Crawley v. Board of Education of the City of Chicago

2019 IL App (1st) 181367

SIXTH DIVISION
May 10, 2019

No. 1-18-1367

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

DOROTHY CRAWLEY, ) On Petition for Administrative
) Review from the Board of
Petitioner, ) Education of the City of Chicago
)
v. ) No. 18-0523-RS2
)
THE BOARD OF EDUCATION OF THE CITY OF )
CHICAGO; JANICE JACKSON, Chief Executive )
Officer; LAWRENCE COHEN, Hearing Officer; and )
THE ILLINOIS STATE BOARD OF EDUCATION, )
)
Respondents. )

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Harris concurred in the judgment and opinion.
Justice Connors concurred in part and dissented in part, with opinion.

OPINION

¶1 After a hearing, the respondent, the Board of Education of the City of Chicago (Board)

dismissed the petitioner, Dorothy Crawley, from her position as an elementary school teacher.

The Board determined that Crawley falsely characterized certain days for which she was absent

from work as “sick days” although she was not, in fact, sick. Crawley seeks administrative

review of that decision, arguing that the Board wrongfully terminated her. We affirm the Board’s

order and dismiss the hearing officer as a respondent to the petition for administrative review.
1-18-1367

¶2 BACKGROUND

¶3 On February 10, 2017, the Board’s chief executive officer approved eight charges against

Crowley, alleging that she (1) had a consistent or patterned record of absenteeism, (2) failed to

perform her duties, (3) failed to follow Board personnel rules, (4) intentionally made false

representations in her employment record, (5) violated an employee manual provision requiring

that sick days be used “during the employee’s personal illness or serious illness in the immediate

family or household,” (6) violated the Illinois State Board of Education (State Board) code of

ethics, (7) violated State Board teaching standards, and (8) exhibited conduct unbecoming a

Board employee. The Board cited specific rules applicable to each charge. The charging

document also contains five “specifications” relating to the eight charges as a whole: (1) Crawley

was a tenured teacher at Wells Preparatory Elementary School (Wells), (2) she falsified her time

off on October 22 and October 23, 2015, by using sick days while attending a “pre-planned

vacation on a Caribbean cruise,” (3) she falsified her time off on May 20, 2016, by using a sick

day to drive to New York, (4) she falsified her time off on June 6 through June 13, 2016 (a total

of five school days), by travelling to Norway, and (5) this conduct was unbecoming of a Board

employee. The conclusion of the charges stated that “dismissal is warranted due to your

irremediable conduct” and that dismissal “may result in your permanent ineligibility for future

employment with the Board.”

¶4 Crawley’s union requested a hearing on the charges before a mutually selected hearing

officer pursuant to section 34-85 of the School Code (105 ILCS 5/34-85 (West 2016)). The

parties selected Lawrence Cohen as the hearing officer. Crawley filed an answer to the charges

denying all the allegations and specifications, except the specification that she was a tenured

teacher at Wells. Her answer included six affirmative defenses, of which the following are

2
1-18-1367

relevant to this appeal: (1) Crawley had communicated the reasons for her time off to the

administration, (2) she had a legitimate diagnosed medical condition requiring time off, and

(3) her conduct was reasonable.

¶5 At the hearing, an investigator for the Board’s inspector general testified that her office

received an anonymous complaint that Crawley was using sick time to take a cruise. She

conducted an investigation that included a review of Crawley’s time records and Facebook posts

and interviews with Crawley and coworkers. During the investigation, Crawley justified her use

of time off by explaining, among other things, “she needed to get away” due to workplace

altercations. However, Crawley did not produce medical documentation supporting any

particular illness that occurred at the time of the sick days in question.

