2016 IL 120236

IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 120236) LYNNE BEGGS, Appellee, v. THE BOARD OF EDUCATION OF MURPHYSBORO COMMUNITY UNIT SCHOOL DISTRICT NO. 186 et al. (The Board of Education of Murphysboro Community Unit School District No. 186, Appellant). Opinion filed December 1, 2016. JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion. OPINION ¶1 Plaintiff, Lynne Beggs, a tenured teacher, was dismissed for cause from her employment by defendant, the Board of Education of Murphysboro Community Unit School District No. 186 (the Board). Plaintiff subsequently requested a hearing before a mutually selected hearing officer under section 24-12 of the Illinois School Code (Code or School Code) (105 ILCS 5/24-12 (West 2012)). Following a four-day hearing, the hearing officer issued findings of fact and recommended that plaintiff be reinstated to her position with back pay and benefits because the Board failed to prove by a preponderance of the evidence that she had violated a notice of remedial warning or that she had engaged in irremediable conduct that constituted grounds for dismissal. Thereafter, the Board, in a written order, dismissed plaintiff notwithstanding the findings of fact and recommendation of the hearing officer. Plaintiff filed a complaint in the circuit court of Jackson County seeking administrative review of her dismissal. The circuit court reversed the Board’s decision and ordered plaintiff reinstated with back pay and benefits. The appellate court affirmed. 2015 IL App (5th) 150018. We allowed the Board’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). ¶2 BACKGROUND ¶3 Plaintiff was a full-time tenured math teacher at Murphysboro High School, beginning her 18-year-long employment there during the 1993-94 school year. Plaintiff never received an unsatisfactory evaluation or one that rated her as needing improvement during that time. However, after the death of her father in the summer of 2011, plaintiff’s mother’s health began to deteriorate, resulting in frequent hospitalizations.1 As a result of assisting with her mother’s care, plaintiff was either absent from school or late in arriving for a considerable number of days during the 2011-12 school term. ^[2] The school administrators—including the principal, Vincent Turner, the assistant principal, Jeff Keener, and the superintendent, Christopher Grode—were aware of plaintiff’s mother’s declining health. Nonetheless, the administration became increasingly concerned over A few weeks after plaintiff’s discharge by the Board on April 30, 2012, plaintiff’s 1 mother died.

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plaintiff’s late arrivals, her failure to submit lesson plans on some occasions when she was absent, and the generally slow progress of her first-hour geometry class.

¶4 On January 30, 2012, Principal Turner issued a “Letter of Concern” to plaintiff, detailing a number of matters that plaintiff needed to correct. Specifically, the letter requested plaintiff to remedy her propensity to arrive late for work and her failure to submit lesson plans for the days she is absent or to timely submit plans for those days.

¶5 Plaintiff arrived late the next two days after receiving the letter, i.e., on February 1-2, 2012. Grode and Turner met with plaintiff on February 2 to discuss her late arrivals and her lesson plans. Grode told plaintiff that he knew she had again arrived late on that day and that he intended to recommend to the Board that it issue a “Notice of Remedial Warning.” Also on February 2, Grode gave plaintiff a letter documenting the two late arrivals since the warning letter of January 30, 2012, and noted that a remedial warning notice was being drafted. The letter of February 2 concluded by cautioning as follows: “Any further late arrivals to work will result in discipline including suspension without pay and possible termination. Please understand we consider this a very serious situation, and we expect you will correct it immediately.”

¶6 On February 8 and 10, 2012, plaintiff was again late to arrive at school. She met with school administrators on February 10, and she told them that she was late as a result of having to stay with and care for her mother the evening before. She was physically and mentally exhausted from the ordeal and had overslept. Plaintiff was suspended with pay from February 10, 2012, through February 21, 2012.

¶7 Superintendent Grode issued plaintiff a letter on February 15, 2012, memorializing the suspension and further noting that he was recommending that the Board issue a notice of remedial warning and suspend plaintiff without pay for a period of time. Grode’s letter noted that he was taking the action because of plaintiff’s continual tardiness, especially after the January 30, 2012, warning letter. Grode wrote, “When a teacher cannot arrive to school on time to instruct students, I cannot condone the action by the teacher.”

¶8 Grode also wrote a six-page letter for the Board, dated February 21, 2012, that detailed plaintiff’s late arrivals and recommended that the Board adopt a resolution

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authorizing the issuance of a notice of remedial warning. Grode also asserted in his letter to the Board that plaintiff’s late arrivals and absences from the classroom were having a detrimental impact on plaintiff’s first-hour students, as they were one chapter behind other geometry classes at the school.^[3]

¶9 On February 21, 2012, the Board suspended plaintiff without pay for the period running from February 10, 2012, through February 21, 2012, effectively converting her prior suspension with pay to one without pay. The Board also adopted a resolution authorizing a notice of remedial warning, which was issued to the plaintiff the next day on February 22, 2012.

