Speed Dist. 802 v. Warning

• Decision Date: 08 June 2009
• Docket Number: No. 1-08-0344.,1-08-0344.
• Citation: 911 N.E.2d 425,392 Ill. App. 3d 628
• Parties: SPEED DISTRICT 802, a/k/a Governing Board of Special Education Joint Agreement District 802, Petitioner-Appellant, v. Rachel WARNING, Speed Education Association, IEA-NEA, State of Illinois Educational Labor Relations Board, and Lynne O. Sered, In Her Official Capacity as Chairman of the State of Illinois Educational Labor Relations Board, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

911 N.E.2d 425

392 Ill. App. 3d 628

SPEED DISTRICT 802, a/k/a Governing Board of Special Education Joint Agreement District 802, Petitioner-Appellant, v. Rachel WARNING, Speed Education Association, IEA-NEA, State of Illinois Educational Labor Relations Board, and Lynne O. Sered, In Her Official Capacity as Chairman of the State of Illinois Educational Labor Relations Board, Respondents-Appellees.

No. 1-08-0344.

Appellate Court of Illinois, First District, First Division.

June 8, 2009.

Raymond A. Hauser and William F. Gleason of Hauser, Izzo, DeTella & Petrarca, LLC, Flossmoor, for Appellant.

Lisa Madigan, Atty. Gen., Michael A. Scodro, Solicitor General, Ann C. Chalstrom, Asst. Atty. Gen., Chicago, for Appellees IELRB and Lynne O. Sered, in her capacity as Chairman of the Board.

Paul R. Klenck, Illinois Education Association-NEA, Chicago, for Appellees Rachel Warning and Speed Education Association, IEA-NEA.

Justice HALL delivered the opinion of the court:

Petitioner Speed District 802 (District) appeals from an opinion and order of the Illinois Educational Labor Relations Board (Board), which found that it committed an unfair labor practice in violation of section 14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/14(a)(1), 14(a)(3) (West 2006)), when it nonrenewed Ms. Rachel Warning's teaching contract. The Board determined that the District nonrenewed Warning's teaching contract in retaliation for her engaging in a protected union activity-insisting that she be accompanied by a union representative during her post-observation remedial meetings with the school's principal.

The District contends on appeal that the Board erred in finding that it violated the Act when it nonrenewed Warning's teaching contract because: (1) Warning's request to be accompanied by a union representative during her post-observation remedial meetings with the school's principal did not constitute a protected activity; (2) even if the request constituted a protected activity, Warning still failed to present sufficient evidence that the District's decision to nonrenew her contract resulted from antiunion animus; and (3) even if Warning established a prima facie case of discriminatory discharge, the District still presented sufficient evidence establishing that Warning was discharged for performance reasons. The District also contends that the Board did not have the authority to direct it to reinstate Warning to her teaching position where the reinstatement resulted in her obtaining tenure. We affirm.

The following facts are relevant on appeal. On March 1, 2005, Mr. Benoit Runyan, who was employed as a principal with the District, placed Warning on a "corrective action plan" designed to help her improve her classroom performance as well as her communication skills as they related to support staff. The plan called for periodic remedial meetings between Runyan and Warning where they would discuss and analyze certain material and evaluate her progress. The plan stated that unless Warning corrected certain identified deficiencies by May 1, 2005, there would be a recommendation to terminate her teaching contract.

The background of this appeal developed when a controversy arose between Runyan and Warning concerning Warning's insistence that she be accompanied by a union representative from the Speed Education Association, IEA-NEA (Union), during her remedial meetings with Runyan. Runyan objected to the presence of a union representative at these meetings.

At a meeting held on March 4, 2005, Warning, accompanied by union representative Beth Wierzbicki, stated that since her employment was at risk of termination she would insist that Wierzbicki accompany her to all future remedial meetings. Runyan responded that he and Warning could conduct the meetings on their own without Wierzbicki's presence or assistance.

Shortly after the March 4 meeting, Runyan and Warning encountered each other in the school's hallway whereupon Runyan asked if they could briefly meet. During this impromptu meeting, Runyan informed Warning that he would not allow Wierzbicki to attend future remedial meetings. Warning responded that she would not meet without union representation, and then read Runyan her "rights" from a little card she carried with her. According to Warning, Runyan became agitated and raised his voice, prompting her to leave his office.

