UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Barbara Ferkel, Adrienne Green-Katien, ) 

Charles Saporito, Craig Johnson, Mishela ) 

Torres-Riley, and Francisco Otero, ) 

individually and on behalf of all similarly ) 

situated persons, ) 

 ) 

 Plaintiffs, ) No. 11 C 09322 

 ) 

 v. ) 

 ) Judge Edmond E. Chang 

Board of Education of the City of Chicago, ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER

Plaintiffs Barbara Ferkel, Adrienne Green-Katien, Charles Saporito, Craig 

Johnson, Mishela Torres-Riley, and Francisco Otero filed this lawsuit on behalf of 

themselves and a proposed class of similarly situated Chicago Public School 

teachers against the Chicago Board of Education, alleging age discrimination in 

violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et 

seq., violation of their constitutional due-process rights under 42 U.S.C. § 1983, and 

common-law breach of contract.1 R. 77, Third Am. Compl. The Board now moves to 

dismiss the due-process and breach-of-contract claims under Federal Rule of Civil 

Procedure 12(b)(6). R. 91, Mot. Dismiss. For the reasons explained below, the 

Board’s motion is denied in part and granted in part. 

 1The Court has subject matter jurisdiction over this case based on 28 U.S.C. §§ 1331, 

1343, and 1367. 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 1 of 25 PageID #:2676
2 

I. Background 

In evaluating a motion to dismiss, the Court must accept as true the 

complaint’s factual allegations and draw reasonable inferences in Plaintiffs’ favor. 

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2079 (2011). Plaintiffs were tenured Chicago 

Public School (CPS) teachers. See Third Am. Compl. ¶¶ 2, 83. All of them formerly 

taught at Ames Middle School. Id. ¶¶ 10, 18, 32, 38, 42, 45, 48. In October 2008, the 

Board adopted a Middle Grades Specialization Policy (Specialization Policy). Id.

¶ 50; R. 77-2, Pls.’ Exh. B, Specialization Policy. The Specialization Policy required 

that CPS students in the sixth through eighth grades receive instruction in 

language arts, math, science, and social studies from teachers who either (1) possess 

a “middle grades content endorsement” in those subjects, or (2) through the 2010-

2011 school year only, “ha[ve] been authorized by the Illinois State Board of 

Education to teach those [subjects] pending completion of required course work and 

[are] making annual progress toward completing endorsement requirements.” 

Specialization Policy § I.A. The day after the Board adopted the Specialization 

Policy, then-CPS Chief Executive Officer Arne Duncan sent a letter to CPS teachers 

stating that the Board had adopted the Specialization Policy and reiterating that all 

CPS middle school teachers would be required to have proper middle-grade 

endorsements no later than the beginning of the 2011-2012 school year. Third Am. 

Compl. ¶ 51; R. 77-3, Pls.’ Exh. C, Duncan Letter. By the summer of 2010, Plaintiffs 

either already had middle-grade endorsements or were in the process of completing 

them. Third Am. Compl. ¶¶ 20, 33, 39-40, 43, 46, 49. 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 2 of 25 PageID #:2677
3 

Then, on June 15, 2010, the Board passed a resolution authorizing the 

“honorable termination” of tenured CPS teachers. Id. ¶ 83. Soon after, the media 

began reporting that Ron Huberman, who was at that time CPS’s Chief Executive 

Officer, and the Board would lay off “unsatisfactory” teachers first, instead of basing 

layoffs solely on seniority. See id. ¶ 53; see also R. 77-4, Pls.’ Exh. D, Huberman 

Article at 1. On August 10, 2010, Plaintiffs were informed that they would be 

honorably terminated from CPS effective August 31, 2010. Third Am. Compl. ¶ 55. 

Plaintiffs allege that Huberman’s statements that honorably terminated teachers 

were performing unsatisfactorily are false. Id. ¶ 54. Indeed, several of the Plaintiffs 

had received positive professional evaluations, ranging from “Excellent” to 

“Superior.” See id. ¶¶ 17, 22, 31, 45; see also id. ¶ 35 (alleging that Green-Katien 

received a “Satisfactory” rating during the 2009-2010 school year). But when 

Thomas Hoffman, Ames Middle School’s principal, called to tell Plaintiffs about 

their termination, he informed two of them that they were being terminated 

because they did not have certain middle-grade endorsements. Id. ¶¶ 21, 56-57. A 

few days later, Plaintiffs received letters from CPS’s Office of Human Capital 

advising them that their positions were no longer available because of 

“Redefinition.” Id. ¶ 58; R. 77-5, Pls.’ Exh. E, Termination Letters. 

Plaintiffs then sued the Board. They have alleged that the Board’s failure to 

provide proper pre-layoff procedures—such as an individualized hearing on each 

teacher’s qualifications for existing vacancies—constituted a violation of their 

constitutional right to due process, because as tenured CPS teachers, they had a 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 3 of 25 PageID #:2678
4 

property interest in continued employment. See Third Am. Compl. ¶¶ 84, 87-90, 92, 

105-113. Plaintiffs have also alleged that the Board breached the contract it made 

with Plaintiffs, the contract being formed, allegedly, by the adoption of the Middle 

Grades Specialization Policy and the issuance of the Duncan Letter. Id. ¶ 123. 

