Segobiano-Morris v. Grayslake Community Consolidated School District No. 46

2015 IL App (2d) 140822, 34 N.E.3d 584, 393 Ill. Dec. 383, 40 I.E.R. Cas. (BNA) 766, 2015 Ill. App. LEXIS 409

• Court: Appellate Court of Illinois
• Decided: May 28, 2015
• Docket: 2-14-0822
• Status: Unpublished

Opinion

2015 IL App (2d) 140822 No. 2-14-0822 Opinion filed May 28, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

ANGELA SEGOBIANO-MORRIS, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 13-CH-3018 ) GRAYSLAKE COMMUNITY ) CONSOLIDATED SCHOOL DISTRICT ) No. 46, ) Honorable ) Mitchell L. Hoffman, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Zenoff and Spence concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Angela Segobiano-Morris, was employed as a teacher by defendant, Grayslake

Community Consolidated School District No. 46 (the District). In 2013, plaintiff received an

“unsatisfactory” rating on her performance evaluation and, due to a reduction in force (RIF), the

District dismissed plaintiff at the end of the school term. Plaintiff then brought a complaint for

declaratory judgment and injunctive relief, alleging that her dismissal violated the teacher-

employment provisions of the School Code (105 ILCS 5/24 (West 2012)) and seeking her

reinstatement. The trial court dismissed the complaint pursuant to section 2-619(a)(9) of the

Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2012)). For the reasons that 2015 IL App (2d) 140822

follow, we affirm.

¶2 I. BACKGROUND

¶3 According to plaintiff’s complaint, she was employed as a tenured teacher at an

elementary school in the District. See 105 ILCS 5/24-11(c) (West 2012) (stating that tenure, or

contractual continued service, is generally obtained after four academic years of full-time

service). On April 10, 2013, plaintiff received the following letter from the District:

“We regret to advise you that the Board of Education of Community Consolidated

School District 46, Lake County, Illinois, pursuant to Section 24-12 of the Illinois School

Code, has determined that you are to be honorably dismissed effective as of the end of

the 2012-[ ]13 school term and not reemployed for the 2013-[ ]14 school term. The

reason for your dismissal is the decision of the Board to decrease the number of teachers

due to economic necessity. Accordingly, your employment in and services to the School

District shall terminate at the end of the school day on June 6, 2013.” (Emphasis in

original.)

Plaintiff alleged that it was “common practice” for school boards to issue similar warning letters

to teachers but that their dismissals “[we]re not made effective” if sufficient funding became

available before the start of the following school term. In August, the District advertised an

opening for an elementary school teacher and hired a candidate at the start of the school term in

September. Ultimately, plaintiff was not recalled. Plaintiff’s complaint sought her reinstatement

and damages in the amount of several weeks’ lost wages.

¶4 The District filed a motion to dismiss under section 2-619(a)(9) of the Code (735 ILCS

5/2-619(a)(9)) (West 2012)). In its motion, the District noted that on April 10, 2013, the school

board unanimously approved a resolution calling for a RIF of 20 teachers at the end of the 2012-

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13 school term, for reasons of economic necessity. Based on performance evaluations, teachers

are categorized in groups from 1 to 4, with 4 being the highest. 105 ILCS 5/24-12(b), 24A-5

(West 2012). Groupings control the sequence of dismissals and recalls in the event of a RIF.

During the 2012-13 school year, plaintiff received a “Needs Improvement or Unsatisfactory”

rating on her performance evaluation, which placed her in group 2.

¶5 Attached to the District’s motion was a list of the 20 teachers and their groupings. Of the

20 teachers on the list, 19 were in group 3; plaintiff was the only teacher in group 2. The District

issued the letter to plaintiff indicating that, due to the RIF, her employment would be terminated

at the end of the 2012-13 school term. The District contended that plaintiff did not have the right

to be recalled, because she was a group 2 teacher. Thus, according to the District, plaintiff was

honorably dismissed at the end of the school term and not recalled, in accordance with section

24-12(b) of the School Code (105 ILCS 5/24-12(b) (West 2012)).

¶6 Plaintiff filed a response to the District’s section 2-619(a)(9) motion, alleging, for the

first time, that the District’s claimed need for a RIF was “pretextual.” According to plaintiff, the

District could not have in good faith known its funding levels until the summer of 2013, after it

had already dismissed plaintiff.

