                                Illinois Official Reports

                                       Appellate Court



              Frakes v. Peoria School District No. 150, 2014 IL App (3d) 130306



Appellate Court           MICHELLE FRAKES and EYMARDE LAWLER, Plaintiffs-
Caption                   Appellants, v. PEORIA SCHOOL DISTRICT NO. 150, Defendant-
                          Appellee.


District & No.            Third District
                          Docket No. 3-13-0306


Filed                     June 20, 2014


Held                       Summary judgment was properly entered for defendant school district
(Note: This syllabus in an action alleging that plaintiffs were improperly terminated from
constitutes no part of the their positions as tenured teachers, since the record showed that
opinion of the court but plaintiffs had unsatisfactory performance evaluations during the
has been prepared by the 2011-12 school year, they both were placed on medical leave for
Reporter of Decisions health issues they had during the last part of the year, they never
for the convenience of returned to work, they were notified that they would be honorably
the reader.)               dismissed at the end of the 2011-12 school term due to a reduction in
                           force, and pursuant to section 24-12 of the School Code, they were
                           placed in “Group 2,” teachers who had unsatisfactory performance
                           evaluations, and as such, plaintiffs had no recall rights when the
                           district hired new teachers to replace plaintiffs for the 2012-13 school
                           year.




Decision Under            Appeal from the Circuit Court of Peoria County, No. 12-CH-577; the
Review                    Hon. Michael E. Brandt, Judge, presiding.



Judgment                  Affirmed.
     Counsel on               Gilbert Feldman (argued), of Cornfield & Feldman, of Chicago, for
     Appeal                   appellants.

                              Stanley B. Eisenhammer (argued) and Jeffrey C. Goelitz, both of
                              Hodges, Loizzi, Eisenhammer, Rodick & Kohn, LLP, of Arlington
                              Heights, for appellee.




     Panel                    JUSTICE CARTER delivered the judgment of the court, with opinion.
                              Justice Schmidt concurred in the judgment and opinion.
                              Justice Wright dissented, with opinion.




                                               OPINION

¶1         The plaintiffs, Michelle Frakes and Eymarde Lawler, filed a civil complaint for
       declaratory and injunctive relief, alleging that the defendant, Peoria School District No. 150,
       wrongfully terminated their employment as teachers. The parties filed cross-motions for
       summary judgment and, after a hearing, the circuit court granted the defendant school
       district’s motion. On appeal, the plaintiffs argue that the circuit court erred when it granted
       summary judgment in favor of the defendant school district. We affirm.

¶2                                                 FACTS
¶3         On September 4, 2012, the plaintiffs, who were tenured teachers, filed a civil complaint
       for declaratory and injunctive relief, alleging that the defendant school district wrongfully
       terminated them. The complaint alleged that the defendant school district advised the
       plaintiffs in April 2012 that it would be honorably dismissing the plaintiffs at the end of the
       2011-12 school term because the school board decided to undergo a reduction in force (RIF).
       The complaint also alleged that in July 2012 the defendant school district actually hired new
       teachers to replace the plaintiffs.
¶4         In its answer to the complaint, the defendant school district alleged an affirmative defense
       in that pursuant to section 24-12 of the Illinois School Code (Code) (105 ILCS 5/24-12 (West
       2012)), the plaintiffs had been placed into a group of teachers who had unsatisfactory
       performance evaluations (Group 2 under section 24-12(b) of the Code (105 ILCS 5/24-12(b)
       (West 2012))) and therefore were not entitled to recall rights for any positions that came
       available after the date of their dismissal.
¶5         The parties filed cross-motions for summary judgment. The pleadings stated that the
       plaintiffs had received performance evaluations during the 2011-12 school term that resulted
       in unsatisfactory ratings. The plaintiffs were to be placed into remediation procedures to
       address their performances, but before the remediation period could be commenced, both


