Jane Doe v. Bd. of Educ. of Chi.

• Citation: 364 F.Supp.3d 849
• Decision Date: 01 February 2019
• Docket Number: No. 18 C 3201,18 C 3201
• Parties: Jane DOE I and II, Minors, by and Through Their Mothers and Next Friends, Mary Doe I and II, Plaintiffs, v. The BOARD OF EDUCATION OF the CITY OF CHICAGO and Casino Cruz, in His Individual Capacity and as an Employee of the Chicago Public Schools, Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

364 F.Supp.3d 849

Jane DOE I and II, Minors, by and Through Their Mothers and Next Friends, Mary Doe I and II, Plaintiffs,
v.
The BOARD OF EDUCATION OF the CITY OF CHICAGO and Casino Cruz, in His Individual Capacity and as an Employee of the Chicago Public Schools, Defendants.

No. 18 C 3201

United States District Court, N.D. Illinois, Eastern Division.

Signed February 1, 2019

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Jerome F. Marconi, Jr., Law Office of Jerome F. Marconi, John R. Perkaus, Perkaus & Farley LLC, Chicago, IL, for Plaintiffs.

Brian Hoppe, Sanchez Daniels And Hoffman, Christina Jaremus, Susan Jane Best, Board of Education of the City of Chicago Law Department, Emanuel C. Welch, Shawnte Miaundra Raines, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Hon. Virginia M. Kendall, United States District Judge

Minors Jane Doe I and II, by and through their Mothers and next friends Mary Doe I and II, filed this lawsuit against the Board of Education of the City of Chicago and Casino Cruz asserting various federal and state law claims stemming from Cruz's alleged sexual harassment of the minor Plaintiffs and the Board's alleged reckless indifference toward and failure to protect the minor Plaintiffs from such harassment. (Dkt. 1). In the Amended Complaint, Plaintiffs assert a Title IX discrimination claim (Count XVI) against the Board on behalf of both Jane Doe I and II and assert the following state-law claims against the Board and/or Cruz: sexual battery (Counts I and IX) and intentional infliction of emotional distress (Counts VII and XV) against Cruz; failure to supervise (Counts III and XI), negligence (Counts IV and XII), willful and wanton conduct (Counts V and XIII), negligent retention (Counts VI and XIV), and negligent failure to control the conduct of Cruz (Count VIII) against the Board; and negligent infliction of emotional distress (Counts II and X) against both the Board and Cruz. (Id. ). Jane Doe I also asserts a claim for false imprisonment (Count XVII) against Cruz. (Id. ). The Board moved to dismiss all claims asserted against it pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 42). For the following reasons, the Board's Motion to Dismiss (Dkt. 42) is granted in part and denied in part.

BACKGROUND

The following facts are taken from Plaintiffs' Amended Complaint and are accepted as true for purposes of the Board's Motions to Dismiss. Clark v. Law Office of Terrence Kennedy, Jr. , 709 F. App'x 826, 827 (7th Cir. 2017).

Casino Cruz was employed by the Board for nearly 20 years, first at Roberto Clemente High School (RCHS) from 1999 until February 2017 and then at Farragut High School from August 2017 until June 2018. (Dkt. 40 at ¶¶ 19, 118, 126). During his tenure at RCHS, Clemente served as security guard, assistant dean, swim instructor, swim team coach and volleyball coach. (Id. at ¶¶ 20–21). In these roles, Cruz regularly engaged in "grooming" or sexually inappropriate behavior with female students.

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(Id. at ¶ 24). Cruz's various positions of authority, in particular his power to discipline students and make decisions regarding the extent of their participation in sporting activities, generally prevented students from confronting Cruz about his inappropriate conduct and/or disclosing such conduct to school officials or parents. (Id. at ¶¶ 23, 25). Despite this, by Fall 2016 when Jane Doe I and II started as freshman at RCHS, RCHS and the Board knew of several incidents of sexual harassment of female students by Cruz beginning as early as 1999.

I. Prior Incidents at RCHS (1999–2016)

In 1999–2000, Cruz was a security guard and the female swim coach at RCHS. (Id. at ¶ 27). During that time, a female student reported to Dolly Irizarry, a teacher at RCHS, that Cruz told the student in front of other female students that she had a "hot pussy." (Id. at ¶ 27–29). Ms. Irizarry reported the conduct to RCHS administration who with the help of the Board commenced an investigation, including interviewing Irizarry and other female students, but never disciplined Cruz or contacted the Illinois Department of Children and Family Services (DCFS) about the comments. (Id. at ¶¶ 30–32). Cruz continued to work as a security guard and the female swim coach at RCHS. (Id. at ¶ 33).

