IN THE UNITED STATES DISTRICT COURT

FOR NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BARBARA FERKEL and ADRIENNE

GREEN-KATIEN, individually and on

behalf of all similarly situated persons,

Plaintiffs,

v.

BOARD OF EDUCATION OF THE CITY

OF CHICAGO, 

Defendant.

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Case No. 11 C 9322

Judge Edmond Chang

Magistrate Judge Daniel Martin

PLAINTIFFS’ MOTION TO CLARIFY ORDER

OF MAY 28, 2014 REGARDING CAUSATION STANDARD

NOW COME Plaintiffs, by and through their undersigned counsel, pursuant to Fed. R.

Civ. P. Rule 54(b), and hereby request clarification of the Court’s Order of May 28, 2014

regarding the causation standard applicable to Plaintiffs’ due process claims. Dkt. 180. For the

reasons that follow, the Motion should be granted. 

1. In its Order of May 28, 2014, the Court inter alia denied Defendant’s Motion to

Dismiss Count II, and held that Plaintiffs have stated a due process claim based on Section 34-84

of the Illinois School Code. 105 ILCS 5/34-84. The Order includes language that suggests

Plaintiffs will have the burden of proving that their terminations were “solely” and/or

“exclusively” for performance-based reasons as opposed to economic reasons and that

“budgetary restrictions” “in no way” drove the terminations. Dkt. 180, at 16, 19. The Parties’

briefing on the motion to dismiss did not address the issue of the proper causation standard

applicable to the due process claims. Plaintiffs are concerned that the language used in the Order

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will become the law of the case going forward with respect to Plaintiffs’ burden though the

Parties have not had opportunity to brief the issue. Therefore, to the extent the language in the 

Court’s Order requires Plaintiffs to prove they were terminated “solely” or “exclusively” for

performance based reasons and / or that “economics” or budget considerations were not a factor,

Plaintiffs respectfully request that the Order be modified to clarify that “sole cause” is not the

proper standard under Supreme Court and Seventh Circuit law. Plaintiffs request this

clarification as a means to streamline the issues going forward and to preserve Plaintiffs’

objection to any “sole cause” causation requirement that appears in any portion of the Order. 

LEGAL STANDARD

2. Rule 54(b) of the Federal Rules of Civil Procedure provides, “[A]ny order or

other decision, however designated, that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties does not end the action as to any of the claims or parties

and may be revised at any time before the entry of a judgment adjudicating all the claims and all

the parties' rights and liabilities.” Fed.R.Civ.P. Rule 54(b); Galvan v. Norberg, 678 F.3d 581,

587 n.3 (7th Cir. 2012) ("Rule 54(b) governs non-final orders and permits revision at any time

prior to the entry of judgment"). Motions to revise an interlocutory ruling under Fed.R.Civ.P.

Rule 54(b) are governed by the “law of the case” doctrine, and this doctrine is highly flexible

when a court is asked to reconsider its own ruling. Starks v. City of Waukegan, 946 F. Supp. 2d

780, 801 (N.D.Ill. Aug. 16, 2013) (reconsidering order dismissing count from complaint under

Fed.R.Civ.P. Rule 54(b)), citing, Pickett v. Prince, 207 F.3d 402, 407 (7th Cir. 2000). 

3. Plaintiffs do not use this Motion to rehash previously rejected arguments, or to

have a “second bite at the apple,” which is inappropriate on reconsideration. Ahmed v. Ashcroft,

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388 F.3d 247, 249 (7th Cir. 2004). To the contrary, the sole purpose of this Motion is to clarify

the Court’s comments on causation and to preserve Plaintiffs’ objection to the language implying

a “sole cause” causation requirement in portions of the Order. Significantly, this issue was not

briefed during the pendency of the Motion to Dismiss. 

ARGUMENT

4. In denying Defendant’s Motion to Dismiss Count II, the Court appears to have

held that Plaintiffs’ due process claims hinge upon whether their discharges were motivated for 

performance-based reasons:

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.

Dkt. 180, at 16 (emphasis added).

5. Later in the opinion, the Court also stated Plaintiffs must prove that they were

“exclusively” terminated for performance-based reasons, and the budgetary crisis played no role

at all:

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 lightmost-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.

Dkt. 180, at 19 (emphasis added).

