                               Illinois Official Reports

                                       Appellate Court



        James v. Board of Education of the City of Chicago, 2015 IL App (1st) 141481



Appellate Court           RON JAMES, Petitioner, v. THE BOARD OF EDUCATION OF
Caption                   THE CITY OF CHICAGO, DAVID VITALE, President of the Board,
                          BARBARA BYRD-BENNETT, Chief Executive Officer of the
                          Board, JESSE RUIZ, HENRY BIENEN, MAHILIA HINES, PENNY
                          PRITZKER, ROD SIERRA, and ANDREA ZOPP, as Members of
                          The Board, ANNE WEILAND, Hearing Officer, and THE ILLINOIS
                          STATE BOARD OF EDUCATION, Respondents.


District & No.            First District, Sixth Division
                          Docket No. 1-14-1481


Filed                     February 6, 2015


Held                       The final administrative decision of the Chicago Board of Education
(Note: This syllabus resulting in the termination of petitioner’s employment as a tenured
constitutes no part of the high school teacher and coach was confirmed based on his conduct in
opinion of the court but pretending to throw a stapler at a disruptive student, who entered
has been prepared by the petitioner’s classroom cursing, but the stapler’s cover came off and
Reporter of Decisions flew across the room and struck the head of another student and
for the convenience of caused injuries requiring medical attention, notwithstanding the
the reader.)               hearing office’s suggestion of discipline short of discharge in view of
                           the fact that petitioner had no disciplinary record, was trusted and
                           respected, and the harm was purely accidental, since the Board
                           concluded that petitioner’s conduct harmed a student, supported a
                           finding of negligence, was grounds for discharge without a chance for
                           remediation, and did not require a written warning under the School
                           Code, and finally, the Board’s decision to dismiss petitioner without a
                           written warning was not clearly erroneous under the facts of the case.



Decision Under            Petition for review of order of Chicago Board of Education,
Review                    No. 14-0423-RS3.
     Judgment                 Confirmed.


     Counsel on               Kurtis Hale, of Poltrock & Poltrock, of Chicago, for petitioner.
     Appeal
                              James L. Bebley, General Counsel, and Lee Ann Lowder, both of
                              Chicago Board of Education Law Department, of Chicago, for
                              respondents.



     Panel                    PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                              court, with opinion.
                              Justice Lampkin concurred in the judgment and opinion.
                              Justice Hall dissented, with opinion.

                                                OPINION

¶1         The petitioner, Ron James, appeals from a final administrative decision of the Chicago
       Board of Education (the Board) which resulted in the termination of his employment as a
       tenured teacher at the Hyde Park Career Academy High School. For the reasons that follow, we
       confirm the decision of the Board.
¶2         On January 10, 2013, the petitioner pretended to throw a stapler at a disruptive student. The
       stapler detached from its cover, flew across the classroom, and struck another student’s head,
       requiring minor medical attention. As a result of the incident, the Board filed dismissal charges
       against the petitioner, alleging that he violated several terms of his employment, including
       refraining from negligent and incompetent conduct and avoiding physical contact with
       students.
¶3         On November 5, 2013, an administrative hearing before the Illinois State Board of
       Education was conducted at which the petitioner testified that he had been employed as a
       teacher with Chicago Public Schools (CPS) since 2005, currently teaching social studies and
       coaching the softball and football teams. He testified that he is a former football and baseball
       player himself. The petitioner had no history of any disciplinary actions against him.
¶4         Regarding the January 10, 2013, incident, the petitioner stated that a disruptive student
       entered his classroom at the end of his sixth-period class. The student was using vulgar
       language, demanding that another student retrieve a paper from his locker. The petitioner
       testified that he told the disruptive student to “stop cursing in my classroom” and “to get out”
       of the classroom. The student refused and continued cursing at which time the petitioner stated
       “don’t make me bust your head with this stapler.” The petitioner testified that he was “being
       playful” in order to get the disruptive student to behave. The petitioner then stood up and
       picked up the stapler which was on his desk.
¶5         The petitioner identified a similar stapler as the one he had on January 10, 2013. The top
       part had a plastic covering, and the bottom part of the stapler was metal. He testified that, when
       he “reached up as if” he was going to throw the stapler, “the stapler slid out of the [plastic]