Plaintiffs believe that the Policy and Letter represent a promise from the Board 

that it would maintain the status quo on middle-grade-specialization requirements 

through July 2011 and provide Plaintiffs until that date to complete all required 

endorsements. Id. ¶ 120. The Board now moves to dismiss both the due-process and 

the breach-of-contract claims. 

II. Legal Standard 

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need 

only include “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give 

the defendant fair notice of what the . . . claim is and the grounds upon which it 

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) 

(internal quotation marks and citation omitted). The Seventh Circuit has explained 

that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus 

litigation on the merits of a claim’ rather than on technicalities that might keep 

plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). 

 “A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to 

state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 4 of 25 PageID #:2679
5 

Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 

550 U.S. at 570). These allegations “must be enough to raise a right to relief above 

the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to 

the assumption of truth are those that are factual, rather than mere legal 

conclusions. Iqbal, 556 U.S. at 678-79.

III. Analysis 

A. Due-Process Claim 

Plaintiffs, all of whom were tenured teachers, allege that the Board deprived 

them of their protected property interest in continued employment in violation of 

the Due Process Clause by summarily dismissing them without individualized 

determinations of their qualifications, certifications, experience, and performance 

ratings. Third Am. Compl. ¶¶ 65, 69, 88, 105-107. Plaintiffs also allege that they 

were entitled to be considered for open, alternative, or even temporary positions in 

the CPS system before being laid off. Id. ¶¶ 74-76, 89-92, 109. The Board, however, 

argues that Plaintiffs’ due-process claim should be dismissed because Plaintiffs 

have failed to identify a constitutionally protected property interest and thus have 

failed to state a claim upon which relief can be granted. R. 91, Def.’s Br. at 3, 5-8. 

To prevail on a claim for the deprivation of property without due process, a 

plaintiff must establish that she holds a protected property interest. Cleveland Bd. 

of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). Property interests are not created 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 5 of 25 PageID #:2680
6 

by the Constitution, but instead “are created and their dimensions are defined by 

existing rules or understandings that stem from an independent source such as 

state law.” Id. (internal quotation marks and citation omitted). So the federal 

Constitution will protect property from government deprivations without due 

process, but the federal Constitution does not create the property interest. 

Property interests may arise from statutes, regulations, municipal 

ordinances, or from an express or implied contract, such as “rules or understandings 

that secure certain benefits and that support claims of entitlement to those 

benefits.” Covell v. Menkis, 595 F.3d 673, 675-76 (7th Cir. 2010) (internal quotation 

marks and citation omitted). An individual has a property interest in a benefit if she 

has more than an “abstract need” for, or “unilateral expectation” of, that benefit. 

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). In other words, the 

individual must have a “legitimate claim of entitlement to it.” Id. In the 

employment context, a property interest exists “when an employer’s discretion is 

clearly limited so that the employee cannot be denied employment unless specific 

conditions are met.” Buttitta v. City of Chicago, 9 F.3d 1198, 1202 (7th Cir. 1993) 

(internal quotation marks and citation omitted). Once a court determines that an 

individual holds a property interest protected by the Due Process Clause, the 

question becomes what process is due. Loudermill, 470 U.S. at 541. 

In their Third Amended Complaint, Plaintiffs identify four potential sources 

that they believe create constitutionally protected property interests. First, 

Plaintiffs point to section 34-84 of the Illinois School Code, which they believe 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 6 of 25 PageID #:2681
7 

creates a property interest in “tenured and continued employment.” Third Am. 

Compl. ¶¶ 87-88, 105, 110. Second, Plaintiffs also believe that section 34-18(31) of 

the School Code entitles them to “individualized consideration . . . of the 

qualifications, certifications, experience, performance ratings or evaluation[s], or 

any other factor relating to an employee’s job performance.” Id. ¶¶ 65, 106-107, 110. 

Next, Plaintiffs allege that they had a property interest in seniority-based layoff 

procedures and an interest in reinstatement or participation in a reassignment pool 

under Board Report 07-1219-PO1, Section 504.2 (Reassignment Policy). See id.

¶¶ 69-70, 78, 108, 110. Finally, Plaintiffs also allege that the Board’s Middle Grades 

Specialization Policy and the Duncan Letter to teachers created a due-process right 

to obtain middle-grade endorsements and to retain their positions until July 2011. 

Id. ¶¶ 111-113. The Court will consider each of these asserted sources in turn, but 

in reverse order. 

