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minimal chance of success on the merits would require them to show that the balance of harms
overwhelmingly favors their position, which they would not be able to do. Id.

In view of this court’s determination in favor of the Board in sections III and IV of this
Report and Recommendation, the court finds it unnecessary to decide, and recommends not deciding,
the likelihood of success on the merits issue in ruling on the subject motion.

I. THE ADEQUATE REMEDY AT LAW ISSUE.

Plaintiffs assert that they have no adequate remedy at law because the Board intends to ——
defend any decision to dismiss Mr. Simonsen and consequently, it will take over three years for his
case to progress through the state court system. Pls.’ Reply at 14; Pls.’ Resp. to Mot. to Dismiss at
9-10 (Ex. 5). In addition, Plaintiffs allege that the Board’s efforts to prevent Mr. Simonsen from
receiving any back pay award is indicative of the fact that he does not have an adequate remedy at
law. Jd. Plaintiffs also allege that the Board informed Mr. Simonsen that it intends to reject any
recommendation for his reinstatement. Pls. Reply at 14. Furthermore, Plaintiffs assert they do no
have an adequate remedy at law because the Board has caused Mr. Simonsen’s dismissal proceeding
to be delayed. Jd.

The Board, on the other hand, argues that Plaintiffs do not understand the adequate remedy
at law requirement, in that its decision to prosecute Mr. Simonsen’s dismissal case and minimize his

back pay does not demonstrate that Plaintiffs have an inadequate remedy at law. Def.’s Resp. at 4.

Rather, the Board asserts that Plaintiffs have appropriate legal relief through either the statutory
teacher dismissal proceeding or before the court, The Board further contends that Plaintiffs’

argument that it has caused Mr. Simonsen’s teacher dismissal proceeding to be delayed is false



»

URSA tect eee e Se ereeee  A

Any objections to this Report and Recommendation must be filed with the Clerk of the Court
within ten (10) days of receipt of this notice. Failure to file objections within the specified time
waives the right to appeal the Magistrate Judge’s Report and Recommendation. See Fed.R.Civ.72(b);
28 U.S.C. § 636(b)(1)(B); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 329 (7" Cir. 1995); The
Provident Bank v. Manor Stell Corp., 882 F.2d 258 (7" Cir. 1989).

Copies Have Been Delivered
In Open Court or Mailed To:

Gerald Simonsen David A. Hemenway

P.O. Box 300754 Assistant General Counsel
Chicago, IL 60630-0754 Board of Education of the City
Pro se Plaintiff of Chicago - Law Department

125 S. Clark St., Ste. 700
Chicago, IL 60603

(773) 553-1700

Attorney for Defendant



a

1. PLAINTIFFS HAVE NOT ESTABLISHED THAT THEY HAVE SUFFERED
IRREPARABLE HARM.

Plaintiffs allege that as a result of Mr. Simonsen’s suspension without pay they have suffered
irreparable harm because they have lost their home, dog, and principal means of support and had
emotional injury. Pls.’ Reply at 14. Moreover, Plaintiffs allege that they have been homeless since
May, 2000. Pls.’ Motion at 2. The Board strongly challenges Plaintiffs’ allegations and agrees that,
in any event, Mr. Simonsen’s own actions, are the real cause of any of his problems alleged. (See,
e.g., Def.’s Resp. at 7.) Moreover, and importantly, the Board argues that this case simply involves
an employment dispute and the law does not allow preliminary injunctive relief in this type of
circumstance. Def.’s Resp. at 6.

Upon review, the court finds that the Seventh Circuit decisions in Shegog v. Bd. of Educ. of
the City of Chicago, 194 F.3d 836 (7" Cir, 1999) and EEOC v. Janesville, 630 F.2d 1254 (7" Cir.
1980) are dispositive here in the Board’s favor.

In Shegog, certain laid off Chicago public school teachers sought a preliminary injunction,
essentially, to continue their salaries and benefits until the court’s decision on the merits, Squarely,
on point herein, the Seventh Circuit expressly ruled that “[A] temporary deprivation of employment
does not inflict irreparable injury, and therefore does not justify a preliminary injunction.” Shegog,
194 F.3d at 839 (citing Sampson v. Murray, 415 U.S. 51, 89-92, 94 S.Ct. 937, 39 L.Ed.2d 166
(1974). Moreover, in Janesville, involving an employee’s preliminary injunction request for
reinstatement, the Seventh Circuit explicitly ruled that “irreparable injury does not include the loss
of income, inability to find other employment, or financial distress.” 630 F.2d at 1259 (citing

Sampson, 415 U.S. at 61).



