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August 28, 1997

JOAN H. KASTEL, Plaintiff,
THE WINNETKA BOARD OF EDUCATION, DISTRICT 36, d/b/a THE WINNETKA PUBLIC SCHOOLS, REBECCA VAN DER BOGERT, Superintendent of the Winnetka Public Schools, and EDWARD OGATA, M.D., President of District 36, Winnetka Board of Education, Defendants.

The opinion of the court was delivered by: CASTILLO

 This action involves a variety of claims all based on the defendants' failure to re-hire plaintiff Joan Kastel after her retirement in 1995. At this point in the litigation, four of the plaintiff's claims remain. Count I is an age discrimination claim brought under the ADEA, 29 U.S.C. ยง 621 et seq. Count II alleges that the defendants retaliated against Kastel because of her objections to their discriminatory treatment of her. Count VI is a breach of contract claim, and Count IX is a claim under the Illinois constitution's equal protection clause based on retaliation for the exercise of pension rights. The defendants have moved for summary judgment on all claims.


 Joan Kastel began working for the Winnetka school system in 1964, when she was thirty years old. She has a bachelor's degree and is certified in speech and language pathology. From all accounts, Kastel loved her work and was very good at it. Evaluations and letters indicate that Kastel was outstanding in her work with children and their parents. During the 1993-94 school year, Kastel was working as a full-time speech-language pathologist in the Greeley School, one of four elementary schools in the Winnetka public school system. The principal in that school was Sandy Karaganis.

 In 1993, the Illinois legislature enacted an early retirement incentive program for public school teachers and administrators, known as the "5" program--its provisions involved, among other things, extra pension credits accumulated over a five year period. Teachers and administrators over the age of 50 with certain minimum levels of service were permitted to take advantage of the 5 program during the 1993-94 and 1994-95 school years. Although other early retirement incentive programs were in effect before and after this period, the 5 program provided higher-than-usual incentives to retire.

 Joan Kastel met the eligibility requirements for the 5 program and, during the 1993-94 school year, became interested in retiring if she could continue to work in some capacity thereafter. When she mentioned her interest to her principal, Sandy Karaganis, Karaganis urged her to stay at the school at least through 1993-94. Kastel also spoke with the superintendent of the Winnetka school system at that time, Don Monroe, about continuing to teach after retiring under the 5 program. Monroe was experiencing some difficulty in accommodating the wishes of all of the teachers who wished to retire, because a large number of those interested in the 5 program wanted to continue working as long as possible before retiring, deferring the 5 acceptance until 1994-95. Monroe was one person short of reaching the number of people retiring during 1993-94 that would permit the deferral of the remaining retirements. In order to reach the necessary number of 1993-94 retirements, Monroe offered Nina Goldstein, a foreign languages teacher, a guarantee of five years of post-retirement part-time work if she would retire during the 1993-94 year. Goldstein accepted this offer. When Kastel spoke to Monroe about her own options, Monroe offered the same deal to Kastel. Kastel indicated to Monroe that she thought that she would be able to work part-time after retirement even without accepting Monroe's deal, and that she preferred to retire at the end of the 1994-95 school year. Monroe did not offer Kastel future part-time employment if she were to retire in 1994-95, but neither did he disabuse her of the notion that she might be able to gain such employment through her own efforts. Monroe himself took advantage of the 5 program and retired at the end of the 1993-94 school year.

 Kastel continued working full-time at the Greeley School during the 1994-95 school year. Early in 1995, she and her principal, Karaganis, began discussing ways that Kastel could work part-time after her retirement under the 5 program. Karaganis knew a speech-language pathologist named Ghita Lapidus whom she was eager to bring to Greeley, and she asked Kastel to meet with Lapidus to explore the possibility of sharing the position beginning the next fall. Kastel did meet with Lapidus, and early indications were that Kastel would indeed be able to work part-time after retiring, sharing her old position with Lapidus. In February 1995, Karaganis issued a school bulletin that noted, among other items, that teachers who chose to retire would be able to work up to 100 days or 500 hours annually in their current positions after retirement. Although the source of Karaganis' information is not clear, state law indeed permitted retirees to work part-time after their retirement under certain restrictions. See 40 ILCS 5/16-118.

