TIMOTHY J. BURGESS, Plaintiff-Appellant,
ILLINOIS STATE BOARD OF EDUCATION, BOARD OF EDUCATION OF OTTAWA TOWNSHIP HIGH SCHOOL DISTRICT NO. 140, and DANIELLE CARNE, in her official Capacity as Hearing Officer, Defendants-Appellees.
from the Circuit No. 15-MR-365 Court of the 13th Judicial
Circuit, La Salle County, Illinois. The Honorable Joseph P.
Hettel, Judge, presiding.
Attorneys for Appellant: Cardina F. Johnson, of Springfield,
Attorneys for Appellee: William F. Gleason, of Hauser Izzo,
Petrarca, Gleason & Stillman, LLC, of Flossmoor, for
appellee Board of Education of Ottawa Township High School
District No. 140.
JUSTICE McDADE delivered the judgment of the court, with
opinion. Justices Holdridge and Wright concurred in the
judgment and opinion.
1 In 2015, the plaintiff, Timothy J. Burgess, was dismissed
by defendant Board of Education of Ottawa Township High
School District No. 140 (OTHS Board) from his position as a
tenured teacher at Ottawa Township High School (OTHS).
Burgess appealed the decision to defendant Illinois State
Board of Education, 1 and defendant Danielle Carne was the
hearing officer assigned to review the case. Carne
recommended that Burgess be reinstated, but the OTHS Board
rejected Carne's recommendation and instead upheld
Burgess's dismissal. Burgess appealed to the circuit
court, which affirmed the OTHS Board's decision. Burgess
has now appealed to this court, arguing that (1) several of
the OTHS Board's findings were erroneous, (2) his conduct
did not constitute cause for dismissal, and (3) he did not
violate the notice to remedy in a clear and material manner.
We reverse and remand.
2 I. BACKGROUND
3 The following facts have largely been gathered from
testimony elicited at the hearing held upon Burgess's
appeal of his 2015 dismissal.
4 In 1989, Burgess began teaching at OTHS. At the time of his
dismissal in 2015, he was tenured, had been teaching physical
education, and had been serving as a strength and
conditioning coach. He received excellent ratings on each of
his last four teaching evaluations, which occurred in 2008,
2010, 2011, and 2013.
5 During his 26 years at OTHS, Burgess incurred three
disciplinary actions. The first action was taken on December
8, 1993. Burgess, who was an assistant basketball coach at
the time, had communication difficulties with the head
basketball coach, with whom Burgess was good friends. Burgess
had loaned $2000 to the head coach to cover a gambling debt.
After some time had passed without repayment, Burgess began
asking for the money back. The head coach always came up with
excuses and did not repay the debt. Eventually, the head
coach told Burgess 1Despite its inclusion as a party, the
Illinois State Board of Education played no substantive role
in the process that culminated in Burgess's dismissal.
Pursuant to statute, the local school board is the initial
decision maker, advocate before the hearing officer, and
reviewer of the hearing officer's recommendation. See 105
ILCS 5/24-12(d) (West 2014). he was not going to pay him
back, and their communications were strained from that point
on. A disciplinary letter was placed into Burgess's
permanent record, which in part referenced an unspecified
"unacceptable" incident that occurred on November
6 A second disciplinary action was taken against Burgess in
2002. On this occasion, Burgess had a dispute with the head
of the physical education department based on a mutual
misunderstanding of each other's schedules. Another
disciplinary letter was placed into Burgess's permanent
record, which in part directed him to "maintain [his]
professionalism and refrain from losing [his] temper in the
presence of students."
