                                  Illinois Official Reports

                                         Appellate Court



                       Crowley v. Board of Education of the City of Chicago,
                                    2014 IL App (1st) 130727




Appellate Court              JENIFER CROWLEY, Plaintiff-Appellant, v. THE BOARD OF
Caption                      EDUCATION OF THE CITY OF CHICAGO; DAVID VITALE,
                             President; JESSE RUIZ, Member; HENRY BIENEN, Member;
                             MAHILIA HINES, Member; DEBORAH H. QUAZZO, Member;
                             CARLOS ASCOITIA, Member; ANDREA ZOPP, Member;
                             BARBARA BYRD-BENNETT, Chief Executive Officer, and the
                             ILLINOIS STATE BOARD OF EDUCATION, Defendants-
                             Appellees.–DARLYN PRUITT, Plaintiff-Appellant, v. THE BOARD
                             OF EDUCATION OF THE CITY OF CHICAGO; DAVID VITALE,
                             President; JESSE RUIZ, Member; HENRY BIENEN, Member;
                             MAHILIA HINES, Member; DEBORAH H. QUAZZO, Member;
                             CARLOS ASCOITIA, Member; ANDREA ZOPP, Member;
                             BARBARA BYRD-BENNETT, Chief Executive Officer, and the
                             ILLINOIS STATE BOARD OF EDUCATION, Defendants-
                             Appellees.


District & No.               First District, First Division
                             Docket Nos. 1-13-0727, 1-13-1121 cons.


Filed                        March 31, 2014


Held                         Two Chicago school teachers were properly terminated for failing to
(Note: This syllabus         abide by the school board’s residency requirement, notwithstanding
constitutes no part of the   their contention that the residency requirement had become “stale”
opinion of the court but     and unenforceable due to the lack of vigorous and equal enforcement,
has been prepared by the     since employers may change from a lax enforcement policy to a
Reporter of Decisions        stricter policy when the change is made clear to the employees, as in
for the convenience of       the instant case where the board’s announcement of second warning
the reader.)                 resolutions negated any basis for relying on the past nonenforcement
                             policy, and under those circumstances, the termination proceedings
                             were not stale.
     Decision Under            Appeal from the Circuit Court of Cook County, Nos. 12-CH-10424,
     Review                    12-CH-29314; the Hon. Mary Lane Mikva and the Hon. Diane J.
                               Larsen, Judges, presiding.



     Judgment                  No. 1-13-0727, Affirmed.
                               No. 1-13-1121, Affirmed.


     Counsel on                Poltrock & Giampietro, of Chicago (Kurtis Hale, of counsel), for
     Appeal                    appellants.

                               Law Department of the Board of Education of the City of Chicago, of
                               Chicago (James L. Bebley and Lee Ann Lowder, of counsel), for
                               appellees.




     Panel                     JUSTICE DELORT delivered the judgment of the court, with opinion.
                               Justices Hoffman and Cunningham concurred in the judgment and
                               opinion.




                                                 OPINION

¶1         Residency requirements for public employees generate considerable litigation, usually
       involving highly fact-based disputes over whether an employee is a bona fide resident of the
       jurisdiction in question. These consolidated cases present an unusual spin on that pattern. The
       employees in question, teachers for the Chicago Board of Education (Board), 1 admit that
       they live outside of Chicago–in fact, outside of Cook County. Their main contentions here
       are that the Board’s residency requirement became “stale” and unenforceable because the
       Board failed to vigorously enforce it until recently, and the Board enforced the policy
       unequally. We agree with the circuit court judges who found otherwise and declared that the
       Board correctly terminated the teachers’ employment. We therefore affirm the judgments
       below.



             1
            Pursuant to section 2-1008(d) of the Illinois Code of Civil Procedure (735 ILCS 5/2-1008(d)
       (West 2010)) we have amended the caption to correctly reflect the current chief executive officer and
       members of the Chicago Board of Education. On our own motion, we hereby substitute them as parties
       as shown above.

