Opposition Brief — Whitmore v. Board of Education of DeKalb Community School District No. 428

| No. 93-919 JAN 10 1994 |

Oreck (ey mie GORA

liane

In THE

Supreme Court of the United States

| OcTOBER TERM, 1993

LINDA WHITMORE,

Petitioner,

Vv.

BOARD OF EDUCATION OF DeKALB COMMUNITY

SCHOOL DISTRICT NO. 428, JOHN REY, President

of Board of Education School District No. 428,

Individually, BERNARD LOONEY, Principal, Individually,

DR. JACK DEERE, District Superintendent, Individually,

KEN KENNEDY, Assistant Principal, Individually, and

ROBERT WILLIAMS, Assistant Superintendent, Individually,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JamMES T. FERRINI

Counsel of Record

JamES O. NOLAN

D1ANE M. Baron

Susan CoNnDON

CLAUSEN MILLER GORMAN

CAFFREY & WITOUS, P.C.

10 South LaSalle Street

Chicago, Illinois 60603

(312) 1010

Joun M. Izzo

SCARIANO, KULA, ELLCH

& HIMES CHTD.

A i Om

i eights, Illinois 11

(708) 755-1900

Attorneys for Respondents

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QUESTION PRESENTED

—_

Whether a petition for writ of certiorari should be granted

to review a district court’s exercise of its discretion under

Federal Rule of Civil Procedure 60(bX6) in denying a mo-

tion seeking relief from a judgment on the ground that

the district court’s finding that the petitioner had no prop-

erty interest in continued employment was contrary to

a previous order which had been vacated.

il

TABLE OF CONTENTS

QUESTION PRESENTED ................... i

TABLE OF CONTENTS ..................... il

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED .............

STATEMENT OF THE CASE ...............

REASONS FOR DENIAL OF THE WRIT:

I.

THERE ARE NO SPECIAL OR IMPORTANT

REASONS TO REVIEW THE DECISION OF

THE COURT OF APPEALS THAT THE DIS-

TRICT COURT DID NOT ABUSE ITS DISCRE-

TION, UNDER THE CIRCUMSTANCES OF

THIS CASE, IN DENYING PETITIONER’S

MOTION UNDER FEDERAL RULE OF CIVIL

yee te: re rr 6

II.

THE JUDGMENTS BELOW DO NOT IMPAIR

FEDERAL OR STATE PUBLIC POLICY... 7

III.

THE ORDER OF THE DISTRICT COURT WAS

CORRECT AND PROPERLY AFFIRMED

BASED ON THE LACK OF EXCEPTIONAL

CIRCUMSTANCES TO WARRANT THE

GRANTING OF RELIEF UNDER FEDERAL

RULE OF CIVIL PROCEDURE 60(bX6) ..... 9

CONUS ANION oo ccicccnccacasscee eee 12

BPOUMUEE ooo ococinccke infra

ill

TABLE OF AUTHORITIES

Cases PAGE

Howard v. Board of Educ. of Freeport Sch. Dist.

No. 145, 160 Ill. App. 3d 309, 513 N.E.2d 545

MMT E5500 604 ko o.-5 05064. a0-ecoeesccecs 1]

Constitutional Provisions

U.S. Const. amends. I, IX .................... 2

U.S. Const. amend. XIV, §1 ................. 2

Statutes

a 2

OE 2

42 U.S.C. § 2000e-2(a) ........................ 2

Family and Medical Leave Act of 1993, 5 U.S.C.

ee os Wow oo ou bb on bkve cca, 7,8

Ill. Rev. Stat. ch. 122, para. 24-11 (1989) ......

Illinois School Code, 105 ILCS 5/1-25 (1992) ... ys

Rules

Se Re A es NPN ABs 6

eS Ae 4

Fed. R. Civ. P. 12(bX6) ................. 3, 4,9, 10, 11

UE I yO oo od adn o ess wdvcesencecne 4

ee es OD ncn snc c ccc nc ccccecece. passim

No. 93-919

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

LINDA WHITMORE,

Petitioner,

¥.

BOARD OF EDUCATION OF DeKALB COMMUNITY

SCHOOL DISTRICT NO. 428, JOHN REY, President

of Board of Education School District No. 428,

Individually, BERNARD LOONEY, Principal, Individually,

DR. JACK DEERE, District Superintendent, Individually,

KEN KENNEDY, Assistant Principal, Individually, and

ROBERT WILLIAMS, Assistant Superintendent, Individually,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents respectfully pray that this Honorable Court

deny the petition for writ of certiorari to review the judg-

ment and opinion of the United States Court of Appeals

for the Seventh Circuit entered on August 4, 1993. The

court’s unpublished opinion is set forth in the Appendix

to this brief (App. 7-12). The order affirming the district

court is reported in a Table of Decisions Without Pub-

lished Opinions at 1 F.3d 1245 (7th Cir. 1993).

ss

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This case involves application of Federal Rule of Civil

Procedure 60X(b). In addition, U.S. Const. amend XIV, § 1;

