Hernandez v. Board of Education of City of Chicago

2021 IL App (1st) 201055-U
FOURTH DIVISION
December 9, 2021

Nos. 1-20-1055 & 1-20-1061 (cons.)

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________

ZAIDA HERNANDEZ and RHONDA LARKIN, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County
)
v. ) Nos. 14 CH 20212
) 14 CH 20213
BOARD OF EDUCATION OF CITY OF CHICAGO, )
) Honorable
Defendant-Appellee. ) Anna M. Loftus,
) Judge Presiding.
____________________________________________________________________________

PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Lampkin and Martin concurred in the judgment.

ORDER

¶1 Held: Reversing the circuit court’s grant of summary judgment in favor of a school
board where the validity of the board’s termination of the employment contracts of
two school principals was not clear and free from doubt.

¶2 Following the termination of their employment contracts, two former principals for the

Chicago Public Schools (CPS) – Zaida Hernandez (Hernandez) and Rhonda Larkin (Larkin) –

filed complaints in the circuit court of Cook County against the Board of Education of the City

of Chicago (Board). The Board maintained that the terminations were proper where each

plaintiff went on a leave of absence that lasted longer than the period for which she had job
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protection, i.e., neither principal returned to work when her job-protected leave ended. The

plaintiffs argued that their terminations were improper, as the Board had materially changed its

leave of absence policy during the duration of their employment contracts. On the parties’ cross-

motions for summary judgment, the circuit court entered judgment in favor of the Board and

dismissed each lawsuit with prejudice. The circuit court found that the plaintiffs’ employment

contracts automatically incorporated any Board rules and policies promulgated during the

duration of the contracts and that the amended Board rule regarding leave was not a modification

to the contracts. We consolidated the plaintiffs’ appeals and, for the reasons discussed below, we

reverse the judgments of the circuit court and remand these matters for further proceedings.

¶3 BACKGROUND

¶4 The Board Rules and Policies and the Plaintiffs’ Contracts

¶5 The Board, which operates the CPS, periodically adopts and publishes rules and policies.

In August 2005, the Board adopted a policy addressing supplemental family and medical leave,

posted as section 513.3 of the CPS Policy Manual. The section provided, in part, that a principal

who exhausted her unpaid leave under the Family and Medical Leave Act (FMLA) (29 U.S.C. §

2601 et seq.) – i.e., generally 12 workweeks – and who remained unable to work due to personal

illness was entitled to unpaid supplemental personal illness leave for a period not to exceed the

duration of the principal’s contract or 25 work months. Section 513.3 further provided that a

principal’s right to return to a position would terminate on the termination date of her contract in

effect at the time she last actively worked.

¶6 In December 2010, Hernandez entered into a Uniform Principal’s Performance Contract

(employment contract) with the Board and the local school council at Joseph Jungman

Elementary School. The term of her four-year employment contract was July 1, 2011 through

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June 30, 2015. In June 2012, Larkin entered into an employment contract with the Board and the

local school council at Alex Haley Elementary School for a four-year term from July 1, 2012

through June 30, 2016.

¶7 Pursuant to section V thereof, the employment contract could be terminated by the Board

prior to the expiration of the contract term “for any one of the following reasons or by any one of

the following methods.” The seven enumerated reasons or methods included the removal of the

principal “for cause pursuant to 105 ILCS 5/34-85” and the death, resignation, or retirement of

the principal. Section XII(d) provided that the rules, policies, and procedures of the Board

promulgated during the term of the employment contract were incorporated by reference, except

to the extent that such rules, policies, or procedures were inconsistent with the terms and

conditions of the employment contract, in which event the employment contract would control.

¶8 The Board adopted section 4-12(b) of the Board Rules on August 28, 2013. The section

provided, in part: “Notwithstanding anything in these leave policies to the contrary, principals

*** shall only have position protection during the first twelve (12) workweeks of FMLA leave

and will not have position protection during any supplemental leave.”

¶9 The Plaintiffs’ Leaves of Absence and Terminations

¶ 10 Larkin filed an FMLA application in December 2013, seeking a leave of absence due to

health issues. She was granted a leave from January 6, 2014 through February 7, 2014, which

was ultimately extended through April 25, 2014. Although her 12 weeks of FMLA job

protection had ended on April 1, 2014, the Board subsequently accommodated her requests for

additional leave with job protection through May 1, 2014.

