Small v. Bd. of Educ. of Streator Twp. High Sch. Dist. No. 40

2022 IL App (3d) 210113

221 N.E.3d 534

468 Ill.Dec. 706

Lissa SMALL, Plaintiff-Appellee,

v.The BOARD OF EDUCATION OF STREATOR TOWNSHIP HIGH SCHOOL DISTRICT NO. 40; Nicholas McFadden, Steve Biroschik, Willy Williamson, Karen Ricca, Bill Darrow, Dianna Schuler, and Earl Woeltje in Their Official Capacities as Board Members of the Board of Education of Streator Township High School District No. 40; Michael I. Ponticelli, in His Official Capacity as Hearing Officer; Matthew Seaton, in His Official Capacity as Superintendent; Amy Jo Mascal, in Her Official Capacity as Principal; and the Illinois State Board of Education, Defendants

(The Board of Education of Streator Township High School District No. 40, Nicholas McFadden, Steve Biroschik, Willy Williamson, Karen Ricca, Bill Darrow, Dianna Schuler, and Earl Woeltje, Defendants-Appellants).

Appeal No. 3-21-0113

Appellate Court of Illinois, Third District.

Filed May 20, 2022

Christopher J. Waple, of Law Offices of Cozzi & Zapf, of London, Kentucky, for appellants.

James P. Baker, of Baker, Baker & Krajewski, LLC, of Springfield, for appellee.

OPINION

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

¶ 1 The plaintiff, Lissa Small, sought administrative review of a decision of defendant Board of Education of Streator Township High School District No. 40 (the Board) that dismissed Small, a tenured guidance counselor, from the high school's employ. The circuit court reversed the Board's decision, and the Board appealed. On appeal, the Board argues that its decision should be upheld because the conduct in which Small engaged was irremediable. We reverse the Board's decision.

¶ 2 I. BACKGROUND

¶ 3 Small began employment as a guidance counselor with the high school in 2004. She had obtained tenure by September 15, 2015, when the Board notified her that she was being discharged from the high school's employ. The notice and bill of particulars stated, inter alia , that Small "failed to respond appropriately to a report that a teacher was having an inappropriate relationship with a student, and you failed to exercise proper professional responsibility in connection with the matter." It also stated that Small had reasonable cause to believe that a female student, "Student B," was abused and failed to report the matter to the Department of Children and Family Services (DCFS), pursuant to section 4 of the Abused and Neglected Child Reporting Act (Act) ( 325 ILCS 5/4 (West 2014) ) and school district policy No. 5:90 (hereinafter Policy 5:90).

Further, the notice deemed Small's conduct irremediable.

¶ 4 Prior to this time, Small had never been disciplined for any reason and had never received any poor performance reports.

¶ 5 In February 2016, an administrative hearing was held before an impartial hearing officer who had been selected by the parties. Multiple witnesses testified at the hearing, and the facts established as a result of the hearing are not in dispute.

¶ 6 The hearing officer issued his written recommendation in May 2016. His statement of facts included most of the following. Around December 2014, Student B told a male student, "Student A," that she had an inappropriate relationship with a teacher, RV, at the high school during the 2013-14 school year. The students had a second conversation in December 2014 during a class. Student A asked Student B for permission to tell someone in administration about the situation. Student B agreed after stating she did not want to tell someone herself, as she was concerned about potentially being punished.

¶ 7 Student A was allowed to leave class, and he went to see Small, who was his guidance counselor, in her office. Student A told Small that Student B had an inappropriate relationship with RV during the previous school year. He also said that Student B told him that RV had sent her inappropriate text messages and naked pictures of himself and that she had sent naked pictures to RV as well. Small discussed the matter with Student A for 15 to 20 minutes, during which time Student A told Small that he did not like RV, whom he had as a health and fitness teacher, and that RV had kicked Student A out of class at one time in the past for reasons he considered unfair. Also during the discussion, Small informed Student A that she needed first-hand information about the situation, so she asked or directed Student A to have Student B come talk to her directly.

¶ 8 Student A returned to class and told Student B that Small needed to speak to Student B directly. Student B told Student A that she would consider it.

