Update: December 29, 2006
THIS IS A PUBLIC RECORD, FILED ON DECEMBER 4, 2006
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARLENE BOUYER-NANCE,
Plaintiff,
v.
CENTERS FOR NEW HORIZONS, INC.
Defendants.
No. 06 C 4813
Honorable Robert W. Gettleman
Magistrate Judge Arlander Keys
JOINT INITIAL STATUS REPORT
Plaintiff Darlene Bouyer-Nance (“Bouyer-Nance) and defendant Centers for New Horizons, Inc. (“Centers”) hereby submit their joint status report in accordance with the order setting initial status report for cases assigned to Judge Gettleman.
A. This matter is set for status on December 6, 2006 at 9:00 am.
B. Bouyer-Nance is proceeding pro se in this matter. Centers is represented by Jeffrey I. Cummings and Tiffany Glanville of Miner, Barnhill and Galland, P.C., who are expected to try the case.
C. This Court has subject jurisdiction of plaintiff’s claim under Title VII of the Civil Rights Act of 1964 pursuant to 42 U.S.C. §2000-e2 & 5, 28 U.S.C. §1367, §1331, 1343 and 1981a (a)(1) and (b)(1), and it has jurisdiction of plaintiff’s claim under the Age Discrimination in Employment Act of 1967 (ADEA) pursuant to 42 U.S.C. §12117.
D. Neither party has requested a jury trial.
E. (1) Plaintiff’s statement of the claims. A wrongful discharge/termination was carried out by defendant against plaintiff. Defendant claimed plaintiff was terminated for misconduct. Plaintiff was not required to report abuse of child in this instant matter. During the investigation of the supposed child abuse, plaintiff questioned the mother and child, determining no child abuse took place. The person reporting the child abuse did not report it to plaintiff until a week later. Mr. David W. Ott, Hearing Referee and Administrative Law Judge for the Illinois Department of Employment Security (“IDES”) determined during this investigation:
The claimant’s [plaintiff’s] [emphasis added] failure to report the mother to DCFS was not deliberate and willful…the employer was second guessing the claimant’s judgment based on what she actually saw and heard…She was in the best position to decide, based on her experience…There certainly was no evidence of physical abuse apart from the minor mark on the child’s face, which could have come from horseplay rather than from child abuse. The mark was so insignificant that the teacher [another Centers employee] [emphasis added] did not mention it for a week.
Centers appealed to IDES’s Board of Review (the “Board”). The Board reports: The record adequately sets forth the evidence so that no further evidentiary proceedings are deemed necessary…The claimant had never been warned about not reporting suspected instances of child abuse to DCFS…The employer’s assertion that the claimant told them that the mother told her that she “whipped him too hard” lacks credibility…Consequently, the record supports the Referee’s conclusion that the claimant, although she may have used poor judgment in not reporting the incident to DCFS, did not deliberately and willfully violate the employer’s policy…Accordingly, we conclude that the claimant was discharged for reasons other than misconduct connected with work and is not subject to disqualification….
(2) Defendant’s statement of its defense. Centers terminated plaintiff’s employment for the following legitimate, non-discriminatory reason. Plaintiff was employed as the program manager of one of Centers’ early-childhood learning centers. Because her job involved interaction with children in an educational setting, plaintiff was required to execute an “acknowledgment of mandated reporter status” which acknowledged her obligation to report the Illinois Department of Children and Family Services “whenever I have reasonable cause to believe that a child known to me in my professional or official capacity may be abused or neglected.” Centers discovered that plaintiff failed to report to DCFS an instance of suspected abuse or neglect and it terminated her employment for that reason. Plaintiff’s age, sex, and religious had nothing to do with this decision. Centers further denies that it retaliated against plaintiff in any fashion.
F. Plaintiff requests an award for punitive, compensatory and exemplary monetary damages in the amount of $80,000.00 from Centers for motive and intent of the wantonness and gross negligence of the egregious and outrageous acts of malice, reckless and callous indifference and conduct to the federally-protected rights of plaintiff, along with the pain and suffering, mental anguish, harassment, and intimidation of plaintiff in the work environment.
G. There are no parties who have not been served.
H. (1) Plaintiff’s statement of the principal legal issues. Disparate impact, disparate treatment, adverse employment action, which is wrongful termination under Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. §2000e, et seq. Farrell v. Butler University (7th Cir. 2005). Finding of genuine issue of material fact, disparate treatment, disparate impact, and adverse employment. Walker v. Abbott Laboraories (7th Cir. 2003). At-will employment contractual claim under §1981. Washington v. Illinois Department of Revenue (7th Cir. 2005). Discrimination in terms and conditions of employment under Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. §2000e, et seq. Discrimination in terms and conditions of employment and adverse employment action.
Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2006), and Whittaker v. Northern Illinois University, et al. (7th Cir. 2005). Hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. §2000E, et seq. To establish a prima facie case for unlawful retaliation, plaintiff must prove three elements: (a) she engaged in statutorily-protected expression; (b) she suffered and adverse employment action; and (c) there was a causal link between the protected expression and the adverse action. Krause v. City of La Crosse, 246, F.3d 995, 1000 (7th Cir. 2001). A causal link between the protected expression and an adverse employment action may be established by showing that the protected conduct was a substantial or motivating factor in the employer’s decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). “A motivating factor does not amount to a but-for factor or to the only factor, but is rather a factor that motivated the defendant’s actions.” Spiegla v. Hull, 371 F.3d 928, 942 (7th Cir. 2004).
Reverse discrimination and similarly-situated individuals under Title VII of Civil Rights Act of 1964, as amended, and 42 U.S.C. §2000e, et seq. Ineichen v. Ameritech (7th Cir. 2005), this court reports reverse-discrimination claims arise where the decisionmakers are of the same sex or race as the alleged victim, see, e.g., Preston v. Wis. Health Fund, 397 F.3d 539 (7th Cir. 2005). The court explained the rationale for the heightened standard in Phelan v. City of Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003), and Mills v. Health Care Service Corp., 171 F.3d 450, 455-57 (7th Cir. 1999).
Age and sex discrimination as plaintiff alleges Centers’ employees conspired and collaborated to discriminate against plaintiff. Plaintiff demonstrates through her allegations a violation of Title VII, as amended, for age and sex discrimination under the disparate-impact theory and disparate-treatment theory whether she proves discriminatory intent or not.
(2) Defendant’s statement of the principal legal issues. The principal legal issues in this case include: (a) whether or not Centers had a legitimate, non-discriminatory, non-retaliatory reason for terminating plaintiff’s employment; (b) whether Illinois law precludes plaintiff from making use of evidence in this case regarding the decision of and/or testimony by the administrative law judge in her unemployment compensation proceedings before IDES.
I. (1) Plaintiff’s statement of the principal factual issues. Plaintiff contends that there are disputed factual issues in this case that would deny summary judgment to the defendant. Plaintiff was wrongfully discharged/terminated from employment. Plaintiff is over 40 years old, which makes her eligible under ADEA. Plaintiff’s supervisor, Artiyah Buckner-Nash, purposely and willfully manufactured evidence against plaintiff to support her request that plaintiff be terminated/discharged from employment. Centers’ employees violated plaintiff’s civil rights pursuant to the Civil Rights Act of 1964, as amended 1991 Act, and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended 1991 Act.
(2) Defendant’s statement of the principal factual issues. Centers contends that there are no disputed factual issues in this case that would preclude summary judgment in Centers’ favor on the remaining claims advanced by plaintiff.
J. Plaintiff is not sure of what motion(s) may be filed at this time, but plaintiff will file a motion for summary judgment in this case. Defendant intends to file a motion for a protective order and a motion for summary judgment on all remaining claims in this case.
K. Both parties have served written discovery, including requests for production of documents and interrogatories and the parties have agreed to exchange their written responses on December 11, 2006 or shortly thereafter. In addition, Centers noticed a deposition of Bouyer-Nance. However, Bouyer-Nance expressed the date must be changed, and the deposition has not been rescheduled thus far.
The parties propose the following discovery schedule: (2) written discovery responses shall be due by December 15, 2006; (3) depositions shall be completed by January 15, 2006; discovery cutoff shall be February 1, 2007; and (5) case dispositive motions shall be filed by March 1, 2007.
L. Plaintiff and Defendant will be ready for trial when and if a trial is necessary after their prospective summary judgment motions are resolved.
M. There have been no settlement discussions between the parties at this time. Plaintiff is open to settlement discussions and alternative dispute resolution.
N. The parties do not consent to trial before the Magistrate Judge.
Respectfully submitted,
Darlene Bouyer-Nance
Jeffery I. Cummings
Plaintiff has submitted to Centers a “Proposed Settlement Agreement, Mutual Release and Covenant Not to Sue”
Update: December 3, 2006
Initial Status Report filed with Attorney of Record for Centers for New Horizons. See Initial Status Report on http://clickforjusticeandequality2.blogspot.com/
Update: November 6, 2006
See http://clickforjusticeandequality2.blogspot.com/ to view the request for production of documents and interrogatories.
