Sapia v. Board of Education of the City of Chicago

Filing 102

MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 9/26/2016. Mailed notice(lxs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENNETT SAPIA, et al.,
Plaintiffs,
v.
BOARD OF EDUCATION OF
THE CITY OF CHICAGO,
Defendant.

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No. 14-cv-07946
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiffs Bennett Sapia, Joel Passmore, and Annette Hall claim that they were laid off
from tenured positions as teachers for Defendant Board of Education of the City of Chicago
(“Board”) without first receiving the benefit of the procedures required for terminations of
tenured educators. Plaintiffs claim that the layoffs denied them due process of law and they seek
damages and declaratory relief for themselves and a proposed class of similarly-situated
teachers. Now before the Court is the Board’s motion to dismiss Plaintiffs’ first amended
complaint (“Complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim for relief. For the reasons discussed below, the Board’s motion is denied.
BACKGROUND
Plaintiffs allege that they were all tenured teachers in the Board’s school system when
they received layoff notices—Passmore in July 2012, and Sapia and Hall in October 2012. (First
Am. Compl. ¶¶ 26, 47, 62, Dkt. No. 21.) They claim that they had each received consistently
good performance evaluations during their careers but received “Unsatisfactory” ratings shortly
before they were notified of their layoffs. (Id. ¶¶ 19, 22, 36, 46, 55, 59.) The parties do not
dispute that in deciding which teachers would be laid off, the Board looked first to those with

unsatisfactory ratings, including tenured teachers, before considering others with less seniority
and no tenure.
Plaintiffs assert that the Illinois School Code prohibits removal of tenured teachers except
for cause and also mandates specific pre-termination evaluation and decision procedures plus
administrative review of any adverse decision. See 105 ILCS 5/34-85. By laying them off and
exposing them to the resulting stigma without providing them with the mandated opportunity to
vindicate themselves, Plaintiffs argue, the Board denied them due process of law in violation of
the Fourteenth Amendment to the United States Constitution. Each of the three counts of the
Complaint asserts a version of Plaintiffs’ due process claim: Count I alleges deprivation of due
process based on the “pre-termination rights of teachers;” Count II is based on the “posttermination rights of teachers;” and Count III claims a due process violation based on injuries to
Plaintiffs’ reputations. Plaintiffs seek relief under 42 U.S.C. § 1983 for damages from the layoffs
and to their reputations, the latter of which allegedly have hindered their prospects for future
employment.
DISCUSSION
When assessing the sufficiency of a complaint under Rule 12(b)(6), this Court accepts all
well-pleaded allegations as true and views them in the light most favorable to the plaintiffs.
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). The complaint must provide enough factual
information to state a claim that is plausible on its face and to raise a right to relief above the
speculative level. Doe v. Vill. of Arlington Heights, 782 F.3d 911, 914 (7th Cir. 2015).
To demonstrate a procedural due process violation based on deprivation of a property
right, a plaintiff must establish: (1) a cognizable property interest; (2) a deprivation of that
property interest; and (3) a denial of due process. Khan v. Bland, 630 F.3d 519, 527 (7th Cir.

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2010) (citing Hudson v. City of Chi., 374 F.3d 554, 559 (7th Cir. 2004). The Due Process Clause
of the Fourteenth Amendment protects but does not create substantive rights; those rights must
be established by other sources, such as contracts or state law. O’Gorman v. City of Chi., 777
F.3d 885, 890 (7th Cir. 2015). Public employees have been held to have a protected interest in
their jobs if an identified contract or statute creates a legitimate expectation of continued
employment. See Redd v. Nolan, 663 F.3d 287, 296 (7th Cir. 2011) (“To show a legitimate
expectation of continued employment under Illinois law that could support a due process claim,
[the plaintiff] must point to a state law, an ordinance, a contract, or some other understanding
limiting [the defendant’s] ability to discharge her.”).
It is well-settled that the Illinois School Code affords tenured teachers no expectation of
continued employment in the face of a layoff. See, e.g., Chi. Teachers Union, Local No. 1 v. Bd.
of Educ. of City of Chi., 963 N.E.2d 918, 924 (Ill. 2012); Land v. Bd. of Educ. of City of Chi.,
781 N.E.2d 249, 256 (Ill. 2002). Nor does the statute afford tenured teachers a right to
preferential consideration for positions. Price v. Bd. of Educ. of City of Chi., 755 F.3d 605, 609
(7th Cir. 2014). No protectable due process property right is created by the Illinois School Code
in the layoff context.
Nor was any such right created by the operative collective bargaining agreement between
the Board and Plaintiffs’ union. Plaintiffs contend that the operative agreement for the purpose of
defining that right is a 2007 collective bargaining agreement that by its own terms expired June
30, 2012—i.e., before any of the layoffs at issue. (2007 Collective Bargaining Agt., First Am.
Compl. Ex D, Dkt. No. 21-4.) The successor agreement, effective July 1, 2012, explicitly made
teachers with unsatisfactory ratings, regardless of tenure or seniority, first in the order of those to
be laid off. (2012 Collective Bargaining Agt. Appx. H. at 273, Mot. to Dismiss Ex. D, Dkt. No.