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     sleeve” and hit another student, V.H., in the back of her head. He estimated that V.H. was
     standing about 7 to 10 feet away from him at the time. The petitioner immediately went to
     check on V.H., but she stated that she was not hurt.
¶6       On cross-examination, the petitioner denied that he intended to throw the stapler at the
     disruptive student. He admitted that a CPS investigator observed that the stapler had traveled a
     “pretty far distance” and that he responded by stating that he is “a pretty strong guy. I mean, the
     torque that I put on there with faking like I was throwing it was enough torque that it happened
     this way.” He also admitted that his method, “playful or not,” is not the “appropriate method as
     a teacher to modify a disruptive student’s behavior.”
¶7       D.H., one of the petitioner’s students who witnessed the incident, testified that the
     petitioner told a disruptive student to leave his classroom, and the student did not want to leave
     so the petitioner tried to scare him. According to D.H., “the stapler managed to come out of his
     hand and get thrown but it was an accident, and he didn’t mean to throw it.” D.H. was asked to
     demonstrate what occurred with the stapler, and the hearing officer described his
     demonstration for the record as follows: “D.H. has stood up, picked up the stapler in one hand,
     transferred it to another and raised it about shoulder height, and flicked his wrist with the
     stapler.” When asked how he knew that the stapler was launched “accidentally,” D.H. replied
     “[b]ecause [the petitioner] wouldn’t do anything like this.” D.H. described V.H. as
     “emotional” and “shocked” after she was hit with the stapler.
¶8       V.H. testified consistently with the petitioner and D.H. She stated that a disruptive student
     came into the petitioner’s classroom, “cursing, going crazy,” and the petitioner told the student
     to leave. V.H. stated that the student continued cursing and refused to leave, and the petitioner
     responded by telling the student: “get out of my classroom before I throw this stapler at you.”
     According to V.H., “everybody was laughing like we thought he was just joking.” However,
     after that, she was struck by the stapler in the back of her head. The petitioner immediately ran
     over to V.H., but she pushed him away and went to the dean’s office to get a late pass for her
     next class. While waiting in the dean’s office, V.H. noticed that her head was bleeding. She
     proceeded to the school nurse’s office and, later, her mother took her to the hospital, where she
     was given an ointment for the wound and released. V.H. testified that she experienced blurry
     vision in her right eye and headaches after being hit by the stapler. She also saw her family
     physician for her symptoms and has been diagnosed with cluster headaches. V.H. stated that
     she never suffered from cluster headaches before the stapler injury.
¶9       The hearing officer concluded, in relevant part, that the Board had proven, by a
     preponderance of the evidence, the dismissal charges set forth in charges 2, 3, and 8: that the
     petitioner failed to act in the manner of a reasonably prudent educator in the supervision of
     students (charge 2); that the petitioner negligently or incompetently performed an act in
     connection with his duties (charge 3); and conduct unbecoming a Chicago Public School
     teacher (charge 8). The hearing officer concluded that the petitioner “was negligent under the
     terms of 105 ILCS 5/34-85 and his conduct is deemed irremediable. No written warning is
     required prior to discharge under the code and the Board of Education is within its legal
     authority to discharge [the petitioner].” However, the hearing officer stated that the unusual
     facts of the case compelled her to urge the Board “to give consideration to modifying what it
     can legally do to a more nuanced and reasonable response.” Specifically, the hearing officer
     noted that the petitioner was a respected coach and teacher with six years’ tenure and no
     disciplinary record whatsoever. She also noted that the testimony of the petitioner’s students

