Jacobeit v. Rich Township High School District 227 et al

Filing 235

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 3/28/2012.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRED R. JACOBEIT,
Plaintiff,
vs.
RICH TOWNSHIP HIGH SCHOOL DISTRICT 227 and
MACEO M. RAINEY,
Defendants.

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09 C 1924
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Plaintiff Fred Jacobeit brought this suit against the Board of Education of Rich Township
High School District 227 and Maceo M. Rainey, the prinicpal of Rich Central High School,
under 42 U.S.C. §§ 1981 and 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.; and the
Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. The § 1983
claims allege violations of Jacobeit’s equal protection and procedural due process rights. The
court dismissed the Title VII claim against Rainey and the § 1983 claim against Rainey in his
official capacity. 673 F. Supp. 2d 653 (N.D. Ill. 2009) (Holderman, C.J.). Jacobeit has given up
his ADA and ADEA claims. Doc. 205 at 1 n.1. Now before the court are the District’s motion
for summary judgment on Jacobeit’s remaining claims (Doc. 172) and Jacobeit’s motion for
summary judgment on his due process claim (Doc. 177).* Both motions are denied.

*

For reasons immaterial for present purposes, District 227’s counsel, who had been
jointly representing the District and Rainey, withdrew as Rainey’s counsel before the summary
judgment motions were filed. Doc. 116; see Rainey v. Bd. of Educ. of Rich Twp. High Sch. Dist.
227, 2011 WL 741039 (N.D. Ill. Feb. 24, 2011) (dismissing for want of subject matter
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Background
District 227 hired Jacobeit in 1978 to teach physical education and driver’s education.
He worked as a coach in District 227 for thirty years in seventeen different coaching positions
and received several awards for his performance. In 2007, Jacobeit applied to become the
assistant coach of the girls’ basketball team at Rich Central High School. He spoke to Will
Dwyer, the school’s athletic director, who was “excited to learn” of his interest. After an
interview on October 19, 2007, Dwyer told Jacobeit that he had been selected. Jacobeit accepted
the position and began coaching. He was listed as the assistant coach in a handbook distributed
to student players and was given an electronic key fob allowing him access to the appropriate
facilities. Principal Rainey executed a “Recommendation for Hire Form” prepared by Dwyer
and sent it to Selma McDonald, District 227’s human resources director. McDonald executed
the form on November 13, 2007, and sent it to the District’s Superintendent, Howard Hunigan.
In the meantime, Rainey decided that Jacobeit should not be hired and told Dwyer to
instruct Jacobeit to stop coaching. Rainey had been confronted by parents who claimed that
Jacobeit had engaged in racially insensitive behavior when coaching another high school’s
basketball team during the 2005-2006 season. The allegation was that Jacobeit, who is white,
gave charged gag gifts, including “black tar baby” dolls, to members of the predominantly
African-American team. That incident had been publicized, with Jacobeit maintaining that the
alleged “tar baby” doll was in fact a hooded Star Wars figure given to a student who regularly

jurisdiction the separate lawsuit brought by Rainey against District 227 for its alleged failure to
provide him with conflict-free counsel). As a result of this and Rainey’s failure to retain
substitute counsel, Rainey did not file his own summary judgment motion and did not file a
substantive response to Jacobeit’s motion. Doc. 211. Rainey’s forfeiture notwithstanding, the
court gives Rainey the benefit of District 227’s arguments to the extent they apply with equal
force to him.
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wore a hood at school. The authorities apparently believed Jacobeit, who was not disciplined.
Rainey nonetheless pressed forward; he asked Superintendent Hunigan to rescind the
Recommendation for Hire Form, and Hunigan complied.
On November 13, 2007, Dwyer told Jacobeit that the offer had been rescinded. District
227 approved a payment to Jacobeit to compensate him for the time he spent coaching. The
teacher’s union filed a grievance, and the arbitrator found that District 227 had entered into a
contract with Rainey to fill the coaching position and had breached that contract by removing
him. Doc. 191-24. Jacobeit formally retired from the District in 2008. Although he did not
apply for any other coaching positions in District 227, Jacobeit admits that he later applied for
and received a position as an assistant basketball coach at a high school in another district. Doc.
206 at 18.
Discussion
I.

