Goral v. Illinois State Board of Education

Illinois Official Reports

Appellate Court

Goral v. Illinois State Board of Education, 2013 IL App (1st) 130752

Appellate Court BRADLEY GORAL, Plaintiff-Appellant, v. ILLINOIS STATE

Caption BOARD OF EDUCATION, THE BOARD OF EDUCATION OF

NEW TRIER TOWNSHIP HIGH SCHOOL DISTRICT 203, and

LAWRENCE COHEN, Defendants-Appellees.

District & No. First District, Third Division

Docket No. 1-13-0752

Filed December 18, 2013

Held The trial court’s order upholding the defendant board of education’s

(Note: This syllabus decision terminating plaintiff’s employment as a teacher based on his

constitutes no part of the response to directives arising from a parent’s complaint about

opinion of the court but plaintiff’s response to one of his student’s questions in class was

has been prepared by the affirmed where a fitness-for-duty examination ordered by the school

Reporter of Decisions district did not violate the Mental Health and Developmental

for the convenience of Disabilities Confidentiality Act, the hearing officer did not violate the

the reader.) School Code by failing to timely schedule the dismissal hearing,

plaintiff waived the claim that a new charge was raised during the

dismissal hearing based on emails he sent after the school district’s

notice to remedy by raising the issue for the first time in the trial court,

and waiver aside, the emails at issue were merely a continuation of

plaintiff’s alleged insubordination.

Decision Under Appeal from the Circuit Court of Cook County, Nos. 12-CH-26508,

Review 12-CH-30283; the Hon. Mary L. Mikva, Judge, presiding.

Judgment Affirmed.

Counsel on Lisa Madigan, Attorney General, of Chicago (Ann C. Maskaleris,

Appeal Assistant Attorney General, of counsel), for appellee Illinois State

Board of Education.

Franczek Radelet P.C., of Chicago (Shelli L. Anderson and Jacqueline

F. Wernz, of counsel), for other appellees.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Presiding Justice Hyman and Justice Neville concurred in the

judgment and opinion.

OPINION

¶1 Plaintiff-appellant, Bradley Goral, appeals from an order of the circuit court affirming a

decision by defendant-appellee Board of Education of New Trier Township School District

203 (Board) terminating his employment as a teacher at New Trier Township High School

District 203 (District). Goral contends that in connection with a fitness-for-duty examination,

the District violated the Mental Health and Developmental Disabilities Confidentiality Act

(740 ILCS 110/1 et seq. (West 2010)) (Act). Goral further argues that the hearing officer

violated the Illinois School Code (105 ILCS 5/24-2 (West 2010)) (Code), by failing to timely

schedule his dismissal hearing and raising a new charge against him during the administrative

hearing and that, in any event, the hearing officer’s determination on the new charge is

contrary to the manifest weight of the evidence. For the reasons that follow, we affirm.

¶2 In this appeal, Goral does not challenge the Board’s conduct in issuing him a notice to

remedy (based on conduct further described below) or requiring him to attend a psychiatric

fitness-for-duty exam. It is also undisputed that Goral failed to (1) attend the exam and (2)

notify the District that he would not attend, thus causing the District to incur a $1,000

cancellation fee. Goral contends that the Board’s violation of the Act warranted his refusal to

comply with its directives.

¶3 The parties provide an extensive recitation of the facts leading up to Goral’s termination.

We recite only so much of the facts as is necessary to provide a framework for discussion of the

issues raised in this appeal.

¶4 Goral was hired as a chemistry teacher in the District in 1983. In April 2011 an

administrator received a complaint from a parent about difficulty a student was having with

Goral responding to the student’s questions in class. After the science department chair sent

Goral a memo summarizing the parent’s concerns and asking for Goral’s input, Goral initially

responded that the complaint was “gibberish and nonsense” and that the parent’s comments

(which were, at the request of the parent and student, anonymous) were “libelous” and

“criminal.” Goral demanded an apology from the department chair and that the District pursue

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criminal charges against the parent. Goral later demanded the identity of the student and parent

indicating that he wanted to file a lawsuit.

