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March 29, 1993



The opinion of the court was delivered by: JAMES B. MORAN


Plaintiff Sylvia Asllani (Asllani) brings this multi-count action against the Board of Education of the City of Chicago (the Board), the City of Chicago (the City), Ted Kimbrough (Kimbrough), Lourdes Monteagudo (Monteagudo), the United Neighborhood Organization (UNO), the Pilsen Neighbors Community Council (Pilsen Neighbors), the Pickard Local School Council (the Council), and twenty one of the Board's and Council's present or former members. Asllani brings various federal claims alleging civil rights violations and state law claims. She alleges that as principal of the Pickard Elementary School (Pickard School) she was discriminated against because of her race and political affiliation. Before this court are various motions brought by defendants, including motions for dismissal or in the alternative to stay proceedings, and a motion for summary judgment. *fn1" For the reasons set forth below, defendants' motions are granted in part and denied in part.


 Asllani, a white female, had been employed by the Board since 1958. She served as a teacher until 1977, at which time she became the interim principal of Darwin School. In March 1977, she was assigned as a regularly-appointed principal to Pickard School under the "Plan for Implementation of Title VI of the Civil Rights Act of 1964" (the 1977 Plan) and the "Protective Principles" which were incorporated as chapter VI of the 1977 Plan. According to plaintiff, her performance as a teacher and principal consistently had been rated as excellent or superior.

 On April 9, 1990, Kimbrough, general superintendent of the Chicago Public Schools, notified Asllani that he planned to request her suspension for a period not to exceed thirty days. A pre-suspension hearing was held on April 11 and April 13, 1990. On April 18, 1990, the Board met and upon the recommendation of the hearing officer voted to suspend plaintiff without pay for twenty-five school days, beginning April 20, 1990. Defendant Cortes acted as the substitute principal while Asllani served the suspension. The facts surrounding plaintiff's suspension were recited and addressed in detail in an earlier opinion written by Judge Zagel and therefore need not be further discussed here. *fn2"

 Asllani's contract for employment as principal was for four years, ending June 30, 1990. The Council held a meeting on April 14, 1990, and voted to renew Asllani's contract for a four-year term beginning July 1, 1990. That some month, Kimbrough declared that the April 11, 1990 meeting was void. On April 25, 1990, the Council conducted a meeting where the defendant members of the Council voted not to renew Asllani's contract. The six members of the Council who voted not to extend the contract to Asllani were Hispanic. Asllani was not present at the meeting and was not informed until May 17, 1990, that the Council had voted not to renew her contract.

 On May 7, 1990, plaintiff was notified that she was to be suspended for a second time, pending a hearing. A pre-suspension hearing took place on May 21, 1990, and the hearing officer, defendant Principe, recommended suspension of Asllani to the Board. Plaintiff was suspended for allegedly conducting and participating in illegal meetings, for allegedly harassing a teacher at Pickard School, and for failing to obtain a building permit.

 On June 26, 1990, a Council meeting was held and the members voted to extend a four-year contract to Cortes, a Hispanic, for the position of principal at Pickard School, effective July 1, 1990. Asllani was not notified of the June 26, 1990 meeting.

 When Asllani returned from her suspension on July 6, 1990, she was denied access to her office and was informed by defendant Engelskirchen that she was no longer the principal at Pickard School.

 On April 12, 1990, plaintiff filed her initial complaint and on May 22, 1990, she filed her amended complaint before Judge Zagel seeking declaratory and other relief against the Board, Principe, Kimbrough, and Engelskirchen. In that action plaintiff alleged that the defendants violated the provisions of 42 U.S.C. 1983 and the Fourteenth Amendment, when they suspended her in April 1990. Plaintiff further alleged that the defendants were engaged in a political conspiracy with one of the Council's factions and that they sought to suspend plaintiff, in retaliation, because she was a member of the opposing council faction. Asllani further claimed that defendants' actions were in violation of her First Amendment rights and amounted to a political conspiracy to deprive plaintiff of her civil rights based upon her race. On October 16, 1990, Judge Zagel granted defendants' motion to dismiss those claims.