The District’s Summary Judgment Motion
The District’s memorandum in support of its summary judgment motion (Doc. 173) cites

to raw record materials rather than to its Local Rule 56.1(a)(3) statement (Doc. 174). It has long
and repeatedly been held that this practice violates Local Rule 56.1. See, e.g., Loop Paper
Recycling, Inc. v. JC Horizon Ltd., 2011 WL 3704954, at *5 n.8 (N.D. Ill. Aug. 17, 2011); BI3,
Inc. v. Hamor, 2011 WL 1231156, at *2 (N.D. Ill. Mar. 30, 2011); Byrd-Tolson v. Supervalu,
Inc., 500 F. Supp. 2d 962, 966 (N.D. Ill. 2007) (“facts are properly presented through the
framework of the Rule 56.1 statements, and not through citation in the briefs to raw record
material”); Daoust v. Abbott Labs., 2006 WL 2711844, at *4 (N.D. Ill. Sept. 19, 2006) (“Citing
directly to the record in the memorandum statement of facts, as [the movant] does here, rather
than citing to its 56.1(a)(3) statement, negates the purpose of the summary judgment exercise.”);
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Alvi v. Metro. Water Reclamation Dist. of Greater Chi., 2006 WL 1762032, at *2 (N.D. Ill. June
23, 2006) (“Mr. Alvi's response memorandum is written without ever referencing the Rule 56.1
factual filings, and instead improperly cites to raw discovery record material. This citation
practice is materially improper.”); Madaffari v. Metrocall Cos. Grp. Policy GL, 2005 WL
1458071, at *1 (N.D. Ill. June 15, 2005) (“when citing to the record in their legal memoranda,
parties are required to cite to the numbered paragraphs of their Local Rule 56.1 statements and
not to the underlying parts of the record”); Ciesielski v. Hooters of Am., Inc., 2004 WL 1699020,
at *1 (N.D. Ill. July 28, 2004) (“In their summary judgment briefs, both parties cited directly to
the record rather than to their Rule 56.1 statements. This blatant violation of the Local Rules is
improper.”); Denari v. Genesis Ins. Co., 2003 WL 22964371, at *1 n.3 (N.D. Ill. Dec.15, 2003)
(“The Court further notes that in his memorandum of law, Denari cites directly to the record
rather than to his Rule 56.1 statement. This is improper.”) (citation omitted); Malec v. Sanford,
191 F.R.D. 581, 586 (N.D. Ill. 2000) (“[c]itations in the fact section should be to the 56.1(a) or
(b) statement of facts only, … [not] directly to pieces of the record”).
A party moving for summary judgment cannot expect its motion to be granted if it fails
in a significant respect to comply with the rules. The District’s summary judgment motion
accordingly is denied due to its violation of Local Rule 56.1. See Cichon v. Exelon Generation
Co., 401 F.3d 803, 809 (7th Cir. 2005) (“[w]e have … repeatedly held that a district court is
entitled to expect strict compliance with [Local] Rule 56.1”) (internal quotation marks omitted,
brackets in original); Jorden v. United States, 2011 WL 4808165, at *1 (N.D. Ill. Oct. 11, 2011)
(denying the defendant’s summary judgment motion because its brief cited to raw record
materials rather than to its Local Rule 56.1(a)(3) statement); Sledge v. Bellwood Sch. Dist. 88,
2011 WL 2457920, at *2 (N.D. Ill. June 17, 2011) (denying a summary judgment motion due in
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part to movant’s violation of Local Rule 56.1); Eva’s Bridal Ltd. v. Halanick Enters., Inc., 2010
WL 2035720, at *5 (N.D. Ill. May 19, 2010) (“Failure to comply with Local Rule 56.1 is
grounds for denial of a summary judgment motion.”).
II.