¶5 Over the next several months, the tenor of Goral’s communications and interactions with

District administrative personnel escalated. Goral filed a grievance against the District’s

assistant superintendent and his department chair accusing them of harassing him and of

engaging in “patently criminal” conduct. The Board ultimately rejected Goral’s appeal from an

adverse determination on his grievance.

¶6 While his grievance was pending, Goral refused to cooperate with directives from Linda

Yonke, the District superintendent, to schedule observations of his classroom and pre- and

postobservation conferences. Again, the tenor of Goral’s communications–reflected in email

exchanges–was accusatory and, increasingly, threatening.

¶7 Ultimately, on June 24, 2011, after Goral refused to meet with her regarding the ongoing

dispute (instead responding in an email with the subject line, “Commands of June,” that his

only obligation was to rebuke Yonke, who believed her directives were the “commands of

God”), Yonke suspended Goral for five days without pay and informed Goral that she was

recommending that the Board issue Goral a notice to remedy. Yonke warned Goral that his

violation of the directives in the notice to remedy “could result in further disciplinary action,

including termination.” Goral responded in an email in which he referred to Yonke as a

“broken record” and asserted that he was not required to submit to her authority. In the course

of appealing his suspension, Goral advised Yonke and the Board that he had contacted the FBI

and that Yonke had “grossly underestimated” how angry he was.

¶8 On July 8, 2011, Yonke sent Goral a memo regarding her recommendation that the Board

issue him a notice to remedy. Yonke informed Goral that based on his conduct since receiving

the parent’s complaint, including his angry and irrational responses, she questioned his fitness

for duty as a teacher. The memo identified the following four directives incorporated in the

notice to remedy:

“1. You are to interact with your colleagues in a collaborative, professional,

respectful and courteous manner. Your colleagues include, but are not limited to, the

Superintendent, the Assistant Superintendent for Curriculum and Instruction, the

Director of Human Resources and your Department Chair.

2. You are to follow the work-related directives of your supervisors promptly and

in a collaborative, professional, respectful and courteous manner. Your supervisors

include, but are not limited to, the Superintendent, the Assistant Superintendent for

Curriculum and Instruction, The Director of Human Resources and your Department

Chair. This directive includes, but is not limited to, engagement in all designated

components of the teacher evaluation process.

3. You are to be examined by a health professional designated by the

Superintendent to evaluate and report to the Board and to the Superintendent regarding

your fitness to perform your duties as a teacher in this School District. You are to

cooperate fully with the health professional, including, but not limited to, the signing of

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any necessary releases, so as to permit the health professional to fully evaluate and

report on your fitness to perform your duties.

4. You are to comply with these directives fully, promptly and in a collegial,

respectful, courteous and professional manner and to sustain that compliance for the

remainder of your employment in this School District.”

¶9 In response to this memo, Goral sent Yonke and the Board an email with the subject line,

“Warning,” in which he accused everyone involved of criminal conduct and abuse of authority.

Goral further stated that “the potential for prison time is staggering.” Yonke informed Goral

that this email was another example of the behavior he had been directed to cease. The notice

to remedy was later revised to include the communications with the Board within the scope of

its directives.

¶ 10 The Board adopted the notice to remedy on July 18, 2011. The notice states that Goral’s

“failure to comply with the directives *** even to a minor degree, will most likely result in

further disciplinary action, including *** suspension without pay and dismissal as a tenured

teacher.”

¶ 11 On July 26, 2011, in accordance with the notice to remedy, Yonke directed Goral to attend

a mental health fitness-for-duty exam. Yonke informed Goral that an appointment had been

scheduled with Dr. Marie-Claude Rigaud, a psychiatrist, for August 10. Yonke directed Goral

to contact her no later than August 1 to confirm his attendance at the appointment. Attached to

the memo was a release that Yonke directed Goral to sign. The release authorized Dr. Rigaud

“to share the results of her examination with, and make a report to the Board.”