42 U.S.C. § 1983; and paragraph 24-11 of the Illinois School

Code, Ill. Rev. Stat. ch. 122, para. 24-11 (1989), recodified

as 105 ILCS 5/24-11 (1992), are involved in that the un-

derlying claim is predicated thereon. (App. 1-6)

Insofar as the petition cites constitutional provisions and

federal statutes relating to petitioner’s claims under the

First and Ninth Amendments to the United States Con-

stitution, 42 U.S.C. § 1985, and 42 U.S.C. § 2000e-2(a),

those claims have been abandoned and those provisions

are not involved in this case. (Pet. at 2-3)

STATEMENT OF THE CASE

The petition does not accurately reflect the case which

is before this court. As this case now stands, the sole

remaining claim at issue contends that petitioner had a

protectable property interest in continued employment—

commonly known as tenure—and that her dismissal by the

respondents without notice or a hearing denied her due

process. Petitioner did not perfect an appeal from the or-

der entering summary judgment in favor of the respon-

dents on all her claims, and limited her contentions in the

appeal from the denial of her motion for reconsideration

to her due process claim. Accordingly, petitioner’s equal

protection and Title VII claims are no longer at issue,

ee

= =

and the facts and circumstances regarding her pregnancy

or unmarried status are immaterial to the issue before

this Court concerning the denial of her motion under Fed-

eral Rule of Civil Procedure 60(bX6).

Petitioner's Employment History

Moreover, petitioner’s statement that she was never no-

tified of any deficiency in her performance prior to her

dismissal is incorrect. Petitioner was employed in 1987 by

the respondent, the Board of Education of DeKalb Com-

munity School District No. 428, as a probationary teacher,

and rehired—again on probationary status—for an addition-

al year. During her probationary period petitioner was

evaluated six times. The evaluations noted several defi-

ciencies regarding petitioner’s lack of enthusiasm, slow

pacing, and failure to motivate students. Those evalua-

tions and cited problems were reviewed and discussed

with petitioner in post-evaluation conferences. Petitioner’s

final performance rating in 1989 was the worst of all sec-

ond-year probationary teachers, and again noted deficien-

cies relating to lack of enthusiasm, slow pacing and failure

to motivate. On March 20, 1989, the respondent Board

of Education voted not to rehire six probationary teachers,

including the petitioner, and notified petitioner by letter

that her contract would not be renewed “because the per-

formance of your duties has failed to meet the district’s

expectations.”

The Proceedings And Rulings Below

Petitioner filed a multi-count complaint seeking damages

predicated upon the Board’s vote not to renew her teaching

contract. Respondents moved pursuant to Federal Rule of

Civil Procedure 12(bX6) to dismiss the due process claim

a en

on the basis that petitioner, as a probationary teacher,

had no property interest in continued employment under

Illinois law. On that issue the district court initially found

that the respondents did not provide petitioner with spe-

cific reasons for her termination as required by Illinois

law, and that petitioner therefore had tenure. Respondents

filed exceptions to those findings as premature on a mo-

tion pursuant to Federal Rule of Civil Procedure 12(b 6),

and asserted that they were entitled to present evidence

that petitioner’s performance evaluations provided the stat-

utorily-required notice of the reasons for petitioner’s dis-

missal. Accordingly, the district court struck its original

order and entered a modified order which deleted the find-

ings regarding the sufficiency of the termination notice

and petitioner’s tenure status. (Pet. App. at 42-71)

Subsequently petitioner and respondents moved for sum-

mary judgment pursuant to Federal Rule of Civil Proce-

dure 56 on the question whether petitioner had acquired

tenure, and thereby a protectable property interest. In

support of their motion the respondents submitted evi-

dence that the petitioner had received specific notice of

the reasons for her termination through her performance

evaluations. On March 19, 1992, the district court ruled

that the petitioner in fact had not acquired tenure, granted

summary judgment to respondents on all claims, and de-

nied petitioner’s cross-motion for partial summary judg-

ment. (Pet. App. at 72-98)

Petitioner did not appeal the summary judgment order

within 30 days under Federal Rule of Appellate Procedure

4(a). Instead, petitioner filed a “motion to reconsider” por-

tions of the summary judgment order pursuant to Fed-

eral Rule of Civil Procedure 60(b), particularly its finding

that she did not have tenure. On June 9, 1992, the district

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court denied the motion. Petitioner filed a notice of ap-

peal on June 17, 1992, from both the summary judgment

order and the order denying her motion under Federal

Rule of Civil Procedure 60(b). The Court of Appeals dis-

missed petitioner’s tardy appeal from the summary judg-

ment order for lack of jurisdiction, stating “{tJhis appeal

may proceed on review of the denial of plaintiff-appellant’s

Rule 60(b) motion only.” (App. 14)

With respect to petitioner’s motion under Rule 60(b),

the Court of Appeals considered only whether the district

court abused its discretion in denying the motion. (App.

