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Shreve v. Board of Education of Mt. Vernon High School District No. 201

Illinois Appellate Court


December 20, 1999

RONNIE O. SHREVE, PLAINTIFF-APPELLANT,
v.
THE BOARD OF EDUCATION OF MT. VERNON HIGH SCHOOL DISTRICT NO. 201; MICHAEL BEVIS, GLORIA FARRAR, JACK OVERSTREET, O.E. STIMSON, JOHN HALL, BETTY OLIVER, CLEO HOLT, GREG BACKES, DAN CROSS, PAUL GIAMANCO, AND ROB PIPHER, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE MT. VERNON HIGH SCHOOL DISTRICT NO. 201; DAVID A. LOEBACH, ACTING IN HIS OFFICIAL CAPACITY AS HEARING OFFICER IN THE CASE OF THE DISMISSAL OF PLAINTIFF, RONNIE O. SHREVE; THE ILLINOIS STATE BOARD OF EDUCATION; LOUIS MERVIS, SANDRA M. PELLEGRINO, SHARON GIST GILLIAM, CONNIE ROGERS, WILLIAM E. HILL, HARRY E. LITCHFIELD III, MARILYN MCCONACHIE, VINCENT SERRITELLA, AND JIM PALOS, IN THEIR OFFICIAL CAPACITY AS MEMBERS OF THE ILLINOIS STATE BOARD OF EDUCATION, DEFENDANTS-APPELLEES.

Appeal from Circuit Court of Sangamon County No. 98MR195 Honorable Donald M. Cadagin, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

Plaintiff Ronnie O. Shreve appeals from the order of the circuit court of Sangamon County reversing on administrative review the decision of a hearing officer of the Illinois State Board of Education (Board) that overturned plaintiff's dismissal as a teacher by the Board of Education of Mt. Vernon High School District No. 201 (District). The individual defendants include the hearing officer David A. Loebach, members of the District's board, and members of the Board. Plaintiff's complaint for administrative review (105 ILCS 5/24-12 (West 1996); 735 ILCS 5/3-101 through 3-113 (West 1996)) sought an order (1) directing the District to reinstate him in time for the 1998-99 school term and (2) remanding the cause to the hearing officer to address the question of damages. The District filed a counterclaim asking the circuit court to review the decision of the hearing officer as being against the manifest weight of the evidence and to reinstate the District's decision to dismiss plaintiff.

The issues on appeal are whether (1) the circuit court used the wrong standard of review; (2) the hearing officer's decision can be sustained because (a) he exceeded his authority by ordering lesser discipline; (b) the decision was against the manifest weight of the evidence because (i) the District failed to meet the standard for proving sexual harassment and did not sustain its burden of proof as to charge Nos. 1 and 2, or (ii) the hearing officer improperly admitted into evidence documents from 1989; (c) the portion of charge Nos. 1 and 2 found sustained by the hearing officer constituted irremediable conduct; (3) plaintiff's rights under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §12101 et seq. (1994 & Supp. III 1997)) were violated; and (4) this cause should be remanded for determination of damages for which the District is liable. We reverse the circuit court, reinstate the hearing officer's decision, and remand to the circuit court with directions.

The record in this case is voluminous. Because the parties and this court are familiar with the record, only those facts necessary for an understanding of this court's disposition will be discussed.

On December 19, 1994, the District acted to dismiss plaintiff from his contractual continued-service (tenured) teaching position at Mt. Vernon High School. Plaintiff requested a hearing pursuant to section 24-12 of the School Code (105 ILCS 5/24-12 (West 1994)). Pursuant to the procedures set forth in section 24-12, the parties selected and the Board appointed the hearing officer.

The District brought nine charges against plaintiff. The hearing officer found some of the allegations in charge Nos. 1 and 2, involving sexual harassment, proved. The District did not seek administrative review of the hearing officer's ruling as to the other charges, but challenged the hearing officer's finding as to remediability.

The hearing officer made the following findings of fact:

"1. [Plaintiff] did playfully and intentionally bump hips with a female student JF in the hallway while in route from the classroom, to a routinely used math computer lab.

2. [Plaintiff] did have a mandatory seating chart policy and did regularly mandatorily seat selected pretty girls in the front row, or within direct view of his desk.

