Townsend, Gary v. Vallas, Paul , 256 F.3d 661 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2522 & 00-2999
GARY TOWNSEND,
Plaintiff-Appellee,
and
ALEX RILEY,
Plaintiff-Appellee, Cross-Appellant,
v.
PAUL VALLAS and MARILYN F. JOHNSON,
Defendants-Appellants, Cross-Appellees,
and
CHICAGO SCHOOL REFORM BOARD OF TRUSTEES,
also known as BOARD OF EDUCATION OF THE
CITY OF CHICAGO, a municipal corporation,
Defendant, Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 8080--William T. Hart, Judge.
ARGUED JANUARY 19, 2001--DECIDED July 9, 2001
Before FLAUM, Chief Judge, and POSNER and
RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Plaintiffs Gary
Townsend and Alex Riley brought this
action under 42 U.S.C. sec. 1983
("Section 1983") to challenge certain
employment actions taken after the
drowning death of a student in a Chicago
public school. Named as defendants were
the Chicago School Reform Board of
Trustees ("the Board") and two
administrators who were sued in their
individual capacities: Paul Vallas, the
Board’s Chief Executive Officer, and
Marilyn Johnson, the General Counsel of
the Board and the head of the Board’s Law
Department. The district court granted
summary judgment to the defendants with
respect to Mr. Riley’s claim that he had
been deprived of a liberty interest in
his occupation without due process of
law. The court denied summary judgment
with respect to Mr. Townsend’s claim that
the defendants infringed his property
right in a tenured teaching position
without due process of law. The court
further ruled that Mr. Vallas and Ms.
Johnson were not protected by qualified
immunity with respect to that claim.
For the reasons set forth in the
following opinion, we affirm the district
court’s grant of summary judgment to the
defendants regarding Mr. Riley’s claim.
However, we reverse the judgment of the
district court on the qualified immunity
issue.
I
BACKGROUND
A. Facts
On April 14, 1998, a number of freshmen
students at Chicago’s Julian High School
("Julian") participated in their seventh-
period physical education class. During
that month, the class was engaged in
swimming instruction. Mr. Townsend, a
tenured physical education instructor at
Julian, taught the class; Mr. Riley, a
part-time lifeguard and swimming coach at
the school, was responsible for lifeguard
duties during that class period./1 When
class ended at 2:28 p.m., the students
typically would have been dressed in
their school attire and would have
proceeded to their eighth-period classes.
On the next morning, April 15, 1998, the
body of Lloyd Wilson, Jr., a student in
that seventh-period class, was found at
the bottom of the school’s swimming pool.
It was unclear how this tragic death had
occurred. According to one theory, he had
drowned during the swimming class while
no one was watching. Another possibility
was that Wilson left the pool with the
other students at the end of class, but
later returned to the pool and drowned at
that time. Because of this uncertainty
regarding the cause of Wilson’s death,
Ms. Johnson, acting on behalf of the
Board, retained Martin Boyer Company
("Boyer") to investigate. The Chicago
Police Department also began its own
investigation into the accident.
On the same day that Wilson’s body was
discovered, the Board took action with
regard to Mr. Townsend and Mr. Riley, the
two members of the Julian staff who had a
supervisory role in Wilson’s seventh-
period class. The Board told Mr. Townsend
that he would be transferred to the
Board’s Central Office. This action was
taken pursuant to a Board policy that
calls for such a transfer, at least on a
temporary basis, when a teacher’s conduct
is at issue in a situation implicating
student safety. While at the Central
Office, Mr. Townsend had minimal duties;
he sat at a desk and occasionally made
telephone calls or was asked to pack
boxes for a move. Mr. Townsend did
receive his full teacher’s salary for the
entirety of his transfer. However, he
also had been assigned to coach fall,
winter and spring extracurricular sports
at Julian, coaching duties that provided
him with some additional income./2
During the time that Mr. Townsend worked
out of the Central Office, he did not
receive that additional income from
coaching. Unlike his teaching position,
Mr. Townsend’s coaching duties were not
protected by tenure. Mr. Townsend
remained at the Central Office until
February 8, 1999, when he returned to his
teaching position at Julian and resumed
his coaching duties./3
The Board also took immediate action
with respect to Mr. Riley on the same day
that Wilson’s body was discovered. Mr.
Riley was told not to report to Julian
for work until given further notice. At
no point in the future was Mr. Riley
contacted by the Board with instructions
to return to work.
Nearly two weeks after Wilson’s death,
the Board received the investigative
reports from both Boyer ("the Boyer
report") and the Chicago Police
Department ("the police report"); each
contained the results of interviews with
Julian faculty members and students. The
Boyer report noted that its author was
not able to interview Mr. Townsend
because of Mr. Townsend’s subsequent
hospitalization after the drowning due to
a stress-related condition. The Boyer
report does indicate that its author
spoke with Mr. Riley, who said that,
after the swimming class, he had
discovered a pile of clothes near the
pool, which later were found to belong to
Wilson./4 Mr. Riley then claimed to
have brought the clothes to Mr.
Townsend’s attention, but explained that
Mr. Townsend told him to leave them by
the pool and that someone later would
come to retrieve them. The Boyer report
goes on to state that, of the students
that its author interviewed, two girls
reported seeing Wilson enter the locker
room at the end of the swimming class,
although many others could not remember
seeing him at the class’ end. Attached to
the Boyer report are summaries of
interviews with school security guards
who claimed that Wilson was being bullied
by another student around the time of his
death and summaries of interviews with
two students who related that Wilson was
depressed and often spoke of killing
himself. Lastly, the Boyer report
contains summaries of interviews with a
number of Julian faculty members, who
indicated that they had entered the pool
area after the swimming class was over on
April 14 and looked in or around the
pool, but saw no one there. Ultimately,
the Boyer report concludes that, although
the cause of Wilson’s death may never be
known, "[i]t seems the body was most
likely in the pool [at the class’ end]
and no one looked with the degree of
concern to see it." R.31, Ex.8 at 105.
The report states that Mr. Riley, "if he
is to be believed, did not see the body
in the pool, and therefore did not
perform his duties as expected" and that
his failure to react with greater concern
when finding the clothing was "not
correct when only students were in the
pool area, and if clothes were found then
either a student is still in the area, or
a student went to class without clothes."
Id. at 106.
The police report also contains
summaries of interviews with Julian
faculty, staff and students./5 Included
in those summaries is the content of an
interview with Mr. Riley, in which he
again acknowledged that he found a pile
of clothing after the class and that he
subsequently checked the pool area for
students and saw no one there. The police
report states that Mr. Riley, after
inquiring of the students in the locker
room and finding that no one was missing
clothes, surveyed the pool area again and
then simply left the clothes where he
found them. The report also contained the
results of an interview with Mr.