7 Burgess's third disciplinary action occurred in 2003 as
a result of his involvement in an incident with a parent of
an OTHS student who had been cut from the sophomore team by
another coach. On a day in September of that year, Burgess
was driving to school and was stopped at a controlled
intersection across the street from OTHS. He heard his last
name being called by someone across the street; when he
looked, it was the disgruntled parent. The man had a yellow
basket in his hand and was grabbing his crotch while asking
if Burgess "want[ed] some of this." Burgess called
from his car that the man should "take that yellow
basket and stick it up [his] a***." The man alleged that
Burgess told him to "[g]et a f*** life" and that
his comments were unprovoked. During the first hour of the
school day, as Burgess was taking his biology students to a
nearby park, the same parent was at the school's main
doors. The parent verbally accosted Burgess, which including
some yelling and screaming. Although Burgess did not respond,
another disciplinary letter was placed into his permanent
record, which in part directed him to avoid such
confrontations, walk away from such confrontations if they do
arise, conduct himself professionally at all times, and
conduct himself as a role model for students.
8 A. 2009 Tuition Waiver Issue, Teachers' Strike, and
Notice to Remedy
9 Six years later, in 2009, Burgess learned of a rule in
another school district that allowed teachers' children
to attend the school at which the parent worked, even though
the family did not live in that school district. Prior to the
beginning of the new school year, Burgess met with the
superintendent to discuss whether a similar rule could be
adopted so his daughter could attend OTHS tuition-free, even
though he lived outside of the school district in Utica. The
superintendent liked the idea and said he would try to get it
implemented. Because the deadline for the first semester of
2009 had already passed, the superintendent told Burgess that
he would have to move to Ottawa for a three- to four-month
period prior to the implementation of the change.
Subsequently, Burgess retained his house in Utica but got an
apartment in Ottawa so his daughter could attend OTHS.
10 Shortly thereafter, OTHS teachers went on strike after
negotiations broke down regarding a new contract. Burgess,
who was a strong proponent of the strike, served as a
spokesperson for the teachers' union and was on the
negotiations team. Other OTHS teachers, including Mark
Cartwright, Peter Marx, and Steve Doerrer, were opposed to
the strike, which by all accounts was bitter and divisive.
After the strike started, the superintendent passed away and
was replaced by Matt Winchester, who had been serving as OTHS
11 Burgess's tuition-waiver request was addressed by the
OTHS Board on December 14, 2009, and was unanimously
rejected. Burgess felt the rejection may have been
retaliation for the teachers' strike. Burgess verbally
berated the OTHS Board members immediately after the vote,
including calling one of the members a "phony,"
alleging that the vote was a reprisal for the strike,
deriding the vote as "crap," and asking Winchester
whether this was the way he was going to run the school.
Three days later, Burgess met with Winchester and several
other people and was informed that the OTHS Board was going
to consider issuing him a notice to remedy. Burgess again
called one of the OTHS Board members a "phony,"
stated that the Board president would lie because he was an
attorney, and called the entire OTHS Board "a bunch of
lying, filthy cheaters."
12 On December 22, 2009, the OTHS Board in fact issued
Burgess a notice to remedy. The letter stated, inter
alia, that Burgess's conduct following the OTHS
Board's denial was inappropriate and unprofessional. The
letter further noted his three prior disciplinary actions and
concluded that Burgess had "repeatedly displayed a
problem with anger management" during his employment by
OTHS. The OTHS Board also stated that Burgess's recent
conduct was grounds for dismissal unless remedied in the
following fashion: (1) "cease and desist from any
further displays of anger in front of staff, parents,
students, members of the Board of Education, or the public
with regard to any matter having a nexus to the school
district"; (2) "cease and desist from referring to
staff, parents, students or members of the Board of Education
in a derogatory, inappropriate or unprofessional
manner"; (3) "conduct yourself in a professional
manner at all times"; and (4) "conduct yourself as
a role model for OTHS students at all times." Finally,
the letter informed Burgess that a violation of any of those
directives would result in his dismissal.
13 Burgess filed an unfair labor practice complaint against
the OTHS Board based on the issuance of the notice to remedy.
After a hearing, an administrative law judge ruled against
Burgess and in favor of the OTHS Board.