3. [Plaintiff] does only have one natural eye, and the other, the left eye is a prosthetic glass eye.

4. [Plaintiff] did not ever discuss sex in a quid pro quo offer to any of the complaining female students. He did by action give students answers to gradable quiz and test questions. No evidence of explicit quid pro quo was substantiated in evidence.

5. Immoral allegations were not included in the manifest weight of the evidence against the [plaintiff]. They simply are not substantiated. Any implicit action in evidence originated and remained strong perceptions of the females self reporting victimization.

6. The [plaintiff] did have a pattern over the years of setting female students in front row and in the line of vision from the [plaintiff] teachers desk.

7. The [plaintiff] did touch hair and arm and the back of hands female students that he helped with math problem either at his desk or at the teachers desk.

8. The 'hostile environment' is a fact of perception testified to by the complaining female students, and does meet the standard of manifest weight of the evidence to establish that this perception existed in 93-94 and 94-95 School years these female students were in the [plaintiff's] classroom.

9. Some teaching methods do advocate touching as an effective method of 'getting students attention.'

10. [Plaintiff's] personnel file has neither a 'Notice to Remedy' relevant to the particulars charged, nor is there a notation in the [plaintiff's] personnel record and annual evaluations.

11. [Plaintiff] was never given a Notice to Remedy with respect to any of the type of matters contained in the charges and bill of particulars included by the School District #201 Board in its dismissal of the [plaintiff] on December 14, 1994, or thereafter by the Mt. Vernon Township High School Board Seconded [sic] Amended Charges or Bill of Particulars.

12. The School District has not shown that before it acted to dismiss the [plaintiff], it conducted an investigation nor has it shown it gathered information, nor presented a preponderance of evidence that the conduct of the dismissed handicapped certified school teacher [plaintiff] conduct could not have been corrected with the issuance of a proper 'Notice of Remedy.'"

The hearing officer concluded that a gender-hostile environment existed in plaintiff's math classes in school years 1993-94 and 1994-95, but the District did not dismiss plaintiff in accordance with the procedure of the School Code because, in the hearing officer's determination, no notice to remedy, summative evaluation warning of the problem, or "appropriate finding of irremediable conduct of a handicapped Illinois Certified School Teacher" was appropriately supported. Accordingly, the hearing officer found the District's decision to dismiss was procedurally flawed and reversed it.

Plaintiff's reply brief concedes that his argument that his rights under the ADA were violated is meritless. We agree. Plaintiff's monocular vision was not an excuse or justification for the alleged conduct. As a matter of law, the fact that the person alleged to have committed sexual harassment is handicapped does not defeat the claim of sexual harassment.

Plaintiff and the Board agree that the hearing officer's decision should be given deference on administrative review. The District argues that its decision of whether a teacher's conduct is remediable should be given deference, not the determination by the hearing officer.

Section 24-16 of the School Code provides for administrative review of "final administrative decisions of a hearing officer under Section 24-12 of this Article." 105 ILCS 5/24-16 (West 1996). No provision allows for administrative review of the school district's determination of remediability without a hearing as provided in section 24-12 of the School Code (105 ILCS 5/24-12 (West 1996)). The District's decision to terminate in this case is justified only by reference to evidence presented to the hearing officer, evidence that may or may not have been available to the District at the time of its decisions not to give plaintiff written warning to remedy his conduct and to dismiss plaintiff.

Section 24-16 of the School Code states that sections 3-101 through 3-113 of the Code of Civil Procedure, known as the Administrative Review Law (Review Law) (735 ILCS 5/3-101 through 3-113 (West 1996)), shall apply to and govern all proceedings instituted for the judicial review of a final decision of "a hearing officer." 105 ILCS 5/24-16 (West 1996). Administrative review by the courts extends to all questions of law and fact presented by the entire record on appeal, and the findings and conclusions of the "administrative agency" on questions of fact are held to be prima facie true and correct. 735 ILCS 5/3-110 (West 1996).