 On May 16, 1990, plaintiff filed her first complaint and on January 17, 1992 she filed her fourth amended complaint with the Circuit Court of Cook County before Judge O'Brien. *fn3" That complaint includes many of the allegations encompassed in Asllani's complaint now before us. *fn4" Judge O'Brien has dismissed with prejudice four of the seven counts of plaintiff's fourth amended complaint.

 On July 1, 1992, Asllani filed her complaint before this court. The complaint includes eleven counts against twenty-eight defendants. *fn5"


 I. Prior and Ongoing Litigation

 Defendants argue that this court should dismiss plaintiff's amended complaint in its entirety because its claims are barred by the doctrine of res judicata. The doctrine of res judicata holds that a final judgment on the merits, in a court of competent jurisdiction, bars the same parties or their privies from relitigating the issues that were raised in the prior action, as well as other issues that could have been raised. Migra v. Warren City School District Board of Education et al., 465 U.S. 75, 83-85 (1984).

 Plaintiff filed her initial complaint on April 12, 1990, before Judge Zagel, and amended that complaint on May 22, 1990. The factual allegations in that case centered on plaintiff's first suspension from Pickard School. Judge Sage] dismissed plaintiff's claims on the merits on October 16, 1990. Asllani v. Board of Education for the City of Chicago, et al., No. 90 C 2149 (N.D.Ill. October 16, 1990). Although Asllani's current claims are based in part on facts regarding her first suspension, she now seeks relief for breach of contract, tortious interference with contract, violations of the School Reform Act and the Open Meetings Act, failure to renew her employment contract, and wrongful termination. The critical facts surrounding these claims concern defendants' decision not to renew Asllani's employment contract and her termination. Plaintiff did not become aware of the Council's decision not to renew her contract until May 17, 1990. Her instant complaint includes allegations regarding facts that occurred in late May and June 1990.

 In order for the doctrine of res judicata to apply, there must be an identity of the cause of action between the two actions and an identity of parties or their privies. Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 688 (7th Cir. 1986). The cause of action in the two suits are different. The claims before Judge Zagel concerned different issues and were supported by different allegations than those presented in the instant action. In plaintiff's complaint she raises new facts and claims that were not related to the issues before Judge Zagel. In addition, only four of the twenty-eight defendants named in the instant case were named in plaintiff's earlier case before Judge Zagel, and not all of the additional defendants named are privies to parties named in the earlier action. While we agree with defendants, in that the plaintiff is now precluded from raising any claims regarding her first suspension, she is not barred from raising her present claims which concern events unrelated to her complaint filed with Judge Zagel. A plaintiff does not have an on-going duty to update her complaint with allegations concerning new violations that occur after a previous complaint has been filed.

 Defendants further ask this court to apply the doctrine of collateral estoppel with respect to Judge O'Brien's decision on May 18, 1992. They argue that Judge O'Brien considered and rejected plaintiff's position that Asllani had been awarded a four-year principal's contract on April 14, 1990. On May 18, 1992, Judge O'Brien ruled that the Council was comprised of ineligible members when it voted to renew plaintiff's contract on April 14, 1990, rendering the renewal invalid. As a result of his finding, Judge O'Brien dismissed counts II and IV of plaintiff's fourth amended complaint. Defendants argue that the issue of whether plaintiff's contract was renewed on April 14, 1990, has been actually litigated and decided in the initial action, and therefore maintain that Judge O'Brien's decision should be given preclusive effect.

 Under Illinois law a party may "use issue preclusion defensively to bar the assertion of claims that previously have been raised by and decided against the same party who is asserting those claims in the current action." Charles Koen & Associates v. City of Cairo, 909 F.2d 992, 999 (7th Cir. 1990). A court must determine that "the issue decided in the prior adjudication is identical with the one presented in the case under review; [that] the party against whom estoppel is asserted was a party or in privity with a party to the prior litigation; [that] there has been final judgment on the merits in the former suit, and [that] the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit." Stevenson v. City of Chicago, 638 F. Supp. 136, 142 (N.D. Ill. 1986).

