Case: 1:10-cv-07875 Document #: 1 Filed: 12/10/10 Page 1 of 12 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION BEVERLY KELLEY ) ) Plaintiff, ) ) v. ) )| BOARD OF EDUCATION OF THE CITY ) OF CHICAGO ) ) Defendants. )

Case No. Judge Magistrate Judge JURY TRIAL DEMANDED

COMPLAINT Plaintiff Beverly Kelley (Ms. Kelley or Plaintiff), by and through her attorneys, Robin Potter & Associates, P.C., complains against Defendant Board of Education of the City of Chicago (Board or Defendant Board or BOE) and its officers as follows: NATURE OF THE CASE 1. Ms. Kelley brings this action against her former employer the Board and

its officers to redress acts of unlawful termination and age discrimination. Ms. Kelley, a tenured Citywide Special Education Resource Teacher, was terminated and forced into retirement from her employment because of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. This action further seeks to enforce Ms. Kelleys constitutional due process rights under 42 U.S.C. 1983. JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. 1331 and 28 U.S.C. 1343(a)(4).

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3.

Venue is proper in this judicial district under 29 U.S.C. 1391 because

Defendants reside in this district and a substantial part of the events giving rise to Ms. Kelleys claims occurred in this district. PARTIES 4. Beverly Kelley is an adult female Citizen who resides within the territorial

jurisdiction of the District Court. At all relevant times, Ms. Kelley was an employee within the meaning of the ADEA. 29 U.S.C. 630(f) 5. Ms. Kelley was employed as a Special Education Resource Teacher with

the Board of Education of the City of Chicago for 20 years until her termination in August of 2010. Ms. Kelley was born in 1949 and is currently 61 years old. 6. Defendant Board and its officers were, at all times relevant, employers

within the meaning of the ADEA. 29 U.S.C. 630(b). 7. Defendant Board is an educational employer within the meaning of

Section 2(a) of the Illinois Educational Labor Relations Act, 115 ILCS 5/2(a), and is the entity charged by law with maintaining a free school system within the city of Chicago. It maintains offices at 125 South Clark Street, 6th Floor, Chicago, Illinois 60603. 8. Ms. Kelley fulfilled all conditions precedent to the institution of this action

under the ADEA. 9. Plaintiff filed a charge with the Equal Employment Opportunity

Commission (EEOC) on August 23, 2010. She received a Right to Sue from the EEOC that was mailed to her on September 10, 2010. The Right to Sue Letter and charges of discrimination are attached hereto as Group Exhibit A.

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FACTS 10. Ms. Kelley began working for the Board in September of 1990 as a

Special Education Resource Teacher. 11. Throughout her employment, Ms. Kelley performed the duties and

responsibilities of her position in a satisfactory manner and met or exceeded all legitimate expectations. 12. Throughout her employment, Ms. Kelley received Superior ratings on her

professional evaluations. This is the highest rating a Board teacher can receive. 13. In 1996, Ms. Kelley was transferred to a position as a Citywide Special

Education Teacher in the Office of Specialized Service (OSS). Ms. Kelley was transferred to the Citywide position in light of her superior performance, multiple teaching certifications and extensive experience working with Special Education students. 14. As a Citywide teacher, Ms. Kelley was not assigned to one specific school.

Instead, she worked in multiple schools and offices throughout the Chicago Public Schools (CPS). 15. Citywide teachers are an extremely experienced component of the Boards

teaching staff that the Chicago Public Schools utilize in a quasi-administrative function. Maturity and experience are vital to the responsibilities of this position. 16. As of June of 2010, Ms. Kelley was 60 years old. Upon information and

belief, Ms. Kelley is one of the oldest and most experienced members of the Boards teaching staff.

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17.

