Recently Added Decisions

Open Meetings Act (OMA) no final action during closed session
Public Access Opinion 13-3

A public body improperly voted during closed session to terminate a tenured university faculty member. Taking final action during closed session is prohibited by 5 ILCS 120/2(e).

Miranda warnings
N.C. v. Kentucky, No. 2011-SC-000271 (Ky. Apr. 25, 2013).

The following case is from Kentucky. It is not binding in Illinois. However, its facts and the ruling may be of interest to school officials.

In a 4-3 split, the Kentucky supreme court ruled that a high school student was “in custody” when he was detained in the school office for questioning by an assistant principal. The assistant principal’s questioning occurred in the presence of a school resource officer (SRO). The questioning was about giving prescription drugs to a classmate. The court ruled that the student was entitled to “Miranda warnings” before the school official began the questioning. The court held “that any incriminating statements elicited under the circumstances of this case, with a school official working with the police on a case involving a criminal offense, the police failing to give Miranda warnings, and the juvenile being in custody, are subject to suppression under the Unified Juvenile Code (a Kentucky state law) and the Fifth Amendment.” As a result of this conclusion, the Kentucky supreme court ordered that any statements made by the students must be suppressed (not used) during any hearings on the case.

The opinion, set to be published soon, is available online at: http://opinions.kycourts.net/sc/2011-SC-000271-DG.pdf

Posted date: 5/6/2013

Open Meetings Act (OMA) exception
Public Access Opinion 13-2

Public bodies must set forth a description of the general subject matter that will be the subject of final action at the meeting. Here, standing committees of a public body had a practice of meeting during the morning of the day that their public body held its regular meetings. Then, the standing committees would refer their actions from the morning for the public body to take final action upon in the afternoon’s regular meeting. None of the standing committees’ actions were posted for final action on the public body’s agenda for the afternoon regular meeting. However, the standing committees’ actions were posted on the standing committee’s agendas for the morning. The PAC found this process violates 105 ILCS 120/2.02(c).

To stop the violations, the PAC suggested that the public body list the same description of actions on its agenda that the standing committees would consider during the morning meetings.

Sexual Harassment
Westendorf v. West Coast Contractors of Nevada, Inc., 2013 WL 1285975, -- F.3d ---, (9th Cir., 4/1/13).

The Ninth Circuit upheld the dismissal of a sexual harassment complaint, despite offensive comments made by the Plaintiff's supervisor and coworkers, including a request that she wear a French maid's costume at work. The Plaintiff complained and her employment was terminated.

Subsequently, she filed this lawsuit. The Ninth Circuit agreed with the trial court’s dismissal of the sexual harassment claim, but allowed the Plaintiff’s retaliation claim to be remanded (sent back to) the trial court.

This case highlights a very important distinction between “harassment” and “retaliation” claims. While the Plaintiff did not have enough evidence to support a harassment claim, she was able to show a retaliation claim. That is because she was able to show that she participated in the protected activity of reporting a good faith complaint about harassment, after which she was terminated. In a retaliation lawsuit, a plaintiff does not need to show that the reported-conduct is actionable sexual harassment - only that causal connection between a good faith complaint of harassment and the termination exists.

This case is a reminder for employers that retaliation claims can often survive even when the underlying harassment cannot be proven or does not rise to an actionable level.

Posted date: 4/25/2013

Retaliation claim
Fuhr v. Hazel Park School District, No. 11-2288, (6th Cir. 2013).

The following case is from Michigan. It is not binding in Illinois. However, its facts and the ruling may be of interest to school officials.

Geraldine Fuhr won a lawsuit, originating in 1999, against the Hazel Park School District to instate her as coach of the varsity boys’ basketball coach at Hazel Park High School. After Fuhr’s successful suit against the Hazel Park School District, she served as head coach of both the varsity girls’ basketball team and the varsity boys’ basketball team from 2001-2006. In 2006, she was removed from her position as the varsity girls’ basketball coach at Hazel Park High School.

She filed this complaint alleging retaliation. The school district filed a motion for summary judgment. This motion is a procedural device used in court to decide an issue (or the whole case), without the need for a trial before a judge or jury. She alleged that she experienced retaliatory behavior following her 1999 suit. For example, Fuhr stated that several of her best athletes were disciplined by being suspended from the team. She also stated that she was not allowed to use an ice machine because it was placed in area which was only accessible by men. In addition, she argued that that the athletic director ordered her team’s uniforms late causing them to arrive following the beginning of the basketball season. Fuhr provided several other examples of retaliatory behavior, which allegedly culminated in her removal in 2006 as the varsity girls’ basketball coach.

The court stated that Fuhr did not establish a causal connection between her 1999 suit which resulted in her instatement as the boys’ varsity basketball coach and the alleged retaliatory actions taken before she was removed from her position as the girls’ varsity basketball coach. This is because Fuhr was instated as the boys coach in 2004 and the first reported retaliated act alleged by Fuhr did not take place until 2006. This large gap of time is inadequate to establish a causal connection.