¶6 Various Board staff members explained they understood that, under Board policies and

rules, sick time could not be used for vacations and that a teacher can take an unpaid “zero day”

if she has used other available time off. A teacher is given about 12 sick days in a school year for

use because of a personal or qualifying family member’s illness. The teacher is also given 10

vacation days to be used during school recess periods, and three “personal business” days. At the

hearing, Crawley’s time records and Board rules, which provided that sick time should only be

used when a teacher is sick, were admitted into evidence. By October 15 in the 2015-16 school

year, Crawley had already used up her allotted personal business days. Wells principal Jeffrey

White testified that 100% of the students at Wells qualify for free or reduced-price lunches

because of their families’ low incomes. He stated that a teacher’s absence is especially

detrimental to students with disabilities, including those in Crawley’s assigned classroom.

Crawley never told White that she had any disability requiring special time off, and he did not

approve any of the sick time at issue for the purpose of travel or vacation.

3
1-18-1367

¶7 Crawley conceded that she traveled to the destinations listed on the dates detailed in the

charges and specifications. The May 20, 2016, trip was to drive her cousin back to a school in

New York. She also testified that she had told her principal she was going to Norway with her

church group, but she did not say when she would travel there. She testified that she received a

knee scope treatment at the Mayo Clinic in Rochester, Minnesota, on October 22 and 23, 2015,

dates which fell immediately before she drove back to Chicago from Minnesota and went on a

cruise. She stated that she took sick days for the two-day Mayo Clinic visit and personal days for

the cruise.

¶8 Crowley admitted to having received the Board sick leave policy and signing to

acknowledge it. She submitted a physician’s note stating that she needed time off to deal with

stress, but the note was dated just a few days after the Board brought the charges, and she did not

reveal this medical condition during the inspector general’s investigation. She also presented the

testimony of a fellow Wells employee who stated he was never advised about any restrictions on

sick day use.

¶9 On April 18, 2018, Cohen issued written findings of fact and a recommendation. He

acknowledged that the Board disputed the veracity of Crowley’s testimony regarding the Mayo

Clinic visit because it was contradicted by other evidence generated during the Board’s

investigation and Crowley’s interrogatory responses. He found that he did not have to resolve the

conflict with respect to the October sick days, however, because the evidence of misuse of the

other sick days was uncontroverted. He found that because Crawley did not contest that she used

sick days to go on vacation when she was not sick, the only issue to be decided was whether that

violation was “irremediable per se so as to obviate the need for a prior warning.” He found that

neither Crawley’s cooperation with the Board’s investigation nor her belief that her use of sick

4
1-18-1367

time complied with Board policy were valid defenses to the charges. As to the latter defense, he

found that Crawley admitted that she was familiar with the sick leave policy and that her asserted

belief that sick days could be used for other purposes made “no sense” since teachers were given

other categories of time off for specific purposes. Cohen found that Crawley gained a financial

advantage because she took paid sick time rather than unpaid “zero time” for her out-of-town

trips and that her conduct was “a theft of Board resources and damage to the Board” because the

Board was required to pay substitute teachers to cover classrooms on Crawley’s sick days.

Further, he found, not having the regular teacher in the classroom on those days adversely

impacted students, particularly those with special education needs. In sum, he found her conduct

to be irremediable because it was “ ‘negligent’ ” and “ ‘immoral’ ” under section 34-85 of the

School Code.

¶ 10 On May 23, 2018, the Board adopted a resolution reciting that it had considered Cohen’s

findings of fact, conclusions of law, and recommendation; the record; and the parties’ briefs. The

resolution further stated that the Board accepted Cohen’s “findings of fact and legal conclusions

and finds sufficient grounds for the discharge of Ms. Crawley.” This petition for direct

administrative review followed.

¶ 11 ANALYSIS

¶ 12 A public schoolteacher dismissed by the Board may seek direct review in this court “in

accordance with the Administrative Review Law.” 105 ILCS 5/34-85(a)(8) (West 2016). The

standard for judicial review of administrative decisions, such as the Board’s orders of

termination here, is well established. In administrative review cases, we do not review the

decision of the hearing officer; rather, we review the decision of the Board. Ahmad v. Board of

Education of the City of Chicago, 365 Ill. App. 3d 155, 162 (2006); Hearne v. Chicago School

5
1-18-1367

Reform Board of Trustees of the Board of Education for the City of Chicago, 322 Ill. App. 3d

467, 478 (2001).

