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. ) 

ORDER

On May 28, 2014, the Court dismissed Plaintiffs’ Illinois breach-of-contract 

claim and all but one of their due-process claims against the Chicago Board of 

Education. R. 180, Opinion at 19-20, 25.1 In the reconsideration motion [R. 190] now 

in front of the Court, Plaintiffs ask for clarification on their narrowed due-process 

claim and propose a specific legal standard to govern the claim. Although the Court 

does provide clarification, the Court rejects Plaintiffs’ proposal and denies the 

motion. 

I. Legal Standard 

Federal Rule of Civil Procedure 54(b) states that a court may reconsider an 

interlocutory ruling “at any time before the entry of judgment adjudicating all the 

 1The Court’s subject matter jurisdiction over this case is now based solely on 28 

U.S.C. § 1331. Plaintiffs also have a pending age-discrimination claim against the Board 

under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. In this 

Order, the Court assumes that the reader is familiar with the more complete version of the 

facts provided in the May 2014 Opinion. See Opinion at 2-4. 
2 

claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Motions for 

reconsideration serve the narrow purpose of presenting newly discovered evidence 

or correcting manifest errors of law or fact. Rothwell Cotton Co. v. Rosenthal & Co., 

827 F.2d 246, 251 (7th Cir. 1987). A motion to reconsider is proper when “the Court 

has patently misunderstood a party, or has made a decision outside the adversarial 

issues presented to the Court by the parties, or has made an error not of reasoning 

but of apprehension.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 

1185, 1191 (7th Cir. 1990) (citation omitted). But a motion for reconsideration “does 

not provide a vehicle for a party to . . . advance arguments that could and should 

have been presented to the district court prior to the judgment.” Bordelon v. Chi. 

Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000) (internal quotation marks 

and citation omitted). 

II. Analysis

At bottom, the issue Plaintiffs raise in their motion is based on a mistaken 

premise. Plaintiffs request clarification about “the causation standard applicable to 

Plaintiffs’ due process claims.” R. 190, Pls.’ Br. at 1. The answer is quite simply that 

there is no causation standard for their due-process claim. 

The prior Opinion explained that, under Illinois law, tenured teachers do not 

have a property interest in their continued employment that shields them from an 

economic layoff. See Opinion at 15 (citing Land v. Bd. of Educ., 781 N.E.2d 249, 256 

(Ill. 2002)). The Court therefore held that Plaintiffs’ narrowed due-process claim “is 

based solely on Plaintiffs’ allegations that they were terminated for cause, not for 
3 

economic reasons, and that they have a protected property interest only under 

section 34-84 of the Illinois School Code.” Id. at 19. The Court also stated that, going 

forward, “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.” Id. (emphasis added). This means that “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.” Id. (emphasis added). 

In addition to the “exclusively performance-based reasons” and “in no way 

driven by” language above, Plaintiffs’ confusion arises from one other passage in the 

Opinion that uses more understated causation-type language. See Pls.’ Br. at 3. The 

Opinion also explained that it is “very important to determine whether a tenured 

teacher’s termination was motivated by a performance-based reason or an economic 

one,” and that “[i]f the reasons driving layoff are economic, the Board can consider 

employee performance and qualifications when deciding whom to lay off.” Opinion 

at 16 (emphasis added). To summarize, Plaintiffs’ confusion understandably arises 

from three different categories of causation language that they identify in the 

Opinion: 

(1) motivating factor (“was motivated by a performance-based reason or an 

economic one”); (2) “but for” causation (“If the reasons driving a layoff are 

economic”); and/or (3) “sole cause” causation (“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.”). 
4 

See Pls.’ Br. at 4. Plaintiffs’ ultimate request is that the Court clarify that “sole 

cause” is not the burden of proof that they carry going forward. See id. at 2, 4, 7. But 

it turns out that “causation” is not really at issue in the due-process claim. 

