Hamerski v. Belleville Area Special Services Cooperative

Filing 46

ORDER granting in part and denying in part 34 Motion for Summary Judgment. The Court GRANTS summary judgment on Count III and DENIES summary judgment on all other counts. Signed by Judge David R. Herndon on 3/20/2018. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RUTH HAMERSKI
Plaintiff,
vs.
BELLEVILLE AREA SPECIAL
SERVICES COOPERATIVE,

Case No. 16-cv-796-DRH-DGW

Defendant.
MEMORANDUM and ORDER
HERNDON, District Judge:
I.

Introduction

Now before the Court is defendant, Belleville Area Special Services
Cooperative’s (hereinafter “BASSC”), motion for summary judgment pursuant to
FEDERAL RULE

OF

CIVIL PROCEDURE 56 (Doc. 34). Plaintiff Ruth Hamerski

(hereinafter “Hamerski”), opposes the motion (Docs. 36). For the reasons
explained below, the Court grants in part and denies in part BASSC’s motion for
summary judgment (Doc. 34).
II.

Background

Plaintiff Hamerski began her employment with BASSC on July 1, 2007, as
an administrator for instructional programs (Doc. 37-1). At that time, she had
twenty-six years of experience as a teacher and special education department
chair at Mt. Vernon High School. (Doc. 35-4, pg. 15-17). BASSC is a federally
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funded special educational cooperative that implements and enforces the
Individuals with Disabilities Education Act (hereinafter “IDEA”). (Doc. 15, ¶ 4). It
provides special education services to children between elementary and high
school levels that have qualified disabilities under the Americans with Disabilities
Act (hereinafter “ADA”), and whom are entitled to special education under the
IDEA. (Id at ¶ 6). BASSC runs Pathways school, a K-12 school for emotional
behavioral students (Doc. 35-3).
In 2008, Hamerski was assigned to be the interim principal of Pathways
school following the resignation of the former principal in February of that year.
(Doc. 15, ¶ 7). During her time as interim principal, she oversaw all BASSC
instructional programs and implemented policies and procedures to ensure
compliance with state and federal law (Doc. 35-4, pg. 27). Also, Hamerski alleges
that she was forced to suspend a Pathways paraprofessional, Melissa Stines
following a confrontation between them (Id. at 186). Ms. Stines was, and
continues to be, married to Matt Stines, who at the time was allegedly “being
groomed to become a superintendent at Grant Illini” school. (Doc. 15, ¶ 9).
Hamerski states that these events were the basis of the 2015 investigation of her
(Id. at 189).
In support of summary judgment, defendants offer the deposition testimony
of Hamerski, Teresa Castello, Jeff Daugherty, Matthew Stines, Diane Warfield,
Brent Whipple, Brian Arterberry, and Stephanie Cox (See Docs. 35-1 through 359).

Page 2 of 21

In 2013, Hamerski announced that she intended to retire in 2017 or 2018.
(Doc. 15, ¶ 10). Thereafter, on October 16, 2013, Hamerski and BASSC entered
into a four year written contract that stated she could only be discharged “for just
cause.” (Doc. 15, ¶ 11). If dismissal were to occur, Hamerski would be entitled to
written notice of the charges, notice of hearing, a full hearing to confront and
cross-examine witnesses and evidence, and representation by legal counsel. (Id.).
Between 2007 and January 2015, Hamerski received “’excellent’ in virtually
every category” of her annual performance appraisals conducted by executive
director Daugherty. (Doc. 15, ¶ 12). In 2015, however, Hamerski alleges that she
would have “latent, unresolved issues in the mind of Matt Stines, and his wife,
Melissa Stines.” (Doc. 15, ¶ 13). The law firm Guin Mundorf, LLC was then hired
to investigate Hamerski. (Doc. 15, ¶ 14). Hamerski was subsequently informed on
March 13, 2015, by executive director Daugherty that she was to appear at the law
office of Barney Mundorf on Monday, March 16, 2015, regarding the
aforementioned investigation. (Doc. 15, ¶ 16).
At said meeting, Mr. Mundorf accused Hamerski of the following violations:
(1) “being negligent in her duties regarding training of teachers”; (2) “lying about
eight (8) claimed work days in July, 2014”; (3) “her IDEA instructions on restraint
and arrest of children from calendar year 2008 at Pathways”; and, (4) “whether
she told a subordinate administrator to keep illegal, confiscated drugs in his
desk.” (Doc. 15, ¶ 17).

