IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BARBARA FERKEL, et al. )

)

Plaintiffs, ) Case No. 11 C 9322

)

v. ) District Judge Edmond E. Chang

)

BOARD OF EDUCATION OF THE ) Magistrate Judge Daniel G. Martin

CITY OF CHICAGO )

)

Defendant. )

ORDER

Defendant’s Motion for Reconsideration [169] is granted in part.

STATEMENT

Defendant Board of Education of the City of Chicago (“the Board” or “Defendant”)

has brought a motion to reconsider the Court’s March 7, 2014 order on Plaintiff Barbara

Ferkel’s and the other named Plaintiffs’ (“Ferkel” or “Plaintiffs”) Amended [Third] Motion to

Compel, and the Court’s April 1, 2014 oral ruling concerning the Fourth Motion to Compel. 

The Board brought the instant motion on April 29, nearly two months after the Court’s

original ruling. 

Shortly after Plaintiffs filed their initial response brief, District Judge Chang issued

a ruling on Defendant’s Motion to Dismiss. Ferkel v. Bd. of Educ. of City of Chicago, — F.

Supp.2d —, 2014 WL 2209004 (N.D. Ill. May 28, 2014). Judge Chang dismissed Plaintiffs’

breach of contract claim and limited their due process claims to Section 34-84 of the Illinois

School Code. That provision gives tenured teachers a property interest in continued

employment. Teachers can only be terminated under Section 34-84 for good cause, and
only if certain procedures are followed. By contrast, teachers laid off because of economic

reasons are not entitled to such due process. Plaintiffs allege that their dismissal was

based on their performance, and that the Board’s reliance on a budgetary crisis was merely

a pretext for denying them these procedural guarantees. Judge Chang described the

remaining due process issue in clear terms: “Plaintiffs . . . bear the burden of actually

proving that the Board really terminated them for exclusively performance-based reasons

and not because of the budgetary crisis.” Ferkel, — F. Supp.2d —, 2014 WL 2209004, at

*8.

The District Court’s ruling affected what was already a protracted and highlycontested discovery dispute. This Court agreed fully with Judge Chang’s admonition that

the parties should “carefully consider how to conduct reasonable and cost-effective

discovery” on the limited due process issue. Id. The pending Motion for Reconsideration

did not address this concern because it preceded the District Court’s ruling. The Court

therefore instructed the parties to meet and confer in order to narrow their differences. 

Unfortunately, they reported only limited success at the June 20 status hearing. The

parties requested until July 21 to submit additional briefing on their respective positions. 

They now agree on some issues. Wide-ranging differences remain on others. 

Legal Standard

Motions for reconsideration are appropriate under a limited number of

circumstances. These include where: (1) the court has clearly misunderstood a party; (2)

the court has strayed outside the issues presented by the parties; (3) a significant and

controlling change in the law has subsequently occurred; or (4) a significant change in the

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relevant facts has taken place. See Bank of Waunakee v. Rochester Cheese Sales, Inc.,

906 F.2d 1185, 1191 (7 Cir. 1990). New evidence or new arguments that could have th

been presented earlier are not a basis for seeking reconsideration. “Reconsideration is not

an appropriate forum for rehashing previously rejected arguments or arguing matters that

could have been heard during the pendency of a previous motion.” Ahmed v. Ashcroft, 388

F.3d 247, 249 (7th Cir. 2004).

Discussion

Request No. 23

Document Request No. 23 sought “policies, guidelines, instructions, memos, etc.

which apply to CPS and the Board’s implementation or monitoring of Board Policy 08-10-

22PO1 titled Middle Grades Specialization.” The Court granted a limited range of

production on this issue in its earlier order. 

The District Court’s dismissal of Plaintiffs’ claim under the Middle Grades

Specialization (“MGS”) policy makes Request No. 23 overly broad as it currently stands. 

Plaintiffs contend that it is still relevant. They point out that Defendant has admitted that

Plaintiffs Ferkel, Otero, and Saporito “may” have been dismissed for reasons related to the

MGS policy. (Second Amend. Response to Int. No. 17). Plaintiffs claim that the MGS

documents could be relevant for showing that Defendant’s reliance on the MGS policy was

a pretext for age discrimination. Plaintiffs propose limiting the scope of Request No. 23 to

communications between (1) Principal Hoffman and the Board, and (2) “CPS or Board

officials, management and Board departments.” 

Defendant does not oppose the production of communications to Hoffman. For

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reasons that are unclear, however, the Board claims that communications from Hoffman

are inappropriate. The Court disagrees. Principal Hoffman was the decision maker for the

teacher terminations at Ames Middle School. MGS-related communications from Hoffman

to otherBoard employees could yield evidence concerning his motive for dismissing Ferkel,

Otero, and Saporito. Such evidence, if it exists, could be relevant to a pretext argument. 