On June 23, 2010, the media began reporting that Ron Huberman

(Huberman), the then CEO for Chicago Public Schools, and the Board had decided to layoff alleged unsatisfactory teachers. Huberman made these announcements publicly on June 23, 2010 and continually thereafter. Hubermans comments were widely repeated and published by a number of media outlets. A sampling of those published statements are attached hereto as Group Exhibit B. 18. Hubermans statements that the honorably terminated teachers were

unsatisfactory are false. 19. On June 26, 2010 Ms. Kelley received a certified mail letter dated June

23, 2010 from Chicago Public Schools Office of Human Capital/Workforce Planning. The letter stated that her position is no longer available effective June 30, 2010 due to a Redefinition of a Program. As a result Ms. Kelley was to be laid off and honorably dismissed effective June 30, 2010. The June 23, 2010 letter is attached hereto as Exhibit C. 20. The June 23, 2010 letter referred Ms. Kelley to a set of Frequently Asked

Questions (FAQs) that included important information regarding benefits, sick and benefit day payouts and unemployment benefits. The set of FAQs are attached hereto as Exhibit D. 21. The third topic set forth in the set of FAQs informed Ms. Kelley that if she

were laid off and not reappointed to a full time position within one year, she would forfeit her unused sick leave unless she were to convert the layoff to a resignation or retirement by submitting a formal resignation on or before the effective date of her layoff. 4

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22. days. 23.

In June of 2010, Ms. Kelley had accumulated over $10,000.00 in sick

The ninth topic set forth in the set of FAQs informed Ms. Kelley that all

healthcare coverage would be terminated the last day of the month in which her employment ceased, or June 30, 2010. 24. 25. Ms. Kelley is diabetic and suffers from high blood pressure. With only three business days to make the decision of whether to retire or

lose all health coverage and risk forfeiting $10,000 worth of earned and accrued sick days, on June 28, 2010, Ms. Kelley and a number of her colleagues who were also honorably dismissed, met with the Chicago Teachers Pension Fund (CTPF) to inquire about their pension options. 26. Sharon Banks-Fallis (Ms. Banks-Fallis), CTPFs Member Services

Manager, had no knowledge of the terminations. Ms. Kelley and her colleagues spent the day with Ms. Banks-Fallis attempting to determine what, if any, pension benefits they were eligible to receive in light of the termination. Ms. Banks-Fallis advised Ms. Kelley and her colleagues that she would meet with the Defendant Board in an attempt to gain a better understanding of the situation, and for them to return the next day. 27. On June 29, 2010, Ms. Kelley and her colleagues returned to the CTPF

office. Ms Banks-Fallis notified Ms. Kelley and her colleagues that because the effective enrollment dates had passed, they were not eligible to participate in the Pension Enhancement Program (PEP) or to purchase the 2.2 Upgrade Option, both of which would significantly increase their pension benefits. The 2.2 Upgrade Option provides a way to increase the pension percentage used to calculate pension benefits through the 5

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purchase of a pension plan upgrade. The PEP provides for the use of earned and accrued sick days to increase the value of a pension. 28. Ms. Kelley and her colleagues were further informed that CTPF was three

years behind in calculating pension amounts due to incomplete information received from the Board. This meant that if Ms. Kelley were to retire on or before June 30, 2010, her pension payments would be calculated based on seventeen years of service instead of the twenty years of service she had actually provided to the Board. That difference amounted to over $700 a month. 29. Ms. Kelley could not afford to lose $10,000.00 worth of sick days or her

medical coverage. Despite having to accept a significant loss in her pension benefits as a result, Ms. Kelley submitted a resignation application and converted her termination into a retirement on June 29, 2010. Ms. Kelleys resignation application is attached hereto as Exhibit E. 30. Months later, the Board allowed Ms. Kelley to recover some but not all of

the pension benefits she would have otherwise been entitled to. 31. After being compelled to resign, and after returning home from the CTPF

office, Ms. Kelley received a phone call from Mary Beth Walsh (Ms. Walsh), a supervisor in the OSS office. Ms. Walsh notified Ms. Kelley that her job description and title had been advertised on the Boards website as an open administrative position. Ms. Walsh told Ms. Kelley she had seen the posting just a few weeks before. She encouraged Ms. Kelley to apply for the position because Ms. Kelley was fully qualified to fill it.