Page 3 of 21

On March 18, 2015, Jeff Daugherty and Hamerski were then summoned to
a full executive board meeting. (Doc. 15, ¶ 19). At that meeting, the findings of the
investigation were presented, and the full board went into a closed session, but
took no action regarding Mr. Daugherty or Hamerski’s employment. (Doc. 15, ¶
19). Following the meeting, Mr. Stines and Mr. Mundorf took Mr. Daugherty and
Hamerski into a conference room. (Doc. 35-3, pg. 65-66). Hamerski alleges that
Mr. Stines indicated that the most serious act of misconduct alleged against her
was regarding student arrest (Doc. 35-4, pgs. 119;121). During the conversation
Hamerski alleges that she was told that she had two options moving forward: (1)
retire or (2) “be demoted with a substantial decrease in pay, and we may look at
further action being dismissal”. (Doc. 35-4, pg. 119). The following day, March 19,
2015, Hamerski received a written letter signed by Mr. Stines memorializing the
two options and giving her four days to make a decision. (Doc. 15, ¶ 22).
Despite her stated intention to retire in 2017 or 2018, on March 19, 2015,
Hamerski submitted a signed letter of resignation to the Executive Board and
Governing Board members, with the intent to retire as of June 30, 2015 (Doc. 358). BASSC accepted her resignation (Doc. 35-9). Thereafter, on October 23, 2015,
Hamerski filed a Charge of Discrimination against BASSC with the EEOC,
specifically alleging retaliation in violation of Title VII (Doc. 15-3). On April 15,
2016, the EEOC issued a right to sue letter to Hamerski (Doc. 15-4).
Subsequently, Hamerski filed the underlying lawsuit on July 14, 2016 (Doc. 1)
III.

Motion for Summary Judgment
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Summary judgment is proper when the pleadings, discovery, and disclosures
establish that there is no genuine issue of material fact and the movant is entitled
to judgment as a matter of law. Winsley v. Cook Cnty., 563 F.3d 598, 602–03
(7th Cir. 2009); Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). A genuine issue of material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of
Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The Court must view the facts in the light most
favorable to the non-moving party and draw all reasonable inferences in that
party's favor, as well as resolve all factual disputes in favor of the non-moving
party. Scott v. Harris, 550 U.S. 372 (2007); Fischer v. Avanade, Inc., 519 F.3d
393, 401 (7th Cir. 2008).
The party seeking summary judgment bears the initial burden of establishing
the absence of factual issues and entitlement to judgment as a matter of law.
Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing
Celotex, 477 U.S. at 323). In response, the non-moving party may not rest on
bare pleadings alone, but instead must highlight specific material facts to show
the existence of a genuine issue to be resolved at trial. Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000). The Court will enter summary judgment
against a party who does not “come forward with evidence that would reasonably
permit the finder of fact to find in [its] favor on a material question.” McGrath v.
Gillis, 44 F.3d 567, 569 (7th Cir. 1995).

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IV.

Analysis

Hamerski’s five count first amended complaint alleges as follows: (1) a
violation of plaintiff’s property interest in employment by virtue of her written
contract under the Fourteenth Amendment of the United States Constitution; (2) a
violation of plaintiff’s due process rights under the Fourteenth Amendment of the
United States Constitution for not affording a “name-clearing” hearing; (3) a
violation of plaintiff’s liberty interest under the Fourteenth Amendment of the
United States Constitution for accusing her of “illegal acts, incompetence, and
unfitness in her profession”; (4) a violation of Titles I and II of the ADA for
retaliating against plaintiff after she advocated for the students protected under
that statute and the IDEA; and, (5) a breach of plaintiff’s employment contract.
(Doc. 15, ¶ 25). In BASSC’s motion for summary judgment, BASSC seeks
judgment as a matter of law on all five counts (Doc. 35). Each count shall be
analyzed in turn.
a. Count I: Violation of Fourteenth Amendment Property Rights
Hamerski alleges that she possessed a property interest in her continuing
employment with BASSC by virtue of a written contract extending through June
2017, and containing a “for cause” provision relevant to dismissal (Doc. 15, ¶ 26).
Hamerski argues that BASSC violated her property interest when she was
constructively discharged without due process, in violation of the Fourteenth
Amendment.