14 B. September 2014 Union Meeting
15 In September 2014, a union meeting was held in an OTHS
choir room, which had tiered seating rows. It was generally
known prior to the meeting that Burgess was going to move for
a vote of no confidence in Superintendent Winchester.
Approximately 80 people attended the meeting, although not
everyone stayed until the end. Burgess was seated in one row
and Cartwright was seated in the row behind Burgess and
slightly to the right. During the meeting, exchanges occurred
between Burgess and Cartwright.
16 Burgess gave his account of those exchanges at a hearing
in 2015. Burgess moved for a vote of no confidence in
Winchester, and after the motion was seconded, Marx
interposed an objection. Discussion ensued about the proper
procedure for addressing both the motion and the objection.
It was decided that a vote would be taken, but some confusion
remained as to whether the vote would be on Burgess's
motion or Marx's objection. When Burgess sought
clarification, Cartwright told him to sit down and let the
union committee do its job. After a second request from
Burgess for clarification, Cartwright repeated his demand.
17 In Burgess's version, after a silent vote was taken in
which Marx's objection was defeated, Cartwright said that
he was tired of listening to Burgess's "s***"
for the last 11 years. Burgess responded that as a union
member he had the right to speak and that Cartwright should
pull his long hair over his ears so he would not have to
listen. Shortly thereafter, Cartwright said Burgess was
nothing but a "f*** pea brain." Doerrer, who was
seated in the row behind Cartwright, leaned toward Burgess
and said Burgess was all bark and no bite. Burgess responded,
"sit down little man, I'm not afraid of you."
Burgess stated that he was holding a file folder, and he
denied making a comment, as alleged, that he ought to slap
Cartwright upside the head. Although Marx's objection had
been defeated, no vote was taken on Burgess's motion.
18 Multiple witnesses in addition to Burgess testified at the
2015 hearing regarding the events at the September 2014 union
meeting. Cartwright testified that he told Burgess to let the
union committee do its job; that Burgess told Cartwright
twice that he did not like what Cartwright said; that he told
Burgess he had been listening to Burgess say things for 11
years and that Burgess responded "tough s***"; that
Burgess pointed a file folder at Cartwright; that Burgess
told him to get a haircut so he could hear; that he said
talking to Burgess was like talking to a "pea
brain"; that Burgess said "sit down, little
man" to someone; and that he "very clearly"
heard Burgess say "I ought to slap him upside the
head" twice. Cartwright denied directing vulgar language
at Burgess. Further, while he contemplated filing a complaint
and had some discussions related to such a filing with
Winchester and OTHS principal Michael Cushing, he ultimately
chose not to do so.
19 Doerrer testified that Cartwright raised his voice and
told Burgess to let the union committee do its job; that
Burgess made a comment about Cartwright's long hair
covering his ears; that he noticed an escalation in the
exchange such that he stood up and put his arm on
Cartwright's shoulder, and then Burgess told him,
"sit down, little guy"; that Burgess was red-faced
and waving a file folder; that Cartwright made a comment
about Burgess having a "pea brain"; that Burgess
said "if [Cartwright] calls me stupid again, I'm
going to smack him upside the head"; that Cartwright
made a comment about having to listen to Burgess for 11
years. Doerrer stated that Cartwright did not use any vulgar
language toward Burgess. Doerrer further testified that he
did not care about Burgess's opinions, but that he took
exception to Burgess's "aggressive hostile
attitude." He also stated that he had met with Marx
before the meeting to craft a strategy aimed at preventing
the no-confidence vote from going forward.