¶ 12 Between July 26 and August 10, Goral, despite repeated inquiries from Yonke, refused to

confirm his attendance at the exam. Prior to August 10, Yonke informed Goral that if he failed

to attend the exam, she would recommend to the Board that he be suspended and that his

employment be terminated. Yonke also informed Goral that the District would incur a

significant cancellation fee if he failed to attend the exam. Ultimately, Goral failed to attend the

exam and the District incurred a $1,000 cancellation fee.

¶ 13 The Board adopted a resolution dismissing Goral as a tenured teacher at its August 22,

2011, meeting. On September 8, Goral requested a hearing to challenge his dismissal. After an

evidentiary hearing held on February 16-17, 2012, the hearing officer, on June 11, 2012, issued

a decision recommending to the Board that Goral’s termination be upheld. The hearing officer

found that Goral’s postnotice communications with his supervisors and the Board as well as

his refusal to attend the fitness-for-duty exam were blatant violations of the notice to remedy.

¶ 14 On July 16, 2012, the Board adopted a resolution dismissing Goral and incorporating the

hearing officer’s findings. Goral filed a petition for administrative review, and on February 6,

2013, the circuit court, after holding an extensive hearing on the factual and legal issues

presented, affirmed the Board’s decision. Goral timely appealed.

¶ 15 ANALYSIS

¶ 16 The District first contends that Goral has waived issues regarding the Board’s alleged

violation of the Act by failing to raise them at the administrative level. See Chicago Teachers

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Union, Local 1 v. Chicago School Reform Board of Trustees, 338 Ill. App. 3d 90, 103 (2003)

(“For purposes of administrative review, a party waives review of arguments not raised before

the administrative agency.”). Although during the administrative proceedings, Goral claimed

that the aspect of the notice to remedy requiring him to attend a psychiatric fitness-for-duty

exam was “illegal,” he never specifically raised arguments regarding any violation of the Act.

However, the application of the Act was briefed by the parties and resolved by the circuit court.

Further, the application of the Act to the Board’s notice to remedy presents a question of law,

which we review de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d

191, 205 (1998). Consequently Goral’s failure to raise issues regarding the Act’s application at

the administrative level does not impair our ability to resolve them on appeal. Given that

waiver is a limitation on the parties and not the court (Halpin v. Schultz, 234 Ill. 2d 381, 390

(2009)), we elect to address the issues regarding the Act’s application that Goral raises on

appeal, with one exception discussed below.

¶ 17 Under the Act, “any record kept by a therapist or by an agency in the course of providing

mental health or developmental disabilities service to a recipient concerning the recipient and

the services provided” is confidential. 740 ILCS 110/2 (West 2010). The Act defines a

“recipient” as “a person who is receiving or has received mental health *** services”; a

“therapist” is, in turn, a “psychiatrist, physician, psychologist, social worker, or nurse

providing mental health *** services.” Id. “Mental health services” include, but are not limited

to “examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare,

habilitation or rehabilitation.” Id.

¶ 18 Goral contends that the Act’s provisions applied to the Board’s directive that he attend a

fitness-for-duty exam and that, under section 10(a)(4) of the Act (740 ILCS 110/10(a)(4)

(West 2010)), the Board was required to obtain a court order before requiring him to attend and

authorize disclosure of the results of the exam. Essentially, Goral contends that anytime an

employee is required to submit to a fitness-for-duty exam entailing an assessment of the

employee’s mental health, the Act requires the employer to obtain a court order in advance of

the exam authorizing disclosure of the results of the exam, despite the absence of any such

requirement in the Code.

¶ 19 The issues raised by Goral under the Act are, at bottom, focused on release of the results of

the fitness-for-duty exam and not on the District’s authority to require him to submit to the

exam. As the Board correctly points out, Goral was not terminated for failing to authorize the

release of records relating to the fitness-for-duty exam, but for refusing to attend the exam and

for other conduct the hearing officer determined was insubordinate. Thus, the Board contends

that Goral’s arguments regarding the form of the release attached to the notice to remedy are

not properly before us. We agree.

