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June 30, 1981


The opinion of the court was delivered by: Aspen, District Judge:

On Motions for Preliminary Injunction and Summary Judgment Sept. 3, 1981.


This matter is presently before the Court on defendants' motion to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. As the Court has considered matters outside the pleadings in ruling on the motion, it will be treated as a motion for summary judgment.

Since 1969, the collective bargaining agreement between the teachers union and the Board has included a prohibition against concurrent full-time outside employment applicable to tenured faculty members employed by the City Colleges of Chicago. The rule is currently contained in Article VIII(E) of the collective bargaining agreement which provides:

  A full-time position in the Colleges is accepted with
  the understanding that the faculty member will not
  continue, or at a future date accept, a concurrent
  full-time position or positions equal to a full-time
  position with any other employer or employers while he
  is teaching full-time in the Colleges.

A virtually identical provision is also contained in the individual employment contracts signed by full-time faculty members, including the plaintiffs herein, prior to their acquiring tenure. The rationale for the rule, as set forth in the affidavit of John Taylor, Chairman of the Board of the City Colleges of Chicago, is "to insure that faculty members will consider their employment by the City Colleges as their principal and primary employment, which will prompt the faculty members to afford priority to their duties as employees of the Board rather than divide their loyalty, attention and devotion between two full-time positions." In the Board's judgment, the "physical or mental strain" of holding down two full-time jobs "will likely reduce the quality of the teaching provided by such faculty members." Since part-time employment involves shorter hours and less compensation, and does not provide the same kind of benefits as full-time employment, the Board does not prohibit such concurrent employment because "an employee engaged in outside employment part time can be expected to devote his primary loyalty and attention to duties of his full-time employment at the City Colleges." See Taylor Affidavit at ¶ 5.

Seven of the nine named plaintiffs in the instant lawsuit have been given notices of dismissal for alleged violation of the rule against concurrent full-time employment and for alleged misrepresentations with respect to such employment in connection with their signing certain "outside employment forms." The plaintiffs who were given notices of dismissal are either awaiting formal hearings on the charges against them pursuant to section 3B-A of the Illinois Community Colleges Tenure Act, Ill. Rev.Stat. ch. 122, § 103B-4, or, in the cases of those who have already had their hearings, the decision of the hearing officer. Although two of the nine named plaintiffs do not currently have any outside employment, they seek to preserve their right to engage in such employment in the future and maintain that the allegedly unconstitutional rule has a chilling effect in this regard.*fn1


At the outset, defendants contend that this action is premature since the plaintiffs have not availed themselves of the administrative remedy provided in the Illinois Community Colleges Tenure Act, Ill. Rev.Stat. ch. 122, § 103B-4, for dismissal of tenured community college faculty members. While exhaustion of adequate and appropriate state administrative remedies may be required even in the context of a suit brought under 42 U.S.C. § 1983, Patsy v. Florida International University, 634 F.2d 900 (5th Cir. 1981); Adams v. City of Chicago, 491 F. Supp. 1257, 1260 (N.D.Ill. 1980), we agree with the plaintiffs that the administrative remedy available to them under Illinois law is inadequate and would not afford them complete relief.

The hearing provided by section 3B-4 of the Community Colleges Tenure Act is conducted by an arbitrator chosen by the parties. After he or she hears all the evidence and testimony, which is taken under oath and subject to cross-examination, the hearing officer is empowered to determine whether there is just cause for dismissal of the tenured faculty member. In the case at bar, however, the plaintiff's challenge the constitutionality of the very rule under which they are to be judged. The hearing officer or arbitrator is not empowered to rule on the constitutionality of the rule on its face or as applied and, indeed, any ruling to that effect that may be made in the context of the hearing may not be binding on the Board in other proceedings. In fact, in one case in which a hearing officer did issue a decision on whether a tenured faculty member employed by the City Colleges of Chicago violated the concurrent employment rule, the hearing officer quoted with approval from an unrelated proceeding involving a prohibition on concurrent full-time outside employment in which the arbitrator sustained an employee's discharge saying, "[w]hether the company regulations are overly restrictive and require finer definition is a matter for negotiation. The Arbitrator must interpret the language of the policy as he finds it." In re Safeway Stores, Inc., 49 L.A. 400 (1967), quoted in In re The Board of Trustees of Community College District No. 508 (City Colleges of Chicago) (April 29, 1981), Exhibit E to the affidavit of W. Rassmussen Holm, Associate Vice-Chancellor for Labor Relations City Colleges of Chicago.