 In plaintiff's case, the issue decided before Judge O'Brien -- whether Asllani's employment contract was in fact renewed on April 14, 1990 -- is identical with the one presented in the case now before us. In addition, the plaintiff (the "party against whom collateral estoppel is asserted") is the same as in the prior litigation, and she was given a full and fair opportunity to litigate the issue in the prior suit. (Board Mem. Ex. G).

 Therefore, the only question that remains is whether there has been final judgment on the merits in the earlier suit. Plaintiff argues that collateral estoppel does not apply until final judgment is entered and maintains that because three counts remain pending before Judge O'Brien, his decision is not final and his ruling on the renewal of plaintiff's contract is not preclusive. Plaintiff is correct in that Judge O'Brien's decision is not final for appeal purposes. However, "'finality' for purposes of collateral estoppel is not the same as 'finality' for purposes of determining when an order is appealable or susceptible to reconsideration." In re Cenco Inc. Securities Litigation, 529 F. Supp. 411, 416 n.5 (N.D.Ill. 1982); see also Gilldorn Savings Association v. Commerce Savings Association, 804 F.2d 390, 393 (7th Cir. 1986); Miller Brewing Co. v. Joseph Schlitz Brewing Co., 605 F.2d 990, 996 (7th Cir. 1979), cert. denied, 444 U.S. 1102 (1980).

 The Seventh Circuit has considered several factors important when determining whether a decision is "final" for collateral estoppel purposes: that the decision was not "avowedly tentative," that the hearing was adequate and the parties were fully heard, that the court supported its decision with a reasoned opinion, and that the decision was appealable or had been appealed. Gilldorn, 804 F.2d at 393 (referring to Miller Brewing, 605 F.2d at 996). The "relevant question is whether the issue has been resolved in the prior action so that the Court has no good reason to permit it to be litigated again." In re Cenco, 529 F. Supp. at 416 n.5; see also Gilldorn, 804 F.2d at 393 (referring to In re Cenco).

 The issue presented to Judge O'Brien was whether the contract awarded to the plaintiff on April 14, 1990, was invalid because there were an insufficient number of affirmative votes. (Board Mem. Ex. G., p.2). Judge O'Brien concluded that the vote taken on April 14, 1990, failed for lack of a majority and therefore was ineffective. (Board Mem. Ex. G at 28-31). Because of that determination he dismissed count II (declaratory judgment as to the rights of plaintiff with respect to the April 14, 1990 meeting) and count IV (breach of contract) of plaintiff's complaint. The transcript demonstrates that the parties were fully heard and that Judge O'Brien's decision was well supported. Although Judge O'Brien's decision is not yet appealable, that is not necessarily the determinative factor. For instance, in Gilldorn the court held that collateral estoppel applied even though the state court order was interlocutory and not subject to appeal. Gilldorn, 804 F.2d at 394. The court noted that "the need for a final judgment [in the case as a whole] is not as compelling when the question is whether the determination of a single issue actually decided in the first action should be given conclusive effect in a later action between the parties on a different claim." Id. (citation omitted).

 In this case it is of particular importance that the issue of whether the Council's April 14, 1990 vote was valid is a matter of state law, that is, a matter requiring the interpretation of the School Reform Act and Board Rule 6-28 (Rule 6-28). (Board Mem. Ex. G at 6-11). Judge O'Brien, a state court judge, spent a significant amount of time questioning the parties, listening to their arguments and applying the facts before him (and now before us) to Rule 6-28 and the relevant statute. The parties had sufficient opportunity to be heard on the issue and the judge was well advised of the arguments on both sides of the issue, allowing him to make a reasoned decision. In addition, Judge O'Brien dismissed the claims on the merits, which is generally considered to be a "final" decision in Illinois. See e.g., Charles Koen, 909 F.2d at 1000; Spiegel v. Continental Illinois National Bank, 790 F.2d 638, 645 (7th Cir.), cert. denied, 479 U.S. 987 (1986); Schuster Equipment Co. v. Design Electric Services, Inc., 197 Ill. App. 3d 566, 144 Ill. Dec. 58, 59 (Ill.App. 1990).

