A federal judge in the Northern District of Illinois has sustained the claim of a teacher/would-be athletic director, who sued her school district/employer after it passed over her for the AD job, gave her a negative performance review and transferred her to an elementary school.
Specifically, the judge denied in part the defendant’s motion to dismiss the complaint of Karen Kodl, finding that they were not time-barred as the defendant had argued in its motion.
Kodl had been a physical education teacher at Jackson Middle School in Villa Park, Illinois for 18 years when the alleged discrimination began taking place. In 2002, the school created an athletic director position, for which 47-year-old Kodl applied. The district, instead, hired a 27-year old male, to the AD position. More developments occurred in 2003. For example, Kodl supported another female teacher in her complaint to school officials, concerning the threatening behavior of a younger male against that teacher.
“By 2004, Palmisano gave Kodl a negative performance review, which included false and disparaging comments, although Palmisano had told Kodl earlier that she was an excellent teacher,” wrote the court. Shortly thereafter, Kodl was transferred to an elementary school and replaced by a younger male teacher.
On August 23, 2004, she filed charges of age and gender discrimination and retaliation against the School District with the Equal Employment Opportunity Commission. Eight months later, the EEOC issued a Notice of Right to Sue letter.
On June 30, 2005, Kodl filed a two-count complaint against the school district seeking to recover for gender discrimination and retaliation Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimination and retaliation under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.
The school district moved to dismiss the case, pursuant Federal Rule of Civil Procedure 12(b)6. Specifically, it argued that:
“(1) the court must dismiss Kodl’s claims of discrimination and retaliation in part, to the extent that they rely on events occurring more than 300 days before she filed her charges with the EEOC, and
“(2) the Court must dismiss all of Kodl’s claims of retaliation because she failed to plead that she had engaged in a “protected activity” within the meaning of Title VII and the ADEA “
Taking the timeliness argument first, the court agreed with the defendant that some of the “alleged discrete acts of discrimination” are time-barred, such as the initial decision not to make her the AD. However, other alleged acts, such as the negative evaluation and her subsequent transfer to Schaffer, are timely. The court said it remained “unclear” whether Kodl citing of the second hiring of an AD as an act of discrimination was timely.
“While the School District contends that the Court must dismiss Kodl’s retaliation claims if they are based on actions that occurred prior to October 28, 2003, Title VII and the ADEA only require that the retaliatory act itself-not the employee’s protected activity that motivated the retaliation — be within the statutory period,” wrote the court, citing National R.R. Passenger Corp., 536 U.S. at 113 (Title VII does not bar employee from using non-actionable prior acts as background evidence to support timely claim); West v. Ortho-McNeil Pharmaceutical Corp., 405 F.3d 578, 581 (7th Cir. 2005) (same). “Therefore, Kodl is not time-barred from asserting claims of retaliation under Title VII or the ADEA for retaliatory acts occurring on or after October 28, 2003.”
Turning to the school district’s second argument that the court should dismiss Kodl’s retaliation claims because she failed to plead that she engaged in a protected activity, the court sided with the plaintiff.
“Here, in addition to identifying her negative evaluation and transfer to Schaffer Elementary School as acts of retaliation,” Kodl’s complaint includes specific allegations and gave the school district “fair notice of her claims and the grounds upon which her claims rest.”
Karen Kodl v. Board Of Education, School District 45, Villa Park; N.D.Ill.; No. 05 C 3837; 11/8/05
Attorneys of Record: (for plaintiff) Michael Lee Tinaglia, Law Offices of Michael Lee Tinaglia, Ltd., Park Ridge, IL. (for defendant) Barbara Endoy, Robbins Schwartz Nicholas Lifton & Taylor, Ltd., Chicago, IL.