source: Caselaw Access Project

author: JUSTICE COUSINS

license: Public Domain

text:
    BOARD OF EDUCATION OF SCHAUMBURG COMMUNITY CONSOLIDATED SCHOOL DISTRICT No. 54, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees.
    First District (5th Division)
    No. 1—91—1505
    Opinion filed May 28, 1993.

      Vedder, Price, Kaufman & Kammholz, of Chicago (James C. Franczek, Jr., and Andrea R. Waintroob, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Michael H. Slutsky, of Cotton, Watt, Jones & King, of Chicago, for respondent Schaumburg Education Association IEA/NEA.
   JUSTICE COUSINS

delivered the opinion of the court:

Petitioner/appellant, Board of Education of Schaumburg Community Consolidated School District No. 54 (District), appeals a final administrative order entered against it by respondent/appellee Illinois Educational Labor Relations Board (Board). The Board, in affirming in part and reversing in part the hearing officer’s recommended decision and order, stated that (1) the District violated sections 14(a)(1) and 14(a)(3) of the Illinois Educational Labor Relations Act (Act) (111. Rev. Stat. 1989, ch. 48, pars. 1714(a)(1), (a)(3)) by reassigning Beverly Gorski (Gorski) to another grade, (2) the District violated section 14(a)(1) of the Act by transferring Kay Wojcik (Wojcik) to another school, and (3) the District violated section 14(a)(1) of the Act by issuing Mary Beth Roemer (Roemer) a letter on her teaching performance. The Board further found that the District did not violate section 14(a)(3) of the Act by transferring Wojcik or by issuing the letter to Roemer. In addition, the Board found that the District did not violate section 14(a)(1) by engaging in unlawful surveillance.

The issues presented for review are (1) whether the Board’s ruling that the District took adverse action against teachers Wojcik and Roemer because they engaged in activity protected by section 3(a) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1703(a)) is based on an over-broad and erroneous interpretation of the Act and is contrary to the manifest weight of the evidence, (2) whether the Board’s ruling that the District reassigned teacher Gorski because she engaged in union activities is based on a misapplication of the burden of proof and is contrary to the manifest weight of the evidence and the law, and (3) whether the remedy ordered by the Board is excessive and overbroad.

We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

The Schaumburg Education Association IEA/NEA (Association) is the exclusive bargaining representative of the District’s employees. The District employs approximately 1,000 teachers at 26 schools, including Blackwell Elementary School (Blackwell). A collective bargaining agreement between the parties was effective from the 1987-88 school year through the 1989-90 school year.

Dr. Bernard Lucier (Lucier) became the principal of Blackwell at the beginning of the 1985-86 school year. His predecessor had been reassigned to the classroom, in part, as a result of teacher complaints about him. At the time Lucier was assigned to Blackwell, the school was divided into two camps.

Lucier’s primary charge was to try to heal the divisions at Blackwell. In order to improve school climate, during the 1985-86 school year, Lucier, along with District Superintendent Kritzmire and a consultant, decided to form a team mainly composed of the most influential Blackwell teachers. The team, which included Wojcik and Roemer, was called the Principal’s Advisory Council. Wojcik and Roemer had opposed the previous principal.

Sometime in April 1989, a teacher approached Association building representative and Blackwell teacher Gorski and complained that Lucier had not told her how she could improve her performance when he evaluated her. Other teachers joined in the discussion about the evaluation process. After speaking to Association president William Eliasek (Eliasek), Gorski decided to conduct a survey. She distributed notices of an Association meeting at which the survey would be conducted.

On April 25, 1989, an Association meeting was held in Gorski’s classroom, with Wojcik and Roemer among those present. As the teachers entered the meeting, Gorski and Wojcik saw Lucier standing in the hallway nearby.

Lucier often walked around the hallways to check the condition of the school. On April 25, 1989, Lucier noticed a group of teachers entering Gorski’s classroom. He was surprised because he assumed that a different meeting was taking place. He asked where the teachers were going, a teacher responded that the reading meeting was shortened for an Association meeting, Lucier replied “okay,” and walked back to his office. The record is not clear whether Lucier saw Wojcik and Roemer attending the meeting.

Gorski and Association building representative Heather Gabryelewicz (Gabryelewicz) conducted the meeting. Gorski asked the teachers to complete a questionnaire. The questionnaire was designed to determine the teachers’ feelings about the evaluation process. Wojcik and Roemer completed the questionnaire during the meeting and returned it to Gorski.

On May 1, 1989, Gorski and Gabryelewicz presented a summary of the questionnaire responses to Lucier. Lucier explained why he did not put comments in the “area(s) for improvement” sections of the evaluations, but agreed to take the questionnaire requests under advisement.

After meeting with Lucier, Gorski and Gabryelewicz distributed notices of another Association meeting which was held on May 4, 1989, in Gorski’s classroom. Wojcik and Roemer were present. Lucier was not aware of the meeting.

At the May 4, 1989, meeting, Gorski and Gabryelewicz told the teachers about their discussion with Lucier and the results of the questionnaire. Gorski said that there might be a meeting with Lucier, one of the District’s superintendents, and Association president Eliasek to further discuss evaluations.

Roemer, along with Blackwell teacher Cathy Werner (Werner), made some comments at the meeting. Wojcik testified that she did not make any comments at the meeting because she did not want to appear to be a leader. Lucier was not aware of Roemer’s comments.

INVOLUNTARY REASSIGNMENT OF BEVERLY GORSKI

Lucier had been concerned for some time about the closeness with which Gorski and another second-grade teacher, Penny Ackman (Ackman), worked. Gorski and Ackman had taught second grade for 9 and 10 years, respectively, and had consistently indicated second grade as their grade preference. After talking with other second-grade teachers, Lucier became aware that Gorski and Ackman worked so closely to the exclusion of other second-grade teachers.

So that Gorski and Ackman would have contact with other teachers, in 1987, Lucier attempted to separate Gorski and Ackman by placing their classrooms on different floors. He did not execute this plan because of Gorski’s and Ackman’s vehement opposition.

However, in the fall of 1988, Lucier again spoke to Ackman about the close working relationship between her and Gorski. Lucier told Ackman that, although he highly regarded the work the two had done, he thought that it would be healthy for them to work with other teachers and to consider making a change in the future. Ackman asked whether both she and Gorski could be transferred if two positions became open in a higher grade level and Lucier responded affirmatively.

During the 1988-89 school year, there were four second-grade classes at Blackwell. Gorski and Ackman each taught a class, Debbie Zollner (Zollner), taught a third class, and a job-sharing team of Werner and Susan Walsh (Walsh) taught the remaining class. Werner and Walsh were in their first year of teaching second grade after having been transferred from other grade levels.

Several times during the 1988-89 school year, Walsh complained to Lucier that she felt excluded from second-grade matters. Because of these complaints, it appeared to Lucier that the second-grade teachers were not working in harmony. Instead, it appeared that Gorski and Ackman worked together, the job-sharing team worked with each other, and Zollner worked alone.

In approximately February 1989, Lucier discovered that it was necessary to reduce the number of second-grade classes at Blackwell from four to three and to add a first-grade class. In March, when making his tentative staffing assignment for 1989-90, Lucier decided to move Werner and Walsh to the vacant first-grade position. Werner and Walsh initially agreed.

However, Werner later told Lucier that she preferred to stay at the second-grade level. Lucier testified that, after talking with Werner, he realized that fairness dictated that Gorski or Ackman move, rather than Werner and Walsh, and that this would be best for the building. He decided in April to move Gorski, rather than Ackman, because he felt that Ackman would take the move harder.

Lucier decided that, if Gorski rejected the first-grade assignment, he would give it to third-grade teacher Gabryelewicz and place Gorski in the third grade. Gabryelewicz had expressed a desire to change grades. Gorski’s grade preference form showed second grade as her first choice, fourth grade as her second choice, and fifth grade as her third choice. Lucier did not meet with Gorski as was the past practice.

Lucier testified that in making grade assignments, his intention was to do the right thing. He felt that Gorski was a superior teacher and had given her that rating on her 1988-89 performance evaluation. He thought Gorski’s strong language arts background would be particularly valuable to a third-grade class. He was aware that Gorski was an Association building representative. The record does not indicate whether Ackman participated in Association activities.

On May 2, 1989, Lucier prepared a memorandum entitled “Personnel Plan to Maintain Blackwell as a High Quality School.” He directed the memorandum to several District administrators. The memorandum recommended specific personnel action regarding Gorski, Wojcik, Roemer, and Blackwell teacher Gail Riss (Riss). Lucier thought his overall recommendation would be in the best interest of the school and would improve the school climate. Concerning Gorski, the memorandum stated:

“The team of Penny Ackman and Bev Gorski should be split up with Penny remaining in second and Bev moving on to another grade. This action would be a follow up to previous private discussion with them and would be helpful to them as individuals and to the building. Plan also seems fair in that they have been together in grade 2 for nine years while others are always forced to move because ‘Penny’ indicates they do not want to be split up.”

