The Seventh Circuit Appellate Court recently upheld summary judgment against a teacher who had alleged she was fired for reporting a violation the federal No Child Left Behind Act, although the court remanded the case because a triable issue existed on the teacher’s claim of national origin discrimination.
Anne Darchak was a Polish bilingual probationary teacher, and she was let go after her one-year contract with the public school district ran out. She sued the board of education alleging national origin discrimination, retaliatory discharge and First Amendment retaliation, claiming she was fired for complaining that her teaching assignment in a room with mostly native Spanish-speaking students violated the federal “No Child Left Behind” Act. The U.S. District Court granted the school board's motion for summary judgment, and the teacher appealed.
During the 2004-2005 school year, Darchak had worked part-time for Princeton Alternative Center, where most of the students were Hispanic (77%); there were also African-American (17%) and Polish (6%) students. Princeton Principal Rosalva Acevedo hired Darchak for a one-year contract for the 2005-2006 year, to teach English as a Second Language (“ESL”), in anticipation of an increase in Polish-speaking students at Princeton. Darchak’s contract was renewable at the end of the school year. Her position was funded by the Chicago Public Schools Office of Language and Cultural Education, and was dependent on the number of English Language Learners at Princeton.
Darchak claimed that within the first month of her full-time employment at Princeton, she noticed the Hispanic students were receiving better treatment than the Polish students, meaning better resources and native language services. When Darchak approached Acevedo with her concerns, Acevedo allegedly responded, “[Hispanic students] are better than Polish and deserve more than Polish people.... [I]f you don't want to do whatever I tell you to do, you can leave my school.” Then, in early November, Acevedo gave Darchak a “cautionary notice” charging her with “insubordination” for refusing to follow the ESL teaching schedule. When Darchak confronted Acevedo about the notice, Acevedo allegedly replied, “I brought you to this school and you stupid Polack pushed the teachers against me.”
Darchak immediately began complaining to Acevedo's supervisors in meetings and letters about what she perceived as Acevedo's mismanagement of the school, but she did not mention any disparaging remarks about her national origin. In March 2006, a teaching position opened in Room 206, a classroom with a number of English Language Learners, most of whom were native Spanish speakers. After confirming with the Chicago Public Schools Accountability Department that Darchak was qualified to temporarily teach the students in Room 206, Acevedo assigned her to the classroom on a temporary basis.
Darchak felt this assignment violated the No Child Left Behind Act because she was not qualified to teach in a bilingual Spanish classroom. She repeatedly expressed this concern to Acevedo and to Acevedo's supervisors. On March 10, Darchak received a second cautionary notice, which said that she had been discourteous and negligent in supervising her students. She then received a negative performance evaluation, which stated that Darchak had difficulty following rules, interacting with students, and getting along with other school community members.
After a funding decrease, Acevedo did not recommend renewing Darchak's one-year contract, and the school board accepted Acevedo's recommendation. In the ensuing lawsuit, Darchak claimed the Board refused to renew her teaching contract in retaliation for her complaints that her teaching assignment violated the No Child Left Behind Act.
To establish a retaliatory discharge, Darchak had to demonstrate that she was (1) discharged; (2) in retaliation for her activities; and (3) that the discharge violated a clear mandate of public policy. The appellate court found that nonrenewal of Darchak’s contract did not violate “a clear mandate of public policy.” Clearly mandated public policies include reporting an employer’s criminal violations, or reporting violations of health and safety standards.
Darchak claimed the clearly mandated public policy in her case was found in the general purpose declaration of the No Child Left Behind Act: “that all children have a fair, equal, and significant opportunity to obtain a high-quality education.” Darchak claimed that the Polish students at Princeton did not have the same access to a “high-quality” education as the Hispanic students did. The appellate court noted that while educational quality was doubtless an important social objective, Illinois courts have never recognized a claim for retaliatory discharge based on a reported violation of that policy or any like it. Instead, the appellate court found that the Illinois Supreme Court had defined “public policy” within the limited bounds of reporting criminal conduct and health and safety violations. The appellate court also noted that the Illinois Supreme Court had consistently sought to restrict the common law tort of retaliatory discharge.
As a result, the appellate court refused to recognize this claim for retaliatory discharge based on the teacher’s complaints that her school was violating the general purpose stated in the No Child Left Behind Act. As a separate basis for its decision, the court also found that the non-renewal of Darchak's contract was not a “discharge” under the Illinois case law interpreting that term.
Darchak had also sued the school board claiming that Acevedo had violated her First Amendment rights by not renewing her contract based on her statements that No Child Left Behind was violated. The appellate court found the lower court had properly granted summary judgment against Darchak, because the school board was not responsible for the alleged constitutional violations of its employee, Acevedo, pursuant to the U.S. Supreme Court decision in Monell v. Department of Social Services, 436 U.S. 658 (1978). Darchak had presented no evidence that the school board itself had directly violated her First Amendment rights.
The appellate court did remand the case to the lower court for a determination of the national origin discrimination claim. The court found that although the only evidence of the principal’s alleged improper racial motivation for not renewing the contract came from the teacher’s own testimony, a jury should be allowed to evaluate the believability of that testimony.
As to the retaliatory discharge claim, the appellate court’s decision maintains the narrow bounds under which such claims can be brought. The court declined to recognize an expansion of these claims, such that “general purpose” language in a piece of legislation such as the No Child Left Behind Act, could be used to support them. The Act’s general purpose statement essentially provided that the Act seeks to give equal opportunities for high-quality education to all children. Almost any complaint by a teacher about the operation of the school could arguably implicate that general purpose language. Any subsequent firing of the teacher could then be the basis of a retaliatory discharge claim. The appellate court’s decision re-affirms that claims of retaliatory discharge in Illinois must follow reports of criminal conduct or health and safety violations, not simply making complaints that a school could be providing better education to its students.
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Jason Callicoat, an associate in our Chicago office, concentrates his practice in municipal liability and construction law. He has previous experience in the areas of construction injury, insurance coverage, and workers compensation. If you have any questions regarding this article, please contact Jason via jcallicoat@querrey.com, or via 312-540-7646.
