United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Wood United States District Judge
Bennett Sapia, Joel Passmore, and Annette Hall claim that
they were laid off from tenured positions as teachers for
Defendant Board of Education of the City of Chicago
(“Board”) without first receiving the benefit of
the procedures required for terminations of tenured
educators. Plaintiffs claim that the layoffs denied them due
process of law and they seek damages and declaratory relief
for themselves and a proposed class of similarly-situated
teachers. Now before the Court is the Board's motion to
dismiss Plaintiffs' first amended complaint
(“Complaint”) pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim for relief.
For the reasons discussed below, the Board's motion is
allege that they were all tenured teachers in the Board's
school system when they received layoff notices-Passmore in
July 2012, and Sapia and Hall in October 2012. (First Am.
Compl. ¶¶ 26, 47, 62, Dkt. No. 21.) They claim that
they had each received consistently good performance
evaluations during their careers but received
“Unsatisfactory” ratings shortly before they were
notified of their layoffs. (Id. ¶¶ 19, 22,
36, 46, 55, 59.) The parties do not dispute that in deciding
which teachers would be laid off, the Board looked first to
those with unsatisfactory ratings, including tenured
teachers, before considering others with less seniority and
assert that the Illinois School Code prohibits removal of
tenured teachers except for cause and also mandates specific
pre-termination evaluation and decision procedures plus
administrative review of any adverse decision. See
105 ILCS 5/34-85. By laying them off and exposing them to the
resulting stigma without providing them with the mandated
opportunity to vindicate themselves, Plaintiffs argue, the
Board denied them due process of law in violation of the
Fourteenth Amendment to the United States Constitution. Each
of the three counts of the Complaint asserts a version of
Plaintiffs' due process claim: Count I alleges
deprivation of due process based on the
“pre-termination rights of teachers;” Count II is
based on the “post-termination rights of
teachers;” and Count III claims a due process violation
based on injuries to Plaintiffs' reputations. Plaintiffs
seek relief under 42 U.S.C. § 1983 for damages from the
layoffs and to their reputations, the latter of which
allegedly have hindered their prospects for future
assessing the sufficiency of a complaint under Rule 12(b)(6),
this Court accepts all well-pleaded allegations as true and
views them in the light most favorable to the plaintiffs.
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011). The complaint must provide enough factual information
to state a claim that is plausible on its face and to raise a
right to relief above the speculative level. Doe v. Vill.
of Arlington Heights, 782 F.3d 911, 914 (7th Cir. 2015).
demonstrate a procedural due process violation based on
deprivation of a property right, a plaintiff must establish:
(1) a cognizable property interest; (2) a deprivation of that
property interest; and (3) a denial of due process. Khan
v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (citing
Hudson v. City of Chi., 374 F.3d 554, 559 (7th Cir.
2004). The Due Process Clause of the Fourteenth Amendment
protects but does not create substantive rights; those rights
must be established by other sources, such as contracts or
state law. O'Gorman v. City of Chi., 777 F.3d
885, 890 (7th Cir. 2015). Public employees have been held to
have a protected interest in their jobs if an identified
contract or statute creates a legitimate expectation of
continued employment. See Redd v. Nolan, 663 F.3d
287, 296 (7th Cir. 2011) (“To show a legitimate
expectation of continued employment under Illinois law that
could support a due process claim, [the plaintiff] must point
to a state law, an ordinance, a contract, or some other
understanding limiting [the defendant's] ability to
well-settled that the Illinois School Code affords tenured
teachers no expectation of continued employment in the face
of a layoff. See, e.g., Chi. Teachers Union,
Local No. 1 v. Bd. of Educ. of City of Chi., 963 N.E.2d
918, 924 (Ill. 2012); Land v. Bd. of Educ. of City of
Chi., 781 N.E.2d 249, 256 (Ill. 2002). Nor does the
statute afford tenured teachers a right to preferential
consideration for positions. Price v. Bd. of Educ. of
City of Chi., 755 F.3d 605, 609 (7th Cir. 2014). No
protectable due process property right is created by the
Illinois School Code in the layoff context.
any such right created by the operative collective bargaining
agreement between the Board and Plaintiffs' union.
