Terhune v. Board of Education of Zion Elementary School Distric 6 et al

Filing 53

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 11/15/2013: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD TERHUNE,

)
)
Plaintiff,
)
)
v.
)
)
THE BOARD OF EDUCATION OF ZION)
ELEMENTARY SCHOOL DISTRICT 6, )
et al.,
)
)
Defendants.
)

No. 12 C 7865

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Richard Terhune’s (Terhune) motion for
summary judgment, and on Defendant Board of Education of Zion Elementary
School District 6’s (Board) motion for summary judgment. For the reasons stated
below, the Board’s motion for summary judgment is granted and Terhune’s motion
for summary judgment is denied.

BACKGROUND
Terhune alleges that he was hired by the Board in 2005 as an Assistant
Superintendent of Business Services for one-year renewable contracts. Terhune
contends that he reported directly to Defendant John Ahlgrim (Ahlgrim), the
1

Superintendent of Zion Elementary School District 6 (District). Terhune claims that
he acquired tenure in 2009. According to Terhune, each year his employment
contract was renewed until the contract for the 2011-12 school year. Terhune claims
that Ahlgrim, in an attempt to justify not renewing Terhune’s contract, falsely alleged
performance deficiencies by Terhune. Ahlgrim allegedly recommended to the Board
that Terhune’s contract not be renewed. Subsequently, Terhune allegedly requested
that he be reassigned to a classroom for the 2011-12 school year, but Ahlgrim
suggested that Terhune take a new administrator position instead of being reassigned
to the classroom. Terhune contends that, as a tenured teacher, he was entitled to a
reassignment in a classroom position as a physical education teacher. On March 21,
2011, the Board allegedly issued to Terhune a notice of non-renewal, informing him
that due to a reduction in force (RIF), he would not be re-employed for the 2011-12
school year. Terhune contends that he was the only employee subjected to the RIF
and that such action violated the seniority rights provided in the school code.
Terhune brought the instant action and includes in his complaint an age
discrimination claim brought against the Board pursuant to the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq. (Count I), a tortious interference
with contract claim brought against Ahlgrim (Count II), a tortious interference with
prospective economic advantage claim brought against Ahlgrim (Count III),
retaliatory discharge claims brought against Ahlgrim and the Board (Count IV), and
claims brought against Ahlgrim and the Board pursuant to 42 U.S.C. § 1983 (Section
1983), alleging a violation of Terhune’s due process rights (Count V). On February
2

20, 2013, this court granted Defendants’ motion to dismiss Counts I, II, III, and IV
and denied Defendants’ motion to dismiss Count V. The court also held that the only
remaining claim in Count V was a claim against the Board. Terhune and the Board
have filed cross-motions for summary judgment on Count V.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A
“genuine issue” in the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a
motion for summary judgment, the court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences in
favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for
summary judgment, the court should “construe the evidence and all reasonable
3

inferences in favor of the party against whom the motion under consideration is
made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27
(7th Cir. 2005).

DISCUSSION
The Board contends that Terhune has failed to point to sufficient evidence for
his due process claim. For a due process claim in the employment context a plaintiff
must establish: (1) that he was denied a “protectible property interest in continued
employment,” and (2) that his employment was “terminated without due process.”
Harbaugh v. Board of Educ. of City of Chicago, 716 F.3d 983, 986 (7th Cir.
2013)(internal quotations omitted)(quoting in part Gleason v. Bd. of Educ. of City of
Chi., 792 F.2d 76, 79 (7th Cir. 1986)); see also Omosegbon v. Wells, 335 F.3d 668,
674 (7th Cir. 2003)(stating that “[t]he standard elements of a due process claim
include whether the plaintiff suffered a deprivation of a cognizable property or
liberty interest, and whether any such deprivation occurred without due process”).

A. Protected Property Interest
Terhune contends that he had a protectible property interest in continued
employment because he was a tenured teacher. Under Illinois law, “[a] tenured
teacher may be fired only for cause . . . , conferring a legitimate expectation of
continued employment and thus a protected property interest that may not be
4

terminated without due process.” See Harbaugh, 716 F.3d at 986 (stating that “[t]he
question of tenure is governed by state law”); see also Lalvani v. Cook County,
Illinois, 269 F.3d 785, 791 (7th Cir. 2001)(stating that “[a] property interest exists
only where the government employee has a legitimate claim of entitlement to his
job”). The Board does not dispute that Terhune had achieved tenure with the
District. (DSF Par. 11). However, the Board argues that Terhune was not deprived
of a protected property interest because he chose not to accept a job with the District.
It is undisputed that after Terhune was dismissed in March 2011, the Board directed
Ahlgrim to reconfigure his staffing plan in order to try and find Terhune a physical
education teaching position within the District and to offer Terhune the position. (R
DSF Par. 26). It is also undisputed that despite such steps taken by the Board,
Terhune chose to enter into an employment contract at another school on an at-will
basis. (R DSF Par. 27). The Board also contends that on May 17, 2011, Ahlgrim in
fact offered Terhune the physical education position and Terhune declined the offer.
(DSF Par. 29). Terhune contends that he did not receive any official notice from the
Board rescinding the RIF or any formal offer in writing and so he did not “count it as
an offer.” (R DSF Par. 29). Terhune admits knowledge of the offer and testified at
his deposition that he “didn’t pay much attention to it because it was verbal.” (Ter.
Dep. 118-19). Terhune admitted at his deposition that he did not follow up on the
offer. (Ter. Dep. 119-20). The Board has also produced evidence that has not been
rebutted by Terhune that his original offer with the District was made via an oral
offer. (Bennet Dep. 78-79). Also, although Terhune argues that he had already
5