In construing statutes, the courts ascertain and give effect to the intent of the legislature. The language of the statute generally provides the best evidence of the legislature's intent, and where the language is clear and unambiguous, the plain and ordinary meaning of the words will be given effect without resorting to extrinsic aids for construction. Board of Education of Rockford School District No. 205 v. Illinois Educational Labor Relations Board, 165 Ill. 2d 80, 87, 649 N.E.2d 369, 372 (1995) (hereinafter Rockford). Absurd and unjust results are to be avoided. McMahan v. Industrial Comm'n, 183 Ill. 2d 499, 513-14, 702 N.E.2d 545, 552 (1998). When some uncertainty exists as to the meaning of the statute, related statutes are to be read together. Moscardini v. Neurosurg, S.C., 269 Ill. App. 3d 329, 333, 645 N.E.2d 1377, 1380 (1994). The legislature is presumed to know the case law and the decisions interpreting the statute. Burrell v. Southern Truss, 176 Ill. 2d 171, 176, 679 N.E.2d 1230, 1233 (1997), quoting People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147, 1153 (1994); In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 388, 604 N.E.2d 929, 933 (1992). The legislature may have intended to change the law by reason of its amendment to the statute. See People v. Woodard, 175 Ill. 2d 435, 444, 677 N.E.2d 935, 939 (1997) (a statutory amendment is presumed to have a purpose, which the court considers in light of the need for the amendment and the purpose it serves).

The agency referred to in section 3-110 of the Review Law is the same agency referred to in section 3-102 of the Review Law (735 ILCS 5/3-102 (West 1996)), i.e., the entity whose decisions had been expressly made subject to the Review Law. Here, that agency is the Board, whose hearing officer renders the decision. In light of the fact that the record fails to show the District making any findings and conclusions on questions of fact, it would be an absurd result to accord the deference in section 3-110 of the Review Law to the District's failure to provide a written warning of remedial conduct to plaintiff.

We agree with the analysis in Board of Education, School District No. 151 v. Illinois State Board of Education, 154 Ill. App. 3d 375, 381- 82, 507 N.E.2d 134, 138-39 (1987) (hereinafter District 151), which concluded, "Under the amended section 24-12 of the School Code, '[o]nly one decision based on the evidence submitted is provided for, and this is the decision of the appointed hearing officer.' [Citations.]"

Dismissal hearings before hearing officers are de novo proceedings at which the standard of proof on factual issues is the preponderance of the evidence. Board of Education of the City of Chicago v. Harris, 218 Ill. App. 3d 1017, 1024, 578 N.E.2d 1244, 1250 (1991) (hereinafter Harris). In Harris, the court distinguished most of the cases relied on by the District in this case as predating the present statutory system providing for an impartial hearing officer (including the Gilliland decision relied on by the circuit court in this case (Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622, 67 Ill. 2d 143, 153-54, 365 N.E.2d 322, 326-27 (1977)) or merely citing outmoded precedent without discussion or reliance. Harris, 218 Ill. App. 3d at 1023-24, 578 N.E.2d at 1249-50.

The District suggests that the Supreme Court of Illinois decision in Rockford supports the conclusion that deference is given to the District's decision of irremediability rather than to the hearing officer's decision. In Rockford, the court construed the Illinois Educational Labor Relations Act (Educational Labor Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1701 et seq.), and particularly section 10(b) of that act (Ill. Rev. Stat. 1989, ch. 48, par. 1710(b)), to determine if the giving of a notice to remedy by a school district pursuant to section 24-12 of the School Code violated a collective-bargaining agreement. The arbitrator found a violation of the collective-bargaining agreement by not according the teacher fair and equitable treatment and by acting against him without cause. Because the arbitrator's award was inconsistent with and in conflict with the School Code, it was not binding and could not be enforced under section 10(b) of the Educational Labor Act. In discussing sections 10-22.4 (Ill. Rev. Stat. 1989, ch. 122, par. 10-22.4) (the procedure for dismissing a tenured teacher) and 24-12 (Ill. Rev. Stat. 1989, ch. 122, par. 24-12) of the School Code, the Rockford court stated that the procedural requirements for dismissal incorporated the District's duty to initially determine whether the teacher's conduct was remediable, and as a corollary to the power to dismiss, the District had a duty to issue a "notice to remedy" under appropriate circumstances. Therefore, since the District there issued the notice to remedy within the confines of the School Code, allowing an arbitrator to decide whether the District acted with just cause was inconsistent and conflicted with the School Code. Rockford, 165 Ill. 2d at 91-92, 649 N.E.2d at 373-74.