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25-4).1 Plaintiffs believe that the question of which agreement governs this dispute should be
determined by the dates of their unsatisfactory performance ratings, and they argue that their
view regarding the application of the 2007 agreement must be accepted as true at the pleading
stage. But the Court is not bound to accept a pleader’s allegations regarding the effect of an
exhibit and instead may independently examine the document and reach its own conclusions on
its proper construction. Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002).
With this lawsuit, Plaintiffs seek relief for layoffs that occurred during the term of the 2012
agreement, not for their original performance ratings. Since the 2012 agreement explicitly
allowed the layoff procedure at issue, it did not create employment expectations violated by that
procedure.
Plaintiffs thus have failed to allege the existence of a right to continued employment such
that the Due Process Clause would protect them against layoffs, and they further have failed to
state a sufficient claim for relief based upon injuries caused by the use of their performance
ratings to determine their eligibility for layoffs. That failure does not conclude the analysis of
their complaint, however, as the case law establishes the absence of a protectable property
interest in the context of layoffs, not discharges. As one court has explained:
As [the] 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.

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The 2012 Collective Bargaining Agreement may be considered at this stage of the proceedings without
triggering summary judgment procedures because it is critical to Plaintiffs’ complaint and referred to
therein. Geinosky v. City of Chi., 675 F.3d 743, 750, n.1 (7th Cir. 2012).

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Ferkel v. Bd. of Educ. of City of Chi., 45 F. Supp. 3d 824, 835 (N.D. Ill. 2014).
The Board contends that there is no dispute that each Plaintiff was laid off. But while the
Complaint does indicate that each Plaintiff’s change in employment status was labeled a “layoff”
and Plaintiffs themselves frequently adopt that label in describing what happened, other
allegations in the Complaint raise the inference that the label was a disguise for other motives.
Indeed, Plaintiffs explicitly allege that the “layoff” label was a “disguise” for terminations for
cause. (First Am. Compl. ¶¶ 5, 6, Dkt. No. 21.) Plaintiffs claim that Sapia, after years of good
performance ratings, was outspoken in criticism of the principal at his school and given an
unsatisfactory rating shortly thereafter. (Id. ¶¶ 19-25.) They further allege that although the
reason given for Sapia’s layoff was “low enrollment,” he actually had 35 students in his class at
the time he received his layoff notice and the school posted an opening for a position teaching
his subject one month later. (Id. ¶¶ 27-29.) Similarly, Plaintiffs claim that Passmore openly
opposed a school schedule change proposed by his principal, who was heard to threaten that she
could fire tenured teachers. (Id. ¶ 40.) Courts in this Circuit have recognized that a tenured
Illinois teacher’s due process protection against termination may be triggered by employment
actions falsely disguised as layoffs. See, e.g., Fennerty v. Bd. of Educ. of City of Chi., 577 F.
App’x 599, 600 (7th Cir. 2014) (noting that the plaintiff teacher might have stated a claim for
violation of her due process rights had she asserted that her purported layoff was actually a
pretext for the school board to discharge her in retaliation for her union activity);2 Ferkel, 45 F.
Supp. 3d at 833 (distinguishing between a complaint alleging elimination of a teaching position
as a pretext for termination for “cause,” which could support a due process claim, from one
alleging elimination of the position as a pretext for age discrimination, which does not). Drawing
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Fennerty is an unpublished Seventh Circuit order issued after January 1, 2007. Although not
precedential, the order’s reasoning is persuasive and provides a useful point of comparison here. See Fed.
R. App. P. 32.1(a); 7th Cir. R. 32.1(b).

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all reasonable inferences in favor of Plaintiffs here, the Complaint supports an inference that the
“layoffs” were actually pretext for terminations for cause.
The Board argues that even assuming Plaintiffs have an interest protected by the Due
Process Clause, they received all of the process due them by virtue of the union grievance
procedures available to them. But the Board does not contend that those grievance procedures
include the full range of rights and protections provided in detail by the Illinois School Code. See
105 ILCS 5/34-85. If Plaintiffs’ changes in employment status were in fact terminations rather
than layoffs, that statute provides the process they were due, and their allegations that they were
not given that level of process must be taken as true at this stage. Therefore, although Plaintiffs
do not state a claim for relief with the bare allegation that the Board used performance ratings to
determine their eligibility for layoff, they do state a sufficient claim to the extent they allege that
the Board’s actions against them were not the result of a layoff necessitated by economic or
enrollment, but instead were prompted by individual animus towards them.
Plaintiffs also base a due process claim upon the allegation that their later employment
prospects were damaged by their changed status because the Board communicated that they had
been deficient performers. (First Am. Compl. ¶¶ 173-76, Dkt. No. 21.) A public employee states
a claim for infringement of a protectable interest in pursuing the occupation of his choice if he
alleges 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 the public disclosure. Townsend v. Vallas, 256 F.3d 661, 669–70 (7th Cir.2001);
Grady v. Bd. of Tr. of N. Ill. Univ., 78 F. Supp. 3d 768, 779 (N.D. Ill. 2015). The Board argues
that the ratings of Plaintiffs caused them no stigma and were unpublished; but those are factual
matters that must be construed in Plaintiffs’ favor at the pleadings stage. The Board further

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contends that Plaintiffs have insufficiently alleged tangible loss of other employment
opportunities. But Plaintiffs do allege that Passmore was unable to find an assignment other than
as a substitute for more than two years and that Sapia and Hall were never able to find new
positions. That is sufficient for now.
CONCLUSION
For the foregoing reasons, the Court concludes that to the extent they claim that they
were removed from their positions for reasons other than actual layoffs, Plaintiffs’ complaint
states a sufficient claim for relief. The Board’s motion to dismiss (Dkt. No. 25) is accordingly
DENIED.
ENTERED:

Dated: September 26, 2016

__________________________
Andrea R. Wood
United States District Judge

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