United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, CHIEF JUDGE
December 7, 2018, Plaintiff Luis Pena filed a Complaint
against Indianapolis Public School Corporation
(“IPS”), E.R. (a minor), and Jorge Ramos
(E.R.'s father), relating to allegations E.R. and Mr.
Ramos made that resulted in IPS investigating Mr. Pena's
conduct and ultimately recommending termination of his
employment with IPS. [Filing No. 1.] Presently
pending before the Court is Defendant Indianapolis Public
School Corporation's Motion to Dismiss Counts 1 and 2
(“Motion to Dismiss”), [Filing No.
16]. IPS seeks dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. The
Court finds that Mr. Pena's Title VII discrimination
claim may proceed, but that his remaining claims must be
dismissed at this stage. Accordingly, as explained below, the
Court GRANTS IN PART and DENIES IN
PART IPS's Motion to Dismiss.
Rule of Civil Procedure 8(a)(2) “requires only ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Fed.R.Civ.P.
8(a)(2)). “Specific facts are not necessary, the
statement need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.'” Erickson, 551 U.S. at 93 (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
motion to dismiss asks whether the complaint
“contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
In reviewing the sufficiency of a complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. See Active
Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th
Cir. 2011). The Court will not accept legal conclusions or
conclusory allegations as sufficient to state a claim for
relief. See McCauley v. City of Chicago,
671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must
plausibly state an entitlement to relief “to a degree
that rises above the speculative level.” Munson v.
Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This
plausibility determination is “a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
following are the factual allegations set forth in Mr.
Pena's Complaint, which the Court must accept as true.
filing an Equal Employment Opportunity Commission
(“EEOC”) Charge and receiving a Notice
of Right to Sue from the EEOC, Mr. Pena filed a Complaint
against IPS, E.R., and Mr. Ramos on December 7, 2018.
[Filing No. 1 at 2.] The allegations stem from
events that took place while Mr. Pena was working as a
bilingual and support staff member at IPS. [Filing No. 1
at 3.] In January 2018, Mr. Pena was working as an
assistant in an 8th grade English class for IPS.
[Filing No. 1 at 3.] E.R. was a student in this
class and was part of a small group of Spanish-speaking
students with whom Mr. Pena would regularly meet. [Filing
No. 1 at 3.] During these small group meetings, E.R.
would often be disruptive and Mr. Pena chastised E.R. several
times before he decided to speak to the English teacher about
E.R.'s behavior. [Filing No. 1 at 3.] On January
8, 2018, Mr. Pena attempted to contact E.R.'s father, Mr.
Ramos, to advise him that another teacher in the school was
also having issues with E.R.'s disruptive behavior.
[Filing No. 1 at 3.] Mr. Pena was eventually able to
reach E.R.'s uncle, who was listed as an emergency
contact in E.R.'s IPS records. [Filing No. 1 at
4.] Mr. Pena advised the uncle that he needed to speak
with Mr. Ramos about E.R.'s behavior at school and
requested that Mr. Ramos contact him. [Filing No. 1 at
4.] Mr. Ramos did not contact Mr. Pena, but instead went
to E.R.'s school on February 6, 2018 and spoke to the
assistant principal about Mr. Pena. [Filing No. 1 at
4.] Mr. Ramos reported that “Mr. Pena had
disrespected E.R. by making her look for pictures of an old
girlfriend including naked photos. He has made crude comments
and gestures with his mouth.” [Filing No. 1 at
4.] Mr. Pena denied then, and still denies now, the
substance of these allegations made by Mr. Ramos. [Filing
No. 1 at 4.]
Child Protective Services (“CPS”)
initiated investigations into Mr. Ramos's allegations
about Mr. Pena. [Filing No. 1 at 4.] On February 7,
2018, Mr. Pena received notice from IPS that he was being
suspended without pay pending the investigations of the
“allegations that [he] made inappropriate comments to a
student and directed her to an explicit social media
post.” [Filing No. 1 at 4.] The notice also
stated that Mr. Pena was “prohibited from visiting IPS
school grounds without permission from [the principal], the
IPS Police Department or [IPS's Director of Employee
Relations].” [Filing No. 1 at 4.]
CPS's investigation, E.R. made different allegations
against Mr. Pena, all of which Mr. Pena contends are false
and defamatory. [Filing No. 1 at 4.] CPS concluded
its investigation and determined that it could not
substantiate any of E.R.'s allegations. [Filing No. 1
IPS's investigation, however, IPS determined that Mr.
