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Candace Harbaugh v. Board of Education of the City of Chicago

September 7, 2011


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff Candace Harbaugh ("Harbaugh") alleges that she was unlawfully terminated from her employment as a teacher by Defendant Board of Education of the City of Chicago (the "Board"). Harbaugh filed a four-count complaint in state court against the Board and its Chief Executive Officer*fn1 , which the Board subsequently removed to this court. She alleges that the Board's termination of her employment violated the Illinois Tenure Act; that she is entitled to a writ of mandamus under Illinois law; and that the Board's termination of her employment violated the Due Process clauses of the Federal and Illinois constitutions. Harbaugh seeks reinstatement with back pay, back benefits, and retroactive seniority.

Harbaugh and the Board have filed cross-motions for summary judgment. Harbaugh claims that because she was employed by the Board as a full-time teacher for the statutorily-required four years, she attained tenured status pursuant to the Illinois Tenure Act and was therefore entitled to notice and a hearing prior to termination. The Board contends that Harbaugh did not in fact achieve tenured status because during the first of the four years Harbaugh at issue, Harbaugh worked as a "full-time-basis substitute teacher," which was not a tenure-eligible position. Accordingly, the Board asserts, Harbaugh received all of the process she was due as a probationary teacher. For the reasons stated here, the Board's motion for summary judgment is granted and Harbaugh's motion for summary judgment is denied.


In July 2003, Harbaugh was hired as a music teacher at Blaine Elementary School in Chicago.*fn2 (Pl.'s 56.1(a) ¶¶ 5, 6.) Harbaugh worked at Blaine during the 2003-2004 and 2004-2005 school years. (Defs.' 56.1(a) ¶¶ 27-28.) Harbaugh's employment at Blaine was not renewed (Id. ¶ 29), but she obtained employment at Mather High School and worked there for the 2005-2006, 2006-2007, and 2007-2008 school years. (Defs.' 56.1(a) ¶ 7; Pl.'s Resp. ¶ 7.)

During the 2003-2004 school year at Blaine, the Board classified Harbaugh as a "full-time-basis" ("FTB") substitute teacher. (Pl.'s 56.1(a) ¶ 20.) FTB was the label that the Board, at that time, gave to a substitute teacher who was assigned full-time to a specific school. (Defs.' 56.1(a) ¶ 8.) The Board distinguished FTBs from the "day-to-day substitute teacher" category, with the latter category including all other substitute teachers who were not FTBs. (Id. ¶ 9.) Although Harbaugh had previously been a day-to-day substitute teacher on a substitute teaching certificate, beginning in 2003 at Blaine, Harbaugh taught as a full-time substitute teacher on a regular teaching certificate. (Id. ¶¶ 22-24, 27-28.)

In November 2003, Harbaugh received a letter from the Board's then-CEO, Arne Duncan, informing her that, pursuant to the terms of the proposed Union contract, effective July 1, 2004 "all regularly certified full-time basis (FTB) substitute teachers in vacant teaching positions not being held for teachers on leave will be classified as appointed (probationary) teachers. This appointment classification would immediately place such teachers on track to become tenured." (Id. ¶ 19.) The change in Harbaugh's status resulted from an agreement between the Board and the Chicago Teachers Union ("Union")*fn3 to eliminate the FTB category and introduce a new classification for teachers-"probationary appointed teachers" ("PATs"). (Id. ¶ 10.) Pursuant to that agreement, as of July 1, 2004, the FTB category was eliminated, and any employee labeled a FTB was reclassified as either a PAT or a temporarily assigned teacher ("TAT"). (Id. ¶¶ 11,12.) The Board appointed any qualified FTB who had been assigned to a vacant position on June 30, 2004 as a PAT in that position for the 2004-2005 school year. (Id. ¶ 13.) In his letter, Duncan explained that the change had been made because "[w]e believe that all regularly certified teachers working in our schools should be given proper recognition and a greater level of job protection." (Id. ¶ 19.)

In August 2004, Harbaugh received a letter from Ascencion V. Juarez, the Chief Human Resources Officer of the Board, notifying her that "effective July 1, 2004, your status as a full-time basis substitute teacher (FTB) was changed to that of a probationary appointed teacher (PAT)." (Id. ¶ 20.) The letter also explained that if Harbaugh remained a PAT for four consecutive school years, she would achieve tenured status. (Id.) Specifically, the letter explained that "[y]our probationary period began July 1, 2004, and must consist of four (4) consecutive complete school years of satisfactory service. . . . After four (4) complete school years of satisfactory service, PATs will attain tenure with the Chicago Public Schools at the start of the fifth year of appointment." (Id.) Harbaugh would therefore have been tenured had she remained as a PAT continuously until July 1, 2008.

