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Filar v. Board of Education of the City of Chicago

May 22, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 4679-Charles R. Norgle, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.


Before FLAUM, ROVNER, and SYKES, Circuit Judges.

Valerie T. Filar formerly taught as an untenured, full-time teacher in the Polish bilingual education department at the Edwin G. Foreman High School in Chicago. In 1999, the Board of Education of the City of Chicago, then known as the Chicago School Reform Board, approved a decision by Foreman's principal to change Filar's status from a full-time teacher at Foreman to a substitute teacher who would fill vacancies in other Chicago public schools as they arose. Filar, who was 69 at the time, objected to the decision for at least two reasons. In the first place, she suspected that Foreman's principal had deliberately retained younger teachers in the bilingual program at her expense. In addition, Filar's osteoarthritis and dependence on public transportation made getting to the city's various schools difficult, and the Board denied her request that she only be assigned to schools that were easily accessed from bus stops. This lawsuit followed, alleging age discrimination and that the Board failed to reasonably accommodate Filar's disability. The district court granted the Board's motions for summary judgment on both claims, and this appeal followed. For the reasons set out below, we reverse the district court's grant of summary judgment with respect to the age discrimination claim but affirm with respect to Filar's disability claim.

I. Background

Filar's claims stem in large measure from allegations that the principal of Foreman High School made questionable personnel decisions that resulted in her ouster from Foreman. Understanding these allegations requires some background on Illinois's bilingual education program and the (elaborate) mechanics of a principal's relationship with the teachers in her school. Illinois law requires the State's school districts to establish programs of transitional bilingual education for students of limited English-speaking ability. ILCS §§ 5/14C-1, C-3. To staff these programs, school districts offer a transitional bilingual teaching certificate to qualified individuals proficient in both English and a foreign language, known as a Type 29 certificate. ILCS § 5/14C-8. The Type 29 certificate is a bridge certification; teachers can teach students with limited English skills while working for a standard teaching certificate, which for secondary schools like Foreman is called a Type 09 certificate. Id.; see generally ILL. ADMIN. CODE tit. 23, § 25.90 (2008) (containing current qualifications). Once a teacher has attained the standard teaching certificate, she has to obtain both a bilingual "approval," which attests to her ability to provide a bilingual education, and "endorsements," which are descriptors like "Mathematics" or "Reading" that indicate the subject matters she is competent to teach. See, e.g., ILL. ADMIN. CODE tit. 23, § 25. app. E (listing representative endorsements as of July 1, 2004).

Even with the proper certifications, a would-be teacher in Illinois must still get hired, and not all teaching positions are the same. Public schools in Chicago employ several different categories of teacher, each with its own moniker and level of job stability. The most secure are tenured teachers, whom a principal can only remove for "cause." 105 ILCS 5/34-84. Below tenured teachers are tenure-track or "appointed" teachers who work full time with a particular class at a specific school, and, as their name suggests, can eventually obtain substantial job security. There are also at least two kinds of non-tenure-track teachers: "cadre" substitute teachers move from school to school to cover temporary vacancies on a daily basis; and full-time basis or "assigned" substitutes work at one school full time, just like tenure-track teachers only with less seniority and without the potential job security.

Principals have wide discretion in moving a school's teachers from a full-time basis position onto the tenure track. But how many full-time teachers a school can employ in a given year derives in large measure from the principal's available budget for the school year. Among other things, the annual budget from the Chicago Board of Education and the Budget Office lists how many positions the Board will fund in a given school year for each school program. In addition to Board-funded position, the principal may also have a certain number of teaching positions at his school funded by the State of Illinois. When the school does not have enough funded positions for all its teachers, the principal may have to "displace" unfunded teachers; that is, recategorize either tenure-track or full-time substitute teachers as "cadre" substitutes who must then fill vacancies in other city schools as they arise.