%

because the evidence at the hearing establishes that Mr. Simonsen caused his own delay.’ Jd.

The Board further argues that Section 34-85 of the Illinois School Code provides, in pertinent
part, that “[i]f a decision of the hearing officer is adjudicated upon review or appeal in favor of the
teacher or principal, then the trial court shall order reinstatement and shall determine the amount for
which the Board is liable including but not limited to loss of income and costs incurred therein.” 105
ILCS 5/34-85. Section 34-85 further provides that a teacher suspended without pay pending
completion of dismissal hearing “shall not suffer any loss of salary by reason of the suspension” if
the teacher ultimately prevails in the dismissal proceeding,’ Jd.

Tn view of this court’s determination in favor of the Board in sections HI and IV of this
Report and Recommendation, the court finds it unnecessary to decide, and recommends not deciding,

the adequacy of the remedy of law issue in ruling on the subject motion.

*Such conduct, the Board argues, included Mr. Simonsen’s use of nine days of testimony
for examination of one witness, defendant Carol Gearing. Jd. This and other conduct caused the
presiding hearing officer to admonish Mr. Simonsen as follows:

We are now approaching day 14 in your dismissal hearing. Your conduct
throughout these proceedings has been less than professional. Specifically, your
continued insistence on relitigating tulings I make, even those dating back to the
first days of hearing, your disrespectful and contemptuous treatment of Mrs.
Gearing and the Board of Education while on the stand, and your never-ending
remarks regarding my neutrality has made this hearing much longer than is
otherwise warranted by the facts. Ihave no doubt that your refusal to abide the
directives of your original counsel has also resulted in additional and unnecessary
delays. (See Ex. 1, letter dated Feb. 9, 2001, from Illinois State Board of
Education Hearing Officer Marvin Hill to Mr. Simonsen.)

*The Board also points out that the court has the equitable power to order Mr. Simonsen’s
reinstatement and back pay, or front pay, in lieu of reinstatement and any compensatory damages,
if Mr. Simonsen prevails on his claims against the Board. See, e.g., Kashani v. Purdue Univ., 813
F.2d 843, 848 (7" Cir. 1987)(recognizing that reinstatement and other prospective equitable relief
is available pursuant to 42 U.S.C. § 1983); see also 42 U.S.C. § 1981a and 42 U.S.C. § 2000¢ et
seq. (compensatory damages available for intentional discrimination).

5


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Sampson, their most formidable obstacle or any of our pre-Hetreed
decisions. These teachers, just like the plaintiffs in Sampson,
Hetreed, and Webb, can receive complete relief in the final judgment;
there is no justification for interim remedies that may impose
uncompensated costs on the School District, 194 F.3d at 839,
Under the sliding scale approach required, and after: considering all relevant factors, the court,
therefore, finds and recommends that the balance of harms clearly weighs against Plaintiffs’ and in

favor of the Board.*

CONCLUSIONS

In view of the foregoing, the court recommends that Plaintiffs’ motion for entry of a

preliminary injunction be denied,

ENTER:

bn) have

IAN H. LEVIN
United States Magistrate Judge

Dated: October 12, 2001

“To the extent the public interest preliminary injunction element is not encompassed in
the above balancing of harms discussion, in view of the court’s determination in Sections III and
IV herein, it is recommended that the public interest element issue not be reached in deciding the
subject motion.

‘Applying the standards set forth in Zy, Inc. v. The Jones Group, Inc., 98 F.Supp.2d 988,
1002-03 (N.D. Ill. 2000), and the cases therein cited, the court finds and recommends that the
instant motion is properly decidable on the papers filed (and the arguments before the
undersigned) without an evidentiary hearing,


Mime Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Marvin E. Aspen Sitting Judge if Other Tan H. Levin
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 3081 DATE 10/12/2001
CASE Simonsen vs. Chicago Board of Education
TITLE
{in the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented]

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due

(3) ea Answer brief to motion due . Reply to answer brief due _

(4) Oo Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for _at

(6) Oo Pretrial conference(held/continued to] [set for/re-set for] on set for at :

(7?) Qo Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4(m) CiGenerai Rule21 CIFRCP4I(a)(1) C1 FRCP41(a)(2).