¶ 10 The notice directed plaintiff to correct her “deficient and unsatisfactory” conduct, stemming from her absences and late arrivals, in the respects listed below:

“1. You were insubordinate when you failed to follow the written directive provided to you on January 30, 2012 *** [and] you arrived after the designated work day start time [on February 1, 2, 8 and 10].

2. You were insubordinate when you failed to follow [Grode’s] verbal directive to you on February 2, 2012, [and] you arrived past the designated start time on both February 8, 2012, and February 10, 2012.

3. You have repeatedly violated section 4.3 of the [CBA] in that you have continually arrived late for your job.

4. You have engaged in unprofessional conduct by leaving your classroom unattended and/or unsupervised during instructional time. This is a direct result of your failure to report to work as required by the [CBA], as well as the directives of your supervisors.

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5. You have engaged in unprofessional conduct of failing to use classroom and instructional time appropriately and effectively, resulting in misused or ineffective use of instructional time.[4]

6. You have engaged in unprofessional conduct by not timely reporting the grades of students assigned to your classroom.

7. You have engaged in unprofessional conduct by not preparing adequate lesson plans that will enable substitute teachers to provide adequate instruction for students during your absences.”

¶ 11 The Board’s notice stated that if any of the deficiencies listed above were “repeated any time in the next two years,” it may result in plaintiff’s dismissal.

¶ 12 Plaintiff returned to work on February 22 and 23, 2012, with no performance issues but then requested and was granted a leave of absence from her duties from February 27, 2012, through March 14, 2012, due to the continued failing health of her mother. Plaintiff was excused from her responsibilities to prepare and submit lesson plans during this extended leave.

¶ 13 Plaintiff voluntarily resumed her position and was present at school on March 19 and 20, 2012 (March 15 and 16 were school holidays). Because of her mother’s health, plaintiff again took sick leave on March 21, 22, 23, and 26, 2012. She returned to work on March 27, 2012, but was immediately suspended from her teaching position. On April 23, 2012, the administration advised her that it intended to recommend to the Board that her employment be terminated.

¶ 14 On April 30, 2012, the Board adopted a resolution to dismiss and to authorize a notice of dismissal pursuant to the School Code, which would terminate plaintiff’s employment and suspend her without pay pending a final disposition of the dismissal proceedings.

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¶ 15 Plaintiff timely requested a hearing before an impartial hearing officer. The parties agreed upon Jules I. Crystal to conduct the hearing, which was held for four days in January 2013. The Board argued at the hearing that plaintiff should be terminated because she violated the remedial notice in the following ways: (1) she did not effectively teach her first-hour geometry class when she returned to work on March 19, 2012, (2) she arrived late for work on March 20, 2012, and (3) she failed to have lesson plans available on March 21 and 22, 2012, when she was absent.

¶ 16 Carolina Badiano, an aide hired by the school to translate for a Spanish-speaking student, testified at the January 2013 hearing about the events that occurred during the first-hour geometry class on March 19, 2012. Badiano stated that plaintiff had arrived early for class on that day and was looking and sifting through papers at her desk, which “continued until after the [8:30] bell rang for like ten or 15 minutes.”5 Badiano testified that she felt compelled to bring the incident to the attention of the administration because, during the time plaintiff was looking at papers, students were “just sitting or on the phone or someone was sleeping.” Badiano acknowledged that after the first-hour bell, announcements begin, the pledge of allegiance is said, and teachers report attendance on the Teacherlogic computer system. Badiano further stated that during the 10- or 15-minute period in question, plaintiff was not answering questions from the students. However, when class did begin, plaintiff fielded questions from the class and retaught some material that they had not understood before moving on to a new section. Badiano also acknowledged that there was no confusion in the classroom the rest of the week about what should be covered.

¶ 17 Matt Morefield, a student in plaintiff’s first-hour geometry class, was called to testify by the Board. Morefield opined that it was the substitute teachers who were ineffective in teaching the first-hour class, not plaintiff. According to Morefield, there was never any concern expressed about plaintiff’s actual teaching; rather it was her absences that affected the students’ ability to learn because the substitute teachers were not as effective at presenting the material in a way that could be understood. Furthermore, Morefield testified that there were no problems with

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lesson plans in plaintiff’s first-hour class on March 21 and 22, 2012. Morefield explained that he delivered the lesson plans himself on March 21 to the substitute teacher, Mr. Sendek. In that regard, Morefield testified that he was on his way to class when Mr. Manwaring, another teacher at the school, called him aside to deliver plaintiff’s lesson plans that she had sent in for Mr. Sendek that day. Morefield then delivered the plans to Mr. Sendek within a minute of the 8:30 bell.

