Ferkel et al v. Board of Education of the City of Chicago
Filing
180
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's motion to dismiss 91 is granted in part and denied in part: the breach-of-contract claim is dismissed, and a due-process claim (the one specifically described in the Opinion) survives. Mailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Barbara Ferkel, Adrienne Green-Katien,
Charles Saporito, Craig Johnson, Mishela
Torres-Riley, and Francisco Otero,
individually and on behalf of all similarly
situated persons,
Plaintiffs,
v.
Board of Education of the City of Chicago,
Defendant.
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No. 11 C 09322
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiffs Barbara Ferkel, Adrienne Green-Katien, Charles Saporito, Craig
Johnson, Mishela Torres-Riley, and Francisco Otero filed this lawsuit on behalf of
themselves and a proposed class of similarly situated Chicago Public School
teachers against the Chicago Board of Education, alleging age discrimination in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et
seq., violation of their constitutional due-process rights under 42 U.S.C. § 1983, and
common-law breach of contract.1 R. 77, Third Am. Compl. The Board now moves to
dismiss the due-process and breach-of-contract claims under Federal Rule of Civil
Procedure 12(b)(6). R. 91, Mot. Dismiss. For the reasons explained below, the
Board’s motion is denied in part and granted in part.
1The
Court has subject matter jurisdiction over this case based on 28 U.S.C. §§ 1331,
1343, and 1367.
I. Background
In evaluating a motion to dismiss, the Court must accept as true the
complaint’s factual allegations and draw reasonable inferences in Plaintiffs’ favor.
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2079 (2011). Plaintiffs were tenured Chicago
Public School (CPS) teachers. See Third Am. Compl. ¶¶ 2, 83. All of them formerly
taught at Ames Middle School. Id. ¶¶ 10, 18, 32, 38, 42, 45, 48. In October 2008, the
Board adopted a Middle Grades Specialization Policy (Specialization Policy). Id.
¶ 50; R. 77-2, Pls.’ Exh. B, Specialization Policy. The Specialization Policy required
that CPS students in the sixth through eighth grades receive instruction in
language arts, math, science, and social studies from teachers who either (1) possess
a “middle grades content endorsement” in those subjects, or (2) through the 20102011 school year only, “ha[ve] been authorized by the Illinois State Board of
Education to teach those [subjects] pending completion of required course work and
[are] making annual progress toward completing endorsement requirements.”
Specialization Policy § I.A. The day after the Board adopted the Specialization
Policy, then-CPS Chief Executive Officer Arne Duncan sent a letter to CPS teachers
stating that the Board had adopted the Specialization Policy and reiterating that all
CPS middle school teachers would be required to have proper middle-grade
endorsements no later than the beginning of the 2011-2012 school year. Third Am.
Compl. ¶ 51; R. 77-3, Pls.’ Exh. C, Duncan Letter. By the summer of 2010, Plaintiffs
either already had middle-grade endorsements or were in the process of completing
them. Third Am. Compl. ¶¶ 20, 33, 39-40, 43, 46, 49.
2
Then, on June 15, 2010, the Board passed a resolution authorizing the
“honorable termination” of tenured CPS teachers. Id. ¶ 83. Soon after, the media
began reporting that Ron Huberman, who was at that time CPS’s Chief Executive
Officer, and the Board would lay off “unsatisfactory” teachers first, instead of basing
layoffs solely on seniority. See id. ¶ 53; see also R. 77-4, Pls.’ Exh. D, Huberman
Article at 1. On August 10, 2010, Plaintiffs were informed that they would be
honorably terminated from CPS effective August 31, 2010. Third Am. Compl. ¶ 55.
Plaintiffs allege that Huberman’s statements that honorably terminated teachers
were performing unsatisfactorily are false. Id. ¶ 54. Indeed, several of the Plaintiffs
had received positive professional evaluations, ranging from “Excellent” to
“Superior.” See id. ¶¶ 17, 22, 31, 45; see also id. ¶ 35 (alleging that Green-Katien
received a “Satisfactory” rating during the 2009-2010 school year). But when
Thomas Hoffman, Ames Middle School’s principal, called to tell Plaintiffs about
their termination, he informed two of them that they were being terminated
because they did not have certain middle-grade endorsements. Id. ¶¶ 21, 56-57. A
few days later, Plaintiffs received letters from CPS’s Office of Human Capital
advising them that their positions were no longer available because of
“Redefinition.” Id. ¶ 58; R. 77-5, Pls.’ Exh. E, Termination Letters.