¶7 On May 8, 2014, the trial court conducted a hearing on the District’s motion. A

transcript of the hearing was not included in the record. The trial court’s written order states that

the court found that the District honorably dismissed plaintiff in accordance with the procedures

set forth in section 24-12(b) of the School Code. In addition, the trial court specifically noted

that plaintiff had failed to support her contention that the District’s claimed need for a RIF was a

pretext for her dismissal. Accordingly, the trial court granted the District’s motion and dismissed

plaintiff’s complaint. Plaintiff’s motion to reconsider was denied and plaintiff timely appealed.

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¶8 II. ANALYSIS

¶9 As noted, plaintiff appeals the involuntary dismissal of her complaint under section 2-

619(a)(9). She contends that the trial court erred when it determined that the District complied

with the School Code. First, plaintiff argues that, pursuant to the School Code, the District failed

to honorably dismiss her and, further, that she should have been recalled. Second, plaintiff

asserts that the trial court’s interpretation of section 24-12(b) cannot be reconciled with the

School Code as a whole.

¶ 10 Initially, we note that plaintiff’s complaint was dismissed pursuant to section 2-619(a)(9)

of the Code, not section 2-615 (735 ILCS 5/2-615 (West 2012)) as asserted in plaintiff’s brief.

Accordingly, we will address plaintiff’s arguments under the proper standard.

¶ 11 A motion to dismiss under section 2-619(a)(9) admits the legal sufficiency of the

complaint, but raises defenses or other affirmative matters that defeat the action. Patrick

Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. A defendant’s compliance with

the controlling statute is an “affirmative matter” warranting dismissal under section 2-619(a)(9).

Hayes v. M&T Mortgage Corp., 389 Ill. App. 3d 388, 392 (2009). We review de novo the trial

court’s dismissal under section 2-619(a)(9) (Patrick Engineering, 2012 IL 113148, ¶ 31), and we

may affirm the dismissal on any basis supported by the record (Raintree Homes, Inc. v. Village

of Long Grove, 209 Ill. 2d 248, 261 (2004)).

¶ 12 In Illinois, the employment of public school teachers in school districts outside of Cook

County is regulated by the School Code (105 ILCS 5/art. 24 (West 2012)). As with all statutes,

when we construe the School Code, our goal is to ascertain and give effect to the legislature’s

intent. Frakes v. Peoria School District No. 150, 2014 IL App (3d) 130306, ¶ 12 (citing Chicago

Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶

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15). In so doing, “[w]e view the statute as a whole and give the language its plain and ordinary

meaning, which is the most reliable indicator of the legislature’s intent.” Id. When the language

of a statute is unambiguous, it will be applied as written without resort to extrinsic aids. Doe v.

Hinsdale Township High School District 86, 388 Ill. App. 3d 995, 1001 (2009).

¶ 13 This case focuses on the trial court’s construction and application of section 24-12(b) of

the School Code. Section 24-12(b) sets forth the procedure for dismissal “as a result of a

decision of a school board to decrease the number of teachers employed by the board” (105 ILCS

5/24-12(b) (West 2012)), commonly known as a RIF. Under the School Code, teachers are

evaluated at least once every two years (105 ILCS 5/24A-5 (West 2012)) and then grouped

accordingly (105 ILCS 5/24-12(b) (West 2012)). Qualified, full-time teachers are categorized as

follows: “[e]xcellent” teachers are placed in group 4; “[p]roficient or [s]atisfactory” teachers are

placed in group 3; and teachers who “[n]eed[ ] improvement” or are “[u]nsatisfactory” are placed

in group 2. Id. Teachers in group 1 are either part-time teachers, who are ineligible for tenure,

or full-time teachers who have yet to be evaluated. Id. As noted, plaintiff was a group 2 teacher.

¶ 14 Plaintiff’s first argument, that the trial court erred because the District failed to comply

with the School Code when it dismissed and did not recall plaintiff, implicates two key

provisions of section 24-12(b). We refer to them as the “dismissal provision” and the “recall

provision.” The dismissal provision, which applies once the school board decides that a RIF is

required, has two components. First, teachers facing an honorable RIF dismissal are entitled to

written notice of their termination 45 days prior to the end of the school term. 105 ILCS 5/24-

12(b) (West 2012). Second, “teachers must be dismissed in the order of their groupings, with

teachers in grouping one dismissed first and teachers in grouping 4 dismissed last.” Id.