The motion for sanctions was denied. Judge Gettleman refused the plaintiff's request to address the court by telephone conference when she clearly requested it in time speaking to Courtroom Deputy George Schwemin stating she could not attend the court appearance because she was suffering from Sciatica and a possible Herniated Disk, which is a medical issue where she had to have a Catscan. Mr. Steve Gilman, Judge Gettleman's law clerk, states Judge Gettleman does not do telephone teleconferences. Judge Gettleman ruled on the motion for sanctions without the plaintiff being present.
Update: October 12, 2006
See http://clickforjusticeandequality2.blogspot.com/ to view the civil complaint and motion for sanctions
Update: September 23, 2006
The law firm of Miner, Barnhill & Galland has filed its appearance in the Matter of Darlene Bouyer-Nance v. Centers for New Horizons, Inc. with the U.S. District Court for the Northern District of Illinois, 7th Circuit. Attorney Jeffrey I. Cummings appears to be lead counsel. Darlene has not received Centers' answer to her complaint as of this date.
Darlene is still looking for an attorney to represent her in this matter. C.L.I.C.K. Services is exploring and exhausting its resources looking for representation for Darlene. If there is an attorney out there willing to represent Darlene, please post in comment section. Thank you.
Update: September 7, 2006
Federal Complaint filed with the District Court for the Northern District of Illinois, Eastern Division, 7th Circuit in this matter. See it at my new website called: Resources to use for Federal and State Petitions to the Courts at http://clickforjusticeandequality2.blogspot.com/
Update: September 2, 2006
Darlene Bouyer-Nance is the claimant.
On or about August 30, 2006 the Board of Review for the Illinois Department of Employment Security issued its findings in this matter. The Board reported the following:
"The record discloses that the claimant was employed as Program Manager at one of the employer's childcard facilities. She was discharged on March 15, 2006 for failing to report a possible instance of child abuse to the Illinois Department of Children and Family Services (DCFS) after having been informed by a teacher at the childcare that the child had a small cut beneath one eye. The teacher had noticed the mark a week before informing the claimant of her observation.
The employer's assertion that the claimant told them that the mother told her that she "whipped him too hard" lacks credibility. Other than at the hearing, the employer made no claim that the mother had used this term. Moreover, the other supervisor who allegedly heard the claimant relate the mother's statement did not appear and testify at the hearing. In contrast, the claimant's denial at the hearing regarding the mother's purported statement is supported by her (the claimant's) earlier statement to the claims adjudicator and by the description of the incident made by the claimant in the grievance she filed against the employer on March 16, 2006, the day after her discharge. Consequently, the record supports the Referee's conclusion that the claimant, although she may have used poor judgment in not reporting the incident to DCFS, did not deliberately and wilfully violate the employer's policy.
Accordingly, we conclude that the claimant was discharged for reasons other than misconduct connected with work and is not subject to disqualification under section 602A of the Act."
Centers violated Darlene's civil rights in that she suffered disparate treatment and disparate impact, discrimination in terms and conditions of employment and adverse employment action, a hostile work environment and retaliation, and treatment different than similarly situated individuals.
Update: August 29, 2006
Darlene intends to file her petition/complaint in federal court on or before September 29, 2006. She continues to await the decision of the Illinois Department of Human Rights. There is also a petition pending before the Illinois Department of Employment Security's Board of Review filed by the respondent, Centers for New Horizons (Centers). Center's is still trying to stop Darlene's unemployment benefits.
Update: July 27, 2006
On July 27, 2006 Darlene received a "Notice of Pending Appeal" from the State of Illinois, Department of Employment Security - Board of Review. Apparently, Centers for New Horizons has filed an appeal to the Board of Review on July 20, 2006, which is their right. I, Fred Nance Jr., will be calling the Board of Review to investigate this appeal to assure there are no inproprieties, biases and prejudices added to this matter. Centers' should not be allowed to add additional testimony or documentation in an appeal. An appeal should be based on the documentation and testimony previously given, as any appeal is conducted. Appeals do not allow "new" testitmony or documentation. A decision of an appeal should be determined upon what has been submitted previously in the matter.
Update: July 26, 2006
On July 25, 2006 Darlene received a letter from the Illinois Department of Human Rights (IDHR), dated July 21, 2006, reporting in part, "...It is important for you to understand that the Department is taking no other action on your charge at this time, and there is no need for you to contact the Department of Human Rights."