10) The Court noted that the petitioner misconstrued the

issue before it and its limited scope of review:

“Whitmore fails to argue on appeal what she needs

to show: that the district court abused its discretion.

Instead, she appears to be challenging the district

court’s order granting summary judgment, presenting

her arguments as though this court were engaged in

de novo review of a question of law.” (App. 11)

The Court held that the district court neither committed

an error of law nor exceeded its permissible bounds of

judgment in denying petitioner’s motion, and therefore did

not abuse its discretion. (App. 10)

In addition the Court noted that petitioner’s argument

that the motion for reconsideration stated “exceptional cir-

cumstances” based on the fact that the judge who entered

summary judgment reached a “different conclusion” regard-

ing her tenure status than the district judge who presided

over the motion to dismiss, failed to meet the rigorous

standards for relief under Federal Rule of Civil Procedure

60(b), and was predicated on the mistaken belief that the

two judges were engaged in the same type of review.

(App. 11)

- =

REASONS FOR DENIAL OF THE WRIT

I

THERE ARE NO SPECIAL OR IMPORTANT REASONS

TO REVIEW THE DECISION OF THE COURT OF AP-

PEALS THAT THE DISTRICT COURT DID NOT ABUSE

ITS DISCRETION, UNDER THE CIRCUMSTANCES OF

THIS CASE, IN DENYING PETITIONER’S MOTION UN-

DER FEDERAL RULE OF CIVIL PROCEDURE 60(b)(6)

Petitioner seeks a writ of certiorari to the Court of Ap-

peals to review its opinion affirming the order of the district

court denying her motion, under Federal Rule of Civil

Procedure 60(bX6), to reconsider a prior order wherein it

found that petitioner did not have a property interest un-

der state law. The sole issue in the Court of Appeals was

whether the district court had abused its discretion in

denying that motion, wherein petitioner alleged that a

preceding presiding judge had entered—then vacated—a

contrary finding on the same issue. This case does not

present any special or important reasons to review its

judgment on that issue, and in any event the Court of

Appeals correctly held that-district court did not abuse

its discretion because the motion for reconsideration did

not demonstrate “exceptional circumstances” as required

by Rule 60(bX6).

Manifestly this case does not present any “special and

important reasons” for granting a writ of certioram as

described in Rule 10 of the rules of this Court, or other-

wise. There are no conflicting decisions of the courts of

appeals, and no conflict with any applicable decision of

this Court. The question whether the district court abused

its discretion under Rule 60(bX6), under the circumstances

of this case, involves no question of substantive law. The

Pa,

district court’s exercise of its discretion turned upon the

unique facts before it on the motion to reconsider. In es

sence the petition asks this court to conduct de novo re-

view of her motion for reconsideration, and to extend no

deference to the district court judge who reviewed the

evidence on the motions for summary judgment, and who

was in the best position to determine whether exceptional

circumstances existed which warrant relief from that judg-

ment. Moreover, to the extent that the petition argues

that summary judgment was erroneously granted to the

respondents, that order is not the subject of this appeal.

Il.

THE JUDGMENTS BELOW DO NOT IMPAIR FEDERAL

OR STATE PUBLIC POLICY

In an effort to create a special or important reason for

granting her petition, petitioner argues that certiorari should

be granted to uphold federal and state public policy em-

bodied in the Family and Medical Leave Act of 1993 (5

U.S.C. §§ 6381-6387) and the Illinois School Code (105

ILCS 5/1-25 (1992)).

As previously noted, the Court of Appeals’ review was

limited to determining whether the order denying the Rule

60(b) motion constituted an abuse of discretion. (App. 10)

Manifestly the limited scope of its holding that there was

no abuse of discretion does not, expressly or impliedly,

impair such statutory laws or their underlying public policy.

Petitioner’s public policy argument improperly focuses

on a ruling that was not before the Court of Appeals—

the finding in the underlying summary judgment order

that she lacked tenure under Illinois law. While that order

was not before the Court of Appeals, the record nonethe-

less refutes petitioner’s contention.

~

The district court demonstrated that it was fully cogni-

zant of applicable Illinois School Code provisions and case

authorities, and that the efficacy of petitioner’s claim turned

on whether she was given “‘specific reasons” for her dis-

missal. (Pet. App. at 82-86) Its conclusion that the circum-

stances of this case, viewed in their entirety, complied

with Illinois law, plainly turned on those facts. Since the

court analyzed those facts under the proper legal stan-

dard, its ruling does not impair the “‘balance’”’ established

by the state tenure laws.

Nor does the public policy embodied in the Family and

Medical Leave Act have any bearing on petitioner’s claim

that the procedures followed by the respondents in dis-

missing her were defective under Illinois law. Resolution

of that issue has nothing whatsoever to do with the Act’s

policy of protecting the employment security of employees

who take maternal or pregnancy leave. As the petitioner

has abandoned or waived all claims that she was discrimi-

nated against on account of her pregnancy, she cannot in-

voke public policy regarding pregnancy leave as a ground

for granting a writ of certiorari in this case.

