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Rule 23 order filed
September 16, 2004;
Motion to publish granted
November 5, 2004.

In March 2003, the defendant, the Board of Education of Eldorado Community UnitSchool District No. 4 (School Board), informed the plaintiff, Connie Deannine Cook, that shewas to be laid off from her position as a library aide. The plaintiff had previously worked asa teacher's aide for four years. In May 2003, the plaintiff filed a complaint alleging that theSchool Board's failure to place her on seniority lists for both aide positions violated theeducational support personnel layoff statute (105 ILCS 5/10-23.5 (West 2002)) andprovisions of an agreement between the parties settling employment discrimination claims theplaintiff had previously filed against the School Board. She now appeals from an orderdismissing her complaint for the failure to state a claim (735 ILCS 5/2-615(a) (West 2002)). We reverse and remand for further proceedings.

In August 1997, the plaintiff began working in the Eldorado Community Unit SchoolDistrict as a teacher's aide. She worked continuously in that capacity until she suffered an on-the-job injury in August 2001. At that time, she went on leave for medical reasons. InFebruary 2002, the School Board sent the plaintiff a letter informing her that it intended toterminate her employment with the district as a result of her lengthy leave of absence. Inresponse, the plaintiff filed disability discrimination claims with the Equal EmploymentOpportunity Commission (EEOC) and the Illinois Department of Human Rights (IDHR).

On August 9, 2002, the plaintiff entered into a settlement agreement with the district. Pursuant to that agreement, the plaintiff was offered a position as a library aide in anelementary school for the 2002-03 school year. The agreement provided that the SchoolBoard would "assign [the plaintiff] to work in an aide position within her medical restrictions"for the 2003-04, 2004-05, and 2005-06 school years, so long as she was not affected by areduction in force. The contract did not specify whether the district was to assign the plaintiffto a position as a teacher's aide, a position as a library aide, or any available position as ateacher's aide, library aide, playground aide, or lunchroom aide. In exchange for thesepromises of job assignments, the plaintiff gave up her right to pursue her discrimination claimsbefore the EEOC and IDHR, as well as a pending claim before the Illinois Department ofLabor.

In March 2003, the School Board announced a reduction in force. In laying offemployees, school boards are required by statute to maintain lists showing the length ofcontinuing service of educational support personnel such as library aides and teacher's aides. See 105 ILCS 5/10-23.5 (West 2002). These lists are used to determine both the order inwhich employees are laid off and the order in which they are recalled when positions becomeavailable thereafter. As a result of the March 2003 layoffs at the Eldorado school district, theplaintiff, as the least senior of the district's three library aides, was laid off, along with the 10least senior teacher's aides. The plaintiff was placed on the seniority list for library aides butnot the list for teacher's aides. Her seniority was based on her August 1997 start date so thatshe was given credit for all of her years of service to the district, including the year she wasout on medical leave. Only 2 of the 10 teacher's aides who were laid off and placed on theteacher's aide seniority list have more seniority than the plaintiff. The effect of this is that ifa third teacher's aide position becomes available before a library aide position opens up, anemployee with less seniority than the plaintiff will be recalled before the plaintiff.

The plaintiff, through counsel, sent a letter to the School Board and demanded that theteacher's aide and library aide seniority lists be combined because both job titles fall withinthe same category of position. See 105 ILCS 5/10-23.5 (West 2002) (mandating that whenvacancies occur after a reduction in force, those positions are to be offered to qualifiedemployees who were dismissed "from that category of position" (emphasis added)). Alternatively, she requested that she be placed on both recall lists. See 105 ILCS 5/10-23.5(West 2002) (requiring school boards to maintain seniority lists "categorized by positions,showing the length of continuing service of each full[-]time educational support personnelemployee who is qualified to hold any such positions" (emphasis added)). The School Boarddenied the plaintiff's request.

On May 23, 2003, the plaintiff filed the instant two-count complaint. In count I, shesought a writ of mandamus compelling the School Board to comply with the educationalsupport personnel layoff statute (105 ILCS 5/10-23.5 (West 2002)), either by combining theseniority lists for all full-time aide positions or, alternatively, by placing her on the senioritylists for both positions. In count II, the plaintiff alleged that the School Board breached itssettlement agreement with her by failing to give her the full benefit of her seniority. On June30, 2003, the School Board filed a motion to dismiss pursuant to sections 2-615 and 2-619of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2002)). On September 3,2003, the trial court granted the motion to dismiss. The court dismissed count I, finding thatthe plaintiff could not state a clear right to mandamus because the educational supportpersonnel layoff statute gives school boards the discretion to define categories of positions. The court dismissed count II, finding that the settlement agreement did not explicitly requirethe School Board to place the plaintiff on the seniority list for teacher's aides. On September16, 2003, the plaintiff filed the instant appeal.

