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ATHANAS
vs.
BOARD OF EDUCATION OF SCHOOL DISTRICT 111 HIGHWOOD-HIGHLAND PARK ILLINOIS et al.
 
Case:
No. 80 C 186
 
Location:
United States District Court Northern District of Illinois
 
Date:
December 10 1980
 
Author:
The Hon. Justice Hoffman
 

This is an action brought pursuant to the provisions of the Rehabilitation Act of 1973 29 U.S.C. Section 794 42 U.S.C. Section 1983 and the pendent jurisdiction of this court against a school board its members and other school officials in which the plaintiff seeks reinstatement and other relief.

The cause of action purports to arise out of the plaintiff's dismissal from is position as a teacher with the defendant school board. According to the amended complaint the plaintiff a tenured teacher was discharged from his employment without a hearing because he is an alcoholic.

The plaintiff alleges that after he had been hospitalized for alcoholism the defendants Ronald Finotti and Donald Jenkins harassed him in connection with this classroom performance. The plaintiff asserts that he was informed in April 1979 that his contract with the defendant school board would not be renewed for the following school year because the board had decided to decrease the number of teachers.

It is the plaintiff's contention such a reason was a mere pretext and that he was dismissed and has not been recalled because of his alcoholism even though he is and has been capable of performing his duties as a teacher. Count 1 asserts that the plaintiff's dismissal and failure to be recalled were in violation of the Rehabilitation Act of 1973.

Count 2 brought pursuant to 42 U.S.C. Section 1983 alleges that the plaintiff's dismissal without a hearing violated his constitutional right to due process of law. Counts 3 4 and 5 which are appended to the main case assert violations of the Illinois constitution Illinois Revised Statutes Chapter 38 Sections 65-23 -28 and -29 and Illinois Revised Statutes Chapter 122 Section 24-12 respectively. All defendants have moved to dismiss the complaint. Eight defendants have joined in a single motion and the remaining three defendants have filed separate motions to dismiss. The matter has been fully briefed by all parties and now is before the Court for ruling.

For purposes of convenience the Court will first rule upon the separate motions of the three individual defendants and then will pass upon the merits of the joint motion of the remaining defendants. First the motion of Hermine Leiderman. Hermine Leiderman seeks dismissal of the complaint as to her on the ground that she was not a member of the Board of Education when the plaintiff's employment was terminated on April 10 1979 the 1978-79 school year. In support of that contention Leiderman refers to Paragraph 11 of the Amended Complaint which states: "Hermine Leiderman is a member of the defendant board for the 1979-80 school term."

The causes of action asserted in the amended complaint arise out of the alleged dismissal of the plaintiff on his teaching position and the failure to recall him because of his alcoholic condition. The prayer for relief seeks a declaratory judgment certain equitable relief a permanent injunction and back pay. Although the defendant Leiderman would not be liable for any recovery which might to obtained for purported injuries which arose prior to tenure with the Board of Education she would nevertheless be liable for any injuries arising as a result of the failure to recall the plaintiff to his former position if it is proved that the failure to recall him was because of a handicap. Accordingly the defendant Hermine Leiderman will be dismissed from the complaint as to any recovery sought arising from board action prior to the 1979-80 school term. The defendant's motion to dismiss must be denied in all other respects.

We next come to the motion of Donald Jenkins. In support of his motion to dismiss the complaint for failure to state a claim upon which relief may be granted the defendant Donald Jenkins states that the amended complaint is based upon injuries resulting from actions of the defendant Board of Education and not the conduct of the defendant Jenkins as Superintendent of School District 111.

The only reference in the amended complaint to actions by this defendant is in Paragraph 17 which states: "In or about February or March 1979 both Finotti and Superintendent Jenkins accused plaintiff of smelling of alcohol and demanded that he take a blood test. Plaintiff complied and the blood test proved negative."

No connection between this action and the plaintiff's alleged discriminatory dismissal or any other injury has been suggested. The regulations promulgated under the Rehabilitation Act of 1973 provide that an employer who receives federal financial assistance shall not subject a handicapped person to discriminatory action with respect to inter alia any term condition or privilege of employment. 8 C.F.R. Section 84.11(4)(b)(9) 1979.

Construing the amended complaint most liberally the Court nevertheless cannot reasonably find that the single incident allegedly committed by the defendant Jenkins can be construed as amounting to the kind of a discrimination with respect to a condition of employment that is contemplated by the act in question.

Neither does the Court find that the conduct alleged in the complaint gives rise to a cause of action under 42 U.S.C. Section 1983. Not a reaction which could be construed as discriminatory rises to the dignity of a constitutional violation. Paul v. Davis 424 U.S. 693 1976.

This single incident which bears no connection with any other injury claimed to have been suffered by the plaintiff fails to state a claim on which relief may be granted and the defendant Donald Jenkins must be dismissed as to Counts 1 and 2. Because no injury resulting from the defendant's conduct has been alleged and indeed it is doubtful whether it could be alleged the pendent claims contained in Counts 3 4 and 5 must likewise be dismissed as to this defendant. We next consider the motion of the defendant Ronald G. Fenotti. The defendant Ronald G. Fenotti has moved to dismiss the complaint for the same reasons cited by the defendant Jenkins whose motion was just addressed. Fenotti states that he is the principal of Northwood Junior High School where the plaintiff was employed as a teacher.