20 Marx testified that he heard Cartwright tell Burgess to
let the union committee do its job; that Burgess made a
comment about Cartwright's long hair preventing him from
being able to hear; that Cartwright called Burgess a
"pea brain"; that Burgess responded by saying he
ought to smack Cartwright upside the head; that Burgess was
waving a file folder; that Burgess made a comment about
Doerrer being a little man or little guy and told him to sit
down; that Doerrer leaned in when talking to Burgess; and
that he did not hear any comment about Cartwright being tired
of listening to Burgess. In addition, Marx denied working
with Doerrer on the plan aimed at blocking Burgess's
no-confidence vote, but he did admit talking to Doerrer prior
to the meeting about what he was planning to do. Marx also
testified that he coaches with Burgess and gets along with
21 OTHS teacher Brian Guenther testified that people were
generally afraid to speak up after the teachers' strike
for fear of retaliation, but Burgess was one of the
individuals not afraid to speak up. He also testified that he
heard Cartwright say that he was sick of listening to
Burgess's "s***"; that Burgess told Cartwright
to pull his hair over his ears so he did not have to hear;
that Cartwright loudly stated that Burgess had a brain the
size of a "f*** pea"; that Doerrer stood up and
told Burgess that he was all bark and no bite; that Burgess
told Doerrer, "sit down, little man. You don't scare
me"; and that he did not hear Burgess make any comment
about slapping Cartwright upside the head. Guenther was
approximately 8 to 10 feet away from Burgess and Cartwright
during their exchange.
22 OTHS teacher Joe Haywood testified that Doerrer told
Burgess, "sit down, a***," and that Cartwright
called Burgess a "f*** pea brain" and told him he
was being a "f*** a***." He could not recall
Burgess making any comment about slapping Cartwright upside
the head. Haywood was approximately 10 feet away from Burgess
and Cartwright during their exchange.
23 OTHS teacher Tracey O'Fallon testified that Cartwright
called Burgess a "f*** pea brain."
24 OTHS teacher Kevin Augenbaugh testified that Cartwright
told Burgess to sit down and shut up; that when Burgess asked
for clarification about the vote, Cartwright said,
"you're the only one that doesn't understand it,
pea brain"; that Burgess said to Cartwright he might be
able to understand Burgess if his hair was not covering his
ears; and that he did not hear any vulgar language used
during the exchanges. He did not hear Burgess make any
comment about slapping Cartwright upside the head. Augenbaugh
was between two and three feet away from Burgess and
Cartwright during their exchange.
25 OTHS teacher Mark Andrews testified that Cartwright told
Burgess to sit down and keep his mouth shut so the union
committee could do its job, that Burgess told Cartwright to
pull his hair over his ears so he did not have to hear what
Burgess had to say, and that Cartwright called Burgess a
"f*** pea brain." He did not hear Burgess make any
comment about slapping Cartwright upside the head. Andrews
was approximately six to eight feet away from Burgess and
Cartwright during their exchange.
26 OTHS counselor Kim Swords testified that Cartwright told
Burgess to sit down and shut up, that Cartwright called
Burgess a "f*** pea brain," and that Burgess told
Cartwright to put his hair behind his ears so hear better.
27 OTHS teacher Ryan Voitik testified that Cartwright called
Burgess a "pea brain" and said he talked too much
and that Burgess told Cartwright to move his hair so he could
28 C. November 2014 Union Meeting
29 In November 2014, another union meeting was held in an
OTHS choir room, at which a vote was scheduled to be held on
the no-confidence motion. Approximately 80 people were
present. During the meeting, an exchange took place between
Burgess and Doerrer. Several witnesses testified at the 2015
hearing on Burgess's dismissal regarding this exchange.
30 Burgess testified that the vote resulted in a 39-39 tie,
with three members abstaining. An additional vote was taken
on whether to make the results of the no-confidence vote
public. Burgess was in favor of making the results public.
However, the members who remained at the meeting for the
second vote ended up voting 27-12 to keep the results
private. After the meeting ended, Burgess was walking down
the stairs toward the front of the room. Doerrer approached
him and said you better not put the vote results on social
media. Burgess responded that he did not have any social
media presence. Doerrer then said he was going to ...