On March 9, 2005, Runyan met with Wierzbicki. He informed her that he had spoken with Dr. Betty Pointer, the executive director of Speed, and that the both of them agreed that it was inappropriate for Warning to be accompanied by a union representative during her remedial meetings. Wierzbicki disagreed. She told Runyan that it was the Union's position that Warning was entitled to union representation at these meetings.

As a follow-up to their conversation, Wierzbicki sent Runyan a memorandum dated March 17, 2005, outlining the Union's position. The memorandum stated in part that pursuant to the collective bargaining agreement and Warning's rights under Weingarten¹, Warning was entitled to have a union representative of her choice accompany her to the remedial meetings to document the discussions and to act as a witness and advisor.

On March 18, 2005, Wierzbicki accompanied Warning to a meeting attended by Runyan and Dr. Pointer. According to Wierzbicki and Warning, Dr. Pointer acted aggressively toward them at the meeting.

Warning stated that Dr. Pointer told her that she was not a "baby" and that she was old enough to handle the situation by herself without anyone holding her hand. Dr. Pointer initially told Wierzbicki that she would not be allowed to attend future remedial meetings because the meetings pertained to performance rather than disciplinary matters. However, later in the meeting, Dr. Pointer modified her position and agreed that Wierzbicki could attend future meetings provided she did not participate verbally. While making these statements, Dr. Pointer allegedly raised her voice and pointed her finger in Wierzbicki's face, warning her that if she opened her mouth in future sessions she would be asked to leave or that she (Dr. Pointer) would come down and make her leave.

On March 22, 2005, Wierzbicki accompanied Warning to her next meeting with Runyan. Warning submitted lesson plans and other materials. After reviewing these documents and materials, Runyan stated that he liked what he saw but that the process was ongoing. He also gave Warning a reading assignment.

Thereafter, Warning was sent two notices dated March 24, 2005, regarding her teaching contract. The first notice was a nonrenewal letter from the District informing Warning that her contract would not be renewed for performance reasons. The second notice was from Dr. Pointer reminding Warning that she was currently on a corrective action plan and that her continued employment was contingent on successful completion of the plan.

Runyan then sent Warning and Wierzbicki a memorandum dated March 31, 2005, indicating that starting in April 2005, all future remedial meetings should only be attended by the administrator (Runyan) and teacher (Warning). Shortly thereafter, Dr. Pointer and Janet Zitzer, the union's director, engaged in a "heated" telephone conversation regarding Wierzbicki's attendance at the remedial meetings. Dr. Pointer was opposed to Wierzbicki attending the meetings while Zitzer strongly believed Wierzbicki should be allowed to attend the meetings.

As a follow-up to their telephone conversation, Dr. Pointer sent Zitzer a letter dated April 6, 2005. In the letter, Dr. Pointer stated that she had met with Runyan to discuss what precipitated his March 31 memorandum to Warning and Wierzbicki. Dr. Pointer stated that Runyan had sent the memorandum because despite warnings to the contrary, Wierzbicki had continued to insert herself into the remedial discussions through her body language (nodding her head) and by passing notes back and forth to Warning. Dr. Pointer characterized Wierzbicki's behavior as insubordinate, manipulative, and unacceptable.

Dr. Pointer expressed her belief that Warning was not entitled to union representation at the remedial meetings because the meetings specifically pertained to performance rather than disciplinary matters. However, Dr. Pointer stated that Wierzbicki would be allowed to continue to attend future remedial meetings provided she participated strictly as a listener and note-taker. Dr. Pointer stated that if Wierzbicki did not abide by her directives she would address the issue as a disciplinary matter.

In a memorandum dated April 22, 2005, Runyan provided Warning with feedback concerning her progress relating to the corrective action plan. Runyan rated Warning unsatisfactory in the areas of "instructional presentation" and "professional communication/responsibilities." He stated that Warning had shown some demonstrated improvement in the area of "instruction" and that she had taken steps to align her instruction to State standards in design and implementation.

Runyan further stated, however, that Warning had been late to several meetings and that she failed to consistently provide prepared evidence and seemed inadequately prepared for their meetings. He also stated that Warning's actions created barriers in their ability to effectively communicate. He claimed that the "corrective process" became cumbersome and chaotic due to the "choices" Warning had made. Runyan stated that by the time the process was over, there appeared to be little growth in the area of improved communication. Runyan concluded that Warning had failed to meet the terms of the corrective action plan and recommended that she be terminated.

Shortly thereafter, Dr. Pointer sent Warning a memorandum dated April 28, 2005, notifying her that her teaching contract would terminate at the end of the 2004-05 school year.

In August 2005, Warning and the...