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SIXTH DIVISION
March 18, 2005

No. 1-03-3574

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

Plaintiff-appellant Charlene Raitzik (plaintiff) was discharged from her employment as atenured school teacher after receiving an unsatisfactory rating following a 90-day remediationperiod. Plaintiff sought review of this action, and defendant-appellee hearing officer Larry Drury(hearing officer) recommended that she be reinstated with full back pay. Defendants-appelleesBoard of Education of the City of Chicago, Michael Scott, Norman Bobins, Dr. Tariq Butt, GeneR. Saffold, Avis Lavelle, Alberto Carerro, Clare Munana, Arne Duncan, and the Illinois StateBoard of Education (collectively, Board) reviewed this recommendation, disagreed that theevidence presented supported it, and upheld plaintiff's termination. The trial court agreed with theBoard, finding that it did indeed have cause for the discharge. Plaintiff appeals, contending forvarious reasons that the hearing officer's recommendation must be upheld. She asks that wereverse the Board's decision and reinstate her with full back pay and other benefits to which shewould have been entitled. We affirm.

BACKGROUND

The following has been gleaned from the record on review, which consists in part oftestimony before a hearing officer and various documents and exhibits.

Plaintiff was a teacher for some 25 years. Since 1990, she has been assigned to PulaskiFine Arts Academy, a Chicago public school, and obtained tenure. Robert Alexander was namedprincipal of Pulaski in 1990; he was plaintiff's supervisor and was required to observe and evaluateher performance, filling out a form noting strengths and weaknesses and giving ratings rangingfrom (lowest to highest) unsatisfactory, satisfactory, excellent and superior. In brief, prior to the2000-01 school year, plaintiff received a majority of good ratings. Plaintiff's first assignment wasto teach eighth-grade math and science, and Alexander gave her an excellent rating because shewas a new teacher with a difficult class. However, Alexander noted weakness in her rapport withstudents, who would not cooperate with her, and in her communication with parents. Plaintiffwas then assigned to sixth grade, and later second grade, in the hope that she would be better ableto control younger children. This proved not to be the case and Alexander reassigned plaintiff tosixth grade. In 1993 and 1994, she received satisfactory ratings and in June 1995, an excellentrating. In December 1995, plaintiff received an unsatisfactory rating with Alexander noting thatshe was not maintaining a task-oriented or orderly classroom, was not carrying out disciplineprocedures and was not motivating the students. Plaintiff received a second unsatisfactory ratingin June 1996, and a 90-day remediation plan was put into effect to assist her in improving herclassroom skills. This period was extended twice before plaintiff successfully completed the planand raised her rating level to satisfactory. Plaintiff later received two excellent and onesatisfactory rating, but with notes that her classroom management skills and relationship with thestudents still needed improvement.

At the beginning of the 2000-01 school year, Alexander held an orientation meeting whichincluded a review of the teacher evaluation process. Pulaski teachers were required to sign a formstating that they attended the meeting, that they received the appropriate handbooks and that theevaluation and remediation process had been explained to them. Plaintiff attended this meeting onSeptember 22, 2000, and signed the form.

Alexander evaluated plaintiff's classroom on October 19, 2000, and January 8, 2001. Onthe evaluation form Alexander filled out for his October 19, 2000, visit, he noted that whileplaintiff exhibited strengths such as a willingness to implement new teaching methods andmaintaining lesson plans/grade books, she was not eliciting the cooperation of her students, shedid not display student work in her classroom, she lacked interpersonal skills to gain student"good will" and her classroom was "a mess," especially her desk. On the form he filled out for theJanuary 8, 2001, evaluation, Alexander noted that plaintiff was teaching from month-old orincomplete lesson plans, that the students' assignments were undated, that her grade book had alarge number of unfinished or "0" assignments, that her attendance book was incomplete, that thestudents were ignoring her and having their own conversations, and that class discussion "oftengot out of control." Alexander further noted that plaintiff's own punctuality was weak, that shewas not eliciting cooperation from the students, that her room was not decorated for the studentsand that she was not enforcing an assertive discipline plan. After each evaluation, Alexander metwith plaintiff to discuss his observations; plaintiff signed the evaluations, indicating that she hadmet with Alexander and had received the evaluation forms.