¶ 13 A tenured Chicago public school teacher cannot be fired except “for cause.” 105 ILCS

5/34-85(a) (West 2016). Tenured teachers generally must be given a written warning before

dismissal proceedings are instituted. Id. Failure to comply with the written warning can justify

dismissal. See id.; Prato v. Vallas, 331 Ill. App. 3d. 852, 862 (2002).

¶ 14 However, section 34-85(a) of the School Code characterizes certain conduct as

“irremediable.” No warning need be given before taking adverse action against an employee who

engages in irremediable conduct. Historically, courts have used a two-part test to determine

whether a teacher’s conduct supporting a dismissal was remediable or irremediable. See

Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622, 67 Ill.

2d 143, 153 (1977). Under that test, a court reviews: (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. Id. In 1995, however, the Code was amended by Public Act 89-15 (Pub. Act 89-15,

§ 5 (eff. May 30, 1995) (amending 105 ILCS 5/34-85)) to include the language in section 34-85

that explicitly provides that certain types of conduct are to be deemed per se irremediable,

thereby abrogating Gilliland in some circumstances and eliminating the need to apply its test to

certain types of conduct. Ahmad, 365 Ill. App. 3d at 164; Younge v. Board of Education of the

City of Chicago, 338 Ill. App. 3d 522, 533 (2003).

¶ 15 Section 34-85(a) reads, in pertinent part: “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

6
1-18-1367

deemed to be irremediable.” 105 ILCS 5/34-85(a) (West 2016). This court has explained section

34-85 in the following terms:

“Where, as here, a statute does not define a term, we will assign such a

term its ordinary and commonly understood meaning and may use a dictionary for

this endeavor. [Citation.] Here, the Code does not define immoral conduct.

Immoral conduct has been defined as ‘shameless’ conduct showing ‘moral

indifference to the opinions of the good and respectable members of the

community.’ [Citation.] Applying this definition to the present case, we find that

the record reveals an abundance of evidence demonstrating plaintiff engaged in

conduct one might properly characterize as immoral, perhaps even criminal, i.e.,

theft by deception.” Ahmad, 365 Ill. App. 3d at 165.

¶ 16 The Ahmad court further explained: “where teachers indulge in conduct that is immoral at

best, and criminal or quasi-criminal at worst, they demonstrate a basic character flaw which

makes their future employment at the Board of Education, which is partially responsible for

molding the character of our youth, untenable.” Id. at 166-67.

¶ 17 Whether a cause for dismissal is irremediable is a question of fact. Szabo v. Board of

Education of Community Consolidated School District 54, 117 Ill. App. 3d 869, 872 (1983). The

findings and conclusions of the Board on questions of fact are held to be prima facie true and

correct, and no new or additional evidence on the points at issue may be considered. 735 ILCS

5/3-110 (West 2016). We do not reweigh evidence nor make an independent determination of the

facts. Provena Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 386 (2010).

“When an administrative agency’s factual findings are contested, the court will only ascertain

whether such findings of fact are against the manifest weight of the evidence.” Id. at 386-87.

7
1-18-1367

Factual determinations are against the manifest weight of the evidence if the opposite conclusion

is clearly evident. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d

200, 210 (2008) (citing City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191,

204 (1998)).

¶ 18 Here, we cannot say that the Board’s decision that Crawley’s conduct was irremediable

was against the manifest weight of the evidence. The evidence demonstrated that after using up

other available time off, Crawley misused an aggregate of eight sick days spread over three

periods. Two of these times, she went out of town on vacation, the third time, she traveled to

New York for personal reasons. Principal White testified that during these times, the Board was

required to hire a substitute, essentially paying twice for a single day of teaching time.

Additionally, when Crawley was off, her students were damaged because their lesson plans and

pedagogical continuity were disrupted. This repeated misuse of sick time constituted

irremediable conduct and cause for termination under section 34-85 of the School Code. The

Board’s decision to terminate Crawley for this conduct was not against the manifest weight of

the evidence.