6. Respectfully, based on these passages, Plaintiffs submit that the Court’s Order has

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articulated several discrete burdens of proof which are potentially applicable to this case: (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.”). Dkt. 180,

quoted above. Because this Order will become the “law of the case” going forward, Plaintiffs

respectfully request the Court clarify that sole cause is not a burden of proof standard that applies

to this case. 

7. Courts have grappled with the proper causation standard in section 1983 actions

and employment cases. As the Seventh Circuit has noted, the causation element has “seemed to

be in a state of transition in federal courts,” resulting in some tension between the cases and

leaving district courts “puzzled” over what standard to apply. Kidwell v. Eisenhauer, 679F.3d

957, 965 (7th Cir. 2012). As follows, recent controlling authority from the U.S. Supreme Court

and the Seventh Circuit have clarified the proper causation standard. Burrage v. United States,

__ U.S. __, 134 S. Ct. 881, 887-888; 187 L. Ed. 2d 715, 723-724; 2014 U.S. LEXIS 797 (2014);

Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013).

8. Neither section 1983 nor Section 34-84 of the Illinois School Code set forth a

“sole cause” standard, and Plaintiffs are unaware of case law that imposes a “sole cause”

standard. Indeed, recently the Seventh Circuit has held that it was error to give a jury instruction

that required the jury to find “sole cause” in a section 1983 case. Mays v. Springborn, 719 F.3d

631, 634-635 (7th Cir. 2013) (jury instruction which stated, “in order to prevail on his claim of

retaliation, the plaintiff must prove that the grievances filed by the plaintiff were the sole cause

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of the particular strip search” was error).

9. Section 34-84 of the Illinois School Code does not contain any specific language

on causation, i.e., it does not say what Plaintiffs must prove to show their terminations were the

result of performance-based, and non-economic, considerations. 105 ILCS 5/34-84. The statute

does not require Plaintiffs to show “sole cause” causation with respect to this issue, nor is that

requirement set forth in the text of Section 1983. In fact, if a tenured teacher is terminated with

performance being a motivating factor, that issue proceeds to a due process hearing whether or

not the School District relies on other reasons or factors. 

10. Therefore, Plaintiffs respectfully submit that their burden is not to show “sole

cause.” Courts have consistently held that unless a statute provides otherwise, demonstrating

“but-for causation” is part of the plaintiff's burden in suits under federal law. Burrage v. United

States, __ U.S. __, 134 S. Ct. 881, 887-888; 187 L. Ed. 2d 715, 723-724; 2014 U.S. LEXIS 797

(2014) (Where there is no textual or contextual indication to the contrary, courts regularly read

phrases like “results from” to require but-for causality); Gross v. FBL Financial Services, Inc.,

557 U.S. 167, 177, 129 S. Ct. 2343, 2350, 174 L. Ed. 2d 119, 129 (2009); Serwatka v. Rockwell

Automation Services, Inc., 591 F.3d 957, 961-62 (7th Cir. 2010) (stating, unless a statute provides

otherwise, demonstrating “but for” causation is part of the plaintiff’s burden in all suits under

federal law); Serafinn v. Local 722, International Brotherhood of Teamsters, 597 F.3d 908, 915

(7th Cir. 2010). 

11. Another issue not briefed by the Parties is whether this case is controlled by the

Supreme Court’s Mt. Healthy decision, under which the burden of proof relating to causation is

divided between the parties. Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct.

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568, 50 L. Ed. 2d 471 (1977). The Seventh Circuit has held that this standard was not

overturned by Gross, and continues to apply in cases under Section 1983. Greene v. Doruff,

660 F.3d 975, 977-979 (7th Cir. 2011).

12. In any case, the law is clear that Plaintiffs are not required to establish “sole

cause” causation, regardless of whether the Mt. Healthy shifting-burden standard applies. Gross,

577 U.S. at 176 (stating “because of age” means that age had “a determinative influence on the

outcome”), citing, Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 123 L. Ed.

2d 338 (1993); Burrage, 134 S.Ct. at 888 (analogizing “but for” cause to the “straw that broke

the camel’s back”); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273; 96 S. Ct. 2574; 49

L. Ed. 2d 493 FN 10 (1976) (“The use of the term "pretext" in this context does not mean, of

course, that the Title VII plaintiff must show that he would have in any event been rejected or

discharged solely on the basis of his race, without regard to the alleged deficiencies; as the

closing sentence to the quoted passage makes clear, no more is required to be shown than that

race was a "but for" cause.”); Jones v. Okla. City Pub. Sch, 617 F.3d 1273, 1277-78 (10th Cir.