 The purpose of issue preclusion is to avoid repeated controversy of matters judicially determined, thus saving individuals and courts the burden of relitigating old issues. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 (1979). Judge O'Brien's decision regarding the April 14, 1990 vote has been given fair consideration and judicial economy is best served by not now shifting the scene to another courtroom. Issue preclusion applies and Judge O'Brien's decision regarding the effectiveness of the April 14, 1990 Council vote is binding on this court.

 II. Tortious Interference with Contract

 In count VIII, plaintiff alleges that UNO, Pilsen Neighbors, the City, Monteagudo, Fraga, Solis, Victor Gonzalez, Mary Gonzalez, Gaytan, Garcia, Lopez, Maldonado, Morgan, Carmen Gonzalez, Prado, Reyes, Zapata and Cortes tortiously interfered with plaintiff's "then existing" contract, and with the contract the Council allegedly extended to plaintiff on April 14, 1990. Plaintiff argues that those defendants tortiously interfered with her contract by influencing the Board to suspend and terminate plaintiff because of her race and political affiliation, and also by influencing the Board to violate the provisions of the 1977 Plan and Protective Provisions.

 Under Illinois law, the essential elements of a cause of action for tortious interference with contractual relations are: (1) a valid contract; (2) defendant's knowledge of the existence of the contract; (3) defendant's intentional and malicious inducement of breach of the contract; (4) breach of the contract caused by defendant's wrongful conduct; and (5) resultant damage to the plaintiff. Swager v. Couri, 60 Ill. App. 3d 192, 17 Ill.Dec. 457, 460 (Ill.App. 1978); Williams v. Weaver, 145 Ill. App. 3d 562, 99 Ill.Dec. 412, 417 (Ill.App. 1986). First, there must be a valid contract. The parties agree that plaintiff had a valid employment contract that ended June 30, 1990. However, plaintiff had no contract extending past June 30, 1990, nor did she have the right to continued employment. Judge O'Brien ruled that the Council's April 14, 1990 vote to renew plaintiff's contract was ineffective. As discussed in section I above, that ruling is binding on plaintiff under the doctrine of issue preclusion and therefore plaintiff's contract was not legally renewed. Plaintiff relies heavily on the 1977 Plan and argues that it provided her with the right to continued employment at Pickard School. According to existing precedent, however, the 1977 Plan was superseded by the 1980 Consent Decree and Desegregation Plan (the 1980 Consent Decree) for purposes of Title VI. Dr. Charles E. Keenan v. Board of Education of the City of Chicago, 1992 U.S. Dist. Lexis 6816 (N.D. Ill. May 18, 1992) (holding that the Consent Decree and Desegregation Plan supplants the 1977 Plan as the Board's obligations under Title VI). Accordingly, it provides no promise of continued employment. Therefore, the only valid contract was plaintiff's employment contract terminating June 30, 1990.

 Plaintiff is required to allege not only that there was a breach of contract, but also that the breach was caused by defendants' wrongful conduct. Plaintiff alleges that defendants interfered with her employment relationship and influenced the Board, the Council and its members to suspend her, to not renew her contract (or recognize the contract extended on April 14, 1990), and to terminate her. However, plaintiff does not allege that any of these acts (suspension, termination or non-renewal of contract) constitute a breach of her employment contract that ended June 30, 1990. Because this court finds that the two contracts that plaintiff alleges were breached (the renewed contract and the contract resulting from the 1977 Plan) do not exist, Asllani has not adequately pled that element of her claim. Plaintiff has not alleged that defendants' wrongful conduct caused the breach of her employment contract and count VIII is dismissed.