Ramos's and E.R.'s allegations were
“substantiated.” [Filing No. 1 at 5.]
IPS's superintendent and general counsel recommended that
IPS terminate Mr. Pena's employment. [Filing No. 1 at
5.] IPS notified Mr. Pena that he was “suspended
without pay pending his termination for violation of
IPS's Title IX policy[, ] including inappropriate and
suggestive behavior and comments directed towards a female
student.” [Filing No. 1 at 5.] Mr. Pena
received a hearing, which occurred on May 29, 2018.
[Filing No. 1 at 5.] Mr. Pena submitted written
statements from several students who indicated they had never
witnessed Mr. Pena behaving in the manner that E.R. alleged.
[Filing No. 1 at 5.] One of Mr. Pena's witnesses
testified that E.R. and two boys instructed the witness to
lie to investigators about Mr. Pena's and E.R.'s
interactions so that Mr. Pena's employment would be
terminated. [Filing No. 1 at 5.] IPS did not allow
Mr. Pena to present the testimony of two witnesses who
attended the hearing, nor did IPS allow Mr. Pena to
cross-examine any of IPS's witnesses. [Filing No. 1
at 5.] After the hearing, IPS decided to reset the
hearing to another date and reopen its investigation to
interview additional witnesses. [Filing No. 1 at 6.]
November 16, 2018, IPS contacted Mr. Pena's counsel and
advised him that Mr. Ramos reported to IPS that Mr. Pena was
in the school parking lot trying to contact students who may
be able to serve as witnesses. [Filing No. 1 at 6.]
Mr. Pena denied that he was in the school parking lot.
[Filing No. 1 at 6.] IPS later confirmed that Mr.
Pena had not been speaking to students on school property and
stated to Mr. Pena's counsel that IPS was “not sure
why Mr. Ramos was so adamant that this was the case and that
it had been going on for some time.” [Filing No. 1
at 6.] However, despite this finding, IPS issued Mr.
Pena a second no trespass order. [Filing No. 1 at
6.] The second hearing was conducted on November 20,
2018. [Filing No. 1 at 6.] During cross-examination,
IPS's official responsible for the follow-up
investigation testified that she did not speak to all of the
witnesses that had submitted statements at the prior hearing.
[Filing No. 1 at 6.] The investigator stated that
she was told by her IPS supervisor to not speak to those
witnesses. [Filing No. 1 at 6.] However, the
investigator did speak to one of the boys who previously
testified that E.R. told him to lie to investigators, and the
boy stated he “hid in a bathroom instead of speaking
with [the] IPS investigator because he was afraid.”
[Filing No. 1 at 6.] IPS did not speak to the
teachers who routinely observe Mr. Pena's interactions
with students “under the guise that the teachers do not
speak Spanish so they would be unable to give accurate
information.” [Filing No. 1 at 8.] IPS failed
to preserve any video evidence that may have been relevant.
[Filing No. 1 at 8.] IPS concluded the second
hearing by recommending the termination of Mr. Pena's
employment with IPS. [Filing No. 1 at 7.]
December 7, 2018, Mr. Pena filed this action. [Filing No.
1 at 7.] As of that date, Mr. Pena had not received
notice of his termination. [Filing No. 1 at 7.]
Pena's Complaint alleges that:
• “IPS discriminated against [Mr.] Pena on the
basis of his race and national origin (Columbian)”;
• “[t]he discrimination subjected [Mr.] Pena to a
hostile work environment that was sufficiently severe or
pervasive to alter the conditions of his employment and to
create an abusive working environment”; and,
• “[t]he Title IX investigation conducted by IPS
was biased and inequitable from the outset, ” and
“[t]hroughout the investigation of the allegations IPS
discriminated against [Mr. Pena] on the basis of gender, and
his race (Latino), considering him guilty until proven
innocent, depriving him of fundamental due process, including
the right to cross-examine his accuser as guaranteed by the
United States and Indiana Constitutions.”
[Filing No. 1 at 7-8.]
February 22, 2019, IPS filed its Motion to Dismiss,
[Filing No. 16], which is fully briefed and ripe for
Motion to Dismiss, IPS argues that Mr. Pena's Complaint
fails to state claims for violations of Title VII, Title IX,
and the Due Process Clause of the Fourteenth Amendment.
[Filing No. 16 at 1.] The Court addresses each claim