Kelley vs CBoE Discrimination(10-CV-07875)

IN THE UNITED STATES DISTRICT COURTFOR NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BEVERLY KELLEY

Plaintiff,

v.|

BOARD OF EDUCATION OF THE CITYOF CHICAGO

Defendants.

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Case No.

Judge Magistrate Judge

JURY TRIAL DEMANDED

COMPLAINT

Plaintiff Beverly Kelley (“Ms. Kelley” or “Plaintiff”), by and through her attorneys,

Robin Potter & Associates, P.C., complains against Defendant Board of Education of

the City of Chicago (“Board” or “Defendant Board” or “BOE”) and its officers as follows:

NATURE OF THE CASE

1. Ms. Kelley brings this action against her former employer the Board and

its officers to redress acts of unlawful termination and age discrimination. Ms. Kelley, a

tenured Citywide Special Education Resource Teacher, was terminated and forced into

retirement from her employment because of her age in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. This action further

seeks to enforce Ms. Kelley’s constitutional due process rights under 42 U.S.C. § 1983.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1331 and 28 U.S.C. § 1343(a)(4).

Case: 1:10-cv-07875 Document #: 1 Filed: 12/10/10 Page 1 of 12 PageID #:1

3. Venue is proper in this judicial district under 29 U.S.C. § 1391 because

Defendants reside in this district and a substantial part of the events giving rise to Ms.

Kelley’s claims occurred in this district.

PARTIES

4. Beverly Kelley is an adult female Citizen who resides within the territorial

jurisdiction of the District Court. At all relevant times, Ms. Kelley was an “employee”

within the meaning of the ADEA. 29 U.S.C. § 630(f)

5. Ms. Kelley was employed as a Special Education Resource Teacher with

the Board of Education of the City of Chicago for 20 years until her termination in

August of 2010. Ms. Kelley was born in 1949 and is currently 61 years old.

6. Defendant Board and its officers were, at all times relevant, “employers”

within the meaning of the ADEA. 29 U.S.C. § 630(b).

7. Defendant Board is an educational employer within the meaning of

Section 2(a) of the Illinois Educational Labor Relations Act, 115 ILCS 5/2(a), and is the

entity charged by law with maintaining a free school system within the city of Chicago.

It maintains offices at 125 South Clark Street, 6th Floor, Chicago, Illinois 60603.

8. Ms. Kelley fulfilled all conditions precedent to the institution of this action

under the ADEA.

9. Plaintiff filed a charge with the Equal Employment Opportunity

Commission (“EEOC”) on August 23, 2010. She received a Right to Sue from the

EEOC that was mailed to her on September 10, 2010. The Right to Sue Letter and

charges of discrimination are attached hereto as Group Exhibit “A.”

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FACTS

10. Ms. Kelley began working for the Board in September of 1990 as a

Special Education Resource Teacher.

11. Throughout her employment, Ms. Kelley performed the duties and

responsibilities of her position in a satisfactory manner and met or exceeded all

legitimate expectations.

12. Throughout her employment, Ms. Kelley received Superior ratings on her

professional evaluations. This is the highest rating a Board teacher can receive.

13. In 1996, Ms. Kelley was transferred to a position as a Citywide Special

Education Teacher in the Office of Specialized Service (“OSS”). Ms. Kelley was

transferred to the Citywide position in light of her superior performance, multiple

teaching certifications and extensive experience working with Special Education

students.

14. As a Citywide teacher, Ms. Kelley was not assigned to one specific school.

Instead, she worked in multiple schools and offices throughout the Chicago Public

Schools (“CPS”).

15. Citywide teachers are an extremely experienced component of the Board’s

teaching staff that the Chicago Public Schools utilize in a quasi-administrative function.

Maturity and experience are vital to the responsibilities of this position.

16. As of June of 2010, Ms. Kelley was 60 years old. Upon information and

belief, Ms. Kelley is one of the oldest and most experienced members of the Board’s

teaching staff.