¶ 19 Crawley’s reliance on cases issued before the 1996 School Code amendment is

unavailing because these cases did not interpret the definition of irremediable conduct now

contained in section 34-85 of the School Code. See, e.g., Board of Education of Round Lake

Area Schools v. State Board of Education, 292 Ill. App. 3d 101, 112 (1997) (teacher’s conduct in

taking unapproved vacation time was not irremediable under the Gilliland test); Szabo, 117 Ill.

App. 3d at 873 (teacher’s conduct in taking personal and sick days to coach a community college

soccer team was not irremediable under the Gilliland test because it could be rectified upon

proper warning and notice). Crawley also relies on Board of Education of Joliet Township High

8
1-18-1367

School District No. 204 v. Illinois State Board of Education, 331 Ill. App. 3d 131, 136 (2002), in

which the court found that although a teacher’s misuse of sick days to attend a professional

conference was “not laudable and not the best example for students,” her conduct was

remediable. However, unlike here, the Joliet court was not called upon to interpret section 34-85

of the School Code, which governs Chicago schoolteachers and specifically defines irremediable

conduct. Instead, the court applied the traditional Gilliland test and various provisions of article

24 of the School Code, which did not define irremediable conduct in the same manner as section

34-85 of the School Code. See id. at 134. Therefore, Joliet does not affect our analysis. In fact, it

appears that the legislature may have enacted the new irremediability standards in section 34-85

of the School Code to partially abrogate the line of cases upon which Crawley relies.

¶ 20 Likewise, we are unconvinced by Crawley’s argument that the Board blindsided her by

firing her for “theft” when neither the charges nor the specifications raised “theft” as a basis for

dismissal. The hearing officer’s recommendations, which the Board adopted, stated, in part, that

“[h]er misconduct also results [sic] a theft of Board resources and damage to the Board” because

of the “monetary loss resulting from the need to employ substitute teachers.” It is clear from the

record that the “theft” was merely a colloquial characterization of the result of Crawley’s use of

sick time in a manner that required the Board to pay twice for a single day of teaching. As such,

it was not a new charge. Additionally, the hearing officer’s statement regarding theft must be

taken in the context of the lengthy and detailed explanation he gave of why Crawley’s

misconduct was irremediable and warranted her termination.

¶ 21 Finally, we address Crawley’s naming Hearing Officer Cohen as a party to her petition

for administrative review. Although the Board does not raise the issue, and Cohen himself has

not appeared, we note that the improper practice of naming administrative hearing officers as

9
1-18-1367

parties to administrative review cases occurs with disturbing frequency. See, e.g., Ball v. Board

of Education of the City of Chicago, 2013 IL App (1st) 120136 (naming hearing officer Ellen

Alexander as a defendant); Younge, 338 Ill. App. 3d at 529 (naming hearing officer Edward L.

Suntrup). Under the School Code, the hearing officer assigned in this case had the power to hear

testimony, admit exhibits, and render a recommended decision to the Board, which itself was the

ultimate decision-making authority. See 105 ILCS 5/34-85(a)(5) (West 2016); 23 Ill. Adm. Code

51.60, 51.75 (2012). As such, the hearing officer is much like a circuit court judge whose

decision is appealed to an appellate court. The circuit court judge is not a party to the appeal;

only the actual litigants are. The same holds true for a hearing officer. The Board, as the ultimate

decision-making authority, is a proper party to the petition for administrative review. So is the

Board’s chief executive officer because her predecessor brought the dismissal charges against

Crawley. See 735 ILCS 5/3-113(b) (West 2016) (in a direct administrative review action in the

appellate court, “[t]he administrative agency and all persons, other than the petitioner, who were

parties of record to the proceedings before the administrative agency shall be made

respondents”). Since Cohen is neither an administrative agency nor a party of record, he was not

a proper party to the petition. We therefore dismiss Cohen as a respondent to the petition for

administrative review.

