Barszcz v. Board of Tr. of Com. Col. Dist. No. 504, Ill.

• Citation: 400 F. Supp. 675
• Decision Date: 08 September 1975
• Docket Number: No. 74 C 1687.,74 C 1687.
• Parties: Daniel BARSZCZ, Plaintiff, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 504, COOK COUNTY, ILLINOIS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

400 F. Supp. 675

Daniel BARSZCZ, Plaintiff, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 504, COOK COUNTY, ILLINOIS, Defendant.

No. 74 C 1687.

United States District Court, N. D. Illinois, E. D.

September 8, 1975.

Gilbert A. Cornfield, Kleiman, Cornfield & Feldman, Chicago, Ill., for plaintiff.

Marvin J. Glink, Ancel, Glink, Diamond & Murphy, P. C., Chicago, Ill., for defendant.

MEMORANDUM OPINION

MARSHALL, District Judge.

Plaintiff, Daniel Barszcz, complains, in an action brought under 42 U.S.C. § 1983, that the action of defendant, Board of Trustees of Community College District No. 504, in terminating plaintiff's services as a tenured member of the faculty of Triton College violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. He seeks injunctive relief ordering his reinstatement and back pay. The action is ready for decision on the merits on a stipulation of facts which includes the record of proceedings before the defendant Board.

While defendant's amenability to suit is doubtful under 42 U.S.C. § 1983, City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973),¹ jurisdiction is present here under 28 U.S. C. § 1331. Plaintiff's claim arises directly under the Fourteenth Amendment and the amount in controversy, measured primarily by plaintiff's claim for back and future wages, exceeds $10,000 exclusive of interest and costs. City of Kenosha v. Bruno, supra; Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Defendant urges abstention by this court because Barszcz's dismissal can be reviewed by an Illinois court under the Illinois Administrative Review Act or by common law certiorari. Abstention is not required merely because a possible remedy under state law exists. Drexler v. Southwest Dubois School Corp., 504 F.2d 836 (7th Cir. 1974). Rather, abstention is appropriate if the case presents both state and federal questions, can be decided on the basis of a state law issue, and the state law is unclear or uncertain. Reetz v. Bozanich, 397 U.S. 82, 86, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). In this case, plaintiff has raised only federal constitutional issues. There are no ambiguous state law issues lurking in the interstices of his complaint. As a tenured teacher, Barszcz clearly had a property right in his job under Illinois law.² Moreover, Illinois courts have upheld the constitutionality of the Teacher Tenure Act, Ill.Rev.Stat., ch. 122, §§ 24-11, 24-12, which sets forth the procedures adopted by the parties and used to discharge Barszcz. Pittel v. Board of Ed. of School Dist. 111, Cook County, 20 Ill. App.3d 580, 315 N.E.2d 179 (1st Dist. 1974).

The material facts are undisputed. Plaintiff applied for a teaching position at Triton College early in 1969. At that time, he was enrolled in a masters degree program at Illinois Institute of Technology. On his application form, he indicated that he would receive his masters degree in June, 1969. Barszcz had difficulty finishing his masters thesis, and failed to complete the required work in 1969. Nevertheless, he was hired as an instructor and subsequently achieved tenure status in the economics department in 1972.

Although Barszcz never received his masters degree, he wore a masters gown at several graduation ceremonies and accepted a salary consistent with that earned by Triton College teachers possessing masters degrees.

In the spring of 1974 the Triton College Administrators became aware of Barszcz's educational deficiency. On May 22, 1974, the defendant Board, without prior notice to Barszcz, passed a resolution dismissing him pursuant to the provisions of a 1972 contract between the Board and the Triton College Faculty Association which incorporates the dismissal procedure of the Illinois Teachers Tenure Act, Ill.Rev.Stat.1973, ch. 122, § 24-12.³ The Board charged Barszcz with several specific acts of misrepresentation, which were allegedly irremediable and warranted his discharge: falsely stating when he would receive his degree on his application forms and in initial interviews, and of improperly accepting a salary meant for teachers with the masters degree; failure to inform the administration that his listing in the College's catalogue incorrectly indicated he possessed a masters degree; failure to inform the members of his department of his true academic credentials. After the Board passed the initial resolution, Barszcz was allowed to continue teaching until the end of the semester, June 15, 1974, and he was then dropped from the payroll.