                                                  -2-
       plaintiffs informed the school district that they had serious health issues that prevented their
       return to work. Accordingly, the plaintiffs were placed on medical leave for the rest of the
       2011-12 school term.
¶6          Attached to the defendant school district’s motion for summary judgment was an
       affidavit from Teri Dunn, who was the interim comptroller/treasurer for the school district.
       Dunn stated in her affidavit that the school district had “a very high student mobility rate,”
       which resulted in difficulty for the school district to predict accurate enrollment data for the
       upcoming school year until late June or July of each year. Further, Dunn stated that “[i]n the
       spring of the 2011-2012 School Year, the Board of Education was facing a RIF of full-time
       teachers due to uncertainty regarding funding and student enrollment.” Accordingly, 70 of
       the district’s 1,000 teachers were given dismissal notices, 16 of which were dismissed for
       cause and the other 54 were teachers who had been placed into Groups 1, 2, and 3 as
       described by section 24-12(b) of the Code (105 ILCS 5/24-12(b) (West 2012)). Later, during
       the summer of 2012, the school district received notice of its funding for the 2012-13 school
       year and it was able to determine accurate student enrollment numbers. Based on this
       information, the school district began to offer vacant teaching positions to those teachers
       dismissed at the end of the 2011-12 school term who had recall rights under the Code.
       Because the plaintiffs were in Group 2, they had no recall rights and were not offered any
       positions. The defendant school district filled some of the vacancies with new hires and some
       of its dismissed teachers from Group 1.
¶7          The circuit court held a hearing on the motions in April 2013. Subsequently, the court
       issued a written order in which it granted summary judgment in favor of the defendant school
       district. The court ruled that: (1) the plaintiffs were given proper notice of their impending
       dismissal pursuant to the RIF decision; (2) the plaintiffs were placed into Group 2 under
       section 24-12 of the Code, which included teachers who had received unsatisfactory
       performance evaluations; and (3) when the defendant school district learned that the funding
       it would receive for the 2012-13 school term would allow it to actually increase its
       workforce, the defendant school district followed the statutory process for rehiring, which
       included not rehiring teachers like the plaintiffs who had been placed into Group 2. The court
       also ruled that “[t]here is no support for the plaintiffs’ proposition that the 45-day notice for
       the reason of a RIF does not effectively dismiss the plaintiffs unless there is an actual
       reduction in work force the following year.” The plaintiffs appealed.

¶8                                              ANALYSIS
¶9         On appeal, the plaintiffs assert that the circuit court erred when it granted summary
       judgment in favor of the defendant school district. Specifically, the plaintiffs contend that
       because the defendant school district did not actually undergo a RIF for the 2012-13 school
       term, the defendant school district improperly dismissed them “on a whim.”
¶ 10       Initially, we note that the plaintiffs have not provided a report of proceedings with the
       record on appeal. It is the appellant’s burden to provide a reviewing court with a record
       sufficient to support claims of error, and any doubts that arise from the incompleteness of the
       record must be resolved against the appellant. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
       (1984).



                                                   -3-
¶ 11        Summary judgment is appropriate if the pleadings, depositions, admissions, and
       affidavits on file, when viewed in the light most favorable to the nonmoving party, reveal
       that no genuine issue of material fact exists and that the moving party is clearly entitled to a
       judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). Questions of law, such as
       the interpretation of a statute, are appropriate for resolution by summary judgment. Allegis
       Realty Investors v. Novak, 223 Ill. 2d 318, 330 (2006). “When, as in this case, parties file
       cross-motions for summary judgment, they concede the absence of a genuine issue of
       material fact and invite the court to decide the questions presented as a matter of law.”
       Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 755 (2005). However, we
       still recognize that even when cross-motions for summary judgment have been filed, a
       genuine issue of material fact may exist and a court is not obligated to grant summary
       judgment. Pielet v. Pielet, 2012 IL 112064, ¶ 28. We review a circuit court’s summary
       judgment decision under the de novo standard. Adams v. Northern Illinois Gas Co., 211 Ill. 2d
       32, 43 (2004).
¶ 12        When construing a statute, our goal is to ascertain and give effect to the legislature’s
       intent. Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago,
       2012 IL 112566, ¶ 15. We view the statute as a whole and give the language its plain and
       ordinary meaning, which is the most reliable indicator of the legislature’s intent. Id.
¶ 13        In relevant part, section 24-12(b) of the Code provides procedures for the dismissal of
       teachers pursuant to RIF decisions. 105 ILCS 5/24-12(b) (West 2012). In particular, when a
       school board decides to dismiss teachers pursuant to a RIF decision, those teachers must be
       categorized into four groups: (1) Group 1, which consists of “each teacher not in contractual
       continued service who has not received a performance evaluation rating”; (2) Group 2, which
       consists of “each teacher with a Needs Improvement or Unsatisfactory performance
       evaluation rating on either of the teacher’s last 2 performance evaluation ratings”; (3) Group
       3, which consists of “each teacher with a performance evaluation rating of at least
       Satisfactory or Proficient on both of the teacher’s last 2 performance evaluation ratings, if 2
       ratings are available, or on the teacher’s last performance evaluation rating, if only one rating
       is available, unless the teacher qualifies for placement into grouping 4”; and (4) Group 4,
       which consists of “each teacher whose last 2 performance evaluation ratings are Excellent
       and each teacher with 2 Excellent performance evaluation ratings out of the teacher’s last 3
       performance evaluation ratings with a third rating of Satisfactory or Proficient.” 105 ILCS
       5/24-12(b) (West 2012). Further, dismissals must occur in order of these groupings, with
       Group 1 teachers dismissed first, and Group 4 teachers dismissed last.1 105 ILCS 5/24-12(b)
       (West 2012).
¶ 14        Section 24-12(b) also addresses what must be done if any vacancies arise for the school
       term following a RIF decision, including, inter alia, that “the positions thereby becoming
       available must be tendered to the teachers so removed or dismissed [pursuant to the RIF]
       who were in groupings 3 or 4 of the sequence of dismissal and are qualified to hold the
       positions.” 105 ILCS 5/24-12(b) (West 2012).