Alexander testified that he observed a lack of respect on the part of the students towardplaintiff. Only a few members of her class would participate and/or complete assignments; mostother students were defiant of her and refused to do the required work, and she could not refocusthem properly. He stated that several students had come to him to complain that plaintiff had losttheir test papers and homework assignments and that she was requiring them to repeat work theyhad already done. Alexander also noted an extensive number of misconduct reports plaintiff hadbeen submitting to the school disciplinarian with respect to her students, including the use ofswear words, offensive gestures, refusal to do work, students walking around the classroom or inthe hallway instead of being at their desks and fighting. Alexander testified that many of thesereports related to minor misconduct plaintiff was supposed to handle herself as part of theassertive discipline plan each teacher was required to implement and enforce in their classrooms.

Based on these observations, Alexander issued plaintiff an E-3 Notice on January 24,2001, rating her teaching performance as unsatisfactory. Alexander listed seven reasons for thisrating:

"1. Failure to establish positive learning expectations for students.

2. Failure to maintain up-to-date records of pupil achievement.

3. Failure to periodically evaluate students and show evidence of student progress.

4. Failure to maintain reasonable conduct within the classroom consistent with theprovisions of the Uniform Discipline Code.

5. Failure to practice fairness in teacher-pupil relationships.

6. Failure to use sound professional judgement.

7. Failure to provide a safe, orderly and nicely decorated learning environment forthe students."

Alexander assigned Serena Peterson to be the consulting teacher for plaintiff during the applicable90-day remediation process. Peterson was to help plaintiff meet various goals to raise her ratingto at least satisfactory by providing observation and advice about how plaintiff could improve herteaching performance. Peterson had worked at Pulaski for 11 years, had received superior ratingsfor the last 5 years, taught the same subjects as plaintiff and had her office on the same floor asplaintiff. Peterson accepted the assignment on January 25, 2001.

Alexander, Peterson and plaintiff met to discuss the implementation of a remediation plan. The plan listed what Alexander found to be plaintiff's five primary deficiencies:

"DEFICIENCY #1

[Plaintiff] fails to maintain reasonable student conduct consistent with theprovisions of the Uniform Discipline Code.

***

DEFICIENCY #2

[Plaintiff] fails to establish positive learning expectations for students and topractice fairness in teacher/pupil relations.

***

DEFICIENCY #3

[Plaintiff] fails to evaluate pupil progress and maintain up-to-date records of pupils'achievements.

***

DEFICIENCY #4

[Plaintiff] fails to use sound professional judgment.

***

DEFICIENCY #5

[Plaintiff] fails to provide a safe, orderly, clean, and nicely decorated learningenvironment for the students."

Bullet points containing a variety of suggestions were included after each deficiency, plaintiff'simplementation of which would assist her in improving her classroom skills and in raising herrating; these bullet points totaled over 50 in number. The plan also made clear that Alexander, asthe principal, would be the one to conduct the final evaluation of her progress; Peterson wouldintervene, work with plaintiff and keep a log of her progress; and the ultimate responsibility tocomplete the requirements of the plan would belong to plaintiff. Under the section entitled"Timeline for Completion," the plan stated that it would become effective on February 2, 2001,that plaintiff had 90 school days from that date to complete the plan (to September 26, 2001,bridging into the next school year), that she would be evaluated monthly for the first six months ofthis period and quarterly for six months thereafter, and that an unsatisfactory rating at the end ofthe 90 days may result in dismissal proceedings. Plaintiff, Peterson and Alexander signed theremediation plan.