The Court does not consider the issue at greater length because Defendant has not

addressed this portion of Plaintiffs’ amended response in meaningful detail. The Board

claims that Plaintiffs’ discussion of the pretext issue in their previous briefing was

“nonsensical and disingenuous.” (Reply at 4). The Board’s reasoning, however, only

relates to the issuance of Short Term Authorizations. It is not clear that is the only issue

at stake in Plaintiffs’ current version of their request. More importantly, Defendant did not

raise this argument in its original response brief. (Doc. 149 at 14). It cannot do so now. 

Ahmed, 388 F.3d at 249.

The Board also directs the Court to Ferkel’s EEOC charge and claims that she did

not administratively exhaust her remedies. Defendant failed to raise this issue as well

when it first opposed Plaintiffs’ request. (Id.). Ferkel clearly alleged age discrimination in

the charge. (Doc. 27-2). The Board may be complaining that Ferkel did not raise all of her

pretext arguments before the EEOC. The cases cited by the Board do not support the

proposition that a litigant must administratively assert every aspect of the burden-shifting

analysis that applies to age and employment discrimination claims. That issue is beyond

the scope of the current motion. 

This Court expresses no opinion on the likelihood that Plaintiffs will find the type of

evidence they seek. However, their claim is not implausible on its face. The possibility that

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discovery on this limited range of communications could yield relevant information is all that

is required to meet the liberal standard that applies to discovery. In re IKB Deutsche

Industriebank AG, 2010 WL 1526070, at *5 (N.D. Ill. April 8, 2010) (stating that discovery

is ordinarily allowed even “[i]f there is a possibility that [it] may lead to information relevant

to the subject matter of the action”) (emphasis added); Wiginton v. CB Richard Ellis, Inc.,

229 F.R.D. 568, 577 (N.D. Ill. 2004) (“If relevance is in doubt, courts should err on the side

of permissive discovery.”). 

The Board objects that granting this request expands the Court’s original order. 

That is true to some degree. But the Board claims that it has already turned over the

documents that it now objects to producing. See Reply at 7 (“[T]he Board has already

produced all MGS-related communications exchanged between Principal Hoffman and

other board employees.”). If that is the case, then Defendant’s production obligation on

this issue has been completed. Defendant shall produce any remaining responsive

documents that may exist.

That said, the Court agrees with Defendant that Plaintiffs’ second set of proposed

limitations is overly broad and unlikely to lead to admissible evidence. Plaintiffs have not

shown how intra-Board or inter-departmental MGS communications could be relevant to

a pretext analysis. Only Hoffman’s acts and intent are directly relevant to the named

Plaintiffs and other Ames Middle School teachers who were terminated. Moreover,

Defendant has explained the specific burdens that would be imposed on it in conducting

the investigation that would be required to respond to Plaintiffs’ request. Defendant raised

this issue in its earlier response brief, though it did not explain it in much detail. The Court

agrees that the burdens of producing these documents outweigh the potential relevance

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they would have to Plaintiffs since they no longer have a MGS due process claim.

Defendant’s motion is granted on these terms.

Request No. 24

Request No. 24 sought:

All policies, guidelines, instructions, notes, emails, memos, etc., to or from

any principal, any employee within CPS’ Human Capital Department, or any

other person, including Karen Bertucci relating to CPS teachers’

achievement of middle grade specialization and/or endorsements pursuant

to [the MGS policy].

In their response to Plaintiffs’ amended motion, Defendant claimed that it would be unduly

burdensome to inspect the email communications of its 589 principals. The Court implicitly

agreed and limited the request to communications from the Human Capital Development

office to principals and to Karen Bertucci. The Court also struck the phrase “any other

person” from Plaintiffs’ request. This left only the Human Capital Department, its

employees, and Karen Bertucci. The Court also directed Defendant to produce

communications related to a passage quoted in Plaintiffs’ motion, as well as to a paragraph

cited in Plaintiffs’ Exhibit E. The terms of these communications are laid out in the Court’s

March 7, 2014 order.

Defendant’s earlier brief did not raise any objection to discovery related to the

Human Capital Department. (Doc. 149 at 15). The Board now claims for the first time that

even the limited discovery that remains as part of the document request is too burdensome

to proceed: the Human Capital Department includes 248 employees; some of these

individuals are no longer employed; and it would take 248 hours, plus intensive review, to

gather and prepare documents for production. 