¶ 11 Larkin was informed in writing that if she did not report for work on May 12, 2014, the

Board would presume her intent to separate and would effectuate her resignation. Larkin did not

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report to work on that date. In a letter dated May 16, 2014, the Board effectuated her resignation

as of May 13, 2014, and terminated her employment contract pursuant to section V(d), which

refers to her “death, resignation or retirement.”

¶ 12 Hernandez similarly filed an FMLA application in early 2014, seeking a leave of absence

due to health issues. Although she was granted multiple extensions of her leave through July 16,

2014, the Board informed her in writing that her job protection ended on May 1, 2014. In a letter

dated May 23, 2014, the Board effectuated her resignation from her principalship effective May

19, 2014, and her employment contract was terminated pursuant to section V(d) based on her

resignation.

¶ 13 The Circuit Court Litigation

¶ 14 Represented by the same counsel, the plaintiffs filed separate but substantially similar

complaints against the Board in the circuit court of Cook County. In their original complaints,

they sought specific performance of their employment contracts (count I), declarations that

would reinstate them as school principals (count II), and damages for breach of contract (count

III). In their amended complaints, the plaintiffs added a claim for negligent infliction of

emotional distress (count IV).

¶ 15 In both cases, the circuit court dismissed the declaratory judgment count and the

negligent infliction of emotional distress count, which the plaintiffs failed to timely replead.

The parties then filed cross-motions for summary judgment as to the remaining counts.

¶ 16 The circuit court held a consolidated hearing on summary judgment in the two cases.

The plaintiffs argued that their employment contracts were materially changed based on the

reduction of the job-protection period from 25 months to 12 weeks in 2013, i.e., during the four-

year terms of the contracts. The plaintiffs further contended there was neither consideration for

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nor proper notice of the modification. The Board asserted that “the 2013 policy applied and the

2005 policy did not apply,” and that the plaintiffs were repeatedly warned of the consequences of

failing to timely return to work.

¶ 17 The circuit court ruled that specific performance was unavailable for a number of

reasons, including a presumption against specific performance in the employment context and

the expiration of the employment contracts by their own terms. As to the breach of contract

count, the circuit court opined that consideration for the 2013 modification would have been

required if it was a modification to the actual employment contract, but the modification was

solely to the Board’s rules or policies, which were expressly incorporated into the employment

contracts. The circuit court thus granted summary judgment in favor of the Board on the two

remaining counts and dismissed the cases with prejudice. Each plaintiff filed a motion to vacate

the judgment, which the circuit court denied. The plaintiffs subsequently filed these timely

appeals, which have been consolidated.

¶ 18 ANALYSIS

¶ 19 As an initial matter, we note that the plaintiffs filed a motion to supplement the record on

appeal, seeking to include Larkin’s deposition transcript pertaining to a federal lawsuit she filed

against the Board, which is not directly related to the case at hand (Larkin v. Board of Education

of the City of Chicago, No. 1:17-CV-09298). The Board objected, asserting that the federal court

deposition transcript was not a part of the circuit court proceedings herein. In an order entered

on July 28, 2021, the plaintiffs’ motion was taken with the case. Based on our review of the

record, it does not appear that the Larkin deposition transcript was a part of the circuit court

filings. “A document not properly a part of the trial court proceedings is dehors the record and

may not be considered by this court on review.” Knapp v. Bulun, 392 Ill. App. 3d 1018, 1027-28

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(2009). The plaintiffs’ motion to supplement the record with the Larkin deposition is thus

denied, and we will disregard any facts in the plaintiffs’ briefs that were not advanced in the

circuit court. See Osten v. Northwestern Memorial Hospital, 2018 IL App (1st) 172072, ¶ 3.

¶ 20 The Board also observes that the statement of facts in the plaintiffs’ opening brief does

not include citations to the record, in violation of the Illinois Supreme Court Rules. See Ill. S.

Ct. R. 341(h)(6) (eff. Oct. 1, 2020) (requiring the statement of facts to include “appropriate

reference to the pages of the record on appeal”). “The Illinois Supreme Court Rules are not

suggestions; they have the force of law and must be complied with.” Super Mix of Wisconsin,

Inc. v. Natural Gas Pipeline Co. of America, LLC, 2020 IL App (2d) 190034, ¶ 28. In the instant

case, however, the improprieties of the plaintiffs’ statement of facts do not hinder our review

(Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 9), and we thus decline to

disregard such statement of facts, as requested by the Board. See also In re Marriage of

Eberhardt, 387 Ill. App. 3d 226, 228 (2008) (noting that “[i]t is within our discretion to consider

an appeal despite minimal citation to the record in the appellant’s statement of facts”).