Rockford deals with the interpretation of the School Code and its relationship to the Educational Labor Act. That is not the issue here. The Rockford decision does not suggest how the supreme court would resolve whether the District's determination of remediability should be given deference rather than the hearing officer's determination of that same issue.

This court agrees with the analysis in District 151 and Harris and adopts the position of the Board to give deference to the findings and conclusions of the hearing officer, including the issue of remediability.

This court reviews the administrative decision, not the circuit court's decision. Richard's Tire Co. v. Zehnder, 295 Ill. App. 3d 48, 56, 692 N.E.2d 360, 366 (1998). An administrative agency's decision will be reversed only if it is factually against the manifest weight of the evidence or if it is legally erroneous. Chicago & North Western Transportation Co. v. Illinois Commerce Comm'n, 230 Ill. App. 3d 812, 815, 596 N.E.2d 42, 44 (1992). Review of issues of law is de novo. Richard's Tire, 295 Ill. App. 3d at 56, 692 N.E.2d at 366. Determinations of witness credibility and the weight to be accorded the evidence are functions of the administrative agency (Iwanski v. Streamwood Police Pension Board, 232 Ill. App. 3d 180, 184, 596 N.E.2d 691, 694 (1992)), and this court will not reevaluate witness credibility (Board of Education of Round Lake Area Schools v. State Board of Education, 292 Ill. App. 3d 101, 109, 685 N.E.2d 412, 418 (1997)). Reversal of administrative findings is not justified merely because different reasonable inferences may have been drawn from the evidence or the reviewing court might have ruled differently. DeCastris v. State Employees Retirement System, 288 Ill. App. 3d 136, 143, 679 N.E.2d 825, 830 (1997).

The District mischaracterizes the hearing officer's decision as an attempt to impose a form of discipline other than dismissal and suggests that the hearing officer ordered "corrective discipline" and "reasonable accommodation." Although these terms were employed in the hearing officer's statement of facts to demonstrate that these conditions had not previously been provided to plaintiff in his employment setting, the hearing officer did not direct the District to do these things. In making his decision, the hearing officer correctly concluded that his authority was limited to (1) reinstating plaintiff with no loss of pay or (2) upholding the dismissal. See Combs v. Board of Education of Avon Center School District No. 47, 147 Ill. App. 3d 1092, 1099-1100, 498 N.E.2d 806, 811 (1986). The hearing officer had no discretion to impose discipline for plaintiff's conduct.

In this case, the hearing officer directed that plaintiff be reinstated. Contrary to the District's assertions, the hearing officer did not impose a lesser form of discipline in lieu of dismissal.

A tenured public school teacher may not be removed from employment except for cause. Fadler v. State Board of Education, 153 Ill. App. 3d 1024, 1026, 506 N.E.2d 640, 642 (1987) (hereinafter Fadler).

"'Cause' is some substantial shortcoming which renders continuance in employment detrimental to discipline and effectiveness of service; something which the law and sound public opinion recognize as a good reason for the teacher to no longer occupy his position. (102 Ill. App. 3d 741, 747, 430 N.E.2d 310, 314-15.)" Fadler, 153 Ill. App. 3d at 1026-27, 506 N.E.2d at 642-43.

Except as specifically provided by statute, rules promulgated by the Board define equal access to programs supported by school district funds and comparable programs. 105 ILCS 5/27-1 (West 1996). Under the Board's rules, no student shall be subjected to sexual intimidation or harassment by a school employee. 23 Ill. Adm. Code §200.50(f) (1999). "Sexual harassment" is defined as unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. 23 Ill. Adm. Code §200.10 (1999). "Sexual intimidation" is defined as any behavior, verbal or nonverbal, that has the effect of subjecting members of either sex to humiliation, embarrassment or discomfort because of their gender. 23 Ill. Adm. Code §200.10 (1999). In addition, federal statutes (Title IX) and regulations bar the exclusion from participation in, the denial of benefits of, or being subjected to gender discrimination under any academic or educational program operated by a recipient of federal financial assistance. 20 U.S.C. §1681(a) (1994); 34 C.F.R. §106.31(a) (1999). The District is a recipient of federal funds for Title IX purposes.