As a preliminary matter, Defendants argue that Plaintiffs’ due-process 

allegations related to these last two potential property interests—those created by 

the Specialization Policy and the Reassignment Policy—are untimely. See Def.’s Br. 

at 4 n.3. But in response, Plaintiffs correctly note that both of these claims are 

timely under the relation-back doctrine. R. 92, Pls.’ Resp. Br. at 6-7. Under Federal 

Rule of Civil Procedure 15(c), “[a]n amendment to a pleading relates back to the 

date of the original pleading when . . . the amendment asserts a claim or defense 

that arose out of the conduct, transaction, or occurrence set out—or attempted to be 

set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B); see also Henderson v. 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 7 of 25 PageID #:2682
8 

Bolanda, 253 F.3d 928, 931 (7th Cir. 2001) (“Generally, an amended complaint in 

which the plaintiff merely adds legal conclusions or changes the theory of recovery 

will relate back to the filing of the original complaint if the factual situation upon 

which the action depends remains the same and has been brought to defendant’s 

attention by the original pleading.” (internal quotation marks and citation 

omitted)). The relation-back doctrine applies here because Plaintiffs’ new 

allegations in the Third Amended Complaint all arise out of the same core factual 

allegations as in the original complaint—Plaintiffs’ dismissals. The Board argues 

that relation back does not apply because Plaintiffs’ new allegations about the 

Specialization and Reassignment Policies are new facts, not new substantive claims. 

See R. 97, Def.’s Reply Br. at 8. But that reading of the complaint is too technical. 

Cf. Woods v. Ind. Univ.-Purdue Univ. at Indianapolis, 996 F.2d 880, 884 (7th Cir. 

1993) (explaining that relation back “has its roots in the equitable notion that 

dispositive decisions should be based on the merits rather than technicalities”). The 

Board had notice as of Plaintiffs’ original complaint that Plaintiffs were challenging 

their dismissals, and these two Policies simply support two additional theories of 

recovery for Plaintiffs’ due-process claim. In short, these claims arise from the same 

transaction or occurrence as the original complaint and are therefore timely. 

1. Specialization Policy 

Even though Plaintiffs’ allegations related to the Specialization and 

Reassignment Policies are not time-barred, they fail to identify constitutionally 

protected property interests that arise from these Policies. Turning first to the 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 8 of 25 PageID #:2683
9 

Specialization Policy, Plaintiffs believe that the Policy and the Duncan Letter both 

set a clear deadline—July 2011—for them to attain middle-grade endorsements. As 

a result, Plaintiffs argue that they had a property interest in not facing 

specialization-based dismissals until after that deadline. See Pls.’ Resp. Br. at 6; see 

also Third Am. Compl. ¶¶ 111-112, 120. This argument does not square with the 

language of either the Policy or the letter. Both documents clearly stated that the 

Policy would go into effect starting with the 2009-2010 school year, and nothing in 

the documents states that the completion of the Policy’s roll-out is some sort of 

binding grace period. See Specialization Policy § II; Duncan Letter (“The Middle 

Grade Specialization Policy will be phased-in beginning in July 2009 and continue 

through June 2011.”). And neither the Policy nor the Letter makes any promises 

about continued employment, as discussed more fully below. Instead, they explain 

that obtaining endorsements in certain subject areas is a necessary, but not 

sufficient, condition for continued employment. There is absolutely no guarantee 

that teachers with those endorsements will have an unqualified right to continue 

teaching. Therefore, the Specialization Policy and Duncan Letter do not create a 

property interest protected under the Due Process Clause. 

2. Reassignment Policy 

The Reassignment Policy likewise falls short in creating a property interest. 

This Policy spells out a series of steps that the Board must take when a teacher is 

laid off because of a school or program closure, a drop in enrollment, a change in 

educational focus at a school, or when a school is subject to remediation or 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 9 of 25 PageID #:2684
10 

intervention. See R. 77-7, Pls.’ Exh. G, Reassignment Policy § 1 (“Scope of Policy”). 

These steps include giving notice to the teacher, providing the teacher with a list of 

vacancies, giving the teacher thirty days to interview for other positions, and 

possible reassignment or interim appointments. See id. §§ 3-7. The Board believes 

that the Reassignment Policy does not create a property interest because the “Scope 

of the Policy” limits the Policy to only four narrow circumstances that—with one 

exception for Green-Katien, discussed below—do not apply in this case. See Def.’s 

Br. at 6-7. Plaintiffs were discharged because their positions were no longer 

available because of “redefinition,” and “redefinition” was not one of the actions that 

triggered the Policy. See Termination Letters; Reassignment Policy § 1.

But the Reassignment Policy falls short for a more fundamental reason: it 

only lays out a set of notice, removal, and reassignment procedures; it does not 

establish a property interest that those procedures are designed to protect. As 

explained above, process is due only if Plaintiffs first establish that they have a 

protected property interest. See Loudermill, 470 U.S. at 538. It does not work the 

other way around. Plaintiffs cannot point to a set of procedures and argue that the 

procedures in and of themselves create a property interest. See Heck v. City of 

Freeport, 985 F.2d 305, 311 (7th Cir. 1993) (“Mere procedural rights . . . do not of 

themselves give rise to property interests protected under the Fourteenth 

Amendment.”). In other words, Plaintiffs can have no property interest in 

procedures; they can only have an interest in property. And the Reassignment 

Policy does not create a property interest; it only establishes procedures. 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 10 of 25 PageID #:2685
11 

The factual circumstances underlying Plaintiff Green-Katien’s due-process 

claim are slightly different from the factual basis for the other Plaintiffs’ claims. 