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17. On June 23, 2010, the media began reporting that Ron Huberman

(“Huberman”), the then CEO for Chicago Public Schools, and the Board had decided to

layoff alleged unsatisfactory teachers. Huberman made these announcements publicly

on June 23, 2010 and continually thereafter. Huberman’s comments were widely

repeated and published by a number of media outlets. A sampling of those published

statements are attached hereto as Group Exhibit “B.”

18. Huberman’s statements that the honorably terminated teachers were

unsatisfactory are false.

19. On June 26, 2010 Ms. Kelley received a certified mail letter dated June

23, 2010 from Chicago Public School’s Office of Human Capital/Workforce Planning.

The letter stated that her “position is no longer available effective June 30, 2010 due to

a Redefinition of a Program.” As a result Ms. Kelley was to be laid off and “honorably

dismissed” effective June 30, 2010. The June 23, 2010 letter is attached hereto as

“Exhibit C.”

20. The June 23, 2010 letter referred Ms. Kelley to a set of Frequently Asked

Questions (“FAQs”) that included important information regarding benefits, sick and

benefit day payouts and unemployment benefits. The set of FAQs are attached hereto

as “Exhibit D.”

21. The third topic set forth in the set of FAQs informed Ms. Kelley that if she

were laid off and not reappointed to a full time position within one year, she would forfeit

her unused sick leave unless she were to convert the layoff to a resignation or

retirement by submitting a formal resignation on or before the effective date of her

layoff.

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22. In June of 2010, Ms. Kelley had accumulated over $10,000.00 in sick

days.

23. The ninth topic set forth in the set of FAQs informed Ms. Kelley that all

healthcare coverage would be terminated the last day of the month in which her

employment ceased, or June 30, 2010.

24. Ms. Kelley is diabetic and suffers from high blood pressure.

25. With only three business days to make the decision of whether to retire or

lose all health coverage and risk forfeiting $10,000 worth of earned and accrued sick

days, on June 28, 2010, Ms. Kelley and a number of her colleagues who were also

“honorably dismissed,” met with the Chicago Teachers’ Pension Fund (“CTPF”) to

inquire about their pension options.

26. Sharon Banks-Fallis (“Ms. Banks-Fallis”), CTPF’s Member Services

Manager, had no knowledge of the terminations. Ms. Kelley and her colleagues spent

the day with Ms. Banks-Fallis attempting to determine what, if any, pension benefits

they were eligible to receive in light of the termination. Ms. Banks-Fallis advised Ms.

Kelley and her colleagues that she would meet with the Defendant Board in an attempt

to gain a better understanding of the situation, and for them to return the next day.

27. On June 29, 2010, Ms. Kelley and her colleagues returned to the CTPF

office. Ms Banks-Fallis notified Ms. Kelley and her colleagues that because the effective

enrollment dates had passed, they were not eligible to participate in the Pension

Enhancement Program (“PEP”) or to purchase the 2.2 Upgrade Option, both of which

would significantly increase their pension benefits. The 2.2 Upgrade Option provides a

way to increase the pension percentage used to calculate pension benefits through the

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purchase of a pension plan upgrade. The PEP provides for the use of earned and

accrued sick days to increase the value of a pension.

28. Ms. Kelley and her colleagues were further informed that CTPF was three

years behind in calculating pension amounts due to incomplete information received

from the Board. This meant that if Ms. Kelley were to retire on or before June 30, 2010,

her pension payments would be calculated based on seventeen years of service instead

of the twenty years of service she had actually provided to the Board. That difference

amounted to over $700 a month.

29. Ms. Kelley could not afford to lose $10,000.00 worth of sick days or her

medical coverage. Despite having to accept a significant loss in her pension benefits as

a result, Ms. Kelley submitted a resignation application and converted her termination

into a retirement on June 29, 2010. Ms. Kelley’s resignation application is attached

hereto as Exhibit “E.”

30. Months later, the Board allowed Ms. Kelley to recover some but not all of

the pension benefits she would have otherwise been entitled to.