Page 6 of 21

The Fourteenth Amendment procedural protection of property is a
“safeguard of the security of interests that a person has already acquired in
specific benefits. These interests… may take many forms.” Board of Regents v.
Roth, 408 U.S. 564, 576 (1972). The Supreme Court has held that dismissals
during the term of a contract create interests in continued employment that are
safeguarded by due process. Id. at 576-77 (citing Slochower v. Board of
Education, 350 U.S. 551, 559 (1956); Wieman v. Updegraff, 344 U.S. 183
(1952)). Individuals claiming these interests must have “a legitimate claim of
entitlement to it,” rather than an “abstract need or desire for it… [or] a unilateral
expectation of it.” Id.; See also Cole v. Milwaukee Area Technical College Dist.,
634 F.3d 901, 904 (7th Cir. 2011).
Whether or not a plaintiff has a property interest in continued employment
is a question of state law. Redd v. Nolan, 663 F.3d 287, 296 (7th Cir. 2011)
(citing Id.); See also Cole, 634 F.3d at 904. It must be shown that “a state law, an
ordinance, a contract, or some other understanding” limited the employer’s ability
to discharge the plaintiff. Id. (citing Krecek v. Board of Police Comm’rs of La
Grange Park, 646 N.E.2d 1314, 1318-19 (Ill. App. Ct. 1995); See also Palka v.
Shelton, 623 F.3d 447, 452 (7th Cir. 2010).
In this case, Hamerski alleges that her employment contract limited
BASSC’s ability to discharge her. In the case of a contract, a plaintiff generally
must show that the terms provide for termination “only ‘for cause’ or otherwise
evince ‘mutually explicit understandings’ of continued employment.” Cole, 634

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F.3d at 904 (citing Omosegbon v. Wells 335 F.3d 668, 674 (7th Cir. 2003)
(internal citations omitted)). It is in this way that a property interest is “created
and defined by the terms of [the employee’s] appointment,” and the “employer’s
discretion is clearly limited so that the employee cannot be denied employment
unless specific conditions are met.” Id. (quoting Roth, 408 U.S. at 578; Colburn
v. Trs. Of Ind. Univ., 973 F.2d 581, 589 (7th Cir. 1992)). Furthermore, an
employee cannot voluntarily resign and then complain about a lack of due
process. Palka, 623 F.3d at 453 (citing Dusanek v. Hannon, 677 F.2d 538, 543
(7th Cir. 1982)). However, an “involuntary” resignation, such as a constructive
discharge, can sometimes form the basis for a due process claim. Id. A
constructive discharge occurs when, from the standpoint of a reasonable
employee, an employer “makes employment so unbearable that an employee
resigns….” Id. It has been held that “[w]hen an employer acts in a manner so as to
have communicated to a reasonable employee that she will be terminated, and the
plaintiff employee resigns, the employer’s conduct may amount to a constructive
discharge.” E.E.O.C. v. University of Chicago Hospitals, 276 F.3d 326, 332 (7th
Cir. 2002). That is, when “’the handwriting [was] on the wall’ and the axe was
about to fall,” employment could have been so unbearable as to make a
reasonable person resign. Id. (quoting Lindale v. Tokheim Corp., 145 F.3d 953,
956 (7th Cir. 1998)).
In its motion for summary judgment, BASSC argues in favor of summary
judgment asserting that the evidence presented does not reach the legal standard

Page 8 of 21

for constructive discharge. More specifically, the facts reveal that Hamerski‘s
working conditions were not intolerable, and instead, support a finding that she
voluntarily resigned from her position. Conversely, Hamerski argues that this is a
case of “Cat’s Paw Liability,” because when faced with the choice between early
retirement and an involuntary demotion to a position with substantially less pay
and retirement benefits, Hamerski really had no choice. As a result of the written
letter memorializing her two options, plaintiff asserts that her property interest
was lost to “a predetermined outcome” (Doc. 37, pg. 10). She would have been
“reclassified from an administrator’s salary to a lower paying teaching position….”
(Doc. 37, pg. 10), without the benefit of due process in her demotion. Plaintiff
goes on to assert that “no one in their right mind would choose to retire at a
teacher’s salary, when they had earned an administrator’s retirement salary after
thirty-four (34) years.” (Doc. 37, pg. 11).
Given the circumstances surrounding plaintiff’s resignation, and construing
the facts in plaintiff’s favor, a genuine issue of material fact exists as to whether a
reasonable person would have felt that his or her employment had become
unbearable and, thus, compelled to resign. Plaintiff has presented evidence
sufficient enough to create a reasonable inference that given her options following
the May 18, 2015 meeting with Stines and Mundorf, her resignation was
involuntary, thus creating a situation involving a possible constructive discharge.
Therefore, the Court will deny summary judgment as to Count I.
b. Count II: Violation of Fourteenth Amendment Due Process Rights