Green-Katien was an art teacher at Ames, and her employment was terminated 

because Principal Hoffman closed the art program. Third Am. Compl. ¶¶ 32, 63. 

Therefore, as Plaintiffs point out, the reason for Green-Katien’s termination—

program closure—fell within the scope of the Reassignment Policy. See Pls.’ Resp. 

Br. at 6. 

But even though Green-Katien’s factual circumstances are different, the legal 

analysis that applies to her claim is the same. It is true, as Plaintiffs note, that the 

district court in Waddy v. Board of Education held that the same Reassignment 

Policy created a constitutionally protected property interest for teachers who were 

laid off during a school remediation or “turnaround.” No. 10 CV 6158, 2012 WL 

6060932, at *1, 4-5 (N.D. Ill. Dec. 6, 2012). But Waddy did not grapple with the 

important distinction between property interests and procedures. As discussed 

above, the Due Process Clause only protects property interests; the Clause does not 

mandate that state-law-created procedures are themselves protected. Instead, only 

after a plaintiff establishes a property interest does the Due Process Clause demand 

some procedural protection before (or sometimes after) depriving the plaintiff of 

that property interest. At that point, the question becomes what procedures are 

due, and the answer to that question is provided by the familiar three-factor 

Mathews v. Eldridge standard. See 424 U.S. 319, 334-35 (1976) (establishing a 

three-factor balancing test to decide what procedures are due). Therefore, here, 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 11 of 25 PageID #:2686
12 

Green-Katien must still identify a source that establishes a right to continued 

employment when a program closes—that is, a property interest—and not just a set 

of procedures that CPS or the Board might have adopted for when a program closes. 

In certain circumstances, it is possible that promised procedures could be 

evidence of a protected property interest if, for example, the procedures were 

mandatory and detailed and, when read in context, gave rise to the promise of the 

underlying property interest. But because Plaintiffs have not made this argument, 

the Court need not consider it now.2 Even assuming the procedures are evidence of 

a protected property interest, Green-Katien would still not be entitled to the 

procedures themselves as a matter of federal constitutional law. Instead, the Board 

could follow any set of procedures that passes muster under Mathews v. Eldridge’s 

balancing test; it would not necessarily have to follow its own prescribed 

procedures. Cf. Head v. Chi. Sch. Reform Bd. of Trs., 225 F.3d 794, 805 & n.10 (7th 

Cir. 2000) (explaining that employee must only receive “constitutionally adequate 

process,” not necessarily the procedures provided under state law). 

Finally, Plaintiffs also argue that Green-Katien was deprived of due process 

because the closure of the art program was “bogus.” Pls.’ Resp. Br. at 1, 5. As they 

allege in their complaint, Hoffman closed the art program for the 2010-2011 school 

 2The Court will note, though, that in the public-employee context, termination 

procedures, in and of themselves, do not create property interests. See Moss v. Martin, 473 

F.3d 694, 701 (7th Cir. 2007) (holding that mandatory notice procedures in an employee 

manual do not create a protected property interest in a job); Heck, 985 F.2d at 311. 

Similarly, in the prison-litigation context, the Supreme Court has discouraged courts from 

looking to regulatory language mandating certain prison-management procedures to 

determine if prisoners have a liberty interest. See Sandin v. Conner, 515 U.S. 472, 482-84 

(1995); see also Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983). 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 12 of 25 PageID #:2687
13 

year, only to reopen it the following school year and hire a new art teacher who is 

substantially younger than Green-Katien. Third Am. Compl. ¶ 63. Green-Katien 

was not contacted or invited to apply for the reopened position. Id. ¶ 64. But again, 

even if the closure was a sham, Green-Katien must still identify the source of a 

property interest guaranteeing employment after the program’s closure. What’s 

more, Plaintiffs’ complaint does not allege, for example, that the program closure 

was a sham to hide Green-Katien’s termination for cause—a fact that might have 

triggered due-process rights (as discussed more fully below with respect to section 

34-84 of the Illinois School Code). Instead, Plaintiffs allege that the program closure 

was a pretext for discharging Green-Katien because of her age. Id. ¶ 63. Although 

those allegations might form the basis of Green-Katien’s age-discrimination claim 

under the ADEA—a claim that the Board does not target in its motion to dismiss—

they are not the basis for a due-process claim. Absent a threshold showing of a 

protectable interest in continued employment, Plaintiffs cannot proceed to an 

inquiry into the validity of an alleged deprivation of that employment. In short, 

Plaintiffs also fail to identify a property interest arising from the Reassignment 

Policy. 

3. Section 34-18(31) 

Plaintiffs next argue that section 34-18(31) of the Illinois School Code 

establishes a constitutionally protected property interest.3 105 ILCS 5/34-18(31). 

