Court, however, may have been saying that when an employer penalizes an employee after the termination of a consensual relationship, a presumption arises that the employer acted not on the basis of gender, but on the basis of the failed interpersonal relationship -- a presumption rebuttable only if the employee can demonstrate that the employer demanded further sexual relationships before taking the action he did.
Read in this way, Huebschen makes a great deal of sense. Title VII prohibits discrimination in the workplace. An employee has the right to work in an atmosphere free from sexual abuse, and to obtain the privileges and benefits of her employment without having to provide sexual favors to her employer. An employee who chooses to become involved in an intimate affair with her employer, however, removes an element of her employment relationship from the workplace, and in the realm of private affairs people do have the right to react to rejection, jealousy and other emotions which Title VII says have no place in the employment setting.
Such an employee, of course, always has the right to terminate the relationship and to again her sever private life from the workplace; when she does so, she has the right, like any other worker, to be free from a sexually abusive environment, and to reject her employer's sexual advances without threat of punishment. Yet, she cannot then expect that her employer will feel the same as he did about her before and during their private relationship.
Feelings will be hurt, egos damaged or bruised. The consequences are the result not of sexual discrimination, but of responses to an individual because of her former intimate place in her employer's life. Compare Volk v. Coler, 845 F.2d at 1433 ("Discrimination and harassment against an individual woman because of her sex is a violation of the equal protection clause.") (emphasis added).
Ms. Keppler's case presents the latter scenario. After her relationship with Dr. Miller ended, he did not abuse her or in any way harass her at the office. Nor did he even hint that by refusing to continue their sexual relationship she was jeopardizing her job. Instead, even assuming the truth of Ms. Keppler's testimony, Dr. Miller requested on a few occasions that they resume their relationship, and became angry when she refused. Bearing a grudge, he then embarked on a campaign to denigrate her in the eyes of Superintendent Thorson, with the ultimate goal of having her removed from her administrative position.
Huebschen teaches that Dr. Miller's conduct did not violate Title VII. Because the two had engaged in a prior consensual relationship, Ms. Keppler could establish sexual discrimination only by rebutting the presumption that Dr. Miller penalized her not because she was a woman, but instead because she was his former lover. To do this, she had to show (at this stage, provide evidence from which a jury could find) not merely that Dr. Miller wanted their relationship to continue, but that Dr. Miller threatened punishment if copulation or some form of erotic engagement was refused. She has not done so. Even if Dr. Miller did seek retribution against Ms. Keppler for abandoning their relationship -- and it is by no means clear that he did -- the most she has shown is that Dr. Miller reacted harshly to their failed relationship.
Huebschen says that this is not sexual discrimination under the anti-discrimination law.
Accordingly, summary judgment will be entered against Ms. Keppler on Counts I and II of her complaint.
This ruling still leaves open the question of sanctions. With his motion for summary judgment, Dr. Miller also moved for sanctions under Fed.R.Civ.P. 11 against Ms. Keppler and her attorneys on the grounds that the sexual harassment claims in the complaint lacked a reasonable factual basis. Although this court deferred further briefing on the Rule 11 motion pending the resolution of the summary judgment motion, it is apparent from Ms. Keppler's response to the latter motion that the allegations of abusive sexual harassment merely formed the backdrop for her quid pro quo claim. She did not mean to plead that Dr. Miller's actions gave rise to a hostile environment claim; she meant only to set forth the Dr. Miller had made sexual advances to her, and that her refusals led him to seek her termination.
Dr. Miller is understandably upset by Ms. Keppler's pleadings. An allegation of sexual retaliation is bad enough; when compounded with a claim that he was sexually abusing a woman in the workplace, it could prove devastating to a man who works closely with women every day, some only of high school age.
Nevertheless, the allegations on this score in the complaint do not allow for an imposition of Rule 11 sanctions. They are unnecessarily harsh, and demonstrate vindictiveness more than anything else. Based on Ms. Keppler's testimony, however, they are not patently false, for Dr. Miller's actions in April and May, 1986 suggest that he did want his sexual relationship with Ms. Keppler to continue, and that he became angry when Ms. Keppler refused. Thus, while Ms. Keppler and her attorneys will have to live with pleading this case as something it is not, they do not have to pay sanctions for doing so. See Beeman v. Fiester, 852 F.2d 206, 210-11 (7th Cir. 1988) (complaint is "well grounded in fact" so long as filing attorneys, after reasonable inquiry, have a reasonable basis for the facts they allege).
The Due Process Claim
Ms. Keppler also brings a procedural due process claim against District 86 for allegedly removing her from her position as Director of Curriculum without a proper hearing. It is by now well-established that whereas the federal Constitution prohibits the deprivation of property without due process of law, the source of property rights lies in substantive state law. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). Thus, before Ms. Keppler may challenge the procedures accompanying her transfer from administrator to teacher, she must establish that this transfer amounted to a deprivation of property under Illinois law.