2010) (establishing “but for” causation does "not require[] [plaintiffs] to show that age was the

sole motivating factor in the employment decision. Instead, an employer may be held liable

under the ADEA if other factors contributed to its taking an adverse action, as long as "age was

the factor that made a difference.") (citations and quoted source omitted); Mays v. Springborn,

719 F.3d 631, 634 (7th Cir. 2013) (stating in First Amendment action that jury instruction which

stated, “in order to prevail on his claim of retaliation, the plaintiff must prove the grievances filed

by the plaintiff were the sole cause of the particular strip search” was error); Greene v. Doruff,

660 F.3d 975, 977 (7th Cir. 2011) (defining “but for” cause as a “necessary condition”, as in “‘but

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for X, Y would not have occurred’: X is a necessary condition of Y”)).

13. Plaintiffs respectfully submit that the determination of whether Mt. Healthy

applies may be made at a later point in the case, i.e., at the jury instruction conference. At this

time, Plaintiffs simply request that the Court clarify that the “sole cause” burden does not

control, and that burden should not become the law of the case.

14. Plaintiffs can and will prove their discharges were not due to economic layoffs

caused by the budget crisis. Plaintiffs intend to present to the jury that the real reason for

Principal Hoffman’s decisions was his desire to terminate Plaintiffs and replace them with

younger, non-tenured teachers whom he wrongly perceived to be more qualified and that their

alleged “performance based” reasons were a proxy for age and avoidance of due process To this

end, Hoffman manufactured a set of bogus endorsement requirements, which were performancebased. He applied these requirements rigidly to the Plaintiffs, but leniently (if at all) to the

younger, non-tenured teachers. If tenure is to have any meaning at all, then Plaintiffs should have

been given an opportunity to rebut Hoffman’s bogus claims before they were summarily

terminated. If these were true economic layoffs, Plaintiffs would not have been immediately

replaced by younger less experienced teachers.

15. It is true that Plaintiffs’ terminations occurred on the heels of mass layoffs at CPS

which began in June 2010, and it was widely reported that these layoffs were caused by a budget

shortfall. Although this crisis was not the cause of Plaintiffs’ terminations, it provided cover for

Hoffman to carry out his plan and was the context in which he made his decisions. 

16. Plaintiffs should be permitted to explain that the purported budgetary crisis was

the backdrop to their terminations, that it may have been used as a pretext by Hoffman, without

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the risk of a fact finder concluding that the terminations were therefore not “exclusively”

performance-based. As set forth above, the relevant statutes and case law do not require

plaintiffs to prove that the economic conditions played absolutely no role or were not factors,

even for instance as background, in their terminations, and such a requirement should not be

imposed in this case.

17. Therefore, Plaintiffs submit that imposing a “sole” or “exclusive” cause

requirement, especially where Plaintiffs have not been afforded the opportunity to brief the issue,

is contrary to law, and the Order should therefore be clarified and/or modified to reflect sole

causation is not the law of the case 

 CONCLUSION

WHEREFORE, for the reasons set forth above, Plaintiffs respectfully request the Court

clarify its Order, and modify the Order to remove any requirement that Plaintiffs show that they

were terminated “solely” or “exclusively” for performance-based reasons or that economic

factors played no role in the decisions, in order to prove their due process claims.

Respectfully submitted,

 /s/ Robin Potter 

One of Plaintiffs’ Attorneys

Robin Potter, Esq.

Matthew Farmer, Esq.

M. Nieves Bolaños, Esq.

Robin Potter & Assoc., P.C.

111 East Wacker Drive, Suite 2600

Chicago, Illinois 60601

312-861-1800

robin@potterlaw.org

matt@potterlaw.org

nieves@potterlaw.org

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and correct copy of the above and foregoing

PLAINTIFFS’ MOTION TO CLARIFY ORDER OF MAY 28, 2014 REGARDING

CAUSATION STANDARD was served upon all parties listed below by e-filing this 25th day of

June 2014 using the Court’s CM/ECF system.

Lisa A. Dreishmire, Esq.

Patricia Kendall, Esq.

Board of Education of the City of Chicago

125 South Clark Street Suite 700

Chicago, IL 60603

 By: /s/ Robin Potter

 Robin Potter 

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