Moreover, even if petitioner had preserved her preg-

nancy-based claims, petitioner concedes the Family and

Medical Leave Act of 1993 would have no bearing on her

challenge to the Board’s decision in 1989 not to renew

her teaching contract. In essence petitioner invites this

Court to issue a writ of certiorari so that it can issue

an advisory opinion to school districts on an issue that

does not—and could not—exist in this case.

~

Ill.

THE ORDER OF THE DISTRICT COURT WAS CORRECT

AND PROPERLY AFFIRMED BASED ON THE LACK OF

EXCEPTIONAL CIRCUMSTANCES TO WARRANT THE

GRANTING OF RELIEF UNDER FEDERAL RULE OF

CIVIL PROCEDURE 60(b)(6)

The petition should be denied for the additional reason

that the judgments below were manifestly correct as peti-

tioner’s motion under Federal Rule of Civil Procedure

60(bX6) set forth no “exceptional circumstances” which

warranted relief from the judgment. The motion sought

relief due to what the petitioner describes as “diametri-

cally opposite conclusions” on whether petitioner had ac-

quired tenure by two different judges who presided in

this case in the district court. (Pet. at 18) As the Court

of Appeals correctly noted, those grounds fail to sat-

isfy the rigorous grounds for relief under Rule 60(b).

(App. 10)

The first ruling was entered by the first district court

judge who presided over the respondents’ motion to dis-

miss the complaint pursuant to Federal Rule of Civil Pro-

cedure 12(bX6). Specifically relying on the allegations in

the complaint in support of petitioner’s tenure-based claim,

the court made an initial finding to the effect that respon-

dents did not provide sufficiently specific reasons for not

renewing petitioner’s contract, and that petitioner there-

fore had acquired tenure. (Pet. App. at 22)

Respondents filed exceptions to the finding that peti-

tioner was tenured as premature and inappropriate on a

motion under Rule 12(bX6), and because they were en-

titled to present evidence that petitioner’s performance

evaluations provided actual notice of her teaching deficien-

cies and the reasons for her termination. Based thereon

~_

the court modified its order and vacated the disputed find-

ing. (Pet. App. at 52)

Subsequently both petitioner and respondents moved for

summary judgment on the issue of whether petitioner had

tenure. Those motions were heard by a successor district

court judge, to whom this case had been reassigned. After

reviewing the stipulated facts, exhibits and evidence that

petitioner’s deficiencies were noted in her performance

evaluations, that petitioner was repeatedly told of prob-

lems that needed to be corrected, and that her final per-

formance rating was the worst of all final-year probationary

teachers, the court found, “based on the prior evaluations

of [petitioner]’’ and the actual notice of deficiencies in those

evaluations, that the respondents had dismissed petitioner

in accordance with Illinois law and no tenure was conferred.

(Pet. App. at 84-85)

Respondents respectfully submit that petitioner’s argu-

ment that the two judges were engaged in the same stan-

dard of review and had reviewed the same facts (Pet. at

17-18) is contrary to law and the record, and is refuted

by the orders. The Court of Appeals aptly summarized

the fallacy of petitioner’s contention:

The two judges, first of all, were not engaged in the

same type of review. So it is not surprising that they

could have reached “different conclusions.” The first

judge considered the [respondents’] motion to dismiss

the complaint pursuant to Federal Rule of Civil Pro-

cedure 12(bX6). The second judge entertained the [re-

spondents’] motion for summary judgment. A court’s

consideration of whether a complaint states a legal

claim versus its determination whether the absence

of a material issue of fact entitles a party to judg-

ment easily can lead to different conclusions. Many a

complaint—this one, for instance—clears the hurdle of

a, on

a Rule 12(bX6) motion only to succumb to a motion

for summary judgment. If one judge happens to deny

the 12(bX6) motion and another grants summary judge-

ment, neither one nor the other need have reached

“the wrong result.” (App. 11)

Similarly, the argument at pages 19-23 of the petition

that the courts below failed to properly distinguish the

facts of this case from the facts of other cases which in-

volved claims of “tenure” again assumes, incorrectly, that

the summary judgment order is the subject of this ap-

peal. Petitioner’s argument that this case is distinguish-

able from Howard v. Board of Educ. of Freeport Sch.

Inst. No. 145, 160 Ill. App. 3d 309, 513 N.E.2d 545 (1987),

may have been pertinent had petitioner taken a direct

appeal from the summary judgment order. As previously

established, petitioner did not appeal that order. As noted

by the Court of Appeals, if petitioner wished to challenge

the district court’s application of law in entering summary

judgment, she should have filed a direct appeal in a timely

manner. (App. 12) Consequently, the aforementioned argu-

ment is immaterial to whether the district court abused

its discretion under Rule 60(bX6) and cannot support a

writ of certiorari to review a ruling on that distinct issue.