Page 9 of 21

In Count II, plaintiff contends that BASSC deprived her of her Fourteenth
Amendment procedural due process rights, when she was constructively
discharged without notice of the charges, a hearing to confront adverse witnesses,
the opportunity to present witnesses on her behalf, and the opportunity for
representation by counsel. (Doc. 15, ¶ 33). A procedural due process violation
occurs when “(1) conduct by someone acting under the color of state law; (2)
deprives the plaintiff of a protected property interest; (3) without due process of
law.” Redd, 663 F.3d at 296 (internal citation omitted). The Supreme Court has
consistently held that “some form of hearing is required before an individual is
finally deprived of a property interest.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (citing Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974) (internal citations
omitted)); See also Roth, 408 U.S. at 570-71 (“When protected interests are
implicated, the right to some kind of prior hearing is paramount.”). This is
because the “right to be heard before being condemned to suffer grievous loss of
any kind… is a principle basic to our society.” Id. (quoting Joint Anti-Fascist
Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)).
Further, due process requires the opportunity to be heard “at a meaningful time
and in a meaningful manner.” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552
(1965) (internal citations omitted)); See also Fuentes v. Shevin, 407 U.S. 67, 80
(1972) (stating that the right to notice must also be granted at a meaningful time
and in a meaningful manner).

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What are necessary, therefore, are procedures “tailored, in light of the
decision to be made, to ‘the capacities and circumstances of those who are to
be heard…’ to insure that they are given a meaningful opportunity to present their
case.” Id. at 348-49 (quoting Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970)
(emphasis added)). Even when there has been an opportunity to be heard, though,
the Supreme Court has “traditionally insisted … [the] opportunity for that hearing
must be provided before the deprivation at issue takes effect.” Fuentes, 407 U.S.
at 82; Bell v. Burson, 402 U.S. 535, 542 (1971); Wisconsin v. Constantineau,
400 U.S. 433, 437 (1971); Goldberg, 397 U.S. at 261; Armstrong, 380 U.S. at
551; Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313 (1950); Opp Cotton
Mills v. Administrator, 312 U.S. 126, 152—53 (1941); United States v. Illinois
Central R. Co., 291 U.S. 457, 463 (1934); Londoner v. City & County of Denver,
210 U.S. 373, 385—86 (1908).
BASSC argues that Hamerski fails to prove a constructive discharge
because she refused to avail herself of the procedural protections developed by
BASSC when she voluntarily resigned. BASSC argues that by voluntarily
resigning, Hamerski chose to forgo the available due process procedures, rather
than face the notice of charges giving cause for her termination. (Doc. 35, pg. 15).
BASSC alleges that Hamerski made this well-informed choice not to exercise her
due process rights after consulting legal counsel and her supervisor.
Hamerski, on the other hand, contends that her due process rights were
violated when the letter outlining her two options failed to offer “a name-clearing
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hearing, the right to contest any evidence or the right to be represented by
counsel.” (Doc. 37, pg. 10). She argues that even if these things were provided, the
fact that the outcomes were predetermined, as evidenced by the March 19, 2015
letter, which proved that “no fair minded decision maker would be listening.” (Id..
See also Roth, 408 U.S. at 569; Goldberg, 397 U.S. at 271; Zenith Corp. v.
Hazeltine, 395 U.S. 100, 123 (1969).
However, the Court notes that the voluntariness of her resignation—a
question of fact for the jury to decide— is critical to the determination of whether
plaintiff’s due process rights were violated. A public employee who voluntarily
resigns cannot complain about a lack of due process, but an “involuntary”
resignation may in certain circumstances form the basis of a due-process claim.
Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir.1982). As mentioned in the
analysis on Count I, given the circumstances surrounding the voluntariness of
plaintiff’s resignation, a genuine issue of material fact also exists as to whether
plaintiff was deprived of due process prior to her resignation. Therefore, the
Court denies summary judgment as to Count II.
c. Count III: Violation of Fourteenth Amendment Liberty Interests
In Count III, Hamerski contends that she possessed, and was deprived of, a
liberty interest in her personal and professional reputation when BASSC made
allegedly slanderous accusations against her, and refused to allow her to confront