¶ 20 Had Goral attended the exam and raised an issue regarding the scope of the release and the

information to which the District was entitled, we would have a concrete context in which to

evaluate such a claim. But having failed to attend the exam, Goral’s argument regarding the

form of the release that accompanied the notice to remedy is clearly an after-the-fact

justification for his refusal to participate in the exam. The record does not reveal that Goral

ever informed the District that he would attend the exam if the form of release was modified.

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On appeal Goral concedes that the District could properly require him to participate in a

fitness-for-duty exam and that, even under Goral’s reading of the Act, the District could also

properly obtain, at a minimum, the ultimate fitness recommendation following the exam

without implicating any concerns under the Act. Under these circumstances, we will not permit

Goral to raise here issues regarding the form of the release that could have been addressed had

Goral attended the exam and raised these issues at the administrative level. Thus, we find that

Goral has forfeited arguments, including his estoppel argument, relating to the form of the

release and we will not consider them.

¶ 21 The issue remains, however, whether the Act applies to fitness-for-duty exams in which an

employee’s mental health is evaluated. Goral cites Sangirardi v. Village of Stickney, 342 Ill.

App. 3d 1 (2003), in support of his contention that the Act applies in this context. In

Sangirardi, a police officer submitted to a fitness-for-duty exam, but refused to authorize

release of the results of the exam, citing the provisions of the Act. Id. at 5. The Sangirardi court

found “no merit” in the police officer’s contention that he could refuse, based on the Act’s

provisions, to release the results of his fitness-for-duty exam to the police chief. Id. at 14-15.

Mindful of the Act’s “strong statement” regarding the “importance of keeping mental health

records confidential,” this court concluded that a directive from a superior to disclose the

results of a fitness-for-duty exam did not compel the release of the police officer’s mental

health records within the meaning of the Act. Id. at 16. Although Goral recognizes that the

fitness-for-duty assessment itself may be disclosed, he contends that Sangirardi stands for the

broader proposition that the Act applies to records beyond the actual fitness assessment

generated in connection with fitness-for-duty evaluations.

¶ 22 In a related context, the Illinois Supreme Court in Johnston v. Weil, 241 Ill. 2d 169, 185

(2011), determined that no violation of the Act occurred when a court-appointed psychiatrist’s

report prepared at the direction of the trial court in a child custody dispute was disclosed to

other parties. The certified question addressed in Johnston considered whether a report

prepared pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act

(750 ILCS 5/604(b) (West 2006)), authorizing a trial court to “seek the advice of professional

personnel” in child custody matters, constituted confidential information within the meaning

of the Act. Weil, 241 Ill. 2d at 171, 176. The subject of the report contended that when the

professional consulted is a psychiatrist, the Act required that the report remain confidential. Id.

at 172.

¶ 23 Considering the plain language of the Act, the supreme court observed that its purpose was

to “ ‘preserve the confidentiality of the records and communications of persons who are

receiving [and] who have received mental-health services’ ” (id. at 182 (quoting Novak v.

Rathnam, 106 Ill. 2d 478, 483 (1985))), and that it “ ‘only applies to situations in which the

patient is seeking treatment for a mental health condition’ ” (id. at 183 (quoting House v.

SwedishAmerican Hospital, 206 Ill. App. 3d 437, 446 (1990))). The court concluded that the

court-appointed psychiatrist “was not retained as a therapist to treat plaintiff[ ],” but, rather,

was an independent professional “whose sole function was to make an evaluation for the

circuit court.” Id. at 183-84. Because the psychiatrist and plaintiff “were not engaged in a

therapeutic relationship,” the court found that the Act did not apply. Id. at 184.

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¶ 24 Johnston controls the resolution of Goral’s contentions in this case. Goral and Dr. Rigaud

were clearly not engaged in a therapeutic relationship within the ambit of the Act. Goral was

referred to Dr. Rigaud by the District and Dr. Rigaud was retained, not by Goral, but by the

District, specifically for the purpose of evaluating Goral’s mental health as it related to his

fitness for continued employment. Having acknowledged the District’s right to require him to

undergo a fitness-for-duty psychiatric exam, it follows that the District was entitled to also

require Goral to disclose the results of that exam and, as Johnston concluded, the Act was not

implicated by that disclosure. Because we conclude that the results of Goral’s fitness-for-duty

exam were not covered by the Act, we need not address the alternative bases raised by the

Board under the Act for rejecting Goral’s contentions.