                                                     -2-
¶2                                         BACKGROUND
¶3                                   Facts Common to Both Cases
¶4       The Board’s standing policy regarding employee residency states:
             “All employees hired on or about November 20, 1996, will be required to be actual
             residents of the City of Chicago within six months from the day their employment
             begins, except where the employee has been granted a waiver in accordance with the
             provision of this Policy.”
     The policy also provides that a teacher who violates the residency rule can be discharged if
     she fails to establish Chicago residency after receiving a warning resolution from the Board.
¶5       Waivers are governed by a different Board policy, which states, in part:
             “The Board may grant special needs waivers (‘special needs waivers’) of the
             residency requirement for new employees hired to positions designated by the Board
             as special needs positions. Special needs waivers provided for under this section may
             only be granted at the time of the employee’s hire and shall not be granted to existing
             employees except where the existing employee has been previously and continuously
             eligible for a waiver since the Board adopted the waiver policy on August 22, 2001.”
             (Emphasis added.)
     See generally Jones v. Board of Education of the City of Chicago, 2013 IL App (1st) 122437
     (discussing these policy provisions in the context of a teacher dismissal). Another policy
     provision states: “New employees must apply for a special needs waiver at the time of hire
     ***.” (Emphasis added.)
¶6       The Board gives teachers who violate the residency policy a warning resolution directing
     them to comply, and if they do not do so within 60 days, the Board can seek to dismiss them.
     The Board has adopted an “Employee Disclipline and Due Process Policy” (EDDPP) stating
     that the Board “will have waived its right” to discipline an employee if it: “does not take
     disciplinary action against [the] employee within a reasonable time after it knew or should
     have known of an alleged rule infraction.” The policy defines “unreasonable delay” 2 as “a
     period of time that renders it difficult or impossible to ascertain the truth of the matters in
     controversy or as to create a presumption that the conduct at issue was condoned by the
     Board.” The policy states that “[t]he date a final investigative report is served on the Board is
     the date the Board is presumed to have knowledge of the rule infraction.” It also provides
     that a “principal’s *** or department head’s failure to monitor compliance with this policy
     shall not relieve employees of their obligation to comply with the policy.”
¶7       In 2009, the Board began auditing its employee records for compliance with the
     residency requirement. The audit showed that the plaintiffs in these consolidated cases,
     Jenifer Crowley and Darlyn Pruitt, lived in Whiting, Indiana, and Bolingbrook, Illinois,
     respectively.
¶8       Both plaintiffs obtained formal administrative hearings before Illinois State Board of
     Education (ISBE) hearing officers regarding their proposed termination. Each admitted her
     nonresidency and neither challenged her termination on factual grounds. Their defenses

         2
          The “reasonable time” and “unreasonable delay” clauses are set forth in two sentences that directly
     follow each other in a single paragraph in the board policies. We deem them to be parallel terms even
     though they are phrased somewhat differently.