_ =

CONCLUSION

For the reasons stated, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

JAMES T. FERRINI

Counsel of Record

JAMES QO. NOLAN

DIANE M. Baron

SusAN CONDON

CLAUSEN MILLER GORMAN

CAFFREY & WITOUS, P.C.

10 South LaSalle Street

Chicago, Illinois 60603

(312) 855-1010

JoHN M. Izzo

SCARIANO, KULA, ELLCH

& HIMES CHTD.

1450 Aberdeen Street

Chicago Heights, Illinois 60411

(708) 755-1900

Attorneys for Respondents

APPENDIX

CONTENTS OF APPENDIX

United States Constitution, Amendment XIV,

SIS (© sk eee a ee

United States Code, title 42, section 1983 (1981) ..

Illinois Revised Statutes, chapter 122, section 24-11

EE Sis Wow and een cet ekanweuesee ce inceeaee

Federal Rule of Civil Procedure 60(b).........

Decision of the United States Court of Appeals for

the Seventh Circuit, Whitmore v. Board of

Education of DeKalb Community School Dis-

trict No. 428, No. 92-2442 (7th Cir. Aug. 4,

| POPP eee ee rere T err TTT Terre ee:

Order of the United States Court of Appeals for

the Seventh Circuit, Whitmore v. Board of

Education of DeKalb Community School Dis-

trict No. 428, entered July 28, 1992........

App. 1

United States Constitution

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

United States Code — Title 42

$1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

persons within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper pro-

ceeding for redress. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the Dis-

trict of Columbia.

Illinois Revised Statutes

chapter 122, section 24-11

24-11. Boards of education—Boards of school inspec-

tors—Contractual continued service

$24.11. Boards of Education—Boards of School Inspec-

tors—Contractual continued service. As used in this and

the succeeding Sections of this Article, “teacher” means

any or all school district employees regularly required to

be certified under laws relating to the certification of

App. 2

teachers, “board” means board of directors, board of edu-

cation or board of school inspectors, as the case may be,

and “school term” means that portion of the school year,

July 1 to the following June 30, when school is in actual

session. This Section and Sections 24-12 through 24-16 of

this Article apply only to school districts having less than

500,000 inhabitants.

Any teacher who has been employed in any district as

a full-time teacher for a probationary period of 2 consecu-

tive school terms shall enter upon contractual continued

service unless given written notice of dismissal stating the

specific reason therefor, by certified mail, return receipt

requested by the employing board at least 60 days before

the end of such period. For the purpose of determining

contractual continued service, the first probationary year

shall be any full time employment from a date before

November 1 through the end of the school year. If, how-

ever, a teacher has not had one school term of full-time

teaching experience before the beginning of such proba-

tionary period, the employing board may at its option ex-

tend such probationary period for one additional school

term by giving the teacher written notice by certified

mail, return receipt requested at least 60 days before the

end of the second school term of the period of 2 consecu-

tive school terms referred to above. Such notice must

state the reasons for the one year extension and must

outline the corrective actions which the teacher should

take to satisfactorily complete probation.

Any full-time teacher who is completing the first year

of the probationary period described in the preceding

paragraph, or any teacher employed on a full-time basis

not later than January 1 of the school term, shall ~eceive

written notice from the employing board at least 60 days

before the end of any school term whether or not he will

be re-employed for the following school term. If the board

fails to give such notice, the employee shall be deemed

reemployed, and not later than the close of the then cur-

rent school term the board shall issue a regular contract

App. 3

to the employee as though the board had reemployed him

in the usual manner.

Contractual continued service shall continue in effect the

terms and provisions of the contract with the teacher dur-

ing the last school term of the probationary period, sub-

ject to this Act and the lawful regulations of the employ-

ing board. This Section and succeeding Sections do not

modify any existing power of the board except with re-

spect to the procedure of the discharge of a teacher and

reductions in salary as hereinafter provided. Contractual

continued service status shall not restrict the power of

the board to transfer a teacher to a position which the

teacher is qualified to fill or to make such salary adjust-

ments as it deems desirable, but unless reductions in

salary are uniform or based upon some reasonable classi-

fication, any teacher whose salary is reduced shall be en-

titled to a notice and a hearing as hereinafter provided

in the case of certain dismissals or removals.

The employment of any teacher in a program of a spe-

cial education joint agreement established under Sections

3-15.14, 10-22.31 or 10-22.31a shall be under this and suc-

ceeding Sections of this Article. For purposes of attain-

ing and maintaining contractual continued service and

computing length of continuing service as referred to in

this Section and Section 24-12, employment in a special

educational joint program shall be deemed a continuation

of all previous certificated employment of such teacher

for such joint agreement whether the employer of the

teacher was the joint agreement, the regional superinten-

dent, or one of the participating districts in the joint

agreement.

