Appeal from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding. Reversed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendants appeal from the issuance of a writ of mandamus which commanded them to take all steps necessary to withdraw and cancel the resignation of plaintiff from his position as a probationary patrolman in the Chicago Police Department and to reinstate plaintiff as a patrolman with back pay.
Plaintiff cross-appeals from that portion of the order which assessed no costs against the defendants.
On May 31, 1966, after passing the civil service examination for patrolman, plaintiff was appointed a patrolman for a six-month probationary period pursuant to section 5 of Rule IV of the Rules of the Civil Service Commission, 1967, which provides:
Probation. Original appointment shall be on probation for a period of six months. In no case shall a probationer be discharged until after the appointing officer has received from the Commission a notice in writing that the Commission has approved such discharge. Time served on probation, whether continuous or not, shall be credited upon the period of probation.
He was assigned to the Chicago Police Training School. During the period in which plaintiff attended the school, Robert E. McCann, Director of the Police Training School, and several school instructors noticed that plaintiff had a tic. Director McCann testified at trial that the tic was manifested by "a constant moving of the head, eyes closed, shoulders moving; I think the closest kind of oral description I could give would be a punch-drunk boxer." He also added that the tic was more than a twitch, it was a severe jerk with a face motion.
At the request of Director McCann, Dr. James Carroll, Chief Surgeon of the Police Department, who was in charge of the police medical department, and Dr. Avon Mendelson, a psychologist for the Police Department, observed the plaintiff. As a result of the initial eight-week test, Dr. Mendelson noticed that there was an unusual amount of impulsivity and aggressiveness on the part of plaintiff, in addition to an obvious tic, body contortions and grunting sounds. Dr. Carroll and Dr. Mendelson reviewed these tests together with plaintiff's history and background. They decided that there was an excessive amount of impulsivity and lack of emotional control on the part of the plaintiff.
The plaintiff was then referred to the police medical section, which referred him to Dr. Clifton Rhead of the Police Psychiatric Advisory Board. On August 30, 1966 (several days before plaintiff's graduation from the training school but three months prior to the expiration of the probationary period), Director McCann received a report from Dr. Carroll which related the findings of Dr. Rhead that plaintiff had a psychogenic tic with poor impulse control. Dr. Rhead recommended:
It is believed that the possibility is strong that this man would act-out his rage if the provocation were strong enough. Since the likelihood of such provocation is greater in his chosen field (police work) it is recommended that he be dropped from the training program at this time.
Upon receipt of this report, Director McCann immediately sent for the plaintiff. The director explained to plaintiff that based on this report and on observations made in the classroom, he would have to recommend to the Superintendent of Police that plaintiff be discharged from the police force. The director went on to explain that he was sympathetic toward plaintiff and that since the discharge was not predicated on a disciplinary situation, it was only fair to give plaintiff the option of resigning, which he did. Director McCann testified at trial that he thought that plaintiff resigned because of the obvious implications that could have followed from being fired from the Police Department.
At the time the plaintiff was directed to go to Director McCann's office, his brother, Salvatore Ceja, a Chicago policeman, was curious as to what was happening, so he went over to the director's office. When he arrived, the plaintiff was already in conference with the director.
When the plaintiff emerged from Director McCann's office and saw his brother, plaintiff asked the director if his brother could speak to him. Director McCann invited both the plaintiff and his brother into his office. The testimony at trial of both the plaintiff and his brother agreed with that of Director McCann to the effect that the director read and explained the medical report to them; that the medical report indicated that under certain stress conditions the plaintiff might overreact and injure or kill someone; and that plaintiff had signed a letter of resignation.
At trial, Director McCann also testified that he made no threats to force plaintiff to sign the letter of resignation but rather, was attempting to be helpful, that he spoke to the plaintiff as a father would to a son. The plaintiff's brother supported the director's testimony. He testified that he did not hear the director say anything that would be considered a threat if plaintiff did not resign, and that he thought it was true that for job preference purposes a resignation was better than being discharged.
The plaintiff testified that when his brother asked what the effect would be if other psychiatrists repudiated Dr. Rhead's report, the director said that he could not take the plaintiff back; that he was simply carrying out ...