 3Section 34-18(31) states that “[t]he board . . . shall have power . . . [t]o promulgate 

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

the recall of such employees . . . . Such criteria shall take into account factors including, but 

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

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 13 of 25 PageID #:2688
14 

This argument fails as well. As the Court already explained when granting the 

Board’s earlier motion to dismiss, this section of the School Code is simply an 

authorizing or enabling statute that gives the Board the power to promulgate layoff 

and recall procedures. Price v. Bd. of Educ., Nos. 11 C 04463, 11 C 04974, 11 C 

09322, 2013 WL 1914325, at *7 (N.D. Ill. May 8, 2013) (citing Chi. Teachers Union, 

Local No. 1 v. Bd. of Educ., 963 N.E.2d 918, 925 (Ill. 2012)). And because the Board 

has chosen not to exercise its power to issue such procedures, this section of the 

School Code does not give tenured teachers a substantive right to individualized 

consideration before layoff. Id. at *7-8. In other words, section 34-18(31)’s list of 

criteria only applies if and when the Board acts on its rule-making authority, and 

here, the Board has chosen not to act. Id. at *7. What’s more, section 34-18(31) 

would only apply to procedures that the Board established to govern layoffs, 

reductions in force, or recalls. And as discussed below, Plaintiffs now argue that 

they were not “laid off” for economic reasons, but instead were terminated for cause. 

Plaintiffs cannot have it both ways. If their terminations were for cause, then 

section 34-18(31) is no longer relevant. 

4. Section 34-84 

That leaves section 34-84 of the Illinois School Code. 105 ILCS 5/34-84. 

Plaintiffs assert that their status as tenured teachers under section 34-84 gave 

them a property interest in continued employment, which in turn entitled them to 

individualized hearings to review the reasons for their termination and also an 

 

evaluations, and any other factors relating to an employee’s job performance.” 105 ILCS 

5/34-18(31). 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 14 of 25 PageID #:2689
15 

opportunity to demonstrate that they were qualified to fill vacancies within the CPS 

system. See Third Am. Compl. ¶¶ 87-90, 92. Section 34-84 of the Illinois School Code 

outlines the procedure by which a teacher achieves tenure: 

Appointments and promotions of teachers shall be made for merit only, and 

after satisfactory service for a probationary period . . . appointments of 

teachers shall become permanent, subject to removal for cause in the manner 

provided by Section 34-85. 

105 ILCS 5/34-84 (emphasis added). Section 34-85, in turn, spells out the process for 

removing a tenured teacher for cause, including written notice of charges and a 

hearing. 105 ILCS 5/34-85. Thus, under Illinois law, tenured teachers may not be 

terminated from their jobs except for good cause. Cf. Harbaugh v. Bd. of Educ., 716 

F.3d 983, 986 (7th Cir. 2013). 

But as Price already explained, section 34-84 deals only with terminating 

employment on some performance-based ground; section 34-84 says nothing about a 

tenured teacher’s immunity from economic layoff. 2013 WL 1914325, at *6. Sections 

34-84 and 34-85’s provisions for tenure and removal do not exempt tenured teachers 

from being laid off; that is, a tenured teacher does not have a property interest in 

absolute continued employment that shields her from layoff decisions driven by 

economic and other budgetary factors. Land v. Bd. of Educ., 781 N.E.2d 249, 256 

(Ill. 2002). So notwithstanding the restrictions that section 34-84 and 34-85 place on 

the Board’s power to discharge tenured teachers for cause, the Board retains 

discretion to lay off employees—even those who have achieved tenure status—in 

good faith for lack of work or to save money. See Perlin v. Bd. of Educ., 407 N.E.2d 

792, 796 (Ill. App. Ct. 1980) (citations omitted); see also Chi. Teachers Union, 407 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 15 of 25 PageID #:2690
16 

N.E.2d at 927 (holding that section 34-84 does not give laid-off tenured teachers “a 

substantive right to be rehired after an economic layoff” (emphasis added)). 

As this case law distinguishing discharges and layoffs makes clear, it is then 

very important to determine whether a tenured teacher’s termination was 

motivated by a performance-based reason or an economic one. The difference 

determines whether process is “due” to that teacher. If the reasons driving a layoff 

are economic, the Board can consider employee performance and qualifications 

when deciding whom to lay off. Indeed, section 34-18(31) envisions that these 

factors would be relevant if the Board formerly adopted layoff procedures. But if the 

Board is targeting a tenured teacher solely for performance issues, the teacher has 

a protected property interest under section 34-84 and is entitled to due process. 

Since the filing of the Board’s previous motion to dismiss, Plaintiffs have 

rearticulated their due-process claim under section 34-84 so that it now survives, 

even though it did not survive before. See Price, 2013 WL 1914325, at *6-7 (granting 

the Board’s motion to dismiss). Now, Plaintiffs do not allege that their terminations 

were economic layoffs. Pls.’ Resp. Br. at 1, 4-5. Instead, they believe they were 

discharged because of pretextual claims about their job performance and 

qualifications. Id. at 1. Because Plaintiffs have reframed their claim, they have now 

articulated a constitutionally protected property interest under section 34-84. 

