Allen v. Board of Trustees of Community College District 508

FOURTH DIVISION

DECEMBER 26, 1996

1--93--3108

EDWARD ALLEN, SIMEON T. ) Appeal from

BAMGBAIYE, ELMER BUSCH, ) the Circuit Court

JEWEL McLAURIN, CHARLES E. ) of Cook County

WALTON, and ROBIN E. )

WASHINGTON, JR., )

)

Plaintiffs-Appellants, )

)

v. )

)

THE BOARD OF TRUSTEES OF )

COMMUNITY COLLEGE DISTRICT )

NO. 508; COOK COUNTY; )

REYNALDO GLOVER, and )

NELVIA BRADY, ) Honorable Edward

) C. Hofert, Judge

Defendants-Appellees. ) Presiding.

JUSTICE CERDA delivered the opinion of the court:

Plaintiffs, Edward Allen, Simeon T. Bamgbaiye, Elmer Busch,

Jewel McLaurin, Charles E. Walton, and Robin E. Washington, Jr.,

appeal from the entry of summary judgment by the circuit court of

Cook County in favor of defendants, the Board of Trustees of

Community College District No. 508; Reynaldo Glover, chairman of

the Board; Nelvia Brady, chancellor of the City Colleges of

Chicago; and Cook County. Plaintiffs argue that their

resignations as tenured city-college teachers were involuntary

and that they were not afforded due process. We affirm.

I. Facts

Plaintiffs resigned after charges were made that they

awarded grades to students who were registered but who never

attended any classes. Plaintiffs' complaint alleged the

violation of their constitutional rights, including wrongful

discharge in violation of due process.

The following facts were established upon defendants filing

a motion for summary judgment. In 1988, defendants received a

letter from a Malcolm X College student charging that an

instructor attempted to extort money from students. Defendants

investigated whether instructors were properly adhering to the

attendance and grading procedures; instructors were required to

report which students were not in attendance. The report of the

investigation revealed that some of the instructors, including

three of the plaintiffs, were suspected of not reporting students

who did not attend classes and were also awarding grades to them.

Phantom students were enrolled in classes for the 1989 spring

semester but never attended class. The college administrators

approved the plan to enroll persons who agreed they would never

attend classes at this college.

Of the 24 faculty teachers who had phantom students enrolled

in their classes, 16 truthfully reported students not attending

classes while all six plaintiffs awarded passing grades to the

phantom students. If an instructor does not have a sufficient

number of students to teach a class, the class is closed and the

instructor is not paid for teaching that class.

On March 28, 1989, plaintiffs were served with written

notice that the chancellor was considering a recommendation that

they be dismissed for cause. The written notice advised

plaintiffs that an informal hearing would be held on March 31,

1989. The proposed charges detailed violations of school policy,

including plaintiffs' certifying the attendance of the phantom

students and giving them midterm grades.

The chancellor directed that the findings about plaintiffs'

conduct be reported to the United States Attorney. Defendants'

representatives told plaintiffs' union representatives that

plaintiffs faced indictments and probable convictions under

federal law; that, if convicted, plaintiffs would forfeit all

their pension rights; and that plaintiffs should be told to give

up their right to a hearing on the charges, resign, and accept

voluntary retirement, which defendants were willing to extend in

exchange for prompt resignation and retirement. Dr. Judge

Watkins, Jr., vice president of the Cook County College Teachers

Union, repeated this information from defendants'

representatives. Plaintiffs contend that defendants requested

federal criminal action although defendants knew that plaintiffs

did not commit any federal crimes because defendants were careful

not to seek any federal funding based on the attendance of the

sham students. Plaintiffs did not talk to defendants or to any

member of the board of trustees of the college.

The union passed a resolution agreeing to provide plaintiffs

legal representation for "due process purposes" only. Watkins

advised plaintiffs that they should seek criminal attorneys.

Watkins contacted a union attorney, Gilbert Feldman, who met with

each plaintiff. Plaintiffs appeared at the scheduled hearings

with Feldman and asked for rescheduling until April 4, 1989. The

requests were granted.

On April 4, 1989, plaintiffs did not participate in the

hearings but instead submitted letters of resignation.

Plaintiffs contend that they resigned and retired as a result of

the threat of federal prosecution, discharge, and loss of

pensions.

The trial court granted defendants' motion for summary

judgment. After the trial court denied plaintiffs' motion for

reconsideration, plaintiffs filed a notice of appeal.

