Fennerty v. Board of Education

949 F. Supp. 2d 826, 35 I.E.R. Cas. (BNA) 1594, 2013 WL 2477071, 2013 U.S. Dist. LEXIS 80925
CourtDistrict Court, N.D. Illinois
DecidedJune 10, 2013
DocketNo. 11 C 08815
StatusPublished
Cited by1 cases

This text of 949 F. Supp. 2d 826 (Fennerty v. Board of Education) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fennerty v. Board of Education, 949 F. Supp. 2d 826, 35 I.E.R. Cas. (BNA) 1594, 2013 WL 2477071, 2013 U.S. Dist. LEXIS 80925 (N.D. Ill. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, JR., District Judge.

The defendants — the Chicago Board of Education, all of its members, [828]*828and Jean-Claude Brizard, the CEO of Chicago Public Schools during the relevant time period1 — move to dismiss the Amended Complaint of Janet Fennerty, a former high school teacher, who alleges that she was improperly discharged in the course of a layoff of over 1300 teachers. Fennerty, who had tenure,, claims that before laying her off, the Board was required to give her an opportunity to demonstrate her ability to fill any vacant positions and to prefer her over new teachers in filling any such vacancies. Her argument, however, runs headlong into controlling precedent establishing that Chicago teachers do not have a due process right to a hearing in connection with layoff terminations. Accordingly, the Court grants the defendants’ motion to dismiss.

FACTS

In reviewing a motion to dismiss, the Court must take the plaintiffs factual allegations as true and draw all reasonable inferences in her favor. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir.2011). The facts are recited with this standard in mind. Fennerty was a tenured Chicago Public Schools teacher who was notified in the summer of 2010 that due to “financial exigency” she would be among 1300 teachers “honorably dismissed” by the Board of Education. For the next school year, Fennerty was placed in the “Reassigned Teachers Pool.” According to publicly available documents, the Reassigned Teachers Pool is a product of the Teachers Union’s collective bargaining agreement with Chicago Public Schools and is where regularly appointed tenured teachers are placed when they are released from their assignments due to the closure, phasing-out, reconstituting, or turnaround of their school; or a drop in enrollment or change in educational focus of the school. They are paid for several months with full benefits while acting as substitutes. At the end of the reassignment period, if the teacher has not procured a new position, he or she is laid off with an “honorable termination.”

Fennerty worked throughout the 2010-2011 school year, continuing her employment and tenure, although she was' removed from her classroom at Roald Amundsen High School and instead acted “primarily as a long term substitute.” She did not obtain another permanent teaching position during the reassignment period. On June 22, 2011, the Board of Education voted unanimously on a resolution pursuant to which Fennerty and about 150 other reassigned teachers were “honorably terminated,” effective June 24, 2011. Before her termination, Fennerty was not afforded an opportunity to show that she could perform the job duties of vacant positions, other than by applying for an opening in the same manner as any other candidate without tenure. Fennerty maintains that she was qualified for positions that were open or vacant immediately before or after her layoff, but the Board hired new probationary teachers for those positions instead.

While she taught at Roald Amundsen High School, Fennerty was a teacher representative on the Local Schools Council [829]*829(“LSC”), a statutorily created body with responsibilities that include approving how school funds and resources are allocated, approving and monitoring the implementation of the annual school improvement plan, and hiring and evaluating the school’s contract principal. Her principal, Carlos Munoz, did not appreciate her work on the LSC, particularly the manner in which she performed her oversight role with respect to his job. It was Munoz who identified Fennerty’s job to the Board for elimination before she received her layoff notice in the summer of 2010.

Based on these allegations, Fennerty claims: (1) that the Board exceeded its authority under the School Code in dismissing her and acted in bad faith in doing so; (2) that the Board2 denied her of her property rights in her tenured position without affording her due process before or after the dismissal (Count II); (3) that she was unlawfully discharged in retaliation for her work on the LSC, in viola1 tion of Illinois common law and the First Amendment (Counts III and IV, respectively).3 The defendants move to dismiss the complaint in its entirety, arguing that it fails to state any claim for relief.

DISCUSSION

Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 19.55, 167 L.Ed.2d 929 (2007). Here, the defendants argue that Fennerty’s claims fail as a matter of law even if all of her allegations are true.

The Court begins with the due process claim, which is the sole basis for federal jurisdiction over this case now that the First Amendment claim has been withdrawn. As to Count II, the defendants profess confusion about whether Fennerty is challenging her 2010 placement in the reassignment pool or her final layoff in 2011,4 but argue that either way, Fennerty’s due-process claim is foreclosed by recent holdings that the sections of the School Code on which Fennerty relies do not confer any enforceable property rights. [830]*830Fennerty’s somewhat murky arguments in response boil down to her contention that, even though the Illinois courts have held that tenured teachers are not entitled to any post-layoff due process, the Board “must still provide her due process in accord with federal law before permanently taking her property right in her continued employment,” and that the due process she is entitled to is “a pre-discharge opportünity to demonstrate that she is qualified to fill a vacant position in preference to new hires.” Response, Dkt. # 42 at 3. In other words, Fennerty maintains that that she is entitled to pre-layoff due process.

Unless Fennerty has a property interest insulating her from a layoff, however, she has no right to a hearing, whether béfore or after the layoff. Without a state-created property right at staké, there can be no federal claim of deprivation without due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Under the Illinois School Code, tenured teachers have “permanent” appointments and can be terminated only for cause, which requires notice, a hearing, and other procedures. See 105 ILCS 5/34-84 & 34-85. Despite the “permanent” nature of their appointments, however, tenured teachers are not exempt from economic layoffs. Land v. Bd. of Educ., 202 Ill.2d 414, 269 Ill.Dec. 452, 781 N.E.2d 249 (2002). The Land case involved challenges brought by five tenured Chicago teachers who were laid off in 1999. The teachers argued that the Board’s layoff policy violated their tenure rights under sections 34-84 and 34-85 of the School Code. See id., 259 Ill.Dec. 49, 757 N.E.2d at 915.

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949 F. Supp. 2d 826, 35 I.E.R. Cas. (BNA) 1594, 2013 WL 2477071, 2013 U.S. Dist. LEXIS 80925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fennerty-v-board-of-education-ilnd-2013.