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June 18, 1996


Appeal from the Circuit Court of Cook County. The Honorable Thomas P. Durkin, Judge Presiding.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Scariano, J., concur.

The opinion of the court was delivered by: Divito

The Honorable Justice DiVITO delivered the opinion of the court:

On April 29, 1993, the Board of Education of the City of Chicago (Board) requested the dismissal of tenured teacher Denise Weed for conduct unbecoming a teacher and insubordination. Weed was suspended without pay effective that date. Following an administrative hearing before the Illinois State Board of Education, Weed was reinstated with back pay. On administrative review, the circuit court affirmed the decision of the hearing officer and awarded back pay without making deductions requested by the Board. In this appeal, the Board contends that the circuit court erred in affirming the hearing officer's findings that Weed was not unfit to teach and that the discharge was invalid on the basis of insubordination, and in not decreasing the back pay award. In addition to upholding the factual findings of the hearing officer and the circuit court about Weed's fitness and the damage award, we hold that a tenured teacher's refusal to request an unpaid medical leave of absence is not insubordination.

Weed was first employed by the Board as a teacher in April 1984. In September 1989, she was transferred to Montefiore School as a special education teacher. Her performance at Montefiore was rated as satisfactory by the school principal, Bernard Karlin, for the years 1989-90, 1990-91, and 1991-92. On June 3, 1992, Karlin submitted a written request to the Board that Weed be directed to undergo a complete medical examination. Pursuant to a directive from the general superintendent of schools, Weed was examined by Board staff psychiatrist Dr. Christel Lembke on June 15, 1992. Lembke determined that Weed was suffering from an underlying psychotic process of paranoia and was not able to function in a school setting as a teacher. The Board advised Weed to apply for a medical leave of absence. Weed requested a second examination. On July 8, 1992, Board staff psychiatrist Dr. John O'Donnell examined Weed and found her to have an underlying paranoid thought process and to be unfit to teach. Weed was again instructed to request a medical leave of absence. She sought a third examination, which was conducted by Board certified psychiatrist Dr. Jonathan Kelly. He diagnosed Weed as having a delusional disorder (persecutory type) and a paranoid personality disorder, according to the Diagnostic and Statistical Manual of Mental Disorders (3d rev. ed. 1987)(DSM-III-R) criteria, which impaired her capacity to function as a teacher.

Dr. Kelly's final report stated that he based his opinion upon a review of the psychological evaluations performed by Dr. Lembke, Dr. O'Donnell, and Dr. Eric Ostrov; *fn1 an examination he conducted; and interviews he held with several employees at Montefiore. Dr. Kelly related the substance of the interviews in his report. Karlin told him that Weed's performance had deteriorated, she was not accepting responsibility for her mistakes, she had difficulty dealing with authority figures, and she interpreted actions as threatening. Dr. Mary Ann Pollett, an administrator at Montefiore, told him that Weed was often late to class, disorganized, suspicious, distrustful, and angry. Leroy Holmes, a teacher at Montefiore, told him that Weed never had any psychological or mental problems, she had a personality clash with Karlin and Mr. Cashaw (the vice-principal), and Karlin and Cashaw were trying to get her fired. Irwin Fink, a child psychologist at Montefiore, told him that Weed did not exhibit any signs of depression, confusion, paranoid or suspicious thinking, or mental problems.

After Dr. Kelly made his report, Weed was advised to request an illness leave of absence. On February 25, 1993, having received no response, the Board adopted a warning resolution advising Weed that she was required to apply for an illness leave or face dismissal. Weed failed to comply with the warning resolution. On April 29, 1993, the Board adopted a request for her dismissal based on conduct unbecoming a teacher and insubordination, and suspended her without pay. On May 5, 1993, Weed requested a hearing.

On September 27, 1993, Weed sought an evaluation from psychiatrist Dr. David McNeil. After examining her and reviewing the four prior psychiatric evaluations, Dr. McNeil found that Weed did not meet the DSM-III-R diagnostic criteria for delusional disorder or paranoid personality disorder. His examination and review of the case materials did not reveal any delusions, *fn2 and he found evidence of only two of seven diagnostic criteria indicating a paranoid personality disorder, which requires the presence of four to warrant such a diagnosis. *fn3 Although Weed displayed some defensive characteristics, Dr. McNeil did not believe they would cause her to be ineffective as a teacher.

At the administrative hearing, Dr. Elaine Ferguson, the medical director of the Chicago public school system, testified that the Board does not have any written medical standards and that fitness for duty is determined on a case-by-case basis. Dr. Kelly testified about his findings and criticized Dr. McNeil's report for

containing insufficient corroboration through third-party interviews, inconsistencies, and an overwillingness to believe everything Weed told him. Dr. McNeil testified about his findings and criticized the reports of Dr. O'Donnell and Dr. Lembke for containing flawed methodologies and conclusions that were not based on supporting evidence. Neither Dr. O'Donnell nor Dr. Lembke testified. Their opinions were admitted into evidence for the limited purpose of showing the reasonableness of Karlin's belief that a medical examination of Weed was in order.

The administrative hearing officer found that the only salient factual dispute was whether Weed was suffering from a psychiatric disorder within the scope of DSM-III-R when she was declared mentally unfit. Concerning the delusional disorder diagnosis, the hearing officer stated that neither Dr. Kelly's report nor his testimony identified a specific delusion from which Weed suffered. Also, the hearing officer was unable to identify a delusion from a review of the record. Regarding the paranoid personality diagnosis, the hearing officer accepted Dr. McNeil's diagnosis over Dr. Kelly's. The hearing officer found that, other than a passage from an interview of Karlin, Dr. Kelly's report did not adequately specify facts that correlated to the diagnostic criteria for paranoid personality disorder. The relevant passage stated that Weed exhibited several paranoid characteristics. Yet, the hearing officer found that the passage virtually plagiarized DSM-III-R criteria numbers three through six, and he dismissed it as unreliable.

In sum, the hearing officer found that the Board failed to sustain its burden of proof that Weed was afflicted with a delusional disorder or a paranoid personality disorder at the time that she was declared medically unfit. After denying termination on grounds of insubordination, he ordered Weed to be reinstated with back pay.

The circuit court affirmed the decision of the hearing officer and heard the Board's motion for mitigation of damages. Weed testified, via affidavit, that during her two-year suspension without pay, she worked as a teaching aide or substitute teacher for three months, earning $1,545.64. She also applied for over 140 jobs, including positions as a special educator instructor, social work counselor, day care instructor, bank teller, mail clerk, secretary, bus driver, and casino worker. However, she did not find another job. The court found that Weed was reasonably diligent in ...

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