Barszcz demanded a hearing before an "impartial forum." He was accorded a full evidentiary hearing of the complaints against him before the defendant Board which was conducted in July and August of 1974. At the hearing, Barszcz was represented by counsel and cross-examined the witnesses against him. The Board affirmed its initial resolution of dismissal and discharged Barszcz by majority vote on September 16, 1974.

Pretermination Hearing

Barszcz first contends that he was denied procedural due process of law because he was not granted a hearing prior to his initial termination on May 22, 1974. As a tenured teacher, Barszcz had a legitimate entitlement to his job and can properly demand the minimal protections of procedural due process of law before being deprived of his job. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The question is whether these minimal protections include a pretermination hearing, and the Supreme Court's opinions in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), indicate that they do not. In Arnett, a nonprobationary federal employee was fired pursuant to the Lloyd-LaFollette Act, 5 U.S.C. § 7501, and attendant regulations, which provide for post-termination hearings. The Court held that the procedure was constitutionally permitted. Applying the analyses of the plurality and concurring opinions to Barszcz's discharge, it is clear that the lack of a predischarge hearing against Barszcz did not violate due process of law.

The plurality opinion for the Court, written by Justice Rehnquist, states that if a statute both authorizes the grant of tenure and sets forth the procedures for removing a tenured employee, these procedures are valid. To hold otherwise, Justice Rehnquist stated, would enable an employee to enjoy the benefits of the statute and yet challenge its procedures; the employee "must take the bitter with the sweet." 416 U.S. at 154, 94 S.Ct. at 1644. Under this analysis, Barszcz's rights were not violated because the contract between the Faculty Association and the Board, under which Barszcz worked, gained tenure and was terminated, incorporated the Teacher Tenure Act, Ill.Rev.Stat.1973, ch. 122, §§ 24-11, 24-12, and the Board followed the procedures prescribed by the Act.

Barszcz contends, however, that the Board did not follow the procedures of the Teacher Tenure Act. Specifically, he claims that the Board violated the section which provides that dismissal does not become effective until the Board approves it after a hearing. Barszcz contends that his dismissal was effective before the hearing because he was suspended without pay at the end of the semester.

The transcript of the hearing reflects confusion as to Barszcz's status between the end of the spring semester of 1974 and the hearing; his counsel said he was in "limbo status." Nevertheless, the court in Yuen v. Board of Ed. of School Dist. No. U-46, Kane et al. Counties, 77 Ill.App.2d 353, 222 N.E. 2d 570 (2d Dist. 1966), stated that a school board may suspend a teacher pending a hearing under § 24-12, and the conclusion follows that Barszcz's suspension was authorized by the statute and hence by the contract.

Because six justices rejected the view that a statute can define the extent of constitutional procedural protections an employee may claim, an analysis under the concurring opinions is appropriate. The concurring opinions of Justice White and Justice Powell indicate that the due process clause requires a balancing of the interests of the employer in expeditious removal of an unsatisfactory employee with the employee's interests in retaining his job pending final hearing. If the balance favors the employer's interests, the Constitution does not require a pretermination hearing. Applying this balancing test to the instant case, it is evident that the Constitution does not require a hearing before either the discharge resolution or Barszcz's actual suspension at the end of the semester. The Board's interest is substantial, and includes the need to avoid the expense and delay caused by imposing two hearings for each discharged employee and the need to avoid interruptions caused by removing a teacher in mid-semester. In addition, the Board had an interest in the expeditious removal of an employee whose alleged misrepresentations had a demoralizing effect on his associates.

Barszcz's interest in working during the interim does not outweigh those of the Board. Barszcz's loss is considerably less severe than the deprivation suffered by the welfare recipients in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), which were held to require a pretermination hearing. In addition, the interval between Barszcz's suspension and the commencement of the hearing was relatively short and part of the delay was due to his own request for a continuance. Finally, the...