Plaintiffs then sued the Board. They have alleged that the Board’s failure to
provide proper pre-layoff procedures—such as an individualized hearing on each
teacher’s qualifications for existing vacancies—constituted a violation of their
constitutional right to due process, because as tenured CPS teachers, they had a
3
property interest in continued employment. See Third Am. Compl. ¶¶ 84, 87-90, 92,
105-113. Plaintiffs have also alleged that the Board breached the contract it made
with Plaintiffs, the contract being formed, allegedly, by the adoption of the Middle
Grades Specialization Policy and the issuance of the Duncan Letter. Id. ¶ 123.
Plaintiffs believe that the Policy and Letter represent a promise from the Board
that it would maintain the status quo on middle-grade-specialization requirements
through July 2011 and provide Plaintiffs until that date to complete all required
endorsements. Id. ¶ 120. The Board now moves to dismiss both the due-process and
the breach-of-contract claims.
II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need
only include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give
the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(internal quotation marks and citation omitted). The Seventh Circuit has explained
that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus
litigation on the merits of a claim’ rather than on technicalities that might keep
plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of
4
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must
contain 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). These allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to
the assumption of truth are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
III. Analysis
A. Due-Process Claim
Plaintiffs, all of whom were tenured teachers, allege that the Board deprived
them of their protected property interest in continued employment in violation of
the Due Process Clause by summarily dismissing them without individualized
determinations of their qualifications, certifications, experience, and performance
ratings. Third Am. Compl. ¶¶ 65, 69, 88, 105-107. Plaintiffs also allege that they
were entitled to be considered for open, alternative, or even temporary positions in
the CPS system before being laid off. Id. ¶¶ 74-76, 89-92, 109. The Board, however,
argues that Plaintiffs’ due-process claim should be dismissed because Plaintiffs
have failed to identify a constitutionally protected property interest and thus have
failed to state a claim upon which relief can be granted. R. 91, Def.’s Br. at 3, 5-8.
To prevail on a claim for the deprivation of property without due process, a
plaintiff must establish that she holds a protected property interest. Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). Property interests are not created
5
by the Constitution, but instead “are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as
state law.” Id. (internal quotation marks and citation omitted). So the federal
Constitution will protect property from government deprivations without due
process, but the federal Constitution does not create the property interest.
Property
interests
may
arise
from
statutes,
regulations,
municipal
ordinances, or from an express or implied contract, such as “rules or understandings
that secure certain benefits and that support claims of entitlement to those
benefits.” Covell v. Menkis, 595 F.3d 673, 675-76 (7th Cir. 2010) (internal quotation
marks and citation omitted). An individual has a property interest in a benefit if she
has more than an “abstract need” for, or “unilateral expectation” of, that benefit.
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). In other words, the
individual must have a “legitimate claim of entitlement to it.” Id. In the
employment context, a property interest exists “when an employer’s discretion is
clearly limited so that the employee cannot be denied employment unless specific
conditions are met.” Buttitta v. City of Chicago, 9 F.3d 1198, 1202 (7th Cir. 1993)
(internal quotation marks and citation omitted). Once a court determines that an
individual holds a property interest protected by the Due Process Clause, the
question becomes what process is due. Loudermill, 470 U.S. at 541.
In their Third Amended Complaint, Plaintiffs identify four potential sources
that they believe create constitutionally protected property interests. First,
Plaintiffs point to section 34-84 of the Illinois School Code, which they believe
6
creates a property interest in “tenured and continued employment.” Third Am.
Compl. ¶¶ 87-88, 105, 110. Second, Plaintiffs also believe that section 34-18(31) of
the School Code entitles them to “individualized consideration . . . of the
qualifications, certifications, experience, performance ratings or evaluation[s], or
any other factor relating to an employee’s job performance.” Id. ¶¶ 65, 106-107, 110.
Next, Plaintiffs allege that they had a property interest in seniority-based layoff
procedures and an interest in reinstatement or participation in a reassignment pool
under Board Report 07-1219-PO1, Section 504.2 (Reassignment Policy). See id.
¶¶ 69-70, 78, 108, 110. Finally, Plaintiffs also allege that the Board’s Middle Grades
Specialization Policy and the Duncan Letter to teachers created a due-process right
to obtain middle-grade endorsements and to retain their positions until July 2011.
Id. ¶¶ 111-113. The Court will consider each of these asserted sources in turn, but
in reverse order.
As a preliminary matter, Defendants argue that Plaintiffs’ due-process
allegations related to these last two potential property interests—those created by
the Specialization Policy and the Reassignment Policy—are untimely. See Def.’s Br.
at 4 n.3. But in response, Plaintiffs correctly note that both of these claims are
timely under the relation-back doctrine. R. 92, Pls.’ Resp. Br. at 6-7. Under Federal
Rule of Civil Procedure 15(c), “[a]n amendment to a pleading relates back to the
date of the original pleading when . . . the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out—or attempted to be
set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B); see also Henderson v.