Jacobeit’s Summary Judgment Motion
Jacobeit’s motion for summary judgment on his due process claim complies with Local

Rule 56.1 and thus will be addressed on the merits. Jacobeit alleges that he was deprived
without due process of a protected property interest in continued employment as the assistant
girls’ basketball coach at Rich Central. He also alleges that the District and Rainey deprived him
of a protected occupational liberty interest by appearing to credit the extremely damaging notion
that Jacobeit had engaged in racially insensitive behavior during the 2005-2006 basketball
season. Both aspects of Jacobeit’s due process claim are considered in turn.
A.

Property Interest

A plaintiff alleging deprivation of property without due proces must show: “(1) conduct
by someone acting under the color of state law; (2) that deprives the plaintiff of a protected
property interest; (3) without due process of law.” Redd v. Nolan, 663 F.3d 287, 296 (7th Cir.
2011); see also Germano v. Winnebago Cnty., Ill., 403 F.3d 926, 927 (7th Cir. 2005). To satisfy
the second element of his claim, Jacobeit must prove that he had “a legitimate expectation of
continued employment under Illinois law.” Redd, 663 F.3d at 296. At-will employees do not
have a property interest in continued employment under Illinois law. See id. at 295 (“an
employer may fire an at-will employee for any reason or no reason”); Kodish v. Oakbrook
Terrace Fire Prot. Dist., 604 F.3d 490, 495 (7th Cir. 2010) (“[the plaintiff] was an at-will
employee and the [employer] could have terminated his employment without just cause”);
Mitchell v. Glover, 996 F.2d 164, 167 (7th Cir. 1993) (“As an ‘at-will employee’ the plaintiff
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clearly had no entitlement to continued employment and thus could be dismissed at any time for
any reason.”).
Jacobeit is not entitled to summary judgment on his deprivation of property claim
because the record, with all reasonable inferences drawn in the District’s favor, would permit a
reasonable jury to find that Jacobeit worked as an at-will employee in his capacity as assistant
girls’ basketball coach at Rich Central. Jacobeit’s contrary position rests on the premise that
District 227 delegated to school officials like Dwyer (the athletic director) the authority to hire
coaching staff. In support, Jacobeit points to District 227’s longstanding practice of treating the
School Board’s ratification of hiring decisions as a formality and to the District’s custom of
treating hired officials as “tenured” and subject to dismissal only for cause. Doc. 181 at 4.
However, Illinois law clearly provides that a school board cannot delegate its authority to
hire and fire school personnel. See Ill. Educ. Ass’n Local Cmty. High Sch. Dist. 218 v. Bd. of
Educ. of Sch. Dist. 218 Cook Cnty., 340 N.E.2d 7, 9 (Ill. 1975) (the school board’s responsibility
to “appoint teachers” and to “terminate the employment of teachers” are “discretionary powers
and may not be delegated”); Midwest Cent. Educ. Ass’n, IEA-NEA v. Ill. Educ. Labor Relations
Bd., 660 N.E.2d 151, 155 (Ill. App. 1995) (same); Sitton v. Gibbs, 392 N.E.2d 244, 247 (Ill. App.
1979) (“matters pertaining to hiring and firing of school personnel are discretionary functions
and therefore cannot be delegated”); Litin v. Bd. of Educ. of City of Chicago, 391 N.E.2d 62, 65
(Ill. App. 1979) (“The inherent fallacy in the Board’s argument is that it fails to recognize that
the authority of the School Board to hire and fire a teacher is discretionary and cannot be
delegated or exercised by someone other than the Board.”). The record does not indisputably
show that the School Board ever ratified, formally or informally, Dwyer’s decision to hire
Jacobeit as assistant coach. Given this, a reasonable jury could find that Jacobeit did not have a
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legitimate expectation of continued employment under Illinois law. See Alexander v. Bd. of
Educ. of Indian Prairie Sch. Dist. No. 204, 1998 WL 699020, at *4 (N.D. Ill. Oct. 5, 1998)
(“Defendants are correct that the existence of a property right depends upon the validity of the
Contract as an enforceable agreement between [the plaintiff] and the Board. The verbal
agreement between [the assistant superintendent] and [the plaintiff] does not suffice to create a
binding contract between the parties because [the assistant superintendent] did not have the
authority to make hiring decisions. … . Only the Board itself had the power to officially hire
[the plaintiff].”). District 227 and Rainey should not take too much comfort in this conclusion,
as the School Board’s failure to formally execute an employment contract with Jacobeit does not
indisputably establish that Jacobeit did not have a legitimate expectation of continued
employment. See ibid. (“Defendants are mistaken in asserting that no binding agreement existed
simply because the Board never signed the Contract. Although unsigned, a document may still
be a valid employment contract for a specific term. [A] party named in a contract may, by his
acts and conduct, indicate his assent to its terms and become bound by its provisions even
though he has not signed it. Following this analysis, it is possible that, under some set of facts,
[the plaintiff] could prove that the Board assented to and became bound by the terms of the
Contract.”) (first alteration in original, citation omitted, and internal quotation marks omitted).
A jury will have to resolve this issue.
In a footnote, Jacobeit invokes collateral estoppel to argue that the arbitrator’s decision
that District 227 entered into a contract with him precludes the District from disputing his
legitimate expectation of continued employment. Doc. 181 at 12 n.7. The contention is wrong.
The Supreme Court has explicitly rejected the view that an arbitrator’s findings have preclusive
effect in a subsequent § 1983 lawsuit. See Chi. Teachers Union, Local No. 1 v. Hudson, 475
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U.S. 292, 308 n.21 (1986) (an “arbitrator’s decision would not receive preclusive effect in any
subsequent § 1983 action”); McDonald v. W. Branch, 466 U.S. 284, 290 (1984) (arbitration
“cannot provide an adequate substitute for a judicial proceeding in protecting the …
constitutional rights that § 1983 is designed to safeguard”); see also 14 Penn Plaza LLC v. Pyett,
556 U.S. 247, 263-64 (2009) (citing cases); Kulavic v. Chi. & Ill. Midland Ry. Co., 1 F.3d 507,
513-15 (7th Cir. 1993) (citing cases). Jacobeit’s preclusion argument is conclusively defeated by
this precedent.
B.