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¶ 15 With respect to the dismissal provision of section 24-12(b), plaintiff concedes that she

was timely served with the statutorily required notice. The record also demonstrates that

plaintiff was dismissed at the same time as 19 other teachers, all of whom were in group 3.

Plaintiff does not argue that the District failed to notify her of her dismissal or that a group 1

teacher was retained while plaintiff was dismissed. Accordingly, we agree with the trial court

that the District complied with the dismissal provision.

¶ 16 Next, we address plaintiff’s contention that she had “recall rights,” i.e., the right to be

recalled before a new teacher was hired. The recall provision of section 24-12(b) states that any

vacancies for the following school term or within one calendar year “must be tendered to the

teachers so removed or dismissed who were in groupings 3 or 4 of the sequence of dismissal and

are qualified to hold the positions.” (Emphasis added.) 105 ILCS 5/24-12(b) (West 2012).

While qualified teachers in groups 3 and 4 are entitled to be recalled, there is no similar

provision for teachers in groups 1 and 2. Based on the plain language of the statute, we may

presume that the exclusion of group 1 and group 2 teachers was intentional. See In re

Consensual Overhear, 323 Ill. App. 3d 236, 240 (2001) (stating that, “[u]nder the rule of

expressio unius est exclusio alterius, when an act lists things to which it refers, the court may

infer that any omissions were intended as exclusions”). Accordingly, because plaintiff was a

group 2 teacher when she was dismissed, she did not have the right to be recalled. We, therefore,

reject plaintiff’s argument; we agree with the trial court that the District complied with the recall

provision.

¶ 17 We also reject plaintiff’s bare assertion that the District violated section 24-12(b) when it

hired a “replacement” teacher in violation of plaintiff’s “statutory priority rights” as a member of

group 2. Plaintiff merely states this proposition and makes no attempt to support it with analysis

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or authority, in violation of Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008). Although

we would be within our rights to deem the argument forfeited for want of meaningful

development (Sexton v. City of Chicago, 2012 IL App (1st) 100010, ¶ 79), we choose to address

it.

¶ 18 The crux of plaintiff’s claim appears to be that the teacher hired in September 2013 was a

group 1 teacher over whom plaintiff, a group 2 teacher, necessarily had superior employment

rights. In making this claim, plaintiff has conflated the right not to be dismissed in favor of a

group 1 teacher with the right to be recalled before any new teacher is hired. The former is well

established in section 24-12(b); the latter has no basis in the statute. As we have just discussed,

following a RIF, nothing in section 24-12(b) provides for recalling a group 2 teacher either in

general or based on grouping. That the District hired another teacher at the beginning of the

2013-14 school term was, therefore, irrelevant because plaintiff did not have the right to be

recalled at all. Cf. Frakes, 2014 IL App (3d) 130306, ¶ 15 (“Contrary to the plaintiffs’

argument, there is nothing in this statutory scheme to suggest that whether RIF dismissals are

valid is contingent on the number of vacancies for the following school term.”).

¶ 19 Plaintiff’s second argument, that the trial court’s “interpretation of section 24-12(b)

cannot be reconciled with the statutory provision as a whole,” also lacks merit. Plaintiff

generally argues that the 2011 amendment to the School Code, which provided for the RIF

dismissal and recall procedures (see Pub. Act 97-8, § 5 (eff. June 13, 2011)), violates public

policy.

¶ 20 As plaintiff notes, this system of grouping teachers did not exist prior to the 2011

amendment, which made substantial revisions to the School Code. Under the pre-amended

version of the School Code, a school board was required to lay off all untenured teachers before

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it could lay off any qualified tenured teacher. 105 ILCS 5/24-12 (West 2008). In addition,

tenured teachers had the all-but-unqualified right to be recalled if funding became available (see

id.), as plaintiff alleged in her complaint. But the 2011 amendment removed tenure as the main

consideration in layoffs, and instead shifted the primary focus to teacher performance and

grouping. Grouping, in turn, now governs both the sequence of layoffs and any subsequent

recall rights. Although this change altered the nature and scope of public school teachers’

tenure, it was undoubtedly a public policy matter for the legislature (Johnson v. Board of