7
Bolanda, 253 F.3d 928, 931 (7th Cir. 2001) (“Generally, an amended complaint in
which the plaintiff merely adds legal conclusions or changes the theory of recovery
will relate back to the filing of the original complaint if the factual situation upon
which the action depends remains the same and has been brought to defendant’s
attention by the original pleading.” (internal quotation marks and citation
omitted)). The relation-back doctrine applies here because Plaintiffs’ new
allegations in the Third Amended Complaint all arise out of the same core factual
allegations as in the original complaint—Plaintiffs’ dismissals. The Board argues
that relation back does not apply because Plaintiffs’ new allegations about the
Specialization and Reassignment Policies are new facts, not new substantive claims.
See R. 97, Def.’s Reply Br. at 8. But that reading of the complaint is too technical.
Cf. Woods v. Ind. Univ.-Purdue Univ. at Indianapolis, 996 F.2d 880, 884 (7th Cir.
1993) (explaining that relation back “has its roots in the equitable notion that
dispositive decisions should be based on the merits rather than technicalities”). The
Board had notice as of Plaintiffs’ original complaint that Plaintiffs were challenging
their dismissals, and these two Policies simply support two additional theories of
recovery for Plaintiffs’ due-process claim. In short, these claims arise from the same
transaction or occurrence as the original complaint and are therefore timely.
1. Specialization Policy
Even though Plaintiffs’ allegations related to the Specialization and
Reassignment Policies are not time-barred, they fail to identify constitutionally
protected property interests that arise from these Policies. Turning first to the
8
Specialization Policy, Plaintiffs believe that the Policy and the Duncan Letter both
set a clear deadline—July 2011—for them to attain middle-grade endorsements. As
a result, Plaintiffs argue that they had a property interest in not facing
specialization-based dismissals until after that deadline. See Pls.’ Resp. Br. at 6; see
also Third Am. Compl. ¶¶ 111-112, 120. This argument does not square with the
language of either the Policy or the letter. Both documents clearly stated that the
Policy would go into effect starting with the 2009-2010 school year, and nothing in
the documents states that the completion of the Policy’s roll-out is some sort of
binding grace period. See Specialization Policy § II; Duncan Letter (“The Middle
Grade Specialization Policy will be phased-in beginning in July 2009 and continue
through June 2011.”). And neither the Policy nor the Letter makes any promises
about continued employment, as discussed more fully below. Instead, they explain
that obtaining endorsements in certain subject areas is a necessary, but not
sufficient, condition for continued employment. There is absolutely no guarantee
that teachers with those endorsements will have an unqualified right to continue
teaching. Therefore, the Specialization Policy and Duncan Letter do not create a
property interest protected under the Due Process Clause.
2. Reassignment Policy
The Reassignment Policy likewise falls short in creating a property interest.
This Policy spells out a series of steps that the Board must take when a teacher is
laid off because of a school or program closure, a drop in enrollment, a change in
educational focus at a school, or when a school is subject to remediation or
9
intervention. See R. 77-7, Pls.’ Exh. G, Reassignment Policy § 1 (“Scope of Policy”).
These steps include giving notice to the teacher, providing the teacher with a list of
vacancies, giving the teacher thirty days to interview for other positions, and
possible reassignment or interim appointments. See id. §§ 3-7. The Board believes
that the Reassignment Policy does not create a property interest because the “Scope
of the Policy” limits the Policy to only four narrow circumstances that—with one
exception for Green-Katien, discussed below—do not apply in this case. See Def.’s
Br. at 6-7. Plaintiffs were discharged because their positions were no longer
available because of “redefinition,” and “redefinition” was not one of the actions that
triggered the Policy. See Termination Letters; Reassignment Policy § 1.
But the Reassignment Policy falls short for a more fundamental reason: it
only lays out a set of notice, removal, and reassignment procedures; it does not
establish a property interest that those procedures are designed to protect. As
explained above, process is due only if Plaintiffs first establish that they have a
protected property interest. See Loudermill, 470 U.S. at 538. It does not work the
other way around. Plaintiffs cannot point to a set of procedures and argue that the
procedures in and of themselves create a property interest. See Heck v. City of
Freeport, 985 F.2d 305, 311 (7th Cir. 1993) (“Mere procedural rights . . . do not of
themselves give rise to property interests protected under the Fourteenth
Amendment.”). In other words, Plaintiffs can have no property interest in
procedures; they can only have an interest in property. And the Reassignment
Policy does not create a property interest; it only establishes procedures.
10
The factual circumstances underlying Plaintiff Green-Katien’s due-process
claim are slightly different from the factual basis for the other Plaintiffs’ claims.
Green-Katien was an art teacher at Ames, and her employment was terminated
because Principal Hoffman closed the art program. Third Am. Compl. ¶¶ 32, 63.
