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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LUIS AGUILERA, Plaintiff, vs. CHICAGO PUBLIC SCHOOLS OF THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.

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Case No. 11 C 9241 Jury Trial Demanded

COMPLAINT Plaintiff, LUIS AGUILERA, hereinafter “AGUILERA,” through his attorney, complains against Defendant, CHICAGO PUBLIC SCHOOLS OF THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, hereinafter “BOARD,” as follows: I. NATURE OF ACTION 1.

This is an action brought against Defendant under 42 U.S.C. Section 1983, 28

U.S.C. Section 1331 and 1337, the 1964 and 1991 Civil Rights Acts, and the Constitution of the United States of America, to recover actual damages caused by Defendant’s discrimination and retaliation against the Plaintiff, arising out of Plaintiff’s speech, for an award of punitive damages, injunctive relief, and for such other relief as this Court deems proper, including, but not limited to, an award of attorneys’ fees under 42 U.S.C. § 1988. . Plaintiff demands trial by jury. II. JURISDICTION AND VENUE 2.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343.

3.

Venue is appropriate under 28 U.S.C. § 1391, because the Defendant conducts 1


business in and the discrimination and retaliation about which Plaintiff complains occurred in the Northern District of Illinois. 4.

The Plaintiff is a resident of the State of Illinois.

5.

At all times relevant to this cause of action, Defendant BOARD principally

engaged in the business of educating children in the City of Chicago, in the Northern District of Illinois, through the provision of educational services and facilities. The BOARD is a state actor, acting under the color of state law. III. DISCRIMINATION/ RETALIATION 42 U.S.C. § 1983 - FIRST AMENDMENT 6.

Plaintiff incorporates ¶¶ 1-5 herein.

7.

On August 2, 2007, Plaintiff was hired by Defendant BOARD as a Spanish

teacher at Bronzeville Scholastic Institute. 8.

From August 2, 2007 through his termination by the BOARD on December 28,

2009, AGUILERA met the BOARD’s job expectations. 9.

The BOARD claimed that AGUILERA was terminated for cause based upon

alleged violation of Board Rule 4-7b.2(b) for unspecified misconduct/ unsatisfactory performance. At no time did AGUILERA violate Board Rule 4-7b.2(b), engage in misconduct, or perform his job unsatisfactorily. 10.

AGUILERA was ultimately terminated by the BOARD after the BOARD

engaged in a series of unusual and untoward events. On January 20, 2009, an unannounced and unscheduled parent/teacher/administrative conference was convened by AGUILERA’s principal, Latunja O. Williams, an agent and employee of the BOARD.

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11.

The conference was attended by Principal Williams, AGUILERA, the Assistant

Principal, Leonard Harris, also an agent and employee of the BOARD, and the parent of a student in one of AGUILERA’s classes. During the conference, the parent of the student raised non-specific, unsubstantiated “concerns” over the relationship between AGUILERA and the daughter. These alleged “concerns” arose out of the parent’s dislike for a published book written by AGUILERA called Gabriel’s Fire (The University of Chicago Press, 2000) . At the onset of the conference, Principal Williams had related that the student’s mother took issue with Gabriel’s Fire, a memoir about Plaintiff growing up as a Mexican immigrant youth, and particularly, with a section of the book describing a relationship Plaintiff had twenty years earlier. 12.

At some unknown date and of her own initiative, the school librarian had obtained

a copy of Gabriel’s Fire and added it to the library’s collection for access by students. On January 20, 2009, Plaintiff was informed by the librarian that the librarian had been directed by Principal Williams that students were to be denied access to Gabriel’s Fire. 13.

On January 23, 2009, AGUILERA was removed from his classroom and

transferred to the Area 25 Instruction Office, pending further notice. Plaintiff was told by CPS Senior Assistant General Counsel, James Ciesel, that Plaintiff was transferred because he was trying to have an “adult relationship” with a student, which was completely untrue. 14.

Plaintiff was later questioned by a part-time investigator for CPS who inquired

about Gabriel’s Fire and whether Plaintiff had given the book to the student in question. 15.

In regard to the alleged “complaint,” Plaintiff did not receive anything from the

BOARD or its agents and employees until October 2, 2009, during an “investigatory

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conference,” when Plaintiff received a one page “incident report” alleging unspecified “inappropriate comments” made by AGUILERA to the student. The report indicated a “no” marking for misconduct. 16.

Plaintiff was terminated, effective December 28, 2009, for unspecified

misconduct/unsatisfactory performance. 17.

Based upon Plaintiff’s speech, the published book Gabriel’s Fire, and the

parent’s and BOARD’s, through its various agents and employees, prejudices and biases regarding that speech, Plaintiff was accused of “misconduct” and ultimately terminated without cause. But for the parent’s and BOARD’s, exhibited through its various agents and employees, prejudices and biases regarding Plaintiff’s speech, Plaintiff’s employment would not have been terminated by the BOARD. 18.

Plaintiff was treated differently, in terms of the process due him and the standards

of conduct to which he was held, than similarly situation colleagues. 19.