Lucier met with Gorski on May 5, 1989, to inform her of her reassignment. He told her that he had decided to move her or Ackman from the second grade and that he felt she would be the best person to move. When Gorski asked why she was being reassigned, Lucier said it was for the good of the school. He offered her positions in the first or third grade.

Gorski asked Lucier if she would be considered for any future second-grade openings. Lucier answered in the negative. Gorski also told Lucier that she felt she was being punished. Lucier did not respond. Lucier had not mentioned to Gorski before the May 5, 1989, meeting that she might be assigned to another grade for 1989-90.

INVOLUNTARY TRANSFER OF KAY WOJCIK

Blackwell teacher Wojcik served on the Association negotiations and bargaining committee in 1987. She was also involved in Association activities during the 1989-90 school year.

In April 1989, Lucier evaluated Wojcik under the evaluation plan developed by the District and the Association. Only certain provisions of the evaluation plan are a part of the collective bargaining agreement and subject to the contractual grievance and arbitration process. These provisions primarily concern evaluation procedures. While the contractual provisions do not include the evaluation form itself, they contain references to the form. The evaluation form contains an “area(s) for improvement” section and states that the evaluator is to indicate suggestions for improvement. Nothing else in the evaluation plan requires that these sections be completed.

There are four ratings under the plan: superior, excellent, satisfactory, and unsatisfactory. Lucier rated Wojcik as “excellent.” Wojcik received her evaluation on approximately April 11, 1989. Lucier scheduled a conference for April 13, 1989, to discuss the evaluation with Wojcik.

Before the conference, Wojcik submitted to Lucier a letter stating:

“These are the questions that I plan to ask about my evaluation. Since I rated less than superior, I am anxious to learn ways to improve my work.
1. Is it possible for me to earn a higher rating?
2. If so, what specific things do I have to do to earn a higher rating?
3. Would you fill in the appropriate areas for improvement on my written evaluation?
4. Based on your written evaluation, I am assuming that I received a satisfactory rating on my lesson plans. Why was I not told that lesson plans were only satisfactory prior to final evaluation?
5. Did you look at my lesson plans or those of my student teacher?
6. Is my actual classroom teaching less than superior?
7. Do you feel that I do not provide leadership at my grade level?
8. Why are last year’s committees and involvements excluded from my evaluation? Program Assessment (half year), Discipline, PAC (included). Also took advance curriculum design Workshop and Cooperative Learning Workshop.
9. Do you believe that I am punctual for bus duty, door duty, daily attendance, and arrive at my room before the children in the morning?
10. Do you think that I work well with colleagues?
11. Do you feel that I need to lead more/less?
12. Do you think that I have adequate discipline in my room for a superior rating?
13. Do you believe that I have to foster better behavior in my room?
14. Do you see that I lack flexibility?
15. Do you think that I should be less opinionated in a group situation? Should I speak up less?
16. Do you believe that I lack policy adherence?
17. Is my record keeping accurate enough to earn a higher rating?
18. Do you think that parent contact is adequate for superior rating?
19. In what ways do I and do I not serve as a role model for others?
20. Do you think I am not enthusiastic and supportive?”

Lucier felt disappointed and insulted by the questions.

Lucier and Wojcik met on April 13, 1989, to discuss Wojcik’s evaluation. At the meeting, Wojcik repeatedly attempted to get answers to her questions, and Lucier consistently refused to answer the questions or advise her on specific improvement. Their major dispute was whether Lucier was required to fill in the “area(s) for improvement” section of the evaluation form.

Wojcik also asked Lucier why he had not rated her as a superior teacher. Lucier initially refused to respond. However, he later stated two examples of why Wojcik did not receive a superior rating.

At the end of the meeting, Wojcik stood up and abruptly said that she had to leave, that she could no longer work with Lucier, and that she might consider getting a transfer to another school.

On the morning of April 14, 1989, a group of teachers, including Wojcik, stood in the main office discussing the Illinois State lottery and their plans if they won the standing jackpot. One teacher said he or she would quit, another said that he or she did not know what he or she would do, and Wojcik said that she would not quit her job but would stay and harass Lucier. Laughter surrounded all of these comments, and the atmosphere was light. However, Blackwell secretary Lonna Schwerin reported Wojcik’s comment to Lucier because she considered Wojcik’s statement to be unprofessional.

Prior to the April 13, 1989, evaluation conference, Wojcik complained to Association president Eliasek that Lucier had not completed the “area(s) for improvement” section of her evaluation. After the evaluation conference, Wojcik again raised this concern to Eliasek, and also described the conference to him. Eliasek contacted Lucier and assistant superintendent Barbini. On April 24, 1989, Eliasek met with Lucier. During their conversation, they discussed Lucier’s failure to fill in the “area(s) for improvement” sections on evaluation forms.

On the evening of April 24, 1989, Lucier prepared a memorandum entitled “Chronology of Events Related to the Evaluation of Kay Wojcik.” The memorandum stated in part:

“Special note: It is principal’s opinion that the actions taken by Mrs. Wojcik:
1. Showed disrespect to Dr. Lucier as the building principal.
2. Were detrimental to the morale of Blackwell School which the principal and staff have worked hard to develop.
3. Were unprofessional in nature and anything but the model behavior called for in many of the superior rating categories.
Dr. Lucier’s request would be for the District to assign Mrs. Wojcik to another building site for the 1989-90 school year at the request of the Blackwell principal. (Mrs. Wojcik has stated her desire for a transfer and on her preference sheet a junior high position.) Should that not be possible, building administrator would like advice and direction from central office on the best way to officially record this incident. Principal is concerned about future negative effects on building morale given Mrs. Wojcik’s feelings regarding the building principal.
What kind of support on other issues can Dr. Lucier expect from a teacher who went through all of the above in response to being called an excellent teacher by her principal?”

According to Lucier, the conduct to which he referred was Wojcik’s 20 questions, her actions at the conference, and her comment about the lottery. Lucier testified that he wanted to give Wojcik the opportunity to be evaluated by another principal, since her conduct at the evaluation would affect his next evaluation of her. At the time Lucier drafted the memorandum, he had not discussed his recommendation with Wojcik.

Lucier’s May 2, 1989, memorandum entitled “Personnel Plan to Maintain Blackwell as a High Quality School” discussed Wojcik as follows:

“Kay Wojcik should be assigned to another school in District 54. Write up should be included in her file, but should center on her desire to be considered a superior teacher and the fact that at Blackwell that no longer seems possible. Focus should be that working under a new principal would give her an opportunity to get a fresh start in her efforts to gain the top rating. Kay’s challenge would be to prove that it was simply a misunderstanding between principal and teacher as well as going through the new evaluation process for the first time.”

Lucier’s recommendation was approved at his May 2, 1989, meeting with District administrators.

On May 24, 1989, a District personnel administrator informed Wojcik that the District had decided to transfer her to a different school. The District’s decision was based on information Lucier provided. The personnel administrator did not speak to Wojcik before May 24,1989.

LUCIER’S LETTER ON THE TEACHING PERFORMANCE OF MARY BETH ROEMER

In late March or early April 1989, Roemer sent a final warning of a student’s suspension from the school lunch program to the student’s mother, together with an explanatory note. When the student’s mother later approached Lucier, Lucier told the student’s mother that he would have Roemer telephone her.

On April 26, 1989, Lucier suggested that Roemer call the student’s mother. Roemer replied that she had sent the note and that the student’s mother had not tried to contact her. Roemer also stated that it was not necessary for her to be involved, since it was a lunchtime problem. Lucier, however, again suggested that Roemer call the student’s mother. He did not tell Roemer that what she said was unprofessional or otherwise unacceptable. The record does not indicate that Roemer made the telephone call which Lucier had suggested.

Also on April 26, 1989, approximately 15 sixth graders approached Lucier and complained about what they considered unjustified group punishment. The students were not from Roemer’s class. On April 27, 1989, Lucier called a meeting of the three sixth-grade teachers, including Roemer, to discuss student discipline. At the meeting, Roemer told Lucier that it “took a lot of guts for those students to corner you like that and surround you and talk to you about this.” Lucier responded that he would rather deal with a group of students than with hostile parents. Lucier’s impression was that Roemer challenged his right to listen to students or parents without first consulting the teacher. Lucier did not otherwise criticize Roemer’s comment during the meeting.

During this same period, assistant principal Joan Gazdic (Gazdic) complained to Lucier about Roemer’s attitude toward the clinical supervision process. In late April or early May, Gazdic sent out the remaining notices of the third round of clinical supervision conferences. During that time period, when Gazdic was in the teachers’ lounge, Ackman asked Gazdic whether there would be a third observation or whether she had received a notice by mistake. Gazdic responded that she would conduct a third observation of all teachers.

Shortly thereafter, Roemer entered the lounge. Ackman said to Roemer something such as, “Good news, Mary Beth, we do get evaluated a third time.” Roemer’s response was something such as “Oh goody” or “Oh great.” Roemer, Ackman, and Gazdic all laughed. During the conversation either Roemer or Ackman asked Gazdic why she was conducting a third observation when only two were required. Gazdic explained that she and Lucier had agreed that there would be three observations, if possible.

Gazdic felt embarrassed because other teachers in the lounge could hear the exchange. However, she did not complain to Roemer or Ackman about their conduct.