¶ 25 Goral also contends that the Board failed to timely schedule a hearing following his

challenge to the proposed termination. At the time the Board adopted the resolution

authorizing Goral’s termination on August 22, 2011, section 24-12 of the Code required that if

a teacher requested a hearing on a proposed dismissal, “the board shall schedule a hearing on

those charges before a disinterested hearing officer no less than 15 nor more than 30 days after

enactment of the motion.” 105 ILCS 5/24-12 (West 2010). Goral contends that because his

hearing, ultimately held in February 2012, was not scheduled within the foregoing time limits,

the Board lost jurisdiction to terminate him. Effective June 13, 2011, the Code was amended to

remove the foregoing time limitations for all dismissals “instituted” after September 1, 2011.

Pub. Act 97-8 (eff. June 13, 2011); 105 ILCS 5/24-12(d)(11) (West 2012).

¶ 26 The Board first contends that it is the amended version of the Code that applies to the

hearing conducted in Goral’s case and, therefore, his timeliness argument is without merit. The

Board reasons that Goral’s dismissal was not “instituted” until he demanded a hearing and

because Goral’s demand for a hearing was not requested until September 8, 2011, the amended

provisions of the Code apply. We disagree.

¶ 27 A teacher’s dismissal is not “instituted” by the teacher’s demand for a hearing; it is

instituted by the action of the Board in approving a resolution calling for the teacher’s

dismissal. The Board’s resolution is the mechanism under the Code for setting in motion the

procedures that ultimately culminate in a determination as to whether the disciplinary action

proposed is warranted. See Board of Education of Community Consolidated School District

No. 54 v. Spangler, 328 Ill. App. 3d 747, 753 (2002) (“[w]hen the board adopts charges to

dismiss a teacher, it ‘sets the dismissal process in motion’ ” (quoting Combs v. Board of

Education of Avon Center School District No. 47, 147 Ill. App. 3d 1092, 1097 (1986))). Thus,

because Goral’s dismissal was instituted on August 22, 2011, we conclude section 24-12’s

pre-amendment time limitations apply.

¶ 28 The Board next contends that even if the time limitations in section 24-12 apply, they were

substantially complied with under the circumstances presented here. This issue, which asks us

to determine the legal effect of a given set of facts, presents a mixed question of law and fact,

which we review under the clearly erroneous standard. AFM Messenger Service, Inc. v.

Department of Employment Security, 198 Ill. 2d 380, 391 (2001) (citing City of Belvidere, 181

Ill. 2d at 205). An agency’s determination on a mixed question of fact and law will be

overturned only if it is “clearly erroneous.” Id. A determination is clearly erroneous if, after

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reviewing the record, the court is left with the “definite and firm conviction” that the agency

made a mistake. Id. at 393.

¶ 29 Here, the hearing officer concluded that in a draft bill of particulars delivered to Goral on

August 18, 2011, Yonke scheduled a hearing on Goral’s dismissal for September 20, 2011, or

29 days after the August 22, 2011, resolution by the Board. As Goral points out, it is the

District’s obligation to schedule a hearing under section 24-12. There is no evidence in the

record that the parties did not intend to comply with the originally scheduled date nor is there

any requirement in the Code that a hearing date be included in the final resolution adopted by

the Board. See 23 Ill. Adm. Code 51.30, amended at 29 Ill. Reg. 10108, 10113 (eff. June 30,

2005) (providing that “[a] motion approved by a board pursuant to Section 24-12 of the School

Code *** may include a scheduled date for a hearing” (emphasis added)). Therefore, we

cannot say that the hearing officer’s determination that there was “substantial compliance”

with section 24-12’s time requirements for scheduling a hearing is clearly erroneous.

