Bogosian v. Board of Educ. Unit School Dist. 200

• Decision Date: 22 February 2001
• Docket Number: No. 99 C 3656.,99 C 3656.
• Citation: 134 F.Supp.2d 952
• Parties: Christopher BOGOSIAN, Plaintiff, v. BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT 200, David S. Fleming, Robert E. Davis, Donald Shaner, Alan Bolds, Dawn Earl, Andrew Johnson, Marie C. Slater, Timothy Neubert, Dr. Mary M. Curley, Denie Young, Gail Goff, Clara Gould, Katherine Greenman, and Patty Woods, Defendants.
• Court: U.S. District Court — Northern District of Illinois

Page 952

134 F.Supp.2d 952

Christopher BOGOSIAN, Plaintiff, v. BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT 200, David S. Fleming, Robert E. Davis, Donald Shaner, Alan Bolds, Dawn Earl, Andrew Johnson, Marie C. Slater, Timothy Neubert, Dr. Mary M. Curley, Denie Young, Gail Goff, Clara Gould, Katherine Greenman, and Patty Woods, Defendants.

No. 99 C 3656.

United States District Court, N.D. Illinois, Eastern Division.

February 22, 2001.

COPYRIGHT MATERIAL OMITTED

John Joseph Pcolinski, Jr., Mark F. Kalina, Guerard, Kalina & Butkus, Wheaton, IL, for plaintiff.

John Alexis Relias, Anne Elizabeth Wilson, Shelli Lynn Boyer, Franczek, Sullivan, Mann, Crement, Hein, Relias, P.C., Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

Christopher Bogosian was fired in 1998 from his position as a first grade teacher at Wiesbrook Elementary School in Wheaton, Illinois, following an investigation of charges by other teachers that he had been touching and kissing female students in an inappropriate manner. After this, the Board of Education ("Board") of Community Unit School District 200 ("District")¹ issued a press release describing the charges against him and saying that "the Board agreed that Mr. Bogosian's actions were inappropriate, unprofessional, and inconsistent with the District's philosophy of instruction in the primary grades." Mr. Bogosian brought a suit alleging due process violations, defamation, civil conspiracy, tortious interference with a contractual relationship, and violations of the Illinois Personnel Records Review Act, 820 ILCS 40/1 et seq. Mr. Bogosian moved for summary judgment on the Records Review Act, and the defendants brought a cross motion on all ten claims in Mr. Bogosian's complaint. Mr. Bogosian's motion for summary judgment is GRANTED, and the defendants' motion is granted in part and denied in part.

I. Background

Mr. Bogosian was one of four first grade teachers at Wiesbrook Elementary School during the 1996-98 school years. The other three teachers, Clara Gould, Gail Goff, and Katherine Greenman (the "teachers"), had classrooms close to Mr. Bogosian's. In June of 1998, the teachers told the principal that, over the course of two school years, they had observed Mr. Bogosian touching female students in a manner that made the teachers uncomfortable. They said they had seen him hug, kiss, and pat female students, that he touched only girls, and that he focused on immature girls. Ms. Goff told the principal that she had seen Mr. Bogosian sitting on a swing with a female student straddling him on his lap. Ms. Greenman told the principal that she had seen Mr. Bogosian rubbing one of her female student's chest and abdomen with his open hand. At the same meeting, the teachers also told the principal that Mr. Bogosian was "not a team player" and that the first grade teachers would "never be a team," presumably as long as he was there. In late June 1998, employees of the District interviewed the principal and the teachers; Mr. Bogosian's attorney and union representative were also present at the interviews. The teachers repeated many of the things they had told the president.² They also said that they thought his conduct was "unprofessional" and that he had a "need" to touch female students. Ms. Greenman also said that she once saw him sitting on a chair and had two female students on the inside of each thigh facing each other. Ms. Goff said that, on more than one occasion, she saw female students grabbing him around his thigh with arms and hands high on his thigh and in his crotch area, and that he didn't pull away.

On June 24, 1994, the District sent a letter to Mr. Bogosian notifying him that "charges of inappropriate conduct with female students" had been filed against him, and that the factual basis for the allegations would be provided at a meeting on June 30, 1998. The letter also informed him that he would be given the opportunity to explain or rebut the charges at that meeting. Mr. Bogosian appeared at the June 30 meeting, and denied or explained the allegations against him. He explained that his background was in early childhood development, which is a "child-centered" approach that focuses on the social, emotional and physical development of children, as well as their cognitive development, and encourages some physical contact with young students. Up until the time of the teachers' allegations, no student or parent had ever complained about Mr. Bogosian to the District.