Therefore, as Plaintiffs point out, the reason for Green-Katien’s termination—
program closure—fell within the scope of the Reassignment Policy. See Pls.’ Resp.
Br. at 6.
But even though Green-Katien’s factual circumstances are different, the legal
analysis that applies to her claim is the same. It is true, as Plaintiffs note, that the
district court in Waddy v. Board of Education held that the same Reassignment
Policy created a constitutionally protected property interest for teachers who were
laid off during a school remediation or “turnaround.” No. 10 CV 6158, 2012 WL
6060932, at *1, 4-5 (N.D. Ill. Dec. 6, 2012). But Waddy did not grapple with the
important distinction between property interests and procedures. As discussed
above, the Due Process Clause only protects property interests; the Clause does not
mandate that state-law-created procedures are themselves protected. Instead, only
after a plaintiff establishes a property interest does the Due Process Clause demand
some procedural protection before (or sometimes after) depriving the plaintiff of
that property interest. At that point, the question becomes what procedures are
due, and the answer to that question is provided by the familiar three-factor
Mathews v. Eldridge standard. See 424 U.S. 319, 334-35 (1976) (establishing a
three-factor balancing test to decide what procedures are due). Therefore, here,
11
Green-Katien must still identify a source that establishes a right to continued
employment when a program closes—that is, a property interest—and not just a set
of procedures that CPS or the Board might have adopted for when a program closes.
In certain circumstances, it is possible that promised procedures could be
evidence of a protected property interest if, for example, the procedures were
mandatory and detailed and, when read in context, gave rise to the promise of the
underlying property interest. But because Plaintiffs have not made this argument,
the Court need not consider it now.2 Even assuming the procedures are evidence of
a protected property interest, Green-Katien would still not be entitled to the
procedures themselves as a matter of federal constitutional law. Instead, the Board
could follow any set of procedures that passes muster under Mathews v. Eldridge’s
balancing test; it would not necessarily have to follow its own prescribed
procedures. Cf. Head v. Chi. Sch. Reform Bd. of Trs., 225 F.3d 794, 805 & n.10 (7th
Cir. 2000) (explaining that employee must only receive “constitutionally adequate
process,” not necessarily the procedures provided under state law).
Finally, Plaintiffs also argue that Green-Katien was deprived of due process
because the closure of the art program was “bogus.” Pls.’ Resp. Br. at 1, 5. As they
allege in their complaint, Hoffman closed the art program for the 2010-2011 school
2The
Court will note, though, that in the public-employee context, termination
procedures, in and of themselves, do not create property interests. See Moss v. Martin, 473
F.3d 694, 701 (7th Cir. 2007) (holding that mandatory notice procedures in an employee
manual do not create a protected property interest in a job); Heck, 985 F.2d at 311.
Similarly, in the prison-litigation context, the Supreme Court has discouraged courts from
looking to regulatory language mandating certain prison-management procedures to
determine if prisoners have a liberty interest. See Sandin v. Conner, 515 U.S. 472, 482-84
(1995); see also Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983).
12
year, only to reopen it the following school year and hire a new art teacher who is
substantially younger than Green-Katien. Third Am. Compl. ¶ 63. Green-Katien
was not contacted or invited to apply for the reopened position. Id. ¶ 64. But again,
even if the closure was a sham, Green-Katien must still identify the source of a
property interest guaranteeing employment after the program’s closure. What’s
more, Plaintiffs’ complaint does not allege, for example, that the program closure
was a sham to hide Green-Katien’s termination for cause—a fact that might have
triggered due-process rights (as discussed more fully below with respect to section
34-84 of the Illinois School Code). Instead, Plaintiffs allege that the program closure
was a pretext for discharging Green-Katien because of her age. Id. ¶ 63. Although
those allegations might form the basis of Green-Katien’s age-discrimination claim
under the ADEA—a claim that the Board does not target in its motion to dismiss—
they are not the basis for a due-process claim. Absent a threshold showing of a
protectable interest in continued employment, Plaintiffs cannot proceed to an
inquiry into the validity of an alleged deprivation of that employment. In short,
Plaintiffs also fail to identify a property interest arising from the Reassignment
Policy.
3. Section 34-18(31)
Plaintiffs next argue that section 34-18(31) of the Illinois School Code
establishes a constitutionally protected property interest.3 105 ILCS 5/34-18(31).