The Board urges the Court to ignore this recharacterization of Plaintiffs’ dueprocess claim. See Def.’s Reply Br. at 1-6. The Board argues that it is clear that 

economic reasons were the basis for the terminations. It is true that Plaintiffs’ 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 16 of 25 PageID #:2691
17 

terminations in the summer of 2010 occurred at the same time that budget deficits 

forced the Board to lay off over 1,000 teachers. See Chi. Teachers Union, 963 N.E.2d 

at 921 (noting that the Board laid off 1,289 teachers in several phases during the 

summer of 2010). Indeed, the Huberman Article that Plaintiffs attach to their 

complaint even references the Board’s “estimated half-billion-dollar budget deficit.” 

Huberman Article at 1. The Board also points out that although Plaintiffs 

repeatedly use the term “laid off” in their Third Amended Complaint, they never 

specifically allege that they were discharged “for cause.” See, e.g., Third Am. Compl. 

¶¶ 84, 94. What’s more, Plaintiffs rely heavily on section 34-18(31) of the School 

Code—a provision that applies only when a layoff is not for cause. See 105 ILCS 

5/34-18(31) (authorizing the Board to establish procedures only for “the layoff or 

reduction in force of employees and the recall of such employees”). Together, these 

allegations do suggest that it would be reasonable to infer that economic factors 

contributed to Plaintiffs’ terminations. 

But at this stage of the litigation, the Court must draw all reasonable 

inferences in Plaintiffs’ favor. al-Kidd, 131 S. Ct. at 2079; Craig v. Rich Twp. High 

Sch. Dist. 227, 736 F.3d 1110, 1115 (7th Cir. 2013) (recognizing that courts 

reviewing a Rule 12(b)(6) motion must “constru[e] factual allegations and any 

reasonable inferences in the light most favorable to the plaintiff”). To be sure, 

Plaintiffs’ Third Amended Complaint could have been clearer—it is, after all, their 

fourth iteration of the complaint. But a generous reading of Plaintiffs’ Third 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 17 of 25 PageID #:2692
18 

Amended Complaint,4 in the light most favorable to Plaintiffs, does support 

Plaintiffs’ argument that they did allege that the Board was really discharging 

them for performance-based reasons. (Of course, Plaintiffs deny that they were 

performing inadequately, but the point is that Plaintiffs allege that the Board was 

really instituting what the Board believed were for-cause terminations.) 

Under this light-most-favorable standard, the complaint states a due-process 

claim for performance-based terminations. First, Huberman allegedly let slip to the 

media that the Board would be basing its layoff decisions on teacher performance. 

Third Am. Compl. ¶ 53; Huberman Article at 1. Next, Plaintiffs allege that 

Huberman’s statements that the terminated teachers were unsatisfactory are false. 

Third Am. Compl. ¶ 54. Viewed in the light most favorable to Plaintiffs then, the 

alleged budgetary crisis cited in the article was just a façade for the Board’s 

pretextual performance-based layoffs. In other words, the Board said the layoffs 

were driven by an economic crisis so that they could avoid having to convene dueprocess hearings to review for-cause terminations. Similarly, Principal Hoffman told 

Ferkel and Saporito that they were being terminated because they did not have 

certain middle-grade endorsements. Id. ¶¶ 56-67; see also id. ¶ 123. Of course, one 

way to interpret Hoffman’s comments could be that he was explaining to Ferkel and 

Saporito that they were being eliminated in an economic layoff because of their 

 4Contrary to the Board’s arguments, see Def.’s Reply Br. at 2-4, what Plaintiffs 

alleged in their earlier complaints is irrelevant for deciding this present motion to dismiss. 

See Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 782-83 (7th Cir. 2013) (“[W]hen a 

plaintiff files an amended complaint, the amended complaint supersedes the original 

complaint. . . . [F]acts or admissions from an earlier complaint that are not included in a 

later complaint cannot be considered on a motion to dismiss.”). 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 18 of 25 PageID #:2693
19 

performance and qualifications, not that they were eliminated only because they did 

not have the endorsements. But this is the pleading stage, and the Court must 

therefore pick the interpretation that is most favorable to Plaintiffs. Finally, and 

perhaps most importantly, Plaintiffs do not allege anywhere in their Third 

Amendment Complaint that their terminations were economic layoffs. 

In short, Plaintiffs have stated (finally) a due-process claim that survives the 

Board’s motion to dismiss. The narrow claim that remains is based solely on 

Plaintiffs’ allegations that they were terminated for cause, not for economic reasons, 

and that they have a protected property interest only under section 34-84 of the 

Illinois School Code. Going forward, discovery will be limited to this narrow theory 

of recovery. Moreover, it will be Plaintiffs that bear the burden of actually proving 

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

and not because of the budgetary crisis. In other words, without Rule 12(b)(6)’s 

light-most-favorable lens, Plaintiffs must either prove that the Board’s reported 

budget crisis was truly a sham or that their own terminations were in no way 

driven by the Board’s budgetary restrictions. Given the publically available 

statements about CPS’s financial woes, as well as Plaintiffs’ own previous 

pleadings, the Court seriously questions whether Plaintiffs will be able to prove 

this. The parties must carefully consider how to conduct reasonable and costefficient discovery on this claim, under the supervision of the able magistrate judge 

(to whom discovery has been referred). And Plaintiffs should be mindful of Rule 54’s 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 19 of 25 PageID #:2694
20 

cost-shifting provisions and their Rule 11 obligations. But for now, the Court denies 

the Board’s motion to dismiss Plaintiffs’ due-process claim. 