On July 9, 1998, a District administrator and lawyer prepared a memorandum summarizing the interviews titled "Allegations of sexual harassment of students against Chris Bogosian" and delivered it to the Board. Mr. Bogosian continued to work during the summer school session at the Board's request. On August 5, 1998, the teacher's union told Mr. Bogosian (based on a communication from a Board attorney) that the Board would fire him if he did not voluntarily resign. The representative also told him that he would not be allowed to return to Wiesbrook for the fall 1998 school term. Mr. Bogosian stopped receiving paychecks as of August 5.

Late in August, Mr. Bogosian tendered his resignation, but he quickly "revoked" it. In August and early September, he attempted unsuccessfully to find an elementary teaching position at three area schools. Through his lawyer, he attempted to negotiate a settlement with the Board. The Board suggested that it might be able to offer a letter of recommendation if Mr. Bogosian signed a settlement agreement. Mr. Bogosian never signed a settlement agreement, but he tendered his resignation to the Board on October 14, 1998. The Board accepted the resignation, but Mr. Bogosian again attempted to "revoke" it. On October 26, the Board issued a press release that identified the allegations against Mr. Bogosian as "involv[ing] kissing and hugging female students, rubbing the chests and stomachs of female students, pulling female students against his body and onto his lap, and generally showing favoritism toward female students." It also stated that "[a]t the conclusion of the investigation, the board agreed that Mr. Bogosian's actions were inappropriate, unprofessional and inconsistent with the District's philosophy of instruction in the primary grades." The release also indicated that it planned to seek Mr. Bogosian's dismissal at the board meeting on October 28, 1998. At the October 28 meeting, the Board voted against permitting Mr. Bogosian to withdraw his resignation. Mr. Bogosian filed this lawsuit in the DuPage County Circuit Court on November 23, 1998.

On February 1, 1999, the Board passed a resolution reinstating Mr. Bogosian as a certified teacher with full tenure rights, seniority, and back-pay in the amount of $9,423.20. Also on February 1, the Board issued a press release in which it said that it had reinstated Mr. Bogosian and had adopted a "confidential remediation plan, which ... outlines specific conduct that Bogosian is to avoid as a teacher." Since his reinstatement, Mr. Bogosian has been employed at Bower Elementary School as a physical education teacher. He turned down a classroom assignment as a third grade teacher for the 1999-2000 school year because he wanted an assignment teaching first grade.

II. Standard of Review

Summary judgment is appropriate where the record and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). I apply this standard with "added rigor in employment ... cases, where intent and credibility are crucial issues." Huff v. UARCO, Inc., 122 F.3d 374, 380 (7th Cir.1997). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Claims against the teachers

A. Defamation

I deal first with the defamation claims against the teachers (counts V through VIII). To prove a claim of defamation under Illinois law, Mr. Bogosian must show that the teachers made false statements about him, that there was an unprivileged publication of the defamatory statement to a third party by the teachers, and that he was damaged. See Cianci v. Pettibone Corp., 298 Ill.App.3d 419, 232 Ill.Dec. 583, 698 N.E.2d 674, 678 (1998). The teachers may avoid liability for defamation if they can show that their statements were not false assertions of fact; that is, if they were merely expressing an opinion, or if the statements were "substantially true." Pope v. Chronicle Publ'g Co., 95 F.3d 607, 613-14 (7th Cir.1996).

Although the plaintiff bears the burden of proving that a statement is false, once the plaintiff has come forward with evidence of falsity, the defendant bears the burden of establishing the "substantial truth" of the statements. Gist v. Macon County Sheriff's Dept., 284 Ill.App.3d 367, 219 Ill.Dec. 701, 671 N.E.2d 1154, 1157 (1996). A statement is "substantially true" if the "gist" or "sting" (that is, the heart of what makes it defamatory) is true, even if the non-defamatory parts are not "technically accurate in every detail." See id. Whether a statement is substantially true or false is a question for the jury, id., but the distinction between fact and opinion is a matter of law. Owen v. Carr, 113 Ill.2d 273, 100 Ill.Dec. 783, 497 N.E.2d 1145, 1148 (1986). To determine whether a statement is fact or opinion, I must look at the totality of the circumstances and consider whether the statement is capable of objective verification as true or false. Doherty v. Kahn, 289 Ill.App.3d 544, 224 Ill. Dec. 602, 682 N.E.2d 163, 172 (1997). Mixed expressions of fact and opinion may be actionable if the facts are subject to verification. Quality Granite Constr. Co., Inc. v. Hurst-Rosche Eng'rs, Inc., 261 Ill. App.3d 21, 198 Ill.Dec. 528, 632 N.E.2d...