Instead, however, in May 2008, the Board terminated Harbaugh's appointment, effective June 30, 2008. (Id. ¶ 11.) The Board did not provide Harbaugh with a hearing or other opportunity to contest the Board's decision. (Pl.'s 56.1(a) ¶¶ 12-14.) Without formally characterizing her termination as "for cause," the Board stated, in a letter from CEO Arne Duncan, that the reasons for Harbaugh's termination were her failure "to improve in setting and maintaining norms, standards, and established routines for student conduct" and her exhibition of "pedagogical differences with school philosophy."*fn4 (Pl.'s 56.1(a) ¶ 12; Defs.' 56.1(a) ¶ 33.) After her termination, Harbaugh was not reappointed to another full-time position with the Chicago Public Schools.


The court notes, first, the basis for its jurisdiction over this case. Plaintiff has raised several claims, including an allegation that Defendant violated her right to procedural due process by terminating her job without a hearing. A procedural due process violation occurs when someone acting under color of state law deprives the plaintiff of a protected property interest without due process of the law. Tenny v. Blagojevich, No. 10-3075, 10-3076, 10-3077, 10-3078, 10-3106, 10-3140, ___ F.3d ___, 2011 WL 3726281, at *2 (7th Cir. Aug. 25, 2011), citing Germano v. Winnebago County, 403 F.3d 926, 927 (7th Cir.2005). Whether a plaintiff has a property interest depends on whether she can make a "legitimate claim of entitlement" that is "defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Germano, 403 F.3d at 927. Whether Plaintiff Harbaugh is entitled to due process as a matter of federal law depends, then, on whether she has a protected interest in her continued employment as defined by state law.

Harbaugh contends she enjoys such a protected interest under the Illinois School Code. Harbaugh is correct that a teacher who has achieved tenured status under that Code has a protected property interest in her continued employment and is entitled to an opportunity to rebut any claim that her discharge is for cause. See Gleason v. Bd. of Educ. of the City of Chi., 792 F.2d 76, 79 (7th Cir. 1986) ("[A] tenured teacher . . . [has] a protectible property interest in continued employment . . . [, and] due process principles require that a public employee who has a protectible interest in continued employment . . . be afforded a meaningful opportunity to rebut dismissal charges brought by the employer."). Harbaugh's claim that she has earned tenure under the Code is the underpinning of all of her claims in this lawsuit. Her claim for denial of due process based on the Illinois Constitution similarly requires her to have achieved tenured status. Id. And, of course, to state a viable claim for termination in violation of the Tenure Act, Harbaugh must have attained tenured status. Cf. People ex rel. Thomas v. Bd. of Educ. of the City of Chi., 40 Ill. App. 2d 308, 317, 188 N.E.2d 237, 242 (1st Dist. 1963) ("There is no doubt that under sections 34-84 and 34-85 of the School Code [the provisions governing probationary employment] a hearing in connection with a probationary discharge is not required."). Finally, to be entitled to a writ of mandamus, a teacher must show that she was improperly removed, which, in this case, would also require Harbaugh to show that she had attained tenured status and was removed without regard to the procedures that protect tenured teachers. Piquard v. Bd. of Educ. of Pekin Cmty. High Sch. Dist. No. 303, 242 Ill. App. 3d 477, 481, 610 N.E.2d 757, 760 (3d Dist. 1993).

A determination of Plaintiff Harbaugh's right to any relief thus begins and ends with the question of whether she attained tenure pursuant to the Illinois Tenure Act. See Dargis v. Sheahan, 526 F.3d 981, 989-90 (7th Cir. 2008) (where plaintiff, who had a property interest in his job as a correctional officer, was placed on unpaid leave, district court's order directing sheriff to conduct a hearing was the appropriate remedy), citing Carey v. Piphus, 435 U.S. 247, 259 (1978). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In this case, the facts are undisputed. The parties' disagreement is on whether the facts support Plaintiff's claim to tenure protection as a matter of law.

In addressing this question, the court notes that "teacher tenure provisions of the School Code are in derogation of common-law and must be strictly construed in favor of the school district." Bart v. Bd. of Educ. of the City of Chi., 256 Ill. App. 3d 880, 883, 632 N.E.2d 39, 41 (1st Dist. 1993). The parties agree that Harbaugh's time as a day-to-day substitute does not factor into the required four-year period, a conclusion firmly buttressed by relevant case law. See Thomas, 40 Ill. App. 2d at 319, 188 N.E.2d at 243. The dispute here centers on whether the 2003-2004 school year, during which Harbaugh was employed as a FTB substitute, counts towards her completion of the four-year ...

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