¶ 22 CONCLUSION

¶ 23 We affirm the Board’s decision to terminate Crawley but dismiss Cohen as a respondent

to this proceeding.

¶ 24 Affirmed in part and dismissed in part.

¶ 25 JUSTICE CONNORS, concurring in part and dissenting in part:

10
1-18-1367

¶ 26 I concur with the majority’s decision to dismiss Hearing Officer Cohen as a party to this

appeal, but I respectfully dissent from the majority’s decision to affirm the Board’s termination

of Crawley.

¶ 27 Here, the Board terminated Crawley after accepting the hearing officer’s finding that she

had engaged in conduct that was irremediable per se. This determination was against the

manifest weight of the evidence. As the majority recognizes, section 34-85(a) of the School Code

provides: “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.” 105 ILCS 5/34-85(a)

(West 2016). The majority also recognizes that immoral conduct, although not defined in the

code “has been defined as ‘shameless’ conduct showing ‘moral indifference to the opinions of

the good and respectable members of the community.’ [Citation.]” Ahmad, 365 Ill. App. 3d at

165. Thus, the majority’s holding implies that misuse of sick days is “shameless” conduct that

shows a moral indifference to the opinions of good and respectable people. Such a conclusion

does not comport with existing law.

¶ 28 The hearing officer’s report, which contained findings of fact and conclusions of law that

were accepted by the Board, stated that “[t]he only issue to be decided is whether [Crawley’s use

of sick days when she was not sick] was irremediable per se so as to obviate the need for a prior

warning.” In resolving that issue, the hearing officer’s report cited two previous decisions from

hearing officer Weiland and one of his own previous decisions: “Hicks v. Bd. of Ed. of City of

Chicago (Weiland 2012)”; “Bd. of Ed. of the City of Chicago and Mark Kelley (2017)”; and “Bd.

11
1-18-1367

of Ed[.] of the City of Chicago and Lori Neren[1] (Weiland 2017).” The report’s discussion

section contained only a brief reference to this court’s decision in Ahmad and no other citation to

appellate or supreme court cases. It is curious that the hearing officer relied on previous hearing

officer decisions that he was not bound by when there are numerous decisions from this court

that are applicable to the issues in this case. Board of Trustees of the University of Illinois v.

Illinois Educational Labor Relations Board, 2015 IL App (4th) 140557, ¶ 51 (“While

administrative agencies are bound to follow their own administrative rules, they are not

absolutely bound by their prior rulings.”). Further, it is unclear whether the findings and

recommendations of the hearing officers in Hicks, Kelley, and Neren were ever adopted by the

Board in those cases. This is significant because a court of review does not review the decision

of the hearing officer and instead reviews the decision of the Board. Ahmad, 365 Ill. App. 3d at

162. Thus, if the hearing officer’s decisions in those cases were not ever adopted by the Board,

then the hearing officer’s recommendations would have little value. Regardless, in this case, the

Board only adopted the hearing officer’s findings of fact and conclusions of law. It did not

accept the hearing officer’s analysis or reliance upon certain prior hearing officer decisions.

Further, hearing officer decisions have no precedential value on this court, and it is preferable to

instead look to decisions from this court and our supreme court for guidance.

¶ 29 This court has specifically considered the misuse of sick days in Joliet, 331 Ill. App. 3d

131. In that case, the hearing officer had found that the teacher’s misuse of sick days, i.e., using

sick days to attend a professional conference, was remediable and not against public policy, and

this court affirmed. Id. at 133. This court disagreed with the Board that the teacher’s conduct

constituted “shocking and immoral conduct.” Id. at 134. The court found that the hearing officer

1
We note that in the hearing officer’s report, the surname in the title of one of the decisions upon
which he relied is spelled as both “Naren” and “Neren.” We are unsure which is correct but refer to the
case as “Neren” because that is the spelling used most frequently in the report.