31. After being compelled to resign, and after returning home from the CTPF

office, Ms. Kelley received a phone call from Mary Beth Walsh (“Ms. Walsh”), a

supervisor in the OSS office. Ms. Walsh notified Ms. Kelley that her job description and

title had been advertised on the Board’s website as an open administrative position. Ms.

Walsh told Ms. Kelley she had seen the posting just a few weeks before. She

encouraged Ms. Kelley to apply for the position because Ms. Kelley was fully qualified to

fill it.

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32. Ms. Kelley immediately contacted Jerry Cade (“Mr. Cade”), who was her

direct supervisor and was a Director in the Office of Specialized Services and the Office

of New Schools. Mr. Cade confirmed that Ms. Kelley’s job description and qualifications

had been posted on the Board’s website. He too encouraged her to apply as she was

fully qualified for the position.

33. Immediately following these conversations, and though she had submitted

her resignation/retirement paperwork earlier the same day, Ms. Kelley logged on to the

Board’s website to apply for the open position. The job postings had already been

removed. Upon information and belief, Ms. Kelley’s position was filled before she

received the June 23, 2010 termination letter.

34. Had Ms. Kelley been allowed to remain in her job or an equivalent

position, she would not have tendered or would have revoked her compelled retirement.

35. Ms. Kelley believes that her former position, or an equivalent position was

filled by someone who is substantially younger than 60 years old.

36. The Board did not notify Ms. Kelley of any open positions that would be

available in the OSS office or elsewhere in the City of Chicago for which she may be

qualified. Upon information and belief, the OSS office made a number of hires before

and since Ms. Kelley’s termination, including the hire of Citywide teachers under the

same unit number Ms. Kelley had worked under.

37. Soon after the receipt of the June 23, 2010 termination letter, Ms. Kelley

applied for unemployment benefits with the Illinois Department of Employment Security

(“IDES”). IDES made a determination that Ms. Kelley had been forced to retire. The

IDES Determination is attached hereto as Exhibit “F.”

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38. The Board and its officers have failed to comply with the Illinois School

Code, which contains provisions that apply to any reduction in force. 105 ILCS 5/34-

18(31). Those provisions mandate the Board make individual determinations as

required by 105 ILCS 5/34-18(31) to issue rules to ensure individualized consideration

of education and employees based on the qualifications, certifications and experience,

and to ensure they are retained.

39. The seniority and reassignment rights of teachers also exists by virtue of

past practice under the collective bargaining agreement (the “Agreement”) between the

Board and the Chicago Teachers Union, Local 1 (“CTU”).

40. Appendix H to the Agreement requires that tenured teachers with

appropriate certifications will be selected for retention based on seniority. Appendix H to

the Agreement is attached hereto as Exhibit “G.” The Agreement’s provisions give

teachers the right to layoff by seniority and reassignment where appropriate.

41. Subsequent to the Agreement’s adoption, the Board issued a set of

regulations ensuring that layoffs would be conducted by a process of system wide

seniority and that teachers would be entitled to utilize the reassigned teacher pool to

avoid dismissal.

42. The system wide seniority process is consistent with Article 42-2 and

Appendix H is set out in the rules and regulations relating to layoffs and is titled

“Reassignment and Layoff of Regularly Certified and Appointed Tenured Teachers.”

43. In 1995, the General Assembly of Illinois authorized the Board to

promulgate rules for layoffs and reductions in force, which are included in 105 ILCS

5/34-18, subparagraph one and subparagraph 31. Such rules expressly require the

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Board to consider criteria that include, but are not limited to, the “qualifications,

certifications, experience, performance ratings or evaluations” of the teachers who are

affected by a reduction in force.

44. 105 ILCS 5/34-18(31) specifically states that the Board shall “promulgate

rules establishing procedures governing the layoff or reduction in force of the

employees and the recall of such employees, including, but not limited to, criteria for

such layoffs, reductions in force or recall rights of such employees and the weight to be

given to any particular criteria. Such criteria shall take into account factors including, but

not be limited to, qualifications, certifications, experience, performance ratings, or

evaluations, and any other factors relating to employee’s job performance.”

45. On June 15, 2010 the Board passed a resolution authorizing the

“honorable termination” of tenured teachers, like Ms. Kelley.

