{ "id": 5118731, "name": "DIANA ABERNATHY, Petitioner-Appellee, v. BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT No. 218, COOK COUNTY, Respondent-Appellant", "name_abbreviation": "Abernathy v. Board of Education of Community High School District No. 218", "decision_date": "1992-12-02", "docket_number": "No. 1-91-1629", "first_page": "1013", "last_page": "1022", "citations": [ { "type": "official", "cite": "242 Ill. App. 3d 1013" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "416 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "389-90" } ], "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 1074", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5536979 ], "pin_cites": [ { "page": "1079" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/1074-01" ] }, { "cite": "568 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "236-37" } ], "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2540930 ], "weight": 2, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0419-01" ] }, { "cite": "549 N.E.2d 1001", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1005-06" } ], "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. 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BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT No. 218, COOK COUNTY, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE CERDA\ndelivered the opinion of the court:\nRespondent, Board of Education of Community High School District No. 218, Cook County, Illinois, appeals from the entry of summary judgment in favor of petitioner, Diana Abernathy, who filed a petition for writ of mandamus alleging that she was a tenured teacher when her teaching contract was not renewed. Respondent argues on appeal that: (1) petitioner did not hold a position that required its holder to be certified and therefore she was not a tenured teacher; (2) tenure cannot be achieved through estop-pel, and the elements of estoppel were not present in this case; (3) the trial court\u2019s back pay award was excessive; and (4) petitioner was not entitled to reinstatement because there was no available position to which she was entitled. We reverse and remand.\nPetitioner\u2019s petition for writ of mandamus alleged the following. She was a teacher with a teaching certificate issued by the State of Illinois. Petitioner was first employed by respondent for the school year 1979-80 as a full-time certificated teacher on contractual continued service status; her position was vocational adjustment counsellor (VAC). According to one job description, the following were a VAC\u2019s responsibilities:\n\u201c1. D.V.R. [Department of Rehabilitation Services] Caseload Management\n2. Procure DVR applications and interview client and parents with Prevocational Coordinator.\n3. Liaison and public relations with all levels of DVR, school personnel, community employers, trade schools, etc.\n4. Knowledge of vocational fields and training facilities and counseling and consultation regarding this area to students, parents, teachers, coordinators, etc.\n5. Collate DVR services to students in the various work experience programs \u2014 glasses, hearing aids, psychotherapy, operations, etc., and vocational training.\n6. Attendance at and participation in student stuffings referred for DVR services and DVR clients.\n7. Visitation of student job sites with prevocational coordinator.\n8. Attend in service meetings for Prevocational Services Staff.\n9. Be accountable to Supervisor of Prevocational Services.\u201d\nThe petition further alleged that respondent selected petitioner for tenure in a May 27, 1981, letter from the superintendent of schools stating: \u201cIt is my pleasure to inform you that you have been selected for tenure according to The School Code of Illinois, Section 24.11.\u201d But, as a result of improper pressure, petitioner executed a contract for employment as a nontenured teacher of typing and shorthand for the school year 1985-86. She was employed as a teacher for the school year 1985-86. Petitioner was notified in March 1986 that she would not be reemployed for the 1986-87 school year. Petitioner demanded a full-time position, and respondent replied that its action granting petitioner tenure was void.\nThe petition prayed for a writ of mandamus to be issued commanding respondent to reassign petitioner to a full-time teacher position.\nPetitioner testified to the following relevant facts in her deposition. She held a bachelor\u2019s degree in business education and had some graduate credits in guidance and counseling of the handicapped. She had a teaching certificate in business education for grades 6 through 12. The VAC job description given to her through the Illinois Department of Rehabilitation Services (DORS) stated that the VAC was responsible for the following duties:\n\u201c1.) Act on referrals, through the staffing process.\n2. ) Arrange appointments with client and parents to make applications for services and explain referral and consent process.\n3. ) Prepare and submit to DORS, forms and materials necessary to carry on the program.\n4. ) Secure sufficient diagnostic information to determine eligibility for services: make appointments for medical exams; make appointments for psychological testing; and, make appointments for any other examinations which would assist in determining client\u2019s condition.