Townsend. Focusing on the events
occurring after the class was over, it
notes that Mr. Townsend "related that he
then checked the pool. Coach Riley
mentioned something about clothes near
the shallow end of the pool. Coach
Townsend then went o[n] to coach a
baseball practice." R.31, Ex.9 at 5.
A few weeks after receiving these
reports, Ms. Johnson participated in an
interview with a reporter for the Chicago
Sun-Times regarding the issue of Wilson’s
death. In the article that followed, the
author notes that, in light of the events
surrounding the death, Ms. Johnson’s
recommendation was that Mr. Townsend
should be suspended without pay for
thirty days and that Mr. Riley should not
continue to be employed by the Board. The
article explains that Ms. Johnson
believed that these actions should be
taken due to Mr. Townsend and Mr. Riley’s
"failure to perform duties." R.34, Ex.12.
Mr. Riley did not receive a hearing
regarding his role in the circumstances
surrounding Wilson’s death. In August
1998, Mr. Riley made a request to
Julian’s principal that he be allowed to
return to work. He was told by the
principal that the Board had decided that
Mr. Riley no longer could be employed at
Julian or in any other Board facility.
Mr. Riley continued to remain employed at
this time as a swimming instructor for
the City Colleges of Chicago, a position
he had held since April 1998. He did not
seek any further employment to replace
the salary that he had earned as a part-
time member of Julian’s staff.
Mr. Townsend was never actually
suspended after his reassignment to the
Central Office on April 15, 1998. On June
10, he was served with charges, issued by
Mr. Vallas and Ms. Johnson, which claimed
that Mr. Townsend had violated multiple
Board rules in connection with Wilson’s
death and informed him that the Board
would seek a thirty-day suspension as a
result. A hearing was set for June 12,
but the Board requested a continuance.
That hearing was rescheduled for July 24;
however, on that date the Board decided
to again postpone the hearing until
discovery was completed in a wrongful
death action that had been filed by
Wilson’s estate.
On the same date that the hearing was
postponed for the second time, the Board
communicated to Mr. Townsend that it
would reinstate him to his prior status
at Julian in August 1998, the beginning
of the next school year. However, after
Wilson’s death, a great deal of unrest
had befallen Julian. A new principal was
having difficulty managing the staff, and
disciplinary problems among students were
on the rise. Moreover, Wilson’s drowning
had caused psychological upset among
students and anger on the part of parents
who wanted the Board to take satisfactory
measures to bring closure to the
incident. As these problems increased and
as the beginning of the 1998-99 school
year drew closer, the defendants met with
Blondean Davis, the Chief of Schools and
Regions for the Chicago public schools.
Davis expressed concern that the return
of Mr. Townsend to Julian at that time
would contribute significantly to the
volatile climate at the school. The
defendants agreed with Davis’ concerns
and, as a result, the three determined
that Mr. Townsend’s return to Julian
would be delayed. Ultimately, on February
8, 1999, Mr. Townsend was reinstated to
his teaching and coaching duties at
Julian. No hearing has been held
regarding the disciplinary charges that
were filed against Mr. Townsend, and no
suspension has been imposed against him.
B. District Court Proceedings
The plaintiffs filed a complaint in the
district court, alleging violations of
Section 1983 against the Board and
against Mr. Vallas and Ms. Johnson in
their individual capacities. Mr. Riley
claimed that the defendants deprived him
of a liberty interest in his occupation
without due process by stigmatizing him
with allegations that he was responsible
for Wilson’s death and by not allowing
him a hearing to clear his name. Mr.
Townsend maintained that he was deprived
of a property interest in his tenured
teaching position without due process
when the Board reassigned him to the
Central Office and did not provide him
with a timely hearing regarding the
charges against him./6 In response, the
defendants filed a motion for summary
judgment on all of the plaintiffs’
claims.
The district court granted the
defendants’ summary judgment motion as to
Mr. Riley’s claim. It held that Mr. Riley
could not demonstrate that a liberty
interest in his occupation was infringed
by the statements that Ms. Johnson made
to the Chicago Sun-Times. The court
explained that Mr. Riley had failed to
satisfy one of the elements necessary to
make such a claim because he had not
demonstrated a tangible loss of other
employment opportunities as a result of
the allegedly stigmatizing statements.
The court explained that Mr. Riley had
put forward no evidence that he had
sought employment after Ms. Johnson’s
statements appeared and that he had been
turned down due to those statements. It
also noted that the evidence showed that
Mr. Riley continued to remain employed as
a swimming teacher with the City Colleges
of Chicago after the statements were
made.
The court, however, did not grant
summary judgment with respect to Mr.
Townsend’s procedural due process claim.
First, it held that, based on Illinois
state law, Mr. Townsend had a property
interest in being assigned to a certified
teaching position; it determined that his
temporary assignment to the Central
Office (a position that involved no
teaching duties) constituted a "removal"
from his teaching position under Illinois
law and, therefore, was a deprivation of
that property right. Next, the court,
reading our decision in Swick v. City of
Chicago, 11 F.3d 85 (7th Cir. 1993), to
require an economic impact on a
plaintiff’s employment to establish the
deprivation of a constitutionally
protected property interest, found such a
loss in Mr. Townsend’s inability to earn
additional income from his coaching
duties during his reassignment period.
The court next determined that the
defendants could be said to have violated
Mr. Townsend’s due process rights. In its
view, Mr. Townsend had been suspended
from his teaching position with pay when
he was reassigned to the Central Office.
Because that action had been taken
initially due to the Board’s significant
interest in overseeing student safety,
the court held that the lack of a hearing
before the reassignment did not violate
due process. However, the court went on
to note that over time, the Board
continued to keep Mr. Townsend at the
Central Office not because of student
safety concerns, but because of the
turmoil at Julian. In the district
court’s view, at that point there was no
governmental interest that justified
keeping Mr. Townsend out of teaching, and
he should have been returned to a
teaching position at another school, if
not at Julian. The court also held that,
even if the defendants did have an
adequate justification for keeping Mr.
Townsend at the Central Office during
this time, he was entitled to a
reasonably prompt hearing after his
reassignment.
Lastly, the court held that Mr.
Townsend’s claim could also have
succeeded on the rationale that his
assignment to a position with very
minimal duties at the Central Office
constituted a constructive discharge
actionable as a property deprivation.
The court then determined that Mr.
