                             Illinois Official Reports

                                    Appellate Court



        Segobiano-Morris v. Grayslake Community Consolidated School District No. 46,
                                  2015 IL App (2d) 140822



Appellate Court         ANGELA SEGOBIANO-MORRIS, Plaintiff-Appellant, v. GRAYS-
Caption                 LAKE COMMUNITY CONSOLIDATED SCHOOL DISTRICT No.
                        46, Defendant-Appellee.




District & No.          Second District
                        Docket No. 2-14-0822




Filed                   May 28, 2015




Decision Under          Appeal from the Circuit Court of Lake County, No. 13-CH-3018; the
Review                  Hon. Mitchell L. Hoffman, Judge, presiding.




Judgment                Affirmed.




Counsel on              Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellant.
Appeal
                        Kevin B. Gordon and A. Lynn Himes, both of Scariano, Himes &
                        Petrarca, Chtrd., of Chicago, for appellee.
     Panel                    JUSTICE HUTCHINSON delivered the judgment of the court, with
                              opinion.
                              Justices Zenoff and Spence concurred in the judgment and opinion.


                                                OPINION

¶1         Plaintiff, Angela Segobiano-Morris, was employed as a teacher by defendant, Grayslake
       Community Consolidated School District No. 46 (the District). In 2013, plaintiff received an
       “unsatisfactory” rating on her performance evaluation and, due to a reduction in force (RIF),
       the District dismissed plaintiff at the end of the school term. Plaintiff then brought a complaint
       for declaratory judgment and injunctive relief, alleging that her dismissal violated the
       teacher-employment provisions of the School Code (105 ILCS 5/24 (West 2012)) and seeking
       her reinstatement. The trial court dismissed the complaint pursuant to section 2-619(a)(9) of
       the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2012)). For the reasons
       that follow, we affirm.

¶2                                          I. BACKGROUND
¶3          According to plaintiff’s complaint, she was employed as a tenured teacher at an elementary
       school in the District. See 105 ILCS 5/24-11(c) (West 2012) (stating that tenure, or contractual
       continued service, is generally obtained after four academic years of full-time service). On
       April 10, 2013, plaintiff received the following letter from the District:
                    “We regret to advise you that the Board of Education of Community Consolidated
                School District 46, Lake County, Illinois, pursuant to Section 24-12 of the Illinois
                School Code, has determined that you are to be honorably dismissed effective as of the
                end of the 2012-[ ]13 school term and not reemployed for the 2013-[ ]14 school term.
                The reason for your dismissal is the decision of the Board to decrease the number of
                teachers due to economic necessity. Accordingly, your employment in and services to
                the School District shall terminate at the end of the school day on June 6, 2013.”
                (Emphasis in original.)
       Plaintiff alleged that it was “common practice” for school boards to issue similar warning
       letters to teachers but that their dismissals “[we]re not made effective” if sufficient funding
       became available before the start of the following school term. In August, the District
       advertised an opening for an elementary school teacher and hired a candidate at the start of the
       school term in September. Ultimately, plaintiff was not recalled. Plaintiff’s complaint sought
       her reinstatement and damages in the amount of several weeks’ lost wages.
¶4         The District filed a motion to dismiss under section 2-619(a)(9) of the Code (735 ILCS
       5/2-619(a)(9) (West 2012)). In its motion, the District noted that on April 10, 2013, the school
       board unanimously approved a resolution calling for a RIF of 20 teachers at the end of the
       2012-13 school term, for reasons of economic necessity. Based on performance evaluations,
       teachers are categorized in groups from 1 to 4, with 4 being the highest. 105 ILCS 5/24-12(b),
       24A-5 (West 2012). Groupings control the sequence of dismissals and recalls in the event of a
       RIF. During the 2012-13 school year, plaintiff received a “Needs Improvement or
       Unsatisfactory” rating on her performance evaluation, which placed her in group 2.