¶ 18 Plaintiff testified that she arrived at school at 8:10 a.m. on March 19, 2012. She knew her first-hour class would be somewhere around chapter 10, a chapter she was very familiar with, having taught it twice a year for the past 16 years to her geometry classes. When she arrived at her classroom, she unlocked the door and sat down at a desk to review notes that Mr. Sendek had left on it. She finished reviewing them by 8:30, at which time announcements were heard and the pledge of allegiance was said. This took about seven to eight minutes. A student then came into the class late, and plaintiff had one new student she was not aware of. She took attendance, and by this time it was 8:40. By that point, the students had been telling her that they did not understand the material taught by Mr. Sendek. Plaintiff perused Sendek’s notes again. She then answered questions and explained the theorems needed for the homework. Plaintiff denied that class began late and was emphatic that answering questions from students was in fact considered “teaching.”

¶ 19 Plaintiff further testified that on the evening of March 19, 2012, she visited her mother in the hospital in Cape Girardeau, Missouri. Her mother had contracted pneumonia, and when plaintiff left the hospital to return home, she did not know if her mother would make it through the night. Plaintiff called Superintendent Grode in the morning before school on March 20 to explain the situation and to tell him that she was going to be in after 8:15 a.m. but that she did not want to call in sick. Grode told her he would excuse the late arrival and that she would not be disciplined for it. She then arrived at school before 8:30 a.m. and taught her classes—including her first-hour geometry class—without incident.

¶ 20 Plaintiff also testified that on the evening of March 20, 2012, she received a call that her mother had suffered heart failure. Plaintiff called in sick on the morning of March 21 around 7 a.m. and told Linda Homan, a fellow teacher at the school, that she would send her the lesson plans for her first-hour geometry class. The transmittal note from the computer shows that Homan received the plans at 8:30

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a.m. On the evening of March 21, plaintiff called Keener, the assistant principal, and told him she would be on sick leave the rest of the week because of her mother’s illness. Plaintiff also called Homan, who again agreed to receive an e-mail of plaintiff’s lesson plans. The transmittal shows that those plans were received by Homan at 8:30 a.m. on March 22.

¶ 21 Linda Homan testified that she received plaintiff’s lesson plans by 8:30 a.m. on both March 21 and 22, 2012. Homan immediately took the lesson plans to the substitute teacher herself or had someone else do it. It would have only taken 5 to 10 seconds to take them to the classroom. Homan did not lose any of her own instruction time in helping out, and the plans would have been with Mr. Sendek well before announcements were completed.

¶ 22 Joseph Sendek testified that he was the substitute teacher during the period in February and March 2012 when plaintiff was either suspended or on sick leave from her first-hour geometry class. Sendek recalled substituting on March 21 and 22, 2012, for the first-hour class but could not recall whether lesson plans were available on those dates. He also did not recall if Grode had asked him about the availability of lesson plans for those days. Sendek testified that he used a department syllabus to plan for the class when he was substituting for the long stretch in February and March when plaintiff was out because of sick leave or suspension. Sendek stated that there were times when lessons plans were late, but this could have been in February, and he did not remember the dates for sure. Sendek offered that lesson plans should arrive before class starts because the substitute needs time to prepare for class. Sendek did not testify as to how much time he would need to review a lesson plan before starting to teach the class.

¶ 23 Christopher Grode testified that he was superintendent of schools for the district. He noted that he met with Badiano and Sendek on March 22, 2012, to discuss plaintiff’s conduct and took notes of his conversations. Grode’s notes indicated that plaintiff’s lesson plans were transmitted by computer at 8:30 a.m. on both March 21 and 22 and then had to be transported to Mr. Sendek at the classroom. Grode’s notes from his interviews also showed that lesson plans arrived late to the classroom on March 21 and 22, 2012. Grode testified that he excused plaintiff’s late arrival on March 20, 2012, but he did so because he would not have been able to get a substitute if plaintiff had gone ahead and taken a sick day.

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¶ 24 In a 67-page written recommendation, hearing officer Crystal concluded that the Board failed to establish by a preponderance of the evidence that plaintiff had violated the notice of remedial warning or that she had engaged in irremediable conduct warranting dismissal. Accordingly, the hearing officer recommended that plaintiff be reinstated to her position at the high school with no loss of seniority and that she be compensated with full back pay and benefits.

¶ 25 As to the events of March 19, Crystal found that plaintiff credibly testified as to how the first minutes of class were used (that being announcements, the pledge of allegiance, and addressing student complaints that they did not understand the material that the substitute teacher had covered) and that, due to Badiano’s lack of teaching experience generally and lack of math experience specifically, Badiano’s description should have “given the District pause before it placed such strong reliance on her assessment of what did or did not take place in the classroom.” Crystal found that the evidence did not show that plaintiff failed to use classroom time “appropriately and effectively” on March 19.

