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Civil Litigation FLASHPOINTS November 2020

Britt R. DeVaney, Katten Muchin Rosenman, LLP, Chicago
312-902-5354 | E-mail Britt DeVaney

Illinois Supreme Court Limits Scope of Teachers Taking Leave “for Birth”

In Dynak v. Board of Education of Wood Dale School District 7, 2020 IL 125062, the Illinois Supreme Court held that, under §24-6 of the Illinois School Code, 105 ILCS 5/1-1, et seq., which applies to “all school districts, including special charter districts, but not including school districts in municipalities of 500,000 or more,” teachers may use up to 30 days of accumulated paid sick leave for giving birth, but only in the six-week period directly following the birth. 105 ILCS 5/24-6. If a teacher gives birth right before summer break, for instance, she may apply her accumulated sick leave only to the days between giving birth and the end of the school year. And if a teacher gives birth during summer break, she is not permitted to use any sick leave for giving birth. This decision will impact how schools subject to the Code will enforce sick leave for new mothers, and it may even impact how teachers who work in these schools decide to family plan.

Background

In March 2016, Margaret Dynak, a teacher at Wood Dale School District 7, notified the school that she would be giving birth through a scheduled caesarian section on June 6, 2016. Ms. Dynak asked to use 1.5 of her 30 days of accumulated paid sick leave on June 6 and 7, 2016, which were the last two days of the 2015 – 2016 school year, the latter of which was a half day. Ms. Dynak intended to take the sick leave pursuant to §24-6 of the Code, 105 ILCS 5/24-6.

Additionally, Ms. Dynak requested a 12-week leave under the Family and Medical Leave Act of 1993 (FMLA), Pub.L. No. 103-3, 107 Stat. 6, starting on August 18, 2016, the first day of the 2016 – 2017 school year. However, because the FMLA does not offer paid leave, Ms. Dynak also asked to use the remaining 28.5 days of her 30 accumulated days on the first 28.5 workdays of the 2016 – 2017 school year, coinciding with her 12-week FMLA leave.

The school granted Ms. Dynak 1.5 days of paid sick leave for June 6 and 7, and it granted 12 weeks of unpaid FMLA leave. However, the school denied Ms. Dynak’s request to use her remaining 28.5 sick days at the beginning of the 2016 – 2017 school year because it would not be taken contemporaneously with the birth.

Ms. Dynak gave birth on June 6, 2016. On October 6, 2016, Ms. Dynak’s attorney sent the school a demand for reimbursement of lost wages for 28.5 days of sick leave, but the school refused to give Ms. Dynak her lost wages. 2020 IL 125062 at ¶7. That same month, Ms. Dynak filed a complaint against the school, which requested, among other things, a declaratory judgment to determine her rights under §24-6 of the Code and restore her lost wages and benefits for the period of time she was denied paid sick leave for giving birth.

Ms. Dynak and the school filed cross-motions for summary judgment, and the trial court granted the school’s motion and denied Ms. Dynak’s motion. Ms. Dynak appealed, but a divided appellate court affirmed the lower court’s decision. Ms. Dynak then appealed to the Illinois Supreme Court.

The Illinois Supreme Court’s Analysis

In an opinion by Justice Burke, with Justice Karmeier specially concurring, the Illinois Supreme Court sided with the lower courts and affirmed the entry of summary judgment for the school. Specifically, the court found that §24-6 of the Code did not entitle Ms. Dynak to use any paid sick leave for birth once the 2016 – 2017 school year had begun because it was too long after the birth.

The specific issue on appeal was whether §24-6 of the Code allows a teacher who gives birth at the end of a school year to use accumulated paid sick leave at the start of the next school year for purposes related to the birth.

The court held that, under the Code, teachers can use up to 30 days of paid sick leave for birth, but only in the six-week period directly following the birth. After that period, the only circumstance in which a teacher would be able to use paid sick leave because of a birth would be if she were to provide a physician’s note indicating that the leave was medically necessary.

The Code states in pertinent part:

Sick leave. The school boards . . . shall grant their full-time teachers . . . sick leave provisions not less in amount than 10 days at full pay in each school year. If any such teacher . . . does not use the full amount of annual leave . . .  the unused amount shall be allowed to accumulate to a minimum available leave of 180 days at full pay, including the leave of the current year. Sick leave shall be interpreted to mean personal illness, quarantine at home, serious illness or death in the immediate family or household, or birth, adoption, or placement for adoption. The school board may require a certificate from a physician . . . as a basis for pay during leave after an absence of 3 days for personal illness or 30 days for birth or as the school board may deem necessary in other cases. 105 ILCS 5/24-6.