3Section
34-18(31) states that “[t]he board . . . shall have power . . . [t]o promulgate
rules establishing procedures governing the layoff or reduction in force of employees and
the recall of such employees . . . . Such criteria shall take into account factors including, but
not be limited to, qualifications, certifications, experience, performance ratings or
13
This argument fails as well. As the Court already explained when granting the
Board’s earlier motion to dismiss, this section of the School Code is simply an
authorizing or enabling statute that gives the Board the power to promulgate layoff
and recall procedures. Price v. Bd. of Educ., Nos. 11 C 04463, 11 C 04974, 11 C
09322, 2013 WL 1914325, at *7 (N.D. Ill. May 8, 2013) (citing Chi. Teachers Union,
Local No. 1 v. Bd. of Educ., 963 N.E.2d 918, 925 (Ill. 2012)). And because the Board
has chosen not to exercise its power to issue such procedures, this section of the
School Code does not give tenured teachers a substantive right to individualized
consideration before layoff. Id. at *7-8. In other words, section 34-18(31)’s list of
criteria only applies if and when the Board acts on its rule-making authority, and
here, the Board has chosen not to act. Id. at *7. What’s more, section 34-18(31)
would only apply to procedures that the Board established to govern layoffs,
reductions in force, or recalls. And as discussed below, Plaintiffs now argue that
they were not “laid off” for economic reasons, but instead were terminated for cause.
Plaintiffs cannot have it both ways. If their terminations were for cause, then
section 34-18(31) is no longer relevant.
4. Section 34-84
That leaves section 34-84 of the Illinois School Code. 105 ILCS 5/34-84.
Plaintiffs assert that their status as tenured teachers under section 34-84 gave
them a property interest in continued employment, which in turn entitled them to
individualized hearings to review the reasons for their termination and also an
evaluations, and any other factors relating to an employee’s job performance.” 105 ILCS
5/34-18(31).
14
opportunity to demonstrate that they were qualified to fill vacancies within the CPS
system. See Third Am. Compl. ¶¶ 87-90, 92. Section 34-84 of the Illinois School Code
outlines the procedure by which a teacher achieves tenure:
Appointments and promotions of teachers shall be made for merit only, and
after satisfactory service for a probationary period . . . appointments of
teachers shall become permanent, subject to removal for cause in the manner
provided by Section 34-85.
105 ILCS 5/34-84 (emphasis added). Section 34-85, in turn, spells out the process for
removing a tenured teacher for cause, including written notice of charges and a
hearing. 105 ILCS 5/34-85. Thus, under Illinois law, tenured teachers may not be
terminated from their jobs except for good cause. Cf. Harbaugh v. Bd. of Educ., 716
F.3d 983, 986 (7th Cir. 2013).
But as Price already explained, section 34-84 deals only with terminating
employment on some performance-based ground; section 34-84 says nothing about a
tenured teacher’s immunity from economic layoff. 2013 WL 1914325, at *6. Sections
34-84 and 34-85’s provisions for tenure and removal do not exempt tenured teachers
from being laid off; that is, a tenured teacher does not have a property interest in
absolute continued employment that shields her from layoff decisions driven by
economic and other budgetary factors. Land v. Bd. of Educ., 781 N.E.2d 249, 256
(Ill. 2002). So notwithstanding the restrictions that section 34-84 and 34-85 place on
the Board’s power to discharge tenured teachers for cause, the Board retains
discretion to lay off employees—even those who have achieved tenure status—in
good faith for lack of work or to save money. See Perlin v. Bd. of Educ., 407 N.E.2d
792, 796 (Ill. App. Ct. 1980) (citations omitted); see also Chi. Teachers Union, 407
15
N.E.2d at 927 (holding that section 34-84 does not give laid-off tenured teachers “a
substantive right to be rehired after an economic layoff” (emphasis added)).
As this case law distinguishing discharges and layoffs makes clear, it is then
very important to determine whether a tenured teacher’s termination was
motivated by a performance-based reason or an economic one. The difference
determines whether process is “due” to that teacher. If the reasons driving a layoff
are economic, the Board can consider employee performance and qualifications
when deciding whom to lay off. Indeed, section 34-18(31) envisions that these
factors would be relevant if the Board formerly adopted layoff procedures. But if the
Board is targeting a tenured teacher solely for performance issues, the teacher has
a protected property interest under section 34-84 and is entitled to due process.
Since the filing of the Board’s previous motion to dismiss, Plaintiffs have
rearticulated their due-process claim under section 34-84 so that it now survives,
even though it did not survive before. See Price, 2013 WL 1914325, at *6-7 (granting
the Board’s motion to dismiss). Now, Plaintiffs do not allege that their terminations
were economic layoffs. Pls.’ Resp. Br. at 1, 4-5. Instead, they believe they were
discharged because of pretextual claims about their job performance and
qualifications. Id. at 1. Because Plaintiffs have reframed their claim, they have now
articulated a constitutionally protected property interest under section 34-84.