In addition, the court pointed out that Fuhr’s removal as the girls’ coach was in accordance with Title IX, equality in boys’ and girls’ athletics. The court explained that it would have not have been feasible for one coach to lead both teams in the same season. The court also explained that the retaliatory behavior that Fuhr allegedly experienced was not behavior that was not exclusive to Fuhr. Other employees experienced similar situations. The court affirmed the judgment of the district court, which granted the school district’s motion for summary judgment.

Link to the decision: http://www.hinshawlaw.com/files/upload/Fuhrv.HazelPark.pdf

Posted date: 4/19/2013

Melissa-Ann E. Evanchik, IASB Law Clerk

Open meeting procedures
Paridon, et. al v. Trumbull County Children’s Services Board, 2013 WL 967577 (Oh. Ct. App., Dist. 11, Mar. 11, 2013).

The following case is from Ohio. It is not binding in Illinois. However, its facts and the ruling may be of interest to school officials. See the General Area “Public Access Counselor Opinions” for more information on the Illinois Open Meetings Act.

Patricia Paridon, among others, filed a complaint on October 20, 2011 for an injunction on the Trumbull County Children’s Services Board’s (“the board”) sign-in policy for public meetings. An injunction is a court order requiring a party to do something or to stop a party from doing something. Paridon asked the court to stop the board from enforcing its sign-in policy. The complaint alleged that on October 18, 2011, Paridon was not allowed to enter a public meeting of the board because she refused to sign a sign-in sheet in accordance with the board’s sign-in policy. Furthermore, the complaint alleged that this policy violated Ohio’s Sunshine Law. The trial court denied Paridon’s request for an injunction and she appealed the trial court’s judgment to the Court of Appeals.

The purpose of the board’s policy is to protect children that are within the board’s care and live at the board’s facility. The policy is also intended to protect the confidential records located within the facility. This facility is also where the public meetings are held. After a member of the public signs their name to the sign-in sheet, they are permitted to enter the meeting. The board does not verify the names of the individuals who have signed-in nor do they perform a background check.

Paridon made several arguments against the board’s policy. Among these arguments, Paridon stated that the Ohio’s Sunshine Law provided individuals with an absolute right to be present at public meetings. The court disagreed with this argument and stated that Ohio’s Sunshine Law does not preclude a public agency from instituting a policy requiring individuals to sign-in prior to admission to a public meeting. Paridon also argued that the board has not consistently required members of the public to sign-in prior to admission to a public meeting. However, the court stated that there was no evidence prior to this instance in which the board did not maintain a sign-in policy. Paridon then argued that Ohio’s Sunshine Law does not contain a sign-in requirement for public meeting and therefore, the board cannot implement one. The court disagreed with this argument as well, stating that the board may place access restrictions on their public meetings so long as these restrictions are content-neutral and narrowly tailored to serve a significant interest.

The court disagreed with all of Paridon’s remaining arguments. The court stated that the board’s sign-policy was content-neutral and narrowly tailored to assist in the board’s goal of protecting the children and the board’s confidential records. The court also stated that the sign-in policy was not intrusive into the lives of those wishing to attend the public meeting because it merely required a prospective attendee to sign his or her name to a sheet of paper. Furthermore, the policy did not prohibit individuals from attending the meeting. Rather, they had a choice to either sign their name or not. The Court of Appeals affirmed the trial court’s ruling denying Paridon’s request for an injunction.

Posted date: 4/19/2013

Melissa-Ann E. Evanchik, IASB Law Clerk

First Amendment Retaliation Claims
Montone v. City of Jersey City, 709 F.3d 181 (3rd Cir., Mar. 8, 2013).

The following case is from New Jersey. It is not binding in Illinois. However, its facts and ruling may be of interest to school officials.

Police sergeants (Sergeants) claimed that they were denied promotions because of their support of another mayoral candidate. The suit named the police department, the city, the police chief and the mayor (Defendants). It stated they had violated the Sergeants’ First Amendment rights and New Jersey state law. The district court found in favor of the Defendants. The Sergeants then appealed to the Third Circuit Court of Appeals.

The Third Circuit reversed the district court and it found in favor of the Sergeants. The Third Circuit found a First Amendment violation because the speech by the Sergeants was considered a matter of public concern, which is a protected activity. One of the female Sergeants also complained of gender inequality and reported instances of sexual harassment in the pleadings. The Third Circuit held that both of these events qualified as matters of public concern. The case was remanded (sent back to the district court) for the Sergeants to prove that the speech was a substantial factor in the denials of promotion for the Sergeants.

Posted date: 4/19/2013

Rachel Prezek, IASB Law Clerk

Willful and wanton negligence
Leja v. Community Unit School District 300, 2-12-0156 (Ill. App. Ct. 2012).