                                                    -3-
       rested, in large part, on evidence regarding the Board’s nonenforcement of the residency
       requirement as to two other particular Board employees. Both plaintiffs offered this evidence
       to support their argument that such favoritism rendered it unfair to enforce the policy against
       them.
¶9         The first such employee was Timothy Cawley, who was hired to be the Board’s acting
       chief administrative officer (CAO) on May 17, 2011, when he was not living in Chicago. The
       CAO position was not designated as a “special needs” position until the Board reclassified it
       on June 22, 2011, retroactively granted a one-year residency waiver to Cawley, and
       appointed him as permanent (i.e., not merely “acting”) CAO. This action came within the
       60-day “grace period” following Cawley’s hire as acting CAO.
¶ 10       The second, Daniel Coyne, was a social worker for the Board and lived in Evanston
       during his employment for the Board. Although he received a warning resolution in May
       2010 informing him of his possible violation of the residency policy, he was told there was a
       “due process mistake” regarding his residency notification and that the Board would be asked
       to grant him a waiver. Apparently, the Board first waived the residency requirement for all
       school social workers, but then reinstated it. The Board issued warning resolutions to the
       nonresident social workers such as Coyne, but later rescinded the resolutions after
       determining that they might be defective on due process grounds because the Board had
       failed to provide proper notification of the residency policy reinstatement to the social
       workers.
¶ 11       Thomas Krieger, a licensed attorney and the Board personnel administrator, testified in
       both hearings, providing the same basic testimony in each. He stated that Board records were
       historically kept in many different places and not reconciled with each other, resulting in
       discrepancies such as listing as many as eight different addresses for some employees. This
       information was so unreliable that it could not be used to initiate disciplinary proceedings.
       The Board implemented personnel records software, PeopleSoft, to modernize its operations
       and reconcile employee files, but its implementation was so fraught with errors that some
       employees were actually missing paychecks. It took until 2009 to resolve the issues regarding
       the software, and the Board then reprioritized its use to identify the employees who
       apparently lived outside of Chicago, had not obtained a waiver, and were not grandfathered
       under the residency policy. This process resulted in the identification of 900 employees, most
       of whom resolved their residency issues by providing updated information, and some of
       whom obtained waivers. In the end, the Board adopted warning resolutions as to 77
       nonresident tenured teachers, including Crowley and Pruitt. Krieger explained that a primary
       impetus for the Board’s enforcement of the residency policy was a budget crisis which
       precipitated the need for layoffs. The Board ramped up residency enforcement so that
       teachers living in the suburbs, rather than teachers who obeyed the Board policy, would be
       laid off first.

¶ 12                                 No. 1-13-0727–Jenifer Crowley
¶ 13       Plaintiff Jenifer Crowley was a tenured teacher who began working for the Board in
       1998. During the entire time she worked for the Board, she lived in Whiting, Indiana, and
       actually listed the Indiana address on official board documents. The Board sent six letters to
       Crowley in 1998 and 1999 notifying her that the six-month grace period would soon expire
       and that she must move to Chicago or face discharge.

                                                  -4-
¶ 14        In December 2004, Crowley received a warning resolution from the Board regarding her
       Indiana residency based in part on the 1998 and 1999 warning letters, and telling her she had
       60 days to move into the city or face termination. Crowley met with the Board’s inspector
       general regarding her residency in 2004, but the Board did not contact Crowley regarding her
       residency for the next six years until it reviewed the results of the residency audit. The Board
       eventually notified her of the residency violation by communications in January and
       February, 2010 and, after she failed to comply, adopted a second warning resolution later that
       year.
¶ 15        At Crowley’s ISBE hearing, Carver Elementary School principal Linda Randolph
       testified that she was required to maintain some racial balance when hiring teachers, and that
       because there were no available white teachers who lived in Chicago, she hired white
       candidates who lived in suburban areas and Indiana. Over the course of Crowley’s
       employment, Crowley asked Randolph about her Indiana residency, and Randolph wrote
       letters of appeal “to whoever was in power at that time.” Randolph could not identify to
       whom she sent the letters, and she received no responses. Crowley admitted that Randolph
       never told her “not to comply with the policy.”
¶ 16        Although Crowley pressed the issue of Coyne’s and Cawley’s residency, hearing officer
       Vicky Peterson-Cohen found it was not relevant. She did, however, rule in favor of Crowley
       on the basis that the Board had condoned Crowley’s failure to live in Chicago by waiting too
       long to enforce its policy. She determined that the Board’s termination of Crowley was
       “stale” under the EDDPP. In sum, she recommended that the Board rehire Crowley and make
       her whole for lost wages and benefits.
¶ 17        The Board rejected Peterson-Cohen’s recommendations. On February 22, 2012, the
       Board issued a detailed opinion acknowledging that staleness may bar termination
       proceedings. However, it found that the case was not “stale” in the sense that too much time
       had passed to locate missing witnesses or lost documents. No missing documents or
       witnesses were needed to shed light on whether Crowley lived outside Chicago–Crowley
       admitted as much. In fact, the Board noted that the evidence was “fresh and availing.”
¶ 18       The Board determined that Crowley’s staleness defense rested solely on whether a
       reasonable person in her position, exercising ordinary diligence, would be entitled to assume
       the Board had condoned her Indiana residency. The Board noted there was no evidence that
       anyone from the Board affirmatively assured Crowley that her conduct was condoned. The
       Board also stated that although prior enforcement of the residency policy might have been
       lax, labor law principles entitled it to strictly enforce it after giving clear notice of intent to do
       so through the second 2010 warning resolution.
¶ 19       Crowley filed a complaint for administrative review in the circuit court. The court
       affirmed the Board’s order and upheld Crowley’s termination. This appeal followed.