(10) Ml [Otherdocket entry} Enter report and recommendation recommending that plaintiff's motion
for entry of a preliminary injunction be denied is hereby submitted to Judge Aspen. All matters
relating to the referral of this action having been resolved, the case is returned to the assigned
judge.

a1 [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
6
No notices required. ;
number of notices
o | Notices mailed by judge’s staff. )
Notified counsel by telephone. ! C T i
Docketing to mail notices.
Mail AO 450 form. & TF ceuy na
oY | Copy to judge/magistrate judge. ee
. = MQ
courtroom oO, ocr is Fi ies site
SM deputy’s
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Date/time received in
central Clerk’s Office ailing



(ore nee ete SSSR GREE 88> ee errr fe ft er cement

In view of the foregoing, Plaintiffs have not established irreparable harm and it is, therefore,
recommended that the request for a preliminary injunction be denied.

Iv. THE BALANCING OF HARMS MILITATES AGAINST ISSUING A
PRELIMINARY INJUNCTION.

Even assuming arguendo that Plaintiffs could establish the presence of the three threshold
elements required for a preliminary injunction (likelihood of success, no adequate remedy at law,
irreparable injury), the balancing of the harms element favors denying the subject motion.

Once again, the Seventh Circuit’s decision in Shegog, supra, (involving, as stated, the denial
of a request by certain laid off public school teachers for a preliminary injunction), is directly on
point in the Board’s favor. In Shegog, the court held as follows:

Hetreed y. Allstate Insurance Co., 135 F.3d 1155, 1158 (7" Cir.
1998), observed that, when deciding whether to grant interim telief,
a judge must compare the costs of false negatives (the injury caused
by wrongly denying relief to someone who ultimately prevails on the
merits) against the costs of false positives (the injury caused by
wrongly granting relief to a plaintiff who ultimately loses the case.)
Damages at the end of the case compensate plaintiffs for any false
negatives at the interlocutory stage. False Positives, though, can
create substantial and irreversible costs. Few employees have the
wealth to post an injunction bond that could compensate the employer
for salary received pending final decision; our eight teachers do not
propose to return their salary if they should lose in the end. Because
the potential loss from false positives exceeds the loss from false
negatives in cases of this kind, it would take a very powerful showing
on the merits (implying that the costs of false Positives are negligible)
to justify reinstatement while the case is ongoing. Many of our cases,
of which Hetreed and Webb v. Ball State University, 167 F.3d 1146
(7" Cir. 1999), are only the most recent, hold that interlocutory
reinstatement in employment cases should be rare, if that remedy ever
is appropriate. Roth y. Lutheran General Hospital, 57 F.3d 1446,
1453 (7" Cir. 1995); Shaffer v. Globe Protection, Inc., 721 F.2d 1121
(7 Cir. 1983); Ciechon v. Chicago, 634 F.2d 1055, 1057-58 (7" Cir.
1980); EEOC v. Janesville, 630 F.2d 1254, 1259 (7" Cir. 1980).
Plaintiffs ask use to distinguish Hetreed and Webb but do not mention


the irreparable harm to the moving party if relief is denied. Id. Lastly, the court must also consider

the public interest, that is, the Consequences to non-parties of granting or denying the injunction. Jd.
ANALYSIS

L PLAINTIFFS LIKELIHOOD OF SUCCESS ON THE MERITS ISSUE.

Plaintiffs argue that they are likely to succeed on the merits of their case because inter alia
Mr. Simonsen was dismissed from his teaching position without cause and the Board failed to follow
applicable Ilinois state law as well as its own internal policies when he was suspended without pay.
Pls.’ Reply at 11-13. Plaintiffs assert that the Board failed to provide Mr. Simonsen with a
remediation plan, a consulting teacher, an evaluation, and retroactively applied warning resolutions
to him even though the resolutions were implemented subsequent to his alleged conduct, Plaintiffs
further contend that Mr. Simonsen received satisfactory performance evaluations, that an THinois
circuit court found no misconduct on the part of Mr. Simonsen, that the Board dropped two charges
against Mr. Simonsen because they could not be proven, that all of the charges against Mr. Simonsen
are false, and that the state’s dismissal hearing is unfair. Pls.’ Reply at 11-13; Pls.’ Resp. to Mot. to
Dismiss at 8-9.