In order to establish a property interest in her position as Director of Curriculum, Ms. Keppler must show that Illinois law grants her a "legitimate claim of entitlement" to that position. Lee v. County of Cook, 862 F.2d 139, 141 (7th Cir. 1988). Ms. Keppler points to Ill.Rev.Stat. 1987 ch. 122, para. 24-11, as well as Illinois case law interpreting this provision, as the source of her property rights. Paragraph 24-11 grants "contractual continued service" -- i.e., tenure -- to teachers after two (or in some cases, three) years. The term "teacher" in the statute includes all school employees, including teachers as well as administrators. McNely v. Board of Education, 9 Ill. 2d 143, 137 N.E.2d 63 (1956).
An administrator, however, "does not acquire tenure in [his] position. . ., but rather acquires tenure as a certified employee of the school district." Lester v. Board of Education School District No. 119, 87 Ill. App. 2d 269, 280, 230 N.E.2d 893 (1967). Thus, although a tenured administrator (such as Ms. Keppler) has a property right in some position within her school district, she suffers no deprivation of property if she is transferred from an administrative to a teaching position. See Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 984 (7th Cir. 1986); Danno v. Peterson, 421 F. Supp. 950 (N.D. Ill. 1976) (Flaum, J.).
Ms. Keppler concedes all this. Nevertheless, she insists that she had a property right in her administrative position based on a single sentence of dicta in Lester stating that "a person serving as superintendent, principal and teacher, or in any two of such positions, may be assigned by the board to any one of the positions he is qualified to fill, provided such action is bona fide and not in the nature of chicanery or subterfuge designed to subvert the provisions of the Teacher Tenure Law." 87 Ill.App.2d at 280 (emphasis added); accord Thrash v. Board of Education of School District No. 189, 106 Ill. App. 3d 182, 184, 62 Ill. Dec. 68, 435 N.E.2d 866 (1982). According to Ms. Keppler, her claim that the Board transferred her to a teaching post in the hope that she would leave the district altogether makes the Board's conduct a subterfuge, and thereby magically transforms her subjective interest in an administrative position into an objective property right. Ms. Keppler's argument fails for two reasons.
First, although Lester shed no light on what would constitute "chicanery or subterfuge," subsequent cases make clear that, whatever this means, it does not prohibit the Board from transferring an administrator to a teaching position in the hope that she will quit. Lane v. Board of Education of Fairbury-Cropsey Community Unit School District No. 3, 38 Ill. App. 3d 742, 745, 348 N.E.2d 470 (1976); Van Dyke v. Board of Education of School District No. 57, 115 Ill. App. 2d 10, 18-19, 254 N.E.2d 76 (1969). Compare Hansen v. Board of Education of School District 65, 150 Ill. App. 3d 979, 502 N.E.2d 467, 104 Ill. Dec. 204 (1986) (Board could not transfer tenured music teacher to non-teaching, non-certified position without due process). Thus, Ms. Keppler has no basis for claiming that her transfer was an improper subterfuge.
Second, even if Lester could be read as delineating an exception to the "at will" nature of an administrative position, this exception would not give rise to a property right. Ms. Keppler does not maintain, as she cannot, that she had a legitimate entitlement not to be transferred without cause; instead, she insists that she had a legitimate entitlement not to be transferred as a subterfuge -- that is, in derogation of the Teacher Tenure Law.
Ms. Keppler's argument thus boils down to the position that the Board could not fire her in violation of the law. As such, it is a tautology. Of course, Ms. Keppler had the right not to be dismissed in violation of the law, but the mere fact that the Illinois courts have said so does not mean that she had a legitimate expectation of remaining in her administrative position. Cf. McGill v. Board of Education of Pekin Elementary School, 602 F.2d 774, 780 (7th Cir. 1979) (Illinois teacher had no property right to teach in a particular school but could bring a First Amendment claim that her transfer was in retaliation for protected speech). The subterfuge exception provides no substantive criteria limiting the Board's authority to transfer Ms. Keppler, and therefore granted Ms. Keppler no assurances that she would remain Director of Curriculum. See Yatvin v. Madison Metropolitan School District, 840 F.2d 412 (7th Cir. 1988). If the Board transferred Ms. Keppler as a subterfuge, Ms. Keppler might have a state law claim, but she does not have a constitutionally cognizable property right in her position. See Bishop v. Wood, 426 U.S. 341, 349 n.13, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); George v. Conneaut Board of Education, Conneaut City School District, 472 F.2d 132, 133 (6th Cir. 1972).
The defendants' motion for summary judgment is granted, and judgment is entered for the defendants and against Ms. Keppler on all counts of the complaint. The defendants' motion for sanctions is denied.