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¶5         Attached to the District’s motion was a list of the 20 teachers and their groupings. Of the 20
       teachers on the list, 19 were in group 3; plaintiff was the only teacher in group 2. The District
       issued the letter to plaintiff indicating that, due to the RIF, her employment would be
       terminated at the end of the 2012-13 school term. The District contended that plaintiff did not
       have the right to be recalled, because she was a group 2 teacher. Thus, according to the District,
       plaintiff was honorably dismissed at the end of the school term and not recalled, in accordance
       with section 24-12(b) of the School Code (105 ILCS 5/24-12(b) (West 2012)).
¶6         Plaintiff filed a response to the District’s section 2-619(a)(9) motion, alleging, for the first
       time, that the District’s claimed need for a RIF was “pretextual.” According to plaintiff, the
       District could not have in good faith known its funding levels until the summer of 2013, after it
       had already dismissed plaintiff.
¶7         On May 8, 2014, the trial court conducted a hearing on the District’s motion. A transcript
       of the hearing was not included in the record. The trial court’s written order states that the court
       found that the District honorably dismissed plaintiff in accordance with the procedures set
       forth in section 24-12(b) of the School Code. In addition, the trial court specifically noted that
       plaintiff had failed to support her contention that the District’s claimed need for a RIF was a
       pretext for her dismissal. Accordingly, the trial court granted the District’s motion and
       dismissed plaintiff’s complaint. Plaintiff’s motion to reconsider was denied and plaintiff
       timely appealed.

¶8                                              II. ANALYSIS
¶9         As noted, plaintiff appeals the involuntary dismissal of her complaint under section
       2-619(a)(9). She contends that the trial court erred when it determined that the District
       complied with the School Code. First, plaintiff argues that, pursuant to the School Code, the
       District failed to honorably dismiss her and, further, that she should have been recalled.
       Second, plaintiff asserts that the trial court’s interpretation of section 24-12(b) cannot be
       reconciled with the School Code as a whole.
¶ 10       Initially, we note that plaintiff’s complaint was dismissed pursuant to section 2-619(a)(9)
       of the Code, not section 2-615 (735 ILCS 5/2-615 (West 2012)) as asserted in plaintiff’s brief.
       Accordingly, we will address plaintiff’s arguments under the proper standard.
¶ 11       A motion to dismiss under section 2-619(a)(9) admits the legal sufficiency of the complaint
       but raises defenses or other affirmative matters that defeat the action. Patrick Engineering, Inc.
       v. City of Naperville, 2012 IL 113148, ¶ 31. A defendant’s compliance with the controlling
       statute is an “affirmative matter” warranting dismissal under section 2-619(a)(9). Hayes v.
       M&T Mortgage Corp., 389 Ill. App. 3d 388, 392 (2009). We review de novo the trial court’s
       dismissal under section 2-619(a)(9) (Patrick Engineering, 2012 IL 113148, ¶ 31), and we may
       affirm the dismissal on any basis supported by the record (Raintree Homes, Inc. v. Village of
       Long Grove, 209 Ill. 2d 248, 261 (2004)).
¶ 12       In Illinois, the employment of public school teachers in school districts outside of Cook
       County is regulated by the School Code (105 ILCS 5/art. 24 (West 2012)). As with all statutes,
       when we construe the School Code, our goal is to ascertain and give effect to the legislature’s
       intent. Frakes v. Peoria School District No. 150, 2014 IL App (3d) 130306, ¶ 12 (citing
       Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL
       112566, ¶ 15). In so doing, “[w]e view the statute as a whole and give the language its plain