Any teacher employed after July 1, 1987 as a full-time

teacher in a program of a special education joint agree-

ment, whether the program is operated by the joint agree-

ment or a member district on behalf of the joint agree-

ment, for a probationary period of two consecutive years

shall enter upon contractual continued service in all of the

programs conducted by such joint agreement which the

App. 4

teacher is legally qualified to hold. In the event of a reduc-

tion in the number of programs or positions in the joint

agreement, the teacher on contractual continued service

shall be eligible for employment in the joint agreement

programs for which the teacher is legally qualified in

order of greater length of continuing service in the joint

agreement unless an alternative method of determining

the sequence of dismissal is established in a collective

bargaining agreement. In the event of the dissolution of

a joint agreement, the teacher on contractual continued

service who is legally qualified shall be assigned to any

comparable position in a member district currently held

by a teacher who has not entered upon contractual con-

tinued service or held by a teacher who has entered upon

contractual continued service with shorter length of con-

tractual continued service.

The governing board of the joint agreement, or the ad-

ministrative district, if so authorized by the articles of

agreement of the joint agreement, rather than the board

of education of a school district, may carry out employ-

ment and termination actions including dismissals under

this Section and Section 24-12.

For purposes of this and succeeding Sections of this Ar-

ticle, a program of a special educational joint agreement

shall be defined as instructional, consultative, supervisory,

administrative, diagnostic, and related services which are

managed by the special educational joint agreement de-

signed to service two or more districts which are mem-

bers of the joint agreement.

Each joint agreement shall be required to post by Feb-

ruary 1, a list of all its employees in order of length of

continuing service in the joint agreement, unless an alter-

native method of determining a sequence of dismissal is

established in an applicable collective bargaining agree-

ment.

The employment of any teacher in a special education

program authorized by Section 14-1.01 through 14-14.01,

App. 5

or a joint educational program established under Section

10-22.31a, shall be under this and the succeeding Sections

of this Article, and such employment shall be deemed a

continuation of the previous employment of such teacher

in any of the participating districts, regardless of the par-

ticipation of other districts in the program. Any teacher

employed as a full-time teacher in a special education pro-

gram prior to September 23, 1987 in which 2 or more

school districts participate for a probationary period of

2 consecutive years shall enter upon contractual continued

service in each of the participating districts subject to this

and the succeeding Sections of this Article, and in the

event of the termination of the program shall be eligible

for any vacant position in any such districts for which such

teacher is qualified.

Federal Rule of Civil Procedure 60

Relief from Judgment or Order

Subdivision (b)

(b) Mistakes; Inadvertence; Excusable Neglect; New-

ly Discovered Evidence; Fraud, etc. On motion and

upon such terms as are just, the court may relieve a party

or a party’s legal representative from a final judgment,

order, or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly dis-

covereu evidence which by due diligence could not have

been discovered in time to move for a new trial under

Rule 59(b); (3) fraud (whether heretofore denominated in-

trinsic or extrinsic), misrepresentation, or other miscon-

duct of an adverse party; (4) the judgment is void; (5) the

judgment has been satisfied, released, or discharged, or

a prior judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (6) any

other reason justifying relief from the operation of the

judgment. The motion shall be made within a reasonable

time, and for reasons (1), (2), and (3) not more than one

year after the judgment, order, or proceeding was entered

App. 6

or taken. A motion under this subdivision (b) does not

affect the finality of a judgment or suspend its operation.

This rule does not limit the power of a court to enter-

tain an independent action to relieve a party from a judg-

ment, order, or proceeding, or to grant relief to a defen-

dant not actually personally notified as provided in Title

28, U.S.C., § 1655, or to set aside a judgment for fraud

upon the court. Writs of coram nobis, coram vobis, audita

querela, and bills of review and bills in the nature of a

bill of review, are abolished, and the procedure for ob-

taining any relief from a judgment shall be by motion as

prescribed in these rules or by an independent action.

App. 7

[UNPUBLISHED ORDER Not To BE CitTEp

PER CIRCUIT RULE 53]

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Argued July 7, 1993

Decided August 4, 1993.

Before

Hon. JoHN L. Correy, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. JESSE E. EscHBACH, Senior Circuit Judge

LINDA WHITMORE, ae

Plaintiff-Appellant,

No. 92-2442 v.

BOARD OF EDUCATION OF DEKALB COMMUNITY

SCHOOL DISTRICT NO. 428, et al.,

Defendants-A ppellees.

Appea! from the United States District Court

for the Northern District of Illinois, Western Division.

No. 90 C 20143—Philip G. Reinhard, Judge.

ORDER

Linda Whitmore appeals from the district court’s denial

of her motion to reconsider under Federal Rule of Civil

Procedure 60. We affirm.

App. 8

I

Whitmore, a high school teacher, sued the DeKalb school

board and various school district officials after the board

voted not to renew her contract. She sought relief pur-

suant to 42 U.S.C. §§ 1983, 1985, 2000e-h, as well as under

state law for intentional infliction of emotional distress.

The district court granted in part and denied in part

the defendants’ motion under Federal Rule of Civil Pro-

cedure 12(bX6). Initially, the court found that Whitmore

had not received sufficiently specific reasons for her termi-

nation. Subsequently, however, the district court vacated

that order and deleted its finding that Whitmore had re-

ceived tenure under state law.