Vallas and Ms. Johnson were not entitled
to qualified immunity. It held that,
prior to April 1998, Illinois law was
well established that Mr. Townsend’s
reassignment to the Central Office was a
removal from his teaching position that
constituted a constitutionally cognizable
deprivation of property. It further held
that the law of this court was well
established that Mr. Townsend’s loss of
coaching income was a sufficient
pecuniary loss to trigger due process
protections. The court also explained
that, although the law was not well
established in April 1998 as to when a
public employee who is suspended with pay
must receive a post-suspension hearing,
the law was clear that some sort of
meaningful time limit applied, one that
was exceeded by the period during which
Mr. Townsend was reassigned to the
Central Office. Lastly, the court noted
that, as to the constructive discharge
rationale, the law also was clearly
established prior to Mr. Townsend’s
reinstatement that this conduct amounted
to such a discharge even when an employee
did not quit his job. As a result, the
court ruled that Mr. Vallas and Ms.
Johnson were not entitled to qualified
immunity on Mr. Townsend’s procedural due
process claim.
After the district court denied both
parties’ motions to reconsider, Mr. Riley
then appealed the decision regarding his
liberty interest claim. Mr. Vallas and
Ms. Johnson filed a separate
interlocutory appeal on the issue of
whether they are entitled to qualified
immunity as to Mr. Townsend’s due process
claim.
II
DISCUSSION
A. Standard of Review
We review a district court’s decision
to grant or deny summary judgment de
novo. See Biblia Abierta v. Banks, 129
F.3d 899, 902 (7th Cir. 1997). Summary
judgment is properly entered in favor of
the moving party when "the pleadings,
depositions, answers to interrogatories,
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." Fed. R.
Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In
determining whether a genuine issue of
material fact exists, we must construe
all facts in the light most favorable to
the non-moving party and draw all
reasonable inferences in favor of that
party. See Mt. Sinai Hosp. Med. Ctr. v.
Shalala, 196 F.3d 703, 707 (7th Cir.
1999); Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 562 (7th Cir. 1996).
B. Mr. Riley’s Liberty Interest Claim
Mr. Riley claims that the defendants
deprived him of a liberty interest in his
occupation when they dismissed him from
his position at Julian and then made
statements to the Chicago Sun-Times, in
the interview given by Ms. Johnson, to
the effect that Mr. Riley should not be
rehired by the Board due to his "failure
to perform duties" in the events
surrounding Wilson’s death. R.37 at 9. To
set forth a violation of Section 1983,
Mr. Riley "must show that ’the conduct
complained of was committed by a person
acting under color of state law’ and
’this conduct deprived a person of
rights, privileges, or immunities secured
by the Constitution or laws of the United
States.’" Strasburger v. Board of Educ.,
Hardin County Cmty. Unit Sch. Dist. No.
1, 143 F.3d 351, 355 (7th Cir. 1998)
(quoting Parratt v. Taylor, 451 U.S. 527,
535 (1981)). In Board of Regents v. Roth,
408 U.S. 564 (1972), the Supreme Court
held that the state may infringe a
plaintiff’s liberty interest when, in
declining to rehire an employee, it makes
a "charge against him that might
seriously damage his standing and
associations in his community" that
places his "good name, reputation, honor,
or integrity . . . at stake" or when, in
failing to rehire, it imposes on the
plaintiff "a stigma or other disability
that foreclosed his freedom to take
advantage of other employment
opportunities." Id. at 573. The Court has
emphasized that, to implicate a liberty
interest, such charges of defamation must
be coupled with the alteration of a legal
status, such as the loss of an employment
position. See Paul v. Davis, 424 U.S.
693, 708-10 (1976); see also Ratliff v.
City of Milwaukee, 795 F.2d 612, 625 (7th
Cir. 1986). We have interpreted Roth to
indicate that a liberty interest may be
threatened in two types of situations
when the government removes someone from
an employment position: "(1) the
individual’s good name, reputation, honor
or integrity are at stake by such charges
as immorality, dishonesty, alcoholism,
disloyalty, Communism or subversive acts;
or (2) the state imposes a stigma or
other disability on the individual which
forecloses other opportunities." Munson
v. Friske, 754 F.2d 683, 693 (7th Cir.
1985). Mr. Riley claims that, in
conjunction with his termination, Ms.
Johnson’s statements/7 deprived him of
a liberty interest in pursuing the
occupation of his choice; he maintains
that the statements both seriously
damaged his good name, reputation, honor
and integrity and imposed a stigma upon
him that foreclosed future employment
opportunities./8 He charges that the
Board’s failure to provide him with a
name-clearing hearing after these
statements were made violated his due
process rights.
We have explained that, when an employee
claims that a government employer has
infringed his liberty to pursue the
occupation of his choice, the employee
must show that (1) he was stigmatized by
the defendant’s conduct, (2) the
stigmatizing information was publically
disclosed and (3) he suffered a tangible
loss of other employment opportunities as
a result of public disclosure. See Head
v. Chicago Sch. Reform Bd. of Trustees,
225 F.3d 794, 801 (7th Cir. 2000);
Strasburger, 143 F.3d at 356; Johnson v.
Martin, 943 F.2d 15, 16 (7th Cir. 1991).
We also have noted that, at the heart of
every claim that an employer has
infringed an employee’s liberty of
occupation, is a charge that the
"circumstances of the discharge, at least
if they were publically stated, had the
effect of blacklisting the employee from
employment in comparable jobs." Colaizzi
v. Walker, 812 F.2d 304, 307 (7th Cir.
1987)./9 In such cases, the employee’s
good name, reputation, honor or integrity
must be called into question in a manner
that makes it virtually impossible for
the employee to find new employment in
his chosen field. See Head, 225 F.3d at
801; Olivieri v. Rodriguez, 122 F.3d 406,
408 (7th Cir. 1997); Lashbrook v.
Oerkfitz, 65 F.3d 1339, 1348-49 (7th Cir.
1995); Ratliff, 795 F.2d at 625.
The district court held that Mr. Riley
could not satisfy the third part of the
three-part test set forth above because
he did not make a showing that
prospective employment opportunities have
been foreclosed to him due to Ms.
Johnson’s allegedly defamatory
statements. We agree. Mr. Riley admits
that, after being dismissed from Julian,
he sought no additional employment
opportunities and therefore was not
turned down by any potential employer due
to Ms. Johnson’s statements./10
Moreover, although he claims that those
statements have made him virtually
unemployable in his chosen profession,
Mr. Riley was not discharged from his
position as a swimming instructor with
the City Colleges of Chicago after the
statements were made, and, as far as the
record shows, he continues to work in
that position today.