I immediately called IDHR requesting to speak to a supervisor at 4:33 pm. I spoke to Ms. Turner who gave me information for contacting Mr. Denzel Laye, Supervisor of the Case Disposition Unit on July 26, 2006. I called Mr. Laye this morning. As we discussed this letter, Mr. Laye stated the letter we received pertains to the issues surrounding the 2nd charge of retaliation filed with the Equal Employment Opportunties Commission (EEOC). I informed Mr. Laye we did not know we had a second charge with EEOC. Mr. Laye stated he could not give us any information about the 2nd charge. Mr. Laye and I also discussed the signed notarized charge mailed to them for the 1st charge. Mr. Laye stated they did not have it. I informed him we sent it by certified mail on July 17, 2006. I researched the postal system's website. The IDHR notarized 1st charge signed by Darlene was delivered to IDHR on July 21, 2006.
I called Ms. Rossi, at approximately 10:00 am, who issued the right to sue letter on the 1st charge. I got her voice mail. I did not leave a message. I called the EEOC general phone number. The person who answered the call look up our charges. She informed me we had 2 charges. The first charge was filed on March 29, 2006, which included age, sex and religion. The second charge was filed on May 30, 2006, which included retaliation. I asked the person who answered the phone when were we going to be informed there was a second charge. I informed this person we thought all of these charges were combined into one charge. I asked for a disposition on the 2nd case because IDHR stated they were not investigating the 2nd charge because they had not received a disposition on the 2nd charge. The EEOC representative stated she could not access the disposition from her computer. I requested to speak to a supervisor.
I was connected to Ms. Monique Debusemann. I had to leave a message because no one answered the phone. This was about 10:30 am. I called Ms. Rossi again at 3:10 pm. She answered the phone. I informed her of my dilemma. Ms. Rossi informed me both cases were closed at the same time. Ms. Rossi said she would fax me a copy of the 2nd "Dismissal and Notice of Rights." I asked Ms. Rossi who would inform IDHR. Ms. Rossi informed me she did not know how IDHR is made aware of cases being closed. I will alert IDHR's supervisor of the Case Disposition Unit, Mr. Denzel Laye, of this revelation.
July 1, 2006
On July 1, 2006 Darlene received her "official" notice of right to sue from the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC issued the following determination: "Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge." I have something else I want to do before we pursue our approaches toward a federal complaint. We accomplished our strategic objectives for the first leg of this fight. The future strategies and approaches toward our federal complaint are not available for public viewing at this time. Look for future postings toward this end.
June 26, 2006
United States Equal Employment Opportunities Commission
Chicago District Office
Ms. Monique Debusemann, Supervisor
500 West Madison Street, Suite 2800
Chicago, Illinois 60661
Re: Darlene D. Bouyer-Nance v. Centers for New Horizons
EEOC Number: 440-2006-02879
Ms. Debusemann:
I, Fred L Nance Jr., am the advocate for Darlene Nance in this matter. Darlene and I talked with Ms. Rossi, who is the investigator assigned to this case, on June 26, 2006 at 1:00 pm. We discussed this matter and Ms. Rossi has determined she will issue a right-to-sue response. We disagree with her decision and analysis.
Darlene and I discussed the recent ruling by the Illinois Department of Employment Security (IDES) where Darlene was exonerated of misconduct, that is, deliberate and willful violation of a reasonable rule or policy. Centers reports they terminated Darlene for misconduct, not reporting a suspected child abuse case. Ms. Rossi suggests IDES uses different law than EEOC to determine an issue. Be that as it may. The question then becomes, “why did Centers terminate Darlene?” Darlene and I suggest the termination was based on retaliation, age, sex and/or religion. We also suggest since the onset of filing this charge and its investigation, the charges have not been examined appropriately.
Darlene and I reported in our original meeting with an investigator discrimination based on retaliation, age, sex and religion. We suggest if Darlene is not guilty of the employment action taken by Centers, then Darlene was terminated because:
Retaliation: Center’s Director of Early Childhood Education, Artiyah Buckner-Nash, terminated Darlene in response to Darlene writing disciplinary reports against her friends, which is retaliation. Center’s continued this retaliatory act at every stage of the grievance procedure, even though Darlene demonstrated at every stage of the grievance procedure the findings of IDES.
Age Discrimination: Darlene is over 40-years-old. Darlene was the Director at Edison L. Hoard, Centers for New Horizons. Darlene was replaced by a young lady under 40-years-old. She is in place now at Edison L. Hoard. Centers wanted to replace Darlene with someone younger.
