256 F.3d 661 (7th Cir. 2001), 00-2522, Townsend v Vallas

Docket Nº:00-2522 & 00-2999
Citation:256 F.3d 661
Party Name:GARY TOWNSEND, Plaintiff-Appellee, and ALEX RILEY, Plaintiff-Appellee, Cross-Appellant, v. PAUL VALLAS and MARILYN F. JOHNSON, Defendants-Appellants, Cross-Appellees, and CHICAGO SCHOOL REFORM BOARD OF TRUSTEES, also known as BOARD OF EDUCATION OF THE CITY OF CHICAGO, a municipal corporation, Defendant, Cross-Appellee.
Case Date:July 09, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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256 F.3d 661 (7th Cir. 2001)

GARY TOWNSEND, Plaintiff-Appellee,


ALEX RILEY, Plaintiff-Appellee, Cross-Appellant,


PAUL VALLAS and MARILYN F. JOHNSON, Defendants-Appellants, Cross-Appellees,


CHICAGO SCHOOL REFORM BOARD OF TRUSTEES, also known as BOARD OF EDUCATION OF THE CITY OF CHICAGO, a municipal corporation, Defendant, Cross-Appellee.

Nos. 00-2522 & 00-2999

In the United States Court of Appeals, For the Seventh Circuit

July 9, 2001


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 8080--William T. Hart, Judge.

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[Copyrighted Material Omitted]

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Before FLAUM, Chief Judge, and POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Plaintiffs Gary Townsend and Alex Riley brought this action under 42 U.S.C. sec. 1983 ("Section 1983") to challenge certain employment actions taken after the drowning death of a student in a Chicago public school. Named as defendants were the Chicago School Reform Board of Trustees ("the Board") and two administrators who were sued in their individual capacities: Paul Vallas, the Board's Chief Executive Officer, and Marilyn Johnson, the General Counsel of the Board and the head of the Board's Law Department. The district court granted summary judgment to the defendants with respect to Mr. Riley's claim that he had been deprived of a liberty interest in his occupation without due process of law. The court denied summary judgment with respect to Mr. Townsend's claim that the defendants infringed his property right in a tenured teaching position without due process of law. The court further ruled that Mr. Vallas and Ms. Johnson were not protected by qualified immunity with respect to that claim. For the reasons set forth in the following opinion, we affirm the district court's grant of summary judgment to the defendants regarding Mr. Riley's claim. However, we reverse the judgment of the district court on the qualified immunity issue.



A. Facts

On April 14, 1998, a number of freshmen students at Chicago's Julian High School

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("Julian") participated in their seventh- period physical education class. During that month, the class was engaged in swimming instruction. Mr. Townsend, a tenured physical education instructor at Julian, taught the class; Mr. Riley, a part-time lifeguard and swimming coach at the school, was responsible for lifeguard duties during that class period.1 When class ended at 2:28 p.m., the students typically would have been dressed in their school attire and would have proceeded to their eighth-period classes.

On the next morning, April 15, 1998, the body of Lloyd Wilson, Jr., a student in that seventh-period class, was found at the bottom of the school's swimming pool. It was unclear how this tragic death had occurred. According to one theory, he had drowned during the swimming class while no one was watching. Another possibility was that Wilson left the pool with the other students at the end of class, but later returned to the pool and drowned at that time. Because of this uncertainty regarding the cause of Wilson's death, Ms. Johnson, acting on behalf of the Board, retained Martin Boyer Company ("Boyer") to investigate. The Chicago Police Department also began its own investigation into the accident.

On the same day that Wilson's body was discovered, the Board took action with regard to Mr. Townsend and Mr. Riley, the two members of the Julian staff who had a supervisory role in Wilson's seventh- period class. The Board told Mr. Townsend that he would be transferred to the Board's Central Office. This action was taken pursuant to a Board policy that calls for such a transfer, at least on a temporary basis, when a teacher's conduct is at issue in a situation implicating student safety. While at the Central Office, Mr. Townsend had minimal duties; he sat at a desk and occasionally made telephone calls or was asked to pack boxes for a move. Mr. Townsend did receive his full teacher's salary for the entirety of his transfer. However, he also had been assigned to coach fall, winter and spring extracurricular sports at Julian, coaching duties that provided him with some additional income.2 During the time that Mr. Townsend worked out of the Central Office, he did not receive that additional income from coaching. Unlike his teaching position, Mr. Townsend's coaching duties were not protected by tenure. Mr. Townsend remained at the Central Office until February 8, 1999, when he returned to his teaching position at Julian and resumed his coaching duties.3

The Board also took immediate action with respect to Mr. Riley on the same day that Wilson's body was discovered. Mr. Riley was told not to report to Julian for

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work until given further notice. At no point in the future was Mr. Riley contacted by the Board with instructions to return to work.