Afterwards, Gazdic reported the incident to Lucier, since she felt challenged and felt it was necessary to inform him that teachers were questioning the need for a third observation. To Lucier, Gazdic seemed more concerned with Roemer than with Ackman, since Gazdic had previously told him that Roemer had a lax attitude about the clinical observation process and that she had encountered difficulty in scheduling Roemer’s second observation.

As part of his May 2, 1989, memorandum to District administrators, Lucier recommended that Roemer be written up or transferred. The record does not show what the administrators decided or said. On May 5, 1989, Lucier wrote Roemer a letter about her teaching performance. The letter stated:

“Sometimes a point of view or behavior can creep into a teacher’s performance without the individual even being aware of it. Hopefully that is the case regarding a pattern that I have observed with Mary Beth Roemer.
Specifically, a questioning attitude has been gradually replacing the positive outlook I associated with Miss Roemer when she was a grade 1 teacher a few years back.
In relation to the principal or assistant principal, she will be heard to say ... what right does that parent have to see you, what right do those students have to stop and talk to you, what right does the Blackwell administration have to conduct a third clinical supervision round?
This questioning attitude creates the feeling that the parents or the administration is the opposition rather than the people with whom we work openly on behalf of the students.
During the upcoming 1989-90 school year I feel it is most important for Mary Beth to work toward a more positive, supportive attitude in her relationships with administration, staff, CST, and parents.
My concern relative to the District 54 Teacher Evaluation Plan centers on professionalism and in particular staff communications. Review of the matrix in this area could be very helpful. Miss Roemer has much to offer the field of education and Blackwell School, but the items described above are standing in the way. I would be happy to work together to get them corrected.” (Emphasis in original.)

Lucier took no similar action against Ackman. He testified that his concern with Ackman was minor compared to his concern with Roemer, because of the situations which occurred regarding Roemer.

On May 5, 1989, Lucier met with Roemer to discuss the letter. At the meeting, Roemer asked Lucier for more specific information about criticism made of her. Lucier gave her two examples which involved the Principal’s Advisory Council and the District Child Study Team. Before the meeting, Lucier did not discuss with Roemer any of the incidents which led to the letter.

Lucier’s May 5, 1989, letter was copied to Roemer’s personnel file. Lucier stated at the meeting that, if he believed she had shown improvement in the 1989-90 school year, the letter would be removed from her file at the end of the year and would not become a part of her formal evaluation. When the hearing in this case took place February 6, 7, and 9, 1990, the May 5, 1989, letter was still in Roemer’s file.

ADMINISTRATIVE PROCEEDINGS

The Association filed an unfair labor practice charge against the District alleging that the District had violated the Act by observing the April 25 Association meeting, by transferring Wojcik to another school, by transferring Gorski to another classroom, and by issuing the letter to Roemer.

The hearing officer decided that (1) the District did not violate section 14(a)(1) of the Act when Lucier observed the April 25, 1989, Association meeting since he did not engage in unlawful surveillance (this finding is not a part of this appeal), (2) the District did not violate sections 14(a)(3) and 14(a)(1) of the Act by reassigning Gorski since the District acted for reasons other than Gorski’s protected concerted activities, and (3) Wojcik and Roemer engaged in protected and unprotected activities but Lucier did not recommend Wojcik’s transfer or write the letter to Roemer because of their protected activities.

The Association filed exceptions to the order, contending (1) that the District engaged in unlawful surveillance, (2) that the District violated sections 14(a)(3) and 14(aXl) of the Act by reassigning Gorski, (3) that the District was unlawfully motivated and that its asserted legitimate reasons did not withstand scrutiny, (4) that the transfer of Wojcik and the letter to Roemer violated sections 14(a)(3) and 14(a)(1), (5) that all of Wojcik’s actions were protected, (6) that there was evidence of the District’s unlawful motivation and the District’s asserted legitimate reasons were pretextual, and (7) that Roemer’s activity at issue was protected and, therefore, the District’s actions were unlawfully motivated.

The District responded that it did not engage in unlawful surveillance and that there was no link between Gorski’s protected activities and her reassignment, and that the District instead acted for legitimate reasons. The District argued that the hearing officer correctly concluded that certain of Wojcik’s behavior was unprotected. The District also argued that there was no causal connection between Wojcik’s protected activities and her transfer. Finally, the District contended that Lucier’s letter to Roemer resulted from activities that were not protected under the Act.

The Board, in affirming in part and reversing in part, found (1) that the District violated sections 14(a)(1) and 14(a)(3) of the Act by reassigning Gorski to another grade, (2) that the District violated section 14(a)(1) of the Act by transferring Wojcik to another school and by issuing Roemer a letter on her teaching performance, (3) that the District did not violate section 14(a)(3) of the Act by transferring Wojcik or by issuing the letter to Roemer, and (4) that the District did not violate section 14(a)(1) by engaging in unlawful surveillance.

The Board ordered the District to (1) cease and desist from (a) interfering, restraining, or coercing employees in the exercise of rights guaranteed under the Act, (b) discriminating in regard to hire or tenure of employment or any term of employment to discourage membership in the Association, (2) take the following affirmative action to effectuate the policies of the Act: (a) assign Gorski to teach a second-grade class at Blackwell, (b) reinstate Wojcik in her position at Blackwell, (c) remove from Roemer’s personnel file principal Lucier’s May 5 letter regarding her teaching performance, (d) make whole the three teachers, (e) post on bulletin boards in all District buildings copies of an appropriate notice to employees for 60 days, and (f) notify the executive director in writing within 35 calendar days after receipt of opinion and order of the steps taken to comply with said order.

One Board member concurred in part and dissented in part. While agreeing that the Association established a prima facie case of a section 14(a)(3) violation, he concluded that the District rebutted that prima facie case by establishing legitimate reasons for Gorski’s reassignment: Lucier was concerned with the closeness with which Gorski and Ackman worked, Lucier considered that it was fair to require Gorski or Ackman rather than the job-sharing team to move to another grade level, other teachers repeatedly complained to Lucier on the topic, Lucier attempted to separate Gorski and Ackman in 1987 and spoke to Ackman in the fall of 1988 about her and Gorski working with other teachers, and Lucier’s concerns predated the concerted activities in issue. According to the Board member, the aforementioned reasons suggested that the District would have reassigned Gorski even if she had not engaged in protected union activity. Moreover, according to this Board member, Luciér wanted to be fair. Gorski and Ackman had taught the second grade much, longer than other second-grade teachers. The Board member also disagreed with the majority’s reliance on the timing of Lucier’s actions.

This appeal followed.

Opinion

Section 3(a) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1703(a)) provides:

“It shall be lawful for educational employees to organize, form, join, or assist in employee organizations or engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid and protection or bargain collectively through representatives of their own free choice and, except as provided in Section 11, such employees shall also have the right to refrain from any or all such activities.”

Sections 14(a)(1) and 14(a)(3) (Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(1), (a)(3)) of the Act provide:

“(a) Educational employers, their agents or representatives are prohibited from:
(1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.
***
(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization.”

I

As with other administrative review cases, the findings and conclusions of the Board on questions of fact are considered prima facie true and correct. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085.) Courts may not interfere with the discretionary authority vested in an administrative agency unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence. Murdy, 103 Ill. 2d at 391; Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 906, 493 N.E.2d 1130.

A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in the light most favorable to the agency, the court determines that no rational trier of fact could have agreed with the agency’s decision. Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1094, 492 N.E.2d 929.

Reviewing courts may not reweigh the evidence or substitute their judgment for that of the agency. Their sole function is to ascertain whether the findings of the administrative agency are contrary to the manifest weight of the evidence. Murdy, 103 Ill. 2d at 391; Board of Education of Plainfield, 143 Ill. App. 3d at 906.

However, courts of review are not bound by an agency’s interpretations of law. (Board of Education of Plainfield, 143 Ill. App. 3d at 907.) Reviewing courts may find an agency’s findings to be contrary to the manifest weight of the evidence only when, in examining the record, the reviewing court finds that an opposite conclusion is clearly evident. King v. City of Chicago (1978), 60 Ill. App. 3d 504, 509, 377 N.E.2d 102.

Further, reviewing courts are not bound to give the same deference to an administrative agency’s conclusions of law and statutory construction as would be given factual findings, on which a reviewing court must exercise independent review and judgment. Illinois Bell Telephone Co. v. Human Rights Comm’n (1989), 190 Ill. App. 3d 1036, 1046, 547 N.E.2d 499.

For reasons hereinafter stated, we hold that the Board’s determination that the District committed unfair labor practices was against the manifest weight of the evidence.

II

The District contends that the Board’s ruling that the District took adverse action against teachers Wojcik and Roemer because they had engaged in activity protected by section 3(a) of the Act is based on an overbroad and erroneous interpretation of the Act and is contrary to the manifest weight of the evidence.

The Board agreed with the hearing officer that there was no link between protected union activity and the actions taken by the District with respect to Roemer and Wojcik. Accordingly, it concluded that there were no violations of section 14(a)(3) with respect to either teacher. However, the Board reversed the hearing officer and held that the District had violated section 14(a)(1) of the Act.