46. Teachers laid off pursuant to the Board’s June 15, 2010 resolution were

not provided with an opportunity to demonstrate their qualifications for retention in some

capacity within the school system.

47. This opportunity has been recognized by this Court to be a due process

right to which tenured Board teachers are entitled and has ruled “honorable dismissals,”

like the one to which Ms. Kelley was subjected, to be illegal. Judge Coar’s 10/4/10

Memorandum Opinion so holding in Chi. Teachers Union v. Bd. of Educ., 2010 U.S.

Dist. LEXIS 105715 (N.D. Ill. Oct. 4, 2010) is attached hereto as Exhibit “H”.

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COUNT I(ADEA: Age Discrimination)

48. Ms. Kelley restates and realleges paragraphs 1-47 as though fully set

forth herein.

49. Defendant intentionally subjected Ms. Kelley to unequal and discriminatory

treatment by forcing her into retirement because of her age in violation of the ADEA 29

U.S.C. §§ 621 et seq.

50. Defendant’s actions are in violation of the ADEA and were willful.

51. Defendant’s actions in intentionally discriminating against Ms. Kelly have

caused her lost wages and benefits, pecuniary losses, and other consequential

damages.

WHEREFORE, Plaintiff Beverly Kelley prays this court enter judgement on her behalf

and against Defendants for damages including, but not limited to:

A. All wages and benefits that she would have received but for thediscrimination, including pre-judgement interest;

B. Reinstatement, or in the alternative, an award of front pay;C. Liquidated damages, under the ADEA;E. Post-judgement interest;F. To be made whole for the damages and financial losses suffered; G. Attorneys’ fees and all costs and expenses of suit; and’H. Such other and further relief as this Court deems appropriate and just.

COUNT II (Section 1983: Deprivation of Due Process Rights)

52. Ms. Kelley restates and realleges paragraphs 1-51 as though fully set forth

herein.

53. Ms. Kelley was entitled to exercise her constitutional right to due process

before the Board and its officers deprived her of her property right in tenured

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employment.

54. The Board and its officers have caused the summary dismissal of tenured

teachers, like Ms. Kelley, without giving any individualized consideration under of the

qualifications, certifications, experience, performance ratings or evaluation, or any other

factor relating to an employee’s job performance as required by 105 ILCS 5/34-18(31).

55. Without the individual determinations required by 105 ILCS 5/34-18(31),

the Board has denied the constitutional rights of Ms. Kelley to notice and an opportunity

to be heard as to why she is qualified to be retained or to exercise her right to

procedural due process under the Fourteenth Amendment.

WHEREFORE, Plaintiff Beverly Kelley prays this court enter judgement on her behalf

and against Defendants for damages including, but not limited to:

A. Declare that in violation of 42 U.S.C. § 1983 and the Due Process Clauseof the Fourteenth Amendment of the United States Constitution, the Boardand its officers have denied Ms. Kelley her constitutional rights toindividualized determination as to whether she meets specific weightedcriteria, which the Board should have but failed to apply under 105 ILCS5/34-18(31), and thereby denied Ms. Kelley her right to procedural dueprocess, including notice and an opportunity to be heard.

B. Make Ms. Kelley whole for the damages and financial losses suffered,including punitive and compensatory damages;

C. Award attorneys’ fees and costs; andD. All other relief that this Court deems necessary and just

JURY DEMAND

Plaintiff hereby respectfully demands a jury trial.

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Respectfully submitted,

ROBIN POTTER & ASSOCIATES, P.C.

/s/ Robin Potter One of Plaintiff’s Attorneys

Robin Potter, Esq. ARDC # 3123932Jennifer N. Purcell, Esq. ARDC # 6297457M. Nieves Bolanos, Esq. ARDC # 6299128ROBIN POTTER & ASSOCIATES, P.C.111 E. Wacker Dr., Suite 2600Chicago, IL 60601(312) [email protected] [email protected] [email protected]

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Documents

Kelley vs CBoE Discrimination(10-CV-07875)