her accusers (Doc. 15, ¶¶ 39-40). In its motion for summary judgment, BASSC
argues that Hamerski fails to establish sufficient damages giving rise to
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deprivation of a protectable liberty interest. Specifically, BASSC argues that
Hamerski fails to show that BASSC distinctly altered her legal status, in addition
to the alleged defamation. Viewed in a light most favorable to the non-movant
plaintiff, the Court agrees with BASSC.
“Where a person’s good name, reputation, honor, or integrity is at stake
because of what the government is doing to him, notice and an opportunity to be
heard are essential.” See Paul v. Davis, 424 U.S. 693, 711 (1976); Roth, 408 U.S.
at 573 (quoting Constantineau, 400 U.S. at 437) (internal citations omitted); See
also Palka, 623 F.3d at 454. However, damage to reputation alone cannot form
the basis of a claim. Id.; Mann v. Vogel, 707 F.3d 872, 878 (when state actor
makes allegations that damage reputation no federally protected liberty interest is
implicated). Instead, “it is only the ‘alteration of legal status,’ such as government
deprivation of a right previously held, ‘which, combined with the injury resulting
from the defamation, justif[ies] the invocation of procedural safeguards.’” Hinkle
v. White, 793 F.3d 764, 768 (2015) (quoting Mann v. Vogel, 707 F.3d 872, 878
(7th Cir. 2013) (internal citations omitted)). The relevant inquiry is whether there
was “an injury to reputation along with a change in legal status….” Id. (quoting
Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1015 (7th Cir. 1990)).
To prevail on this liberty cause of action, a discharged state employee 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.” Strasburger v. Bd. of
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Educ., Hardin Cty. Cmty. Unit Sch. Dist. No. 1, 143 F.3d 351, 356 (7th Cir.
1998), quoting Johnson v. Martin, 943 F.2d 15, 16 (7th Cir.1991). Although the
Court finds that a genuine issue of material fact exists as to the first and second
elements, Hamerski has not presented evidence indicating that a genuine issue of
material fact exists as to the third element. Since the third element is dispositive
in this case, the Court shall only address that element in its analysis.
Relative to Count III, BASSC argues that Hamerski fails to show that
BASSC distinctly altered her legal status. In response, Hamerski contends that in
conjunction with her termination, statements deprived her of a liberty interest in
pursuing the occupation of her choice; she maintains that the statements both
seriously damaged her good name, reputation, honor and integrity and imposed a
stigma upon her that foreclosed future employment opportunities.

In order for a plaintiff to establish that she suffered a tangible loss of
employment opportunities, the stigmatizing statement must “[not] merely result in
reduced economic returns and diminished prestige, but [rather] permanent
exclusion from or protracted interruption of employment.” Munson v. Friske, 754
F.2d 683, 693 (7th Cir.1985) (“Liberty is not infringed by a label of incompetence
or a failure to meet a specific level of management skills, which would only affect
one's professional life and force one down a few notches in the professional
hierarchy.”) Id. The Seventh Circuit has stated that an employee's liberty interest
is infringed only if the statement “had the effect of blacklisting the employee from
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employment in comparable jobs.” Trejo v. Shoben, 319 F.3d 878, 889 (7th
Cir.2003).
Upon review of the record and applicable law, the Court finds that
Hamerski fails to make a showing that prospective employment opportunities
have been foreclosed to her due to Melissa Taylor and Diane Warfield’s statements
regarding the circumstances surrounding plaintiff’s retirement. In her deposition
testimony, Hamerski admits that after retiring, she sought no additional
employment opportunities and, therefore, was not turned down by any potential
employer as a result of Taylor or Warfield’s statements.
Q: Have you sought any type of employment using your certifications
and endorsements?
Hamerski: I have not.
Q: Have you turned in any resumes other than to Ms. Wilson?
Hamerski: I have not.
Q: Did you turn in a resume to Ms. Wilson?
Hamerski: I did not.
Q: Have you made any phone calls seeking employment?
Hamerski: I have not.
(Doc. 35-4, pg. 85). Although Hamerski notes that she is currently employed to
clean the home of Ms. Mardel Wilson, nothing indicates that she actually sought
employment at any other education facilities following her retirement. Ultimately,
Hamerski cannot demonstrate that her liberty has been infringed in the manner
required by the case law.
Accordingly, the Court concludes that no reasonable jury could conclude
that Hamerski was defamed or stigmatized for purposes of the Fourteenth