Another judge took over the case and granted the de-

fendants’ motion for summary judgment as to all of Whit-

more’s claims. She then filed a “motion to reconsider’”’

the summary judgment pursuant to Federal Rule of Civil

Procedure 60(b), but before the time for taking a direct

appeal had expired. The district court denied this motion

and Whitmore appealed.

II

A motion under Rule 60(b) seeks an extraordinary rem-

edy. Merit Insurance Co. v. Leatherby Insurance Co., 714

F.2d 673, 683 (7th Cir.), cert. denied, 464 U.S. 1009 (1983).

That is especially true under Rule 60(bX6). Although this

“catch-all provision’, id., authorizes the district court to

vacate its order or judgment for “any reason justifying

relief from the operation of the judgment’’, Rule 60(bX6)

is not as open-ended as its language or nickname suggest.

Relief is available only (1) if Rules 60(bX1) through (5) do

not apply; and (2) if the district court, in its sound discre-

tion, finds that equitable action is necessary to accomplish

App. 9

justice. Peacock v. Board of School Comrs., 721 F.2d 210,

214 (7th Cir. 1983) (per curiam). These conditions will ob-

tain only in “extraordinary circumstances that create a

substantial danger that the underlying judgment was un-

just.” Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir.

1986), vert. denied, 482 U.S. 905 (1987); C.K.S. Engineers,

Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1204-

05 (7th Cir. 1984) (“the general rule in this circuit is that

relief from a judgment under [Rlule 60(b) is an extraordi-

nary remedy and is granted only in exceptional cireum-

stances.’’). Cf. Pioneer Investment Services Co. v. Bruns-

wick Assocs. Ltd. Partnership, 113 S. Ct. 1489, 1497

(1993).

Our cases emphasize that Rule 60(b) is a substitute

neither for direct appeal nor for a motion under Rule 59.

In Parke-Chapley Construction Co. v. Cherrington, 865

F.2d 907 (7th Cir. 1989), for instance, Judge Cummings

explained the rationale for this limitation on Rule 60(b):

If plaintiff believed the district court was mistaken

as a matter of law in dismissing the original com-

plaint, he should have appealed . . . or he might have

filed a timely motion under FRCP 59 to vacate the

judgment of dismissal and for leave to amend his

complaint. . . . The policy behind such a reading of

FRCP 60(b) is clear; parties should not be allowed

to escape the consequences of their failure to file a

timely appeal by addressing questions of law to the

trial court for reconsideration. That is the function

of appellate courts. If allowed to raise the same ques-

tions in a FRCP 60(b) motion that would have been

raised in an appeal from the merits, a party would

be able to effect an indirect extension of the time

for appeal by appealing the FRCP 60(b) motion with-

in thirty days of its disposition.

Id. at 915 (quotations and citations omitted).

The function of Rule 60(b) necessarily narrows the scope

of this court’s review to a “most limited” consideration.

App. 10

Reinsurance Company of America, Inc. v. Administratia

de Stat, 902 F.2d 1275, 1277 (7th Cir. 1990). Regardless

of whether “relief from the judgment might have been

obtained had an appeal been taken”, Parke-Chapley Con-

struction Co., 865 F.2d at 915 (quotation and citation

omitted), the court may consider only whether the district

court abused its discretion.! In the absence of extraordi-

nary circumstances, reaching the merits of the underlying

judgment is not permissible. Lee v. River Forest, 936 F.2d

976, 979 (7th Cir. 1991). Brennan v. Midwestern United

Life Insurance Co., 450 F.2d 999, 1003 (7th Cir. 1971)

(court’s function in reviewing the denial of a Rule 60(b)

motion is “not to determine whether the court was sub-

stantively correct in entering the judgment from which

relief was sought but is limited to deciding whether the

judge abused his discretion . . .” in ruling that motion

failed to show sufficient grounds for relief) (citations omitted),

cert. denied, 450 U.S. 999 (1972).

Whitmore’s arguments in favor of her motion fail to

satisfy the rigorous standards of Rule 60(b). The district

court found that Whitmore’s motions contained no grounds

justifying relief under subsection (1) (mistake, inadvert-

ence, surprise, or excusable neglect), or under subsection

(2) (newly discovered evidence that could not have been

discovered by due diligence in time to move for a new

trial). Moreover, the district court judge concluded that

Whitmore was not entitled to relief under subsection (6).

In reaching this conclusion, the district court neither com-

mitted an error of law nor exceeded permissible bounds

of judgment.

1 A trial court abuses its discretion either by committing an error

of law, United States v. Barber, 881 F.2d 345, 349 (7th Cir. 1989),

cert. denied, 495 U.S. 922 (1990), or by exceeding the “permissi-

ble bounds of judgment.” American Hospital Supply Corp. v. Hos-

pital Products, Ltd., 780 F.2d 589, 594 (7th Cir. 1986).