Section 14(a)(1) prohibits employers from “[interfering, restraining or coercing employees in the exercise of rights guaranteed under” the Act. (Ill. Rev. Stat. 1989, ch. 48, par. 1714(a)(1).) One of the rights guaranteed under section 3 is the right to engage in “lawful concerted activities for the purpose of *** mutual aid and protection.” (Ill. Rev. Stat. 1989, ch. 48, par. 1703(a).) The Board concluded that both Roemer and Wojcik had engaged in concerted activities within the meaning of section 3 of the Act and that the District’s actions with respect to them interfered with those activities.

The Board’s conclusion is based on an unsuitable definition of the meaning of the word “concerted” in section 3 of the Act. The Board stated:

“[W]e shall presume, in the absence of contrary evidence, that a ‘concern, gripe or complaint about wages, hours, terms and conditions of employment’ is concerted if it is based on a group concern.”

This interpretation of the Act is contrary to statutory language and the Act’s purpose of promoting “orderly and constructive relationships between all educational employees and their employers” (Ill. Rev. Stat. 1989, ch. 48, par. 1701), because it makes the exercise of supervisory authority impossible. We reject this interpretation.

The Illinois Supreme Court has recognized that the State’s two labor relations acts are modeled after the National Labor Relations Act and that National Labor Relations Act (NLRA) precedent, while not binding on Illinois agencies or courts, is highly instructive and should be carefully examined except where the General Assembly modified NLRA language. City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345, 538 N.E.2d 1146.

The Act language at issue in this case, “concerted activities for the purpose of *** mutual aid and protection,” is identical to the language of section 7 of the National Labor Relations Act. The definition of that statutory language adopted by the Board in this case is one which was adopted by the National Labor Relations Board in Alleluia Cushion Co. (1975), 221 N.L.R.B. 999, and rejected by it nine years later in Meyers Industries, Inc. (1984), 268 N.L.R.B. 493, 497 (Meyers I) remanded sub nom. Prill v. National Labor Relations Board (1985), 755 E2d 941, cert, denied (1985), 474 U.S. 971, 88 L. Ed. 2d 320, 106 S. Ct. 352, on remand Meyers Industries, Inc. v. National Labor Relations Board (1986), 281 N.L.R.B. 882 (Meyers II) aff’d Prill v. National Labor Relations Board (1987), 835 F.2d 1481, 1482-83, cert, denied (1988), 487 U.S. 1205, 101 L. Ed. 2d 884, 108 S. Ct. 2847.

In interpreting the protection conferred by section 7 of the National Labor Relations Act, the National Labor Relations Board and the Federal courts have concluded that employees engage in “concerted” activity where they invoke a right grounded upon a collective bargaining agreement or the activity is engaged in “with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers I, 268 N.L.R.B. at 497.

“Concerted activities are protected so that employees may share in the determination of their terms and conditions of their employment. *** Concerted activities, to be protected, must be a means to an end, not an end in themselves.” National Labor Relations Board v. Marsden (1983), 701 F.2d 238, 242.

Pelton Casteel, Inc. v. National Labor Relations Board (1980), 627 F.2d 23, 28 (“[T]he employee’s actions themselves [must] at least contemplate some group activity. *** [P]ublic venting of a personal grievance, even a grievance shared by others, is not a concerted activity”); Indiana Gear Works v. National Labor Relations Board (1967), 371 F.2d 273, 276 (Activity must be for the “purpose of inducing or preparing for group action to correct a grievance or complaint”).

The Board’s conclusion that activity is protected whenever it involves a “group concern” eliminates from section 3 the requirement that the activity be concerted.

“ ‘Concerted activity’ is an essential predicate, in effect a jurisdictional requirement, for Board action *** in a case such as this. The burden of establishing by proof such essential predicate to quasi jurisdiction rests on the Board. It would be odd, indeed, if this essential quasi jurisdictional predicate might be supplied by a presumption admittedly resting on no factual base but predicated on a purely theoretical assumption.” Krispy Kreme Doughnut Corp. v. National Labor Relations Board (1980), 635 F.2d 304, 310.

The rationale offered by the Board for its expansive view of its jurisdiction is:

“Under the standard of Meyers Industries, the early stages of organization, when individual employees are beginning to become active, may not be protected.”

This concern is unfounded. By its own terms, section 3 of the Act protects the right of employees to “organize, form, join, or assist in employee organizations.” (Section 3 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1703).) This statutory language is intended to and does protect the activities of individual employees at all stages of organization. As the National Labor Relations Board explained in Meyers II, its standard “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Meyers II, 281 N.L.R.B. at 887.

The Board’s overbroad interpretation of section 3 is thus unnecessary to effectuate the legitimate goals of the Act. Moreover, it undermines the policy of promoting harmonious labor relations by quelling legitimate exercises of supervisory authority.

WOJCIK

The Board found that Wojcik engaged in protected activity based on her conduct in the evaluation conference with Lucier. It found that her desire to have Lucier complete the areas of improvement section of the evaluation was a “group concern” because section 24A—5(d) of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24A—5(d)) requires “specification as to the teacher’s strengths and weaknesses, with supporting reasons for the comments made.” It also found the fact that other teachers discussed the issue with Gorski to be evidence of a group concern.

As discussed above, a jurisdictional prerequisite to the finding that activity is protected is that it be concerted. The record is void of any conclusion that Wojcik’s activity was anything but personal in nature. At the hearing, she specifically disclaimed having attempted to enlist the support of other employees on the evaluation issue, stating:

“I didn’t speak at the meeting because I didn’t want to appear to be a leader in any way. I wasn’t a leader, and I didn’t want to have to say anything at those meetings.”

The hearing officer correctly found:

“Wojcik’s insistence that Lucier answer the 20 questions that she had prepared prior to the interview, and her persistent attempt to get Lucier to tell her the specific areas in which she needed improvement, represent the assertion of an individual concern for which she sought personal suggestions and responses tailored to her individual situation. It is clear from the evidence that Wojcik’s overriding purpose at the evaluation conference was to find out why she had not been given a ‘superior’ rating and to learn what she needed to do to achieve such a rating. Since Wojcik pursued her own interests in dealing with Lucier regarding her evaluation, she clearly cannot be said to have acted with or on the authority of other District teachers. Therefore, Wojcik’s activity in this regard was not concerted.”

The Board’s conclusion that Wojcik’s conduct was protected because she was articulating a “group concern” distorts the Act by protecting purely selfish behavior.

In National Labor Relations Board v. City Disposal Systems, Inc. (1984), 465 U.S. 822, 79 L. Ed. 2d 839, 104 S. Ct. 1505, the United States Supreme Court concluded that the National Labor Relations Act protects individual employees who invoke contractual rights because their activity is a direct extension of the collective bargaining process. The Board offers as an alternative rationale for its decision the notion that Wojcik was invoking a right based on the collective bargaining agreement. This subverts the rationale of City Disposal Systems.

The right to challenge the content of evaluations was excluded from the collective bargaining agreement. The essence of collective bargaining is that employee representatives have the exclusive right to negotiate terms and conditions of employment. Ill. Rev. Stat. 1989, ch. 48, par. 1703(b).

Individual employees do not have the right to insist on terms and conditions in addition to or different from what has been negotiated by their exclusive representative. The Act does not protect employees who demand “rights” which are excluded from the collective bargaining agreement. Contrary to the situation in City Disposal Systems, protecting employees whose demands are different than what their union negotiators agreed to is not a natural extension of concerted action; it is a repudiation of the union’s right to be the exclusive negotiator with the employer and wholly undermines the collective bargaining process.

Wojcik’s behavior was nothing more than a personal gripe. It neither contemplated nor promoted group action. She was disappointed because she was rated “excellent” rather than “superior.” Her disappointment led her to argue with Lucier in the evaluation conference, to walk out of that conference saying that she might need to transfer schools, and to publicly state that if she won the State lottery she would stay around to harass the principal.

Her conduct was rude and unprofessional. The District’s response of giving her the opportunity to go to another school to work with a principal whom she had not alienated was a reasonable response to her conduct. The Board’s finding that Wojcik’s conduct was protected by the Act is tantamount to declaring that that Act has liberated teachers from meeting minimal standards of professional conduct with respect to principals. We reverse the Board’s holding because it is contrary to the language and purposes of the Act.

ROEMER

The Board found that the District “issued the letter on Roemer’s teaching performance because of her nonunion protected concerted activity.” It decided that Roemer had engaged in protected concerted activity on two occasions: first, by her comments at the meeting of sixth-grade teachers, and second, when she participated in the conversation with Gazdic and Ackman about the necessity for a third clinical observation.

The Board found that Roemer’s comments at the meeting of sixth-grade teachers involved a group concern because she questioned Lucier’s decision to talk directly to students who were in another teacher’s class. However, this conclusion reads out of section 3 the requirements that activity be concerted and that it be for mutual aid and protection.

Roemer’s comments were not concerted. They were based on her personal feelings. No evidence demonstrates that the teacher (Jennifer Erck) whose students complained to Lucier shared Roemer’s notions about a “chain of command” with respect to student complaints.