¶ 20                                    No. 1-13-1121–Darlyn Pruitt
¶ 21       When the Board hired Pruitt in 2001, she lived in Chicago. However, she moved to
       Bolingbrook in 2004 despite having acknowledged receipt of the Chicago residency policy
       by initialing it at the time of her hire. She worked at Lewis Elementary School and was never
       eligible for a special needs waiver. In January 2010, she communicated with a Board
       supervisor in connection with an investigation into her residency. On May 31, 2010, the


                                                     -5-
       Board issued her a warning resolution directing her to move into the city within 60 days or be
       dismissed. During this time, she explored various options for Chicago housing, but rejected
       them all as being too expensive or inconvenient.
¶ 22       At the ISBE hearing, evidence was admitted regarding Cawley and Coyne similar to that
       presented in Crowley’s hearing. Krieger also testified regarding the history of the Board’s
       implementation of the residency policy. Hearing officer Jeanne Charles Wood found there
       was insufficient cause to dismiss Pruitt because the Board applied the residency policy in an
       “arbitrary and capricious” manner. In so holding, she focused solely on the different
       treatment the Board had afforded CAO Cawley. She did not address the lower-level
       employee, Coyne, whom Pruitt had similarly proffered as an example of unequal
       enforcement, other than to note that due process implications had complicated the viability of
       his discharge proceedings. Wood found that Cawley’s retroactive special needs exemption
       was invalid because the Board could only grant such exemptions at the time of hire and could
       only grant waivers before an employee was hired. She also did not find that his initial
       designation merely as “acting” CAO made any difference. In sum, she essentially found that
       since the Board had not enforced its residency policy with punctilious exactness against
       every single employee, it could never apply it to any other employee.
¶ 23       The Board rejected Wood’s recommendations. On June 27, 2012, the Board issued a
       detailed opinion, similar to that in the Crowley case, finding that it had sent “many written
       notices” to Pruitt notifying her that she must move back into Chicago. The Board adopted
       Wood’s finding of fact that Pruitt lived in Bolingbrook but rejected her interpretation of the
       Cawley hiring, stating specifically that it granted Cawley a special needs waiver at the same
       time it appointed him as permanent CAO. The Board also noted that, when reviewing the
       special needs policy in context, it is “clear that new employees may apply for special needs
       waivers during the period of time when they are beginning their employment.” The Board
       also found that because the residency policy itself specified that an employee could apply for
       a special needs waiver “at the time of hire,” the policy could not be interpreted as requiring
       employees to actually obtain the waiver before they were hired–which was the underlying
       premise of Wood’s comparison of Pruitt and Cawley. On that point, the Board noted it had
       established a pattern and practice of granting residency waivers during the period
       immediately after an employee was hired, not just before or at the time of hiring. The Board
       also attacked the Cawley comparison on other grounds, finding that the marked difference
       between a classroom teacher and the single CAO serving the entire school system provided a
       rational basis for its differential treatment of the two employees.
¶ 24       Pruitt filed a complaint for administrative review in the circuit court. The court affirmed
       the Board’s order and upheld Pruitt’s termination. This appeal followed.

¶ 25                                     Arguments of the Parties
¶ 26       On appeal, both plaintiffs’ arguments track the rulings made by their respective hearing
       officers. Crowley contends that the Board was barred from terminating her because of the
       staleness provision, and Pruitt contends that her termination was unreasonable because of the
       Board’s failure to fire CAO Cawley and Coyne. Both also contend that nonresidency is not a
       sufficient cause to justify discharge of a teacher.