Ms. Dynak argued that §24-6 does not have temporal limitations for paid sick leave taken for birth — it does not state when sick leave must begin, when it must end, or whether it must be continuous. However, the court determined there are temporal limitations in the Code and that Ms. Dynak’s “proposed construction of the statute disconnects the qualifying event” — the act of giving birth — “from the sick leave.” 2020 IL 125062 at ¶25.

One temporal example the court emphasized is that the Code allows a school to request a medical certificate if a teacher has been absent for 30 days “for birth,” suggesting that the legislature intended paid sick leave to follow immediately after birth. The court reasoned that if the legislature did not intend this, that would mean a teacher could take 30 days of paid sick leave years after the birth itself, and “it would be illogical to require a medical certificate in order to extend that 30-day period.” 2020 IL 125062 at ¶21.

The court found that its “reading of the statute [was] reinforced” by examining the other qualifying events in the Code, which, besides birth, include “personal illness, quarantine at home, or serious illness or death in the immediate family or household” and “adoption, or placement for adoption.” 2020 IL 125062 at ¶22, quoting 105 ILCS 5/24-6. The court stated, “The only reasonable way to interpret the statute’s allowance of sick leave for personal illness, quarantine at home, or serious illness or death in the immediate family or household is that the sick leave must be contemporaneous with the event.” 2020 IL 125062 at ¶23. For example, as the court noted, the Code’s provision allowing a school to request a certificate after an absence of 3 days for illness, which is similar to the 30-day provision for birth, implies “the legislature did not intend for sick leave to be separated in time from the actual illness.” Id. Moreover, the court posited, “Suppose that a teacher experienced a personal illness or family death during the summer break and that these events are resolved prior to the start of the school year. . . . It would be absurd to suggest that the teacher may use paid sick leave at the beginning of the school year to make up for the days lost to illness or family death during the summer break.” 2020 IL 125062 at ¶24. Such an “absurd” interpretation would not be tenable because, as the court noted, a statute should not be construed so that there are absurd results. Id., citing People ex rel. Sherman v. Cryns, 203 Ill.2d 264, 786 N.E.2d 139, 151, 271 Ill.Dec. 881 (2003).

Ms. Dynak argued the Code treats sick leave for birth and adoption differently than for the other qualifying events — creating two distinct groups — because a comma and the word “or” separate the qualifying events: “personal illness, quarantine at home, serious illness or death in the immediate family or household, or birth, adoption, or placement for adoption.” [Emphasis added by Dynak court.] 105 ILCS 5/24-6. Accordingly, she argued that for birth and adoption, leave could “be taken at the teacher’s discretion rather than contemporaneously with, or immediately following, the birth or adoption.” 2020 IL 125062 at ¶26. The court disagreed. In the court’s view, the legislature would have been more explicit if it wanted to treat those (arguably) two groups differently.

Beyond statutory construction, Ms. Dynak argued that birth and adoption should be treated as a distinct group because sick leave is granted to those giving birth or adopting for a different reason than in the other scenarios. According to Ms. Dynak, sick leave for birth or adoption is not necessarily about incapacitation, as in the case of personal illness, for instance. Therefore, she argued that “for birth” should have a broader meaning than the period of time directly following the birth. However, the court found that treating birth and adoption as distinct from other qualifying events would be “unworkable” for schools because they would not know how to apply §24-6, leading again to “impractical or absurd results.” 2020 IL 125062 at ¶27, quoting Nowak v. City of Country Club Hills, 2011 IL 111838, ¶21, 958 N.E.2d 1021, 354 Ill.Dec. 825.

The court found that “the most reasonable and consistent reading of the statute is that it allows an employee who experiences a qualifying event to use accumulated paid sick leave at the time of that event, not later at the employee’s discretion.” 2020 IL 125062 at ¶28. Thus, “[i]f a teacher gives birth just prior to or during a summer break, . . . the teacher has no need to use her accumulated sick days because she is not required to be at work during that time.” 2020 IL 125062 at ¶30. The teacher must either use her accumulated sick days for another qualifying event, or she can wait to receive credit for them when she retires. Id., citing 40 ILCS 5/16-127(b)(6).

Implications of the Dynak Decision

Moving forward, school districts in municipalities with fewer than 500,000 people will use Dynak as a guide for granting sick leave for birth. Ultimately, this will mean that certain teachers working at schools to which the Code applies may receive no sick leave whatsoever for the birth of a child. As a result, teachers may try to family plan so that births, and paid leave taken for those births, coincide with the school year so they can have the full benefits afforded to them for birth under §24-6 of the Code.