\n5. ) Gather all data to determine substantial vocational handicap.\n6. ) Confer with client, parents and teacher to develop a complete diagnostic service plan which will help determine a suitable vocational goal.\n7. ) Develop individual work rehabilitation plans for each client.\n8. ) Keep updated, detailed chrono [sic] notes on the rehabilitation progress or status of each client.\n9. ) Prepare reports to be submitted by regional office to Division of Vocational Rehabilitation for: reimbursement, authorization; and services.\n10. ) Complete annual reviews on each client to update vocational plans.\n11. ) Visitations to workshops, schools, job stations, training centers, to keep in touch with vocational development of each client, and other rehabilitative facilities to keep abreast of client\u2019s rehabilitative progress.\n12. ) Provide job placement services to post-graduates.\n13. ) Provide additional training and other rehabilitative services to post-graduates not ready for competitive employment.\u201d\nRespondent filed a motion for summary judgment in which it argued that petitioner could not as a matter of law be tenured because she was not employed as a teacher until 1985-86 and because her prior VAC position was not a teaching position requiring certification.\nMargaret Niederer, manager of the internal operations section of the Illinois State Board of Education (ISBE), swore to the following in a supporting affidavit. She was familiar with the certification requirements, and for the years 1979 to 1986, ISBE did not require a teacher\u2019s certificate or other formal State board certification for the VAC position.\nBonnie Gladden, program administrator for DORS, swore to the following in a supporting affidavit. At the time that petitioner was hired as a VAC for the 1979-80 school year, ISBE was strongly urging school districts to hire individuals who held teaching certificates and special education certificates. There were several VACs who were granted tenure by other school districts.\nPetitioner filed a motion for summary judgment in which she argued the following. She was a tenured teacher while employed by respondent, and respondent improperly terminated her employment. Respondent regularly and continuously identified her and treated her as a tenured teacher. Among the factors that indicated her tenured status as a regular faculty member were: (1) her job description; (2) the superintendent's letter about her selection for continued probationary employment, which leads to tenure; (3) the superintendent\u2019s letter advising her that she had been selected for tenure; (4) a 1984 notice to remedy issued to her by respondent regarding her performance (because a notice of remedy was required only when a teacher was tenured); (5) respondent\u2019s preparation of a membership information record for petitioner for the Illinois Teachers\u2019 Retirement System; (6) respondent\u2019s requirement that petitioner execute a loyalty oath that was required of teachers; (7) respondent\u2019s furnishing to petitioner of a memorandum to all faculty members who taught, stating her salary for the 1979-80 school year; (8) respondent\u2019s description in a 1979 memorandum of petitioner as having a district teacher number; (9) respondent\u2019s seeking of a copy of petitioner\u2019s teaching certificate; and (10) respondent\u2019s evaluation of petitioner on teacher evaluation forms.\nFiled in support of petitioner\u2019s motion for summary judgment was the affidavit of Cindy DeHart, supervisor for monitoring for ISBE, who swore to the following. ISBE strongly encouraged school district administrators to hire VACs with teaching certificates because development of revised personnel regulations included an anticipated change to require VACs to hold teaching certificates. As part of the process of reviewing and revising credential requirements that was begun in 1979, it was recommended that VACs hold teaching certificates.\nThe trial court entered summary judgment in favor of petitioner, denied respondent\u2019s motion for summary judgment, and continued the case for discovery and for a hearing on damages. After hearing evidence on damages, the trial court entered judgment in favor of petitioner on the basis that she achieved tenure after being employed full-time for two school years and that respondent failed eithfer to issue to her a notice of honorable dismissal or to dismiss her for cause. Petitioner was ordered reinstated, and she was awarded damages.\nRespondent argues the following on appeal. In order to become a tenured teacher, one must hold a position that requires its holder to be certified, and petitioner did not hold a position that was required to be certified. At the time that petitioner was hired as a VAC, ISBE was only urging the hiring of VACs with teaching certificates. Petitioner was not a teacher but was responsible for finding job placements, getting students certified in DORS, and finding work sites. According to the DORS contract with respondent, a VAC was to \u201cfunction as a rehabilitation counselor vs. prevocational personnel, teacher or school administrator.\u201d The VAC\u2019s educational and work experience qualifications were to meet minimal requirements established by DORS and respondent. A VAC was subject to joint termination by respondent and DORS upon documentation of the inability to perform required duties. Therefore, the contract was inconsistent with the control required by a school board over a teacher on a tenure track.