Mr. Riley argues that an employee should
not be required to show that the
defamation in question caused the
tangible loss of employment
opportunities; he maintains that such a
requirement diminishes the rights of
public employees and serves no real
purpose. However, regarding such liberty
interest claims, the Supreme Court noted
in Roth that "[i]t stretches the concept
too far to suggest that a person is
deprived of liberty when he simply is not
rehired in one job but remains as free as
before to seek another." Roth, 408 U.S.
at 575. As a result, the Court indicated
that a cognizable constitutional claim
required proof that an employer’s actions
significantly foreclosed an employee’s
future employment prospects to a degree
amounting to a deprivation of liberty.
See id. at 574 n.13 ("Mere proof, for
example, that [the plaintiff’s] record of
non-retention in one job, taken alone,
might make him somewhat less attractive
to some other employers would hardly
establish the kind of foreclosure of
opportunities amounting to a deprivation
of ’liberty.’"). In line with the Supreme
Court’s direction, we have required that
a plaintiff’s claim establish that
hisfuture employment opportunities have
been curtailed so significantly that a
liberty interest was implicated. See Zaky
v. United States Veterans Admin., 793
F.2d 832, 840 (7th Cir. 1986) (explaining
that a court should not simply assume,
based on a plaintiff’s assertions, that a
wide variety of opportunities have been
foreclosed). Therefore, a requirement
that the employee show that he suffered a
tangible loss of other employment
opportunities is consistent with the case
authority insisting that a liberty
interest claim not be unduly speculative.
When a plaintiff cannot make such a
showing, his liberty interest claim must
fail. See Lashbrook, 65 F.3d at 1349;
Fittshur v. Village of Menomonee Falls,
31 F.3d 1401, 1409-10 (7th Cir. 1994);
Vukadinovich v. Board of Sch. Trustees of
the Michigan City Area Schs., 978 F.2d
403, 413 n.7 (7th Cir. 1992); Oshe v.
Hughes, 816 F.2d 1144, 1150 (7th Cir.
1987), vacated on other grounds, 485 U.S.
902 (1988); Munson, 754 F.2d at 694.
Mr. Riley also argues that he has put
forward sufficient evidence to
demonstrate that he is all but
unemployable in his chosen profession due
to the Board’s actions. He asserts that,
when he approached Julian’s principal in
August 1998 and requested his
reinstatement at the school, the
principal told Mr. Riley that the Board
had forbidden her from employing him and
had made it clear that Mr. Riley could
not work for any Board facility. Mr.
Riley maintains that precluding him from
working in any school in the Chicago
public school system should suffice to
demonstrate that his liberty of
occupation has been violated. In support
of that claim he relies upon Larry v.
Lawlor, 605 F.2d 954, 956 (7th Cir.
1978), a case in which a plaintiff
applied to the Civil Service Commission
("the Commission") and requested to be
placed on a list of eligible applicants
for employment consideration by various
departments of the federal government. In
Larry, we held that the plaintiff had
demonstrated a tangible loss of
employment opportunities sufficient to
implicate a liberty interest. See id. at
958-59. The Commission’s investigative
report, which rated the plaintiff’s
application ineligible due to his
unsatisfactory employment record and his
habitual use of alcohol, barred him from
all federal employment for up to three
years. See id. at 956. Notably, the court
relied upon Justice Jackson’s comment in
Anti-Fascist Committee v. McGrath, 341
U.S. 123 (1951), that a bar from
government employment is "no small
injury" when "government employment so
dominates the field of opportunity." Id.
at 958 (quoting McGrath, 341 U.S. at 185
(Jackson, J., concurring)); cf. Perry v.
F.B.I., 781 F.2d 1294, 1299-1303 (7th
Cir. 1986) (en banc) (distinguishing
Larry as a case involving the absolute
ban of all government employment for a
significant time period).
In this case, Mr. Riley has not
demonstrated a bar to his employment
opportunities similar to the magnitude of
that present in Larry. As the district
court noted, Mr. Riley did not actually
seek employment at any other Board
facilities. See R.44 at 3 (ruling on
motions for reconsideration). Even
assuming that he was banned from
employment with the Chicago public
schools, the court noted that "the
Chicago school system is one of many
school systems in the metropolitan area
and state" and is "an entity distinct
from the City of Chicago, the Chicago
Park District, and numerous other
municipal entities in the metropolitan
area." Id. at 4 n.4. With many potential
employment opportunities as a swimming
instructor still available to him and
with no demonstration that the Board’s
comments have prevented him from
obtaining one of those jobs, Mr. Riley
cannot demonstrate that his liberty has
been infringed in the manner required by
the case law. Indeed, the evidence demon
strates that, contrary to Mr. Riley’s
assertions of unemployability, he
continues to hold a job with the City
Colleges of Chicago as a swimming
instructor. Cf. Bordelon v. Chicago Sch.
Reform Bd. of Trustees, 233 F.3d 524, 531
(7th Cir. 2000) (concluding that
plaintiff’s renewal as principal
afteremployer’s stigmatizing conduct
meant he could not show that it was
"virtually impossible" for him to find
employment in chosen field); Oshe, 816
F.2d at 1150 (holding that evidence that
plaintiff found employment after
termination demonstrated that plaintiff
could not show liberty deprivation);
Munson, 754 F.2d at 694 (concluding that
plaintiff’s claim that he was "virtually
unemployable" was undercut by evidence
that he was able to secure part-time and
then full-time employment after
termination by employer). As a result, we
agree with the district court that Mr.
Riley’s liberty interest claim must fail.
C. Mr. Vallas and Ms. Johnson’s Claim of
Qualified Immunity
We now turn to Mr. Vallas and Ms.
Johnson’s assertion that they are
entitled to qualified immunity for their
actions with respect to Mr. Townsend’s
due process claim. "[G]overnment
officials performing discretionary
functions generally are granted a
qualified immunity and are ’shielded from
liability for civil damages insofar as
their conduct does not violate clearly
established statutory or constitutional
rights of which a reasonable person would
have known.’" Wilson v. Layne, 526 U.S.
603, 614 (1999) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
Whether an official may be held
personally liable for his or her unlawful
actions turns on "the objective legal
reasonableness of the action, assessed in
light of the legal rules that were
clearly established at the time it was
taken." Wilson, 526 U.S. at 614
(quotation marks and citations omitted);
see also May v. Sheahan, 226 F.3d 876,
881 (7th Cir. 2000). In order to be
"clearly established," the contours of a
right asserted must be sufficiently clear
that a reasonable official would
understand that what he or she is doing
violates that right. See Anderson v.
