Petition — Dusanek v. O'Donnell

Petitioner,

JOHN O'DONNELL, M.D., and the BOARD OF

EDUCATION OF THE CITY OF CHICAGO,

Respondents.

Eee Eee

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH OIROCUIT

Lawrence A. Poirrock

Wayne B. GiampretTro

Karur A. Koenie

134 North LaSalle Street

Suite 1100

a oe 60602

(312)

Attorneys for Petitioner

i

QUESTIONS PRESENTED

1. Whether a tenured public school teacher may be

forced to take an illness leave of absence for failing to

meet the medical standards of his employer without

being told any reasons for his failure to meet such

standards.

2. Whether the failure of a tenured public school

teacher to submit himself to a hearing for dismissal! for

cause from his employment bars him from commencing

suit in federal court for a denial of due process in forc-

ing him to take an illness leave of absence for reasons

which are not disclosed to him.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ‘

OPINIONS BELOW

JURISDICTION

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT:

I.

A Forced Iliness Leave Of Absence Is A Depr'-

vation Of Property

II.

Exhaustion Of Remedies Is Not Required ......

CONCLUSION

- APPENDIX

A—Judgment of the United States District Court

for the Northern District of Illinois, Eastern

Division, May 6, 1980

B—Opinion of the United States Court of Appeals

for the Seventh Circuit, April 26, 1982 .........

10

15

17

iv

TABLE OF AUTHORITIES

Cases

Austin v. Board of Education of Georgetown Com-

munity Unit School District No. 3, 562 F.2d 446,

453 (7th Cir. 1977)

Bell v. Burson, 402 U.S. 535, 539-42, 91 S.Ct. 1586

(1971) .

Board of Regents of State Colleges v. Roth, 408

U.S. 564, 574, 92 S.Ct. 2701, 2702 (1972) ..

Cleveland Board of Education: v. LaFleur, 414

U.S. 682, 94 S.Ct. 791 (1974)

Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976),

cert. den. 430 U.S. 960, 97 S.Ct. 1710 (1977) ...

Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct.

BE Oe CE titosescesessocqreensiintistinnrnecssecevsenccsseneen

Freitag v. Carter, 489 F.2d 1877, 1382 (7th Cir.

1973) .

Fuentes v. Shevin, 407 US. 67, 84, 92 S.Ct. 1983

(1972)

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123, 185, 71 S.Ct. 624, 655 ............00+.

Jose P. v. Ambach, 669 F.2d 865,-869 (2d Cir.

1982) .

Lombard v. Board of Education, 502 F.2d 631 (3d

Cir. 1974)

Mathews v. Eldridge, 424 U.S. 819, 96 S.Ct. 893

(1976) ...

Newman v. Board of Education of City School Dis-

trict of New .York, 594 F.2d 299, 305 (2d Cir.

1979) ......

Patsy v. Board of Regents of the State of Florida,

wee US. ....., 102 S.Ct. 2557 (1982) .

10, "16

$10-22.4 (1975) ....

§34-85 (1961)

won wm

. 8, 11, 12,

2833

S ae

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HD

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT

To: The Justices of the Supreme Court of the United States:

Petitioner, Bohumil J. Dusanek, respectfully prays

that a Writ of Certiorari issue to review the decision

and order of the United States Court of Appeals for the

Seventh Circuit, reversing the decision of the United

States District Court for the Northern District of IIli-

nois.

Petitioner, Bohumil J. Dusanek, is a tenured teacher

employed by the Board of Education of the City of Chi-

cago, Illinois. He was required to undergo a psychiatric

examination by a doctor employed by the Board. Sub-

sequent to the examination he was informed, without

explanation, that he did not meet the medical standards

> i ee

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of Education. He was informed that he

should take an illness leave of absence and that if he did

not, would

bring charges against him seeking

his dismissal for cause.

Petitioner placed himself on an illness leave of ab-

sence and filed suit in the United States District Court

for the Northern District of Illinois pursuant to 42

Cc

for Petitioner in the amount of $100,000.00 against

Respondents. The United States Court of Appeais for

the Seventh Circuit reversed, finding that since Peti-

tioner took the illness leave of absence and had not sub-

Petitioner’s Petition for Rehearing was denied.