II. Discussion

Plaintiffs first argue on appeal that they had a

constitutional right not to be discharged without due process of

law and that their resignations were involuntary because

defendants, with intent to extort involuntary resignations,

knowingly made the deliberate misrepresentation that plaintiffs

violated criminal laws. Plaintiffs further argue that their due

process rights were violated because threats caused them to be

dismissed without a hearing. Defendants do not dispute that

plaintiffs were entitled to due process but argue that the

resignations were voluntary.

A motion for summary judgment is to be granted if "the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." 735 ILCS 5/2-1005 (West 1994). The

pleadings, depositions, admissions, and affidavits on file must

be construed against the movant and in favor of the opponent of

the motion. Jackson Jordan, Inc. v. Leydig, Voit & Mayer (1994),

158 Ill. 2d 240, 249, 633 N.E.2d 627. Summary judgment is a

drastic means of disposing of litigation, and so the right of the

moving party to obtain summary judgment must be clear and free of

doubt. Jackson, 158 Ill. 2d at 249. Where doubt exists as to

the right of summary judgment, the wiser judicial policy is to

permit resolution of the dispute by a trial. Jackson, 158 Ill.

2d at 249.

Duress is measured by an objective, and not a subjective,

test. Illinois ex rel. Schoepf v. Board of Education of Morton

High Schools, District 201, 606 F. Supp. 385, 390 (N.D. Ill.

1985). Duress is a condition where one is induced by a wrongful

act or threat of another to make a contract under circumstances

that deprive one of the exercise of free will. Enslen v. Village

of Lombard, 128 Ill. App. 3d 531, 533, 470 N.E.2d 1188 (1984). A

resignation that is given to avoid a dismissal that has at least

a prima facie disputed basis is not considered to be given under

duress. Enslen, 128 Ill. App. 3d at 533 (complaint was properly

dismissed under allegations that petitioner resigned under duress

in response to fire chief's threats to dismiss him for inhaling

nitrous oxide while on duty and to tell newspapers that

petitioner was alcoholic). A resignation can be voluntary if it

is submitted to avoid criminal prosecution. Pitt v. United

States, 420 F.2d 1028, 1032-33 (Ct. Cl. 1970).

There was evidence that the college issued written

directives to the faculty cautioning them that they must not

count persons as their students unless they actually attended

classes. Defendants had school records showing that plaintiffs

counted the phantom persons as their students even though the

persons never attended classes, and in addition, plaintiffs gave

the persons passing grades. Defendants therefore presented

sufficient evidence, which was not controverted, that they could

prove that they had lawful grounds to discharge plaintiffs.

Because defendants had a prima facie basis to discharge

plaintiffs, their resignations given to avoid dismissal cannot be

considered to have been given under duress. Enslen, 128 Ill.

App. 3d at 533.

Plaintiffs claim that the college board of trustees, its

chairman, and its chancellor falsely stated that plaintiffs'

midterm reports listing the names of sham students had

constituted federal crimes and that each plaintiff would suffer

conviction, discharge, and pension forfeiture. Plaintiffs claim

that because defendants did not request federal or state funds

for the sham students, defendants knew that plaintiffs could not

be convicted of any federal crimes. Plaintiffs claim that

because of material falsehood and threats of federal prosecution,

their resignations were extorted and their due process rights

were violated by defendants.

There is no evidence that defendants falsely held their

belief that plaintiffs might have committed crimes and that

defendants acted to deceive plaintiffs. Defendants had evidence

that plaintiffs were paid for teaching students who never

attended classes but nevertheless were given passing grades.

Robert Eygenhuysen stated in his affidavit that one of the

reasons plaintiffs gave grades to students who never attended

class was to enable plaintiffs to teach classes that would have

been closed because of the failure to meet the college's minimal

attendance standards. But for the false certification, the

instructors would not have received payment, and therefore they

committed a crime.

In addition, defendants had the prior investigation report,

which revealed the deceitful conduct on the part of several of

plaintiffs that preceded the plan to enroll phantom students.

The allegations of the prior report did involve the possible

misuse of government funds for teaching students who never

attended classes. Each instructor who falsified attendance and

grade records might have committed crimes for which they could

have been prosecuted. Defendants had a right to inform the

federal authorities of all the information they had gathered

regarding plaintiffs' misconduct. Defendants voiced their

opinion to the teachers' union representative that criminal

indictments and convictions of plaintiffs would be forthcoming.