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Amendment by the statements of any of the defendants referenced herein, and
thus she was not deprived of her liberty interest in continuing her career in public
school administration. Therefore, the Court GRANTS summary judgment as to
Count III.
d. Count IV: Violations of Titles I and II of the Americans with
Disabilities Act (Retaliatory Discharge)
In Count IV, Hamerski contends that she was constructively discharged
because “she had created and enforced policies which advocated for students with
disabilities under the IDEA and ADA.” (Doc. 15, ¶ 45). She allegedly “enforced
regulations and rules prohibiting the use of arrests, isolation, seclusion and
restraint,” which she believed violated the rights of students with disabilities
under those statutes. (Doc. 15, ¶ 45). Hamerski supports her claim by pointing
out that Mr. Stines and Mr. Mundorf called her advocacy of those policies and
practices that she created the “most serious” of her offenses. (Docs. 35-4; 35-5;
36). Further, Hamerski exhausted her administrative prerequisites by obtaining
the right to sue from the Equal Employment Opportunity Commission on April
15, 2016. (Doc. 15-4).
The ADA’s retaliation provision “protects any individual who ‘has opposed
an act or practice made unlawful by [the ADA] or… has made a charge [under the
ADA].’” Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir. 1999) (emphasis
added); 42 U.S.C. § 12203(a). Further, that provision makes it unlawful to
“coerce, intimidate, or interfere with any individual… on account of his or her
having aided or encouraged any other individual in the exercise or enjoyment of,
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any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b) (emphasis
added). Absent direct evidence of retaliatory animus, the plaintiff can show a
prima facie case of retaliation by pointing to the following: (1) he or she engaged
in statutorily protected expression; (2) he or she suffered an adverse action; and
(3) there is a causal link between the protected expression and the adverse action.
Silk, 194 F.3d at 799 (citing Talanda v. KFC Nat’l Management Co., 140 F.3d
1090, 1095 (7th Cir. 1998); See also Davidson v. Midelfort Clinic, Ltd., 133 F.3d
499, 511 (7th Cir. 1998)). As to the second prong, “adverse action” has been
defined

broadly,

encompassing

“job

application

procedures,

the

hiring,

advancement, or discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employment.” Id. at 800 (citing 42
U.S.C. § 12112(a)); See also Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.
1996).
BASSC argues that the Court should grant summary judgment as to Count
IV because Hamerski fails to show a causal link between her alleged protected
expression and the alleged constructive discharge. (Doc. 35, pg. 18)(citing Cloe v.
City of Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013). Because Hamerski
voluntarily chose to resign, BASSC argues that she fails to establish an adverse
employment action. Furthermore, BASSC argues that Hamerski fails to provide
any evidence linking her advocacy to her discharge.
Here, the Court finds that a question of fact exists surrounding not only the
voluntariness of plaintiff’s resignation, but also the but-for cause of the
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resignation. Hamerski’s alleged facts fit squarely within the ADA’s protections for
any individual who opposed an act or practice made unlawful by that statute, as
plaintiff’s policies were in response to the alleged arrests, isolation, seclusion and
restraint of students. In fact Mr. Stines expressly stated in his deposition that of
the four topics discussed in the conference room meeting with Hamerski prior to
her resignation, “[t]he most significant issue and the one that I recall the most was
the issue of her directing staff to seize drugs from a student and hang on to them.
That was the most significant issue in my mind.” (Doc. 35-5, pg. 91, lines 16-19).
In Hamerski’s deposition, she also stated that “Mundorf said, [] the most serious
of the charges against you are regarding student arrest, and the fact that you were
not providing appropriate -- I'm trying to remember the word he used -- guidance
to the younger administrators; therefore, this is happening.” (Doc. 35-4, pg. 119,
lines 18-25). Further, there is a dispute of fact as to whether the student arrest
policy was discussed in the meeting prior to Hamerski receiving the March 19,
2015, letter signed by Mr. Stines memorializing her two employment options. Not
only does this claimed adverse action falls squarely within the employment
examples cited in Silk, but plaintiff has presented sufficient evidence to create a
reasonable inference linking her advocacy to the alleged constructive discharge.
Therefore, given the discrepancies surrounding the voluntariness of
plaintiff’s resignation, and construing the facts in plaintiff’s favor, a genuine issue
of material fact exists as to the causal connection between her advocacy opposing
the use of “arrest, isolation, seclusion, and restraint,” on the ADA students and