B. Breach-of-Contract Claim 

In their breach-of-contract claim, Plaintiffs argue that the Specialization 

Policy and the Duncan Letter constitute contracts that the Board has breached. See 

id. ¶ 123. In particular, Plaintiffs believe that the Policy and Letter promised them 

that there would be no specialization-based discharges until July 2011. See id.

¶ 120. Plaintiffs allege that the Board breached this promise when Principal 

Hoffman told Ferkel and Saporito that they were being terminated because they did 

not have certain middle-grade endorsements. See id. ¶¶ 56-57; see also id. ¶ 123. 

The Board presents two alternative arguments for why Plaintiffs’ breach-ofcontract claim fails. First, the Board argues that the Illinois Educational Labor 

Relations Act (IELRA), 115 ILCS 5/1 et seq., preempts Plaintiffs’ common-law 

contract claim. But Plaintiffs’ breach-of-contract claim is not “preempted.” 

“Preemption” is the constitutional-law principle, derived from the Supremacy 

Clause, that a federal law can supersede state or local laws that touch on fields 

Congress has intended to exclusively occupy (“field preemption”) or that conflict 

with federal law (“conflict preemption”). See generally Arizona v. United States, 132 

S. Ct. 2492, 2500-01 (2012). 

Although the Court understands that the Board is trying to analogize to the 

preemptive effect of federal labor law, in this state-law context, it is more 

appropriate to ask whether the Illinois Educational Labor Relations Board (IELRB) 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 20 of 25 PageID #:2695
21 

has exclusive jurisdiction to review Plaintiffs’ contract claim. The purpose of the 

IELRA is “to regulate labor relations between educational employers and 

educational employees” and to resolve “disputes arising under collective bargaining 

agreements.” 115 ILCS 5/1. Given the Act’s targeted purpose and the need to 

prevent conflict between state (and federal) courts and the IELRB, Illinois courts 

have held that the IELRB has exclusive jurisdiction over all claims involving 

collective bargaining agreements (CBA), including claims for breach of such 

agreements. See Bd. of Educ. v. Warren Twp. High Sch. Fed’n of Teachers, Local 

504, 538 N.E.2d 524, 529 (Ill. 1989); Cessna v. City of Danville, 693 N.E.2d 1264, 

1268-69 (Ill. App. Ct. 1998) (citing Bd. of Educ. v. Compton, 526 N.E.2d 149 (Ill. 

1988)). Thus, the question is not whether the IELRA displaces all common-law 

breach-of-contract claims, but instead whether Plaintiffs’ contract claim involves 

the collective bargaining agreement between the Chicago Teachers Union and the 

Board. If the contract claim does involve interpreting the CBA, then the claim 

would fall under the IELRB’s exclusive jurisdiction and it would not be proper for 

this Court to resolve Plaintiffs’ contract claim on its merits. 

The Board argues that this Court would have to interpret the managementrights clause of the CBA between the Chicago Teachers Union and the Board to 

resolve Plaintiffs’ breach-of-contract claim. See Def.’s Br. at 10-11 (citing R. 91-7, 

Def.’s Exh. C5, CBA § 48-2, at 118). The management-rights clause exempts the 

Board from having to bargain over “matters of inherent managerial policy,” 

including “such areas of discretion of policy as . . . standards of services . . . and 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 21 of 25 PageID #:2696
22 

direction of employees.” CBA § 48-2, at 118. But Plaintiffs’ breach-of-contract claim 

is not based in any way on the CBA generally or the management-rights clause 

specifically.5 Plaintiffs do not dispute that the Board was within its authority under 

the management-rights clause to issue the Specialization Policy. Pls.’ Resp. Br. at 

12. Instead, Plaintiffs claim that the Policy itself created private contractual rights 

that existed independent of the rights Plaintiffs have under the CBA. See id. at 11. 

Therefore, Plaintiffs’ contract claim is outside the CBA, and this Court can consider 

it. See Semmens v. Bd. of Educ., 546 N.E.2d 746, 749 (Ill. App. Ct. 1989) (holding 

that the IELRB did not have exclusive jurisdiction over a claim that made no 

mention of a CBA and instead alleged only that the employer failed to comply with 

the Illinois School Code). 

Alternatively, even if this claim is not preempted, the Board contends that 

Plaintiffs have failed to state a claim that can survive a motion to dismiss. On this 

second point, the Court agrees with the Board. To state a breach-of-contract claim 

in Illinois, Plaintiffs must prove that there was a valid contract, performance by the 

plaintiff, breach by the defendant, and damages. See Lindy Lu LLC v. Ill. Cent. 

R.R., 984 N.E.2d 1171, 1175 (Ill. App. Ct. 2013). Furthermore, under Illinois law, 

employer policy statements may create contractual rights only if the language of the 

policy contained a clear and definite promise. See Duldulao v. Saint Mary of 

 5The Board points out that Plaintiffs have a pending grievance against the Board. 