OPINIONS BELOW

The United States District Court for the Northern

denying that Petition is attached hereto as Appendix C.

-s

JURISDICTION

The United States Court of Appeals for the Seventh

Circuit denied Petitioner's Petition for Rehearing on

June 28, 1982. The jurisdiction of this Court rests on 28

U.S.C. §$1254(1).

STATEMENT OF FACTS

Bohumil J. Dusanek began his employment as a

teacher with the Board of Education of the City of Chi-

cago in September, 1958. In 1961, he obtained a reguler

subsequently

obtained tenure pursuant to the Illinois School Code, Ch.

122, Ill. Rev. Stats. §34-85.

From September 1964, through March, 1977, Peti-

tioner was assigned to a teaching position at the Schurz

High School. For each of those thirteen years Petitioner

received “excellent” or “superior” ratings of his teaching

ability by the Principal based on the latter’s observa-

tions of his actual performance.

On March 2, 1977, Mr. Dusanek brought the name of

indies

Maloney directed Petitioner to summarize his observa-

tions in a memo, which he did.

By reviewing school records, Dr. Maloney determined

Laura Callan’s date of birth to have been in April, 1960,

making it unlikely that she had been at Schurz during

the time period Petitioner recalled. Dr. Maloney then

conducted an “investigation” of Mr. Dusanek’s behavior.

This investigation consisted only of canvassing members

of the school staff as to rumors about the Petitioner.

Two teachers, Mr. Preo and Mrs. Horan, each reported

an incident, both of which were alleged to have occurred

judg-

ment, there seems to exist any disability which

Respondent Dr. John O’Donnell is employed by the

Board of Education as a consulting psychiatrist. He con-

ducted psychiatric portions of health examinations or-

dered pursuant to Board Rule 44-4 by a ae

affects his efficient performance.

Poyies

ww

speak with Petitioner's orthopedic surgeon and psychi-

atrist, which Petitioner did. Prior to making the deter-

mination that Petitioner should be relieved of his teach-

ing duties and directed to take a leave of absence,

Dr. O’Donnell did not consult with Petitioner's psychia-

trist, Dr. Garth Smith.

Based solely on the above-described “examination”

and the history received from the Principal, Dr. O’Don-

nell concluded that Petitioner did not get along with the

Schurz Schoo! staff and could not develop healthy per-

sona! relationships with his students. Dr. O’Donnell at

no time actually observed Petitioner’s behavior in the

classroom, or in any context other than his office inter-

views. Dr. O’Donnell discussed Petitioner’s teaching per-

formance and professional demeanor with no one other

than the principal and Petitioner himself. Thereafter,

Petitioner was advised that he did not meet the medical

standards for teaching in the Chicago School system.

Petitioner immediately wrote a letter to Medical Direc-

tor Dr. Abrams, dated April 5, 1977, in which he re-

quested an opportunity to discuss the examination and

vented from teaching in the Chicago Public Schools

until such future time as he successfully passed a health

examination or conditions had changed.

Following Petitioner's second examination by Dr.

O’Donnell in July, 1977, Principe informed Petitioner by

be preferred by a vote of the majority of the Board of

Education, which then would appoint a committee of

three of its members to hold a hearing thereon. Believ-

caliinin

language of Board Rule 4-44 and Article 33 of the col-

lective bargaining agreement between the Board of

Education and the Chicago Teachers Union. Leaves of

absence are granted under this rule in periods of five

school-month blocks, to a maximum of twenty-five school

months. A teacher on an illness leave may terminate the

leave prior to the natural expiration of the five-month

period only by written request to and appreval of the

Department of Personnel. Upon return from a leave of a

duration in excess of five school-months, a teacher is re-

quired to pass a health examination performed by the

Board’s medical department. If he does not pass such

examination, the teacher may request an additional

medical opinion in the manner provided in Board Rule

4-19. Resort to the Rule 4-19 procedure which guaran-

tees an impartial medical opinion is available under

Rule 4-33 only to a teacher seeking reappointment after

the expiration of the initial five-month leave period.