Creighton, 483 U.S. 635, 640 (1987); May,
226 F.3d at 881.
As a general rule, a "court evaluating
a claim of qualified immunity must first
determine whether the plaintiff has
alleged the deprivation of an actual
constitutional right at all, and if so,
proceed to determine whether that right
was clearly established at the time of
the alleged violation." Wilson, 526 U.S.
at 609 (citation and internal quotation
marks omitted); see also Saucier v. Katz,
No. 99-1977, 2001 WL 6722265, at *4-5
(U.S. June 18, 2001); County of
Sacramento v. Lewis, 523 U.S. 833, 841
n.5 (1998); Jacobs v. City of Chicago,
215 F.3d 758, 766 (7th Cir. 2000)./11
Deciding the constitutional question
before addressing whether a right was
clearly established "promotes clarity in
the legal standards for official conduct,
to the benefit of both . . . officers and
the general public." Wilson, 526 U.S. at
609.
To establish a violation of Section
1983, Mr. Townsend claims that the
defendants deprived him of a property in
terest in his tenured teaching position
without due process of law. "Procedural
due process claims require a two-step
analysis. The first step requires us to
determine whether the plaintiff has been
deprived of a protected interest;
thesecond requires a determination of
what process is due." Strasburger, 143
F.3d at 358. In this case, Mr. Townsend
points to Illinois state law to establish
the property interest at issue. See Pleva
v. Norquist, 195 F.3d 905, 914 (7th Cir.
1999). The district court concluded that,
according to Illinois law, Mr. Townsend
"had a property interest in being
assigned to a certified teaching
position" and that his temporary
reassignment "to the Central Office
without any teaching duties therefore
constituted removal from his teaching
position, a deprivation of his property
interest." R.37 at 20. We respectfully
part company from the district court on
this point. In our view, the Board’s
actions did not deprive Mr. Townsend of a
protected property interest.
The parties agree that Mr. Townsend,
having served the proper probationary
period, was a tenured teacher and that,
under Illinois law, he may not "be
removed except for cause." 105 ILCS
5/34-85; see also Shegog v. Board of
Educ. of City of Chicago, 194 F.3d 836,
837 (7th Cir. 1999). Consequently, Mr.
Townsend had a protected property
interest in his teaching position. See
Gleason v. Board of Educ. of City of
Chicago, 792 F.2d 76, 79 (7th Cir. 1986);
Patkus v. Sangamon-Cass Consortium, 769
F.2d 1251, 1263 (7th Cir. 1985).
The district court also concluded that
Mr. Townsend suffered a deprivation of
this property right because the
defendants’ actions constituted removing
him from his teaching position. In
evaluating this aspect of the district
court’s decision, we begin by noting that
the purpose of the tenure provisions of
the Illinois Code is "to assure teachers
of experience and ability a continuous
service and rehiring based upon merit
rather than failure to be rehired
forreasons that are political, partisan
or capricious." Hansen v. Board of Educ.
of Sch. Dist. No. 65, 502 N.E.2d 467, 471
(Ill. App. Ct. 1986). In line with this
purpose, the word "removed" as used in
the tenure statutes has been interpreted
not to be limited to instances of
complete termination, but to instead
encompass any reduction in the extent of
employment. See Hansen, 502 N.E.2d at
472; Caviness v. Board of Educ. of Ludlow
Cmty. Unit Sch. Dist. No. 2, Madison
County, 375 N.E.2d 157, 158-59 (Ill. App.
Ct. 1978) (noting that otherwise, "a
board could merely nibble away and reduce
one’s employment until economic necessity
forced the tenured teacher to resign").
As a result, a teacher is "removed" from
his position when the length of his
contract or the amount of hours
associated with his teaching duties are
permanently reduced. See Birk v. Board of
Educ. of Flora Cmty. Unit Sch. Dist. No.
35, Clay County, 472 N.E.2d 407, 409
(Ill. 1984) (per curiam) (teacher’s
contract reduced from ten months to nine
months); Caviness, 375 N.E.2d at 158-59
(teacher’s contract reduced from full-
time to part-time); see also Costello v.
Governing Bd. of Lee County Special Educ.
Ass’n, 623 N.E.2d 966, 978 (Ill. App. Ct.
1993) (same). However, a transfer or
reassignment is not a removal when it
does not move a teacher out of a position
for which he has received tenure as a
certified employee. See Bart v. Board of
Educ. of City of Chicago, 632 N.E.2d 39,
42-43 (Ill. App. Ct. 1993) (holding that
because Section 34-84 of school code
referred only to "teachers and
principals" and plaintiff was transferred
from assistant principal position to
teacher position, plaintiff did not have
tenure in assistant principal position
for which he was not certified); Newby v.
Board of Educ., Lake Zurich Cmty. Unit
Sch. Dist., No. 95, 368 N.E.2d 1306, 1307
(Ill. App. Ct. 1977) (holding that
reassignment from guidance counselor
position to teaching position did not
deprive plaintiff of property interest
when plaintiff only acquired tenure as
certified employee of the school
district).
In determining that Mr. Townsend was
"removed" from his teaching position in
this case, the district court placed
significant reliance on Hansen v. Board
of Educ. of Sch. Dist. No. 65, 502 N.E.2d
467 (Ill. App. Ct. 1986). In that case,
the plaintiff was a tenured music teacher
who, due to poor job performance, was
permanently reassigned to an "itinerant"
position that required him to monitor
students while they used school buses,
ate and attended study hall. Hansen, 502
N.E.2d at 470. The new position involved
no substantive teaching responsibilities.
See id. The Board of Education authorized
the hiring of a replacement teacher and
froze the plaintiff’s salary at the
previous year’s level. See id. The salary
freeze was imposed, the superintendent
testified, because the plaintiff’s new
duties were not worth more money. See id.
The Illinois Appellate Court held
thatbecause, under the applicable tenure
law, 105 ILCS 5/24-12,/12 the
plaintiff was required to be certified as
a teacher, he had acquired tenure as a
teacher. See id. at 472. As a result,
because the plaintiff’s reassignment had
deprived him of all teaching
responsibilities, the court found the
Board’s action to be the equivalent of a
removal or dismissal under the tenure
law. See id.
We do not believe that the circumstances
of Mr. Townsend’s case are similar to
those in Hansen or to the other cases
previously noted in which Illinois courts
have found a teacher to be "removed" from
his teaching position. Each of those
cases involved the permanent or
indefinite shelving of a tenured teacher
in a new, lesser type of employment
status with tangible economic
ramifications. See Costello, 623 N.E.2d
at 978; Hansen, 502 N.E.2d at 470; Birk,
472 N.E.2d at 408; Caviness, 375 N.E.2d
at 158. In Mr. Townsend’s case, however,
the Board only temporarily transferred
him from his teaching position, pending
an investigation regarding the death of a
child, and it provided Mr. Townsend with
his full teacher’s salary while it did
so. Within two months, the Board alerted
him that it would not seek more than a
thirty-day suspension in the matter; soon
after that, it indicated that he would be
returned to his teaching position at
Julian in the future. This type of
temporary reassignment in the wake of a
serious safety incident is a foreseeable
aspect of the duties of being a teacher.