Soon after, Peterson began working with plaintiff regarding the plan. She conductedmultiple observations of plaintiff's classroom (almost weekly) during the months encompassingthis period. With respect to the advice she gave plaintiff during this time, Peterson testified thatshe made herself available to her by phone, e-mail and in person before, during and after school,and sometimes even at home. Peterson taught her how to improve her lesson planning by using acomputer program and offered her computer to plaintiff any time she wanted to use it. Plaintiffasked Peterson to teach her class so she could observe Peterson's teaching methods as applied toplaintiff's students; Peterson was quite able to keep the students on task. Peterson suggested thatplaintiff reconfigure the students' desk arrangement to instill more order. Peterson also reviewedplaintiff's grade book and pointed out that she should be making entries everyday for the dailyhomework assigned. Peterson provided substitute teachers on various days so plaintiff couldleave her classroom and observe Peterson's teaching style during her class time. Peterson alsorecommended that plaintiff clean up her room and replace her old faded bulletin boards to create abetter learning environment for the students. Peterson further suggested that plaintiff rely less onthe teacher's answer manual, move around the classroom and interact with all the students, notsimply the ones who raised their hands. Peterson also discussed with plaintiff ways she should tryto deal with student misbehavior, including having the students enter into "contracts" andreferring her to other teachers who had successfully used this tool.

As the remediation period progressed, Peterson noted little improvement in plaintiff'sclassroom skills or relationship with her students, and that plaintiff did not implement hersuggestions. Peterson observed that during class time, plaintiff rarely progressed beyondreviewing homework. Plaintiff also spent class time grading assignments, or on one occasionloading disks on computers, instead of presenting actual lessons to the students. Plaintiffoftentimes did not have a lesson plan prepared for the day. As a result, few students paidattention or completed assignments and there was little new instruction. Plaintiff's grade bookremained blank or contained many failing grades. Peterson commented that there was no forwardprogression with the teaching material, "no higher-level thinking was going on," and many ofplaintiff's lessons were boring and lacked objective. Peterson further observed plaintiff'srelationship with the students. Several times, she noted that students misbehaved during class andthough plaintiff would sometimes try to correct them, these situations became worse. During oneclassroom observation, a student became so disruptive that Peterson "couldn't take it" andreprimanded him herself. Plaintiff was still sending a large amount of students to the schooldisciplinarian for minor behavioral infractions which she should have been controlling herself. Onone occasion, plaintiff asked Peterson to handle the discipline of a student who swore in her class.On another occasion, plaintiff ate lunch during her observation of Peterson's class and then beganfalling asleep.

Alexander observed plaintiff in her classroom eight times during the remediation period,completing a Classroom Teacher Visitation form and post-observation conference with plaintifffor each observation; plaintiff signed every observation form. Alexander observed plaintiff first onFebruary 16, 2001, and noted that she did not have a lesson plan, her record keeping was poorand many students were still not handing in homework. The class did not progress beyondhomework review, only half of her students were attentive, and those who were working were notbeing supervised or directed by plaintiff. Alexander next observed plaintiff on March 13, 2001,and noted some improvement, especially in dividing her lesson between review and new work andcommunicating with students. However, there were still many failing grades in her grade bookand she was only calling on students with raised hands. Alexander observed plaintiff on March22, 2001, finding that she had entered only a few grades in her grade book since his lastobservation and only a few students were participating in the class. On April 3, 2001, Alexanderobserved that during the class, plaintiff was trying to complete report cards and teach at the sametime. Alexander asked plaintiff to get up and teach. He noted that the students were "off task,"misbehaving and inattentive, and that plaintiff was not asking effective questions to teach thelesson. Alexander described this class as "deadly boring" and a "waste of time."

Before his next observation, Alexander held a conference with Peterson and plaintiff onApril 26, 2001 and discussed how plaintiff was doing under the remediation plan, Peterson'ssuggestions for lessons and behavior management, and plaintiff's lack of an assertive disciplineplan. Alexander then observed plaintiff on April 30, 2001, again noting continued blanks andfailing grades in her grade book and few students participating. Plaintiff also did not have a lessonplan prepared for that day. On May 16, 2001, Alexander's last visit before the end of the 2000-01school year, plaintiff asked the students to turn to a page in their books and get out theirhomework when the students protested that page had never been assigned. Class was slow tostart and no new material was taught. Alexander's last two observations came during the 2001-02school year. On September 13, 2001, Alexander noted that while plaintiff had improved in somerespects such as more grades in the grade book and a complete lesson plan, she spent timearguing with one student and loading computers instead of teaching the class. Of 12 students leftto work independently, only 3 were actually working; Alexander testified that the rest weretalking and the class was "a waste of time, disorganized, unproductive" and misbehavior was"pervasive." Alexander stated that in his observations of all the sixth-grade classes at Pulaski, theway these students acted in plaintiff's class was "neither ordinary nor acceptable" and that theywere not "misbehaving in [those] way[s] toward other [sixth] grade teachers."