Plaintiff, a student of a high school owned and operated by Community Unit School District 300, was allegedly injured when a volleyball net crank she was turning either broke loose or snapped back and struck her in the face. The Plaintiff alleged that the School District was negligent and engaged in willful and wanton conduct.

The Court dismissed the negligence claim based on section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2008)) after determining that defendant was immune from liability for negligence under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-106 (West 2008)). The court then dismissed count II pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2008)). The trial court also dismissed the willful and wanton conduct charge based on the same section and that the plaintiff failed to properly allege sufficient facts for the pleadings.

The Plaintiff appealed on the willful and wanton conduct charge alone. Plaintiff argued that the warning label on the volleyball net crank was sufficient to put the School District on notice that the crank posed a risk of injury and instructing the Plaintiff to operate the crank showed an indifference for the Plaintiff’s safety. Plaintiff failed to allege facts that the District was on notice of the risk of injury, regardless of the warning label and the failure to direct Plaintiff to instructions or warning label did not constitute willful and wanton conduct. The court found in favor of the School District.

Posted date: 04/15/2013

Employee free speech
Craig v. Rich Twp. High Sch. Dist. 227 et al., No. 12 C 7581 (N.D. Ill., 02/19/2013).

Bryan Craig, a guidance counselor at Rich Township High School, was fired after he self-published a book entitled “It’s Her Fault” about relationships among men and women. The book was written in a sexually explicit manner. Craig filed a lawsuit against the school and numerous others under Section 1983 alleging that the school district violated his First and Fourteenth Amendment rights.

The school district asked the court to dismiss the case. It argued that Craig failed to state a valid claim upon which relief could be granted. To determine whether Craig stated a valid First Amendment claim, the court utilized a three-step analysis. In the first step, the court determined whether or not Craig’s speech in his self-published book was constitutionally protected. To be constitutionally protected, the speech must address a matter that is of public concern. If the speech is deemed to be a matter that is of public concern, the court must then balance the interests of the speaker with the interests of the school district as an employer.

In this case, the court determined that Craig’s self-help book is not a matter of public concern. The court stated that although Craig’s book may discuss relationships among men and women, the discussion of relationships is not enough to classify the book as a matter of public concern. The court also stated, in analyzing other court cases, that the speech within the book is harmful to the purpose of the school district. Therefore, Craig’s speech is not constitutionally protected by the First Amendment.

In addressing Craig’s Fourteenth Amendment liberty interest claim, the court found that Craig did not state in his complaint any instance in which the school district had publicly released negative information about Craig that prevented him from attaining future employment. Therefore, Craig’s Fourteenth Amendment claim also failed, and the court dismissed Craig’s complaint with prejudice (meaning that he cannot redo the complaint and file it again).

Posted date: 4/1/2013

Melissa-Ann E. Evanchik, IASB Law Clerk

Retaliation
Vaughn v. Vilsack, No. 11-3673 (7th Cir. March 8, 2013).

Gary Vaughn filed a claim under Title VII of the Civil Rights Act of 1964 against his employer, the United States Department of Agriculture (“USDA”) for allegedly retaliating against him for participating in protected activity under the Civil Rights Act of 1964. The facts surrounding Vaughn’s claim are related to two different events regarding his employment history with the USDA. First, Vaughn filed several employment discrimination complaints with the USDA’s Equal Employment Opportunity counselor claiming: (1) discrimination based on his race and age, and (2) retaliation against him for filing these complaints. These complaints were settled in September 2007.

Vaughn then had several changes to his work schedule occur due to schedule changes and transfers. At the same time, Vaughn ended a five-year relationship with a fellow employee, Lynn Towery. This event caused Towery to file several harassment complaints against Vaughn. Because of these complaints, Vaughn was placed on administrative leave. After returning to his previous position, Towery filed several more complaints against Vaughn. Due to these complaints, Vaughn’s work hours were altered so they would not coincide with Towery’s.

Vaughn argued that the modifications to his work schedule and his hours, being overlooked to fill the temporary position, and the denial of several overtime opportunities were all related to the settlement of his employment discrimination complaints in September 2007. He filed this suit alleging retaliation. The court found that Vaughn failed to establish a case for retaliation under the “indirect method of proof.” Under this method, Vaughn must establish that he: (1) participated in statutorily protected activity, (2) met his employer’s legitimate expectations, (3) suffered a materially adverse action and (4) treated less favorably than a similarly situated employee who did not participate in statutorily protected activity.

The court found that Vaughn’s claim failed on the second prong. This is because an employee who continues to harass a co-worker cannot be considered to have met his employer’s legitimate expectations. Although Vaughn’s behavior at the time, according to the court, may not have risen to the level of harassment on the account of sex, the USDA must not permit employees to act in the same or similar way as Vaughn towards any co-worker. The court stated that the USDA responded appropriately to Vaughn’s behavior towards Towery in order to protect her and to preserve a positive work environment. The decision of the district court was affirmed.

Posted date: 4/1/2013

Melissa-Ann E. Evanchik, IASB Law Clerk

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