Valentine v. Joliet Tp. High School Dist. No. 204

• Citation: 802 F.2d 981
• Decision Date: 08 October 1986
• Docket Number: No. 85-2717,85-2717
• Parties: 35 Ed. Law Rep. 85 Darrell L. VALENTINE, Plaintiff-Appellant, v. JOLIET TOWNSHIP HIGH SCHOOL DISTRICT NO. 204, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 981

802 F.2d 981

35 Ed. Law Rep. 85

Darrell L. VALENTINE, Plaintiff-Appellant, v. JOLIET TOWNSHIP HIGH SCHOOL DISTRICT NO. 204, et al.,

Defendants-Appellees.

No. 85-2717.

United States Court of Appeals, Seventh Circuit.

Argued April 3, 1986.

Decided Oct. 8, 1986.

Susan Marie Connor, Chicago, Ill., for plaintiff-appellant.

Alan O. Amos, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and WOOD, and POSNER, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff appeals the grant of summary judgment for the defendants in his action against the Joliet Township High School District and certain school officials. The defendants did not reinstate plaintiff as a guidance counselor after he was discharged in a reduction in the defendants' work force and was subsequently recalled as a teacher. Plaintiff claims an entitlement to the job of guidance counselor and alleges that the defendants' refusal to recall him to that position without due process violates the fourteenth amendment and 42 U.S.C. Sec. 1983 (1982). ¹ Summary judgment was properly granted, and therefore, we affirm.

I.

The following facts are undisputed. The defendants hired plaintiff in September 1971, and he was initially given the extra-pay position of guidance counselor. At that time he was certified by the state as a guidance counselor, but not as a teacher. He has since been certified as a teacher. In 1973 plaintiff became a tenured teacher. In May 1980, January 1981, and October 1982, the school district reduced its teaching force in the process of consolidating three school districts into two. Plaintiff was discharged each time, but was rehired for the following school year. Upon recall plaintiff was assigned a position as a social studies teacher, not as a guidance counselor. Plaintiff accepted the position and has been teaching social studies under contract since 1981. The reductions in force were instituted on the basis of seniority, with the least senior personnel being terminated first and recalled last.

Plaintiff's complaint alleged that the school district's failure to recall him as a guidance counselor deprived him of a position to which he was entitled. Plaintiff alleged that the contracts to teach social studies resulted in a significant loss of pay and prestige. Plaintiff claimed that the defendants hired persons with less seniority to fill available guidance counselor positions without giving him notice or a hearing or any explanation. Plaintiff also alleged that as a result of defendants' representations that he would be recalled to a guidance counselor position he lost wages and suffered mental anguish and professional and personal embarrassment. Plaintiff further alleged that the defendants' refusal to restore him to the position of guidance counselor impaired his interest in his good name, reputation, honor, integrity, and his tangible interest in employment.

Plaintiff claims four bases for his alleged entitlement to the position of guidance counselor: (1) state statute; (2) an implied contract with the school district; (3) oral assurances by three defendants, viz., the district superintendent, assistant superintendent, and principal; and (4) the defendants' policy. Plaintiff seeks a declaratory judgment, reinstatement as a guidance counselor, compensatory and punitive damages, and attorney's fees pursuant to 42 U.S.C. Sec. 1988 (1982). The defendants filed a motion for summary judgment supported by the affidavit of the defendant assistant superintendent. Plaintiff did not file a counteraffidavit. Having determined that plaintiff does not have a protectible interest in his former position as a guidance counselor, the district court granted summary judgment for the defendants.

II.

Plaintiff claims that the defendants' failure to offer him, without a hearing, the position of guidance counselor when that position was available deprived him of a property interest without due process. To establish a right to a hearing, plaintiff must show that "there are [existing] rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). "For '[p]roperty interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....' " Id. at 602 n. 7, 92 S.Ct. at 2700 n. 7 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). ² See Smith v. Board of Education of Urbana School District No. 116, 708 F.2d 258, 262 (7th Cir.1983).

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An appellate court reviewing a grant of summary judgment must view the record and any inferences in the light most favorable to the nonmovant. A grant of summary judgment will be reversed if inferences contrary to those drawn by the trial court might be permissible. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985).

A. Statutory Entitlement

Plaintiff claims that Ill.Rev.Stat. ch. 122, Secs. 24-12, 24-11, and 21-25 give him an entitlement to the guidance counselor position and that the school district deprived him of that entitlement by failing to recall him to a guidance counselor position while recalling or hiring less senior persons to this position.

Section 24-12 provides in relevant part If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board ... [and] [i]f the board has any vacancies for the following school term or within one calendar year from the beginning of the following school term, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions.

Ill.Rev.Stat. ch. 122, Sec. 24-12 (1985). Section 24-11 defines "teacher" as "any or all school district employees regularly required to be certified under laws relating to the certification of teachers." Ill.Rev.Stat. ch. 122, Sec. 24-11 (1985). Section 21-25 provides that "[t]he holder of such [a school service personnel] certificate shall be entitled to all of the rights and privileges granted holders of a valid teaching certificate, including teacher benefits, compensation and working conditions." Ill.Rev.Stat. ch. 122, Sec. 21-25 (1985).

These sections do not establish a statutory entitlement to a specific position upon recall after a reduction in force. The statute provides for discharge and recall according to seniority to "any vacancies" for the following school year or occurring within one year. In contrast, any teacher dismissed or removed for any other reason or cause than a reduction-in-force and reinstated after a hearing or grievance adjudication "shall be assigned by the board to a position substantially similar to the one which that teacher held prior to that teacher's suspension or dismissal." Ill.Rev.Stat. ch. 122, Sec. 24-12 (1985). Indeed, the Illinois appellate court has interpreted these provisions to make it "clear that a teacher or other certified school district employee does not acquire tenure in any particular assignment or position within the District, but only as a certified employee of the school district." Newby v. Board of Education, 53 Ill.App.3d 835, 11 Ill.Dec. 560, 561, 368 N.E.2d 1306, 1307 (2d Dist.1977).

Under the Illinois statute, plaintiff was entitled to be offered any available vacancy, according to his seniority, for which he was legally qualified. After each reduction in force, plaintiff was offered a position as a social studies teacher, which he accepted. Plaintiff thus has been afforded his rights under the statute, and the statute does not establish an entitlement to the position of guidance counselor. Plaintiff was tenured as a teacher and entitled under the statute to be recalled according to seniority to some teaching position for which he was legally qualified. This was done. ³ Plaintiff, however, was not entitled by statute to his former position. Plaintiff has not established a property interest, based upon the statute, in the guidance counselor position which would require a hearing by the school district on its failure to offer him such a position.

B. Contractual Entitlement

Plaintiff's second basis for his claim of a property interest is contractual. Plaintiff alleges in Count I, paragraph 1, of his complaint that he "was hired on [sic] or about September 1971 by Defendant School Board as a guidance counselor and held that position until his honorable discharge on [sic] or about June 1983." Plaintiff argues that this suffices as "a short and plain statement" under Rule 8(a) to give notice of plaintiff's claim of contractual entitlement. Fed.R.Civ.P. 8(a).

Plaintiff's allegation may be sufficient notice of the claim, but the mere allegation that plaintiff was hired as a guidance counselor and retained in that position for a number of years does not provide sufficient facts to support a claim of contractual entitlement and avoid summary judgment on this issue. Rule 56(e) states that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The mere allegation that plaintiff was hired as a guidance counselor does not establish a contractual entitlement, nor does it...