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32.

Ms. Kelley immediately contacted Jerry Cade (Mr. Cade), who was her

direct supervisor and was a Director in the Office of Specialized Services and the Office of New Schools. Mr. Cade confirmed that Ms. Kelleys job description and qualifications had been posted on the Boards website. He too encouraged her to apply as she was fully qualified for the position. 33. Immediately following these conversations, and though she had submitted

her resignation/retirement paperwork earlier the same day, Ms. Kelley logged on to the Boards website to apply for the open position. The job postings had already been removed. Upon information and belief, Ms. Kelleys position was filled before she received the June 23, 2010 termination letter. 34. Had Ms. Kelley been allowed to remain in her job or an equivalent

position, she would not have tendered or would have revoked her compelled retirement. 35. Ms. Kelley believes that her former position, or an equivalent position was

filled by someone who is substantially younger than 60 years old. 36. The Board did not notify Ms. Kelley of any open positions that would be

available in the OSS office or elsewhere in the City of Chicago for which she may be qualified. Upon information and belief, the OSS office made a number of hires before and since Ms. Kelleys termination, including the hire of Citywide teachers under the same unit number Ms. Kelley had worked under. 37. Soon after the receipt of the June 23, 2010 termination letter, Ms. Kelley

applied for unemployment benefits with the Illinois Department of Employment Security (IDES). IDES made a determination that Ms. Kelley had been forced to retire. The IDES Determination is attached hereto as Exhibit F. 7

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38.

The Board and its officers have failed to comply with the Illinois School

Code, which contains provisions that apply to any reduction in force. 105 ILCS 5/3418(31). Those provisions mandate the Board make individual determinations as required by 105 ILCS 5/34-18(31) to issue rules to ensure individualized consideration of education and employees based on the qualifications, certifications and experience, and to ensure they are retained. 39. The seniority and reassignment rights of teachers also exists by virtue of

past practice under the collective bargaining agreement (the Agreement) between the Board and the Chicago Teachers Union, Local 1 (CTU). 40. Appendix H to the Agreement requires that tenured teachers with

appropriate certifications will be selected for retention based on seniority. Appendix H to the Agreement is attached hereto as Exhibit G. The Agreements provisions give teachers the right to layoff by seniority and reassignment where appropriate. 41. Subsequent to the Agreements adoption, the Board issued a set of

regulations ensuring that layoffs would be conducted by a process of system wide seniority and that teachers would be entitled to utilize the reassigned teacher pool to avoid dismissal. 42. The system wide seniority process is consistent with Article 42-2 and

Appendix H is set out in the rules and regulations relating to layoffs and is titled Reassignment and Layoff of Regularly Certified and Appointed Tenured Teachers. 43. In 1995, the General Assembly of Illinois authorized the Board to

promulgate rules for layoffs and reductions in force, which are included in 105 ILCS 5/34-18, subparagraph one and subparagraph 31. Such rules expressly require the 8

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Board to consider criteria that include, but are not limited to, the qualifications, certifications, experience, performance ratings or evaluations of the teachers who are affected by a reduction in force. 44. 105 ILCS 5/34-18(31) specifically states that the Board shall promulgate

rules establishing procedures governing the layoff or reduction in force of the employees and the recall of such employees, including, but not limited to, criteria for such layoffs, reductions in force or recall rights of such employees and the weight to be given to any particular criteria. Such criteria shall take into account factors including, but not be limited to, qualifications, certifications, experience, performance ratings, or evaluations, and any other factors relating to employees job performance. 45. On June 15, 2010 the Board passed a resolution authorizing the