The Board urges the Court to ignore this recharacterization of Plaintiffs’ dueprocess claim. See Def.’s Reply Br. at 1-6. The Board argues that it is clear that
economic reasons were the basis for the terminations. It is true that Plaintiffs’
16
terminations in the summer of 2010 occurred at the same time that budget deficits
forced the Board to lay off over 1,000 teachers. See Chi. Teachers Union, 963 N.E.2d
at 921 (noting that the Board laid off 1,289 teachers in several phases during the
summer of 2010). Indeed, the Huberman Article that Plaintiffs attach to their
complaint even references the Board’s “estimated half-billion-dollar budget deficit.”
Huberman Article at 1. The Board also points out that although Plaintiffs
repeatedly use the term “laid off” in their Third Amended Complaint, they never
specifically allege that they were discharged “for cause.” See, e.g., Third Am. Compl.
¶¶ 84, 94. What’s more, Plaintiffs rely heavily on section 34-18(31) of the School
Code—a provision that applies only when a layoff is not for cause. See 105 ILCS
5/34-18(31) (authorizing the Board to establish procedures only for “the layoff or
reduction in force of employees and the recall of such employees”). Together, these
allegations do suggest that it would be reasonable to infer that economic factors
contributed to Plaintiffs’ terminations.
But at this stage of the litigation, the Court must draw all reasonable
inferences in Plaintiffs’ favor. al-Kidd, 131 S. Ct. at 2079; Craig v. Rich Twp. High
Sch. Dist. 227, 736 F.3d 1110, 1115 (7th Cir. 2013) (recognizing that courts
reviewing a Rule 12(b)(6) motion must “constru[e] factual allegations and any
reasonable inferences in the light most favorable to the plaintiff”). To be sure,
Plaintiffs’ Third Amended Complaint could have been clearer—it is, after all, their
fourth iteration of the complaint. But a generous reading of Plaintiffs’ Third
17
Amended Complaint,4 in the light most favorable to Plaintiffs, does support
Plaintiffs’ argument that they did allege that the Board was really discharging
them for performance-based reasons. (Of course, Plaintiffs deny that they were
performing inadequately, but the point is that Plaintiffs allege that the Board was
really instituting what the Board believed were for-cause terminations.)
Under this light-most-favorable standard, the complaint states a due-process
claim for performance-based terminations. First, Huberman allegedly let slip to the
media that the Board would be basing its layoff decisions on teacher performance.
Third Am. Compl. ¶ 53; Huberman Article at 1. Next, Plaintiffs allege that
Huberman’s statements that the terminated teachers were unsatisfactory are false.
Third Am. Compl. ¶ 54. Viewed in the light most favorable to Plaintiffs then, the
alleged budgetary crisis cited in the article was just a façade for the Board’s
pretextual performance-based layoffs. In other words, the Board said the layoffs
were driven by an economic crisis so that they could avoid having to convene dueprocess hearings to review for-cause terminations. Similarly, Principal Hoffman told
Ferkel and Saporito that they were being terminated because they did not have
certain middle-grade endorsements. Id. ¶¶ 56-67; see also id. ¶ 123. Of course, one
way to interpret Hoffman’s comments could be that he was explaining to Ferkel and
Saporito that they were being eliminated in an economic layoff because of their
4Contrary
to the Board’s arguments, see Def.’s Reply Br. at 2-4, what Plaintiffs
alleged in their earlier complaints is irrelevant for deciding this present motion to dismiss.
See Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 782-83 (7th Cir. 2013) (“[W]hen a
plaintiff files an amended complaint, the amended complaint supersedes the original
complaint. . . . [F]acts or admissions from an earlier complaint that are not included in a
later complaint cannot be considered on a motion to dismiss.”).
18
performance and qualifications, not that they were eliminated only because they did
not have the endorsements. But this is the pleading stage, and the Court must
therefore pick the interpretation that is most favorable to Plaintiffs. Finally, and
perhaps most importantly, Plaintiffs do not allege anywhere in their Third
Amendment Complaint that their terminations were economic layoffs.
In short, Plaintiffs have stated (finally) a due-process claim that survives the
Board’s motion to dismiss. The narrow claim that remains is based solely on
Plaintiffs’ allegations that they were terminated for cause, not for economic reasons,
and that they have a protected property interest only under section 34-84 of the
Illinois School Code. Going forward, discovery will be limited to this narrow theory
of recovery. Moreover, it will be Plaintiffs that bear the burden of actually proving
that the Board really terminated them for exclusively performance-based reasons
and not because of the budgetary crisis. In other words, without Rule 12(b)(6)’s
light-most-favorable lens, Plaintiffs must either prove that the Board’s reported
budget crisis was truly a sham or that their own terminations were in no way
driven by the Board’s budgetary restrictions. Given the publically available
statements about CPS’s financial woes, as well as Plaintiffs’ own previous
pleadings, the Court seriously questions whether Plaintiffs will be able to prove
this. The parties must carefully consider how to conduct reasonable and costefficient discovery on this claim, under the supervision of the able magistrate judge
(to whom discovery has been referred). And Plaintiffs should be mindful of Rule 54’s
19
cost-shifting provisions and their Rule 11 obligations. But for now, the Court denies
the Board’s motion to dismiss Plaintiffs’ due-process claim.
