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Pfendler v. Anshe Emet Day School

OPINION FILED FEBRUARY 11, 1980.

KAREN PFENDLER, PLAINTIFF-APPELLANT,

v.

ANSHE EMET DAY SCHOOL ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN B. ENGELSTEIN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 17, 1980.

Karen Pfendler (plaintiff) brought suit against Anshe Emet Day School (defendant school) for breach of contract, and against Frederick S. Nathan (defendant Nathan), director of the school, for wrongful inducement of defendant school's breach of contract. On motion of the defendants, the trial court dismissed plaintiff's second amended complaint with prejudice for failure to state a cause of action. The plaintiff appeals.

In this court, plaintiff contends her second amended complaint raises factual issues not susceptible to dismissal upon motion; the Code of Practice of defendant school contractually binds its teachers; failure of the school to follow procedures in the Code may result in liability to the teachers; tenure provides protection to teachers and charges by the defendant school cannot be trivial; and plaintiff's employment may not be terminated in an arbitrary or capricious manner.

It appears from the allegations of plaintiff's second amended complaint that plaintiff had been employed as a teacher by defendant school's private day school since the 1970-1971 school year. The most recent annual contract, for 1976-1977, incorporated by reference the Code of Practice, as adopted by defendant school on February 4, 1975. According to the clear and unambiguous provisions of this Code, plaintiff acquired tenure after her first "two (2) consecutive years of full-time or part-time teaching." Plaintiff received a letter from defendant Nathan, dated March 30, 1977. It stated defendant school would not renew plaintiff's teaching contract. This letter stated six detailed charges against plaintiff such as failure to relate to parents in a professional manner; voicing complaints in violation of the Code; berating other members of the staff for cooperating with the administration; resisting the set school curriculum; tutoring a child in class; spreading false information about school policy and programs; all on a continuous basis for at least five years and failure to rectify these matters despite opportunities.

Following the procedure stipulated in the Code on "Grievance Procedure," plaintiff sent to the school a denial of the charges and timely formal grievance. This grievance was denied by defendant Nathan. Plaintiff appealed to the board of trustees. After a meeting with a committee of three members designated by the board of trustees in accordance with the Code, plaintiff's appeal was denied. The Code provides:

"The decision of the Board [of Trustees] or its designated committee shall be final."

The Code contains a complete statement of a grievance procedure which was available to every tenured teacher including plaintiff. The Code provides for initial discussion between the complainant and the director or his assistant in an effort to obtain an informal resolution. The next step is reduction of the complaint to a formal grievance and presentation to the director. The director is to convene a grievance meeting between the grievant and the director or his designee and any other persons who, in the opinion of the director or the designee, might contribute to a resolution of the grievance. If the grievant so requests, the director is required to issue a written decision to the grievant, together with supporting reasons, within five school days of the grievance meeting.

There is provision for appeal by the grievant from this decision of the director to the board of trustees within 10 school days after receipt of the decision. Within 10 school days after receiving such appeal, the board or its designated committee shall meet together with the aggrieved teacher, the director or his designee "and any other persons who, in the Board's opinion, may contribute to a just decision on the appeal." The teacher may be represented by legal counsel in cases of discharge. Within 10 days after such meeting the board is to issue a written decision with supporting reasons. As above shown, the Code provides that the decision of the board or its designated committee "shall be final."

For the sake of clarity, we will consider separately the rights of plaintiff as against the two defendants.

I.

• 1, 2 The problem before us concerning plaintiff and defendant school is the legal sufficiency of the first two counts of plaintiff's second amended complaint. The Civil Practice Act provides pleadings are to be liberally construed to do substantial justice between the parties. (Ill. Rev. Stat. 1977, ch. 110, par. 33(3).) A motion to dismiss a complaint for failure to state a cause of action admits as true "all facts properly pleaded * * *." (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187, 380 N.E.2d 790.) However, conclusions need not be accepted in determining the sufficiency of a pleading. (Chicago Teachers Union v. Board of Education (1973), 14 Ill. App.3d 154, 156, 301 N.E.2d 833.) Pleadings themselves should not be the basis for dismissal "unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover." Fitzgerald, 72 Ill.2d 179, 187.

The first two counts of plaintiff's second amended complaint are replete with conclusions. Plaintiff alleges the charges "are of insufficient specificity and consequence"; the charges are "either exaggerated or completely false"; the defendant Nathan "fomented the unrest amongst the teachers which the School has attributed to Plaintiff"; and, "the School's termination of Plaintiff's employment was in bad faith, arbitrary, carpicious [sic], unreasonable and unrelated to Plaintiff's abilities as a teacher or the best interests of the school or students."

• 3 The law of Illinois requires that a plaintiff's complaint state pertinent facts. This rule is not complied with by the use of language which is purely conclusionary. In Van Dekerkhov v. City of Herrin (1972), 51 Ill.2d 374, 375, 282 N.E.2d 723, the court held that an allegation in a structural work case that defendant "had charge and control of" the work was insufficient. Allegations in a complaint describing the conduct of a defendant to be "wilful, wanton, malicious" are insufficient to state a cause of action. (Plocher v. City of Highland (1978), 59 Ill. App.3d 697, 701, 375 N.E.2d 1016.) To state a cause of action based upon actual or constructive fraud, the facts constituting the alleged fraud must be set forth in the complaint. (Henkaus v. Barton (1977), 56 Ill. App.3d 767, 770, 371 N.E.2d 1166, appeal denied (1978), 71 Ill.2d 603.) A general averment that parties were in a principal-agency relationship is a pure legal conclusion. The same is true concerning an allegation regarding the existence of a contract. (Bray v. Illinois ...


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