honorable termination of tenured teachers, like Ms. Kelley. 46. Teachers laid off pursuant to the Boards June 15, 2010 resolution were

not provided with an opportunity to demonstrate their qualifications for retention in some capacity within the school system. 47. This opportunity has been recognized by this Court to be a due process

right to which tenured Board teachers are entitled and has ruled honorable dismissals, like the one to which Ms. Kelley was subjected, to be illegal. Judge Coars 10/4/10 Memorandum Opinion so holding in Chi. Teachers Union v. Bd. of Educ., 2010 U.S. Dist. LEXIS 105715 (N.D. Ill. Oct. 4, 2010) is attached hereto as Exhibit H.

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COUNT I (ADEA: Age Discrimination) 48. forth herein. 49. Defendant intentionally subjected Ms. Kelley to unequal and discriminatory Ms. Kelley restates and realleges paragraphs 1-47 as though fully set

treatment by forcing her into retirement because of her age in violation of the ADEA 29 U.S.C. 621 et seq. 50. 51. Defendants actions are in violation of the ADEA and were willful. Defendants actions in intentionally discriminating against Ms. Kelly have

caused her lost wages and benefits, pecuniary losses, and other consequential damages. WHEREFORE, Plaintiff Beverly Kelley prays this court enter judgement on her behalf and against Defendants for damages including, but not limited to: A. B. C. E. F. G. H. All wages and benefits that she would have received but for the discrimination, including pre-judgement interest; Reinstatement, or in the alternative, an award of front pay; Liquidated damages, under the ADEA; Post-judgement interest; To be made whole for the damages and financial losses suffered; Attorneys fees and all costs and expenses of suit; and Such other and further relief as this Court deems appropriate and just. COUNT II (Section 1983: Deprivation of Due Process Rights) 52. herein. 53. Ms. Kelley was entitled to exercise her constitutional right to due process Ms. Kelley restates and realleges paragraphs 1-51 as though fully set forth

before the Board and its officers deprived her of her property right in tenured 10

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employment. 54. The Board and its officers have caused the summary dismissal of tenured

teachers, like Ms. Kelley, without giving any individualized consideration under of the qualifications, certifications, experience, performance ratings or evaluation, or any other factor relating to an employees job performance as required by 105 ILCS 5/34-18(31). 55. Without the individual determinations required by 105 ILCS 5/34-18(31),

the Board has denied the constitutional rights of Ms. Kelley to notice and an opportunity to be heard as to why she is qualified to be retained or to exercise her right to procedural due process under the Fourteenth Amendment. WHEREFORE, Plaintiff Beverly Kelley prays this court enter judgement on her behalf and against Defendants for damages including, but not limited to: A. Declare that in violation of 42 U.S.C. 1983 and the Due Process Clause of the Fourteenth Amendment of the United States Constitution, the Board and its officers have denied Ms. Kelley her constitutional rights to individualized determination as to whether she meets specific weighted criteria, which the Board should have but failed to apply under 105 ILCS 5/34-18(31), and thereby denied Ms. Kelley her right to procedural due process, including notice and an opportunity to be heard. Make Ms. Kelley whole for the damages and financial losses suffered, including punitive and compensatory damages; Award attorneys fees and costs; and All other relief that this Court deems necessary and just JURY DEMAND Plaintiff hereby respectfully demands a jury trial.

B. C. D.

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Respectfully submitted, ROBIN POTTER & ASSOCIATES, P.C.

/s/ Robin Potter One of Plaintiffs Attorneys Robin Potter, Esq. ARDC # 3123932 Jennifer N. Purcell, Esq. ARDC # 6297457 M. Nieves Bolanos, Esq. ARDC # 6299128 ROBIN POTTER & ASSOCIATES, P.C. 111 E. Wacker Dr., Suite 2600 Chicago, IL 60601 (312) 861-1800 robin@potterlaw.org jpurcell@potterlaw.org nieves@potterlaw.org

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