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All of these claims should have been brought when Defendant first responded to

Plaintiffs’ motion. Litigants are not even permitted to rehash old arguments, much less

present new ones, in a motion for reconsideration. See Bally Export Corp. v. Balicar, Ltd.,

804 F.2d 398, 400 (7 Cir. 1986) (stating that court orders may not be treated “as mere first th

drafts, subject to revision and reconsideration at a litigant’s pleasure”); Finnsugar

Bioproducts, Inc. v. Amalgamated Sugar Co., LLC, 244 F. Supp.2d 890, 891 (N.D. Ill.

2002). Moreover, it is difficult to imagine that all 248 departmental employees could be

equally relevant to answering Request No. 24. The department presumably has core

members whose emails would be far more responsive than those of every single

employee. Defendant has not identified the department’s structure, its managerial

members, or any other factor that could be reasonably be used to narrow the scope of

inquiry. 

Fortunately, the Court does not need to decide whether or not to address

Defendant’s new argument in full. Plaintiffs have proposed limiting Request No. 24 to

communications from the Human Capital Department to Principal Hoffman. Defendant

agrees to do so. It objects, however, to providing Hoffman’s responses to any identified

communications. The Court rejects this objection for the reasons stated above. 

The Court agrees with Defendant that the remaining parts of the earlier order should

be revised. The Court directed Defendant to produce documents related to an email that

was attached as Exhibit E to Plaintiffs’ amended motion, part of which was quoted on

pages 13 and 14 of the motion. This involved communications related to Short Term

Authorizations and annual progress concerning the MGS policy. Plaintiffs now offer to limit

the scope of their earlier request to communications concerning teachers at Ames Middle

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School. Unlike their other requests, however, Plaintiffs do not contend that this set of

communications is related to a pretext analysis. Plaintiffs only state that these documents

are relevant “regarding Ames Middle School teachers.” (Resp. at 6). 

These generalized allegations are not sufficient to demonstrate relevance. Plaintiffs

have not explained how their request fits the streamlined set of claims that survive the

District Court’s order. The burden for demonstrating that point rests with Plaintiffs, not the

Court. They have also failed to state why this set of documents would reveal relevant

information that could not also be found in communications to and from Hoffman. The

Board’s production of Hoffman’s MGS-related emails will presumably include any written

communication he had about teachers at Ames that relate to the MGS policy. 

Part of the Court’s order on Exhibit E involved Karen Bertucci’s MGS emails. 

Plaintiffs continue to demand these documents despite the fact that the Board does not

object to producing them. Indeed, Defendant states that it turned over 12,749 responsive

pages on May 22, 2014. The Board even specifies the Bates-labels of these documents

and offers to produce them to the Court for review. The Court accepts Defendant’s highlyspecific representation. 

Plaintiffs are silent on the issue. Their amended response does not mention this

production, explain what Plaintiffs’ review of it revealed, or argue that it is so inadequate

that even more documents should be turned over. Plaintiffs cannot demonstrate that they

are entitled to additional discovery on the MGS policy and Ames teachers without first

addressing these issues. The time for doing so is now. The Court will not require

Defendant to respond further to any part of Exhibit E without a more specific showing of

relevance and an explanation of why Defendant’s current production is inadequate. The

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motion is granted on this issue. 

The Board asks the Court to order Plaintiffs to return all of these Bertucci-related

emails. It is not clear at this time that Bertucci’s emails have no relevance at all to

Plaintiffs’ remaining claims. Defendant is given leave to raise the issue after Plaintiffs have

had more opportunity to review the documents. Until then, the Bertucci emails remain

subject to the confidentiality order entered in the case. 

 Request No. 25

Defendant also asks the Court to reconsider its ruling on Request No. 25, which

asked for all communications related to the creation of “Department Reduction”

documents. This request is not at issue because the Court denied Plaintiffs’ motion to

compel concerning Request No. 25. 

The April 1, 2014 Order

Finally, Defendants also oppose this Court’s April 1, 2014 order concerning the

discovery related to 273 teachers who were potentially subject to the MGS policy. The

order modified the Court’s earlier rulings on Document Request Nos. 26 and 27 and

Interrogatory No. 17. The Court agrees that the information at issue in the April 1, 2014

is no longer relevant in light of the District Court’s ruling. The Court’s April 1, 2014 order

is hereby vacated as it concerns this issue. 

Conclusion

This order completes all discovery issues stemming from Plaintiffs’ motion that was

originally filed in September 2013. These proceedings have included an amended motion,

a renewed motion to compel, multiple court hearings, the instant motion, and the District

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Court’s ruling. The parties are directed to move forward with completing the discovery

encompassed by this order. They shall meet and confer prior to the status set for August

14 to agree on a date by which Defendant will have complied with the Court’s ruling. 

ENTER:

_____________________________

 Daniel G. Martin

 United States Magistrate Judge

DATE: August 8, 2014.

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