Occupational Liberty Interest

A plaintiff alleging deprivation of an occupational liberty interest must show “that ‘(1) he
was stigmatized by the defendant’s conduct, (2) the stigmatizing information was publicly
disclosed and (3) he suffered a tangible loss of other employment opportunities as a result of
public disclosure.’” Abcarian v. McDonald, 617 F.3d 931, 941 (7th Cir. 2010) (quoting
Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001)) (citation omitted). To satisfy the
third requirement, a plaintiff “must allege that his ‘good name, reputation, honor or integrity
[was] called into question in a manner that makes it virtually impossible for [him] to find new
employment in his chosen field.’” Ibid. (quoting Townsend, 256 F.3d at 670) (citations omitted);
see also Hannemann v. S. Door Cnty. Sch. Dist., __ F.3d __, 2012 WL 858607, at *6 (7th Cir.
Mar. 15, 2012). If the plaintiff still works in his chosen field, he cannot make that showing. See
Abcarian, 617 F.3d at 941 (“Abcarian cannot meet this burden for a simple and benign reason:
he still has his job in his chosen profession!”); Trejo v. Shoben, 319 F.3d 878, 889 (7th Cir.
2003); Townsend, 256 F.3d at 670.
To support his position on the third requirement, Jacobeit points to what he calls
“Superintendent Hunigan’s admission that Jacobeit would not be hired as a coach in the District
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again.” Doc 181 at 15. This argument fails for two reasons. As an initial matter, contrary to
Jacobeit’s submission, Superintendent Hunigan did not rule out hiring Jacobeit again. Doc. 201
at 28 (“The issue would be [the term] never. I would not concur with that.”). In any event, even
if District 227 would never again have hired Jacobeit to coach, Jacobeit admits that he sought
and found employment as a coach in another district. Given this, a reasonable jury could find
against Jacobeit on the occupational liberty component of his § 1983 due process claim.
Conclusion
For the foregoing reasons, Jacobeit’s and District 227’s summary judgment motions are
denied. Jacobeit’s ADA and ADEA claims, having been relinquished, are dismissed with
prejudice. This case will proceed to trial on Jacobeit’s § 1981, § 1983, and Title VII claims.

March 28, 2012
United States District Judge

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