Price v. Bd. of Educ. of Chi. & Barbara Byrd-Bennett

• Decision Date: 02 July 2014
• Docket Number: No. 13–2007.,13–2007.
• Citation: 755 F.3d 605
• Parties: Williette PRICE, on behalf of herself and all persons similarly situated, Plaintiff–Appellant, v. BOARD OF EDUCATION OF the CITY OF CHICAGO and Barbara Byrd–Bennett, in her official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

755 F.3d 605

Williette PRICE, on behalf of herself and all persons similarly situated, Plaintiff–Appellant,

v.BOARD OF EDUCATION OF the CITY OF CHICAGO and Barbara Byrd–Bennett, in her official capacity, Defendants–Appellees.

No. 13–2007.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 22, 2014.

Decided July 2, 2014.

Thomas H. Geoghegan, Attorney, Despres, Schwartz & Geoghegan, Chicago, IL, for Plaintiff–Appellant.

Sally J. Scott, Attorney, Franczek Radelet P.C., Chicago, IL, for Defendant–Appellee.

Before WOOD, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Williette Price was part of a massive economic layoff of Chicago Public Schools (“CPS”) teachers in 2010. She argues that, as a tenured teacher, she had a property interest in continued employment as a teacher anywhere within CPS before being laid off, and that the Board of Education violated the Due Process Clause by depriving her of that property interest. Because Price cannot point to any source that gives her the type of property interest she asserts, we affirm the lower court's decision to dismiss her complaint for failure to state a claim.

I. BACKGROUND

This case was decided on a motion to dismiss, and so we recite all the factual allegations in the light most favorable to the non-moving, Williette Price. See Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110, 1115 (7th Cir.2013).

In 2010, Price was a full-time tenured CPS teacher who was working in a city-wide program to improve the classroom teaching skills of other teachers. In all of her evaluations, she was rated excellent or superior.

In June 2010, the Board of Education (the “Board”) authorized then-CPS CEO Ron Huberman (who has since been substituted by his replacement, Barbara Byrd–Bennett, in the complaint) to “honorably discharge” what turned out to be roughly 1,289 public school teachers, some of whom were tenured. At the same time as the layoffs, Price alleges CPS was continuing to hire teachers to fill vacant positions, including new hires with no prior classroom experience or prior evaluations. Price alleges that she was not considered for any of these vacant positions, nor was she given any notice of existing vacant positions prior to her layoff. She further alleges the Board did not implement procedures to allow laid-off tenured teachers to show they were qualified to fill those vacant positions.

Price filed a 42 U.S.C. § 1983 suit one year after the layoffs on behalf of herself and a putative class of other similarly situated teachers. The district court stayed the case while we considered a related action, Chicago Teachers Union, Local No. 1 v. Board of Education, 640 F.3d 221 (7th Cir.2011), which we discuss in more detail below. After that case was decided, Price filed her first amended complaint, asserting a violation of due process. After a motion by the Board, the district court dismissed that complaint because Price did not identify any protected property interest that could give rise to a due process claim. This appeal followed.

II. ANALYSIS

Price argues that her complaint should not have been dismissed because the Board violated the Due Process Clause of the United States Constitution when it laid off her and other similarly situated tenured teachers without considering them for open positions that they were qualified to fill. She alleges in her complaint that she and the other tenured teachers had a protectable interest “to fill or transfer into any existing open or vacant position [within CPS] for which they were qualified” prior to the layoffs. We review a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) de novo. See Craig, 736 F.3d at 1115. We construe all factual allegations and any reasonable inferences in the light most favorable to the nonmoving party, Price. Id.

The Due Process Clause of the Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1. While there are both procedural and substantive components of the Due Process Clause, Price only raises issues of procedural due process, and so we need not consider substantive due process concerns. “To demonstrate a procedural due process violation of a property right, the plaintiff must establish that there is (1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process. Accordingly, a plaintiff asserting a procedural due process claim must have a protected property interest in that which [she] claims to have been denied without due process.” Khan v. Bland, 630 F.3d 519, 527 (7th Cir.2010) (internal quotations omitted). “Although the Fourteenth Amendment protects property rights, it does not create them. Instead, property rights ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.’ ” Frey Corp. v. City of Peoria, 735 F.3d 505, 509–10 (7th Cir.2013) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “A protected property interest in employment can arise from a statute, regulation, municipal ordinance, or an express or implied contract ...” Covell v. Menkis, 595 F.3d 673, 675–76 (7th Cir.2010).

