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Fleischer v. Board of Community College

OPINION FILED NOVEMBER 9, 1984.

ROBERT FLEISCHER, PLAINTIFF-APPELLEE,

v.

BOARD OF COMMUNITY COLLEGE DISTRICT NO. 519, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Stephenson County; the Hon. Francis X. Mahoney, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Plaintiff, Robert Fleischer, was first employed by defendant board of trustees as a teacher for the 1967-68 school year. At some time prior to November 1, 1978, the board became concerned with plaintiff's teaching performance. Rather than dismiss the plaintiff, however, the board, in December of 1978, agreed to adopt a plan suggested by Terry Fortman, the president of the Highland Community College Faculty Senate (the faculty's union). The plan called for the creation of a faculty peer committee that would work with the plaintiff for one year to improve his performance in the areas the board felt he was weak. At the end of one year the plaintiff's supervisor would evaluate what, if any, improvement had been made and would make a recommendation as to plaintiff's future employment.

The following year, on December 7, 1979, the plaintiff received a letter notifying him that he would no longer be employed as of May 24, 1980, when his present employment contract expired. The letter stated his performance had been evaluated and no improvement had been found. This decision was voted on and adopted by a majority vote of the board of trustees on December 18, 1979. It is undisputed that this action was based on alleged cause and not as a result of a decision to reduce the number of faculty members or to discontinue any particular type of teaching service or program.

At all times material to this case, there was a collective bargaining agreement in effect between the board and the Highland Community College Faculty Senate. On January 14, 1980, the plaintiff filed a grievance protesting his dismissal. On February 12, 1980, the college president, Howard Simms, denied plaintiff's grievance. On February 22, 1980, plaintiff appealed that decision to the board, and on March 31, 1980, the board denied plaintiff's appeal. On April 14, 1980, plaintiff further appealed the grievance to arbitration. On April 25, 1980, the board refused to submit the grievance to arbitration.

On May 6, 1981, the plaintiff filed a two-count complaint in the circuit court of Stephenson County. Count I alleged that plaintiff had become tenured on January 1, 1980, under article IIIB of the Public Community College Act (Ill. Rev. Stat. 1981, ch. 122, par. 103B-1 et seq.), and, therefore, his dismissal was unlawful. Count I requested reinstatement with back pay. Count II alleged that there was a collective bargaining agreement between the board of trustees and the faculty senate which contained a grievance-in-arbitration clause requiring the board of trustees to arbitrate plaintiff's dismissal. Count II requested an order compelling arbitration of plaintiff's dismissal grievance.

The board of trustees then filed a motion to dismiss on June 11, 1981, which was denied as to count I, but granted as to count II. The parties then stipulated to the facts and cross-motioned for summary judgment. On February 3, 1983, the trial court denied defendant's motion for summary judgment and granted plaintiff's motion for summary judgment. The defendant appeals from the denial of its motion for summary judgment and the plaintiff cross-appeals from the order dismissing count II of its complaint.

The defendant's appeal of this case presents a matter of statutory construction. Article IIIB of the Public Community College Act became effective on January 1, 1980. The plaintiff was notified in December of 1979 that his teaching contract would not be renewed, but continued to teach until May of 1980, when his current contract ran out. Section 3B-2 of the Act states:

"Any faculty member who has been employed in any district for a period of 3 consecutive school years shall enter upon tenure unless dismissed as hereinafter provided." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 122, par. 103B-2.

The issue, therefore, is whether the plaintiff was "employed" on January 1, 1980, for purposes of acquiring tenure under the Act.

The trial court held that the term "employed" must be given its common and usual meaning of an employee-employer relationship. Based on this definition, the plaintiff was employed on January 1, 1980, and acquired tenure under the Act, making his dismissal unlawful. The defendant argues, however, that the critical act under the statute is the notification of dismissal, which occurred before the statute became effective, so that the plaintiff could not have acquired tenure under the statute.

The defendant cites Delaware State College v. Ricks (1980), 449 U.S. 250, 66 L.Ed.2d 431, 101 S.Ct. 498, to support its argument. Ricks held that under the 180-day limitation period for filing a title VII claim under the E.E.O.C. and the three-year limitation period for filing a private section 1981 action, the "alleged unlawful employment practice" was the denial of tenure which occurred when the board of trustees made its official decision known to Ricks. The Supreme Court specifically rejected Ricks' claim that the unlawful practice occurred a year later when his teaching contract ran out, and held that was simply an inevitable consequence of the denial of tenure. While Ricks is factually dissimilar, its reasoning seems applicable here. This plaintiff claims he was terminated in violation of a statute. The wrongful act the plaintiff complains of was the board's decision not to renew his contract, which occurred in December of 1979. The fact that his contract actually ended after January 1, 1980, was simply an inevitable consequence of the earlier decision not to renew his contract. Since the decision not to renew his contract occurred before the effective date of the Public Community College Act, it was not a violation of the Act.

The trial court reasoned, however, that giving the term "employed" its ordinary and common meaning, the plaintiff acquired tenure on January 1, 1980, regardless of the earlier non-renewal notice. While it is true that words used in a statute should be given their plain, ordinary and commonly accepted meaning (34 Ill. L. & Prac. Statutes sec. 111 (1958)), a plain word may be given a restrictive meaning if such is indicated by the act as a whole or by persuasive gloss of legislative history. (United States v. Witkovich (1957), 353 U.S. 194, 1 L.Ed.2d 765, 77 S.Ct. 779.) Looking at the Act as a whole, we do not believe the term "employed" can be given its literal meaning as the trial court did, if the Act is to operate as the legislature intended it to.

• 1 Under section 3B-3, a third-year non-tenured teacher must be notified of the board's decision not to renew his contract at least 60 days before the end of that year, or his contract is deemed renewed and he receives tenure. Under the trial court's interpretation, this third-year non-tenured teacher would be "employed" until his contract expired at the end of his third year and would thereby enter tenure under section 3B-2's three-year requirement, regardless of whether the teacher received his non-renewal notice. This is not the way the legislature intended the statutory scheme to work. Section 3B-3 clearly implies that if a third-year non-tenured teacher is given a notice of non-renewal, that teacher will not obtain tenure. Therefore, the legislature intended that a teacher would no longer be "employed" for purposes of acquiring tenure after he has been notified that his contract will not be renewed.

Further support for this interpretation of the Public Community College Act is given by Senator Berman's (the Senate sponsor of the bill) ...


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