¶ 30 Furthermore, Goral did not timely object to the delay in scheduling the hearing. Although it

would have been apparent by the end of September that the 30-day window for scheduling a

hearing had passed, Goral first raised an objection to the timeliness of the hearing in a January

27, 2012, letter to the hearing officer. Between September 2011 and January 27, 2012, Goral

participated without objection in the selection of a hearing officer and the prehearing process.

Our supreme court has held that a party may waive an objection to the timeliness of a hearing

scheduled under section 24-12. Grissom v. Board of Education of Buckley-Loda Community

School District No. 8, 75 Ill. 2d 314, 324 (1979). Moreover, because the pre-amendment time

limitations in section 24-12 are not jurisdictional, a failure to adhere to the statutory timeline

did not, in any event, divest the Board of jurisdiction. See Watts v. Board of Education, School

District No. 189, 125 Ill. App. 3d 532, 539-40 (1984); Rolando v. School Directors of District

No. 125, 44 Ill. App. 3d 658, 663 (1976). For these reasons, we reject the timeliness of Goral’s

hearing as a basis for reversal.

¶ 31 Goral claims error in the hearing officer’s reliance on his email communications following

the notice to remedy on the grounds that those communications were not identified in the bill

of particulars and, even if they could be considered, the hearing officer’s conclusion that they

violated the notice to remedy is contrary to the manifest weight of the evidence. The record

reveals that Goral did not object to evidence of his post-notice to remedy emails during the

administrative hearing, nor did he raise the issue of the alleged “new charge” in his complaint

for administrative review. In his complaint in the circuit court, Goral only raised the issue of

whether the hearing officer’s findings in this regard were contrary to the manifest weight of the

evidence. Therefore, we conclude that Goral’s claim that a “new charge” was raised in his

administrative hearing has been waived. Lehmann v. Department of Children & Family

Services, 342 Ill. App. 3d 1069, 1078 (2003); North Avenue Properties, LLC v. Zoning Board

of Appeals, 312 Ill. App. 3d 182, 185 (2000).

¶ 32 Moreover, Goral’s emails following the notice to remedy were a continuation of the pattern

of insubordination that prompted the notice to remedy in the first place. In response to an email

from Yonke on August 8, 2011, advising Goral that the time of his appointment with Dr.

Rigaud had been changed and to contact her if he had any questions, Goral wrote: “Yes, I have

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two questions actually. Do I have the right in this school to be treated justly under the law and

under Board Policy? Under the law and under Board Policy, do I have a right to be treated

equally to those who have formal authority over me at work?” Goral also informed Yonke in

another email the same day that the Board actions were “not authoritative.” Finally, on August

17, 2011, Goral wrote to the Board, which had upheld his 5-day suspension, and informed

them: “Your suspension of me is a violation of the law ***. I expect you to revoke the

suspension in writing, by certified mail, by Monday, August 22 at 7:30 a.m., which is the

normal time I leave for work ***.”

¶ 33 Between issuance of the notice to remedy on July 18, 2011, and the administrative hearing,

Goral was advised that the tenor of his emails was deemed violative of the notice to remedy’s

directive that he interact with his supervisors in a “collaborative, professional, respectful and

courteous manner.” In the notice to remedy Goral was also advised that his failure to comply

with its directives, “even to a minor degree,” could result in his termination. Consequently,

Goral was “fairly apprised” of the deficiencies that the Board believed warranted his

termination (see Wade v. Granite City Community Unit School District, No. 9, 71 Ill. App. 2d

34, 36 (1966)), and he cannot claim surprise that the subject of his post-notice to remedy

emails was addressed at his administrative hearing. Nor is the hearing officer’s determination

that those communications violated the notice to remedy contrary to the manifest weight of the

evidence.

¶ 34 Finally, wholly apart from the post-notice to remedy emails, Goral’s refusal to attend the

fitness-for-duty exam was clearly insubordinate and provides an independent basis, standing

alone, for his termination. For these reasons, we conclude that the Board’s decision to

terminate Goral must be affirmed.

¶ 35 Affirmed.

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