For more information about civil litigation, see PROVING FAULT IN AUTO ACCIDENT CASES (IICLE®, 2020). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


Jason G. Schutte, Koepke & Hiltabrand P.C., Springfield
217-726-8646 | E-mail Jason G. Schutte

Dog Owners Subject to Liability Only if They Have Control Over Dog at Time of Bite

Dzierwa v. Ori, 2020 IL App (2d) 190722, confirmed that in order to establish vicious propensities under a negligence cause of action for a dog-bite case, a plaintiff must establish more than that the subject dog had fought with other animals or that the dog had growled at other people. Additionally, in order to establish that a defendant is an owner of an animal, subjecting that person to liability under the Illinois Animal Control Act, 510 ILCS 5/1, et seq., a plaintiff must establish that the owner had control over the subject animal at the relevant time of the bite.

Facts

Plaintiff Jamie Dzierwa filed suit against defendants Joseph and Elizabeth Ori, along with Elizabeth’s brother, Joseph Hoebel, for injuries sustained by a bite from a dog, Fiona, owned by the Oris. 2020 IL App (2d) 190722 at ¶1. The Oris moved for summary judgment on the claims against them, and the court granted their motion. Id.

Dzierwa was injured at the Oris’ home. The Oris themselves were out of town, and Hoebel was housesitting and taking care of Fiona. The depositions indicated that Elizabeth instructed Hoebel to “feed [Fiona] and walk her and give her love”. 2020 IL App (2d) 190722 at ¶3. Dzierwa and others were visiting the Oris’ home at Hoebel’s invitation when the bite occurred. Elizabeth was aware that Hoebel had friends over to the Oris’ home on prior occasions. Id.

Fiona had never bitten anyone nor exhibited aggressive behavior prior to biting the plaintiff. She did not typically jump on visitors. Some children were fearful of Fiona, and the Oris would keep Fiona and the children apart. Otherwise, the Oris did not generally keep guests away from Fiona. Fiona would growl at people through a car window or through windows when strangers approached their home. Fiona did not like other dogs and would bark at them. On one occasion prior to the subject bite, Fiona got into a fight with another dog at a dog park. 2020 IL App (2d) 190722 at ¶4.

Opinion of the Appellate Court

The appellate court noted that a negligence cause of action involving injuries caused by a dog requires a plaintiff to prove that the defendant “knew or had reason to know that the dog would be dangerous.” 2020 IL App (2d) 190722 at ¶7. The court also noted that fights between other dogs are not a sign of attacks on humans. Further, growling at humans does not rise to the level of putting dog owners on notice that the dog poses a threat to humans. 2020 IL App (2d) 190722 at ¶¶7 – 8.

The fact that Fiona had been in a fight with another dog and had growled at humans on other occasions was not sufficient to establish the prerequisite of the defendants being on notice of Fiona having a propensity toward viciousness or previously biting humans. 2020 IL App (2d) 190722 at ¶8.

The court then considered whether the Oris satisfied the definition of an “owner” under the Animal Control Act sufficient to establish liability against them. An owner of a dog or animal can be liable in civil damages to a person for the full amount of injury caused by the subject animal under §16 of the Act, 510 ILCS 5/16. The Act defines an “owner” as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog to remain on any premises occupied by him or her.” 2020 IL App (2d) 190722 at ¶9, quoting 510 ILCS 5/2.16.

The court noted that the Act has been interpreted not to impose strict liability on individuals with a property ownership interest in dogs but rather to require a factual or reasonable basis to establish liability. 2020 IL App (2d) 190722 at ¶10. The court cited Hayes v. Adams, 2013 IL App (2d) 120681, 987 N.E.2d 402, 369 Ill.Dec. 775, as precedent establishing that there must be some reasonable basis to impose liability under the Act. This means that a defendant must have care, custody, and control of the subject dog during the relevant time frame when the bite occurred. 2020 IL App (2d) 190722 at ¶¶11, 14.

Practical Effect of Case

This case further cements the prior court precedent that the Act does not impose strict liabilities on legal owners of animals. Rather, in order for a defendant to be held liable under the Act, the plaintiff must establish that the subject defendant had care, custody, and control of the subject animal at the “relevant time” when the bite occurred. Likewise, in a negligence cause of action, vicious propensities must be more than aggressive behavior toward dogs or simple barking towards strangers.

The plaintiff’s counsel should address these issues, if possible, prior to filing suit because failure to prove these mandatory elements can subject a dog-bite plaintiff to a dispositive ruling on liability. Potential plaintiff’s counsel may want to pass on similar cases if they learn pre-suit that the necessary elements of the claim cannot be proven.

Likewise, defense counsel should be certain to address all of these issues during the discovery stages of litigation to set their case up for summary judgment if the plaintiff cannot prove all necessary elements of a common-law or statutory dog-bite case.

For more information on civil litigation, see CAUSES OF ACTION: COMMON CONSIDERATIONS (IICLE®, 2020). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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