                                                  -6-
¶ 27                                            ANALYSIS
¶ 28        The standard for judicial review of administrative decisions, such as the Board’s orders of
       termination here, is well established. We review the administrative agency’s decision, not the
       trial court’s determination. XL Disposal Corp. v. Zehnder, 304 Ill. App. 3d 202, 207 (1999).
       The findings and conclusions of the administrative agency on questions of fact are held to be
       prima facie true and correct, and no new or additional evidence on the points at issue may be
       considered. 735 ILCS 5/3-110 (West 2002). On administrative review, the court does not
       reweigh evidence nor make an independent determination of the facts. Provena Covenant
       Medical Center v. Department of Revenue, 236 Ill. 2d 368, 386 (2010). “When an
       administrative agency’s factual findings are contested, the court will only ascertain whether
       such findings of fact are against the manifest weight of the evidence.” Id. at 386-87. If the
       only point in dispute is an agency’s conclusion on a point of law, the decision is subject to
       de novo review. Id. at 387. When the dispute concerns the legal effect of a given set of facts,
       such as when the facts and law are undisputed, and the issue is whether the facts satisfy the
       statutory standard, the case presents a “mixed question of law and fact,” and we review the
       agency’s decision under a clearly erroneous standard. Id.
¶ 29        Our review of an administrative agency’s decision to discharge an employee involves a
       two-step analysis. Siwek v. Police Board, 374 Ill. App. 3d 735 (2007). First, we determine if
       the agency’s factual findings are contrary to the manifest weight of the evidence. Kappel v.
       Police Board, 220 Ill. App. 3d 580, 588 (1991). Second, we must determine if the findings of
       fact provide a sufficient basis for the agency’s conclusion that cause for discharge exists. Id.
       at 588-89; Krocka v. Police Board, 327 Ill. App. 3d 36, 46 (2001). An administrative
       agency’s finding of “cause” for discharge is entitled to considerable deference and is to be
       overturned only if it is arbitrary and unreasonable or unrelated to the requirements of the
       service. Rodriguez v. Weis, 408 Ill. App. 3d 663, 668 (2011).
¶ 30        Cause for discharge can be found regardless of whether other employees have been
       disciplined differently. Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419,
       442 (1992). The mere fact that different individuals have been disciplined differently is not a
       basis for concluding that an agency’s disciplinary decision is unreasonable. Siwek, 374 Ill.
       App. 3d at 738. Additionally, exceptions may be validly made “ ‘where a rule is waived to
       afford more lenient treatment of a person.’ ” Mattoon Community School Unit School District
       No. 2 v. Illinois Educational Labor Relations Board, 193 Ill. App. 3d 875, 881 (1990)
       (quoting Stephen Breyer & Richard Stewart, Administrative Law and Regulatory Policy
       527-28 (2d ed. 1985)). Unequal treatment only becomes suspect if “the factual circumstances
       surrounding the discharge of other employees are sufficiently similar to the facts surrounding
       the discharge at issue to enable the reviewing court to perform a meaningful and informed
       comparison.” Rodriguez, 408 Ill. App. 3d at 668-69 (citing Launius, 151 Ill. 2d at 441-43).
¶ 31        A tenured Chicago public school teacher cannot be fired except “for cause.” 105 ILCS
       5/34-84 (West 2010). Tenured teachers must be given a written warning before dismissal
       proceedings are instituted. 105 ILCS 5/34-85 (West 2010). Failure to comply with the written
       warning can justify dismissal. Prato v. Vallas, 331 Ill. App. 3d 852, 862-63 (2002). The
       termination of a teacher is not clearly erroneous if it is based on the teacher’s failure to
       comply with the conditions, laws, policies and/or other requirements imposed for the
       protection of the school district. Ahmad v. Board of Education of the City of Chicago, 365 Ill.
       App. 3d 155 (2006).