Our resolution of the issues presented depends upon an interpretation of the educationalsupport personnel layoff statute (105 ILCS 5/10-23.5 (West 2002)). Our review, therefore,is de novo. Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 421, 781N.E.2d 249, 254 (2002). Our primary goal in statutory construction is to effectuate the intentof the legislature. The best evidence of legislative intent may be found in the words of thestatute itself. Land, 202 Ill. 2d at 421, 781 N.E.2d at 254. Where a statute is unambiguous,its words must be given their plain and ordinary meaning without resort to other tools ofstatutory construction. Land, 202 Ill. 2d at 421-22, 781 N.E.2d at 254.

The statute at issue provides, in pertinent part:

"If an educational support personnel employee is removed or dismissed as a result ofa decision of the school board to decrease the number of educational support personnelemployees employed by the board or to discontinue some particular type of educationalsupport service, written notice shall be mailed to the employee ***. The employeewith the shorter length of continuing service with the district, within the respectivecategory of position, shall be dismissed first ***. If the board has any vacancies forthe following school term or within one calendar year from the beginning of thefollowing school term, the positions thereby becoming available within a specificcategory of position shall be tendered to the employees so removed or dismissed fromthat category of position, so far as they are qualified to hold such positions." (Emphases added.) 105 ILCS 5/10-23.5 (West 2002).

The plaintiff argues that the statute requires the School Board to place her on a senioritylist for every position that she is qualified to hold. She points to the requirement that eachcategory's seniority list include "each full[-]time educational support personnel employee whois qualified to hold any such positions". 105 ILCS 5/10-23.5 (West 2002). She argues thatbecause educational support employees must necessarily be qualified to hold the positionsthey actually hold prior to a layoff, the quoted language would be superfluous if the statute didnot require such employees to be placed on seniority lists for additional positions. Thisargument fails to distinguish between "positions" and "categories of positions". Employees arenot necessarily qualified to hold every position in the same category as the position they holdwhen they are laid off. The statute, by its express terms, requires only that positions be offeredto employees who were laid off from the same category of positions. Likewise, the statuteonly requires that the order of dismissal be based on seniority "within the respective categoryof position". (Emphasis added.) 105 ILCS 5/10-23.5 (West 2002). Thus, the requirement thateducational support employees be included in seniority lists for all the positions they arequalified to hold simply means that the School Board must include each employee in senioritylists for every position she is qualified to hold within the category of positions from which shewas laid off-whether there is a single list for the entire category (as is the School Board'spractice) or separate lists for each individual position (as some of the statutory language seemsto anticipate).

The plaintiff also argues that the statute should be construed consistently with judicialinterpretations of similar language in the teacher tenure law (105 ILCS 5/24-12 (West 2002)). Illinois courts have held that the purpose of the teacher tenure law was to provide tenuredteachers with job security to ensure continued service by experienced teachers, therebyimproving the quality of Illinois schools. Birk v. Board of Education of Flora CommunityUnit School District No. 35, 104 Ill. 2d 252, 257, 472 N.E.2d 407, 409 (1984); McNely v.Board of Education of Community Unit School District No. 7, 9 Ill. 2d 143, 147, 137 N.E.2d63, 66 (1956). Thus, it is to be interpreted in such a way to avail tenured teachers of its fullprotections. Birk, 104 Ill. 2d at 257, 472 N.E.2d at 409. Consistent with this statutorypurpose, courts have interpreted language nearly identical to that in the educational supportpersonnel layoff statute to include an implicit requirement that employees be recalled in theorder of their seniority and be laid off in the reverse order of their seniority. Costello v.Governing Board of Lee County Special Education Ass'n, 252 Ill. App. 3d 547, 551, 623N.E.2d 966, 971 (1993). The School Board argues that the plaintiff's reliance on cases suchas Costello is misplaced because the teacher tenure law expressly applies only to teachers. We need not resolve this disparity in the parties' positions. We agree with the plaintiffthat, as a general matter, cases interpreting the teacher tenure law may be applicable to thesimilar provisions in the educational support personnel layoff statute. See Verdeyen v. Boardof Education of Batavia Public School District No. 101, 150 Ill. App. 3d 915, 925-27, 501N.E.2d 937, 943-45 (1986) (looking to cases interpreting the teacher tenure law to decide adispute relating to a school nurse's tenure under a different statute). There is, however, onekey difference between the relevant language of the two statutes that renders the teacher tenurelaw cases inapposite to the issue before us-the teacher tenure law does not address categoriesof teaching positions. See 105 ILCS 5/24-12 (West 2002) ("[T]he teacher or teachers withthe shorter length of continuing service with the district shall be dismissed first ***. *** Ifthe board has any vacancies ***, the positions *** shall be tendered to the teachers soremoved or dismissed ***"). The only issue in the instant case is how the School Board mustcategorize the plaintiff for seniority purposes. Because the teacher tenure law, which coversa much narrower range of employees than the educational support personnel layoff statute,does not address categories of employees, the cases cited by the plaintiff do not aid us in ourdetermination.