Before his final observation, Alexander scheduled another meeting with plaintiff andPeterson due to what he had seen on September 13, 2001. Alexander and Peterson made furthersuggestions to plaintiff about her classroom and student behavior management. Alexander's lastobservation of plaintiff was on September 26, 2001--the 90th and final day of the remediationperiod. Alexander noted that plaintiff asked some "evocative" questions and properly handlederroneous answers. However, again, there were only a few assignments noted in plaintiff's gradebook, she was not implementing the assertive discipline plan or the lesson plan she was supposedto be using that day, she called on only four or five students exclusively, and she did not explainthe homework assignment for the next class, which she assigned while shouting over studentsafter the class period had ended.

On October 11, 2001, Alexander met with Peterson to discuss her observations of plaintiffduring the remediation period. Peterson shared them as well as her consulting teacher's logdocumenting her visits and interaction with plaintiff during the period. Peterson testified that shetold Alexander she believed plaintiff was not managing her students properly, keeping theirattention or following a lesson plan; instead, throughout the period, students were misbehavingwithout reprimand and plaintiff was consistently using class time to grade homework rather thanto teach. Peterson also noted that plaintiff did not implement any of the suggestions she had givenduring the period, including cleaning her bulletin boards and desk. Peterson had volunteered herstudents to assist plaintiff in this task, but no progress was made beyond that on plaintiff's part. Inaddition, though Peterson made herself available before, during and after school and answered allthe notes and questions plaintiff submitted to her, plaintiff complained about after-school meetingtimes and called Peterson only once or twice during the summer break. Alexander sent plaintiff aletter stating that this meeting with Peterson had taken place.

On October 12, 2001, Alexander sent plaintiff a letter notifying her that after 90 days, shehad failed to complete the remediation plan with a satisfactory or better rating. The letter furtherstated that, due to her lack of sufficient progress, her performance was not remediable and that hewould be recommending her dismissal for cause to the Board. Plaintiff signed the letter, statingthat she had received and reviewed it, albeit under protest. On October 22, 2001, Alexander filledout a Teacher Evaluation Review, listing the dates of the remediation period, the dates of hisobservations and the dates of his post-observation conferences with plaintiff. As "strengths," helisted that plaintiff had improved her grade book in number of assignments and orderliness. As"weaknesses," Alexander commented that plaintiff was inconsistent in her lesson plans, did notimplement an assertive discipline plan, and was not taking measures to correct student behaviorand respect. Alexander gave plaintiff a final rating of unsatisfactory. The Board approvedplaintiff's dismissal for cause.

Plaintiff sought review of her dismissal from a hearing officer. She testified that shebelieved Alexander instituted this whole process due to a confrontation she had with him in thespring of 2000; a student vandalized plaintiff's car while on school property and instead ofreporting it to Alexander, plaintiff reported it to his supervisor. Plaintiff described that Alexanderwas upset that she went "over his head" with the matter. However, during the remainder of hertestimony, plaintiff acknowledged that she had understood the remediation plan, had received allof Alexander's Classroom Teacher Visitation forms reflecting his observations of her class, andhad attended each post-observation conference with him to discuss his comments. In brief, withrespect to her grade book, plaintiff stated that there were few grades because students were notcompleting their work and she was giving them extensions; she also gave grades she believed thestudents deserved, giving zeros or F's if there was no name on the assignment or it wasincomplete. With respect to her lesson plans, she insisted that her classroom computer wasbroken and she did not have a compatible computer at home to make lesson plans on the sameprogram Alexander preferred; however, she admitted that the school library had free computersalways available for her use. Plaintiff testified that she did implement an assertive discipline plan,the "gist" of which was that students were to raise their hands, remain seated, be "orderly," andrespect each other. She disagreed with the accuracy of many of the entries in Peterson'sconsulting teacher's log regarding her observation of plaintiff's classroom. She stated thatPeterson was not always available for consultation and alleged it was Peterson, and notAlexander, who improperly made the final evaluation rating her as unsatisfactory.