Pursuant to Rule 4-33 and other contractual provi-

sions, certain benefits inure to a teacher while on an

approved illness leave of absence. The teacher is entitled

to the payment by his employer of the full premium cost

of insurance, individual or family insurance plans, (Art.

82); that portion of the leave for which sick pay is

received is not considered to be a break in service for

any purpose; the entire leave is not to be construed as a

break in service for seniority purposes; the teacher's

position is protected for the first five-month period;

after five months the position is declared vacant, but the

teacher retains entitlement to immediate reassignment

to a vacant position equal in rank upon return to active

service.

No extensions of leave are granted beyond a total of

twenty-five school months. At the end of that period a

teacher may request reappointment, which is condi-

tioned upon the successful passing of a health examina-

~——-

tion. Alternatively, a teacher may resign. If the teather

refuses to resign he is charged with being “absent with-

out leave”, is deemed to have abandoned his employ-

ment and to have surrendered all rights of tenure and is

subject to summary dismissal from the Board. (Rule 4-

41).

On October 27, 1977, Petiti ner filed suit in the United

States District Court for the Northern District of IIli-

nois, pursuant to 42 U.S.C. §1983 alleging that the Board,

through its employees, had deprived him of property in

his employment without due process of law. On May 6,

1980, after trial, the jury rendered a verdict in favor of

Petitioner against the Board and Dr. O’Donnell in the

sum of $100,000.00. Judgment was rendered on the ver-

dict, and Petitioner was subsequently granted attorneys

fees by the District Court.

On appeal, the United States Court of Appeals for the

Seventh Circuit reversed. While that Court did not find

that the verdict of the jury was against the manifest

weight of the evidence, it held that Petitioner had not

been denied property without due process. The crux of

the Court’s opinion was a finding “that it is not a depri-

vation of due process of law to be put to the option of

defending oneself in a proper dismissal hearing or vol-

untarily accepting a change in one’s job status, when the

state’s action in first initiating the medical investigation

is reasonable and in ful! compliance with the conditions

of the teacher’s tenure.” The Court specifically held that

requiring Petitioner to undergo a dismissal proceeding

was not a requirement that he exhaust administrative

remedies, but rather, that the State had made a pro-

cedural protection available to Petitioner which he had

refused to utilize.

It is this ruling which Petitioner requests this Court

to review.

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REASONS FOR GRANTING THE WRIT

A FORCED ILLNESS LEAVE OF ABSENCE IS A

DEPRIVATION OF PROPERTY.

The touchstone of due process is fundamental fairness.

Petitioner has been denied that basic fairness to which

all persons are entitled from governmental employers.

The jury in this case, pursuant to proper instructions, so

found. In direct contravention of this Court’s admoni-

tions, the United States Court of Appeals has set aside

that finding and verdict in Plaintiff's favor. The Court

of Appeals has held that the illusion of due process is

sufficient, even though its substance has been denied.

Last term this Court reaffirmed its unbroken series of

holdings, again reiterating that resort to the Courts for

redress of constitutional deprivations under 42 U.S.C.

§1983 is not to be conditioned upon exhaustion of admin-

istrative remedies. Patsy v. Board of Regents of the State

of Florida, ..... US. ....., 102 S.Ct. 2557 (1982). Despite

this reaffirmation of that long-established principle,

the Court of Appeals has attempted to evade that princi-

ple by a neat piece of legerdemain. Such an evasion

must not be countenanced by this Court if public em-

ployees are to retain their constitutional rights.

As is set forth more fully above, Petitioner is a

tenured teacher within the Chicago Public School sys-

tem. As such, he can be discharged from that employ-

ment only for “cause.” Ch. 122, Ill. Rev. Stats. §34-85.

Illinois law further declares that temporary medical

disability is a cause for discharge. Ch. 122, Ill. Rev.

a:

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that a teacher who is temporarily disabled due to illness

is entitled to take an illness leave of absence, in periods

of up to five months duration. Board of Education Rule

4-33. During that period of time, the teacher’s position

as an employee is protected, and certain fringe benefits

continue to be provided, most notable of which is medi-

cal insurance coverage.