B. Breach-of-Contract Claim
In their breach-of-contract claim, Plaintiffs argue that the Specialization
Policy and the Duncan Letter constitute contracts that the Board has breached. See
id. ¶ 123. In particular, Plaintiffs believe that the Policy and Letter promised them
that there would be no specialization-based discharges until July 2011. See id.
¶ 120. Plaintiffs allege that the Board breached this promise when Principal
Hoffman told Ferkel and Saporito that they were being terminated because they did
not have certain middle-grade endorsements. See id. ¶¶ 56-57; see also id. ¶ 123.
The Board presents two alternative arguments for why Plaintiffs’ breach-ofcontract claim fails. First, the Board argues that the Illinois Educational Labor
Relations Act (IELRA), 115 ILCS 5/1 et seq., preempts Plaintiffs’ common-law
contract claim. But Plaintiffs’ breach-of-contract claim is not “preempted.”
“Preemption” is the constitutional-law principle, derived from the Supremacy
Clause, that a federal law can supersede state or local laws that touch on fields
Congress has intended to exclusively occupy (“field preemption”) or that conflict
with federal law (“conflict preemption”). See generally Arizona v. United States, 132
S. Ct. 2492, 2500-01 (2012).
Although the Court understands that the Board is trying to analogize to the
preemptive effect of federal labor law, in this state-law context, it is more
appropriate to ask whether the Illinois Educational Labor Relations Board (IELRB)
20
has exclusive jurisdiction to review Plaintiffs’ contract claim. The purpose of the
IELRA is “to regulate labor relations between educational employers and
educational employees” and to resolve “disputes arising under collective bargaining
agreements.” 115 ILCS 5/1. Given the Act’s targeted purpose and the need to
prevent conflict between state (and federal) courts and the IELRB, Illinois courts
have held that the IELRB has exclusive jurisdiction over all claims involving
collective bargaining agreements (CBA), including claims for breach of such
agreements. See Bd. of Educ. v. Warren Twp. High Sch. Fed’n of Teachers, Local
504, 538 N.E.2d 524, 529 (Ill. 1989); Cessna v. City of Danville, 693 N.E.2d 1264,
1268-69 (Ill. App. Ct. 1998) (citing Bd. of Educ. v. Compton, 526 N.E.2d 149 (Ill.
1988)). Thus, the question is not whether the IELRA displaces all common-law
breach-of-contract claims, but instead whether Plaintiffs’ contract claim involves
the collective bargaining agreement between the Chicago Teachers Union and the
Board. If the contract claim does involve interpreting the CBA, then the claim
would fall under the IELRB’s exclusive jurisdiction and it would not be proper for
this Court to resolve Plaintiffs’ contract claim on its merits.
The Board argues that this Court would have to interpret the managementrights clause of the CBA between the Chicago Teachers Union and the Board to
resolve Plaintiffs’ breach-of-contract claim. See Def.’s Br. at 10-11 (citing R. 91-7,
Def.’s Exh. C5, CBA § 48-2, at 118). The management-rights clause exempts the
Board from having to bargain over “matters of inherent managerial policy,”
including “such areas of discretion of policy as . . . standards of services . . . and
21
direction of employees.” CBA § 48-2, at 118. But Plaintiffs’ breach-of-contract claim
is not based in any way on the CBA generally or the management-rights clause
specifically.5 Plaintiffs do not dispute that the Board was within its authority under
the management-rights clause to issue the Specialization Policy. Pls.’ Resp. Br. at
12. Instead, Plaintiffs claim that the Policy itself created private contractual rights
that existed independent of the rights Plaintiffs have under the CBA. See id. at 11.
Therefore, Plaintiffs’ contract claim is outside the CBA, and this Court can consider
it. See Semmens v. Bd. of Educ., 546 N.E.2d 746, 749 (Ill. App. Ct. 1989) (holding
that the IELRB did not have exclusive jurisdiction over a claim that made no
mention of a CBA and instead alleged only that the employer failed to comply with
the Illinois School Code).
Alternatively, even if this claim is not preempted, the Board contends that
Plaintiffs have failed to state a claim that can survive a motion to dismiss. On this
second point, the Court agrees with the Board. To state a breach-of-contract claim
in Illinois, Plaintiffs must prove that there was a valid contract, performance by the
plaintiff, breach by the defendant, and damages. See Lindy Lu LLC v. Ill. Cent.