Based upon this testimony, as well as that of Alexander and Peterson among others, thehearing officer concluded that plaintiff should be reinstated at Pulaski. While he acknowledgedthat the law allows for just two classroom visits by a principal as a sufficient basis upon which toissue an E-3 Notice as occurred here, the hearing officer found this to be "troubling," especiallyfor a tenured teacher. He also found it "significant" that plaintiff, who with one exception hadreceived excellent or satisfactory ratings since 1990, was now being dismissed. While the hearingofficer concluded that Peterson's log was "generally accurate" and that she was available toplaintiff as much as possible, and that Alexander did not exhibit any "retaliation or bias" in histestimony, he noted that plaintiff's students had scored above average on standardized tests, thesecond-highest among sixth graders at Pulaski. Specifically, and relying on Board of Education ofCommunity Consolidated School District No. 54 v. Spangler, 328 Ill. App. 3d 747 (2002), thehearing officer reviewed the five primary deficiencies Alexander alleged against plaintiff in theremediation plan and found that some were not proven by the Board, some were proven but onlyin part, and none were "serious or grievous" enough to merit dismissal.

After considering the hearing officer's decision, the Board issued a lengthy unanimousopinion and order rejecting it and confirming plaintiff's dismissal. The Board found thatAlexander employed proper procedures for the issuance of the E-3 Notice and the remediationprocess, that plaintiff's teaching performance warranted issuance of the E-3 Notice due to"chronic classroom management problems," and that it had been proven beyond a preponderanceof the evidence that plaintiff failed to satisfactorily complete a remediation plan. The Boardfurther found Spangler distinguishable, and instead reviewed at length the Illinois School Code(105 ILCS 5/34-1 et seq. (West 2000)) (School Code), finding that Alexander had complied in allrespects. The Board ultimately concluded that plaintiff's failure to raise her rating constitutedcause for her dismissal, which was otherwise warranted.

Plaintiff then filed a complaint for administrative review, appealing the decision of theBoard to the trial court. Reviewing the facts of the cause and the applicable standard of review,the court first found that the Board's findings of fact were not contrary to the manifest weight ofthe evidence. It noted no procedural violations in plaintiff's dismissal and that she did indeed failto raise her rating as required under the remediation process, which is cause for dismissal. Second, the court found that the Board's findings of fact provided a sufficient basis for itsconclusion that cause for plaintiff's discharge existed. The court affirmed the Board's decision anddismissed plaintiff's complaint for administrative review.

ANALYSIS

Plaintiff makes several related contentions upon review, all calling for the reversal of theBoard's decision and her reinstatement. Her primary assertions are that the Board, throughAlexander, failed to follow the proper dismissal procedure, thereby denying her due process rightsand rendering her dismissal void; that her teaching performance did not warrant the issuance ofthe E-3 Notice; and that the Board failed to prove she did not satisfactorily complete theremediation plan. Plaintiff also alleges that the Board failed to prove that her dismissal was forcause and, because the hearing officer's recommendation was pursuant to "applicable authority," itmust be upheld. In applying the appropriate standard of review for the administrative decisionrendered here, we will address each of these contentions as they relate accordingly. It is ourconclusion that the decision below was proper in all respects.

Pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1998)), ourreview of an administrative decision to discharge an employee requires a two-step approach. SeeWalsh v. Board of Fire & Police Commissioners, 96 Ill. 2d 101, 105 (1983); Yeksigian v. City ofChicago, 231 Ill. App. 3d 307, 310 (1992). First, we must determine whether the Board'sfindings of fact and decision were against the manifest weight of the evidence. See Walsh, 96 Ill.2d at 105; Yeksigian, 231 Ill. App. 3d at 310. Second, we must determine whether those findingssufficiently support the Board's conclusion that cause for discharge or dismissal existed. SeeWalsh, 96 Ill. 2d at 105; Yeksigian, 231 Ill. App. 3d at 310. Before we employ this two-stepanalysis herein, we make clear that we, as a reviewing court, may not interfere with a board'sdiscretionary authority but, rather, may only review the decision reached by the board todetermine solely whether it is against the manifest weight of the evidence. See O'Boyle v.Personnel Board, 119 Ill. App. 3d 648, 653 (1983), citing Caldbeck v. Chicago Park District, 97Ill. App. 3d 452, 458 (1981); see also Hanrahan v. Williams, 174 Ill. 2d 268, 272 (1996).

A. Part I: Manifest Weight of Evidence

In determining whether the Board's findings of fact are against the manifest weight of theevidence, we examine only the final decision of the Board--the agency charged with theadministration and enforcement of the School Code which governs dismissal--not the decision ofthe trial court, nor that of the hearing officer, which is merely a recommendation to the Board. See Hearne v. Chicago School Reform Board of Trustees, 322 Ill. App. 3d 467, 475 (2001)(Board is vested "with the final administrative decision on teacher *** removal"); see also Danielsv. Police Board, 338 Ill. App. 3d 851, 858 (2003). The Board's findings are considered to beprima facie true and correct, and we may not reweigh the evidence or make any independentdeterminations of fact. See Abrahamson v. Department of Professional Regulation, 153 Ill. 2d 76,88 (1992). Thus, we may not substitute our judgement for that of the Board, and reversal of theBoard's decision is not justified simply because the opposite conclusion is reasonable or becausewe might have ruled differently. See Abrahamson, 153 Ill. 2d at 88.

Instead, in order for us to find that the Board's decision is truly against the manifest weightof the evidence, we must be able to conclude that " 'all reasonable and unbiased persons, actingwithin the limits prescribed by the law and drawing all inferences in support of the finding, wouldagree that the finding is erroneous' (Daniels v. Police Board, 37 Ill. App. 3d 1018, 1023 (1976))and that the opposite conclusion is clearly evident." O'Boyle, 119 Ill. App. 3d at 653, citingJenkins v. Universities Civil Service Merit Board, 106 Ill. App. 3d 215, 219 (1982); see alsoAbrahamson, 153 Ill. 2d at 88 (Board's decision is against manifest weight "only if the oppositeconclusion is clearly evident"); Yeksigian, 231 Ill. App. 3d at 310 (Board's decision is not againstmanifest weight "unless the opposite conclusion is clearly evident [citation] and no rational trier offact, viewing the evidence in the light most favorable to the [Board], could have agreed with the[Board's] determination"). This is an exacting standard and, if there is anything in the record thatfairly supports the Board's conclusion, it is not against the manifest weight of the evidence andmust be sustained. See Finnerty v. Personnel Board of the City of Chicago, 303 Ill. App. 3d 1, 12(1999) (if there is evidence in record to support Board's decision, it must be affirmed).

Our review of the record leads us to conclude that the Board had before it sufficientevidence to support its findings here.

Plaintiff's Dismissal Was Not Void

With respect to plaintiff's contention that Alexander and the Board failed to followprocedure and thereby denied her due process rights, neither the hearing officer nor the Board(nor the trial court, for that matter) found any such violation and we, in reviewing the applicablelaw in relation to the facts of this cause, wholeheartedly agree. Plaintiff makes numerousassertions of violations, claiming that the Board violated the School Code when Alexander failedto issue her ratings and evaluations once every 30 days for the 90-day remediation period, whenAlexander failed to conduct an observation of plaintiff's classroom at the end of the period, andwhen Peterson remained "unavailable" to assist her for weeks. Plaintiff also claims that the Boardviolated the Illinois Administrative Code (23 Ill. Adm. Code