[Paragraph] 16 of the amended complaint states that shortly after the plaintiff told him that he had been diagnosed and treated for alcoholism Fenotti began to harass intimidate and coerce plaintiff by frequent observations of his classroom and by falsely accusing him of misgrading student papers mumbled speech poor classroom management and unsatisfactory instructional competence. This pattern of harassment culminated in an unsatisfactory evaluation dated April 23 1979 and prepared by Finotti.

Finotti was also included in the allegations of Paragraph 17 which the Court examined regarding the defendant Jenkins. Although as before the plaintiff has not alleged that the defendant's actions resulted in the plaintiff's dismissal the conduct alleged to have been committed by the defendant Finotti is considerably more extensive than that of Jenkins. The conduct complained of if true is sufficient to have affected the conditions of the plaintiff's employment and if it was directed at the plaintiff because of his purported handicap the defendant Fenotti violated provisions of the Rehabilitation Act of 1973.

Accordingly because of the difference in degree the plaintiff has stated a claim as to relief which may be granted against the defendant Ronald Fenotti. The Rehabilitation Act of 1973 is in essence a codification of the constitutional right to equal protection. Halderman v. Pennhurst State School & Hospital 446 F.Supp. 1295 Eastern District of Pennsylvania 1978. The plaintiff has also stated a cause of action based on violations of constitutional rights under 42 U.S.C. Section 1983. The thrust of Count 2 of the plaintiff's complaint is that he was denied due process when he was dismissed without a hearing. Although on its face that count refers only to actions taken by the defendant Board in dismissing the plaintiff the Court must construe the pleadings in the light most favorable to the plaintiff in deciding this motion. Scheuer v. Rhodes 416 U.S. 232 1974. Every doubt that arises must be resolved in the plaintiff's behalf. Burns v. Paddock 503 F.2d 18 7th Circuit 1974.

Unless it is clear beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief on his claims the motion must be denied. United States v. Interlake Inc. 429 F.Supp. 193 Northern District of Illinois 1977; Grillo v. Sielaff 414 F.Supp. 272 Northern District of Illinois 1976.

The continuing nature of the conduct complained of in light of the allegation that the defendant Finotti was engaging in such conduct solely because of the plaintiff's purported handicap asserts a cause of action as to him. For the same reasons the pendent claims may not be dismissed as to this defendant.

We come now to considering the motion of the remaining defendants to dismiss the plaintiff's amended complaint. The Board of Education of School District 111 Highwood Highland Park Illinois William T. Salam Jerry M. Aufox Alan Reinberg Elizabeth Bradner Anne Willman Lawrence S. Ballantini and Irene Spitz have also moved to dismiss the plaintiff's amended complaint for failure to state a claim upon which relief may be granted.

The defendants have argued that Count 1 of the amended complaint arising under Section 504 of the Rehabilitation Act of 1973 should be dismissed because the plaintiff has admitted in that complaint that he was unable to function as a teacher during the period in question and consequently falls outside the statute's definition of handicapped because he is not otherwise qualified for his position. 29 U.S.C. Section 706(7)(b). That section provides that the term "handicapped individuals" does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question.

The defendants contend that the plaintiff has admitted that he was unable to perform the duties of a teacher when he was hospitalized for alcoholism in October 1978 and April 1979. The Court has indicated it must construe the complaint in the light most favorable to the plaintiff.

Furthermore the complaint need not provide a full summary of the facts underlying the cause of action. All that is required is that the plaintiff give fair notice to the defendant of the underlying basis of the claim. Tremps v. Ascot Oils Inc. 561 F.2d 41 7th Circuit 1977; Reed v. Board of Education of the Parkway School District 460 F.2d 824 8th Circuit 1972.

The defendants have attempted to draw inferences concerning the plaintiff's alleged handicap that go far beyond the four corners of the complaint. The plaintiff has stated that he was hospitalized twice for alcoholism in 1978 and '79. He avers in Paragraph 21 of the complaint however that at all times material and continuing to date plaintiff has been and is ready willing and able to return to employment with the defendant Board as a classroom teacher.

Whether or not the plaintiff was and is in fact qualified to perform his work remains a fact which must be proved but for purposes of this motion those allegations are taken as truth. Scheuer v. Rhodes to which I have previously referred. The plaintiff's argument that he was otherwise qualified for his position despite his alcoholism gives him standing as a handicapped person to bring an action pursuant to the Rehabilitation Act. The defendants have also suggested that Count 1 should be dismissed because the plaintiff is not entitled to bring a private cause of action under Section 504 of the Rehabilitation Act and that he has failed to exhaust all administrative remedies. The Supreme Court has not yet passed upon the issue of whether a private remedy is available under Section 504.

After a review of the applicable recent case law and the legislative history of Section 504 and similar statutes the Court must conclude that there exists a private right of action under section 504 without the requirement of exhausting administrative remedies.