App. 11

Whitmore fails to argue on appeal what she needs to

show: that the district court abused its discretion. Instead,

she appears to be challenging the district court’s order

granting summary judgment, presenting her arguments

as though this court were engaged in de novo review of

a question of law. Our review of the denial of a motion

under Rule 60(bX6) in certain circumstances will require

us to consider the merits underlying a summary judgment.

But Whitmore seems to think that there was a substantial

danger that this underlying judgment was unjust because

the judge who granted the summary judgment reached |

what her lawyer characterized at oral argument as a dif-

ferent conclusion than the first judge. There are at least

three things wrong with this description of events.

The two judges, first of all, were not engaged in the

same type of review. So it is not surprising that they

could have reached “different conclusions.” The first judge

considered the defendants’ motion to dismiss the complaint

pursuant to Federal Rule of Civil Procedure 12(bX6). The

second judge entertained the defendants’ motion for sum-

mary judgment. A court’s consideration of whether a com-

plaint states a legal claim versus its determination whether

the absence of a material issue of fact entitles a party

to judgment easily can lead to different conclusions. Many

a complaint—this one, for instance—clears the hurdle of

a Rule 12(bX6) motion only to succumb to a motion for

summary judgment. If one judge happens to deny the

12(bX6) motion and another grants summary judgment,

neither one nor the other need have reached “the wrong

result.”

But the judges here did not, as Whitmore alleges, reach

different legal conclusions. In granting in part and deny-

ing in part the motion under Rule 12(bX6), the first judge

initially found that Whitmore was not given sufficiently

App. 12

specific reasons for her termination—a requirement under

Illinois law. Accordingly, he found her to be tenured as

a matter of law. In response, the defendants filed excep-

tions to that ruling, arguing that they were entitled to

present evidence that Whitmore’s evaluations provided ac-

tual notice of her deficiencies. The district court subse-

quently struck its original order as premature and entered

an amended order that deleted the finding that Whitmore

had achieved tenure. That is how matters stood when the

second judge assumed control of the case. After consider-

ing the pleadings, Judge Reinhard granted summary judg-

ment to the defendants on all claims. His decision held

that under Illinois law the performance deficiencies noted

in Whitmore’s evaluations, in conjunction with written

notice, met the statutory requirements. Accordingly, she

was not tenured. This is the very same conclusion arrived

at by the first judge after he recognized that he had ruled

prematurely on the issue.

Third, even if Whitmore were correct that the two judges

reached opposite conclusions, we fail to see how there

would be a substantial danger that the last judgment

necessarily would be unjust.

Unlike many of the parties in cases we see involving

Rule 60(b), Whitmore was not attempting to evade the

time limits of direct appeal under Rule 4a). She filed her

motion under Rule 60(b) before the 30-day period for ap-

peal had expired. Since Whitmore in essence is seeking

to challenge the district court’s conclusions of law in enter-

ing summary judgment, she should have filed a direct ap-

peal in a timely manner. Rule 60(bX6) does not allow her

attorney to undo his strategic mistakes.

AFFIRMED.

App. 13

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 28, 1992.

Before

Hon. JOEL M. FLaum, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

LINDA WHITMORE, —P

Plaintiff-A ppellant,

No. 92-2442 V.

BOARD OF EDUCATION OF DEKALB COMMUNITY

SCHOOL DISTRICT NO. 428, JOHN REY, President,

Board of Education School District No. 428, individually,

BERNARD LOONEY, Principal, individually, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 90 C 20143—Philip G. Reinhard, Judge.

ORDER

On consideration of the “JURISDICTIONAL MEMORAN.

DUM” filed by plaintiff-appellant on July 10, 1992, and the

“RESPONSE TO PLAINTIFF’S JURISDICTIONAL MEMO.

RANDUM” filed by defendants-appellees on July 21, 1992,

IT IS ORDERED that this appeal is DISMISSED for lack

of jurisdiction as to the judgment entered on March 19,

App. 14

1992. Rule 4(a) of the Federal Rules of Appellate Proce-

dure requires that a notice of appeal in a civil case be

filed in the district court within 30 days of the entry of

the judgment appealed. In this case judgment was entered

on March 19, 1992, and the notice of appeal was filed on

June 17, 1992, 58 days late; plaintiffs motion to reconsider

did not affect the appeal period because a 60(b) motion

does not toll the time to appeal. See Fed. R. App. P.

4(aX4). The district court has not granted an extension of

the appeal period, see Rule 4(aX5), and this court is not

empowered to do so, see Fed. R. App. P. 26(b).

Appellant’s argument (in her responsive memorandum)

that her motion for leave to file a Rule 60(b) motion was

intended (and therefore should be construed) as a motion

to extend time to file a late appeal, see Fed. R. App. P.

4(aX5), is far-fetched. The motion requests no such relief.

Although appellant’s appeal is timely as to the denial

of her 60(b) motion, the appeal is dismissed to the extent

that appellant seeks review of the merits judgment. This

appeal may proceed on review of the denial of plaintiff-

appellant’s Rule 60(b) motion only.