Second, Roemer assuredly was not speaking in order to aid and protect Erck. Quite the contrary. She voiced her disapproval to Lucier in part because she did not think she should have to attend a meeting when it was Erck’s students who were complaining and she told Lucier he should talk to Erck about the problem. Moreover, Erck had previously complained to Lucier that she felt frustrated and excluded in sixth grade because Wojcik and Roemer worked as a team.

Roemer’s comments at the sixth-grade meeting were examples of an employee voicing a personal pique. The Board’s finding that her remarks were within the protection of the statute is manifestly erroneous.

The Board’s finding that Roemer and Ackman’s conversation with Gazdic was concerted is also incorrect. The conversation (“Good news, Mary Beth. *** We get evaluated a third time,” “Oh goody, Oh great”), was simply an exercise in sarcasm by the two employees. It was not intended to bring a serious concern to Gazdic’s attention nor was it preparatory to group action of any type. The mere fact that two employees engage in unprotected activity does not make that activity protected. National Labor Relations Board v. Marsden, 701 F.2d at 242-43 (workers who walked off job together were unprotected when no demand was presented to their employer); Indiana Gear Works, 371 F.2d at 277 (employee lawfully discharged for posting cartoons which ridiculed a recent wage increase even though two other employees helped him and other employees shared the concern about the wage increase).

Even were we to conclude that Roemer and Ackman’s conversation was protected because two employees were involved, the record clearly demonstrates that Lucier would have sent the letter to Roemer even without the conversation with Gazdic. Roemer’s refusal to call a parent at Lucier’s request and attack on him at the sixth-grade meeting on April 26, 1989, were fully significant triggers for the letter.

The evidence in this case shows that Roemer became less than cooperative during the month of April. There is no evidence that her behavior was intended to lead to any group action or that she was acting on behalf of anyone except herself.

The purpose of the Act was not to purge supervisory authority or protect insubordination. Roemer’s behavior fell outside the protection granted by the Act to lawful, concerted activity for mutual aid and protection. Her conduct was at odds with the Act’s goal of promoting orderly and harmonious labor relations and the Board erred by finding her conduct to be protected.

Ill

The District contends that the Board’s ruling that the District reassigned teacher Gorski because she engaged in union activities is based on a misapplication of the burden of proof and is contrary to the manifest weight of the evidence and the law. We agree.

Over the dissent in part and concurrence in part of Chairman Gerald Berendt, the two-member Board majority reversed the hearing officer and ruled that teacher Gorski was transferred from second to third grade because of her union activities. Contrary to the District’s belief, this is a dual or mixed motive case:

“[W]here the employer advances legitimate reasons for the [adverse employment action] and is found to have relied upon them in part, then the case is characterized as one of ‘dual motive’ and the employer must demonstrate by a preponderance of the evidence that the employee would have been terminated notwithstanding his union involvement.” City of Burbank, 128 Ill. 2d at 346-47.

In order to establish that adverse action was taken against Gorski because of protected conduct, the Association had to prove:

“(1) the employee engaged in activity protected by section 14(aX3) of the Act; (2) the District was aware of that activity; and (3) the employee was discharged for engaging in that activity.” Hardin County Educational Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 178-79, 528 N.E.2d 737.

A mixed motive case is one where the employee’s evidence does more than create a permissible inference of discrimination; it establishes a clear nexus between the protected activity and the employer’s action by a preponderance of the evidence. (City of Burbank, 128 Ill. 2d at 345.) Where the plaintiff has established that causal link, the employer can still escape liability if it can prove by a preponderance of the evidence that it would have taken the same action regardless of the protected activity. In such cases, the burden of proof shifts to the employer. National Labor Relations Board v. Transportation Management Corp. (1983), 462 U.S. 393, 403, 76 L. Ed. 2d 667, 676, 103 S. Ct. 2469, 2475.

Here, the Board majority concluded that Gorski had established a prima facie case of discriminatory reassignment for six reasons: (1) the coincidence in timing between Gorski’s protected activities and Lucier’s recommendation that she be reassigned; (2) the fact that Lucier changed his mind about Gorski’s original assignment; (3) the fact that Lucier chose to reassign Gorski rather than Ackman; (4) a supposed departure, from past practice in the way the transfer was handled; (5) the “vague” explanation given by Lucier to Gorski concerning the action; and (6) the fact that Gorski’s union activities were extensive. Based on this analysis, the Board stated:

“Since the Association has established a prima facie case, the burden shifts to the District to demonstrate, by a preponderance of the evidence, that it would have reassigned Gorski in the absence of her protected activity.”

However, the Association failed to establish a causal link between Gorski’s activity and her reassignment. Lucier was aware that Gorski had been a union building representative since 1986. The record negates any inference that he had animus toward her union activities. Lucier gave Gorski the top rating on the one evaluation he performed of her teaching. He accommodated her desire to stay in second grade for a number of years with Ackman even though other teachers had to change grades more frequently. These teachers complained that they felt excluded by the Gorski/Ackman team. Lucier’s lack of anti-union animus is further demonstrated by the fact that he and the District took no adverse action against Wojcik when she served on the Association’s negotiations and bargaining committee.

There is no evidence that Lucier took umbrage to Gorski’s role in holding a building meeting concerning his evaluations or at the survey which she and Gabryelewiez conducted. To the contrary, Association president Eliasek characterized Lucier as amicable when he met with him about the evaluation process. Gorski’s testimony suggests that Lucier was equally courteous when she and Gabryelewiez presented the results of their survey to him.

The Board principally relies on the coincidence in timing as the causal link between Gorski’s activities in connection with Lucier’s evaluations and the decision to reassign her. However, timing alone is not evidence of a discriminatory motive on the part of the employer. American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board (1988), 175 Ill. App. 3d 191, 200, 529 N.E.2d 773; Hardin, 174 Ill. App. 3d at 185.

In this case, timing is even less probative than usual. Schools run on nine-month years and many events occur in the spring, including teacher evaluations and assignments for the following year. Gorski’s activities with respect to evaluations necessarily coincided with Lucier’s decisions about grade level assignments for the following year. More significantly, however, as Chairman Berendt pointed out in dissent in part and concurrence in part, Lucier’s decision to reassign Gorski corresponded with his conversation with Werner.

The second reason offered by the Board majority for its conclusion that the Association had proved connection between Gorski’s transfer and her protected activities was the fact that Lucier changed his mind about Gorski’s original assignment. Again, however, the majority overlooked the uncontested evidence that an April 5, 1989, newsletter expressly stated that assignments were not yet final and invited teachers to approach Lucier with concerns about their assignments. Lucier’s concerns about the Gorski/Ackman team were longstanding and the April 5, 1989, newsletter, which predated any protected activity, clearly contemplated the possibility of changes in grade level assignments in response to teachers’ concerns. The evidence of Werner’s protests to Lucier about her proposed reassignment is direct, uncontested evidence that Lucier’s change of mind was not linked to Gorski’s activities.

Further, in the absence of any evidence about Ackman’s lack of union activities, the majority wholly discounted Lucier’s testimony that he thought Ackman would take the move harder than Gorski. Yet Lucier’s testimony is fully supported by his undisputed account of Ackman’s negative reaction several years before when he attempted to relocate her classroom. The fact that Ackman vehemently resisted moving her classroom to a different floor fully supports Lucier’s conclusion that she would take a change in grade level harder than Gorski.

Thus, the Board’s notion that Lucier departed from past practice in reassigning Gorski is totally unfounded. There was testimony that, in the past, the principal discussed potential moves with affected teachers before making his decision. Here, Lucier followed past practice by discussing the move with Werner and Walsh, the teachers he originally selected. They initially reluctantly agreed to the move, but, in April, Werner persuaded Lucier to change his mind.

The Board also criticized Lucier’s explanation of this decision to Gorski as vague and cited it as additional evidence of a discriminatory motive. This is contrary to the record. Both Lucier and Gorski testified that he had explained at least some of his rationale for moving Gorski to her. Moreover, Lucier had an on-going concern with the morale of Blackwell and the tendency of the staff to divide into hostile camps. He was faced with a delicate problem when he spoke to Gorski. The reasons for his decision to move her were the complaints of other staff about the way she and Ackman interacted, and the protests of Walsh and Werner that it would not be fair to move them again. A full explanation by Lucier to Gorski of those reasons would not have been conducive to building staff unity and morale.

The District met its burden of establishing that Gorski would have been reassigned even if she had not engaged in union activity, as Chairman Berendt argued in his dissent in part and concurrence in part. The unrebutted evidence showed that Lucier had a long-standing concern about Gorski’s working relationship with Ackman, that other teachers had complained about feeling excluded, and that he had approached Ackman at the beginning of the year to discuss a change.

The April complaint from Walsh that it was unfair to move her and Werner was the catalyst for Lucier’s decision. The facts indicate that Lucier would have reassigned Gorski after Walsh’s complaint without regard to her union activity. For the foregoing reasons, we hold that the Board’s finding that the District violated sections 14(a)(1) and 14(a)(3) of the Act in reassigning Gorski was contrary to the manifest weight of the evidence.