Because the statute is silent regarding how categories of educational support personnelare to be determined, we agree with the School Board that school boards have the discretionto make this determination as they see fit. We believe, however, that the plaintiff's petition andsupporting documentation raise a genuine issue of material fact regarding how broadly theSchool Board defines the category of positions in which she worked. As noted, the SchoolBoard brought its motion to dismiss pursuant to both sections 2-615 and 2-619 of the Codeof Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2002)). In ruling on a motion to dismisspursuant to section 2-615, courts are to take all well-pleaded facts as true. Lykowski v.Bergman, 299 Ill. App. 3d 157, 162, 700 N.E.2d 1064, 1069 (1998). On appeal from an ordergranting a motion to dismiss pursuant to section 2-619, the issue is whether a genuine issueof material fact exists that would preclude a dismissal. Lykowski, 299 Ill. App. 3d at 164, 700N.E.2d at 1070. Under either standard, the plaintiff's complaint should not have beendismissed.

The plaintiff specifically alleged in her complaint that teacher's aide and library aidepositions are both a part of the same category of positions-that of "aides". Although we do notfind the fact that both job titles contain the word "aide" meaningful, we find that the recordcontains evidence to support the contention that the two job titles are in fact treated as onecategory of position for all purposes other than layoff and recall. The plaintiff stated in heraffidavit that the School Board regularly reassigned employees who worked as teacher's aidesone year to work as library aides the next and vice versa. She also stated, however, that sheworked continuously as a teacher's aide for four years until she was injured. As stated, thesettlement agreement provides that the School Board would place the plaintiff in "an aideposition" after the 2002-03 school year, which tends to support the plaintiff's allegation. Thecollective bargaining agreement between the plaintiff's union and the district appears to treatall full-time aides as one category of employee. The salary schedule contains only oneclassification, simply called "aides". We note that the collective bargaining agreementrecognizes a separate category for part-time aides-which, unlike the full-time aide category,is mirrored by the School Board's single seniority list for part-time teacher's aides, playgroundaides, and lunchroom aides. Finally, we note that there are strong similarities between the twotypes of full-time aide positions. The job description for the library aide position includes,in addition to clerical duties, teaching classes of children in the mornings (by reading to them)and monitoring children using the library. Although the record does not contain a descriptionof the teacher's aide duties, we presume that the position likewise requires the aide to assistin teaching classes and to monitor children's behavior in the classroom.

While we agree that the statute gives school boards the discretion to define categoriesof positions, we do not think it gives them the discretion to define categories of positionsdifferently for layoff and recall purposes than for other purposes. Either all full-time aidesare one category of employee or they are not. If the district does treat aides as one category,the statute imposes a nondiscretionary duty on the School Board to place the plaintiff onseniority lists for all full-time aide positions, whether they are maintained as a single list orseparate lists. Because the plaintiff has raised a genuine issue regarding how the districtdefines the category of positions, we must reverse the order dismissing count I of hercomplaint and remand for further findings.

In count II of the plaintiff's complaint, she requested the court to declare that the SchoolBoard breached the parties' settlement agreement by refusing to place her on the seniority listfor teacher's aides. She contends, as she did at the trial, that even if the educational supportpersonnel layoff statute does not require the School Board to do so, the parties' agreementdoes. Although the contract does not expressly include a provision requiring the School Boardto place the plaintiff on the teacher's aide seniority list, for the reasons which follow, we findthat she has at least raised a genuine issue of material fact regarding whether such a duty isimplicit in the Board's express promise to offer her "an aide position within her medicalrestrictions" in the following three school years.

Paragraph 3 of the settlement agreement provides that the agreement is contingent uponthe plaintiff being selected for the library aide position at Eldorado Elementary School for the2002-03 school year. The plaintiff was selected for the position, and the contingency is notat issue. What is significant, however, is that the agreement describes the plaintiff'sassignment to the position as being "for the 2002-2003 school year". (Emphasis added.) Withrespect to the plaintiff's job assignments after the 2002-03 school year, paragraph 3C of theagreement provides, in pertinent part, as follows:

"For the 2003-2004 through 2005-2006 school years, so long as [the plaintiff] is notaffected by a reduction in force or otherwise terminated in accordance with thecollective bargaining agreement, board policy, and State and Federal laws, the Districtwill assign [the plaintiff] to work in an aide position within her medical restrictions,provided the medical restrictions do not preclude [the plaintiff] from performing theessential functions of her assigned duties with any reasonable accommodationsrequired by the [Americans with Disabilities Act of 1990 (42 U.S.C.