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       showed that he was a trusted and respected teacher, and his testimony demonstrated sincere
       regret for his lapse in judgment which caused harm to V.H. According to the hearing officer,
       the “actual harm was purely accidental,” and she recommended “[s]ome discipline, short of
       discharge, at the Board’s discretion.”
¶ 10       On April 23, 2014, the Board issued resolution No. 14-0423-RS3 in which it accepted in
       part and rejected in part the hearing officer’s findings and conclusions and rejected her
       recommendation for disciplinary action short of discharge. Contrary to the hearing officer’s
       conclusion, the Board determined that it had also proven, by a preponderance of the evidence,
       the allegations in charge 1, that the petitioner failed to perform his duties. The Board accepted
       the hearing officer’s findings as to charges 2, 3, and 8, but disagreed with her finding that the
       actual harm caused to V.H. was “purely accidental,” noting that this finding was inconsistent
       with her finding that the petitioner was negligent. The Board determined that the harm caused
       by the petitioner’s conduct was reasonably foreseeable and supported the negligence finding.
¶ 11       The Board then concluded that negligent conduct that harms a student constitutes grounds
       for discharge without the opportunity for remediation under section 34-85 of the School Code
       (Code) (105 ILCS 5/34-85 (West 2012)). The Board also found that conduct that in any way
       causes psychological or physical harm or injury to a student also does not require a written
       warning under the Code. Therefore, the Board concluded that no written warning was required
       before discharge and, under the circumstances, dismissed the petitioner from his employment
       with CPS. The petitioner thereafter filed for review of the Board’s decision pursuant to Illinois
       Supreme Court Rule 335 (eff. Feb. 1, 1994).
¶ 12       This court’s review of the Board’s decision is governed by the Administrative Review Law
       (735 ILCS 5/3-101 et seq. (West 2012)). See 105 ILCS 5/34-85 (West 2012). The standard of
       review to be applied to the agency’s decision turns on whether the issue presented is a question
       of fact, a question of law, or a mixed question of law and fact. Board of Education of the City of
       Chicago v. Illinois Educational Labor Relations Board, 2014 IL App (1st) 130285, ¶ 19,
       appeal allowed (Ill. Nov. 26, 2014). We review an agency’s conclusion on a question of law
       de novo. Id.; City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205
       (1998). A decision involving a question of fact is afforded deference and will not be reversed
       unless it is against the manifest weight of the evidence. Id. “An administrative agency’s factual
       determinations are contrary to the manifest weight of evidence where the opposite conclusion
       is clearly evident.” City of Belvidere, 181 Ill. 2d at 204. Finally, a mixed question of law and
       fact asks the legal effect of a given set of facts, and we review an agency’s conclusion on such
       a mixed question using a clearly erroneous standard. Id. at 205.
¶ 13       Section 34-85 of the Code provides, in relevant part:
                    “(a) No teacher employed by the board of education shall (after serving the
                probationary period specified in Section 34-84) be removed except for cause. ***
                    Before service of notice of charges on account of causes that may be deemed to be
                remediable, the teacher or principal must be given reasonable warning in writing,
                stating specifically the causes that, if not removed, may result in charges ***. No
                written warning shall be required for conduct on the part of a teacher or principal that is
                cruel, immoral, negligent, or criminal or that in any way causes psychological or
                physical harm or injury to a student, as that conduct is deemed to be irremediable.”
                (Emphases added.) 105 ILCS 5/34-85 (West 2012).