When that happens, the principal displaces teachers in reverse order of seniority. A less senior full-time basis substitute in a given subject or program will go before a more senior one; and a tenure-track teacher will not go until the principal has displaced all of the full-time basis substitutes. Although the principal possesses substantial authority to make personnel decisions, it's not absolute. The principal must first send a personnel request to the Board's Human Resources Department. There, someone determines whether the decision complies with the Chicago Teachers Union's collective bargaining agreement and whether the teacher has the requisite certifications. Then, based on these criteria, Human Resources either approves or denies the decision.

This case arises from the events immediately before and after Filar's displacement in 1999. Filar was born on January 11, 1930 in Poland. In 1991, she received her Type 29 certification and, the next year, Foreman's principal, Dr. John Garvey, hired her to teach Computers in the school's Polish bilingual program as a full-time basis substitute. Not long after he hired Filar in 1992, Dr. Garvey displaced her, although after Filar filed a grievance she was soon reinstated. While Filar was fighting her displacement in 1992 and 1993, Dr. Garvey hired two more teachers for the school's Polish bilingual program-Piotr Monaco (born in 1957) and Kornelia Rydberg (born in 1960)-both of whom had Type 29 certifications. In September 1997, Filar received her Type 09 standard teaching certification with endorsements in Accounting and Computers, and, a month later, she obtained her bilingual approval.

The parties dispute exactly when and how Dr. Garvey made the determination, but at some point in 1999 it became clear to him that the demand had fallen somewhat for bilingual Polish education due to a decrease in enrollment. In the school year beginning 1998, Foreman had five Board-funded positions for the Polish bilingual program; for the 1999 school year, it would lose one. What followed was a flurry of personnel decisions that would change the program and the employment status of the teachers. Two such decisions affected the other full-time substitute teachers then in the program. On July 23, 1999, Dr. Garvey sent a request to the Board that Monaco be appointed to a tenure-track position. Monaco had received his Type 09 certification in March 1999, but he had yet to receive his bilingual approval. And on September 3, 1999, two days after the school year began, Dr. Garvey sent a similar request that Rydberg be appointed to a tenure-track position. Rydberg had obtained her Type 09 certification on August 18, 1999, but also had yet to receive her bilingual approval.

On September 12, 1999, Dr. Garvey then slotted a new teacher into the Polish bilingual program when he requested that the Board move a tenure-track teacher, Helena Danielska (born in 1939), into the program.

Danielska had her Type 09 certification with an endorsement in mathematics and a Type 29 certificate with a Polish-bilingual endorsement. In moving Danielska into the program, Dr. Garvey moved Filar from a state-funded position to a Board-funded position and then put Danielska into Filar's old state-funded position. The Board approved the change on September 14. Finally, on September 15, Dr. Garvey hired Elaine Guzman as a tenure-track teacher to teach ESL Computers at Foreman. Guzman had the certifications needed to teach at elementary school but needed special permission to teach because she did not yet have the Type 09 certification to teach high school students.

As things stood on September 17, 1999, Filar was the only full-time basis substitute in the Polish bilingual program and she had moved from a state-funded position to a Board-funded position. That same day, Dr. Garvey informed Filar that he was displacing her to the cadre. Following her displacement, Filar reported to the Office of Culture and Language, the department in Chicago Public Schools that is responsible for administering bilingual programs. Filar claims that someone at OCL told her to return to Foreman because her position was not being closed. Filar then returned to Foreman and on September 27, 1999 she received a second letter from Dr. Garvey stating that she was being displaced to the cadre. After she received this second letter, Filar reported to the Board again and she was told to return to Foreman as a cadre substitute. But when she arrived, Dr. Garvey refused to accept her as a cadre substitute at Foreman, explaining later in his deposition that he was concerned over the bad blood from the displacement and the potential disruptive effect it might have on the school.

Filar then filed a grievance challenging her displacement. In December 1999, Dr. Garvey submitted a letter regarding his decision to displace Filar. He stated that he had displaced her because "she was the least senior member of the faculty in the Polish Bilingual Program" and the "decrease in enrollment in the Polish program necessitated a decrease in the staff. Ms. Filar was the only [full-time ...

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