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June 9, 2005.

BELINDA DUPUY, et al. Plaintiffs,

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Plaintiffs, a class of child care workers, won a preliminary injunction on certain due process claims against the Illinois Department of Children and Family Services ("DCFS"). See Dupuy v. McDonald, 141 F.Supp.2d 1090 (N.D. Ill. 2001) ("Dupuy I"), aff'd in part and rev'd in part, Dupuy v. Samuels, 397 F.3d 493 (7th Cir. 2005); Dupuy v. McDonald, No. 97 C 4199, 2003 WL 21557911, (N.D. Ill. July 10, 2003) ("July 10 Order") (setting forth terms of the injunctive relief). The Seventh Circuit largely affirmed this court's decisions but reversed on the issue of whether "career entrants" should be among those persons entitled to injunctive relief. The Court of Appeals directed this court, on remand, to develop a workable definition and procedures for career entrants. See Dupuy v. Samuels, 397 F.3d at 512.

In this opinion, the court addresses three pending motions; Plaintiffs' Motion for Further Necessary and Proper Relief, Based Upon Dupuy I Declaratory Judgment and Subsequent Relief Orders ("Further Relief Motion"); Plaintiffs' Motion for Relief Upon Remand, for Related Relief and for a Single Conference With the Court Pursuant to FED. R. CIV. P. 16 ("Remand Motion"); and Plaintiffs' Renewed Motion for Dupuy I Compliance Relief ("Compliance Motion"). In their Further Relief Motion, Plaintiffs seek modifications and additions to the injunctive relief ordered in Dupuy I and the July 10 Order. In the Remand Motion, Plaintiffs propose terms related to "career entrants" and request certain additional relief. Finally, in the Compliance Motion, Plaintiffs request an order directing DCFS to comply with this court's previous orders in three specific areas. For the reasons explained below, (1) the Further Relief Motion is denied; (2) the Remand Motion is granted in part and denied in part, as the court denies Plaintiffs' demands for further relief but adopts a definition of "career entrants" that draws on the proposals of both parties; and (3) the Compliance Motion is granted in part and denied in part.


  I. Motion for Further Relief

  In the Further Relief Motion, Plaintiffs seek four modifications: (1) an order enjoining DCFS from making "indicated" findings against child care employees at the telephonic Administrator's Conference when the investigator has recommended the allegations be unfounded; (2) an order enjoining the enforcement of Ill. ADMIN. CODE tit. 89, Part 336, § 336.110, under which DCFS can stay an expungement (post-deprivation) hearing while criminal or juvenile charges are pending against an indicated perpetrator; (3) an order extending Dupuy I expedited injunctive relief to tenured public school teachers; and (4) an order providing for automatic, self-executing expungement of an indicated report concerning any employee whose appeal from that report is not finally decided within 90 days of the employee's notice of appeal, a result Plaintiffs argue is required by the Illinois Supreme Court's decision in Lyon v. Dept. of Children and Family Servs., 209 Ill.2d 264, 807 N.E.2d 423 (2004). DCFS did not respond initially to the merits of these arguments; rather, DCFS argued that this court was without jurisdiction while Dupuy I was pending on appeal. (Defendant's Response to Plaintiffs' Motion for Further Necessary and Proper Relief, Based Upon Dupuy I Declaratory Judgment and Subsequent Relief Orders ("Def.'s Relief Response"), at 1-2.) As the case is no longer on appeal, this argument is now moot. Nonetheless, the court is prepared to rule on the Further Relief Motion without requesting a substantive written response from DCFS.

  A. Enjoining Indicated Findings at Administrative Conferences Where the Investigation Recommended a Report be "Unfounded."

  Plaintiffs seek an order enjoining DCFS from indicating findings against child care employees at an Administrator's Conference in cases where the investigator recommended the allegations be unfounded. In support of their argument, Plaintiffs describe a case in which DCFS indicated the owner of a day care center for medical neglect at an Administrator's Conference. (Further Relief Motion, at 4; Exs. 1, 2.) A seven-month-old child at the day care center suffered burns during a bath; after an investigation revealed that it was not the day care operator herself, but her daughter, who was bathing the child, the investigator recommended that the report against the owner be unfounded. (Further Relief Motion, Ex. 1.) Nonetheless, at the Administrator's Conference, DCFS indicated the owner for neglect because of a two-hour delay in obtaining treatment for the burn.*fn1 (Further Relief Motion, Ex. 2) Plaintiff argues that this case indicates DCFS's intent to use the Administrator's Conference as an "investigative sword" rather than a "shield" against violations of due process. (Further Relief Motion, at 5.)

