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
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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).
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¶ 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.
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¶ 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
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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,
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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.
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