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¶ 14       In his first contention of error, the petitioner argues that the Board’s negligence finding is
       against the manifest weight of the evidence. The petitioner does not dispute the factual findings
       that: he pretended to throw the stapler; the stapler detached from its plastic cover; and the
       stapler flew across the room, striking and injuring V.H.’s head. Rather, he maintains only that
       it was not reasonably foreseeable that the stapler would have detached from its plastic cover
       and struck a student. As this presents a question of fact, we review the Board’s determination
       using the manifest weight of the evidence standard. Board of Education of the City of Chicago,
       2014 IL App (1st) 130285, ¶ 19.
¶ 15       In its decision, the Board found that the harm caused by the petitioner’s conduct was
       reasonably foreseeable, given the facts and circumstances of the case. The Board noted that the
       petitioner did not “make a mere waving motion of the stapler” but rather “made a strong
       snapping motion with sufficient force to launch the stapler about ten feet through the air.” The
       Board also recognized that the petitioner, a former baseball player and a coach of softball and
       football, had a “clear understanding of the strength of his throwing arm and the ability to make
       a conscious distinction between the force needed to make a point and the excessive ‘torque’
       that he applied to the stapler.” The petitioner himself admitted that he was a strong man and
       that he applied sufficient torque to his pretend throw that the stapler travelled about 10 feet
       across the classroom. It is also undisputed that the stapler struck V.H.’s head at a force strong
       enough to necessitate some medical treatment. Based upon the evidence in the record, we do
       not find that an opposite conclusion is clearly evident, and therefore, we will not disturb the
       Board’s negligence finding.
¶ 16       The petitioner’s second contention of error is that the Board lacked sufficient cause to
       discharge him from his duties. Although “cause” is not specifically defined by the Code, it has
       been defined as “that which law and public policy deem as some substantial shortcoming
       which renders a teacher’s continued employment detrimental to discipline and effectiveness”
       (Raitzik v. Board of Education of the City of Chicago, 356 Ill. App. 3d 813, 831 (2005)) or
       “something which the law and sound public opinion recognize as a good reason for the teacher
       to no longer occupy his position” (internal quotation marks omitted) (McCullough v. Illinois
       State Board of Education, 204 Ill. App. 3d 1082, 1087 (1990)). The existence of sufficient
       cause is a question of fact for the Board to determine and is reviewed under the manifest
       weight of the evidence standard; that is, we will not disturb the Board’s finding of cause unless
       an opposite conclusion is clearly evident from the record. Fadler v. State Board of Education,
       153 Ill. App. 3d 1024, 1026 (1987).
¶ 17       Citing Chicago Board of Education v. Payne, 102 Ill. App. 3d 741, 747 (1981), the Board
       correctly noted that “[c]ause ‘connotes some substantial shortcoming rendering continuance in
       employment detrimental to discipline and effectiveness of service; cause is something that the
       law and sound public opinion recognize as good reason for the teacher to lose his job.’ ” The
       Board charged the petitioner with violating the duties of his employment by failing to act in the
       manner of a reasonably prudent educator in the supervision of students (charge 2) and failing to
       use alternative means that would have de-escalated the situation in the classroom (charge 1).
       The petitioner was also charged with violating the duty to refrain from performing his work in
       a negligent or incompetent manner (charge 3) and to avoid conduct unbecoming of a CPS
       employee (charge 8).
¶ 18       Here, it is undisputed that the petitioner threatened to throw the stapler at a student in an
       effort to encourage the student to refrain from his disruptive conduct. The petitioner himself

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       admitted during the hearing that his method of handling this disruptive student was not the
       “appropriate method as a teacher to modify a disruptive student’s behavior.” The petitioner’s
       undisputed actions therefore support the Board’s allegations of cause, including those
       contained in charges 1, 2, 3 and 8. Under these facts, we reject the petitioner’s contention that
       the Board’s finding that cause for discharge existed is against the manifest weight of the
       evidence.
¶ 19        The petitioner’s third contention of error involves whether the Board’s cause for discharge
       required that he receive a written warning before his dismissal. Whether a written warning is
       required before a teacher’s dismissal is dependent upon whether the charged conduct is
       deemed remediable or irremediable. Younge v. Board of Education of the City of Chicago, 338
       Ill. App. 3d 522, 531 (2003).
¶ 20        Before the Code was amended in 1995, a two-part test applied to determine whether the
       conduct supporting a dismissal was to be deemed remediable or irremediable. Gilliland v.
       Board of Education of Pleasant View Consolidated School District No. 622, 67 Ill. 2d 143
       (1977). That two-part test analyzed: (1) whether the teacher’s conduct caused significant
       damage to students, faculty, or the school; and (2) whether the teacher would not have
       corrected his conduct, even if he had been issued a written warning and a period of time for
       remediation. Ahmad v. Board of Education of the City of Chicago, 365 Ill. App. 3d 155, 163
       (2006) (citing Gilliland, 67 Ill. 2d at 153). In 1995, however, the Code was amended to include
       the language in section 34-85 which explicitly provides that certain types of conduct are to be
       deemed per se irremediable, thereby eliminating the need to apply the Gilliland test to those
       particular types of conduct. Ahmad, 365 Ill. App. 3d at 164.
¶ 21        Under section 34-85 of the Code, a teacher’s conduct that is “negligent” or “that in any way
       causes psychological or physical harm or injury to a student” is deemed per se irremediable.
       105 ILCS 5/34-85 (West 2012). We have already determined that the Board’s negligence
       finding is not against the manifest weight of the evidence. Additionally, the Board found that
       the petitioner’s conduct caused physical harm or injury to V.H., the facts of which are
       undisputed. Under the provisions of section 34-85, the petitioner’s conduct is deemed per se
       irremediable and he was not entitled to a written warning before his dismissal. Accordingly,
       we find that the Board’s ultimate decision to dismiss the petitioner without a written warning is
       not clearly erroneous under the specific facts of this case.
¶ 22        Based on the foregoing reason, we confirm the decision of the Board.