           1
            The statute also provides hierarchies for dismissals within each group, but those hierarchies are not
       relevant to the disposition of this appeal.

                                                       -4-
¶ 15       Contrary to the plaintiffs’ argument, there is nothing in this statutory scheme to suggest
       that whether RIF dismissals are valid is contingent on the number of vacancies for the
       following school term. As the Dunn affidavit states, the school district in this case was faced
       with budgetary concerns in the spring of 2012 that they addressed by deciding to undergo a
       RIF. They did not know what funding or how many positions they would have until later that
       summer. Such a process is not condemned or prohibited by the statutory scheme, and it in
       fact appears to be contemplated by it. The statutory scheme specifically provides for what
       must occur if vacancies arise and does so without any suggestion that a RIF has not occurred
       if the net number of vacancies for the upcoming term meets or exceeds the number of
       dismissals from the previous term. 105 ILCS 5/24-12(b) (West 2012).
¶ 16       We also note that section 24-12(b) provides, as the plaintiffs properly point out, that
       Group 2 teachers do in fact have priority retention rights over Group 1 teachers. However,
       there is nothing in the Code to suggest that Group 2 teachers have any recall rights over
       Group 1 teachers. Section 24-12(b) clearly provides that if a school board has vacancies for
       the next school term, only teachers in Groups 3 and 4 have recall rights. 105 ILCS 5/24-12(b)
       (West 2012). The fact that the defendant school board may have hired some Group 1
       teachers, rather than Group 2 teachers, to fill vacancies for the 2012-13 school term is of no
       consequence in this case.
¶ 17       The plaintiffs further allege that the circuit court’s interpretation of section 24-12 of the
       Code essentially eliminates teacher tenure rights and allows a school board to dismiss
       tenured teachers “on a whim.” The plaintiffs state that “[e]limination of the requirement of an
       actual RIF enables a school board to give any and all tenured employees an unchallengeable
       unsatisfactory evaluation grade, which automatically places them in the unprotected Group
       2.” However, the plaintiffs ignore multiple aspects of the statute that militate against a school
       board’s potential to dismiss “on a whim,” including the fact that school boards do not
       conduct the performance evaluations (105 ILCS 5/24A-3 (West 2012)); the fact that the Code
       also provides remediation procedures for teachers who receive unsatisfactory evaluations
       (105 ILCS 5/24A-5 (West 2012)); and the fact that section 24-12 of the Code also provides
       procedures to review arguably questionable performance evaluations of senior teachers and
       public hearings can be required if dismissals based on economic reasons reach certain
       thresholds (105 ILCS 5/24-12(b), (c) (West 2012)). Thus, contrary to the plaintiffs’
       protestations, a school board cannot just “freely dismiss” tenured teachers.
¶ 18       Moreover, the amendment of section 24-12 in 2011 clearly made performance
       evaluations the focus of RIF procedures. See Pub. Act 97-8 (eff. June 13, 2011) (additions
       and deletions made to the Code). While tenure still affords some protection to teachers facing
       dismissal pursuant to a RIF decision, such as the order in which teachers within Groups 2-4
       are dismissed (105 ILCS 5/24-12(b) (West 2012)), tenure is no longer protective to the extent
       the plaintiffs allege.
¶ 19       We likewise reject the plaintiffs’ suggestion that their dismissal after receiving
       unsatisfactory evaluations effectively repeals the due process protections that sections 24-12
       and 24A afford to tenured teachers. First, as to the protections in section 24-12 referenced by
       the plaintiffs that apply to tenured teachers dismissed for cause (see 105 ILCS 5/24-12(d)
       (West 2012)), we note that the plaintiffs in this case were not dismissed for cause. They were
       dismissed as a result of a RIF decision, which was controlled by section 24-12(b), and there