Because we hold that the Board’s findings that the District violated sections 14(a)(1) and 14(a)(3) of the Act are against the manifest weight of the evidence, it is unnecessary to decide whether the remedy ordered by the Board is excessive and overbroad.

The order of the Board is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

MURRAY and McNULTY, JJ., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    CHARLES FREDERICK, Plaintiff-Appellant, v. NORTHWESTERN UNIVERSITY DENTAL SCHOOL, Defendant-Appellee.
    First District (6th Division)
    No. 1—92—1446
    Opinion filed May 28, 1993.

      Robert A. Wolf, of Oak Park, for appellant.
    Arlene C. Erlebacher and David B. Johnson, both of Sidley & Austin, of Chicago, and Martha P. Mandel, of Northwestern University, of Evanston, for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Charles Frederick, appeals from an order of the trial court granting summary judgment in favor of defendant, Northwestern University Dental School.

The relevant facts are as follows. On September 6, 1979, plaintiff was approved for admission to defendant’s four-year dental program, and he entered the fall 1979 class. He was 40 years of age when he enrolled.

The core curriculum was comprised of classroom teaching and clinical participation. The Northwestern University Dental School Bulletin (Bulletin) clearly stated that all subjects in the core curriculum were considered essential and were required.

Plaintiff’s first year of study was spent almost entirely in the classroom. In the second year, laboratory work was added, and the students were introduced to the various required clinics. The third and fourth years phased out classroom work and placed increased emphasis on the clinics, with the students spending much of their time performing dental work on actual clinic patients under the supervision of licensed dentists who were members of the faculty.

The Bulletin set forth the general rights, duties and obligations of dental students. In addition to other enumerated rights, dental students enjoyed the right to be free from discrimination on account of their age and other characteristics; to participate in classes of small group teaching with careful supervision and monitoring; to participate in clinical rotational assignments; to participate in teaching clinics under the supervision and guidance of instructors; to have their academic performance reviewed quarterly or more frequently when necessary and to receive warnings for poor performance; and to appeal a decision of academic dismissal.

In terms of the duties and obligations of students, the Bulletin highlighted the critical importance of clinical work and stated that the student’s clinical progress would be evaluated by the faculty. Specifically, the Bulletin provided:

“No student is recommended for graduation who has not satisfied the faculty that the experiences in the clinics of the School have prepared him or her adequately to serve the public as a practicing dentist.”

Plaintiff’s performance in classroom work during the first year was adequate, though undistinguished, according to defendant. In the first quarter of his first year, plaintiff achieved a grade point average of 1.73 on a 4.00 scale. For the next five quarters, plaintiff’s quarterly grade point average ranged from 2.12 to 2.85. In the spring quarter of his second year, plaintiff was placed on academic probation for achieving a grade point average for that quarter of under 2.00.

Plaintiff began his clinical studies in the fall quarter of his junior year. In that quarter, he received “Unsatisfactory” progress grades in four of his seven clinic courses. He was placed on “clinic probation,” which, as provided in the Bulletin, results “from multiple unsatisfactory clinic progress reports at the end of any quarter.” In the winter quarter of his junior year, plaintiff received five “Unsatisfactory” progress grades out of a total of eight clinic courses, and his clinic probation was continued. The following quarter, plaintiff received a grade of “F” in his Operative Clinic course.

At the close of plaintiff’s junior year, he had satisfactorily completed only three of the nine junior year clinic courses. Despite his unsatisfactory work in six clinic courses, plaintiff was originally given no failing grades, but instead was given six grades of “Incomplete” to allow him to attempt to complete the six clinics. More than one failing grade during an academic year would have made him subject to dismissal.

Because of plaintiff’s failure to complete satisfactorily six of the required clinics, defendant sent plaintiff a warning letter, dated June 29,1982, stating:

“Because of your unsatisfactory clinic achievement during your Junior year, the faculty seriously doubts that you will be able to graduate in June, 1983.
You are directed to present yourself to the Junior Progress Review Committee when it meets on Thursday, July 1. Be prepared to show your clinical progress data and explain why you have accomplished so little.”

After plaintiff’s appearance before the Junior Progress Review Committee, defendant wrote plaintiff a follow-up letter warning him that unless he demonstrated substantial improvement by September 1982, more severe sanctions would follow.

In the first quarter of his fourth year at school, plaintiff, while still working on his junior year requirements, received five “Unsatisfactory” clinical progress grades. Subsequently, on October 4, 1982, the Senior Progress Review Committee wrote to him expressing its “great concern about the quantity and quality of [his] clinical achievement.” Plaintiff was directed to a specific dean for counseling. On December 10, 1982, three of plaintiff’s instructors in one of the clinics collectively wrote to the department head of that clinic, stating:

“At this stage, [plaintiff] has not demonstrated that he possesses the requisite knowledge and skills for assuming the responsibilities of patient treatment.
He is presently working on a three-unit bridge with Dr. Cassidy, and at no stage has he shown any understanding of what is involved. He has been unable to accomplish satisfactory preparations, impressions, occlusal records, and index, and is unable to follow Faculty instructions.”

The Senior Progress Review Committee, which is responsible for the overall evaluation of fourth-year students’ progress, recommended that plaintiff either withdraw from the dental school or be dismissed. This recommendation was submitted to the Academic Review Board (Board) for approval, amendment or reversal, pursuant to the procedures set forth in the Bulletin. Plaintiff was informed of the recommendation by letter dated January 7, 1983, and was invited to appear before the Board to present any matters he wished to have considered.

The Board convened on January 14, 1983, and upheld the recommendation of the Senior Progress Review Committee that plaintiff be dismissed from the dental school. The Board ordered that plaintiff be given 10 days to withdraw to avoid dismissal. Plaintiff did not appear before the Board on the scheduled date.

Plaintiff was advised that the decision of the Board was appealable to the dean and Administrative Council of the dental school. Plaintiff exercised this option for further review. He appeared before the dean and Administrative Council on February 2, 1983. Plaintiff presented a written statement and demanded the right to be represented by counsel and to call and cross-examine witnesses. These demands were refused. The dean and Administrative Council subsequently approved the decision of the Academic Review Board to dismiss plaintiff. Plaintiff was given five days to withdraw before being dismissed from the school.

Thereafter, plaintiff filed a complaint in the circuit court of Cook County. His original complaint, containing four counts, was dismissed on February 3, 1987. He then filed an amended complaint, also containing four counts. However, count I was later voluntarily dismissed by plaintiff, as were all requests for injunctive relief.

Count II of the amended complaint alleged that defendant breached its contract with plaintiff, the terms of which were contained in the Bulletin, by discriminating against him on account of his age. In count III, plaintiff alleged that defendant breached various other contractual obligations such as providing him with small group teaching, patients for clinical work, close supervision, and notification of academic deficiencies. Finally, in count IV, plaintiff alleged breach of contract because of defendant’s refusal to allow him to be represented by counsel and to call and cross-examine witnesses during the final academic hearing on his dismissal.

Defendant filed a motion for summary judgment, presenting in support of the motion plaintiff’s academic file. In response, plaintiff filed an affidavit explaining why, in his view, he had failed his clinical courses. In that response, plaintiff also raised for the first time the claim that certain grading procedures applied to him were arbitrary and capricious. On March 24, 1992, the trial court issued an order granting defendant’s motion for summary judgment.

Summary judgment should be granted only if the pleadings, depositions, admissions and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Neofotistos v. Metrick Electric Co. (1991), 217 Ill. App. 3d 506, 577 N.E.2d 511.) In determining whether a genuine issue of material fact exists, the trial court must view the evidence in the light most favorable to the nonmoving party. (Neofotistos, 217 Ill. App. 3d 506, 577 N.E.2d 511.) The trial court may draw inferences from undisputed facts, but where reasonable persons could draw divergent inferences from those facts, the issue should be decided by the trier of fact and the motion for summary judgment should be denied. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211.

Defendant argues that summary judgment was proper here because its decision to dismiss plaintiff was based solely on his failure to meet established academic standards. Courts have been loathe to review, much less overturn, academic dismissals. In this regard, the United States Supreme Court, in Board of Curators of the University of Missouri v. Horowitz (1978), 435 U.S. 78, 89-90, 55 L. Ed. 2d 124, 135, 98 S. Ct. 948, 955, stated:

“The decision to dismiss respondent *** rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.”

Plaintiff contends that defendant’s stated reason for dismissing him from school, namely, academic incompetence, was merely a pretext offered to disguise the real reason for his dismissal. Initially, plaintiff argues that his dismissal was the result of a practice of age discrimination on the part of several of his professors. In support, plaintiff points to two situations in which he was afforded less favorable treatment than younger students. On one occasion, plaintiff claims that he and an unidentified “younger Chinese student” received the identical grade of “C” even though his work was praised by two professors and the younger student’s work was, in plaintiff’s view, “patently substandard.” On another occasion, a younger student received remedial help in all of his classes and “even received special help from a professor,” but plaintiff was refused such help.