See Def.’s Reply Br. at 5-6. But the grievance raises issues that are independent of the 

breach-of-contract claim in front of this Court. As the Board recognizes, Plaintiffs’ grievance 

alleges that the Board abused the Reassignment Policy (that is, Board Report 07-1219-PO1, 

Section 504.2), not the Specialization Policy, which is the subject of Plaintiffs’ common-law 

contract claim in this Court. See id. at 5; see also R. 97-1, Def.’s Exh. A, Union Grievance at 

2. 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 22 of 25 PageID #:2697
23 

Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill. 1987); see also Academy Chi. 

Publishers v. Cheever, 578 N.E.2d 981, 983 (Ill. 1991). 

Plaintiffs fail to sufficiently allege the first element of a contract claim, that 

the Policy and Letter created a valid contract. The Board did not make any 

promises to Plaintiffs in either the Policy or the Letter. Plaintiffs, however, believe 

that section I.A.2 made a clear promise to teachers that they had until the end of 

the 2010-2011 school year to obtain their endorsements. Pls.’ Resp. Br. at 8. 

Plaintiffs likewise believe that the Duncan Letter also reiterated the supposed July 

2011 deadline. Id. But that Letter too made no clear and definite promises. Instead, 

it clearly stated that the Policy would “be phased-in beginning in July 2009.” 

Duncan Letter.6

Altogether, the Policy and Letter were just setting out a requirement that 

middle school teachers for certain subjects must obtain subject-area endorsements. 

Section I.A.2 in particular clarified that, through the 2010-2011 school year only, 

“Middle Grade Content Area Specialists” would include teachers who were 

“authorized” by the Board to continue teaching pending the completion of required 

coursework and were “making annual progress toward completing endorsement 

 6Implying a promissory-estoppel-type claim, Plaintiffs also argue in their brief that 

in reliance on this alleged July 2011 deadline, they invested time and money pursuing 

subject-area endorsements. See Pls.’ Resp. Br. at 2, 9. Plaintiffs may have alleged the 

subsidiary facts for such a claim in their complaint, see Third Am. Compl. ¶ 122, but they 

have not given the Board sufficient notice of their intent to raise such a claim because 

Plaintiffs do not present any explicit promissory-estoppel arguments in either their 

complaint or their brief. But even if Plaintiffs had presented a promissory-estoppel theory 

of recovery, those arguments would have also failed because an unambiguous promise is 

also an element of a promissory-estoppel claim. See Newton Tractor Sales, Inc. v. Kubota 

Tractor Corp., 906 N.E.2d 520, 523-24 (Ill. 2009).

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 23 of 25 PageID #:2698
24 

requirements.” Specialization Policy § I.A.2. But nowhere in their complaint do 

Plaintiffs allege that they had obtained this required authorization. More 

importantly, nowhere in the Policy does it state that teachers could continue their 

employment if they received middle-grade endorsements or if they were making 

progress toward obtaining these endorsements. 

Finally, even if the Policy and the Letter had created a valid contract, there 

are subsidiary problems with the factual allegations related to each Plaintiff. For 

example, although Ferkel had a social-studies endorsement and was pursuing an 

endorsement in language arts, she was teaching science at the time she was 

discharged. She does not allege that she was planning to pursue a science 

endorsement. See Third Am. Compl. ¶¶ 20, 22. In fact, she instead told Hoffman 

and the Board that she was planning on retiring in 2011. See id. ¶ 23. Next, GreenKatien had an endorsement in Art, id. ¶ 33, but the Specialization Policy only 

applied to language arts, math, science, and social studies, see Specialization Policy, 

Purpose. It is also unclear whether Saporito, Riley, and Johnson have stated a valid 

contract claim because Plaintiffs have not alleged what subjects these three 

teachers were teaching.7 See Third Am. Compl. ¶¶ 37-46. Finally, Otero, who taught 

math, had a math endorsement, thus underscoring that even having an 

endorsement did not shield teachers from discharge. Id. ¶¶ 48-49. Therefore, even 

setting aside contract-formation problems, Plaintiffs have not alleged facts 

indicating that the Board breached any purported contract. 

 7It would be reasonable to infer, however, that Saporito taught language arts 

because Hoffman told Saporito that his employment was being terminated because he did 

not have a language-arts endorsement. Third Am. Compl. ¶ 57. 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 24 of 25 PageID #:2699
25 

Ultimately, Plaintiffs have failed to state a valid common-law breach-ofcontract claim, and the Court therefore grants the Board’s motion to dismiss this 

claim. 

IV. Conclusion 

For the reasons discussed above, the Board’s motion to dismiss [R. 91] is 

denied in part for Plaintiffs’ due-process claim, but granted for Plaintiffs’ breach-ofcontract claim. Therefore, Plaintiffs’ age-discrimination claim and the specific dueprocess claim shall move forward. 

 ENTERED: 

 s/Edmond E. Chang 

 Honorable Edmond E. Chang 

 United States District Judge 

DATE: May 28, 2014 

Case: 1:11-cv-09322 Document #: 180 Filed: 05/28/14 Page 25 of 25 PageID #:2700