Khan v. Bd. of Educ. of Chi.

• Decision Date: 28 November 2018
• Docket Number: No. 17 CV 9300,17 CV 9300
• Parties: SHAHEENA KHAN, Plaintiff, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

SHAHEENA KHAN, Plaintiff, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.

No. 17 CV 9300

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

November 28, 2018

Judge Manish S. Shah

MEMORANDUM OPINION AND ORDER

Shaheena Khan, a former elementary school principal, alleges that the Board of Education wrongfully terminated her in August of 2017. Her first amended complaint is divided into eleven counts but cites many more causes of action. The Board moves to dismiss the complaint as unintelligible under Federal Rule of Civil Procedure 8 and, alternatively, moves to dismiss counts one, two, four, six, nine, ten and eleven under Federal Rule of Civil Procedure 12(b)(6).

I. Legal Standards

A complaint must contain a short and plain statement of factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Fed. R. Civ. P. 8(a)(2). In ruling on a motion to dismiss, a court must accept all factual allegations as true and draw all reasonable inferences in the plaintiff's favor, but the court need not accept legal conclusions or conclusory allegations. Id. at 680-82. A complaint must "contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007).

II. Facts

The Board of Education of the City of Chicago manages the city's public schools. [27] ¶ 7.¹ Defendant Karen Saffold was an employee of the Board and Plaintiff Shaheena Khan's supervisor. Id. at ¶¶ 10, 44.

Khan was once the principal of Aldridge Elementary. See id. ¶ 28. In June of 2013, she entered into an employment agreement with the local school counsel for Aldridge Elementary that covered the period spanning July 1, 2013, to June 30, 2017. Id. She was awarded another (on or about July 21, 2016) covering the period spanning July 1, 2017, to June 30, 2021. Id. ¶ 99. Khan alleges that she was fired on August 24, 2016. Id. ¶¶ 150-52.²

III. Analysis

A. Rule 8

Khan's complaint is divided into eleven counts, but that number is misleading. Five of those counts (counts two, four, nine, ten and eleven) describe two or more legal theories in their titles alone. See [27] at 27, 33, 45, 49 and 54. Additional theories are embedded in others. See, e.g., [27] ¶ 305 (claim for First Amendment retaliationcontained within count titled, "Declaratory Judgment, or in the Alternative, Common Law Writ of Certiorari").³

The amended complaint is not only disorganized, it is much longer than it needs to be. Rule 8 requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. See also Fed. R. Civ. P. 8(d)(1) ("[e]ach allegation must be simple, concise and direct"). A complaint does not need to contain every fact necessary to survive a motion for summary judgment. Suarez v. W.M. Barr & Co., Inc., 842 F.3d 513, 523 (7th Cir. 2016). At 323 paragraphs and 56 pages, the Fifth Amended Complaint is neither short nor plain.

Still, Rule 8 also permits a party to set out "2 or more statements of a claim either alternatively or hypothetically, either in a single count or defense or in separate ones," Fed. R. Civ. P. 8(d)(2), and while dismissal under Rule 8 may be appropriate where a complaint is so long and poorly presented as to render it unintelligible, it is not necessary here. See United States v. Lockheed-Martin Corp., 328 F.3d 374, 376, 378 (7th Cir. 2003) (dismissal appropriate where complaint contained 400 paragraphs over 155 pages with ninety-nine attachments); Stanard v. Nygren, 658 F.3d 792, 794 (7th Cir. 2011) (dismissal appropriate where complaint contained fifty-two pages, twenty-eight counts, multiple sentences longer than 300 words and so many grammatical and spelling errors that they were "too numerous toadd '[sic]' where required"). A more sensible complaint does not seem to be within Khan's counsel's skill set, and it would be a waste of time to ask him to try. The Board's motion to dismiss the complaint in its entirety is denied.

B. Rule 12(b)(6)

The Board moves to dismiss count one (breach of contract) for failure to state a claim, [29] at 3-5, as barred by the statute of frauds, id. at 5-6, as untimely, id. at 6-7, for failing to identify compensable damages, id. at 7-8, and as barred by the Illinois Human Rights Act, id. at 8; count two (due process violation) because the Board is immune, id. at 9; count four because the Board is not subject to ERISA, id. at 9-10; count six (First Amendment and Title VII retaliation) as duplicative and for failure to state a claim, id. at 10-11; count nine (declaratory relief) for failing to identify an actual controversy (i.e., for failure to state a claim), id. at 11-12, and counts ten (common law writ of certiorari) and eleven (malicious prosecution) for failing to state a claim. Id. at 12-13. Count one is dismissed as preempted by the Illinois Human Rights Act, counts two and nine are dismissed for failure to state a claim, and count six is dismissed as duplicative. Counts four, ten, and eleven are not dismissed.