Nearly two weeks after Wilson's death, the Board received the investigative reports from both Boyer ("the Boyer report") and the Chicago Police Department ("the police report"); each contained the results of interviews with Julian faculty members and students. The Boyer report noted that its author was not able to interview Mr. Townsend because of Mr. Townsend's subsequent hospitalization after the drowning due to a stress-related condition. The Boyer report does indicate that its author spoke with Mr. Riley, who said that, after the swimming class, he had discovered a pile of clothes near the pool, which later were found to belong to Wilson.4 Mr. Riley then claimed to have brought the clothes to Mr. Townsend's attention, but explained that Mr. Townsend told him to leave them by the pool and that someone later would come to retrieve them. The Boyer report goes on to state that, of the students that its author interviewed, two girls reported seeing Wilson enter the locker room at the end of the swimming class, although many others could not remember seeing him at the class' end. Attached to the Boyer report are summaries of interviews with school security guards who claimed that Wilson was being bullied by another student around the time of his death and summaries of interviews with two students who related that Wilson was depressed and often spoke of killing himself. Lastly, the Boyer report contains summaries of interviews with a number of Julian faculty members, who indicated that they had entered the pool area after the swimming class was over on April 14 and looked in or around the pool, but saw no one there. Ultimately, the Boyer report concludes that, although the cause of Wilson's death may never be known, "[i]t seems the body was most likely in the pool [at the class' end] and no one looked with the degree of concern to see it." R.31, Ex.8 at 105. The report states that Mr. Riley, "if he is to be believed, did not see the body in the pool, and therefore did not perform his duties as expected" and that his failure to react with greater concern when finding the clothing was "not correct when only students were in the pool area, and if clothes were found then either a student is still in the area, or a student went to class without clothes." Id. at 106.

The police report also contains summaries of interviews with Julian faculty, staff and students.5 Included in those summaries

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is the content of an interview with Mr. Riley, in which he again acknowledged that he found a pile of clothing after the class and that he subsequently checked the pool area for students and saw no one there. The police report states that Mr. Riley, after inquiring of the students in the locker room and finding that no one was missing clothes, surveyed the pool area again and then simply left the clothes where he found them. The report also contained the results of an interview with Mr. Townsend. Focusing on the events occurring after the class was over, it notes that Mr. Townsend "related that he then checked the pool. Coach Riley mentioned something about clothes near the shallow end of the pool. Coach Townsend then went o[n] to coach a baseball practice." R.31, Ex.9 at 5.

A few weeks after receiving these reports, Ms. Johnson participated in an interview with a reporter for the Chicago Sun-Times regarding the issue of Wilson's death. In the article that followed, the author notes that, in light of the events surrounding the death, Ms. Johnson's recommendation was that Mr. Townsend should be suspended without pay for thirty days and that Mr. Riley should not continue to be employed by the Board. The article explains that Ms. Johnson believed that these actions should be taken due to Mr. Townsend and Mr. Riley's "failure to perform duties." R.34, Ex.12.

Mr. Riley did not receive a hearing regarding his role in the circumstances surrounding Wilson's death. In August 1998, Mr. Riley made a request to Julian's principal that he be allowed to return to work. He was told by the principal that the Board had decided that Mr. Riley no longer could be employed at Julian or in any other Board facility. Mr. Riley continued to remain employed at this time as a swimming instructor for the City Colleges of Chicago, a position he had held since April 1998. He did not seek any further employment to replace the salary that he had earned as a part- time member of Julian's staff.

Mr. Townsend was never actually suspended after his reassignment to the Central Office on April 15, 1998. On June 10, he was served with charges, issued by Mr. Vallas and Ms. Johnson, which claimed that Mr. Townsend had violated multiple Board rules in connection with Wilson's death and informed him that the Board would seek a thirty-day suspension as a result. A hearing was set for June 12, but the Board requested a continuance. That hearing was rescheduled for July 24; however, on that date the Board decided to again postpone the...

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