Defendant BOARD discriminated and retaliated against Plaintiff, on the basis

of his speech, by terminating his employment, without cause, and holding Plaintiff to a standard not required of any similarly situated employee. 20.

As a result of the discriminatory acts of Defendant, Plaintiff suffered

embarrassment, humiliation, emotional distress, and significant financial loss. 21.

Defendant BOARD is respondeat superior liable for the acts and failures of its

agents and employees. WHEREFORE, Plaintiff respectfully requests, as against the BOARD: A.

A permanent injunction ordering the BOARD to reinstate Plaintiff as a full-time basis teacher to the position of Spanish teacher or such other position that is 4


available and appropriate, with all attendant wages and benefits, retroactive to December 28, 2009; B.

Compensatory damages in an amount in excess of $300,000;

C.

Punitive damages as allowed by law;

D.

All wages and benefits Plaintiff would have received but for the unlawful discrimination and retaliation, including pre-judgment interest;

E.

An award of attorneys’ fees and costs and expenses of this litigation; and

F.

Such other relief as law and justice allow. IV. PROCEDURAL DUE PROCESS

22.

Plaintiff incorporates ¶¶ 1-21 herein as if fully incorporated in this Count.

23.

Plaintiff was a probationary appointed teacher at the time of his termination. As

a probationary appointed teacher, Plaintiff’s principal could recommend that Plaintiff be dismissed before the end of the school year if he “engaged in misconduct” or if the principal was “not satisfied” with his performance. 24.

Plaintiff thus had a property interest in his continued employment with the

BOARD, as well as the benefits, such as salary associated with that employment, which could not be lawfully taken away without due process of law. On October 2, 2009, the school year following the alleged incident and after an “investigatory conference” held in the Office of Labor and Employee Relations, Plaintiff was terminated from his employment with the BOARD. 25.

At the “investigatory conference,” no evidence was taken, the complaining

witness was not present and subject to questioning or cross-examination, there was no impartial hearing officer, and Plaintiff was never provided with any specific charges against him. Plaintiff was never told what was his alleged “misconduct,” was not permitted to counter any charges of 5


alleged misconduct, and was never informed as to why his principal was not satisfied with his performance. 26.

The BOARD’S deprivation of Plaintiff’s rights without due process has caused

Plaintiff great mental anguish, humiliation, degradation, physical and emotional pain and suffering, inconvenience, lost wages and benefits, future pecuniary losses, and other consequential damages. But for the BOARD’s violations of Plaintiff’s rights, Plaintiff would not have been terminated. 27.

The actions of the BOARD were intentional, willful, and malicious and/or in

reckless disregard for Plaintiff’s rights as secured by 42 U.S.C. § 1983, as amended by the Civil Rights Act of 1991, in violation of the United States Constitution as applicable to the states by the Fourteenth Amendment. WHEREFORE, Plaintiff respectfully requests, as against the BOARD: A.

A permanent injunction ordering the BOARD to reinstate Plaintiff as a full-time basis teacher to the position of Spanish teacher or such other position that is available and appropriate, with all attendant wages and benefits, retroactive to December 28, 2009;

B.

Compensatory damages in an amount in excess of $300,000;

C.

Punitive damages as allowed by law;

D.

All wages and benefits Plaintiff would have received but for the unlawful violation of Plaintiff’s procedural due process rights, including pre-judgment interest;

E.

An award of attorneys’ fees and costs and expenses of this litigation; and

F.

Such other relief as law and justice allow.

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V. SUBSTANTIVE DUE PROCESS 28.

Plaintiff realleges herein the allegations plead in paragraphs 1-.21.

29.

Defendant BOARD’s termination of Plaintiff was arbitrary and capricious.

30.

Moreover, the BOARD’S deprivation of Plaintiff’s rights without due process has

caused Plaintiff great mental anguish, humiliation, degradation, physical and emotional pain and suffering, inconvenience, lost wages and benefits, future pecuniary losses, and other consequential damages. 31.

But for the BOARD’s violations of Plaintiff’s rights, Plaintiff would not have

been terminated. 32.

The actions of the BOARD were intentional, willful, and malicious and/or in

reckless disregard for Plaintiff’s rights as secured by 42 U.S.C. § 1983, as amended by the Civil Rights Act of 1991, in violation of the United States Constitution as applicable to the states by the Fourteenth Amendment. WHEREFORE, Plaintiff respectfully requests, as against the BOARD: A.

A permanent injunction ordering the BOARD to reinstate Plaintiff as a full-time basis teacher to the position of Spanish teacher or such other position that is available and appropriate, with all attendant wages and benefits, retroactive to December 28, 2009;

B.

Compensatory damages in an amount in excess of $300,000;

C.

Punitive damages as allowed by law;

D.

All wages and benefits Plaintiff would have received but for the unlawful violation of Plaintiff’s substantive due process rights, including pre-judgment interest;

E.

An award of attorneys’ fees and costs and expenses of this litigation; and

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F.

Such other relief as law and justice allow. Respectfully submitted, LUIS AGUILERA

/s/ Deidre Baumann ___________________________ By: One of His Attorneys Baumann & Shuldiner 20 South Clark Street, Suite 500 Chicago, IL 60603 (312) 558-3119

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