To prevail on her due process claim, Price needs to identify a source, independent of the Due Process Clause, for the protectable property interest she claims to have. Towards that end, it is vital to understand what interest Price alleges she has, and what she has not alleged. While at times Price argues that the property interest at issue is continued employment generally, her complaint demonstrates she is alleging a more specific right. Price is alleging that by virtue of being tenured, a teacher in CPS has a permanent property interest in filling any existing open or vacant position in CPS for which she was qualified at the time of her layoff, even if it was not the position that teacher previously filled. She alleges in her complaint that “[b]efore they could be subject to layoff at all, plaintiff and other tenured teachers were entitled to be considered for and to fill such positions for which they were qualified in preference to any such non-tenured applicants.” This entitlement, she argues in her opening brief, “is not a ‘permanent appointment’ to teach a particular class in a particular school, or to hold a particular line item budgeted position, but a permanent appointment to teach anywhere in the Chicago public schools” before being laid off. So long as there is some vacant job out there in CPS for which Price is qualified, she claims she has a property interest in that job and must be given her due process before she can be laid off.

The question facing Price is: What is the source of that alleged right? Price points to 105 Ill. Comp. Stat. 5/34–84, the Illinois tenured teacher statute, which, in relevant part, states:

Appointments and promotions of teachers shall be made for merit only, and after satisfactory service for a probationary period of ... 4 years ... during which period the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools and after which period appointments of teachers shall become permanent, subject to removal for cause in the manner provided by [105 Ill. Comp. Stat. 5/34–85].

Although the district court also considered 105 Ill. Comp. Stat. 5/34–18(31) as a source of Price's alleged right, Price does not point to that section in her briefing and therefore we need not consider it. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.2012) (noting arguments that are “underdeveloped, conclusory, or unsupported by law” are waived). Nor does Price point to any other “statute, regulation, municipal ordinance, or an express or implied contract, such as ‘rules or understandings' ” that create such a property right. Covell, 595 F.3d at 675–76. So, her case hinges on section 34–84.

We considered section 34–84 prior to the instant case in Chicago Teachers Union, Local No. 1 v. Board of Education, 640 F.3d 221 (7th Cir.2011) (“ CTU I ”). In CTU I, a divided panel held that tenured teachers had a property right that afforded them a meaningful opportunity to show that they were qualified for new vacancies for a reasonable time after being laid off. However, we vacated CTU I in Chicago Teachers Union, Local No. 1 v. Board of Education, 662 F.3d 761 (7th Cir.2011) (per curiam) (“ CTU II ”), and certified three questions to the Illinois Supreme Court, including: “Does section 34–84 give laid-off tenured teachers either (1) the right to be re-hired after an economic layoff, or (2) the right to certain procedures during the rehiring process? If so, what is the scope of that right?” Id. at 764–65.

In considering the certified questions, the Illinois Supreme Court rejected the argument by the Teachers Union that “solely ‘by virtue of the teacher's permanent appointment’ under section 34–84, a laid-off tenured teacher has the substantive right to continued employment in preference to an equally or less qualified new teacher without experience, and ‘should have a preferential right to a vacant position over an equally or less qualified new teacher without experience.’ ” Chi. Teachers Union, Local No. 1 v. Bd. of Educ., 357 Ill.Dec. 520, 963 N.E.2d 918, 924 (2012) (“ CTU III ”). The Illinois Supreme Court began its analysis by examining a previous version of section 34–84, which contained a “reserve teacher” clause. Id. at 924–25. Under that pre–1995 version of section 34–84, the “reserve teacher” clause allowed those teachers who would have been laid off or whose positions were to be eliminated for reasons other than...