Recent administrative regulations have been promulgated by the Department of Health and Welfare which adopt the Title VI enforcement procedures. 45 C.F.R. Section 84.61 1979. The absence of such regulation was the basis for allowing a private cause of action in Lloyd v. Regional Transportation Authority 548 F.2d 1277 7th Circuit 1977.

Title VI enforcement procedures however are substantially similar to the administrative mechanisms for enforcing Title IX of the education amendment of 1972. 45 C.F.R. Section 86.71 1979.

The Supreme Court recently found a private cause of action to be implied under Title IX exhaustion of available administrative remedies was not required because of the inadequacy of those administrative enforcement procedures. Cannon v. University of Chicago 441 U.S. 677 706 708 Note 41 1979.

Recent opinion has expressed the same concern over the absence of an efficient enforcement scheme with respect to complaints under Section 504 of the Rehabilitation Act given the similarity of Title VI and Title IX enforcement schemes. Simpson v. Reynolds Metals Company Incorporated 629 F.2d 1226 23 FEP Cases 868 7th Circuit 1980; Camenisch v. The University of Texas et al. 616 F.2d 127 5th Circuit 1980; See also Rogers v. Frito-Lay Incorporated 611 F.2d 1074 22 FEP Cases 16 5th Circuit 1980. The Court will follow the reasoning in those cases and finds that the plaintiff may maintain a private cause of action in this case.

Count 2 of the amended complaint alleges that the plaintiff was deprived of his position without a hearing because he is an alcoholic. The defendants have moved to dismiss the complaint as to the board members on several bases. First the defendants argue that the complaint does not arise under color of state law. The memorandum in support of the defendants' motion gives this Court little aid in determining precisely what their argument is. It appears however that the defendants contend that the plaintiff has cited no state law which has been violated.

The defendants misconstrue the meaning of the term "under color of state law." To state a cause of action under Section 1983 there is no need to point to a specific state statute where public institution employees are involved. United States v. Wiseman 445 F.2d 792 2nd Circuit certiorari denied 404 U.S. 697 1971; McCabe v. Nassau County Medical Center 453 F.2d 698 2nd Circuit 1971.

The School Board acting as a body acts under authority conferred upon it by state law and the individual members' acts of authority conferred upon them by virtue of their position. The School Board therefore acted under color of state law within the meaning of Section 1983 when it dismissed the plaintiff from his position. Wood v. Goodman 381 F.Supp. 413 District of Massachusetts 1974; affirmed 516 F.2d 894 1st Circuit 1974; Berry v. Macon County Board of Education 380 F.Supp. 1244 Middle District of Alabama 1971.

The plaintiff has alleged that he was a tenured teacher who was dismissed from his position without a hearing because of his alcoholism. A teacher is entitled to the protection of procedural due process upon proof of a legitimate expectation of continued employment. Easter v. Olson 552 F.2d 252 8th Circuit 1977.

Under Illinois law a tenured teacher has a right to a hearing before the Board prior to dismissal for cause. Illinois Revised Statutes Chapter 122 Section 24-12 1977. Accordingly the plaintiff has alleged the cause of action against the board members under Section 1983 for a violation of his constitutional right of due process.

Finally it is argued that the defendant board should be dismissed because it cannot be sued for injuries inflicted solely by its employees or members citing Monell v. Department of Social Services 436 U.S. 658 17 FEP Cases 873 1978. Monell however holds that a governmental body may be sued when the alleged injury is inflicted by persons who may fairly be said to represent official policy. 436 U.S. at 694.

In as much as the individual board members being sued constitute the board itself they may fairly be said to represent the board's official policy. The board's motion to dismiss must be denied. The defendants' motion to dismiss plaintiff's claims contained in Counts 3 4 and 5 is substantially the same as their motion to dismiss Count 1. They argue that the plaintiff is not in fact handicapped by reason of certain admissions made in his amended complaint. As the Court has observed that argument is without merit and the motion to dismiss must be denied.

The defendant's argument that Article I Section 19 of the Illinois constitution is inapplicable because the complaint does not relate to hiring and promotion is likewise without merit. Dismissal is sufficiently related to hiring and promotion to give rise to a cause of action under that portion of the Illinois constitution. Miss Clerk the motion of the defendant Hermine Leiderman to dismiss the amended complaint will be allowed as to any relief sought with regard to actions taken by the Board of Education prior to her tenure on the Board of Education.

The motion of the defendant Donald R. Jenkins to dismiss the amended complaint as to him will be allowed.

The motion of the defendant Ronald G. Finotti to dismiss the complaint as to him will be denied.

The motion of the defendants Board of Education of School District 111 Highwood-Highland Park Illinois and William T. Salam Jerry M. Aufox Alan Reinberg Elizabeth Bradner Anne Willman Lawrence S. Ballantini and Irene Spitz individually and as members of the Board to dismiss the complaint for failure to state a claim upon which relief may be granted will be denied.

The defendants are ordered to file their answers or other responsive pleadings on or before December 29 1980.