In this case, the charges consisted of allegations of sexual discrimination and immorality. The hearing officer found the first two charges proved. Those charges related to sexual harassment based on the hostile environment created by plaintiff's conduct toward female students.

In the school context, sexual harassment is discrimination. Title IX not only protects students from discrimination, but shields them from being excluded from participation in or being denied benefits of any educational program or activities receiving federal financial assistance. Physical exclusion need not be shown. The evidence is sufficient if it establishes that the sexual harassment was so severe, pervasive, and objectively offensive and undermined and detracted from the victim's educational experience that it effectively denied the victim equal access to the institution's resources and opportunities. Whether gender-oriented conduct amounts to harassment depends on the surrounding circumstances, expectations, and relationships, including the ages of the harasser and the victim and the number of individuals involved. Davis v. Monroe County Board of Education, ___ U.S. ___, ___, 143 L. Ed. 2d 839, 858-60, 119 S. Ct. 1661, 1674-76 (1999) (discussing principles announced in earlier employment discrimination cases Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 60, 106 S. Ct. 2399, 2405 (1986), and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82, 140 L. Ed. 2d 201, 208-09, 118 S. Ct. 998, 1003 (1998)).

Conduct that is merely annoying or offensive is not prohibited by the federal statute. See Pittman v. Continental Airlines, Inc., 35 F. Supp. 2d 434, 442 (E.D. Pa. 1999). To establish the existence of a hostile environment, there must be both (1) an objective showing that a reasonable person would find the environment hostile and abusive and (2) a subjective showing that the victim in fact found it hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 141 L. Ed. 2d 662, 676, 118 S. Ct. 2275, 2283 (1998).

The hearing officer concluded that the evidence established the existence of a "gender-hostile environment in [plaintiff's] Math classes in School years 93-94 and 94-95." The District had a policy and programs prohibiting sexual discrimination, which were included in the District's Student Parent Handbooks for school years 1993-94 and 1994- 95. In light of the evidence, the hearing officer reasonably found that the environment in plaintiff's classroom was abusive and hostile to a reasonable person. This conclusion, although not expressly stated, is implicit in the hearing officer's decision.

The testimony of the victims established that plaintiff's conduct was unwelcome. The hearing officer, as trier of fact, evaluates the credibility of witnesses, weighs the evidence, and draws reasonable inferences from the evidence. The record here contains sufficient evidence from which the hearing officer could reasonably find that plaintiff engaged in sexual harassment by creating a gender-hostile environment in his classroom. Thus, the evidence is sufficient to support charge Nos. 1 and 2.

To rebut plaintiff's contention that the complaining witnesses fabricated their stories, he was innocent, and he had never been warned previously of unacceptable sexual harassment, the District introduced evidence of similar occurrences and complaints in 1989. District exhibit Nos. 32 and 33 were interview notes of three students written by the then dean of students, Lowell Rose, and District exhibit No. 35 was the interview notes of plaintiff written by then principal Pat Garrett indicating Garrett warned plaintiff about his conduct toward female students. These documents were not made part of plaintiff's personnel file in 1989. During the pendency of the proceedings, on April 16, 1996, these documents were disclosed to plaintiff. Plaintiff filed a motion in limine, and at the hearing on the motion Garrett testified he found the documents on March 26, 1996, while cleaning his office. He explained these materials were apparently lost when he was promoted and moved from the principal's office to the superintendent's office. The hearing officer denied the motion in limine, finding that the records had not been intentionally excluded from the file by the District but had been lost. In addition, because plaintiff introduced expert testimony that there was no pattern, the District was allowed to introduce rebuttal testimony regarding the 1989 incident. One of the student complainants in 1989 (M.R.) was allowed to testify, and the notes of Rose and Garrett were admitted along with their testimony. The former student's testimony was that plaintiff exhibited the same type of behavior in 1988-89, involving staring, putting his face close to the girl's hair when he helped her at her desk, putting his hand on her shoulder or back, and playing with her hair. Three students made statements in 1989. Garrett recalled his discussions with plaintiff in 1989 about what was not appropriate for plaintiff to talk about in class, including excessive personal matters, divorce, and dating habits. Plaintiff told Garrett that he did not touch the girls on the shoulder, and if he did, it was inadvertent and innocent. Garrett testified that he put these notes aside to give plaintiff the opportunity to understand the seriousness of the charges and to see that they would not recur.

