                                  2015 IL App (1st) 141481

                                                                           SIXTH DIVISION
                                                               Opinion Filed: February 6, 2015

                                 No. 1-14-1481
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                                   FIRST DISTRICT
_____________________________________________________________________________
                                          ) On Petition for Review from
RON JAMES,                                ) Final Administrative Decision of the
                                          ) Chicago Board of Education
                                          )
       Petitioner,                        )
                                          )
v.                                        ) Board Resolution No. 14-0423-RS3
                                          )
                                          )
THE BOARD OF EDUCATION OF 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.                       )
______________________________________________________________________________

       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
2015 IL App (1st) 141481


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 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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2015 IL App (1st) 141481


sleeve" and hit another student, V.H., in the back of her head. He estimated that V.H. was

standing about seven to ten 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

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2015 IL App (1st) 141481


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 (CPS)

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 showed that he was a

trusted and respected teacher, and his testimony demonstrated sincere regret for his lapse in

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2015 IL App (1st) 141481


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

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2015 IL App (1st) 141481


of fact, a question of law, or a mixed question of law and fact. Board of Education of City of

Chicago v. Illinois Education. 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 205 (1998). 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.

¶ 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." (Emphasis added.)

       105 ILCS 5/34-85 (West 2012).

¶ 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

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2015 IL App (1st) 141481


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 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 ten 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.

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2015 IL App (1st) 141481


Board of Education of 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" (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. Illinois 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

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



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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, 338 Ill. App. 3d at 531.

¶ 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 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

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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:

               "(a) No teacher employed by the board of education shall (after serving the

       probationary period specified in Section 34-85) 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." (Emphasis added.)

       105 ILCS 5/34-85 (West).

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¶ 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.



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¶ 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 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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