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Burgess v. Illinois State Board of Education

Court of Appeals of Illinois, Third District

January 9, 2020

TIMOTHY J. BURGESS, Plaintiff-Appellant,
v.
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.

          Appeal 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, for appellant.

          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.

          OPINION

          McDADE, JUSTICE.

         ¶ 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 12, 1993.

         ¶ 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 principal.

         ¶ 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 him.

         ¶ 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 hear better.

         ¶ 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 ...


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