 On February 16, 1995, Kastel wrote the new school superintendent, Becky van der Bogert, regarding her plans to retire and then return to work part-time. Kastel indicated that she planned to take 5 retirement at the end of the year, but that she would reconsider that decision if she could not work part-time thereafter. Van der Bogert, who was aware of four other teachers who wanted to pursue the same plan, told the principals of the five teachers that school board approval of their plans could not be assumed. At the same time, van der Bogert asked the school district's Business Manager, Shelley Clark, to prepare information on the five teachers' current salaries, the amounts that the district would have to pay into their retirement accounts when they selected the 5 program, their salaries if re-hired part-time, and the amount of money the district would save by hiring less experienced teachers instead.

  Van der Bogert presented this data, along with the five teachers' requests to continue working after retirement, to the school board in an executive session held in April 1995. The board discussed the matter among themselves and arrived at a consensus that none of the five teachers would be re-hired after their retirement. *fn2" No resolution on the subject was passed, and as no notes were kept of the executive sessions of the board, there is no written documentation of this decision. Board members, including then-President Ogata and then-Vice President (now President) Steve Adams, have testified that the board's decision was based on fiscal concerns, educational concerns (a stated preference for full-time employees, and an assumption that "continuity" could not be achieved if retirees were hired), and concerns for equity, i.e., treating all retirees alike. Immediately after the April 1995 meeting, van der Bogert advised the five teachers of the board's decision not to re-hire them.

 On May 31, 1995, van der Bogert received a letter from Kastel about her continuing desire to continue working after retiring. The letter stated that Kastel believed that "a commitment was made to employ [her] half time at Greeley for the 1995-96 school year," that she had accepted that offer, and had acted in reliance on it "in making plans for next year." Kastel also expressed her desire to submit an application for employment. Kastel had had a telephone conversation with van der Bogert the day before, in which Kastel had expressed her reluctance to stop working. Van der Bogert told her that she could continue working either full-time or part-time, but only if she did not retire under the 5 program. Kastel rejected this option and asked how to apply for post-retirement openings. Van der Bogert told her that there was no application form for speech-language pathologist positions, but that she could simply send in a cover letter and a resume. The May 31st letter, which was accompanied by a resume, was intended to serve as an application for part-time employment during the 1995-96 year. On June 20, 1995, van der Bogert wrote to Kastel, rejecting her application on the ground that there were no openings available. This was admittedly a "technicality," as van der Bogert had been told by Kastel that she would retire, thereby creating an opening, if she were permitted to continue working part-time afterwards.

 On June 21, 1995, Kastel wrote to the school board, requesting that the board reconsider its decision not to re-hire 5 retirees, at least as to her case, and asking for a meeting with the board. Ogata and Adams instead offered Kastel the opportunity to meet with them alone, which Kastel did in July 1995. After the meeting, Ogata and Adams recorded their impressions of the meeting, which included Kastel's parting statements indicating disappointment that the meeting had not led to a reconsideration of the merits of her proposal, and threatening that if her requests continued to fall on deaf ears she would "take this to the next level" with her attorney. Ogata and Adams told Kastel that they would bring her concerns before the entire board at the next meeting; it is not clear whether this occurred. On August 1, 1995, the last possible date on which Kastel could still elect retirement under the 5 program, she did so, tendering her resignation. She was 60 years old.

 During the 1995-96 school year, several part-time openings for speech-language pathologists occurred. Kastel did not re-apply for any of these, but her May 31 application was on file as to all of them. It is undisputed that she was not considered for any of these positions. In February, 1996, Kastel filed this suit. The defendants seek summary judgment on all remaining claims.


 Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In determining whether a genuine issue exists, the court "must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The nonmovant must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial" in order to withstand a motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 When determining whether factual issues exist, the court must view all evidence in the light most favorable to the nonmoving party, and draw all inferences in the nonmovant's favor. Wolf v. Buss, 77 F.3d 914, 918 (7th Cir. 1996); Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995). However, if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's ...

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