress. Plaintiffs must allege such extreme and outrageous conduct with
factual allegations of resulting harm in.oxder to withstand a motion to dismiss. The facts
alleged and bare legal conclusions are insufficient in this case. Therefore, the intentional
infliction of emotional distress claim failsto state a cause of action and is dismissed

without prejudice.

CONCLUSION
For the reasons listed above, defendants’ motion to dismiss the plaintiffs’
complaint is granted as to Counts III, IV, and V and denied without prejudice as to

Counts J and II (#5 -1).

SO ORDERED ENTERED: 37/£-°3

iach dled

HON. RONALD A. GUZM.
United States Judge

15

a