The Board, on the other hand, argues that Plaintiffs’ complaint consists of misstatements of
applicable law, claims that contain mere boilerplate legalese as well as conclusory accusations of a
wide-ranging conspiracy among its employees. Def.’s Resp. at 3. The Board further contends that
Plaintiffs’ lawsuit is vexatious and it barely, if at all, meets the “better than negligible” standard of
review relevant to an analysis on the likelihood of success of Plaintiffs’ claims. id.; see Omega
Satellite Prod. Co. v. City of Indianapolis, 694 F.2d 119, 123 (7" Cir. 1982) (“It is enough that “the

plaintiff's chance are better than negligible . . . ”). Moreover, the Board asserts that Plaintiffs’



me ea nism Sc sre erent Pe msm ama al

matter is currently pending before the Hearing Officer.’ The Board has the power to either accept
or reject the Hearing Officer’s recommendation. After the Board makes its decision, Mr. Simonsen
can have the decision reviewed in state court.

Plaintiffs, Mr. Simonsen and members of his family, who are pro se, have filed a ten-count
complaint against the Board alleging numerous violations of Mr. Simonsen’s constitutional and
statutory rights. In the complaint, Plaintiffs allege, inter alia, violations of Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 20006¢ et seg. (race, age, and sex discrimination and retaliation), the
Equal Protection Clause, the Fifth Amendment, the Age Discrimination in Employment Act, 28
US.C. § 621 et seg. as well as retaliation for engaging in First Amendment protected activity.
Plaintiffs also assert a conspiracy amongst those Board members who have been involved in Mr.
Simonsen’s discharge proceedings. The matter before the court arises out of the Board’s decision
seeking Mr. Simonsen’s dismissal as a tenured teacher in the Chicago Public Schools.

LEGAL STANDARD

As a threshold matter, a party seeking a preliminary injunction must establish: (1) some
likelihood of succeeding on the merits; (2) that it has “no adequate remedy at law,” and (3) will
suffer “irreparable harm,” if preliminary relief is denied. Abbott Lab. v. Mead Johnson & Co., 971
F.2d 6, 11 (7" Cir. 1992)(citing Lawson Prods., Inc. y. Avnet, Inc., 782 F.2d 1429, 1433 (7" Cir.
1986); Roland Mach. Co. y. Dresser Indus., Inc., 749 F.2d 380, 386-87)). If the moving party is
unable to establish this threshold showing, the court’s inquiry is over and the injunction will be
denied. Id. Ifthe moving party can satisfy this showing, the court must then consider the irreparable

harm the non-moving party will suffer if preliminary relief is granted, balancing that harm against

‘Also, before your honor is the Board’s fully briefed motion to dismiss.

2


SoC a einen mn

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
GERALD SIMONSEN, individually and ) DOCKETED
on behalf of Paulette Simonsen, Ilse Simonsen, )
Christine Simonsen, and Pamela Simonsen, ) ocr i § 2007
) Case No. 01 C 3081
Plaintiffs, )
)
vy. ) Judge Marvin E. Aspen
) Magistrate Judge Ian H. Levin
BOARD OF EDUCATION OF THE CITY OF )
CHICAGO, et al. )
)
Defendants. )

To: The Honorable Marvin E. Aspen, Chief Judge
United States District Court Judge

REPORT AND RECOMMENDATION
Plaintiffs move for a preliminary injunction ordering the Board of Education of the City of
Chicago (“Board”) to reinstate Gerald Simonsen to his former teaching position, with back pay, or
in the alternative, to convert his teaching suspension without pay to a suspension with pay. For the
reasons set forth below, the court recommends that the motion for entry of a preliminary injunction
be denied.

BACKGROUND FACTS

On December 6, 1999, Mr. Simonsen was suspended from his tenured teaching position
without pay by former Chicago Public Schools Chief. Executive Officer Paul G. Vallas. Mr. Vallas’s
decision to dismiss Mr. Simonsen is before the Board. The Board will make its final determination

regarding Mr. Simonsen’s suspension after his statutory dismissal hearing. Mr. Simonsen’s dismissal