\nPetitioner argues that she was tenured because: (1) she was required to be certified because she taught and supervised students; (2) she was advised that she had to be certified; (3) she was employed under respondent\u2019s own contract; (4) she was reemployed by respondent at its board meetings; (5) she was supervised and evaluated as respondent\u2019s employee; (6) she was disciplined by respondent; (7) respondent paid her a salary and gave her benefits; and (8) she was paid with school funds. Petitioner refers to the statement on the requirements form that credentials criteria were in the process of being developed for her VAC position, and she argues that she was listed under a category entitled \u201cother necessary professional\u201d as opposed to noncertified personnel.\nThe School Code provides that any teacher who has been employed as a full-time teacher for a probationary period of two consecutive school terms shall \u201center upon contractual continued service\u201d unless given written notice of dismissal. (111. Rev. Stat. 1991, ch. 122, par. 24 \u2014 11.) Such tenured teachers may be removed or dismissed as a result of a decision to decrease the number of teachers upon written notice given by certified mail at least 60 days before the end of the school term. (111. Rev. Stat. 1991, ch. 122, par. 24 \u2014 12.) The statute also provides for a procedure to dismiss tenured teachers for cause. (111. Rev. Stat. 1991, ch. 122, par. 24\u2014 12.) No one may \u201cteach or supervise in the public schools nor receive for teaching or supervising any part of any public school fund, who does not hold a certificate of qualification\u201d granted by ISBE or by the State Teacher Certification Board and a regional school superintendent. (111. Rev. Stat. 1991, ch. 122, par. 21 \u2014 1.) \u201cTeacher\u201d is defined as \u201cany or all school district employees regularly required to be certified under laws relating to the certification of teachers.\u201d 111. Rev. Stat. 1991, ch. 122, par. 24 \u2014 11.\nIn McNely v. Board of Education of Community Unit School District No. 7 (1956), 9 Ill. 2d 143, 137 N.E.2d 63, cited by respondent, it was alleged that plaintiff\u2019s decedent entered into contractual continued service within the meaning of section 24 \u2014 2 of the School Code (111. Rev. Stat. 1949, ch. 122, par. 24 \u2014 2). Defendant board of education argued that the teacher tenure law did not apply to nonteaching superintendents. The court stated that the statutory definition of teacher as \u201cany or all school district employees regularly required to be certified under laws relating to the certification of teachers\u201d (111. Rev. Stat. 1949, ch. 122, par. 24 \u2014 2) stated the legislature\u2019s policy to include within the teacher tenure law only those employees required to be certified. (McNely, 9 Ill. 2d at 148, 137 N.E.2d at 66.) The court held that, therefore, the only proper inquiry was whether superintendents were required to be certified. (McNely, 9 Ill. 2d at 148, 137 N.E.2d at 66.) Superintendents were held to be teachers within the meaning of the teacher tenure law because they were required to be certified. McNely, 9 Ill. 2d at 151,137 N.E.2d at 68.\nThe following cases were relied upon by petitioner. In Lane v. Board of Education of F air bury-Cropsey Community Unit School District No. 3 (1976), 38 Ill. App. 3d 742, 744, 348 N.E.2d 470, 473, a principal who had had no regular teaching duties, but who was reassigned to teaching duties, was held not to have a statutory claim to a property right (tenure) in continued employment as a principal because section 24 \u2014 11 (111. Rev. Stat. 1971, ch. 122, par. 24 \u2014 11) provided that a certified employee could be so reassigned. In discussing the principal\u2019s argument that defendant school district had not acted in good faith in its reassignment procedure, the court stated that \u201c[differing treatment regarding duties, salary schedules, and certification may be relevant to employment, but they are not relevant to entitlement to continued employment.\u201d (Lane, 38 Ill. App. 3d at 746, 348 N.E.2d at 474.) Petitioner relies on this statement in her argument that one\u2019s duties are not dispositive of entitlement to tenure, but we do not interpret the statement to mean that duties are not relevant to whether one is eligible for tenure. The court further stated:\n\u201cThe character and extent of plaintiff\u2019s property interest in continued employment as a principal was created and defined by the terms of his employment contract.\u201d Lane, 38 111. App. 3d at 746, 348 N.E.2d at 474.\nPetitioner argues that very similar is James v. Board of Education of School District No. 189 (1990), 193 Ill. App. 3d 406, 413-14, 549 N.E.2d 1001, 1005-06, in which registered nurses, who had taught in a practical nursing program and who were required to hold a provisional vocational certificate to teach, met the requirement of section 24 \u2014 11 (111. Rev. Stat. 1983, ch. 122, par. 24 \u2014 11) for entering tenured service. But, in contrast to petitioner in the instant case, the James plaintiffs taught classes.