We do not believe that Illinois courts
would say that the defendants
"rearrange[d] teaching positions or
assignments in ways which defeat the
rights of tenured teachers and circumvent
the purpose and spirit of the tenure
laws." Hansen, 502 N.E.2d at 471.
Consequently, such a temporary removal
from the classroom, specifically
circumscribed for an important
educational purpose, does not constitute
a removal from a teaching position that
can be characterized as the deprivation
of a cognizable property right.
In Spinelli v. Immanuel Lutheran
Evangelical Congregation, Inc., 515
N.E.2d 1222, 1229-30 (Ill. 1987), the
Illinois Supreme Court interpreted
Section 24-12’s "removal or dismissal"
language not to include temporary
suspensions, but indicated that tenured
teachers who face suspension are entitled
to procedural due process. Both Section
24-12 and Section 34-85 (at issue in Mr.
Townsend’s case) provide that, in the
process of seeking to remove or dismiss a
teacher, if the Board deems it necessary,
it may suspend that teacher pending a
hearing, but if acquitted the teacher
shall not suffer any loss of salary by
reason of the suspension. See 105 ILCS
secs. 5/24-12 & 5/34-85. Following
Spinelli, there is some authority for the
proposition that Illinois grants a
tenured teacher a property interest in
employment without suspension. See
Sweeney v. Board of Educ. of Mundelein
Consol. High Sch. Dist. 120, Lake County,
Ill., 746 F. Supp. 758, 765 (N.D. Ill.
1990). Although the Board told Mr.
Townsend it would seek his suspension, he
never actually was suspended in this
case, nor do we believe that the sort of
temporary removal from teaching duties,
without significant economic impact,
involved in this case can be considered
as tantamount to a suspension. We
therefore need not decide definitively
whether, as some courts have indicated,
Illinois teachers only have a property
right in not being suspended without pay,
such as was the case in Spinelli. See
Sweeney, 746 F. Supp. at 766 n.17; Massie
v. East St. Louis Sch. Dist., #189, 561
N.E.2d 246, 249-50 (Ill. App. Ct. 1990);
Combs v. Board of Educ. of Avon Ctr. Sch.
Dist. No. 47, 498 N.E.2d 806, 810 (Ill.
App. Ct. 1986); Fender v. School Dist.
No. 25, Arlington Heights, Cook County,
347 N.E.2d 270, 276-77 (Ill. App. Ct.
1976).
Even if we were to consider Mr.
Townsend’s temporary reassignment as
tantamount to a suspension, under the
existing case law, a suspension with pay
would not constitute the deprivation of a
property right subject to federal
constitutional protections. See Gilbert
v. Homar, 520 U.S. 924, 929-30 (1997);
Board of Educ. v. Loudermill, 470 U.S.
532, 544-45 (1985); Levenstein v.
Salafsky, 164 F.3d 345, 351 (7th Cir.
1998); Crim v. Board of Educ. of Cairo
Sch. Dist. No. 1, 147 F.3d 535, 546-47 &
n.25 (7th Cir. 1998). In this case,
during Mr. Townsend’s temporary
reassignment to the Central Office, he
received his full teacher’s salary. The
district court found that this meant that
"[e]ssentially, [Mr. Townsend] was
suspended with pay." R.37 at 24-25.
However, the court further noted that,
while at the Central Office, Mr. Townsend
lost the opportunity to receive pay for
his duties as a coach of extracurricular
sports. In the district court’s view,
this loss of the opportunity to earn
additional income, not attributable to
his tenured position as a teacher,
requires that we characterize this
situation as a suspension without pay
triggering federal due process
protections. In our view, the temporary
loss of this possibility for additional
income does not warrant the
characterization given the situation by
the district court. We have recognized
that removal or suspension from a tenured
position might produce indirect economic
effects that trigger the protection of
the Due Process Clause. See Bordelon v.
Chicago Sch. Reform Bd. of Trustees, 233
F.3d 524, 530-31 (7th Cir. 2000); Swick
v. City of Chicago, 11 F.3d 85, 86 (7th
Cir. 1993). Nevertheless, we do not
believe that the temporary loss of this
possibility for additional income is the
sort of deprivation that triggers the
protection of federal due process. We
have stated that deprivations of property
"are not actionable under the
Constitution unless they are atypical and
significant in relation to the inevitable
’deprivations’ that people suffer as a
result of contractual disputes and the
other ordinary frictions of life."
Baerwald v. City of Milwaukee, 131 F.3d
681, 683 (7th Cir. 1997). We believe that
Mr. Townsend’s loss of income from
coaching jobs not protected by tenure
rights was a foreseeable possibility for
any teacher in this situation, one that
would not impact a constitutionally
cognizable property right. Cf. Baerwald,
131 F.3d at 683 (noting that "it cannot
be that every dispute over sick leave, or
every interruption in pay because of an
injury or illness, or every denial of a
fringe benefit . . . is, unlike
discharge, or suspension without pay, or
permanent refusal to reinstate, a
constitutional controversy just because
the employee is a tenured public
employee.") (internal citations omitted);
Altman v. Hurst, 734 F.2d 1240, 1242 (7th
Cir. 1984) (holding that plaintiff’s
expectation interest in scheduling of
vacation time was "not the stuff of
constitutional torts"); Brown v. Brienen,
722 F.2d 360, 365 (7th Cir. 1983)
("Disputes over overtime, over work
assignments, over lunch and coffee breaks
do not implicate the great objects of the
Fourteenth Amendment.").
There also was some discussion in the
district court’s opinion and at oral
argument about whether Mr. Townsend could
have been placed temporarily in a
teaching position at another school
during the time when his return to Julian
was delayed, or whether he ever sought
such an action. Both the complaint and
the demand letter that Mr. Townsend’s
attorney sent to the Board during his
reassignment indicate only that he wished
to be returned to his teaching position
at Julian. See R.1 at 7 & R.34 at Ex.7.
Assuming that the matter is properly
before us, we do not think that the
defendants’ decision to delay Mr.
Townsend’s return to Julian until calm
had returned to the educational
environment ought to alter our basic
analysis. The temporary nature of the
removal made any burden on the tenure
rights of Mr. Townsend within the
foreseeable bounds of his expectations.
As an alternative ground for its
decision, the district court concluded
that Mr. Townsend could claim a
deprivation of a property interest on the
theory that the Board’s actions amounted
to a constructive discharge. A
constructive discharge is a situation in
which an employer, without firing an
employee, makes his working conditions so
miserable that a reasonable person would
be compelled to resign. See Hunt v. City
of Markham, 219 F.3d 649, 655 (7th Cir.