Plaintiffs contend that the operative agreement for the
purpose of defining that right is a 2007 collective
bargaining agreement that by its own terms expired June 30,
2012-i.e., before any of the layoffs at issue. (2007
Collective Bargaining Agt., First Am. Compl. Ex D, Dkt. No.
21-4.) The successor agreement, effective July 1, 2012,
explicitly made teachers with unsatisfactory ratings,
regardless of tenure or seniority, first in the order of
those to be laid off. (2012 Collective Bargaining Agt. Appx.
H. at 273, Mot. to Dismiss Ex. D, Dkt. No.
25-4). Plaintiffs believe that the question of
which agreement governs this dispute should be determined by
the dates of their unsatisfactory performance ratings, and
they argue that their view regarding the application of the
2007 agreement must be accepted as true at the pleading
stage. But the Court is not bound to accept a pleader's
allegations regarding the effect of an exhibit and instead
may independently examine the document and reach its own
conclusions on its proper construction. Rosenblum v.
Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002).
With this lawsuit, Plaintiffs seek relief for layoffs that
occurred during the term of the 2012 agreement, not for their
original performance ratings. Since the 2012 agreement
explicitly allowed the layoff procedure at issue, it did not
create employment expectations violated by that procedure.
thus have failed to allege the existence of a right to
continued employment such that the Due Process Clause would
protect them against layoffs, and they further have failed to
state a sufficient claim for relief based upon injuries
caused by the use of their performance ratings to determine
their eligibility for layoffs. That failure does not conclude
the analysis of their complaint, however, as the case law
establishes the absence of a protectable property interest in
the context of layoffs, not discharges. As one court has
As [the] case law distinguishing discharges and layoffs makes
clear, it is then very important to determine whether a
tenured teacher's termination was motivated by a
performance-based reason or an economic one. The difference
determines whether process is “due” to that
teacher. If the reasons driving a layoff are economic, the
Board can consider employee performance and qualifications
when deciding whom to lay off. Indeed, section 34-18(31)
envisions that these factors would be relevant if the Board
formerly adopted layoff procedures. But if the Board is
targeting a tenured teacher solely for performance issues,
the teacher has a protected property interest under section
34-84 and is entitled to due process.
Ferkel v. Bd. of Educ. of City of Chi., 45 F.Supp.3d
824, 835 (N.D. Ill. 2014).
Board contends that there is no dispute that each Plaintiff
was laid off. But while the Complaint does indicate that each
Plaintiff's change in employment status was labeled a
“layoff” and Plaintiffs themselves frequently
adopt that label in describing what happened, other
allegations in the Complaint raise the inference that the
label was a disguise for other motives. Indeed, Plaintiffs
explicitly allege that the “layoff” label was a
“disguise” for terminations for cause. (First Am.
Compl. ¶¶ 5, 6, Dkt. No. 21.) Plaintiffs claim that
Sapia, after years of good performance ratings, was outspoken
in criticism of the principal at his school and given an
unsatisfactory rating shortly thereafter. (Id.
¶¶ 19-25.) They further allege that although the
reason given for Sapia's layoff was “low
enrollment, ” he actually had 35 students in his class
at the time he received his layoff notice and the school
posted an opening for a position teaching his subject one
month later. (Id. ¶¶ 27-29.) Similarly,
Plaintiffs claim that Passmore openly opposed a school
schedule change proposed by his principal, who was heard to
threaten that she could fire tenured teachers. (Id.
¶ 40.) Courts in this Circuit have recognized that a
tenured Illinois teacher's due process protection against
termination may be triggered by employment actions falsely
disguised as layoffs. See, e.g., Fennerty v. Bd.
of Educ. of City of Chi., 577 F. App'x 599, 600 (7th
Cir. 2014) (noting that the plaintiff teacher might have
stated a claim for violation of her due process rights had
she asserted that her purported layoff was actually a pretext
for the school board to discharge her in retaliation for her
union activity);Ferkel, 45 F.Supp.3d at ...