In December 2002, M.T., a female student in Cruz's swim class, told RCHS administration that Cruz made her feel weird and did weird stuff to her and that Cruz regularly entered the women's locker room while she and other students were changing. (Id. at ¶¶ 36, 40). Other female students confirmed that Cruz would regularly walk in on girls changing in the locker room. (Id. at ¶ 43). One day while at the swimming pool, Cruz touched M.T.'s breast. (Id. at ¶ 37). M.T. told her mother that Cruz had touched her breast and her mother went to RCHS and reported the incident to RCHS Assistant Principal Conrad. (Id. at ¶ 38). Another time, Cruz threw M.T. into the pool. (Id. at ¶ 41). M.T. and her mother requested that the RCHS administration take action against Cruz. (Id. at ¶ 42). M.T. ultimately failed her swim class because she refused to be near Cruz. (Id. at ¶ 44). Eventually, M.T.'s mother contacted the Chicago Police Department who arrested Cruz on April 4, 2003 for physical battery against M.T. (Id. at ¶ 45). The Board and RCHS administration knew about the arrest yet continued to employ Cruz at RCHS. (Id. at ¶¶ 47–49).

In 2003–2004, R.L. was a student in Cruz's swim class at RCHS. (Id. at ¶ 50–52). After class, Cruz would regularly walk through the women's locker room while the female students were changing. (Id. at ¶ 54). R.L. told Cruz to stop doing so. (Id. at ¶ 54). R.L. and several other female students also told RCHS staff and administration that Cruz walked through the women's locker room while they were changing but RCHS administration ignored the conduct and took no action against Cruz. (Id. at ¶¶ 54–57).

In 2007–2008, S.H. was a student in a P.E. class moderated by Cruz. (Id. at ¶¶ 58–60). Cruz regularly walked into the women's locker room after class while female students were changing. (Id. at ¶ 61). S.H. and other female students in the class screamed at Cruz to stop doing so and notified RCHS staff and administration about his conduct but the RCHS administration never took any action against Cruz. (Id. at ¶ 65).

In 2012, a female student at RCHS filed a complaint received by the Board Investigations Unit and Law Department alleging Cruz sexually harassed her. (Id. at ¶ 66). The "Investigation Memorandum" provided to the Law Department reported that, according to the student, Cruz "flirt[ed]" with her, "hit[ ]" on her, "mess[ed]" with her, hit her in a playful manner, slapped

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her on the back of the neck, grabbed the back of her arm, flicked her and called her "Babe," and called her a "bitch" after she told him to stop. (Id. at ¶ 67). The Board never disciplined or counseled Cruz for his conduct or reported it to DCFS. (Id. at ¶ 68).

In January 21, 2014, several adult RCHS staff members observed Cruz slap a female student across the face multiple times while having a heated argument with her in a classroom. (Id. at ¶¶ 69–70). One witness reported the incident to DCFS. (Id. at ¶ 73). When RCHS Principal Marcey Sorenson learned of the incident, she called Cruz to her office and he admitted to slapping the student. (Id. at ¶ 74). The Board continued to employ Cruz and never disciplined him for the incident. (Id. at ¶¶ 75–76).

In Fall 2016, X.S., a female RCHS student, reported to her mother that Cruz played with her hair and made her feel uncomfortable. (Id. at ¶¶ 78–79). Her mother reported Cruz's conduct to a member of the Board Investigation Unit but the investigator never opened an investigation into the allegation or reported the conduct to DCFS. (Id. at ¶ 79).

In September 2016, Cruz was coaching the women's volleyball team and walked up behind a player, T.R., during warm-ups for a game and inappropriately touched her butt. (Id. at ¶ 82–83). The incident was reported to Assistant Principal Crosen who in turn never disciplined Cruz for his conduct or reported the incident to DCFS. (Id. at ¶¶ 84–85).

II. Jane Doe I and II Incidents (2016–2017)

A. Jane Doe I

When Jane Doe I started at RCHS in Fall of 2016, Cruz was the Dean of Students and a security guard stationed at the screening area on the first-floor entrance of the school. (Id. at ¶¶ 87–88). In September 2016, Jane Doe I forgot her ID and was directed to Cruz to obtain a temporary ID in order to be admitted into the school. (Id. at ¶¶ 89–90). Instead of handing the ID to Jane Doe I, Cruz "placed it on her forehead and proceeded to touch and caress [her] face with the back of his hand," making Jane Doe I feel "very nervous and scared." (Id. at ¶¶ 91–92).

On October 21, 2016, while dropping Jane Doe I off at school, her father approached Cruz and told him he would "kick Cruz's ass if [he] ever touched his daughter again." (Id. at ¶ 93). RCHS Dean of Students Albert Lawson witnessed the confrontation but never reported any incident to DCFS. (Id. at ¶ 94).

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