Education of Decatur School District No. 61, 85 Ill. 2d 338, 345-47 (1981)), and we must defer

to its judgment (Board of Education of Dolton School District 149 v. Miller, 349 Ill. App. 3d

806, 812 (2004)). As it pertains to this case, we reiterate that, under the present version of

section 24-12(b), even though plaintiff was tenured, she did not have the statutory right to be

recalled after she was honorably dismissed as a group 2 teacher. See Frakes, 2014 IL App (3d)

130306, ¶ 18 (noting that “tenure is no longer protective to the extent the plaintiffs allege”); Bart

v. Board of Education, 256 Ill. App. 3d 880, 883 (1993) (stating that “the teacher tenure

provisions of the School Code are in derogation of common law and must be strictly construed in

favor of the school district”).

¶ 21 Although section 24-12(b) of the School Code is unambiguous, our determination here is

also amply supported by legislative history. As the bill’s Senate sponsor noted, the 2011

modifications to the School Code were designed to “t[ie] tenure to teacher performance

evaluations” as well as to “allow[ ] [for] an easier dismissal process for teachers who are not

highly qualified.” 97th Ill. Gen. Assem., Senate Proceedings, Apr. 14, 2011, at 292-94

(statements of Senator Lightford); see also 97th Ill. Gen. Assem., House Proceedings, May 12,

2011, at 5 (statements of Representative Currie) (“This [bill] will streamline the decision to

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dismiss a teacher who is ineffective and/or incompetent. It will connect performance *** and

competence as the primary decision in *** teacher layoffs.”). The legislation that became Public

Act 97-8 unanimously passed the Senate, and only a single member voted against it in the House.

Again, the responsibility for the wisdom or justice of this legislation rests with the General

Assembly, not this court. People v. Wright, 194 Ill. 2d 1, 29 (2000).

¶ 22 We note that, as did the plaintiff in Frakes, plaintiff argues that the amendment to section

24-12(b) empowers school boards and school districts to arbitrarily dismiss teachers under a

“pretext” of budget cuts and RIFs. The response from our colleagues in Frakes bears repeating,

for here, too, plaintiff:

“ignore[s] multiple aspects of the statute that militate against a school board’s potential to

dismiss [teachers] ‘on a whim,’ including the fact that school boards do not conduct the

performance evaluations [(they are conducted by trained evaluators)] (105 ILCS 5/24A-3

(West 2012)); the fact that the [School] Code also provides remediation procedures for

teachers who receive unsatisfactory evaluations (105 ILCS 5/24A-5 (West 2012)); and

the fact that section 24-12 of the [School] Code also provides procedures to review

arguably questionable performance evaluations of senior teachers and public hearings

[are] required if [the number of] dismissals based on economic reasons reach[es] certain

thresholds (105 ILCS 5/24-12(b), (c) (West 2012)). Thus, contrary to the plaintiff[’s]

protestations, a school board cannot just ‘freely dismiss’ tenured teachers.” Frakes, 2014

IL App (3d) 130306, ¶ 17.

Given the procedural and substantive safeguards that were added to the School Code in 2011, we

reject plaintiff’s unsupported assertion that school districts have carte blanche to dismiss

teachers under the guise of a RIF.

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¶ 23 Finally, both in her brief and at oral argument, plaintiff asserted that the District

“targeted” her for dismissal and that the District dismissed her in “bad faith.” At oral argument,

plaintiff further alleged that the RIF, which affected the employment of 19 other teachers, was a

pretext that the District engineered solely for plaintiff’s dismissal. These allegations were not

raised in plaintiff’s complaint in the trial court, and we decline to consider them now. See

Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 500 (1985) (“It is axiomatic that

questions not raised in the trial court are deemed waived and may not be raised for the first time

on appeal.”).

¶ 24 We conclude that the trial court correctly determined that the District honorably

dismissed plaintiff in accordance with section 24-12(b) of the School Code. The District board

decided at the end of the 2012-13 school term that a RIF was necessary for the upcoming school

year. See 105 ILCS 5/24-12(b) (West 2012). The District notified plaintiff of her dismissal at

least 45 days before the end of the term. Id. Accordingly, the trial court properly dismissed

plaintiff’s complaint under section 2-619(a)(9) of the Code.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 27 Affirmed.

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