2000); Brown v. Ameritech Corp., 128 F.3d
605, 608 (7th Cir. 1997). On appeal, Mr.
Townsend maintains that the district
court’s conclusion was correct and
analogizes this case to that described in
Parrett v. City of Connersville, 737 F.2d
690, 694 (7th Cir. 1984). In Parrett, an
Indiana police detective was permanently
reassigned to a "line captain" position.
Id. at 693. He had a property right in
the latter position and could be removed
only for cause and only after notice and
a hearing. See id. at 694. Nevertheless,
in this position, the plaintiff was
assigned no police duties, was forced to
sit in a windowless room that was
formerly a storage closet and spent his
entire shift at a desk with nothing to
do. See id. at 693. This "enforced
idleness" caused him to suffer a nervous
collapse and prompted his retirement from
the police force. Id. We held that such
conditions amounted to a constructive
discharge, as the "[e]nforced idleness
was not only a humiliating counterpoint
to [the plaintiff’s] years as detective
chief but would if prolonged have
depreciated his professional skills to
the point where it would have been
difficult for him to work his way back .
. . to a responsible position." Id. at
694; see also Wozniak v. Conry, 236 F.3d
888, 889 (7th Cir. 2001) (holding that
plaintiff university professor could
survive summary judgment on constructive
discharge claim where university removed
him from tenured faculty position, barred
him from teaching future classes,
cancelled his research funds and
permanently reassigned him to manage a
Web site), cert. denied, No. 00-1570,
2001 WL 378861 (U.S. June 11, 2001);
Levenstein, 164 F.3d at 351 (finding that
constructive discharge was adequately
alleged where university forbid
plaintiff, a physician with a reputation
spanning several continents, from seeing
patients for eleven months and then
permanently reassigned him to a job
reviewing old medical training videotapes
from his home, forcing him to resign).
We believe that the facts of this case
are far different than those in Parrett
and that they do not support recovery on
the ground that Mr. Townsend was
constructively discharged. As an initial
matter, Mr. Townsend did not quit his job
during the period of the transfer.
Although this factor is not fatal to his
constructive discharge claim, see
Wozniak, 236 F.3d at 890; Hunt, 219 F.3d
at 655, in conjunction with the
circumstances surrounding his temporary
reassignment, it does indicate that Mr.
Townsend knew that the Board’s actions
were not of the kind that would make it
difficult for him "to work his way back .
. . to a responsible position." Parrett,
737 F.2d at 694; cf. Wozniak, 236 F.3d at
890 (holding that constructive discharge
could be shown where permanent loss of
tenure track position deprived plaintiff
not only of the possibility of tenure but
also of research support, scholarly
publications, professional recognition
and chance to obtain consulting work). As
we have noted, Mr. Townsend was told less
than two months after his reassignment to
the Central Office that the Board would
only seek his suspension without pay for
thirty days due to the incident. Soon
after, the Board assured him that his
reassignment would not be permanent and
that he would be returned to teaching at
Julian when classes began in the fall.
Indeed, Mr. Townsend was in fact later
reinstated to his teaching position. As a
result, Mr. Townsend was aware that he
did not face the prospect of an
indefinite or permanent reassignment to a
job that provided little professional
responsibility. See Brown, 128 F.3d at
608 (constructive discharge not shown by
plaintiff, in part because he knew that
undesirable reassignment was temporary
and had "no reason . . . to think that he
would spend the rest of his life" on it).
Lastly, unlike the situation in Parrett,
where action was taken against the
plaintiff due to a personal vendetta
against him, see Parrett, 737 F.2d at
693, here the defendants faced a
difficult problem. Mr. Townsend’s
transfer came after a serious incident
that had cost a child his life, an event
that may have occurred during the
seventh-period swimming class that Mr.
Townsend taught. Evidence from
investigatory reports suggested that,
after the class, Mr. Townsend had been
alerted to the fact that a student’s
clothes were left lying on the deck of
the pool, but that he took no action and
went on to coach a baseball practice.
Additionally, although Mr. Townsend’s
eventual return to Julian was delayed,
that delay was due to significant unrest
at the school, in part related to the
events surrounding Wilson’s death. Cf.
Ulichny v. Merton Cmty. Sch. Dist., 249
F.3d 686, 703 (7th Cir. 2001) (indicating
that seriousness of disciplinary incident
and "political fallout" from it,
prompting school board to reassign
plaintiff from principal to assistant
principal position, was a factor
militating against finding that
circumstances of action were "objectively
unreasonable" and amounted to
constructive discharge). These
circumstances made Mr. Townsend’s
temporary reassignment a reasonable
response to a difficult situation, not
the type of objectively unreasonable
action by an employer that may often lead
to a finding of a constructive discharge.
Although there may be situations in
which a "temporary" reassignment from an
employment position would extend for such
a long or indefinite period of time and
under circumstances that are particularly
onerous as to give rise to a constructive
discharge claim, this case hardly
presents that scenario. Consequently, we
cannot agree with the district court’s
conclusion that Mr. Townsend can make out
a claim for constructive discharge.
Because Mr. Townsend has not established
that he was deprived of a federally
protected property right, Mr. Vallas and
Ms. Johnson are entitled to qualified
immunity. See Wilson, 526 U.S. at 609;
County of Sacramento, 523 U.S. at 841
n.5.
Conclusion
We affirm the judgment of the district
court that the defendants were entitled
to summary judgment with regard to Mr.
Riley’s claim of the deprivation of a
liberty interest without due process of
law. However, as to Mr. Vallas and Ms.
Johnson’s claim that they were entitled
to qualified immunity regarding Mr.
Townsend’s allegation of the deprivation
of a property interest without due
process, we believe that Mr. Townsend
cannot establish the violation of a
constitutional right regarding that
issue. We therefore reverse the judgment
of the district court on the qualified
immunity issue and remand this case to
the district court for proceedings
consistent with this opinion. The defend
ants may recover their costs in this
court.
AFFIRMED in part, REVERSED
and REMANDED in part
FOOTNOTES
/1 Mr. Riley’s position was not a tenured position
nor was it accompanied by other civil service
protections.
/2 Mr. Townsend earned $3,000 for coaching varsity
basketball, $2,500 for coaching varsity baseball
and $2,500 for coaching freshman/sophomore foot-
ball during the respective seasons for those
sports. See R.31, Ex.6 at 24. In his deposition,
Mr. Townsend claimed that he missed all three
seasons as a result of his transfer to the
Central Office, but then explained that he did
coach baseball in the spring of 1999 after his
return to Julian. See id. at 24-25. The district
court noted that this coaching income "presumably
represents a relatively small percentage of
Townsend’s annual income." R.37 at 25.