¶ 9 Within approximately one day of the discussion she had with Student A, Small approached Student B's guidance counselor, Brad Brittin. As they discussed what to do, Small offered to speak to Student B herself in case Student B would be more comfortable talking to a female rather than a male. Small and Brittin did not come to any decisions on what to do.

¶ 10 Thereafter, Small sent passes on at least three occasions to Student B; these passes asked Student B to come talk to Small. At least one pass was sent before Christmas break in December 2014, and at least two passes were sent after school resumed in early January 2015. Student B never responded to Small in any way.

¶ 11 Small did not speak with anyone other than Brittin about the matter.

¶ 12 After school resumed, Student B began having attendance issues that resulted in her being dropped by the high school in March 2015.

¶ 13 Between December 2014 and May 2015, Student B's mother met with Brittin on numerous occasions about her daughter. Small was present at times during the meetings. Student B's mother also met with Small individually on one occasion and spoke with her on two other occasions. They discussed Student B's declining academic performance and Student B's boyfriend. At no time did Small or Brittin tell Student B's mother about the information Student A had relayed to her in December 2014.

¶ 14 Regarding Student B's boyfriend, testimony at the administrative hearing revealed that Student B had turned 18 in early January 2015 and had moved in that day with her boyfriend at his father's house (Student B's mother described it as Student B running away from home). Further, testimony from several witnesses showed that Student B and her boyfriend were both frequently skipping school until she dropped out in March 2015.

¶ 15 Notably, Student B testified that she was a student of RV's during the two quarters from August to December 2014, but not during the following quarter starting in January 2015. Beginning at that time and ending when she dropped out of school in March 2015, Student B saw RV at times in the school's common area or in the gym. She did not look at him and avoided him whenever she could. Further, she testified that she was skipping school for multiple reasons—not just because of RV but also because she hated her math class and because she was having family issues.

¶ 16 In April 2015, Student B and her boyfriend moved in with Student B's mother. Student B's mother sought counseling help at the high school to ensure that her daughter's boyfriend could still graduate. Student B's mother stated that she did not agree with the way her daughter's boyfriend was raised or "the way he behaved" and that she needed help with the situation because "never had I had a boy come into my home that—well, I just never had a daughter's boyfriend live with me before. I never had a boy who had been in trouble before live with me. I didn't know how to live with it ***."

¶ 17 In May 2015, during an investigation into potentially improper conduct between a student and a paraprofessional (not RV) employed by the school district, several students informed administration that RV had been involved in an inappropriate relationship with a student (not Student B). The school district's superintendent assigned Brittin to interview RV and assigned Small to interview the student. Small informed the superintendent and the high school principal that she had heard rumors about RV.

¶ 18 After the interviews had been completed, it was determined that the allegations made by the students about RV during the investigation into the paraprofessional had been fabricated by three students. However, those students informed a teacher that there were other students who may have in fact had inappropriate relationships with RV. Accordingly, another investigation into RV was opened; this time, the Streator Police Department was called.

¶ 19 During the investigation, Student A was interviewed by a Streator Police Department detective and an investigator from the state's attorney's office in the presence of the high school principal. Student A said that Student B had told him about her inappropriate relationship with RV and that he had relayed that information to Small. Also during the investigation, RV admitted to sending naked pictures of himself to Student B and to having sexual contact with two students after they had graduated. RV was arrested after also admitting that he had sexual contact with a 16-year-old student at the high school.

¶ 20 Small was also interviewed. She confirmed that Student A had approached her with information about Student B in December 2014. She said, inter alia , that she told Student A that she could not act on an unsubstantiated rumor. She also mentioned that, since RV's arrest, she was remorseful that she had not done anything more with the information she had received back in December 2014.

¶ 21 The day after the interview, Small sent an e-mail to the superintendent in which she stated, inter alia :

"If I had other students come to me with the same rumors, then I would have come to admin with it. But one statement from one student, that wasn't backed up at the time by the alleged victim, just seems like so little at the time. In a small town, one hears all kinds of rumors—I have heard some pretty ugly things about people. If we pursued every one of those it would be so ugly and

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