¶ 21 Although the amended complaints included four counts – specific performance (count I),

declaratory judgment (count II), breach of contract (count III), and negligent infliction of

emotional distress (count IV) – the sole count at issue on appeal is the breach of contract count.

In orders which were entered on November 13, 2015, the circuit court granted the Board’s

motions to dismiss the declaratory judgment and negligent infliction of emotional distress

counts. Neither plaintiff timely repleaded those counts within the 28-day period set forth in the

November 13, 2015 order. See Ward v. Decatur Memorial Hospital, 2018 IL App (4th) 170573,

¶ 50, aff’d, 2019 IL 123937 (stating that “if the court gives permission to replead, the plaintiff

not only may but, on pain of waiver or forfeiture, must replead or otherwise incorporate the

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dismissed counts in the amended complaint” (emphases in original)). As to the specific

performance count, such relief is unavailable as the employment contracts already expired by

their own terms (in 2015 for Hernandez and 2016 for Larkin). We further note that the plaintiffs

do not advance any arguments on appeal as to the specific performance count. “Points that an

appellant fails to raise in her opening brief are forfeited.” Gillard v. Northwestern Memorial

Hospital, 2019 IL App (1st) 182348, ¶ 51, citing Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).

¶ 22 The question on appeal is thus whether the circuit court erred in granting summary

judgment in favor of the Board as to the breach of contract counts. In an appeal of an order

granting summary judgment, a reviewing court must determine whether “the pleadings,

depositions, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” 735 ILCS 5/2-1005(c) (West 2020). The purpose of summary judgment is not to

try an issue of fact but to determine whether one exists. Monson v. City of Danville, 2018 IL

122486, ¶ 12. Accord Hood v. Leighty, 2020 IL App (5th) 190338, ¶ 28. “Although summary

judgment is encouraged in order to aid the expeditious disposition of a lawsuit, it is a drastic

means of disposing of litigation.” Monson, 2018 IL 122486, ¶ 12. Consequently, a court must

construe the evidence in the record strictly against the moving party and should grant summary

judgment only if the moving party’s right to a judgment is clear and free from doubt. Id. “On

appeal from an order granting summary judgment, a reviewing court must consider whether the

existence of a genuine issue of material fact should have precluded the dismissal or, absent such

an issue of fact, whether summary judgment is proper as a matter of law.” Id.

¶ 23 The parties in the instant appeals filed cross-motions for summary judgment. “When

parties file cross-motions for summary judgment, they agree that only a question of law is

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involved and invite the court to decide the issues based on the record.” Pielet v. Pielet, 2012 IL

112064, ¶ 28. The mere filing of such cross-motions, however, neither establishes that there is

no issue of material fact, nor does it obligate a court to render summary judgment. Id.

¶ 24 An order granting summary judgment is reviewed de novo. Id. ¶ 30. We also review de

novo issues involving contract construction and statutory interpretation. Valerio v. Moore

Landscapes, LLC, 2021 IL 126139, ¶ 20. De novo review means that we perform the same

analysis that a trial judge would perform. Merca v. Rhodes, 2011 IL App (1st) 102234, ¶ 40.

“As such, we will ‘examine the evidence unconstrained by the reasoning of the trial court.’ ” Id.,

quoting John E. Reid & Associates, Inc. v. Wicklander-Zulawski & Associates, 255 Ill. App. 3d

533, 538 (1993).

¶ 25 The plaintiffs advance three primary arguments on appeal. First, they contend that the

circuit court erroneously failed to consider whether the implied duty of good faith constrained

the Board’s modifications of their job protection. Second, the plaintiffs assert that the Board did

not adequately notify them of its intent to unilaterally modify the terms and conditions of their

employment contracts after execution. Third, the plaintiffs argue that the Board’s unilateral

change of the terms and conditions of their employment undermined the intent of the contracting

parties. The Board challenges these contentions, arguing, in part, that (a) the plaintiffs could not

recover contract damages as they were in material breach of their contracts, (b) the circuit court

did not hold that the Board could unilaterally change the terms of the contract, as the contracts

were silent as to leaves of absence, (c) the plaintiffs forfeited any claim of error based on the

implied duty of good faith, and (d) the Board did not violate any notice obligation.

¶ 26 As noted above, the mere filing of cross-motions for summary judgment does not

establish that there is no genuine issue of material fact. Pielet, 2012 IL 112064, ¶ 28. Based on

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our review of the submissions of the parties, we cannot conclude that the Board’s right to a

judgment is clear and free from doubt. See Monson, 2018 IL 122486, ¶ 12.