There are two central questions when analyzing a procedural due-process 

claim: (1) whether the plaintiff was deprived of a protected property interest, and if 

so, (2) what process is due. Generally, state law answers the first question, while 

federal law answers the second. See Goros v. Cnty. of Cook, 489 F.3d 857, 859 (7th 

Cir. 2007). The Opinion concerned only the first question: whether Plaintiffs’ 

complaint alleged facts supporting that they had a protected property interest. This 

question does not contain a causation requirement. Indeed none of the due-process 

cases2 that either party relies on in this current round of briefing applies a 

particular causation standard to this threshold due-process question. Instead, 

looking to state law, the question is whether Plaintiffs have a property interest, yes 

or no? The Court used causation-type language when it articulated this requirement 

in the Opinion, but it did not intend to impose any particular causation standard on 

Plaintiffs going forward. Instead, all the Court meant was that Plaintiffs’ 

terminations were either part of the economic layoff or they were not. And in order 

 2Plaintiffs suggest that federal courts have been “puzzled” over the proper causation 

standard to apply in § 1983 and employment cases generally. Pls.’ Br. at 4. But the cases 

they cite that deal with this “puzzle” are not procedural due-process cases and therefore 

have little relevance to the question facing the parties in this lawsuit. See Burrage v. 

United States, 134 S. Ct. 881, 887-88 (2014) (analyzing the causation standard applicable to 

the penalty-enhancement provision in the Controlled Substances Act); Mays v. Springborn, 

719 F.3d 631, 634 (7th Cir. 2013) (analyzing causation in a First Amendment retaliation 

case); Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012) (same). In fact, Plaintiffs’ 

opening brief cites no cases dealing with procedural due-process issues. See R. 205, Def.’s 

Resp. Br. at 5. 
5 

to establish that they were entitled to due process, Plaintiffs have the burden 

showing that they were terminated for cause and that they did not lose their jobs in 

the economic layoff. 

The Board asserts that the correct way to analyze this question is under a 

line of public-employment cases recognizing a “reorganization exception” to dueprocess claims. See Def.’s Resp. Br. at 3-4. In this line of cases, the Seventh Circuit 

has recognized that “[w]hen a government eliminates an employee’s position in 

connection with a ‘legitimate governmental reorganization,’ . . . the employee is not 

entitled to notice or a hearing.” Schulz v. Green Cnty., State of Wis., 645 F.3d 949, 

952 (7th Cir. 2011) (quoting Misek v. City of Chicago, 783 F.2d 98, 100-01 (7th Cir. 

1986)). Schulz explained that “an employee only has a protected property interest in 

a given position—not in her employment generally or a particular wage—and once 

the government abolishes the position, the employee has nothing in which she can 

claim an entitlement.” Id. (emphasis in original). In other words, a reorganization 

“simply eliminates the employee’s property interest.” Id. 

Although the Illinois Supreme Court did not reference the “reorganization 

exception” directly, its recent opinion in Chicago Teachers Union, Local No. 1 v. 

Board of Education of the City of Chicago, 963 N.E.2d 918 (Ill. 2012), spoke in very 

similar terms. It explained that section 34-84 of the Illinois School Code does not 

provide a substantive right to tenured teachers to be rehired after an economic 

layoff. Id. at 925; see also Land, 781 N.E.2d at 256 (“[I]t has long been established 

that among the unenumerated powers of the Board was the authority to lay off 
6 

employees in good faith for lack of work or purposes of economy.” (internal 

quotation marks and citation omitted)). And although the Illinois Supreme Court 

dealt only with post-termination process in the Chicago Teachers Union case, the 

Seventh Circuit recently confirmed that the same rationale also applies to pretermination process. See Price v. Bd. of Educ. of City of Chi., 755 F.3d 605, 609 (7th 

Cir. 2014). Therefore, just as a “legitimate governmental reorganization” eliminates 

public employees’ property interest in their positions, so too do tenured teachers 

lose their property interest in continued employment when they lose their jobs in an 

economic layoff. 

As the Opinion noted, however, discovery is needed to test whether Plaintiffs 

lost their jobs in an economic layoff. Plaintiffs can still establish that they have a 

protected property interest by either “prov[ing] 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.” Opinion at 19. The reorganization cases similarly 

recognize that a plaintiff can “challeng[e] the legitimacy of the reorganization.” 

Schulz, 645 F.3d at 953. To do this, the plaintiff must demonstrate that “the 

reorganization was pretextual, designed to harm a specific employee rather than in 

spite of her or with indifference to its effects on her.” Id. Another option, of course, 

is to show that the reorganization never actually took place. Misek, 783 F.2d at 101. 