accepted an offer from another school, it is undisputed that the position was an atwill position and that Terhune could have left that position without a penalty. (R
DSF Par. 27). The undisputed facts thus show that Ahlgrim reconfigured his staffing
plan to create a position for Terhune and offered the position to Terhune. Terhune
chose not to take that offer and chose to take another position at a different school. It
was Terhune himself, not the Board that was the cause of the cessation of Terhune’s
employment with the District. Thus, Terhune has not shown that he was deprived of
a protected property interest.

B. Process Due
The Board contends that Terhune has not pointed to sufficient evidence to
show that the Board failed to provide Terhune with due process. In order for a
government employee to show that he was denied due process, the employee can
“show that state procedures as written do not supply basic due process or that state
officials acted in an ‘random and unauthorized’ fashion in depriving the plaintiff of
his protected interest.” Strasburger v. Board of Educ., Hardin County Community
Unit School Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998). The court notes that
Terhune cites to Baird v. Board of Educ. for Warren Community Unit School Dist.
No. 205, 389 F.3d 685 (7th Cir. 2004). (Ans. SJ 5). However, Baird is
distinguishable from the instant action since it involved a dismissal for cause as
opposed to a RIF as in the instant action, and the requirements for due process are
not the same. Id. at 688-89.
6

Terhune contends that the RIF violated Terhune’s seniority rights set forth in
105 ILCS 5/24-12 and that he was unfairly made the victim of “an unlawful RIF of
one. . . .” (P Reply 1). A government employee “with a property interest” in his job
whose employment is terminated pursuant to a RIF, “can be terminated without fullblown due process hearings if [he is] properly terminated during a RIF that is not
implemented through individualized decisions about whom to fire.” Lalvani, 269
F.3d at 791 (stating that “a government employer cannot avoid its procedural
obligations if it is picking specific individuals for lay-off or termination, nor can it
use a RIF to conceal a for-cause dismissal and thereby deprive a career employee of
the procedural protections to which he would otherwise be entitled”). It is
undisputed that in the months proceeding the non-renewal of Terhune’s contract, the
District was developing its ongoing staffing plan for the next school year and that
there was a declining student enrollment. (R DSF Par. 18). It is also undisputed that
one physical education teacher position was eliminated as a result of the RIF. (R
DSF Par. 19). Terhune has not pointed to sufficient evidence for a reasonable trier of
fact to conclude that the RIF was implemented based on individualized concerns
relating to Terhune or that the RIF was not a bona fide RIF approved in good faith
based on the reduced enrollment figures.
Terhune also argues that the District acted in a random and unauthorized
fashion in executing the RIF. However, a plaintiff “who challenges state action as
‘random and unauthorized’ must also demonstrate that state post-deprivation
remedies do not satisfy due process.” Strasburger, 143 F.3d at 358. Terhune
7

contends in his response to the Board’s motion for summary judgment that the
Illinois Code provides for post-deprivation hearings for RIFs only when five or more
teachers are discharged, but Terhune acknowledges that he had the post-deprivation
remedy of pursuing “some form of state-law civil proceeding, such as a breach of
contract action.” (Ans. D SJ 10). Terhune has not pointed to any evidence showing
that Terhune initiated any state-law civil proceedings against the Board, and his
“failure to avail [himself] of available state remedies is, therefore, fatal to [his]
federal due process claim.” Leavell, 600 F.3d at 806. In addition, Terhune had a
post-deprivation remedy under the Illinois Administrative Review Act. The
undisputed evidence also shows that Terhune was provided with a post-deprivation
remedy by the Board. After Terhune’s position was eliminated due to a RIF, he
communicated with the Board and, thereafter, the Board directed Ahlgrim to create a
position for Terhune. (R DSF Par. 26).
Terhune attempts to discount his actual knowledge of the upcoming RIF based
on a technicality contending that the RIF was not officially listed on the agenda of
the Board meeting on March 21, 2011. (Ans. DSJ 6). However, the Board has
produced evidence showing that Terhune knew of the RIF. (D Ex. J). The Board
has also produced a letter to Terhune, dated March 21, 2011, signed by Terhune as
received, that informed him of the RIF. (D Ex. Q). The undisputed evidence shows
that Terhune was allowed to make a detailed presentation to the Board in a closed
session in support of keeping his position. (R DSF Par. 23). Terhune complains that
he was not allowed to remain for the entire Board meeting, but he cites no precedent
8

that would require his presence during the entire meeting to satisfy due process.
Terhune also contends that Ahlgrim misled the Board at the meeting after Terhune
left. However, Terhune has not pointed to sufficient evidence to show that Ahlgrim
misled the Board in any way. Thus, no reasonable trier of fact could conclude other
than that Terhune was accorded due process prior to his dismissal. Based on the
above, the Board’s motion for summary judgment is granted and Terhune’s motion
for summary judgment is denied.

CONCLUSION
Based on the foregoing analysis, the Board’s motion for summary judgment is
granted and Terhune’s motion for summary judgment is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: November 15, 2013

9