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       and ordinary meaning, which is the most reliable indicator of the legislature’s intent.” Id.
       When the language of a statute is unambiguous, it will be applied as written without resort to
       extrinsic aids. Doe v. Hinsdale Township High School District 86, 388 Ill. App. 3d 995, 1001
       (2009).
¶ 13       This case focuses on the trial court’s construction and application of section 24-12(b) of the
       School Code. Section 24-12(b) sets forth the procedure for dismissal “as a result of a decision
       of a school board to decrease the number of teachers employed by the board” (105 ILCS
       5/24-12(b) (West 2012)), commonly known as a RIF. Under the School Code, teachers are
       evaluated at least once every two years (105 ILCS 5/24A-5 (West 2012)) and then grouped
       accordingly (105 ILCS 5/24-12(b) (West 2012)). Qualified, full-time teachers are categorized
       as follows: “[e]xcellent” teachers are placed in group 4; “[p]roficient or [s]atisfactory” teachers
       are placed in group 3; and teachers who “[n]eed[ ] improvement” or are “[u]nsatisfactory” are
       placed in group 2. Id. Teachers in group 1 are either part-time teachers, who are ineligible for
       tenure, or full-time teachers who have yet to be evaluated. Id. As noted, plaintiff was a group 2
       teacher.
¶ 14       Plaintiff’s first argument, that the trial court erred because the District failed to comply
       with the School Code when it dismissed and did not recall plaintiff, implicates two key
       provisions of section 24-12(b). We refer to them as the “dismissal provision” and the “recall
       provision.” The dismissal provision, which applies once the school board decides that a RIF is
       required, has two components. First, teachers facing an honorable RIF dismissal are entitled to
       written notice of their termination 45 days prior to the end of the school term. 105 ILCS
       5/24-12(b) (West 2012). Second, “teachers must be dismissed in the order of their groupings,
       with teachers in grouping one dismissed first and teachers in grouping 4 dismissed last.” Id.
¶ 15       With respect to the dismissal provision of section 24-12(b), plaintiff concedes that she was
       timely served with the statutorily required notice. The record also demonstrates that plaintiff
       was dismissed at the same time as 19 other teachers, all of whom were in group 3. Plaintiff
       does not argue that the District failed to notify her of her dismissal or that a group 1 teacher was
       retained while plaintiff was dismissed. Accordingly, we agree with the trial court that the
       District complied with the dismissal provision.
¶ 16       Next, we address plaintiff’s contention that she had “recall rights,” i.e., the right to be
       recalled before a new teacher was hired. The recall provision of section 24-12(b) states that any
       vacancies for the following school term or within one calendar year “must be tendered to the
       teachers so removed or dismissed who were in groupings 3 or 4 of the sequence of dismissal
       and are qualified to hold the positions.” (Emphasis added.) 105 ILCS 5/24-12(b) (West 2012).
       While qualified teachers in groups 3 and 4 are entitled to be recalled, there is no similar
       provision for teachers in groups 1 and 2. Based on the plain language of the statute, we may
       presume that the exclusion of group 1 and group 2 teachers was intentional. See
       In re Consensual Overhear, 323 Ill. App. 3d 236, 240 (2001) (stating that, “[u]nder the rule of
       expressio unius est exclusio alterius, when an act lists things to which it refers, the court may
       infer that any omissions were intended as exclusions”). Accordingly, because plaintiff was a
       group 2 teacher when she was dismissed, she did not have the right to be recalled. We,
       therefore, reject plaintiff’s argument; we agree with the trial court that the District complied
       with the recall provision.
¶ 17       We also reject plaintiff’s bare assertion that the District violated section 24-12(b) when it
       hired a “replacement” teacher in violation of plaintiff’s “statutory priority rights” as a member

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       of group 2. Plaintiff merely states this proposition and makes no attempt to support it with
       analysis or authority, in violation of Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008).
       Although we would be within our rights to deem the argument forfeited for want of meaningful
       development (Sexton v. City of Chicago, 2012 IL App (1st) 100010, ¶ 79), we choose to
       address it.
¶ 18        The crux of plaintiff’s claim appears to be that the teacher hired in September 2013 was a
       group 1 teacher over whom plaintiff, a group 2 teacher, necessarily had superior employment
       rights. In making this claim, plaintiff has conflated the right not to be dismissed in favor of a
       group 1 teacher with the right to be recalled before any new teacher is hired. The former is well
       established in section 24-12(b); the latter has no basis in the statute. As we have just discussed,
       following a RIF, nothing in section 24-12(b) provides for recalling a group 2 teacher either in
       general or based on grouping. That the District hired another teacher at the beginning of the
       2013-14 school term was, therefore, irrelevant because plaintiff did not have the right to be
       recalled at all. Cf. Frakes, 2014 IL App (3d) 130306, ¶ 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.”).
¶ 19        Plaintiff’s second argument, that the trial court’s “interpretation of section 24-12(b) cannot
       be reconciled with the statutory provision as a whole,” also lacks merit. Plaintiff generally
       argues that the 2011 amendment to the School Code, which provided for the RIF dismissal and
       recall procedures (see Pub. Act 97-8, § 5 (eff. June 13, 2011)), violates public policy.
¶ 20        As plaintiff notes, this system of grouping teachers did not exist prior to the 2011
       amendment, which made substantial revisions to the School Code. Under the pre-amended
       version of the School Code, a school board was required to lay off all untenured teachers
       before it could lay off any qualified tenured teacher. 105 ILCS 5/24-12 (West 2008). In
       addition, tenured teachers had the all-but-unqualified right to be recalled if funding became
       available (see id.), as plaintiff alleged in her complaint. But the 2011 amendment removed
       tenure as the main consideration in layoffs and instead shifted the primary focus to teacher
       performance and grouping. Grouping, in turn, now governs both the sequence of layoffs and
       any subsequent recall rights. Although this change altered the nature and scope of public
       school teachers’ tenure, it was undoubtedly a public policy matter for the legislature (Johnson
       v. Board of Education of Decatur School District No. 61, 85 Ill. 2d 338, 345-47 (1981)), and
       we must defer to its judgment (Board of Education of Dolton School District 149 v. Miller, 349
       Ill. App. 3d 806, 812 (2004)). As it pertains to this case, we reiterate that, under the present
       version of section 24-12(b), even though plaintiff was tenured, she did not have the statutory
       right to be recalled after she was honorably dismissed as a group 2 teacher. See Frakes, 2014
       IL App (3d) 130306, ¶ 18 (noting that “tenure is no longer protective to the extent the plaintiffs
       allege”); Bart v. Board of Education, 256 Ill. App. 3d 880, 883 (1993) (stating that “the teacher
       tenure provisions of the School Code are in derogation of common law and must be strictly
       construed in favor of the school district”).
¶ 21        Although section 24-12(b) of the School Code is unambiguous, our determination here is
       also amply supported by legislative history. As the bill’s Senate sponsor noted, the 2011
       modifications to the School Code were designed to “[tie] tenure to teacher performance
       evaluations” as well as to “allow[ ] [for] an easier dismissal process for teachers who are not
       highly qualified.” 97th Ill. Gen. Assem., Senate Proceedings, Apr. 14, 2011, at 292-94
       (statements of Senator Lightford); see also 97th Ill. Gen. Assem., House Proceedings, May 12,