Here, then, Plaintiffs must either show that there was no budgetary crisis or 

reorganization or, alternatively, that Principal Hoffman used the budgetary crisis 
7 

as a pretext for terminating their employment for purported cause.3 In short, 

Plaintiffs have to show that their layoffs were not part of the Board’s budgetary 

crisis. 

In their reply brief, Plaintiffs argue that the existence of a reorganization or a 

reduction in force does not insulate the Board from having to provide due process to 

its employees. See R. 209, Pls.’ Reply Br. at 3-4. But none of the cases that Plaintiffs 

cite in support of this argument have any bearing on the issue facing the Court in 

this case—that is, whether Plaintiffs have a protected property interest. In Lalvani 

v. Cook County, the question was not whether a property interest existed; that first 

element of the due-process test was already satisfied. See 396 F.3d 911, 913-14 (7th 

Cir. 2005). Instead, the question was, given that the plaintiff’s employer had 

deprived him of that right, did he receive the process that was due to him—the 

second element of the due-process test. Id. at 915-16; see also Flory v. Mays, No. 06 

C 3523, 2007 WL 4232781, at *7-8 (N.D. Ill. Nov. 26, 2007) (holding that there were 

sufficient facts to support that the plaintiff had a property interest in her 

employment and then going on to analyze the “type of process that is due”). In 

contrast, the clarification that Plaintiffs seek in their reconsideration motion is not 

 3The Board suggests in a footnote that, to establish liability against the Board, 

Plaintiffs must also satisfy the requirements set out in Monell v. Department of Social 

Services of the City of New York, 436 U.S. 658 (1978). Def.’s Resp. Br. at 3 n.1. The Court 

will not address that issue here. The Board’s motion to dismiss did not discuss the 

applicability of Monell, the Opinion also did not discuss it, and Plaintiffs did not raise the 

issue in their motion for reconsideration. Although it was not unreasonable for the Board to 

flag the issue for Plaintiffs, it is an issue for another day. For now, the Court assumes for 

purposes of this reconsideration motion only that Principal Hoffman had final policymaking 

authority for Monell purposes. See Ball v. City of Indianapolis, No. 13-1901, 2014 WL 

3673466, at *5 (7th Cir. July 25, 2014). 
8 

about how they can demonstrate what process is due, but instead how they can 

show that they are entitled to any process at all in the first place. 

Finally, in addition to asking for clarification on the correct causation 

standard, Plaintiffs also ask whether a burden-shifting analysis under Mt. Healthy

City School District Board of Education v. Doyle, 429 U.S. 274 (1977), will apply to 

their due-process claim. See Pls.’ Br. at 5-6. This question is similarly not 

applicable. The substantive standard that applies here—do Plaintiffs have a 

protected property interest?—requires the Court to push aside this First 

Amendment standard for retaliation cases. In the First Amendment context, a 

plaintiff’s layoff could be motivated in part because of their protected conduct, in 

violation of the First Amendment. But here, there is no room to argue that a layoff 

was “in part” economic. Either the Board was facing a budgetary crisis that resulted 

in economic layoffs, or there was not. And if a bona fide budget crisis did prompt the 

Board to lay off teachers, Plaintiffs could still prevail in demonstrating that they 

had a protected property interest if they can demonstrate that their own 

terminations were either not part of that layoff or that the economic layoff served as 

a pretext for their own layoffs. In short, because of the substantive standard that 

applies to Plaintiffs’ due-process claim, a Mt. Healthy-style burden-shifting analysis 

is not applicable. 

In short, Plaintiffs either lost their jobs in an economic layoff or they did not. 

In order to show that they were entitled to due process, it is their burden to show 

that they did not. 
9 

III. Conclusion 

For the reasons stated above, Plaintiffs’ motion for reconsideration [R. 190] is 

denied. The status hearing set for August 19, 2014, remains in place. As suggested 

in the magistrate judge’s most recent minute entry [R. 208], the parties should be 

prepared to discuss whether they would like to expand the referral to the 

magistrate judge to include settlement proceedings. Of course, the Court strongly 

encourages the parties to consider the benefits of settling this litigation. 

 ENTERED: 

 s/Edmond E. Chang 

 Honorable Edmond E. Chang 

 United States District Judge 

DATE: August 18, 2014