The ruling of the Court of Appeals here, however,

decrees that where a teacher wishes to contest an

attempt by the Board of Education to force him into

taking such a leave of absence, he must relinquish those

substantial benefits by testing that leave under the

Tenure Dismissal Act. Ill. Rev. Stat. Ch. 122, §34-84

through 34-85. The Court of Appeals has held that the

Board properly forced Petitioner to make an election—

either take ean illness leave of absence, or submit himself

to dismissal from his position—with no standards what-

soever upon which to make such a serious decision.

Petitioner was notified that he was required to under-

go a complete medical examination. When he arrived at

the medical offices of the Board of Education, he was

given a perfunctory physical examination, after which

he was ushered into the presence of a psychiatrist. He

was not told why he was there. After a short interview

he was told to leave. Shortly thereafter he was informed

that he did not meet the “medical standards” of the

Board of Education. He was not told what those stand-

ards were. He was not told why he did not meet those

standards. In fact, no such standards exist, either in

writing or any other form. At best, those standards are

what the doctor at the time solely decides.

He was then informed that if he did not submit to an

ae Ua

choice: either acquiesce to an illness leave of absence

without pay, or face suspension from duty without pay

until charges and a hearing could be held. He chose the

option of taking an illnees leave of absence, and filing

this suit.

The jury found there was no reason for forcing Peti-

tioner to take an illness leave of absence—i.e., the accu-

sations against him were untrue. Yet, the Court of

Appeals holds that by not submitting himself to an

unrelated tenure dismissal hearing, he has forfeited his

right to be heard in the courts. In short, the Court of

Appeals would force Petitioner to give up certain statu-

tory and contractual rights and benefits in order to

obtain due process. Such an approach has been consis-

tently condemned.

The decision of the Court of Appeals here is contrary

to the spirit of the decisions of this Court, and the rul-

ings of every other Circuit Court which has considered

this issue. It holds that so long as the Board of Educa-

tion was prepared to give Petitioner some kind of hear-

ing, due process has been satisfied. But that is not the

holding of this Court. The kind of process which is due

depends upon the deprivation which is contemplated.

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976).

It is now well settled “that a te.nporary, nonfinal de-

privation of property is nonetheless a ‘deprivation’ in the

terms of the Fourteenth Amendment.” Fuentes v. Shevin,

407 U.S. 67, 84, 92 S.Ct. 1983 (1972). The State of IIli-

nois has recognized that temporary medical disability is

not a cause for termination. 122 Ill. Rev. Stats. §10-22.4.

In accord with that obviously correct policy, the Board

of Education has promulgated its rule 4-38 which al-

lows a teacher to seek a leave of absence, which must be

SG

ity of service is concerned . . . [and] shall not be con-

strued as a break in service for any purpose.” Board

of Education Rule 4-33. In addition, such a person

retains his tenure rights and continues to have his

medical benefits insurance in force during the leave

period as provided in the collective bargaining agree-

ment between the Board of Education, City of

and the Chicago Teachers Union, Article 32-1.1. Fur-

ther, such medical benefits would not be available to

Petitioner if he was suspended and charged with dismis-

sal under Chapter 122, Ill. Rev. Stats. §34-85.

It is well established that before such a leave may be ~

forced upon a person, due process is required. Cleveland

Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct.

791 (1974); Lombard v. Board of Education, 502 F.2d

631 (8d Cir. 1974). Before such a leave may be imposed,

notice and a hearing which is likely to establish the

validity of the deprivation is required. Bell v. Burson,

402 U.S. 535, 589-42, 91 S.Ct. 1586 (1971). No such

opportunity was presented to Petitioner before he was

required to decide whether to relinquish the rights at-

tendant to a medical leave or face a dismissal hearing

which might strip him of his career, tenure rights and

future economic and medical benefits.

It is fundamental that a person may not be required

to make an uniformed decision as to whether to relin-

quish a right. No system of justice can survive if it

comes to depend on its citizens’ forced abdication through

unawareness of their constitutional rights. Escobedo v.