 Plaintiff's breach of contract claim (count VII) alleges that the defendants breached "both plaintiff's performance contract that Defendant Pickard Local School Council voted to extend to plaintiff on April 14, 1990 and the contract created by the 1977 Plan and its "Protective Principles." Because this court finds that the contracts to which plaintiff refers are non-existent, count VII is dismissed. Furthermore, because the 1980 Consent Decree superseded the 1977 Plan as to the Board's obligations under Title VI, count II, alleging violation of the 1977 Plan for Title VI, is also dismissed. *fn6"

  III. Section 1983 Claims

 Defendants argue that plaintiff's § 1983 claims are barred by the relevant statute of limitations because plaintiff filed her complaint in this action on July 1, 1992, more than two years after the alleged discriminatory acts. The statute of limitations begins to run when a reasonable plaintiff knew or should have known of facts that would support a charge of discrimination. Kuemmerlein v. Board of Education of the Madison Metropolitan School District, 894 F.2d 257, 261 (7th Cir. 1990). In determining when a cause of action accrues, the critical time is when the discriminatory act occurs, "not the point at which the consequences of the act become painful." Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (holding that the applicable limitations period began to run from the dates when the employees were notified that their appointments would terminate in the future, rather than from the dates of actual termination); Smith v. City of Chicago, 769 F.2d 408, 413 (7th Cir. 1985).

 Plaintiff's § 1983 claims center around Asllani's allegations that she was discriminated against when she was suspended, when defendants voted not to renew her employment contract and when she was terminated. The facts upon which plaintiff principally rely focus on defendants' decision to invalidate the Council's April 14, 1990 vote to renew her contract as well as their subsequent decision on April 25, 1990, not to renew her contract. Plaintiff was aware of her suspensions and the grounds for her suspensions. In fact, pre-suspension hearings were held and plaintiff participated in those hearings. More importantly, plaintiff admits that on May 17, 1990, she was informed that the Council had voted not to extend a contract to her. She also knew that it was the position of the Board that the meeting of April 14, 1990, was deemed to be illegal.

 Plaintiff does not dispute those facts, but argues that her claims were based on her termination. Asllani maintains that she did not know she was terminated until she went to her office on July 6, 1990 and was told that she was no longer the principal at Pickard School. Plaintiff's argument is without merit. Plaintiff admits that she knew the Council's decision not to renew her contract on May 17, 1990. The alleged violations which form the basis of plaintiff's § 1983 claims (the suspension, the non-renewal of her contract, etc), all occurred prior to July 1, 1990. She knew of those facts and must have known, or at least a reasonable person should have known, that she would not continue as principal after June 30, 1990. Since plaintiff's complaint was filed July 1, 1992, over two years after the alleged violations, plaintiff's § 1983 claims are time-barred and dismissed. *fn7"

 IV. Suspension and Termination for Political Reasons in Violation of 28 U.S.C. 1343

 In count XI, plaintiff claims that defendants conspired to terminate her because of her political affiliation, resulting in a violation of her civil rights under Title VII, the School Reform Act and the 1977 Plan. Asllani contends that this conspiracy is a violation of 28 U.S.C. § 1343. As defendants point out, section 1343 is a jurisdictional statute regarding the filing of civil rights claims and therefore cannot serve as a basis for plaintiff's cause of action.

 Although not clearly stated, count XI also attempts to allege that defendants violated plaintiff's first amendment right of free speech and association, by suspending and terminating plaintiff based on her race and political affiliation. Apparently plaintiff is alleging a § 1983 (or § 1985) claim based on defendants' alleged conspiracy to violate her first amendment rights. Assuming that to be the case, plaintiff's claim nevertheless fails since it is barred by the statute of limitations. (See discussion in Part III of this opinion). Count XI is dismissed.