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       2011, at 5 (statements of Representative Currie) (“This [bill] will streamline the decision to
       dismiss a teacher who is ineffective and/or incompetent. It will connect performance *** and
       competence as the primary decision in *** teacher layoffs.”). The legislation that became
       Public Act 97-8 unanimously passed the Senate, and only a single member voted against it in
       the House. Again, the responsibility for the wisdom or justice of this legislation rests with the
       General Assembly, not this court. People v. Wright, 194 Ill. 2d 1, 29 (2000).
¶ 22       We note that, as did the plaintiff in Frakes, plaintiff argues that the amendment to section
       24-12(b) empowers school boards and school districts to arbitrarily dismiss teachers under a
       “pretext” of budget cuts and RIFs. The response from our colleagues in Frakes bears repeating,
       for here, too, plaintiff:
               “ignore[s] multiple aspects of the statute that militate against a school board’s potential
               to dismiss [teachers] ‘on a whim,’ including the fact that school boards do not conduct
               the performance evaluations [(they are conducted by trained evaluators)] (105 ILCS
               5/24A-3 (West 2012)); the fact that the [School] 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 [School] Code also provides
               procedures to review arguably questionable performance evaluations of senior teachers
               and public hearings [are] required if [the number of] dismissals based on economic
               reasons reach[es] certain thresholds (105 ILCS 5/24-12(b), (c) (West 2012)). Thus,
               contrary to the plaintiff[’s] protestations, a school board cannot just ‘freely dismiss’
               tenured teachers.” Frakes, 2014 IL App (3d) 130306, ¶ 17.
       Given the procedural and substantive safeguards that were added to the School Code in 2011,
       we reject plaintiff’s unsupported assertion that school districts have carte blanche to dismiss
       teachers under the guise of a RIF.
¶ 23       Finally, both in her brief and at oral argument, plaintiff asserted that the District “targeted”
       her for dismissal and that the District dismissed her in “bad faith.” At oral argument, plaintiff
       further alleged that the RIF, which affected the employment of 19 other teachers, was a pretext
       that the District engineered solely for plaintiff’s dismissal. These allegations were not raised in
       plaintiff’s complaint in the trial court, and we decline to consider them now. See Western
       Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 500 (1985) (“It is axiomatic that questions
       not raised in the trial court are deemed waived and may not be raised for the first time on
       appeal.”).
¶ 24       We conclude that the trial court correctly determined that the District honorably dismissed
       plaintiff in accordance with section 24-12(b) of the School Code. The District board decided at
       the end of the 2012-13 school term that a RIF was necessary for the upcoming school year. See
       105 ILCS 5/24-12(b) (West 2012). The District notified plaintiff of her dismissal at least 45
       days before the end of the term. Id. Accordingly, the trial court properly dismissed plaintiff’s
       complaint under section 2-619(a)(9) of the Code.

¶ 25                                      III. CONCLUSION
¶ 26      For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 27      Affirmed.



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