/3 Mr. Townsend’s time away from his teaching and
coaching duties at Julian lasted from April 15,
1998, until the end of the 1997-98 school year
and from the beginning of the 1998-99 school year
until February 8, 1999, when Mr. Townsend was
reinstated. Just as he would not have been re-
quired to report to Julian during the summer of
1998, Mr. Townsend was not required to work at
the Central Office during that summer.
/4 As the district court noted, see R.37 at 7 n.4,
although the Boyer report maintains that a summa-
ry of its author’s interview with Mr. Riley is
attached to it, no such summary appears in the
copy provided in the record, see R.31, Ex.8. The
court explained that the copy of the Boyer report
in the record was missing a "Page 3"; it assumed
that this page contained a summary of Mr. Riley’s
interview that was consistent with the statements
attributed to Mr. Riley in the Boyer report’s
text.
/5 The information contained in these interview
summaries is similar to that found in the Boyer
report. For example, some of the students again
noted that they saw Wilson exit the pool at the
end of class, and others remembered seeing Wil-
son’s clothing and I.D. card near the pool after
the class’ end. One student related that, upon
seeing the clothing and the I.D. card, he brought
them to the attention of Mr. Riley, who told the
student to put the I.D. card on Mr. Riley’s desk.
Other students interviewed did not remember
seeing Wilson or the clothes at the end of class.
Many students also remembered that Wilson stayed
in the shallow end of the pool during most of the
class because he did not know how to swim.
Additionally, the police report includes the
statement of one teacher who claimed to have
checked the pool area after the class and saw no
students in or around the pool.
/6 Mr. Townsend also claimed in the district court
that he was a victim of retaliation, in that he
was punished for attempting to exercise his
constitutional due process rights. The district
court dismissed this retaliation claim, noting
that Mr. Townsend could point to no significant
change in his treatment by the defendants after
Mr. Townsend’s attorney, in a letter received by
the defendants on August 27, 1998, invoked due
process and demanded Mr. Townsend’s return to
Julian. Mr. Townsend does not challenge the
district court’s decision as to the retaliation
claim in this appeal.
/7 The district court found that although Ms. John-
son made these statements, Mr. Vallas did not
deny joining them or otherwise being responsible
for them. It also noted that, because Mr. Vallas
was a policymaking official for the Board, the
Board was responsible for the comments as well.
The parties do not dispute this point on appeal.
/8 Mr. Riley may make such a liberty interest claim
even though he did not have a property interest
in his position of public employment. See Harris
v. City of Auburn, 27 F.3d 1284, 1286 (7th Cir.
1994); Johnson v. Martin, 943 F.2d 15, 16 (7th
Cir. 1991).
/9 In Colaizzi, we went on to explain that, because
the interest protected in such cases was occupa-
tional liberty rather than liberty of reputation,
mere defamation coupled with a firing is not
sufficient to state such a claim. See Colaizzi v.
Walker, 812 F.2d 304, 307 (7th Cir. 1987). As a
result, regardless of whether an employee charges
that, in the course of firing him, an employer
defamed him by either (1) damaging his good name,
reputation, honor or integrity or (2) by imposing
a stigma or other disability upon him that fore-
closed other employment opportunities, the em-
ployee must show that, because the charges have
been made, it is unlikely that anyone will hire
him for a comparable job in the future. See id.
/10 In a deposition, Mr. Riley said that he did not
seek such replacement employment because he "was
content and happy where [he] was," R.31, Ex.4 at
73, not because he believed that such efforts
would be futile.
/11 We have recognized that this rule is not an
ironclad one. See Campbell v. Groves, ___ F.3d
___ (7th Cir. 2001) (Nos. 00-1426 & 01-1851)
(release pending). However, this case implicates
none of the concerns noted in Kalka v. Hawk, 215
F.3d 90 (D.C. Cir. 2000), and Horne v. Coughlin,
191 F.3d 244 (2d Cir. 1999), that might warrant
a deviation from the usual methodology. See
Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir.
2001).
/12 The tenure laws involving removal for cause that
are applicable to Mr. Townsend are those found in
Article 34 of the Illinois School Code, which
apply to districts with over 500,000 inhabitants.
See 105 ILCS secs. 5/34-84 & 5/34-85. The
tenure laws applying to districts with under
500,000 inhabitants are found in Article 24 of
the Code. See 105 ILCS secs. 5/24-11 & 5/24-
12. The defendants argue that because Hansen (and
many of the other Illinois cases defining "remov-
al") interpreted the terms "removed" or "removal"
under a different provision of the Code, Article
24, the district court should not have relied on
it to interpret the meaning of those terms as
used in Article 34. They contend that because of
differences in the definition of a teacher in the
two sets of statutes and because the Board has
greater control over Chicago schools than do
similar entities in other districts of the state,
Hansen and other cases interpreting those terms
as they apply to Article 24 are therefore not
applicable to Mr. Townsend’s case. The district
court disagreed, noting that both sets of stat-
utes provide that a tenured teacher may not be
"removed" but for cause. See R.44 at 5 (ruling on
motions for reconsideration). The court also
noted that at least one Illinois court has relied
upon cases involving Article 24 in determining
whether a tenured teacher had a property interest
in his position as assistant principal under
Sections 34-84 and 34-85 of the Code, such that
he could state a claim for wrongful removal from
that position. See id. (citing Bart v. Board of
Educ. of the City of Chicago, 632 N.E.2d 39, 42-
43 (Ill. App. Ct. 1993)). Lastly, the court
recognized that Section 24-11 defined a "teacher"
as a school district employee required to be
certified under laws relating to the certifica-
tion of teachers. See id. This definition was
important in Hansen’s determination that a teach-
er is "removed" from his position when he is
transferred to a position that does not require
a certified teacher. The court noted that Section
34-85 did not contain an express definition of
"teacher," but pointed to other law indicating
that Chicago public school teachers are required
to be certified and that they receive tenure as
a teacher, as distinct from tenure in other
positions. See id.; see also 105 ILCS secs.
5/34- 83, 5/34-84 & 5/34-85; Bart, 632 N.E.2d at
42. As a result, the court found that the defini-
tions of a "teacher" in both statutes were simi-
lar enough for purposes of comparison.
We are inclined to agree with the district
court, for the reasons that it cited, that Illi-
nois cases defining "removal" under Article 24
can be of assistance in this matter. The defen-
dants point to no case authority suggesting that
this approach is incorrect. However, we note that
even taking into account those Article 24 cases,
and particularly the holding of Hansen, we do not
believe that Mr. Townsend was "removed" from his
teaching position under Illinois law.