                                                   -5-
       is no suggestion that treating tenured teachers differently based on the manner of their
       dismissal is erroneous (see, e.g., Chicago Teachers Union, 2012 IL 112566, ¶ 24 (noting that
       under section 24-12, tenured teachers who had evaluations of satisfactory or better, and who
       are then laid off, possess recall rights); Powell v. Jones, 56 Ill. 2d 70, 81 (1973) (“[i]n our
       judgment the qualitative differences between layoff and discharge are such that variances in
       procedure are constitutionally permissible”)).
¶ 20       Second, as to section 24A, the plaintiffs merely state the following:
                   “The statute, in Section 5/24A, retains the extensive due process rights of a
               tenured teacher who receives an unsatisfactory evaluation. Yet, if the school board
               can freely dismiss the teacher after the initial evaluation specified in the process, the
               effect is to repeal 5/24A.”
       The plaintiffs’ undeveloped argument is unpersuasive. Here, the plaintiffs were going to be
       placed into remediation plans in accord with the requirements of section 24A of the Code.
       However, before those plans could be implemented, the plaintiffs both went on medical leave
       for the remainder of the 2011-12 school term. There is nothing in this record to suggest that
       the plaintiffs were “freely dismiss[ed]” after receiving unsatisfactory evaluations or that the
       defendant school district violated section 24A when it dismissed the plaintiffs.
¶ 21       Under the circumstances of this case, we hold that the circuit court properly interpreted
       section 24-12 of the Code and did not err when it granted summary judgment in favor of the
       defendant school district.

¶ 22                                       CONCLUSION
¶ 23      The judgment of the circuit court of Peoria County is affirmed.

¶ 24      Affirmed.

¶ 25       JUSTICE WRIGHT, dissenting.
¶ 26       The defendant school district contends on appeal it was forced to reduce the number of
       teachers for the impending year, effective May 31, 2012. I respectfully submit the reduction
       in workforce was anticipatory at best and illusory at worst. Under either view, the purported
       reduction in workforce both began and ended during the students’ summer break.
¶ 27       Since the statute does not provide a definition or time frame to measure a reduction in
       work force, we must construe a statute to give effect to the legislature’s intent. Community
       Unit School District 200 v. Illinois Insurance Guaranty Fund, 358 Ill. App. 3d 1056, 1059
       (2005). I disagree that a true reduction in workforce, as contemplated by our lawmakers, can
       begin and end during summer vacation when teachers are not typically instructing students. I
       contend a reduction, in this case, must be determined by comparing the number of teachers
       employed by the school district on the first day of the 2012-13 school year to teachers
       employed by the school district for the 2011-12 school year. Unless the number of teachers
       goes down from one year to the next, a reduction has not occurred.
¶ 28       In this case, the school district anticipated a drastic loss of funding for the 2012-13 school
       year in good faith. However, the reduction in funding did not occur and the school board
       began the 2012-13 school year with the same number of, if not more, teachers. Consequently,

                                                   -6-
       the need for the school district to honorably discharge any teacher evaporated, prior to the
       inception of the 2012-13 school year and after funding became certain based on final
       enrollment information received before the 2012-13 school year began.
¶ 29       In my view, the pleadings did not establish the number of teachers for the 2012-13 school
       year was less than the number of teachers on May 31, 2012, the day of plaintiffs’ honorable
       discharge. Therefore, based on the pleadings in the case at bar, I would reverse summary
       judgment in favor of defendant school district and direct the trial court to enter summary
       judgment in favor of plaintiffs.
¶ 30       I suggest that when a decline in funds requires a reduction in staff from one year to the
       next, our legislators intended to allow the most qualified tenured teachers to be recalled first
       and the less-than-satisfactory tenured teachers to risk replacement with more suitable
       instructors for the upcoming school year. In this case, routine, but short-term, budgetary
       concerns pending final enrollment proved to be unfounded. A staff reduction did not take
       place, but less-tenured teachers were hired after plaintiffs were honorably discharged. In my
       view, without an actual reduction in the number of teachers, the statute does not allow the
       honorable discharge of any tenured teacher, including those with unsatisfactory evaluations. I
       note the plaintiffs received unsatisfactory ratings; however, there are other methods available
       for the school district to remove tenured teachers who are less than dedicated and performing
       on an unsatisfactory level in the classroom.




                                                  -7-