12
1-18-1367

correctly determined that the teacher’s conduct was remediable because although misuse of sick

days was “hardly exemplary behavior,” it was “not so odious that the court can dispense with a

finding that it could not have been corrected with a warning.” Id. at 135. The court explained that

the teacher had testified that she would not have used her sick days to attend a conference if she

had been warned of the consequences and she had been led to believe that using a sick day for

such a purpose would not be a serious offense. Id. at 136. The court also explained that to agree

with the Board’s contention that a teacher’s absences amounted to a theft of public funds was

“ ‘overly harsh.’ ” Id. (quoting Szabo, 117 Ill. App. 3d at 875).

¶ 30 Here, the evidence demonstrated that after using up other time off, Crawley misused an

aggregate of nine sick days spread over three time periods. Contrary to the Board’s contentions,

this is not “immoral” conduct. Although the administrative agency in Joliet did not make a

finding that the teacher’s conduct was irremediable per se, on review, this court specifically

stated that it disagreed with the Board’s contention that the teacher’s conduct of misusing sick

days was “shocking and immoral.” Id. at 134. The majority attempts to distinguish Joliet from

the instant case and points out that, there, the court did not examine section 34-85 of the School

Code, “which governs Chicago schoolteachers and specifically defines irremediable conduct.”

Supra ¶ 19. I disagree with this distinction because in Joliet the court was faced with determining

whether the misuse of sick days was “shocking and immoral” conduct, and thus, irremediable,

and here, the issue is similarly whether Crawley’s conduct was immoral, i.e., shameful or

showing moral indifference to the opinions of good people and thus irremediable per se.

¶ 31 Further, in this case, the hearing officer’s report, which contained findings of fact and

conclusions of law that were accepted by the Board, found that:

13
1-18-1367

“[Crawley’s] misconduct resulted [in] a theft of Board resources and damages to the

Board: the monetary loss resulting from the need to employ substitute teachers; the

inability of the Board to find a substitute on some of the days of Crawley’s absence with

its resultant adverse effect on her students; the impact of a teacher’s absence on those

students with individualized education plans; and the other negative consequences of an

absence on what White termed ‘the culture and climate of the school.’ ”

¶ 32 Such a conclusion is against the manifest weight of the evidence. First, as discussed later

in this partial dissent, White did not testify as to any actual costs or damage incurred as a result

of Crawley’s absence. Second, in Joliet, the court explicitly recognized that classifying a

teacher’s absence due to the misuse of sick days as theft is “ ‘overly harsh.’ ” Joliet, 331 Ill. App.

3d at 136 (quoting Szabo, 117 Ill. App. 3d at 875). The majority refers to the Board’s

characterization of Crawley’s conduct as theft as “merely a colloquial characterization of the

result of Crawley’s use of sick time in a manner that required the Board to pay twice for a single

day of teaching.” Supra ¶ 20. This is problematic because not only has this court already deemed

such a label overly harsh, there is no evidence that the Board, in fact, paid twice for a single day

of teaching as the majority suggests.

¶ 33 Further, in a more recent case, Jackson v. Board of Education of the City of Chicago,

2016 IL App (1st) 141388, ¶¶ 45-48, this court determined that when a teacher falsified his

employment application and failed to report test cheating, his conduct was not immoral and thus

not irremediable per se. Additionally, numerous other cases decided after the School Code was

amended have found a teacher’s conduct to be irremediable per se when some form of criminal

conduct was involved, and in cases where the conduct was deemed “immoral,” the circumstances

were far more extreme than misuse of sick days. See, e.g., Ball v. Board of Education of the City

14
1-18-1367

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 investigators); 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); Ahmad, 365 Ill. App. 3d at 165-67 (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); Younge, 338

Ill. App. 3d at 534 (teacher who reported to work under the influence of marijuana, an illegal

drug, engaged in criminal and immoral conduct deemed irremediable per se).

