Sapia v. Board of Education of the City of Chicago

Filing 158

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 5/15/2017:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENNETT SAPIA, JOEL PASSMORE
and ANNETTE HALL,
Plaintiffs,
v.
BOARD OF EDUCATION OF THE
CITY OF CHICAGO,
Defendant.

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No. 14 C 7946
Judge Andrea Wood
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

The plaintiffs, three former tenured teachers who were laid off or terminated – that’s a point
of contention – based on unsatisfactory ratings, have issued subpoenas to two former, highly-placed
officials with the Board of Education: Ron Huberman, CEO from 2009 to 2010; and Alicia
Winckler, human resources director from 2009 to 2014. The subpoenas’ topic is “the Board's
consideration, adoption, implementation, and communications of and regarding its policies regarding
teacher evaluations and teachers with unsatisfactory ratings.” The Board has moved to quash those
subpoenas, arguing that the two targets have no have no knowledge of the facts relating to the
plaintiffs’ layoffs/terminations or the facts relating to their unsatisfactory performance ratings. But
unsupported statements in briefs are not evidence and do not count. See, e.g., Woolard v. Woolard,
547 F.3d 755, 760 (7th Cir.2008); United States v. Stevens, 500 F.3d 625, 628–29 (7th Cir.2007).
The supporting Declaration of Ms. Winkler says she has “no direct” knowledge. Mr. Huberman did
not file a Declaration. “Lawyers' talk is no substitute for data,” Phillips v. Allen, 668 F.3d 912, 916
(7th Cir. 2012), and what has been filed is not in this case a sufficient basis to excuse the declarant.

Were the rule otherwise, few depositions would be allowed. Johnson v. Jung, 242 F.R.D. 481, 483
(N.D.Ill.2007). But the public is generally entitled to every man’s evidence. United States v. Jicarilla
Apache Nation, 564 U.S. 162 (2011). Even the President of the United States is not immune from
deposition. Clinton v. Jones, 520 U.S. 681, 704–05 (1997). See also Armada (Singapore) Pte Ltd
v. Amcol Int'l Corp., 160 F. Supp. 3d 1069, 1070 (N.D. Ill. 2016).
For their part, the plaintiffs have filed a motion to compel discovery of documents and
information: (1) agendas, administrative reports, videos, minutes, audio recordings and transcripts
of its closed-session Executive Board meetings during which topics relevant to this suit were
discussed, including the initial adoption and implementation of the illegal policy of using “layoffs”
as pretext for disguised terminations; (2) information relating to the Board’s policies and practices
regarding “layoffs” in years 2010 and 2011 (one to two years prior to the Plaintiffs’ “layoffs” in
2012); and (3) job postings and vacancy reports which list vacant teaching positions.
When they appeared here recently, it was clear the two sides had very different ideas
regarding what this case was about, what Judge Wood’s recent order had meant, and, consequently,
what matters are relevant to their claims and/or defenses – relevancy under Rule 26 being largely a
function of the claims and defenses in the case.
This seemed to stem from their competing interpretations of Judge Wood’s order denying
the Board’s motion to dismiss, and developments in the docket that came thereafter. The parameters
of discovery, of course, are delineated by the parameters of the case. Fed.R.Civ.P. 26(b)(1) allows
discovery:
regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties' relative access to relevant
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information, the parties' resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit.
The discovery rules are not a ticket to an unlimited, never-ending exploration of every
conceivable matter that captures an attorney's interest. Vakharia v. Swedish Covenant Hosp., 1994
WL 75055 at *2 (N.D.Ill.1994)(Moran, J.). “Parties are entitled to a reasonable opportunity to
investigate the facts-and no more.” Id. Even before the limitation in Rule 26 that a party may obtain
discovery on matters relevant to a claim or defense, the Supreme Court had cautioned that the
requirement of Rule 26 that the material sought in discovery be “relevant” should be firmly applied,
and that “judges should not hesitate to exercise appropriate control over the discovery process.”
Herbert v. Lando, 441 U.S. 153 (1979). See also Oppenheimer Fund, Inc., 437 U.S. at 352. Failure
to exercise that control results in needless and enormous costs to the litigants and to the due
administration of justice.
Judicious use of the court's case-management authority during the litigation can help to check
overlawyering, and appropriate limits on discovery can effectively channel the efforts of counsel
before excessive time and resources are expended. Montanez v. Simon, 755 F.3d 547, 552 (7th
Cir.2014). Cf. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Frank Easterbrook, Discovery
as Abuse, 69 B.U.L.Rev. 635 (1989). See also Hickman v. Taylor, 329 U.S. 495, 507–508 (1947).
As it stands, with a second amended complaint and a pending motion to dismiss that
complaint that is based in large part on Judge Wood’s earlier Opinion, the case is in a state of flux
and a ruling on these discovery motions would be premature, and may have to be revisited when
Judge Wood rules on the new motion to dismiss. As such, briefing on the motions [Dkt. ## 146,
149] is suspended and they are denied without prejudice to the parties’ refiling and briefing them
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when Judge Wood resolves the pending motion to dismiss, and again defines the parameters of the
case. A brief history of these proceedings should serve to illuminate this order.
In ruling on the Board’s motion to dismiss the plaintiffs’ first amended complaint, Judge
Wood set out the parameters of this case – and thus, of discovery – at that time. She noted that,
based on clear precedent, public employees like the plaintiffs have a protected interest in their jobs
only if a contract or statute creates such an interest. [Dkt. #102 at 3, citing Reid v. Nolan, 663 F.3d
287, 296 (7th Cir. 2011)]. Judge Wood found that the Illinois School Code did not create such an
interest and neither did the operative collective bargaining agreement between the plaintiffs and the
Board. [Dkt. # 102, at 3]. Judge Wood stated that:
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. 25-4). 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.
[Dkt. #102, at 3-4]. Judge Wood went on, however, to allow that if the “layoffs” were actually
“discharges,” matters were different.

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When the reasons driving a layoff are economic, she explained – say, decreased school
enrollment – the Board can consider employee performance in determining who goes first. But if
the Board is targeting a teacher solely for performance issues, the teacher has a protected interest and
is entitled to due process. [Dkt. # 102, at 4-5, quoting Ferkel v. Bd. of Educ. of City of Chi., 45
F.Supp.3d 824, 835 (N.D.Ill. 2014)]. Judge Wood determined that the p1aintiffs’ allegations
supported an inference that the “layoffs” in this case were actually pretexts for terminations based
on performance. [Dkt. #102, at 6]. Although she found the plaintiffs “did 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.” [Dkt. # 102, at 6].
In the wake of Judge Wood’s ruling denying the Board’s motion to dismiss, the plaintiffs
moved to file a second amended complaint. The plaintiffs removed all class allegations and, despite
the court’s ruling to the contrary, maintained the previous complaint’s allegations that the controlling
collective bargaining agreement applicable to the plaintiff’s layoffs was the 2007-2012 agreement
that expired prior to the layoffs at issue. The plaintiffs also added some allegations making it clear
that this was their theory, unaffected by the court’s ruling. [See, e.g., Dkt. #126, ¶¶ 31-32, 75.]. The
court granted the plaintiffs’ leave to file the second amended complaint. [Dkt. #125]. It is now the
subject of a motion to dismiss, which takes the plaintiffs to task for maintaining and adding to the
claims the court previously found were not a part of this case. [Dkt. #136]. As such, as noted at the
outset, judicial economy dictates that the relevance of the discovery now at issue await determination
until after Judge Wood rules.
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ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 5/15/17

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