As to the first incident, we note that while the grades plaintiff and the younger student received may have been the same, the clinical assignments on which they were graded were completely different and thus inevitably involved distinct grading criteria. We are not at liberty to second-guess how defendant applied that criteria to plaintiff, the younger student, or any student. The Supreme Court in Horowitz specifically stated that “[c]ourts are particularly ill-equipped to evaluate academic performance.” (Horowitz, 435 U.S. at 92, 55 L. Ed. 2d at 136, 98 S. Ct. at 956.) Moreover, plaintiff has offered no evidence, apart from his affidavit in which he concludes that the younger student’s grade was too high, to support his contention that his grade was adversely affected on account of his age.

Similarly, plaintiff has offered no support for his allegation that he was afforded less remedial help than a younger student solely because of his age. Indeed, the record indicates that plaintiff himself was given several opportunities to remedy deficiencies. He received remedial placement in one class which, in the trial court, he argued was evidence of prejudice. Furthermore, rather than giving plaintiff a failing grade in those clinical courses he did not complete during his junior year, defendant gave him grades of “Incomplete” to allow him to attempt to complete them during his final year. This was a step defendant need not have taken since, as the Bulletin indicates, failure in two courses during an academic year would have made plaintiff “subject to dismissal.” In addition, prior to being dismissed, plaintiff was given warning letters, offered counseling, and granted hearings to discuss his academic performance before the Junior Progress Review Committee, the Academic Review Board, and the dean and Administrative Council. Plaintiff has not suggested that a younger student with a comparable academic record received more favorable treatment. While plaintiff did not have to prove his case in opposition to defendant’s motion for summary judgment, he was required to offer some factual basis which would arguably entitle him to judgment on his age discrimination claim. (Choi v. Commonwealth Edison Co. (1991), 217 Ill. App. 3d 952, 578 N.E.2d 33.) This, plaintiff has failed to do. Thus, as to this aspect of his age discrimination claim, summary judgment was properly granted.

Plaintiff also argues that he has presented facts from which a claim of disparate impact can be made. Specifically, plaintiff asserts that three of his professors, because of their Australian heritage, harbored animus against him for leaving an established career in engineering to pursue a career in dentistry. Plaintiff bases this claim on a conversation with one of the Australian professors in which the professor relayed to plaintiff that he passed up an opportunity to attend medical school because he had already completed dental school. From this conversation, plaintiff surmises that the Australian professor believed that no one should ever change professions, as plaintiff was attempting to do; that because of his belief the professor discriminated against plaintiff; that the belief of this one professor is shared by the other two Australian professors; that therefore these professors were biased against plaintiff; and that a prejudice against persons who change professions has a disparate impact on persons over the age of 40. (As to the latter point, plaintiff argues that the attitude allegedly shared by the three Australian professors can only have a disparate impact on older students since only an older student could have had a different career prior to switching to dentistry.) Plaintiff again has offered no evidence to support this theory. We cannot reasonably infer from the autobiographical data relayed to plaintiff by a single Australian professor that plaintiff was the victim of some subtle scheme involving a ring of Australian professors to oust him from dental school. This specious argument becomes more unbelievable since the Australian professors involved in the alleged conspiracy taught in only two of the five clinical courses defendant failed to complete. Moreover, one of plaintiff’s few “Satisfactory” clinic progress grades was in a clinic in which two of the Australian professors taught. As to this aspect of plaintiff’s age discrimination claim, summary judgment was also proper.

In addition to his age discrimination claim, plaintiff asserts that defendant’s academic treatment of him was arbitrary and capricious, in breach of its contract with him.

A college or university and its students have a contractual relationship, and the terms of the contract are generally set forth in the school’s catalogs and bulletins. (Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 445 N.E.2d 901.) A contract between a private institution and a student places duties upon both parties which cannot be arbitrarily disregarded and may be judicially enforced. A student may have a remedy for breach of contract when it is alleged that an adverse decision concerning the student, supposedly for academic deficiencies, was made arbitrarily, capriciously, and in bad faith. Illinois Benedictine College, 112 Ill. App. 3d 932, 445 N.E.2d 901.

The burden of establishing arbitrary and capricious conduct is a heavy one. In this case, plaintiff must show that his dismissal was “without any discernible rational basis.” (Holert v. University of Chicago (N.D. Ill. 1990), 751 F. Supp. 1294, 1301.) As the court in Holert explained, “[c]ourts have adopted this deferential standard because of a reluctance to interfere with the academic affairs and regulation of student conduct in a private university.” Holert, 751 F. Supp. at 1301.

In support of his arbitrary and capricious claim, plaintiff first complains that his final grade in the Operative Clinic was an “F,” “even though he received no failing grades on any of the projects making up the course.” However, as defendant points out and as plaintiff earlier admitted, after two quarters of his fourth year at the dental school, he had attained senior status in only one of four areas encompassed by the Operative Clinic. This clinic work was to have been completed during plaintiff’s junior year, and because he failed to remove his grade of “Incomplete” for this clinic by the end of the fall quarter of his fourth year, defendant, in keeping with the provisions contained in the Bulletin, appropriately gave plaintiff a failing grade.

Plaintiff also maintains that he received grades of “Incomplete” in other clinic courses because certain professors deliberately refused to give him patients to work on, took patients away from him, and gave him “unusually difficult” patients, all in an effort to ensure that he did not succeed in dental school. Plaintiff again has presented no evidence to support the allegation that his instructors’ decisions regarding patients assigned to him were made in bad faith to deliberately stymie his academic progress. In fact, as to one particular clinical course, plaintiff in his brief states that he received a grade of “Incomplete” because defendant failed to give him enough patients on which to work. In his affidavit, however, plaintiff claimed to have received an “Incomplete” in that course because of his failure to complete a procedure on an assigned patient. As stated, plaintiff is not required to prove his case in response to defendant’s summary judgment motion, but “he must provide a factual basis which would arguably entitle him to judgment.” (Emphasis added.) (Choi, 217 Ill. App. 3d at 956, 578 N.E.2d at 37.) Absent such evidence, we must presume that the professors’ decisions, of which plaintiff complains, were made with legitimate academic and professional concerns in mind.

In further support for his contention that defendant engaged in arbitrary, capricious, and bad-faith conduct in dismissing him, plaintiff asserts that certain professors lied to the Academic Review Board about a letter presented to the Board by those professors. That letter, dated December 10, 1982, informed the committee that plaintiff had not yet (midway through his fourth year) “demonstrated that he possessed] the requisite knowledge and skills for assuming the responsibilities of patient treatment.” Notwithstanding that the letter was dated December 10, 1982, plaintiff now claims that the letter was in fact written in September 1982, at a time before all three of its authors had personal knowledge of his clinical deficiencies. According to plaintiff, he first learned of the letter from one of its authors in September 1982.

As defendant points out, however, plaintiff earlier told a different story. In his amended complaint, plaintiff alleged that at the time of his dismissal, sometime between December 1982 and January 1983, the letter was “unknown to him” and had been “circulated without his knowledge or ability to refute.” In his response to defendant’s demand for a bill of particulars, plaintiff asserted that he first learned of the letter from a fellow student — not from one of its authors — and its existence was later verified by one of his professors “during the time period after [his] academic review but before his appeal of the academic review.”

Plaintiff cannot create a genuine issue of material fact by making assertions directly contrary to earlier ones. (Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 32.) Having stated in his pleadings that he first learned of the letter through a fellow student at some point after he was dismissed, plaintiff cannot, in defendant’s words, “rewrite history,” to place discovery of the letter before his dismissal and name as the source one of its authors.

Plaintiff also contends that he was not afforded a genuine opportunity to protest his dismissal, despite a contractual obligation on the part of defendant to do so. Plaintiff initially complains that he was not allowed to present evidence from a faculty department head who allegedly would have stated that he personally observed plaintiff successfully and competently perform the clinical tasks which the three professors in their 1982 letter claimed plaintiff was incapable of performing. Plaintiff also claims that he was deprived of his right to be represented by counsel and to compel the attendance of certain professors — namely, the authors of the December 1982 letter — for questioning.

Our review of the Bulletin, spelling out defendant’s contractual obligations, reveals nothing which would indicate that plaintiff was entitled to call his own witnesses, cross-examine witnesses against him, or be represented by counsel before any of the various reviewing bodies. Nor does the law require that such procedures be followed in an academic hearing conducted by a private educational institution. (See Horowitz, 435 U.S. 78, 55 L. Ed. 2d 124, 98 S. Ct. 948.) The only contractual obligation defendant owed plaintiff was to allow him to be present when the Academic Review Board and the dean and Administrative Council reviewed his case. Defendant fulfilled this obligation.

In summary, we find that plaintiff has presented no facts to support the claim that his dismissal was the result of arbitrary, capricious, and bad-faith conduct on the part of defendant. Nor has he presented any facts tending to show that defendant discriminated against him on account of his age. Plaintiff has not shown that the education he received was anything less than that to which he was entitled. Rather, he has offered only bare allegations of wrongdoing supported by mere personal opinion and speculation. In determining the genuineness of a fact on a summary judgment motion, the court should ignore personal conclusions, opinions, and self-serving statements and consider only facts admissible under the rules of evidence. (Farm Credit Bank v. Isringhausen (1991), 210 Ill. App. 3d 724, 569 N.E.2d 235.) The record strongly supports the reasoning behind defendant’s decision to dismiss plaintiff. The trial court properly granted defendant’s motion for summary judgment.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and GIANNIS, JJ., concur.


author: JUSTICE DOYLE

text:
    KARI KLEBE, Plaintiff-Appellant, v. ASHOK PATEL et al., Defendants (John Psihos, Defendant-Appellee).
    Second District
    No. 2—92—0913
    Opinion filed July 15, 1993.