¶ 27 The 2005 policy permitted a supplemental personal illness leave lasting either the

duration of the principal’s contract or 25 work months. Under the 2005 policy, a principal taking

such supplemental personal illness leave had a right to return to her position through the end of

her contract term. During oral argument on the summary judgment motions in the circuit court,

the Board’s attorney argued: “[B]oth of the plaintiffs were told that they were exceeding the job

protected leave. There’s no reason for them to rely on the 2005 policy as they did.” The Board

asserted that the 2013 rule – which effectively reduced the applicable timeframe from 25 months

to 12 weeks – was available to the plaintiffs and was incorporated into their employment

contracts through section XII(d) thereof.

¶ 28 A review of the relevant correspondence, however, suggests that the Board’s

communications with the plaintiffs were less than clear. Both plaintiffs received correspondence

entitled “FMLA Leave of Absence Approval,” which provided, in part: “Under the [FMLA], if

you return to work during the first twelve weeks of your leave you are entitled to return to your

current position or a substantially equivalent position. You may be entitled to additional leave

and additional job protection depending on your position pursuant to the Board’s Supplemental

and [sic] Family and Medical Leave Policy, Section 513.3.” If the plaintiffs, however, had

reviewed section 513.3 of the CPS Policy Manual, they would have found no express reference

to the reduction of the position-protected leave for principals to 12 weeks. Such modification

was effectuated through the adoption of section 4-12(b) of the Board Rules on August 28, 2013.

The Board’s correspondence directed the plaintiffs to a policy provision which potentially

provided for significantly greater position-protected leave than the Board provided for in its rules

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at that time.

¶ 29 We further observe that Hernandez was granted an extension of her leave of absence

through July 16, 2014, yet her contract was terminated pursuant to a letter dated May 23, 2014.

The letter indicated that the “job protection attached to [her] position as principal ended on May

1, 2014.” As to Larkin, she inquired in an email dated May 5, 2014: “If I no longer have job

protection, will I be given a similar assignment or will I be fired from CPS[?]” While the

relevant Board policy and rules discuss “position protection” – and the Board’s correspondence

referenced “job protection” – the exact meaning of these terms is not evident from the record.

During oral argument before this Court, the Board’s counsel indicated that he thought the parties

used these two terms interchangeably and that he was unaware of a reason “why one term was

used versus the other.” The Board’s counsel also represented that there is no definition of “job

protection” in the record. The imprecision of these key terms potentially resulted in

understandable confusion for the plaintiffs herein.

¶ 30 The employment contracts of both plaintiffs were then terminated pursuant to section

V(d) of the contracts based on the Board “effectuat[ing]” their resignations. Section V(d)

provides that the death, resignation, or retirement of the principal is a basis for termination. To

“resign” is to “formally announce one’s decision to leave a job or an organization.” Black’s Law

Dictionary (11th ed. 2019). In the instant case, however, both plaintiffs apparently wished to

remain in their respective positions; neither Hernandez nor Larkin voluntarily relinquished or

surrendered her principalship. Not only is the concept of constructive resignation absent from

the plaintiffs’ employment agreements, but it may contradict the parties’ intent to expressly

specify the particular reasons and methods for termination. See also 105 ILCS 5/34-8.1 (West

2014) (providing that “[d]uring the term of his or her performance contract, a principal may be

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removed only as provided for in the performance contract except for cause”). To the extent that

section 4-12(b) of the Board Rules – or the Board’s interpretation of such section – provides for

the possibility of constructive resignation, then it arguably conflicts with the express reasons and

methods for termination set forth in the plaintiffs’ employment contracts. Pursuant to section

XII(d) of the employment contracts, if a rule, policy, or procedure of the Board promulgated

during the term of the employment contract was inconsistent with the terms and conditions of the

contract, then the contract would control.

¶ 31 As noted above, we must consider whether the existence of a genuine issue of material

fact should have precluded the dismissal or, absent such an issue of fact, whether summary

judgment is proper as a matter of law. Monson, 2018 IL 122486, ¶ 12. For the reasons discussed

herein, we cannot conclude that the Board’s right to judgment was clear and free from doubt.

We therefore reverse the judgments of the circuit court granting summary judgment to the Board

and dismissing the lawsuits with prejudice.

¶ 32 CONCLUSION

¶ 33 The judgments of the circuit court of Cook County are reversed, and these matters are

remanded for additional proceedings consistent with this order.

¶ 34 Reversed; remanded.

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