\nIn Falato v. Teachers\u2019 Retirement Systems (1991), 209 Ill. App. 3d 419, 568 N.E.2d 233, a teacher appealed from a decision denying him pension service credit for years when he was employed by a private corporation. Plaintiff argued that the definition of teacher included any certified teacher who taught in Illinois public common schools, whether or not the teacher was actually employed by an Illinois school district. The court rejected plaintiff\u2019s interpretation of the definition of teacher that was contained in the Illinois Pension Code (111. Rev. Stat. 1963, ch. lOSVa, par. 16 \u2014 106(a)), which was a statute that is not at issue in the instant case. Falato, 209 Ill. App. 3d at 424, 568 N.E.2d at 236-37.\nWe reverse the trial court\u2019s entry of summary judgment in favor of petitioner on the basis that petitioner was not a teacher eligible for tenure when she worked as a VAC. The tenure statute clearly defines teacher to include only those school district employees who are required to be certified under laws relating to the certification of teachers (111. Rev. Stat. 1991, ch. 122, par. 24 \u2014 11), and the teacher certification statute requires only those who teach or supervise to hold a certificate (111. Rev. Stat. 1991, ch. 122, par. 21 \u2014 1). The record does not establish that petitioner\u2019s VAC position was either a teaching or a supervising position. Rather, petitioner was a counselor who assisted students and graduates in vocational rehabilitation and job placement. The trial court should have entered summary judgment in favor of respondent.\nPetitioner argues that she does not seek tenure by estoppel because she had tenure by statute. But petitioner does argue, apparently as an alternative argument for affirmance, that respondent was estopped from denying that she had statutory tenure on the basis that there were \u201celements of fraud\u201d in respondent\u2019s conduct in compelling petitioner to sign the nontenure contract. The alleged misrepresentation made to petitioner was that a tenured counselor who became a teacher in the same school district would have to start over to earn tenure.\nBut, even assuming arguendo that respondent could be estopped from denying a status that is only achieved in accordance with State law, the entry of summary judgment cannot be affirmed on the basis of respondent\u2019s allegedly fraudulent conduct because there was a question of fact whether respondent knew that the alleged misrepresentation was untrue, which is one of the elements of equitable estoppel (Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074, 1079, 416 N.E.2d 385, 389-90). In addition, there is no allegation in petitioner\u2019s petition for mandamus that respondent knowingly made any false representations or that petitioner relied to her detriment on such false representations.\nThe judgment of the trial court entering summary judgment in favor of petitioner is reversed, the judgment of the trial court denying respondent\u2019s motion for summary judgment is reversed, and the cause is remanded with directions to enter summary judgment in favor of respondent.\nReversed and remanded with directions.\nRIZZI, J., concurs.", "type": "majority", "author": "JUSTICE CERDA" }, { "text": "JUSTICE TULLY,\ndissenting:\nI respectfully dissent from the majority\u2019s view that petitioner was not a tenured teacher. In this case I feel that the petitioner, Diana Abernathy, was a teacher at the time of her termination. Petitioner testified in her deposition that she held a business degree in business education. In her summary judgment motion, she further stated that she was regularly and continuously identified as and treated as a teacher by respondent. Moreover, several factors were presented which raised a genuine issue of material fact as to petitioner\u2019s status as a teacher, including: (1) a letter from the superintendent, informing her that she was selected for continued probationary employment, which leads to tenure; (2) the superintendent\u2019s letter advising her that she had been selected for tenure; (3) a notice of remedy, only sent to tenured teachers, was issued to her regarding her performance; (4) the requirement that petitioner execute a loyalty oath that was required of teachers; and (5) respondent\u2019s evaluation of petitioner on a teacher evaluation form.\nFor all of the foregoing reasons, I would hold that petitioner was a teacher at the time of her termination and the decision of the circuit court should be affirmed.", "type": "dissent", "author": "JUSTICE TULLY," } ], "attorneys": [ "Arthur C. Thorpe and James P. Bartley, both of Klein, Thorpe & Jenkins, of Chicago, for appellant.", "Allen J. Oehlert, of Deffenbaugh, Loewenstein, Hagen, Gehlert & Smith, P.C., of Springfield, for appellee." ], "corrections": "", "head_matter": "DIANA ABERNATHY, Petitioner-Appellee, v. BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT No. 218, COOK COUNTY, Respondent-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 91\u20141629\nOpinion filed December 2, 1992.\nRehearing denied April 22, 1993.\nTULLY, J., dissenting.\nArthur C. Thorpe and James P. Bartley, both of Klein, Thorpe & Jenkins, of Chicago, for appellant.\nAllen J. Oehlert, of Deffenbaugh, Loewenstein, Hagen, Gehlert & Smith, P.C., of Springfield, for appellee." }, "file_name": "1013-01", "first_page_order": 1031, "last_page_order": 1040 }