1. Count One (Breach of Contract)

Khan's Amended Complaint contains two counts for breach of contract: count one addresses a sexual harassment policy allegedly contained with a set of rules the Board adopted in 2010, [27] ¶¶ 181-194, and count three addresses two performance contracts allegedly entered into in June of 2013 and July of 2017 between Khan and the Aldridge Local School Council. Id. at ¶¶ 210-217. The Board attached twodocuments to its motion to dismiss that purport to be the contracts addressed by count three, see [29-1]; [29-2], but then did not move to dismiss count three. See [29]. These two documents are not relevant to the motion to dismiss and Khan's motion to exclude them is denied as moot. See [36] at 1.

As for count one, Khan did not attach to her amended complaint a copy of the "Rules of the Board of Education of the City of Chicago," which form the basis of her claim. [27] at ¶¶ 181-194. The Board tried to do it for her, attaching to its motion to dismiss (as Exhibit C) a copy of what it said were the Board's Rules. [29] at 3; [29-3]. Khan says Exhibit C is not the set of rules she is suing over. [36] at 4. In response to the Board's motion, and after requesting and receiving permission to do so at a status hearing, Khan filed a supplementary brief that attached what she asserts are copies of the policies that form the basis of her claim in count one. [53] ("in support of the allegations in . . . Count I of the Amended Complaint . . . [Khan] respectfully draws the court's attention to" exhibits 1 and 2 to the supplemental brief); [53-1]; [53-2]; [54].

Normally, a court must convert a motion to dismiss to one for summary judgment if it considers matters "outside the pleadings." Fed. R. Civ. P. 12(d). See also Fed. R. Civ. P. 10(c); N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452-53, (7th Cir. 1998) (the "pleadings" include the complaint, the answer, and any documents attached as exhibits). There is an exception that allows a court to consider documents omitted from the complaint but attached to a motion to dismiss when those documents are referenced in the complaint and "central" to theplaintiff's claims. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012); Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (the "narrow exception" is "aimed at cases interpreting, for example, a contract"). And normally, when a document and a party's description of that document conflict, the exhibit controls. Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007) ("[a] court is not bound by the party's characterization of an exhibit and may independently examine and form its own opinions about the document").

The wrinkle here is that Khan argues that Exhibit C is not the contract. [36] at 1 (Khan "has no claim arising from Exhibit C"). In essence, she challenges the authenticity of the document the Board has submitted. So I decline to consider Exhibit C. See Hecker v. Deere & Co., 556 F.3d 575, 582-83 (7th Cir. 2009) (declining to extend the exception for documents outside the pleadings where the party opposing their consideration disputes the documents' authenticity) (citing Travel Over the World v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996)).

I will, however, consider Exhibits 1 and 2 to Khan's supplemental brief, [53-1]; [53-2], because both the exception in Brownmark, 682 F.3d at 690, and another exception for documents submitted by a plaintiff in response to a motion to dismiss, see Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (when opposing a Rule 12(b) motion, a plaintiff "may submit materials outside the pleadings to illustrate the facts the [plaintiff] expects to be able to prove," so long as those "new elaborations" are consistent with the complaint), apply with equal force here, where the documents are referenced throughout the complaint, central to Khan's claims,and were voluntarily submitted by Khan herself to illustrate new facts consistent with the allegations in her complaint.

The Board advances five arguments in favor of dismissing the first count of Khan's first amended complaint. [29] at 3-8. Ultimately, I agree with only one—the Illinois Human Rights Act preempts count one.

Sexual harassment policies are not generally binding contracts. But they can be when certain criteria—the traditional criteria for contract formation—are met. Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 490 (1987). Courts have extended the rule from Duldulao (that an employee handbook can create enforceable rights to a particular disciplinary procedure, even if that employee is at-will) to cover policies that promise other tangible benefits, Dow v. Columbus-Cabrini Med. Ctr., 274 Ill.App.3d 653, 656 (1st Dist. 1995), as modified (...