It would therefore be futile to require plaintiffs to raise their constitutional objections in a section 3B-A hearing before being permitted to challenge the constitutionality of the ban on concurrent full-time employment in this Court. To the extent that they could raise the constitutional issues before the arbitrator, there is no guarantee that plaintiffs could obtain the relief sought even if the arbitrator or hearing officer agreed with them. Moreover, requiring exhaustion in this case would not appreciably aid the development of a factual context in which the constitutional issues might be addressed. The facial validity of the rule against concurrent employment depends upon the language of the rule itself. The challenge to the rule as applied, such as the allegations of discriminatory enforcement, depends to a large extent upon factors that would be irrelevant to the question of whether a particular faculty member violated the rule. of course, the individual plaintiffs are not precluded from disputing their dismissals for alleged cause in the state administrative hearings, even during the pendency of this case, nor are they precluded from raising the constitutional issues therein, but they need not do so as a prerequisite to challenging the constitutionality of the rule in this Court.


Plaintiffs' challenge the constitutionality of the rule against concurrent full-time employment on both due process and equal protection grounds. They contend that the rule violates the due process clause of the fourteenth amendment because it is vague and overbroad on its face, and because it is not rationally related to a legitimate state interest.*fn2 The plaintiffs argue that the rule violates the equal protection clause of the fourteenth amendment by creating irrational distinctions between (1) "99% full-time" and "100% full-time" concurrent employment, (2) self-employed and otherwise employed teachers, and (3) faculty members and non-faculty members. Plaintiffs also allege that the Board has arbitrarily and discriminatorily applied the rule since its inception in 1969.

The parties agree that there is no per so fundamental right to public employment and that reasonable restrictions may be imposed on the activities of public employees without running afoul of due process or equal protection requirements. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Trafelet v. Thompson, 594 F.2d 623, 626 (7th Cir. 1979). Accordingly, the ban on concurrent full-time employment will pass constitutional muster on both due process and equal protection grounds if there is a rational connection between the rule and the Board's legitimate interest in ensuring that full-time faculty members give priority to their teaching duties in order to assure quality instruction in the City Colleges of Chicago. Harrah Independent School District v. Martin, 440 U.S. 194, 99 S.Ct. 1062, 1064-65, 59 L.Ed.2d 248 (1979); Kelley v. Johnson, 425 U.S. 238, 246-48, 96 S.Ct. 1440, 1445-46, 47 L.Ed.2d 708 (1976); Thompson v. Gallagher, 489 F.2d 443, 447 (5th Cir. 1973).*fn3

As a threshold matter, the parties contend that the rule prohibiting concurrent full-time employment is so vague that it is devoid of meaning and that it is virtually impossible to determine whether the rule is rationally related to a legitimate state interest. The crux of plaintiffs' argument is the use of the term "full-time," which they contend is both vague and overbroad. The defendants, however, maintain that the term "full-time" employment is commonly used and understood as referring to the normal or standard period of work per day or per week and that the courts have had no difficulty in defining the term in other contexts. The Court agrees that "full-time" is a term of common usage today and that, when it is infused with its commonly understood meaning, the rule against concurrent full-time employment is not vague or overbroad.

Almost 50 years ago, the New Hampshire Supreme Court considered the meaning of the term "full-time" in the context of a workmen's compensation action and concluded:

  We think that the words "full time" in an industrial
  community like ours have acquired a definite
  significance which is generally recognized and well
  settled by popular usage. This term, like its close
  relatives "part-time" and "overtime," has reference to
  a customary or normal period

  of work. . . . One who works less than the usual
  number of hours per day is said to have a part-time
  job. One who works more than the usual number of hours
  per day is said to work over. . . . Full-time
  ordinarily signifies the normal or customary period of
  labor per day or per week in the establishment in
  which the workman is employed for the kind of work
  which he is hired to perform.

Cote v. Bachelder-Worcester Co., 85 N.H. 444, 160 A. 101, 102 (New Hamp.Sup.Ct. 1932). See also G. H. Bass and Co. v. Maine Employment Security Commission, 250 A.2d 492, 496 (Sup.Jud.Ct. of Maine 1969); Grace v. County of Douglas, 178 Neb. 690, 134 N.W.2d 818, 821 (1965); Margie Bridals, Inc. v. Mutual Benefit Life Insurance Co., 62 Ill. App.3d 542, 19 Ill.Dec. 547, 379 N.E.2d 62, 65 (1st Dist. 1978). Similarly, Webster's Third New International Dictionary (Unabridged) (1976) defines "full time" as "the amount of time considered the normal or standard amount for working during a given period (as a day, week, or month)." Id. at 919.

Federal courts also have had occasion to consider the meaning of "full-time" in the context of proceedings under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and in determining whether an employer in interstate commerce has fifteen or more employees within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b). Thus, in Marshall v. Hudson Stations, Inc., CCH Labor Cas. ¶ 33,813 at 48,807 (D.Kansas 1979), a Fair Labor Standards case, the court stated that "[a]lthough in some contexts, especially for statistical purposes, persons working fewer than 40 hours per week are deemed employed full time, we are persuaded that 40 hours per week is the generally accepted standard for full time employment and applicable to this case." In Dumas v. Town of Mount Vernon, 436 F. Supp. 866, 870 (S.D.Ala. 1977), a ...

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