Even if defendants' belief that federal crimes were committed was

incorrect, we hold that as a matter of law plaintiffs were not

coerced into resigning but voluntarily resigned. Defendants had

an indisputable basis for bringing dismissal proceedings, and

plaintiffs were given a choice between resigning or contesting

the charges.

In contrast to the employees in cases cited by plaintiffs

that involved misrepresentations as to employee rights (Scharf v.

Department of the Air Force, 710 F.2d 1572 (D.C. Cir. 1983);

Covington v. Department of Health and Human Services, 750 F.2d

937 (D.C. Cir. 1984)), it was unreasonable for plaintiffs to rely

on defendants' statements that plaintiffs violated criminal laws.

Plaintiffs instead should have obtained the advice of criminal

attorneys on whether their conduct possibly violated criminal

laws. Furthermore, whether plaintiffs' deceitful conduct was

criminal is not a matter of fact. We believe that the opinion

held by defendants regarding the deceitful conduct of defendants

cannot be considered a misrepresentation (Snelten v. Schmidt

Implement Co., 269 Ill. App. 3d 988, 996, 647 N.E.2d 1071 (1995)

(one element of fraudulent misrepresentation is a false statement

of material fact)).

Due process for a tenured public employee requires oral or

written notice of the charges, an explanation of the employer's

evidence, and an opportunity to present her side of the story.

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 84

L. Ed. 2d 494, 506, 105 S. Ct. 1487, 1495 (1985). The Loudermill

court pointed out the due process requirements in discharging a

tenured public employee:

"The essential requirements of due process,

and all that respondents seek or the Court of

Appeals required, are notice and an

opportunity to respond. The opportunity to

present reasons, either in person or in

writing, why proposed action should not be

taken is a fundamental due process

requirement. *** The tenured public employee

is entitled to oral or written notice of the

charges against him, an explanation of the

employer's evidence, and an opportunity to

present his side of the story. *** To

require more than this prior to termination

would intrude to an unwarranted extent on the

government's interest in quickly removing an

unsatisfactory employee." Loudermill, 470

U.S. at 546, 84 L. Ed. 2d at 506, 105 S. Ct.

at 1495.

Plaintiffs here received written notice that the chancellor

was considering a recommendation of dismissal. Plaintiffs also

received a copy of the proposed charges and a bill of particulars.

Plaintiffs were given the opportunity to respond at a

predetermination hearing. Instead of proceeding with the hearing,

plaintiffs chose to resign. As we have found that plaintiffs were

not coerced into giving up the right to respond to the charges at

the hearing, plaintiffs were not deprived of due process.

Under federal civil rights law, every "person who, under

color of any statute, ordinance, regulation, custom, or usage of

any State *** subjects *** any *** person *** to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured. 42

U.S.C.A.  1983 (West 1994). Governing bodies and local

officials sued in their official capacities can be sued directly

under section 1983 where the action that is alleged to be

unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted or

promulgated by those whose edicts or acts may fairly be said to

represent official policy. Monell v. New York City Department of

Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 638, 98 S.

Ct. 2018, 2037-38 (1978).

In their complaint plaintiffs allege they were injured

because of unconstitutional policies of defendants college and

its officials. Plaintiffs allege the facts that defendants

enrolled sham students in their classes; the defendants

threatened to discharge plaintiffs for giving grades to sham

students they counted as attending classes; they knew that the

college did not receive federal or state funds for these students

and that no federal crimes were committed; the acts of

defendants wrongfully extorted the resignations of plaintiffs;

and defendants communicated false charges to the United States

Attorney and made threats of conviction, discharge, and pension

forfeiture.

Plaintiffs had to allege facts, which if true, show that the

governmental entity deprived them of a constitutionally protected

right and that the deprivation was caused by a governmental

college policy or custom. Kentucky v. Graham, 473 U.S. 159, 166,

87 L. Ed. 2d 114, 122, 105 S. Ct. 3099, 3105 (1985). We find

that plaintiffs have not alleged, nor did they show proof of, the

existence of any custom or college policy or of a causal

connection between such policy or custom and constitutional

injuries. Nor do any of the facts alleged give rise to such a

claim. We find the federal claims to be factually and legally

deficient. See Leahy v. Board of Trustees of Community College

District No. 508, 912 F.2d 917, 922 (7th Cir. 1990) (in the

absence of an allegation of the existence of a municipal policy,

dismissal of section 1983 claim is justified). Defendants were

entitled to summary judgment.

The judgment of the trial court is affirmed.

Affirmed.

TULLY, P.J., and GREIMAN, J., concur.