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the adverse action of being retaliated against. The Court denies summary
judgment as to Count IV.
e. Count V: Breach of Employment Contract
In Count V, Hamerski alleges that she entered into a written contract of
employment through June of 2017 with BASSC. (Doc. 15, ¶ 53). Despite the
existence of said contract, she alleges a breach by way of constructive discharge.
Defendant argues in favor of summary judgment because “constructive discharge”
is not recognized as a stand-alone tort under Illinois law. (Doc. 35, pg.19) (citing
Dudycz v. City of Chicago, 133, 563 N.E.2d 1122, 1126 (1990). Defendant also
asserts that rather than a constructive discharge, Hamerski “voluntarily resigned
on her own accord as permitted under her employment contract and BASSC
accepted” the resignation. (Doc. 35, pg. 20). Hamerski, however, argues that she
was not an at-will employee, but rather had a “written, fixed-term contract
requiring discharge only for ‘just cause,’” rather than at-will employment. (Doc.
36, ¶ 5). Rather, she cites authority for the proposition that the “at-will” doctrine
does not apply when there is a written contract, and that a demotion is a breach.
(Doc. 37, pg. 16) (citing Arneson v. Board of Trustees, McKendree College, 569
N.E. 2d 252, 256-58 (5th Dist. 1991).
Under Illinois law, “a person has a property interest in his job only where
he has a legitimate expectation of continued employment based on a legitimate
claim of entitlement.” Cromwell v. City of Momence, 713 F.3d 361, 364 (7th Cir.
2013) (citing Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007) (internal citations
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omitted)). Because employment relationships in Illinois are presumed to be at
will, an expectation of continued employment must be shown through a
“substantive state-law predicate.” Id. (quoting Omosegbon, 335 F.3d at 674). In
other words, there must be “a specific ordinance, state law, contract or
understanding limiting the ability of the state or state entity to discharge him.”
Rujawitz, 561 F.3d at 688 (quoting Moss, 473 at 700; Krecek, 646 N.E.2d at
1319). In the contracting sense, “the terms of employment must provide that
termination will only be ‘for cause’ or ‘otherwise evince mutually explicit
understandings of continued employment.’” Cromwell, 713 F.3d at 364 (quoting
Omosegbon, 335 F.3d at 674); See also Garrido v. Cook Cnty. Sheriff’s Merit
Bd., 811 N.E.2d 312, 319 (Ill. App. Ct. 2004) (As “a public employee who could
only be terminated for cause,” the petitioner “enjoyed a property interest in her
continued employment…”).
Here, Hamerski can prove the existence of a contract that contained a “for
cause” provision and certain procedural requirements that limited BASSC’s to
effectuate her discharge. As to the last two elements –-breach and damages–material facts remain in dispute. As the Court notes above, the voluntariness of
Hamerski’s resignation is a question of fact for the jury, and that question is
critical to their determination of whether Hamerski’s employment contract was
breached. Therefore, the Court denies summary judgment as to Count V.
V.

Conclusion

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Accordingly, the Court GRANTS in part and DENIES in part defendant
BASSC’s motion for summary judgment pursuant to FEDERAL RULE

OF

CIVIL

PROCEDURE 56 (Doc. 34). The Court GRANTS summary judgment on Count III
and DENIES summary judgment as to all other counts.

The parties are

DIRECTED to contact Magistrate Judge Wilkerson’s chambers, if a settlement
conference would be beneficial.
IT IS SO ORDERED.

Judge Herndon
2018.03.20
16:26:42 -05'00'
United States District Judge

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