State of Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1764

(1964). Notice of the reasons for a contemplated action is

the first step of due process. Board af Regents of State

Colleges v. Roth, 408 U.S. 564, 574, 92 §.Ct. 2701, 2707

(1972). Here, Petitioner was required to decide whether

to relinquish property rights which he would have on a

leave of absence status without any information whatso-

—14—

ever as to why he did not meet the medical standards of

the Board of Education, or what he would have to do in

order to bring himself into compliance. Obviously, no

one could make such a decision in an informed manner.

Requiring such an election is a violation of the funda-

mental precepts of due process. Freitag v. Carter, 489

F.2d 1877, 1382 (7th Cir. 1973).

Furthermore, the very decision that Petitioner was

mentally unqualified to meet the medical standards of

the Board of Education adversely impacted his liberty.

Newman v. Board of Education of City School District of

New York, 594 F.2d 299, 305 (2d Cir. 1979). Certainly

such an allegation would not only deprive Petitioner of

present government employment, but also of future

opportunity for employment there or elsewhere. Joint

Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123, 185, 71 S.Ct. 624, 655.

The refusal of the Board of Education to inform Peti-

tioner of any information which was the basis for the

determination of mental unfitness to teach is the kind of

egregious action against which the Constitution protects.

As was found in Newman v. Board of Education of City

School Districts of New York, supra, the failure to pro-

vide such vital information is a denial of rudimentary

fairness. 594 F.2d at 305. See also Freitag v. Carter,

supra, at 1382.

Clearly, the Court of Appeals has ignored this aspect

of the case. It has taken a limited view of the require-

ments of due process which does not comport with the

realities of the situation.

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Il.

EXHAUSTION OF REMEDIES IS NOT REQUIRED.

The Court of Appeals has turned the teachings of this

Court upside down, holding that Plaintiff is barred

from seeking relief from his constitutional deprivations

by not having first submitted to the state administrative

proceedings. Indeed, this opinion is in direct conflict

with an earlier holding by a different panel of the same

court in Austin v. Board of Georgetown Community Unit

School District No. 3, 562 F.2d 446, 453 (7th Cir. 1977),

where it was held that even had the Board of Education

strictly complied with the state procedural scheme, it

would be “totally irrelevant” to the citizen's constitu-

tional rights. See also Colaizzi v. Walker, 542 F.2d 969

(7th Cir. 1976), cert. den., 480 U.S. 960, 97 S.Ct. 1710

(1977).

As was said long ago by this Court:

“. .. It is no answer that the state has a law which

if enforced would give relief. The federal remedy

1983] is supplementary to the state remedy, and

e latter need not be first sought and refused

before the federal one is invoked.” Monroe v. Pape,

365 U.S. 167, 188, 81 S.Ct. 478, 482 (1961).

The opinion of the Court of Appeals in this case is

contrary to its own prior holdings, those of this Court

and of other Circuits. Other circuits have long held that

exhaustion of state remedies is not required if the inade-

quacy of the state administrative remedy is coextensive

with the merits of the plaintiff's constitutional claim.

Jose P. v. Ambach, 669 F.2d 865, 869 (2d Cir. 1982).

Here, Petitioner’s claim was indeed coextensive with his

attack upon the Board of Education's procedures. To

allow the merits of Petitioner’s claim to be controlled by

the decision upon the procedural aspect is to truly aliow

the tail to wag the dog. The search for justice and vindi-

=

cation of constitutional rights cannot become a procedur-

al game where one loses if he selects the “wrong” pro-

cedural posture in which to place his case.

The Court of Appeals here made no finding that the

verdict of the jury in this case was against the manifest

weight of the evidence, or was otherwise improper or

inappropriate. The jury's finding that Petitioner’s due

process rights were violated stands and is binding. Such

of Appeals has done to avoid this decision, is both inex-

plicable and impermissible.

To allow this decision to stand will be a retrenchment

*

is eT SS A ae ee ee

Pe

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CONCLUSION

For the foregoing reasons, Petitioner respectfully asks

this Honorable Court to grant its Writ directed to the

States Court of Appeals for the Seventh Circuit,

and upon doing so, to reverse the decision of that Court

and reinstate the judgment of the United States District

Court for the Northern District of Illinois in his favor.

E