R.R., 984 N.E.2d 1171, 1175 (Ill. App. Ct. 2013). Furthermore, under Illinois law,
employer policy statements may create contractual rights only if the language of the
policy contained a clear and definite promise. See Duldulao v. Saint Mary of
5The
Board points out that Plaintiffs have a pending grievance against the Board.
See Def.’s Reply Br. at 5-6. But the grievance raises issues that are independent of the
breach-of-contract claim in front of this Court. As the Board recognizes, Plaintiffs’ grievance
alleges that the Board abused the Reassignment Policy (that is, Board Report 07-1219-PO1,
Section 504.2), not the Specialization Policy, which is the subject of Plaintiffs’ common-law
contract claim in this Court. See id. at 5; see also R. 97-1, Def.’s Exh. A, Union Grievance at
2.
22
Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill. 1987); see also Academy Chi.
Publishers v. Cheever, 578 N.E.2d 981, 983 (Ill. 1991).
Plaintiffs fail to sufficiently allege the first element of a contract claim, that
the Policy and Letter created a valid contract. The Board did not make any
promises to Plaintiffs in either the Policy or the Letter. Plaintiffs, however, believe
that section I.A.2 made a clear promise to teachers that they had until the end of
the 2010-2011 school year to obtain their endorsements. Pls.’ Resp. Br. at 8.
Plaintiffs likewise believe that the Duncan Letter also reiterated the supposed July
2011 deadline. Id. But that Letter too made no clear and definite promises. Instead,
it clearly stated that the Policy would “be phased-in beginning in July 2009.”
Duncan Letter.6
Altogether, the Policy and Letter were just setting out a requirement that
middle school teachers for certain subjects must obtain subject-area endorsements.
Section I.A.2 in particular clarified that, through the 2010-2011 school year only,
“Middle Grade Content Area Specialists” would include teachers who were
“authorized” by the Board to continue teaching pending the completion of required
coursework and were “making annual progress toward completing endorsement
6Implying
a promissory-estoppel-type claim, Plaintiffs also argue in their brief that
in reliance on this alleged July 2011 deadline, they invested time and money pursuing
subject-area endorsements. See Pls.’ Resp. Br. at 2, 9. Plaintiffs may have alleged the
subsidiary facts for such a claim in their complaint, see Third Am. Compl. ¶ 122, but they
have not given the Board sufficient notice of their intent to raise such a claim because
Plaintiffs do not present any explicit promissory-estoppel arguments in either their
complaint or their brief. But even if Plaintiffs had presented a promissory-estoppel theory
of recovery, those arguments would have also failed because an unambiguous promise is
also an element of a promissory-estoppel claim. See Newton Tractor Sales, Inc. v. Kubota
Tractor Corp., 906 N.E.2d 520, 523-24 (Ill. 2009).
23
requirements.” Specialization Policy § I.A.2. But nowhere in their complaint do
Plaintiffs allege that they had obtained this required authorization. More
importantly, nowhere in the Policy does it state that teachers could continue their
employment if they received middle-grade endorsements or if they were making
progress toward obtaining these endorsements.
Finally, even if the Policy and the Letter had created a valid contract, there
are subsidiary problems with the factual allegations related to each Plaintiff. For
example, although Ferkel had a social-studies endorsement and was pursuing an
endorsement in language arts, she was teaching science at the time she was
discharged. She does not allege that she was planning to pursue a science
endorsement. See Third Am. Compl. ¶¶ 20, 22. In fact, she instead told Hoffman
and the Board that she was planning on retiring in 2011. See id. ¶ 23. Next, GreenKatien had an endorsement in Art, id. ¶ 33, but the Specialization Policy only
applied to language arts, math, science, and social studies, see Specialization Policy,
Purpose. It is also unclear whether Saporito, Riley, and Johnson have stated a valid
contract claim because Plaintiffs have not alleged what subjects these three
teachers were teaching.7 See Third Am. Compl. ¶¶ 37-46. Finally, Otero, who taught
math, had a math endorsement, thus underscoring that even having an
endorsement did not shield teachers from discharge. Id. ¶¶ 48-49. Therefore, even
setting aside contract-formation problems, Plaintiffs have not alleged facts
indicating that the Board breached any purported contract.
7It
would be reasonable to infer, however, that Saporito taught language arts
because Hoffman told Saporito that his employment was being terminated because he did
not have a language-arts endorsement. Third Am. Compl. ¶ 57.
24
Ultimately, Plaintiffs have failed to state a valid common-law breach-ofcontract claim, and the Court therefore grants the Board’s motion to dismiss this
claim.
IV. Conclusion
For the reasons discussed above, the Board’s motion to dismiss [R. 91] is
denied in part for Plaintiffs’ due-process claim, but granted for Plaintiffs’ breach-ofcontract claim. Therefore, Plaintiffs’ age-discrimination claim and the specific dueprocess claim shall move forward.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: May 28, 2014
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