¶ 23      Confirmed.

¶ 24       JUSTICE HALL, dissenting.
¶ 25       I respectfully dissent from the majority’s opinion. Contrary to the majority’s holding, I do
       not believe that the petitioner’s negligent conduct in pretending to throw a stapler at a
       disruptive, unruly student thereby accidentally hitting a second student with the stapler was
       irremediable per se warranting discharge without a written warning or progressive discipline.
       In finding that petitioner’s conduct was irremediable per se, the majority relies on the
       emphasized language of section 34-85 of the Illinois School Code (105 ILCS 5/34-85 (West
       2012)), which was quoted as follows:



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                    “(a) No teacher employed by the board of education shall (after serving the
                probationary period specified in Section 34-84) be removed except for cause. ***
                    Before service of notice of charges on account of causes that may be deemed to be
                remediable, the teacher or principal must be given reasonable warning in writing,
                stating specifically the causes that, if not removed, may result in charges ***. No
                written warning shall be required for conduct on the part of a teacher or principal that is
                cruel, immoral, negligent, or criminal or that in any way causes psychological or
                physical harm or injury to a student, as that conduct is deemed to be irremediable.”
                (Emphases added.) 105 ILCS 5/34-85 (West 2012).
¶ 26        I do not believe that the phrase “physical harm or injury” contained in section 34-85 of the
       School Code encompasses injury or damage resulting from solely negligent conduct. Most of
       the cases which found a teacher’s conduct to be irremediable per se involved criminal or
       immoral conduct. See, e.g., Younge v. Board of Education of the City of Chicago, 338 Ill. App.
       3d 522, 534 (2003) (teachers who reported to work under the influence of marijuana, an illegal
       drug, engaged in criminal and immoral conduct deemed irremediable per se); Ahmad v. Board
       of Education of the City of Chicago, 365 Ill. App. 3d 155, 165-67 (2006) (teacher engaged in
       criminal and immoral conduct deemed irremediable per se where she misappropriated
       merchandise of nonprofit organization by falsely representing herself as an agent of the city’s
       public schools); Ball v. Board of Education of the City of Chicago, 2013 IL App (1st) 120136,
       ¶¶ 31-32 (teacher engaged in immoral and negligent conduct deemed irremediable per se
       where she failed to supervise special needs students enabling students to engage in sexual
       activity on school property and where she gave false statements to investigator); Jones v.
       Board of Education of the City of Chicago, 2013 IL App (1st) 122437, ¶ 19 (teacher engaged in
       immoral conduct deemed irremediable per se where she fraudulently enrolled her nonresident
       children in city school so they could receive tuition-free educations).
¶ 27        In comparison to the above-cited cases, I do not believe the petitioner’s negligent conduct
       at issue in this case is irremediable per se. The petitioner has no prior record of misconduct in a
       career spanning several years. The hearing officer pointed out that the petitioner was a coach as
       well as a teacher and was respected and trusted by his students. The petitioner’s conduct in
       accidentally hitting the student with the stapler was an isolated instance of ordinary negligence
       that does not constitute conduct that is irremediable per se.
¶ 28        Our courts have determined that in order for “conduct to be considered irremediable, the
       damage caused by that conduct must have been ‘significant.’ ” Prato v. Vallas, 331 Ill. App. 3d
       852, 862 (2002) (quoting Board of Education of the City of Chicago v. Illinois State Board of
       Education, 160 Ill. App. 3d 769, 776 (1987)). Although I cannot say that the head injury
       suffered by the student in this case was minor, I do not believe the injury was severe or
       permanent enough to warrant the petitioner’s termination without a prior written warning or
       progressive discipline. My conclusion is greatly influenced by the fact that the hearing officer
       who heard the evidence recommended some form of discipline short of discharge. In light of
       the unusual factual circumstances in this case, I believe the Board should have followed the
       hearing officer’s recommendation.




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