Plaintiff had a reasonable time to review the information. The hearing officer did not err in admitting the documents and testimony into evidence. See 820 ILCS 40/4 (West 1996).

We next address the necessity of remedial action or discharge. Section 24-12 of the School Code provides in part:

"Before setting a hearing on charges stemming from causes that are considered remediable, a board must give the teacher reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges ***." 105 ILCS 5/24-12 (West 1996).

The hearing officer pointed out that the District's determination that the conduct was irremediable, requiring no notice to remedy, may have been true if the District was able to prove charge Nos. 3 through 9. However, the hearing officer found that these more serious charges involving overt sexual harassment, immoral activity, and sexual solicitation were not proved. According to the hearing officer, what was proved, a hostile sexual environment, while serious, could have been dealt with procedurally with a notice to remedy, corrective discipline, and reasonable accommodation for the handicapped teacher. The hearing officer found, "Previously disconnected, irrelevant, and flawed growth and development plans designed and implemented to correctively discipline a teacher cannot be used in this instant case as demonstrated proof of irremediable behavior, thereby avoiding the procedural 'Notice to Remedy' step."

In Gilliland, 67 Ill. 2d at 153-54, 365 N.E.2d at 326-27, the court stated:

"The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher's superiors warned her. [Citation.] Uncorrected causes for dismissal which originally were remediable in nature can become irremediable if continued over a long period of time. [Citations.]

***

*** But many causes, when standing alone, may be remediable, whereas those same causes in combination with others may well be irremediable."

In this case, had the hearing officer found that the evidence of the hostile environment in plaintiff's classroom was detrimental to and damaged the complaining students in the school such that plaintiff's conduct was irremediable, that inference could have been upheld. However, the hearing officer found the conduct was remediable. Whether the conduct is remediable is a question of fact. Morris v. Board of Education of the City of Chicago, 96 Ill. App. 3d 405, 411, 421 N.E.2d 387, 392 (1981). Conduct may be deemed irremediable if it evidences a pattern of disrespect for school policy and insubordination to school personnel in the face of repeated attempts to persuade the teacher to follow established procedure and policy. McCutcheon v. Board of Education of the City of Chicago, 94 Ill. App. 3d 993, 998, 419 N.E.2d 451, 455 (1981). The refusal and failure for a long period of time to remedy conduct that was initially determined to be remedial may be considered irremediable conduct. deOliveira v. State Board of Education, 158 Ill. App. 3d 111, 121-22, 511 N.E.2d 172, 179 (1987).

In this case, much of the allegations of sexual harassment arguably stem from plaintiff's methods of disciplining students. Complainants state they were moved to the front of the room because they were pretty. Other evidence indicated they were moved to the front of the room because they were talking and disruptive. Complainants state that plaintiff's staring at them made them uncomfortable. Plaintiff, and other teachers, testified that some of the students in plaintiff's classes were those who did not stay on task and that staring at a student was a method employed to get a student back on task. Touching a student's arm or shoulder was another method employed to get a student's attention. Plaintiff's monocular vision may indeed have been a factor in any inadvertent contact he had with his students. The absence of a warning to plaintiff to correct his conduct and a plan implemented to assist him in correcting that conduct were factors considered by the hearing officer to determine that plaintiff had not been given a reasonable opportunity to amend his ways. The evidence showed similar complaints against plaintiff in 1989, but on that occasion, he was merely interviewed by the principal as to the accuracy of the allegations, no charges were brought, no notice to remedy was given, and no growth and development plan was implemented. The reports and records from 1989 were not considered important enough to be placed in plaintiff's personnel file and were "discovered" only after the proceedings in this case began. The District did not present evidence of similar occurrences in 1989 in its case in chief, but in rebuttal to challenge plaintiff's credibility.

The parties dispute whether the students in this case were damaged as a result of the conduct. The complainants testified they changed their hairstyles and began wearing baggy clothes to avoid looks from and comments by plaintiff. Some said they lost interest in mathematics and their grades suffered. Others said they got very good grades, but did not understand why. Some complained they were not disciplined as they should have been, and as other students were, for being tardy to class. The hearing officer determined that a warning to remedy the conduct and a program to assist plaintiff to modify his interaction with his students would be sufficient to rectify the situation and avoid the prospect of future sexual harassment by plaintiff. We note that many students and former students, male and female, testified plaintiff was a very good teacher. At a minimum, plaintiff needs to be educated concerning the type of behavior and comments that may be considered harassing.