¶ 26 With respect to the events of March 20, 2012, the hearing officer found that plaintiff contacted Superintendent Grode early that morning to let him know that she would not be able to arrive at school by 8:15 a.m. because of her having had to deal with her mother’s health issues. The administration then agreed to excuse the late arrival, and plaintiff was able to arrive at school by 8:30 a.m. that day and teach her class.^[6]

¶ 27 As to the events of March 21 and 22, 2012, Crystal found that after learning of the gravity of her mother’s current condition on the evening of March 20, plaintiff contacted the school to relate her mother’s situation and to say that she would likely not be coming to work for the remainder of the week; plaintiff also contacted Homan to make an arrangements for e-mailing the lesson plans to Homan. Crystal noted that Homan confirmed that the lesson plans were received around 8:30 a.m. on March 21 and 22 at the school. Crystal found that while Sendek was a reliable witness at the hearing, Sendek could not remember whether lesson plans were

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available on March 21 and 22 or when they arrived in the classroom. Crystal conceded that plaintiff failed to fulfill her responsibility to the letter with respect to lesson plans on these days but concluded that lesson plans did in fact arrive and that the students were impacted minimally, if at all, by the timing of their arrival and that very serious parental health matters played a role in plaintiff’s actions on these days. Crystal did not find plaintiff’s conduct “to have been the type of serious breach of [the notice] such that it supported, or could form the basis of, the decision to terminate her.”

¶ 28 Crystal found that during the short remediation period following the notice, plaintiff had no unexcused late arrivals and fulfilled her obligations regarding substitute lesson plans. Crystal noted that while the directives were reasonable, he did not find that the perceived violations were either willful or intentional on plaintiff’s part. Crystal emphasized that plaintiff was not provided a “reasonable opportunity to correct the job performance deficiencies” and “the fact that the District permitted [plaintiff] to continue as a teacher yet perform her duties in what it viewed as an unacceptable manner for months before issuing its Notice does not privilege the District to compress the time period for potential remediation.” Crystal noted that plaintiff’s work history “point[s] to the very real possibility that the performance issues displayed by [plaintiff] during this period represent an anomaly in her teaching career” and, at a minimum, plaintiff “should have at least been given an opportunity to prove whether or not this is the case.”

¶ 29 The Board reviewed hearing officer Crystal’s findings of fact and recommendation. Under the authority of section 24-12(d) of the School Code (105 ILCS 5/24-12(d) (West 2012)), the Board supplemented Crystal’s fact findings, modified them where in its opinion they were against the manifest weight of the evidence, and made a final decision on July 30, 2013, to dismiss plaintiff despite Crystal’s recommendation to the contrary.

¶ 30 With respect to the events of March 20, 2012, the Board supplemented facts regarding plaintiff’s morning phone call to Grode, noting that he testified that when plaintiff called to say that she would be late on that day, she did not want Grode to “hold it against [her].” Grode explained that he decided to excuse her tardiness because there was no substitute teacher in place and he was aware that plaintiff’s first-period class was already behind in their coursework. The Board also

- 10 - supplemented plaintiff’s testimony, noting that she requested a reprieve that day because although she had been told to call in sick on any day that she thought she would be in after 8:15 a.m., she testified: “I don’t want to do [those] kinds of things to the District. I wanted to be there and I wanted to be there for my students.” ¶ 31 Regarding the lesson plans of March 21 and 22, 2012, the Board discredited Homan’s testimony, noting that it was “ambiguous and uncertain” as to the manner and timeliness of the substitute’s procurement of the lesson plans. The Board supplemented the facts with testimony from Morefield, a student in the class who stated at the hearing that it was obvious no lesson plan was available because the substitute teacher would leave the classroom to consult with other teachers, and “some days [the substitute teacher] would come back with one [and] some days he wouldn’t. And it was kind of obvious where he was getting them from.”7 ¶ 32 The Board also supplemented Crystal’s facts with testimony from then-Board President Mike Austin, who testified at the hearing that plaintiff dismissed the remedial warning and wanted to “play by her own rules” to the detriment of the students. Then-Board Vice President Mike Cripps testified that plaintiff was dismissed because she did not comply with the directives of the remedial letter—that is, at the time of dismissal, the issues of timely reporting to work, inadequate or nonexistent lesson plans, and insubordination for failure to comply with these requests remained. ¶ 33 In the “Decision and Conclusion” section of the Board’s decision, it found plaintiff’s conduct did not follow the Board’s directives and this provided sufficient cause for her dismissal. The Board found that plaintiff violated the notice of remedial warning in three ways: (1) by failing to timely report to work by 8:15 on March 20, 2012, (2) by failing to have lesson plans available to the substitute teachers, and (3) by failing to teach her students “from bell to bell” and therefore losing instruction time on March 19, 2012, as the “Board concludes there was at