¶ 34 Compared to the foregoing cases, the misuse of sick days in this case, although certainly

lacking good judgment, did not rise to the level of immoral conduct that would merit the

termination of a tenured teacher’s employment without a warning. Crawley asserts that the Board

should have found her conduct to be remediable under the Gilliland test and her contention is

well-received. Conversely, the Board asserts that even under Gilliland, Crawley’s misconduct is

irremediable because the Board clearly articulated its restrictions on sick leave. Such an

argument is unconvincing.

¶ 35 Under Gilliland, a court must look to (1) whether the teacher’s conduct caused significant

damage to students, faculty, or the school and (2) whether the teacher would not have corrected

her conduct, even if she had been issued a written warning and a period of time for remediation.

Gilliland, 67 Ill. 2d at 153. As to the first prong, in order for “conduct to be considered

irremediable, the damage caused by that conduct must have been ‘significant.’ ” Prato, 331 Ill.

15
1-18-1367

App. 3d at 862 (quoting Board of Education of the City of Chicago v. Illinois State Board of

Education, 160 Ill. App. 3d 769, 776 (1987)).

¶ 36 Here, there is no evidence that Crawley’s conduct caused significant damage to the

students, faculty, or the school. The hearing officer’s report contained the finding that Crawley’s

conduct resulted in a theft to the Board due to its need to employ substitute teachers. However,

Principal White did not specifically testify whether substitutes were obtained during Crawley’s

absences, and if they were, what the actual cost to the school for substitutes was. Additionally,

Lucesita Ortiz, the recruitment team leader who also testified at the hearing, stated that although

Crawley requested substitute teachers for the days she was going to be absent, there were some

days on which substitutes were not available. When asked what the impact of an absent teacher

is, Principal White responded, “The direct impact affects the culture and climate of the school. It

is my belief that a substitute teacher is in essence Subway food sandwiches for the kids. She’s a

sub in for the day, it’s almost like it’s going to be a free day.” He further testified that from a

fiscal standpoint, “the direct cost is employing a substitute teacher” and that, if he did not have a

substitute, “I have to ask one of the aides or another teacher to give up their prep, which I have to

make up so they can cover the class.” Although Principal White testified that hypothetically

damage occurs, he did not testify regarding any actual damage resulting from Crawley’s conduct

that could reasonably be viewed as “significant.” His testimony established that, in general,

during a teacher’s absence, the school would be forced to absorb the cost of a substitute, and if a

substitute cannot be secured, he would be forced to use one of the aides and make up the lost

preparation periods later. He also did not testify to any other effect on any students or faculty.

This does not amount to “significant” damage. Principal White’s general commentary as to the

financial effects on the school or general, hypothetical effects on the children is not the type of

16
1-18-1367

substantial proof and competent evidence that is demanded. See Walker v. Dart, 2015 IL App

(1st) 140087, ¶ 37.

¶ 37 As to the second prong, the testimony of Crawley and her witness, Andrew Wamble,

established that had Crawley been given a warning or been made aware that zero or unpaid days

were available, she would have corrected her conduct. Crawley specifically testified that she did

not believe that she was doing anything unethical and stated that, “[if] I was aware that there was

such a thing as zero days, I would have definitely taken them instead of sick days.” Further,

Crawley was asked if knowing what she knew now, i.e., that unpaid days were available, would

she do anything differently, and she responded: “Absolutely. Knowing that I could take FMLA

and things like that for mental health, some of the services that they spoke of, I’ve never heard

of, and I didn’t know they were available.” Crawley’s testimony indicates that she would have

remedied her conduct had she been informed of all of the options for use of paid and unpaid time

off or been given a similar warning.

¶ 38 “For conduct to be considered irremediable, the damage caused by that conduct must

have been ‘significant.’ ” Prato, 331 Ill. App. 3d at 862 (quoting Board of Education of the City

of Chicago, 160 Ill. App. 3d at 776). Because the evidence did not establish that Crawley’s

conduct caused significant damage to students, faculty, or the school and Crawley presented

evidence that she would have, in fact, corrected her conduct had she been issued a warning, I

would find her conduct was remediable and the Board’s decision to the contrary was against the

manifest weight of the evidence.

17