  At a hearing on May 12, 2005, Plaintiffs indicated that they were no longer seeking an injunction, and that they would rather discuss this issue with DCFS directly. Accordingly, Plaintiffs' request is denied without prejudice. In any event, the court is unwilling to enter the proposed additional injunction based on this limited evidence in a single case. So far as this court is aware, there is no evidence that DCFS routinely indicates subjects at an Administrator's Conference over the contrary recommendations of its investigators. Nor does the court believe that alleged perpetrators will be likely to seek an Administrator's Conference in a case in which the investigator is recommending that no indicated finding be made. Absent evidence to the contrary, the court would not be inclined to grant further injunctive relief on this issue.

  B. Stay Rule

  Under ILL. ADMIN. CODE tit. 89, § 336.110 (hereinafter "Stay Rule"), DCFS stays an expungement appeal while "a criminal or juvenile court action is pending based on the same facts as the administrative expungement appeal." Plaintiffs argue that the Stay Rule is in direct conflict with this court's order that those child care employees who are entitled to expedited review must have their expungement hearings within 35 days, and with DCFS regulations affording other employees a hearing within 90 days. See Dupuy v. McDonald, 2003 WL 21557911, at *9; ILL. ADMIN. CODE tit. 89, § 336.220. (Further Relief Motion, at 6.) Plaintiffs relate the case of F.M., a tenured schoolteacher, who was suspended without pay for three-and-a-half years without an expungement hearing due to the Stay Rule. (Further Relief Motion, at 9.) In support of their position, Plaintiffs point to Jenkins v. Bowling, 691 F.2d 1225 (7th Cir. 1982). Jenkins was a class action brought against administrators of the Illinois unemployment insurance program, challenging a "held in abeyance" statute that postponed the receipt of any unemployment benefits for persons discharged for committing a felony or theft pending the resolution of legal proceedings arising from the crime. 691 F.2d at 1227. The Court of Appeals noted that federal law required prompt payment of such benefits to eligible recipients, or a prompt hearing if benefits were denied. Thus, denial of immediate benefits triggered the need for a hearing under federal law which the "held in abeyance" rule prevented. Id. at 1230. As the Illinois defendants offered no "good reasons" for deferring the hearing, other than the cost savings from relying on the results of a criminal trial hearing, the Seventh Circuit agreed with the district court that the rule was invalid. Id. at 1227-28.

  Plaintiffs argue that the case against the Stay Rule here is even stronger than against the "held in abeyance" provision in Jenkins because the conflicting federal right implicates a constitutionally protected liberty interest, rather than a mere statutory entitlement. (Further Relief Motion, at 8.) Plaintiffs also argue that unlike Jenkins, the DCFS expungement hearings are governed by court-ordered time limits; that fewer claimants were affected in Jenkins than here; and that unlike child care workers, Jenkins claimants could recover damages in the form of retroactive benefits.*fn2 (Id.) Plaintiffs' argument is not without merit. The Stay Rule certainly has the potential to deprive a child care worker of his or her due process right to a speedy expungement hearing. Following Jenkins, such a deprivation would render the Stay Rule constitutionally problematic. As a practical matter, however, the court cannot envision who, if anyone, would genuinely be adversely affected by the Stay Rule. In Jenkins, the entire class of plaintiffs challenged the "held in abeyance" provision; indeed, that issue was the whole point of the litigation. 691 F.2d at 1227. Here, in contrast, Plaintiffs identify only one individual, F.M., as having been harmed by the Stay Rule. DCFS indicated F.M., a public high school teacher, for sexual molestation, and disclosed the indicated finding to the school that employed F.M. on October 13, 2000. (Declaration of [F.M.]; Further Relief Motion, Ex. 6.) On November 1, 2000, the high school's superintendent recommended to the school board that F.M. be suspended; the board suspended F.M. on November 14, 2000 "based on criminal proceedings related to the DCFS allegations." (Id.) F.M. "started proceedings on [his] DCFS expungement appeal, but after [he] was charged criminally, the appeal was stayed."*fn3 (Id.) The criminal charges were "nolle prossed" on July 14, 2003, after which F.M. proceeded with his expungement appeal and succeeded in obtaining a decision expunging the report. (Id.)