A psychiatrist and a psychologist testified. In this case, the hearing officer did not give much credence to their testimony. The District's expert, Dr. Louise Fitzgerald, did not testify to her assessment of the psychological damage to any particular students based on her interviews of those students. Instead, she referred to their testimony and concluded that they could have suffered psychological damage, including depression. Plaintiff's expert, Dr. Michael Chiappetta, took issue with Fitzgerald's opinions, stating that the students' testimonies provided insufficient information concerning family history, social interactions, et cetera, to arrive at the conclusion of psychological damage to these complainants, especially depression.

This court does not condone sexual harassment in the classroom. Nor does a different standard as to sexual harassment apply when a teacher is handicapped by monocular vision. However, this court's review of the hearing officer's decision does not permit us to substitute our judgment for that of the hearing officer as trier of fact. Huff v. Rock Island County Sheriff's Merit Comm'n, 294 Ill. App. 3d 477, 485, 689 N.E.2d 1159, 1166 (1998). This is true even if we would have reached a different result had we been the trier of fact. The hearing officer's determination that plaintiff's conduct was remediable was not against the manifest weight of the evidence.

When conduct is remediable, the failure to give a written warning requires reversal of the teacher's dismissal. Hegener v. Board of Education of the City of Chicago, 208 Ill. App. 3d 701, 725, 567 N.E.2d 566, 582 (1991). As a result, the hearing officer did not err in reversing the District's decision to terminate plaintiff.

Plaintiff is entitled to a determination of damages. "If a decision of the hearing officer is adjudicated upon review or appeal in favor of the teacher, then the trial court shall order reinstatement and shall determine the amount for which the board is liable including but not limited to loss of income and costs incurred therein." 105 ILCS 5/24-12 (West 1996). The proper remedy is for the cause to be remanded to the circuit court for an order of reinstatement and a determination of damages. See District 151, 154 Ill. App. 3d at 384-85, 507 N.E.2d at 140. As the circuit court has not had an opportunity to consider the parties' arguments concerning the elements of damages, we decline to address those contentions.

The judgment of the circuit court of Sangamon County is reversed, the decision of the hearing officer is reinstated, and the cause is remanded to the circuit court with directions to enter an order of reinstatement and determine plaintiff's damages.

Reversed and hearing officer's decision reinstated; cause remanded with directions.

GARMAN, J., concurs.

STEIGMANN, J., dissents.

STEIGMANN, J., dissenting:

I respectfully dissent.

The hearing officer in this case made two separate, independent rulings. First, he made findings of fact regarding the District's allegations against plaintiff, concluding that the District had proved some of those allegations, including some involving sexual harassment. Among other findings, the hearing officer concluded that "a hostile environment was created at the school as a result of plaintiff's behavior."

Second, the hearing officer ruled that the District failed to show that plaintiff's conduct was irremediable. In so concluding, the hearing officer improperly considered that plaintiff was somehow "disabled" under the ADA because he had a glass eye. The majority states that plaintiff now concedes that this disability argument is meritless. The majority opinion accepts that concession, pointing out that plaintiff's monocular vision does not constitute an excuse or justification for his conduct. Nonetheless, the majority opinion affirms the hearing officer's flawed conclusion that plaintiff should be reinstated as a teacher.

The hearing officer's decision that plaintiff should be reinstated is flawed because it rests in substantial part upon the bogus ADA claim plaintiff raised at the hearing. That he now concedes the obvious--that this argument was bogus from the beginning--hardly undoes the fact that the hearing officer erroneously relied upon it when he reached his conclusion that plaintiff should be reinstated. Thus, although this court on administrative review should give deference to the hearing officer's factual determinations, we need not--and should not--defer to such rulings when, as here, they are based on a fundamentally flawed premise. Accordingly, this court should affirm the hearing officer's findings of fact and remand for further proceedings before the hearing officer, at which he would be directed to consider anew the appropriateness of the District's remedy without considering plaintiff's purported disability.

19991220


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