                                                  -7-
¶ 32       The basic facts before us–that the plaintiffs violated the residency policy, and that the
       policy was not enforced against two other employees for particular reasons–are not in
       dispute. We must determine whether those facts justify discharge when reviewed under the
       applicable standards. This presents mixed issues of law and fact under which we must affirm
       the Board’s decisions unless they were clearly erroneous. Jones v. Board of Educationof the
       City of Chicago, 2013 IL App (1st) 122437, ¶ 26.
¶ 33       We find that the plaintiffs’ comparison of themselves to Cawley is particularly inapt.
       Cawley, as the CAO, was an at-will high-level employee not covered by a union contract.
       Like all top-level public administrators, he was subject to dismissal at any time, particularly
       when administrations changed and brought in their own leadership team. Pruitt and Crowley
       were tenured classroom teachers whose employment was governed by contract. It is
       elementary that the Board can apply different employment standards to the CAO of one of
       the nation’s largest school systems than its rank-and-file teachers. Similarly, it can establish
       different requirements for schoolteachers as opposed to social workers, and testimony
       explained why it had not yet completed termination proceedings against the social workers
       like Coyne. Additionally, we agree with the Board that its policies did not strictly limit the
       granting of waivers to the exact time of hire. Because the policy specifically stated that
       employees could apply for a waiver at the time of hire, it can be presumed that the waiver
       might not be awarded until some time after employee was already working–particularly
       during the window of time new nonresident employees were granted to move into Chicago as
       the result of an application made at the time they were hired.
¶ 34       We also find that the Board’s decision that the termination proceedings were not stale
       was not clearly erroneous. First, we note that, under the Board policy, the passage of time
       only gave rise to a presumption that the Board condoned the conduct. That presumption was
       clearly overcome by the evidence. Both employees engaged in a high-risk strategy of living
       outside Chicago and waiting for disciplinary proceedings to eventually commence while
       fully aware that their conduct violated Board policy. Most importantly, unlike the “one time”
       misconduct the staleness policy was obviously drafted to address, their nonresidency
       constituted a continuing violation of Board rules. In any event, the Board’s second warning
       resolutions in 2010 started the clock ticking again so as to obviate any possible reliance the
       employees might have had regarding the Board’s past nonenforcement of the residency
       policy. Employers are not estopped from moving from lax enforcement of employee conduct
       rules to more strict enforcement if the change is made clear to the employees and announced
       in advance. Western Dairymen Cooperative, Inc. v. Board of Review of the Industrial
       Comm’n, 684 P.2d 647, 649 (Utah 1984).
¶ 35       In their briefs before this court, plaintiffs contend for the first time that living outside
       Chicago was not sufficient cause for discharge. We find that plaintiffs forfeited this argument
       by failing to raise it below. Any issue that is not raised before the administrative agency,
       even constitutional issues that the agency lacks the authority to decide, will be forfeited by
       the party failing to raise the issue. Board of Education, Joliet Township High School District
       No. 204 v. Board of Education, Lincoln Way Community High School District No. 210, 231 Ill.
       2d 184, 205 (2008). Even so, an employee’s violation of a residency requirement is valid
       cause for discharge. Anderson v. Department of Public Property, 140 Ill. App. 3d 772, 778
       (1986). Additionally, residency requirements have been long upheld against constitutional
       attacks, on the bases that they promote community identity and stability, reduce local


                                                  -8-
       unemployment, and ensure that taxes paid by employees inure to the benefit of the
       employing governmental body. See, e.g., McCarthy v. Philadelphia Civil Service Comm’n,
       424 U.S. 645 (1976) (per curiam) (upholding residency requirement against a challenge
       based on the right to interstate travel); Detroit Police Officers Ass’n v. City of Detroit, 405
       U.S. 950 (1972) (dismissing challenge to residency rule for want of a substantial federal
       question); Fagiano v. Police Board, 98 Ill. 2d 277 (1983) (upholding residency requirement
       against vagueness challenge); Fedanzo v. City of Chicago, 333 Ill. App. 3d 339 (2002)
       (upholding residency requirement against privileges and immunities challenge).

¶ 36                                       CONCLUSION
¶ 37      For these reasons, we affirm the orders of the circuit court, which had affirmed the final
       decisions of the Board of Education of the City of Chicago terminating plaintiffs’
       employment.

¶ 38      No. 1-13-0727, Affirmed.
¶ 39      No. 1-13-1121, Affirmed.




                                                  -9-