 V. Other Issues

 A. Motion to Stay Proceedings

 Defendants request that this court stay the instant proceeding pending resolution of plaintiff's state court action. When parallel cases in federal and state courts cover the same issues, a district court may stay federal proceedings when exceptional circumstances exist. Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1287 (7th Cir. 1988). Before an action can be stayed, the court must determine that the state and federal proceedings are parallel. This means that substantially the same parties are contemporaneously litigating substantially the same issues in another forum. Id. at 1288. In determining if the cases are parallel, the court "looks not for formal symmetry between the two actions, but for a substantial likelihood that the state litigation will dispose of all claims presented in the federal case." Lumen Construction, Inc. v. Brant Construction Co., Inc., 780 F.2d 691, 695 (7th Cir. 1985).

 In plaintiff's complaint filed in state court, she names the Board, the Council, Principe, Kimbrough, Cortes and Engelskirchen as defendants. In the case now before us plaintiff names twenty-eight defendants, including the City, Pilsen and UNO -- who were not named in her state complaint. The addition of defendants, however, does not in itself destroy the parallel nature of the cases. Interstate Material, 847 F.2d at 1288. However, the issues presented in the two cases also differ. In her federal case, plaintiff raises at least five additional claims against defendants. *fn8"

 Again, abstention from the "exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation District et al. v. United States, 424 U.S. 800, 813 (1975). Although it is a close call, after a comparison of the federal and state complaints we find that the federal and state actions are not sufficiently parallel to warrant a stay of the proceedings.

 B. Issues Regarding Specific Defendants

 Defendants argue that the local school council has no capacity to be sued as a defendant and therefore should be dismissed from these proceedings. Local school councils are bodies created by the Illinois State Legislature pursuant to the Illinois School Reform Act. Ill.Ann. Stat. ch.122, P 34-2.1-2.3. The powers and duties of local school councils are defined and limited to those specifically stated in the statute. Defendants argue that because local school councils do not have exclusive authority to evaluate, terminate or extend performance contracts to principals under the Act, they are not policymaking boards with the capacity to be sued. The statute, however, states that one of the responsibilities of local school councils is to determine whether the principal's performance contract is to be renewed. Local school councils are therefore policymaking boards with respect to the renewal of principals' employment contracts. Defendants argue that local school councils are not policy making bodies because only the board has the power to ultimately approve principal's contracts and terminate for cause. The fact that a person does not become a principal until the Board approves her contract is of no consequence in plaintiff's case. Plaintiff's case rests almost entirely on the Council's decision not to renew her employment contract and, as stated above, that decision rests within the power of the Council. *fn9" The Pickard School local school council is a suable entity.

 In her complaint, plaintiff alleges that UNO and Solis conspired to violate § 1983 (count IV), tortiously interfered with her contract (count VIII), and conspired to suspend and terminate her for political reasons (count XI). This court has dismissed each of those counts and therefore it is unnecessary to discuss UNO and Solis' motion for summary judgment. Nevertheless, UNO and Solis have provided evidence demonstrating that they have not been involved in any activities involving Pickard School since at least 1988, and had no involvement in Asllani's suspension or termination. Defendants maintain that they pointed out these facts to plaintiff's counsel months ago. They argue that plaintiff failed to make a reasonable inquiry into whether or not her claims against UNO and Solis were well grounded in fact. Therefore, they request that costs and fees be awarded to them pursuant to Rule 11. Rule 11 sanctions will be considered after plaintiff has the opportunity to submit a memorandum to this court discussing what investigation was performed in order to make a reasonable inquiry into whether UNO and Solis were viable defendants.


 For the foregoing reasons, we dismiss the following claims against all parties: the § 1983 claims included in counts IV-VI, the contract claims (counts VII and VIII), the conspiracy claim (count XI) and plaintiff's claim alleging violation of the 1977 Plan (count II).


 Chief Judge, U.S. District Court

 March 29, 1993.

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