Burgess v. Ill. State Bd. of Educ.

2020 IL App (3d) 170076

144 N.E.3d 110

437 Ill.Dec. 310

Timothy J. BURGESS, Plaintiff-Appellant,

v.ILLINOIS STATE BOARD OF EDUCATION, Board of Education of Ottawa Township High School District No. 140, and Danielle Carne, in her official Capacity as Hearing Officer, Defendants-Appellees.

Appeal No. 3-17-0076

Appellate Court of Illinois, Third District.

Rule 23 Filed October 1, 2019

Motion to Publish Granted January 9, 2020

Opinion filed January 9, 2020

Cardina F. Johnson, of Springfield, for appellant.

William F. Gleason, of Hauser Izzo, Petrarca, Gleason & Stillman, LLC, of Flossmoor, for appellee Board of Education of Ottawa Township High School District No. 140.

JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 In 2015, the plaintiff, Timothy J. Burgess, was dismissed by defendant Board of Education of Ottawa Township High School District No. 140 (OTHS Board) from his position as a tenured teacher at Ottawa Township High School (OTHS). Burgess appealed the decision to defendant Illinois State Board of Education,¹ and defendant Danielle Carne was the hearing officer assigned to review the case. Carne recommended that Burgess be reinstated, but the OTHS Board rejected Carne's recommendation and instead upheld Burgess's dismissal. Burgess appealed to the circuit court, which affirmed the OTHS Board's decision. Burgess has now appealed to this court, arguing that (1) several of the OTHS Board's findings were erroneous, (2) his conduct did not constitute cause for dismissal, and (3) he did not violate the notice to remedy in a clear and material manner. We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 The following facts have largely been gathered from testimony elicited at the hearing held upon Burgess's appeal of his 2015 dismissal.

¶ 4 In 1989, Burgess began teaching at OTHS. At the time of his dismissal in 2015, he was tenured, had been teaching physical education, and had been serving as a strength and conditioning coach. He received excellent ratings on each of his last four teaching evaluations, which occurred in 2008, 2010, 2011, and 2013.

¶ 5 During his 26 years at OTHS, Burgess incurred three disciplinary actions. The first action was taken on December 8, 1993. Burgess, who was an assistant basketball coach at the time, had communication difficulties with the head basketball coach, with whom Burgess was good friends. Burgess had loaned $2000 to the head coach to cover a gambling debt. After some time had passed without repayment, Burgess began asking for the money back. The head coach always came up with excuses and did not repay the debt. Eventually, the head coach told Burgess he was not going to pay him back, and their communications were strained from that point on. A disciplinary letter was placed into Burgess's permanent record, which in part referenced an unspecified "unacceptable" incident that occurred on November 12, 1993.

¶ 6 A second disciplinary action was taken against Burgess in 2002. On this occasion, Burgess had a dispute with the head of the physical education department based on a mutual misunderstanding of each other's schedules. Another disciplinary letter was placed into Burgess's permanent record, which in part directed him to "maintain [his] professionalism and refrain from losing [his] temper in the presence of students."

¶ 7 Burgess's third disciplinary action occurred in 2003 as a result of his involvement in an incident with a parent of an OTHS student who had been cut from the sophomore team by another coach. On a day in September of that year, Burgess was driving to school and was stopped at a controlled intersection across the street from OTHS. He heard his last name being called by someone across the street; when he looked, it was the disgruntled parent. The man had a yellow basket in his hand and was grabbing his crotch while asking if Burgess "want[ed] some of this." Burgess called from his car that the man should "take that yellow basket and stick it up [his] a***." The man alleged that Burgess told him to "[g]et a f*** life" and that his comments were unprovoked. During the first hour of the school day, as Burgess was taking his biology students to a nearby park, the same parent was at the school's main doors. The parent verbally accosted Burgess, which including some yelling and screaming. Although Burgess did not respond, another disciplinary letter was placed into his permanent record, which in part directed him to avoid such confrontations, walk away from such confrontations if they do arise, conduct himself professionally at all times, and conduct himself as a role model for students.