      Markham M. Jeep and Mark B. Peavey, both of Markham M. Jeep, P.C., of Waukegan, for appellant.
    Michael K. Noonan, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Kari Klebe, appeals the circuit court’s order dismissing her second amended complaint against defendant, John Psihos, with prejudice based on the statute of limitations. The court held that section 2 — 616 of the Code of Civil Procedure (735 ILCS 5/2 — 616(e) (West 1992)) did not save plaintiff’s complaint because defendant, the contract purchaser of the property where plaintiff was injured, was not a land trust beneficiary within the meaning of that section. On appeal, plaintiff contends that the court erred in concluding that defendant was not a land trust beneficiary.

Plaintiff filed her initial complaint August 30, 1991, naming as defendants the Bank of Waukegan, as trustee under trust No. 1197 (the bank), and unknown owners.

The complaint alleged that plaintiff was injured on September 19, 1989, when she fell on a defective stairway at the Flamingo Inn Hotel in North Chicago. Plaintiff alleged that the bank, as trustee, held title to the premises and had been negligent in maintaining the stairway. The bank failed to answer, and the court entered an order of default against it.

On February 6, 1992, the bank revealed the names of the trust beneficiaries in the form of a draft protective order. This order does not appear in the record on appeal, and plaintiff states in her brief that it was never filed. Plaintiff states that the order disclosed Ashok Patel and Usha Patel as the beneficial interest holders. The draft order further stated that, at the direction of these beneficiaries, the bank had executed articles of agreement for a deed to the subject premises to John Psihos.

Plaintiff, with leave of court, filed an amended complaint naming Ashok Patel, Usha Patel and Psihos as defendants in lieu of the bank. On March 25, 1992, plaintiff filed a second amended complaint against the same parties expressly pleading reliance on the tolling provisions of section 2 — 616(e).

Defendant Psihos (hereafter defendant) filed a motion for summary judgment, contending that the complaint had not been filed within the two-year statute of limitations (735 ILCS 5/13 — 202 (West 1992)). Defendant contended that section 2 — 616(e) was inapplicable because he was not a beneficiary of the land trust.

Plaintiff filed a response to the motion which attached her own affidavit. In her affidavit, plaintiff alleged that on September 19, 1989, she was employed by John Walker as a painter at the Flamingo Inn; that she is familiar with defendant; that while she was working she observed defendant directing Walker with regard to the work they were doing; and that on her first day of work Walker introduced defendant to her as the owner of the premises.

Following a hearing, the court granted defendant’s motion. The court specifically found that defendant was not a beneficial owner of the premises. The court further found that there was no just reason to delay appeal of its order (see 134 Ill. 2d R. 304(a)). Plaintiff filed a timely notice of appeal.

On appeal, plaintiff concedes that she did not name Psihos as a defendant within the applicable two-year statute of limitations. She contends, however, that section 2 — 616(e) applies and renders her amended complaint timely. Section 2 — 616(e) provides:

“A cause of action against a beneficiary of a land trust not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the cause of action arises from the ownership, use or possession of real estate, record title whereto is held by a land trustee; (2) the time prescribed or limited had not expired when the original action was commenced; (3) the land trustee of record is named as a defendant; and (4) the plaintiff proceeds with reasonable diligence subsequent to the commencement of the action to serve process upon the land trustee, to determine the identity of the beneficiary, and to amend the complaint to name the beneficiary as a defendant.” 735 ILCS 5/2 — 616(e) (West 1992).

Defendant does not dispute that plaintiff complied with the four conditions of section 2 — 616(e). He contends, however, that he is not a “beneficiary” of the land trust as required by that section.

The Illinois land trust is a device by which title to real property is conveyed to a trustee, reserving to the beneficiary the full management and control of the property. The trustee agrees to deal with the trust res only at the beneficiary’s direction. The beneficiary retains the power of direction to deal with the title, to manage and control the property, to receive proceeds from the sales, mortgages, and rentals of the property, and in general to exercise all rights of ownership, including possession, other than dealing with or holding the legal title. (I M M Acceptance Corp. v. First National Bank & Trust Co. (1986), 148 Ill. App. 3d 949, 954.) Unlike an ordinary trust, the trustee holds both legal and equitable title; the beneficial interest is considered personal property. First Federal Savings Bank v. Drovers National Bank (1992), 237 Ill. App. 3d 340, 345.

Outside the land trust context, a contract purchaser of property becomes the equitable owner upon execution of the installment contract. (Conner v. First National Bank & Trust Co. (1982), 108 Ill. App. 3d 534, 538.) Thus, the contract purchaser becomes the owner for purposes of tort liability. (Anderson v. Cosmopolitan National Bank (1973), 54 Ill. 2d 504, 508.) In IMM Acceptance, this court recognized that the land trust beneficiary is the true owner of the property for many purposes. The court stated: “Title refers only to a legal relationship to the land, while ownership is comparable to control.” I M M Acceptance, 148 Ill. App. 3d at 954.

Under the rules expressed in Conner, Anderson, and I M M Acceptance, there is little question that defendant Psihos was the “owner” of the subject property. The record before the trial court demonstrated that, as the contract purchaser, defendant had the right to complete management and control of the premises. Plaintiff’s affidavit shows that he was in fact in possession and control of the premises at the time. I M M Acceptance stands for the principle that courts will look to the substance of the parties’ relationships to each other and to the property rather than the labels they give to their transactions and relationships. Under his contract with the Patels, defendant had all the rights of the beneficial interest holder, except possibly the power of direction. If he complied with the contract, he would receive a deed. Neither the Patels nor the bank had any discretion.

Under these circumstances, it would be a triumph of form over substance to hold that defendant was not the “beneficiary” within the meaning of section 2 — 616(e). This interpretation is consistent with the purpose of the statute.

We have not been cited, nor has our research disclosed, any cases interpreting section 2 — 616(e) in this context. However, the primary purpose of statutory construction is to discern and effectuate the intention of the legislature. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194.) Subsection (e) was added to the statute in 1987. (Pub. Act 85 — 907, eff. November 23, 1987 (amending Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616).) The amendment was intended to remedy the injustice which sometimes resulted from the inability of a plaintiff who was injured on land held in a land trust to identify the beneficiary prior to the running of the statute of limitations. (Ill. Ann. Stat., ch. 110, par. 2—616, Historical & Practice Notes, at 81 (SmithHurd Supp. 1992), citing Foster v. Leong (1985), 139 Ill. App. 3d 492 (plaintiffs at an “inherent procedural disadvantage” in filing suit against land trust beneficiaries).) Thus, giving a broad construction to the term “beneficiary” is consistent with the remedial purpose of the statute. To read the statute narrowly, as defendant does, would eviscerate the statute. Any party to a real estate transaction involving property held in a land trust could effectively insulate himself from liability by executing an agreement for deed or some other instrument rather than an assignment of the beneficial interest. It is unlikely that the legislature intended such a result.

Defendant relies solely on Patrick v. Village Management (1984), 129 Ill. App. 3d 936, a case decided prior to the enactment of section 2—616(e). That case is distinguishable.

Patrick was decided under the more stringent standards of section 2—616(d), the only relation-back provision then in existence. The court held that a contract purchaser was not the beneficiary of the trust, but became the equitable titleholder. Under the facts presented, the court found that the sellers, the named beneficiaries, had not surrendered their beneficial interest in the property. Patrick, 129 Ill. App. 3d at 940.

We believe the legislature enacted section 2 — 616(e) precisely to change the result in cases such as Patrick. Reading the statute narrowly to exclude contract purchasers such as the defendant in Patrick would defeat this legislative intention. Moreover, the facts of the present case support the conclusion that the Patels did surrender their beneficial interest. Psihos had complete management and control of the premises and had an absolute right to a deed as long as he complied with the contract. The Patels did not retain any of the incidents of beneficial ownership.

Defendant further contends that plaintiff’s affidavit shows that she was aware of his interest in the property at the time of her accident and therefore was not justified in waiting until after the running of the statute of limitations to name him as a defendant. We are unpersuaded by this argument. It is undisputed that the agreement for deed was not recorded. Therefore, after plaintiff had been introduced to defendant as the “owner” of the premises and a title search revealed only that the property was held in trust by the bank, plaintiff would have been justified in assuming that defendant was in fact the beneficiary of the trust and relying on the provisions of section 2— 616(e) to await confirmation of that fact. Had plaintiff initially named Psihos as a defendant and her assumptions proved wrong, she might well have been liable for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) for filing a false pleading without adequate investigation.

In summary, we hold that the court erred in concluding that Psi-hos was not a beneficiary of the land trust and dismissing plaintiff’s complaint on that basis.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and COLWELL, J., concur.