  What is missing from this account is any declaration by F.M. that he sought or would have benefitted from an expungement hearing while the criminal charges remained pending. Individuals are, of course, free to make their own litigation decisions, but the court suspects that most persons facing criminal charges would be reluctant to make statements at an administrative proceeding that could be used against them in a criminal prosecution. More significantly, if a litigant elected to proceed and were successful at the expungement hearing, the court believes it is unlikely he would avoid the harm addressed in this litigation. A child care facility that refuses to employ a worker due to an indicated report of sexual molestation is likely to be equally unwilling to employ that individual while he is facing criminal charges.*fn4 Indeed, F.M. himself avers that his school suspended his employment because of the criminal proceedings, not because of the DCFS indication. (Declaration of F.M.; Further Relief Motion, Ex. 6.)

  Assuming that F.M. desired a prompt expungement hearing and would have had one, but for the operation of the Stay Rule, Plaintiffs have not satisfied the court that F.M. is an appropriate representative of a class. First, there is no evidence that any other Plaintiffs have been affected by the Stay Rule in this way, nor even any basis for the assumption that F.M. himself remained unemployed as a result of it. The fact that potentially very few persons would seek to proceed with their expungement hearing while facing criminal charges arguably means that the requested injunction would place no heavy burden on DCFS in providing such a hearing. The court is not prepared, however, to find a provision of state law unconstitutional or order any remedy without evidence that the challenged provision has caused, or will imminently cause, injury to class members. Cf. Friends of the Earth, Inc. v. Laidlaw Environmental Servs (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) ("[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.")

  Plaintiffs' request that the court enjoin the Stay Rule is denied without prejudice.

  C. Extending the Expedited Process to Schoolteachers

  In the July 10 Order, this court declined to extend the expedited review procedures to tenured schoolteachers. See Dupuy v. McDonald, 2003 WL 21557911, at *2. The court reasoned that Illinois law already provides due process to such employees in the form of a hearing, conducted by the teacher's school board, prior to termination. See 105 ILL. COMP. STAT. 5/24-12 (describing the process for pre-termination hearings). The Court of Appeals noted this court's determinations with respect to teachers, Dupuy v. Samuels, 397 F.3d at 501, but did not address the matter, and this court assumes that Plaintiffs did not raise it specifically on appeal.

  Plaintiffs claim now to have discovered that some school districts provide inadequate due process protection because they do not provide a hearing when a teacher is suspended without pay. (Further Relief Motion, at 13-14.) Plaintiffs again point to F.M., who was suspended without pay after an indicated finding, without any due process hearing being conducted by the Evergreen Park school board. (Id. at 13-14.) Plaintiffs also claim that the Chicago Public Schools provide inadequate due process because teachers are not permitted to call witnesses at a suspension hearing; that the Indian Prairie School District fails to specify in enough detail what process is due; and that Steger Public Schools do not allow a teacher to subpoena witnesses nor provide for appellate review of a suspension decision. (Id. at 14.) Because these districts fail to provide adequate due process protection themselves, Plaintiffs argue, this court should step in and provide the teachers with the same expedited due process relief afforded other child care employees. (Id. at 15.)

  Once again, however, Plaintiffs have not established a widespread problem that the court should address in this case against DCFS. Plaintiffs have cited a mere handful of school districts that may or may not be in violation of due process requirements.*fn5 Of these, an order for expedited relief would not even cure the alleged problem. For example, Plaintiff finds fault with Chicago Public Schools and Steger Public Schools for not allowing a teacher to call or subpoena witnesses; however, even those child care employees who are entitled to expedited review under Dupuy I cannot call or subpoena witnesses at an Administrator's Conference. See Dupuy v. McDonald, 2003 WL 21557911, at *7. Moreover, to the extent these districts fail to provide due process to their employees, or fail to comply with 105 ILL. COMP. STAT. 5/24-12, the appropriate remedial avenue is against these particular school districts. If, for example, Evergreen Park had attempted to avoid the required pre-termination hearing by suspending F.M. indefinitely instead of firing him, then F.M. could have sued the school board. See, e.g., Ceko v. Martin, 753 F. Supp. 1418, 1423 (N.D. Ill. 1990) (placement of police dispatcher on involuntary unpaid medical leave constitutes deprivation of protected property interest); Bauschard v. Martin, No. 91 C 7839, 1993 WL 79259, at *4 (N.D. Ill. Mar. 16, 1993) (placement of police officer on involuntary unpaid ...

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