¶ 8 A. 2009 Tuition Waiver Issue, Teachers' Strike, and Notice to Remedy

¶ 9 Six years later, in 2009, Burgess learned of a rule in another school district that allowed teachers' children to attend the school at which the parent worked, even though the family did not live in that school district. Prior to the beginning of the new school year, Burgess met with the superintendent to discuss whether a similar rule could be adopted so his daughter could attend OTHS tuition-free, even though he lived outside of the school district in Utica. The superintendent liked the idea and said he would try to get it implemented. Because the deadline for the first semester of 2009 had already passed, the superintendent told Burgess that he would have to move to Ottawa for a three- to four-month period prior to the implementation of the change. Subsequently, Burgess retained his house in Utica but got an apartment in Ottawa so his daughter could attend OTHS.

¶ 10 Shortly thereafter, OTHS teachers went on strike after negotiations broke down regarding a new contract. Burgess, who was a strong proponent of the strike, served as a spokesperson for the teachers' union and was on the negotiations team. Other OTHS teachers, including Mark Cartwright, Peter Marx, and Steve Doerrer, were opposed to the strike, which by all accounts was bitter and divisive. After the strike started, the superintendent passed away and was replaced by Matt Winchester, who had been serving as OTHS principal.

¶ 11 Burgess's tuition-waiver request was addressed by the OTHS Board on December 14, 2009, and was unanimously rejected. Burgess felt the rejection may have been retaliation for the teachers' strike. Burgess verbally berated the OTHS Board members immediately after the vote, including calling one of the members a "phony," alleging that the vote was a reprisal for the strike, deriding the vote as "crap," and asking Winchester whether this was the way he was going to run the school. Three days later, Burgess met with Winchester and several other people and was informed that the OTHS Board was going to consider issuing him a notice to remedy. Burgess again called one of the OTHS Board members a "phony," stated that the Board president would lie because he was an attorney, and called the entire OTHS Board "a bunch of lying, filthy cheaters."

¶ 12 On December 22, 2009, the OTHS Board in fact issued Burgess a notice to remedy. The letter stated, inter alia , that Burgess's conduct following the OTHS Board's denial was inappropriate and unprofessional. The letter further noted his three prior disciplinary actions and concluded that Burgess had "repeatedly displayed a problem with anger management" during his employment by OTHS. The OTHS Board also stated that Burgess's recent conduct was grounds for dismissal unless remedied in the following fashion: (1) "cease and desist from any further displays of anger in front of staff, parents, students, members of the Board of Education, or the public with regard to any matter having a nexus to the school district"; (2) "cease and desist from referring to staff, parents, students or members of the Board of Education in a derogatory, inappropriate or unprofessional manner"; (3) "conduct yourself in a professional manner at all times"; and (4) "conduct yourself as a role model for OTHS students at all times." Finally, the letter informed Burgess that a violation of any of those directives would result in his dismissal.

¶ 13 Burgess filed an unfair labor practice complaint against the OTHS Board based on the issuance of the notice to remedy. After a hearing, an administrative law judge ruled against Burgess and in favor of the OTHS Board.

¶ 14 B. September 2014 Union Meeting

¶ 15 In September 2014, a union meeting was held in an OTHS choir room, which had tiered seating rows. It was generally known prior to the meeting that Burgess was going to move for a vote of no confidence in Superintendent Winchester. Approximately 80 people attended the meeting, although not everyone stayed until the end. Burgess was seated in one row and Cartwright was seated in the row behind Burgess and slightly to the right. During the meeting, exchanges occurred between Burgess and Cartwright.

¶ 16 Burgess gave his account of those exchanges at a hearing in 2015. Burgess moved for a vote of no confidence in Winchester, and after the motion was seconded, Marx interposed an objection. Discussion ensued about the proper procedure for addressing both the motion and the objection. It was decided that a vote would be taken, but some confusion remained as to whether the vote would be on Burgess's motion or Marx's objection. When Burgess sought clarification, Cartwright told him to sit down and let the union committee do its job. After a second request from Burgess for clarification, Cartwright repeated his demand.

¶ 17 In Burgess's version, after a silent vote was taken in which Marx's objection was defeated, Cartwright said that he was tired of listening to Burgess's "s***" for the last 11 years. Burgess responded that as a union member he had the right to speak and that Cartwright should pull his long hair over his ears so he would not have to listen. Shortly thereafter, Cartwright said Burgess was nothing but a "f*** pea brain." Doerrer, who was seated in the row behind Cartwright, leaned toward Burgess and said Burgess...