Sex: Mr. Witherspoon, male Director for Centers, was retained while most of his staff was terminated because of child endangerment. This was not reported to DCFS as suggested Darlene report. Mr. Witherspoon was not terminated as Darlene for not reporting the child endangerment issue to DCFS. Ms.Rossi did not discuss this issue.
Religion: Darlene is a Christian, with Christian morals and values. Darlene was prevented from exercising her religious beliefs and was ordered to pick up the religious beliefs of Centers. Centers’ provides services to a mixed racial population. Centers’ is not a Christian organization as Ms. Rossi reported to Darlene and I. Center’s does not believe in and has instructed the staff not to teach the children anything about Easter or Christmas, the staff is ordered not to use the word God or Jesus Christ. Centers’ is an Afrocentric organization concentrating on “black” equality and pride as their website suggests. Darlene and I submitted a document to EEOC titled “Centers for New Horizons Daily Rituals. One of these rituals states, “Black Pledge: We are the First and the Last, THE ALPHA AND OMEGA, We pledge to think black, speak black, act black, pray black, buy black, love black, and live black. Darlene and I presented the religious issue to Ms. Rossi stating the use of the words “We are the First and the Last, THE ALPHA AND OMEGA” is a religious statement and religious in nature. Darlene and I suggested to Ms. Rossi when the use of religious wording is before “…we pledge to think black…” then religious discrimination takes place, along with Darlene being denied the right to practice her religion. Christianity does not purport the theories or the practices of Centers. Centers’ does practice religious rituals with this belief system and their statements within the document submitted to EEOC.
Similarly situated individual: Ms. Patricia Martin, Director of Anita Boswell Early Learning Center (Hyde Park location), was involved in a non-reporting child abuse case as suggested by Centers’ against Darlene in her termination. Ms. Martin did not report the child abuse issue at the Anita Boswell site. Ms. Martin was retained and transferred to the main office for about a month, then to the Algeld Garden site. In the same child abuse case the cook, Patricia Morsett, was terminated for child abuse. This child abuse case was reported by the teacher Ms. Robinson and child’s mother. Ms. Robinson was terminated for alerting the parent her child was being abused by the cook and for calling DCFS. The child’s name is xxxxxxx. This incident happened in early 2004. Artiyah Buckner-Nash was aware of this situation and terminated Ms. Robinson and Ms. Morsett. Artiyah Buckner-Nash transferred Ms. Martin to another site as mentioned above. Artiyah Buckner-Nash terminated Darlene. Ms. Martin and Darlene were and are similarly situated.
Therefore, I respectfully request EEOC review the file for the discrepancies noted above. Ms. Rossi’s investigation is flawed. The issues of similarly situated, sex, age, religion and retaliation were mentioned to the initial investigator and to you during the initial claim. Somewhere along the way we all lost focus of the charge. Darlene and I want to accept our part in this miscommunication of facts. As Darlene and I continued through this process of EEOC and with the Illinois Department of Employment Security, we discovered other material and information leading to confirmation of our original charge under Title VII.
In addition, Ms. Rossi totally discharges from thought our case, which may have a foundation based upon: Farrell v. Butler University (7th Cir. 2005) disparate treatment, disparate impact and adverse employment actions; Washington v. Illinois Department of Revenue (7th Cir. 2005) discrimination in terms and conditions of employment and adverse employment action; Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2006) and Whittaker v. Northern Illinois University et al. (7th Cir. 2005) hostile work environment and retaliation; and Ineichen v. Ameritech (7th Cir. 2005) similarly situated individuals. All of which fall under Title VII, ADEA, § 1331, § 1367, § 1981 and § 1983.
Please review. When I informed Ms. Rossi it appears EEOC leaves the consumer out in the cold with their case, she responded stating before EEOC was in place consumers had to go to court on their own behalf anyway. What does this mean? What does this have to do with the present outcome Ms. Rossi suggests? When I further addressed the issue of EEOC dismissing Darlene’s claim in this matter, Ms. Rossi stated as you did when Darlene and I met with you that EEOC has limited resources. What does this mean to the consumer? What does this mean toward the creation of EEOC?
What is your agency going to do with this case? It is obvious to me, the layperson, Darlene has a case under Title VII. Someone botched this investigation.
I talked to Ms. Debusemann informing her I would submit this writing by facsimile in response to Ms. Rossi’s evaluation and assessment of this claim.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
Darlene Bouyer-Nance, M.Ed.
cc: http://clickforjusticeandequality.blogspot.com/ or C.L.I.C.K. for Justice and Equality
