Unsatisfactory Performance Rating Not Retaliation for Protected Statements, Due Process Question Remains
The United States Court of Appeals for the Seventh Circuit (Court) dismissed a former teacher’s claim that she was given an “unsatisfactory” performance rating in retaliation for speech she engaged in while acting as the union’s representative, which she alleged violated her First Amendment free speech rights, but it remanded her case for further proceedings to determine if she was afforded Fourteenth Amendment due process rights.
Plaintiff Carolyn Mascow (Mascow) was a tenured teacher employed by Franklin Park School District No. 84 (the District) in 2017 when she was laid off. Her latest performance evaluation at the time was “unsatisfactory,” meaning she was first in line for layoff when the school lost one position and she was not eligible for recall if the school began hiring again, which it did. Mascow sued the District, alleging that she was given the “unsatisfactory” performance rating in retaliation for two positions she took when acting as union co-president, the first in the summer of 2014 and the second in the summer of 2015.
The district court, in reviewing Mascow’s First Amendment claim, held that a reasonable jury could not find that the 2014 and 2015 acts led to Mascow’s 2017 “unsatisfactory” performance rating. In so ruling, it pointed out that Mascow began serving as co-president in 2010, when she met with school officials often and initially had good performance ratings. Moreover, Mascow’s co-president (who was also involved in the 2015 matter) had received an “excellent” performance rating. As for Mascow’s Fourteenth Amendment claim, the district court found that even though Mascow had a property interest in her job, Illinois does not offer hearings to laid-off teachers. Because Mascow did not have a right to a hearing, it found that she did not have a property right either and lacked a constitutional claim.
Reviewing these facts and the district court’s decision, the Court agreed with the district court’s conclusion regarding the First Amendment claim. The Court, however, was not persuaded by the district court’s reasoning on the Fourteenth Amendment claim that if someone does not have a State right to a hearing then it “knocks out” a due process claim under federal law. Instead, the Court focused on the fact that Mascow received her “unsatisfactory” performance rating one month before being laid-off and it inquired whether she had an opportunity for a hearing regarding the adverse rating. Though neither State law nor the District offers a formal process for contesting an adverse rating, the litigants agreed that teachers have informal opportunities to seek review. The District contended that an opportunity for face-to-face discussions and written submissions regarding ratings supplies all the due process required for an adverse evaluation, but Mascow responded that she had asked the Superintendent to raise her rating yet he “refused to even entertain the possibility.” Because the record before the Court did not address how teachers can obtain review of their ratings and whether those opportunities would satisfy constitutional due process requirements for some kind of hearing, the Court vacated the district court’s decision on the Fourteenth Amendment claim and remanded it for further proceedings.