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Fox v. Illinois Civil Service Com.





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.


Plaintiff-Appellee, Pearl Fox, was discharged from her position as a Security and Fraud Investigator I with the Illinois Department of Revenue (hereafter Department) after a hearing before the Illinois Civil Service Commission (hereafter Commission) (Ill. Rev. Stat. 1977, ch. 127, par. 63b111). She filed a complaint for administrative review against both the Department and Commission in the circuit court of Cook County (Ill. Rev. Stat. 1977, ch. 110, pars. 264-279). The circuit court reversed the Commission's order and the Department appeals seeking reinstatement of the Commission's ruling. We affirm the decision of the circuit court that Fox's misconduct was not so substantial as to constitute cause for discharge.

On August 20, 1975, the Department certified and issued charges for the discharge of Pearl Fox summarized below:

(1) That on May 12, 1975, while in the course of performing her duties for the Department, she conducted herself in a manner unbecoming an employee of the State of Illinois by using extremely profane language in public thereby verbally abusing and offending citizens and taxpayers;

(2) Subsequent to her suspension pending discharge, she committed an insubordinate act by wilfully refusing to return taxpayer files and records to the Department.

The hearing officer found the evidence did not support this latter charge. The facts surrounding the charge of conduct unbecoming a State employee and the May 12, 1975, incident follow.

Pearl Fox was hired by the Department on February 3, 1969, as a Security and Fraud Investigator I. On June 18, 1970, she completed her probationary stage of employment and attained certified employee status. As an Investigator I plaintiff was primarily responsible for investigating alleged violations of Illinois tax statutes and for occasionally conducting employee and security investigations. Tax violation investigations necessitate frequent contact with taxpayers often of an accusatory nature.

In April of 1975, Fox was assigned to investigate the Oak Vending Company. She was to determine whether they were carrying out retail operations while their certificate of registration was revoked. Officers of Oak Vending included John Farrell, president, and Donald Folstrom, vice president. During the month of April, Fox visited and telephoned Oak Vending on several occasions attempting to contact Farrell. Despite having attained several addresses where Farrell purportedly resided, Fox was unable to locate him. She also did not contact Folstrom until May 12, 1975.

On May 12, 1975, Fox returned to the premises of Oak Vending in connection with her investigation and presented her State credentials to the secretary, Mrs. Mary McCue. She then asked McCue the whereabouts of Farrell. McCue did not provide the requested information but told Fox that Folstrom was in his office.

From this point the testimony is conflicting. Fox testified that McCue appeared nervous while informing Folstrom that she sought Farrell's location. According to Fox, Folstrom became angry with McCue because he didn't want to come into contact with Fox. Folstrom commented to a tall man, "Look what we got here; what's that kind [black] doing out here?" Fox testified that after making her wait for 15 or 20 minutes, Folstrom remarked, "We don't have any of that kind; what's that black bitch doing here?" At that point, Fox telephoned her supervisor, Michael Berry, told him she was involved in a touchy situation, and asked him to talk to Folstrom. Folstrom picked up an extension phone and asked Berry to identify Fox claiming she hadn't shown credentials. He also objected to her use of his phone without permission.

Fox further testified that Folstrom said to Berry, "What the fuck is she doing out here; she has no business here." Fox replied in kind, "What the fuck do you think I'm doing here. I'm out here on business." According to Fox, supervisor Berry was laughing along with Folstrom. He agreed that Fox had no business there and told her to come back to the office. Near the end of the incident one of the men from the office said he was going to call the police. Fox replied that she would welcome police intervention. At this point, Fox claimed that the "tall man" took her arm and attempted to lead her out. She responded, "take your hands off the dry goods" and left the office.

Other witnesses, principally Folstrom and Berry, report a different version of the incident. Mrs. McCue gave Fox permission to use the phone. Folstrom reported that after finishing a phone conversation, he asked his secretary what Fox wanted. Folstrom testified that Fox interjected, "You know damn well what I want." When Folstrom protested no knowledge of her purpose, she called him a "god damn liar." Folstrom then picked up an extension phone and asked Berry to identify Fox and explain what she wanted and complained about her language. The argument became more heated when Folstrom again denied knowledge of the Oak Vending investigation. He testified that twice again during the argument Fox called him a "god damn liar" and he then replied in hand, "No, you're a god damn liar." Supervisor Berry, having heard the incident over the phone, corroborated Folstrom's testimony.

Milton Peterson and Fred Fabry, occupants of adjacent offices, testified that they were disturbed by the loud argument. Both men left their offices to attempt to quell the disturbance. Peterson warned that he would call the police if it didn't quiet down. According to Peterson, Fox said, "Go ahead and call the fucking police." At this point the shouting match quieted and Peterson and Fabry returned to their offices. At the urging of Berry, Fox returned to the office, but according to Folstrom, as a parting remark she called him a "four-eyed fat crook."

Folstrom admitted directing some profanity at Fox but denied making racial slurs although racial overtones were insinuated. Other Department witnesses confirmed that no racial slurs were explicitly stated. Folstrom repeatedly denied knowledge of the Oak Vending investigation, yet on cross-examination several prior inconsistent statements were introduced to impeach his credibility on this point.

A substantial and significant portion of the record does not directly concern the May 12 incident. The hearing examiner found testimony regarding Fox's employment history and relations with the Department pertinent. Fox had one prior 60-day suspension for profanity during her six-year tenure with the Department. Her offense was uttering profanity to State employees in a public building. This suspension was upheld on administrative review. (Fox v. Department of Revenue (Cir. Ct. Cook Cty. 1975), No. 74L 15696.) There is no evidence in the record that the Department had promulgated any internal disciplinary rules concerning employee profanity nor that Fox had been expressly warned that further episodes of profanity would result in her discharge. Nonetheless, this suspension made Fox aware that this conduct was not approved by the Department.

Fox presented evidence that the Department did not discipline other employees who used profanity. Numerous witnesses testified that profanity was rampant among and between Department employees around the office. Fox also presented evidence that other investigators had been accused by taxpayers of using profanity. Yet, Fox was the only Department employee ever investigated or disciplined for profanity.

The record also contains evidence of several employment disputes between Fox and the Department. In late 1969 or early 1970, Fox filed a complaint with the Illinois Fair Employment Practices Commission (hereafter F.E.P.C.) alleging various discriminatory practices by the Department. On March 20, 1975, the F.E.P.C. issued a cease and desist order directed against Department practices of discriminating against Fox and other minority investigative personnel with regard to duty assignments, employee relations, and other terms and conditions of employment. Additionally, in May 1974, Fox filed a complaint with the Equal Employment Opportunity Commission alleging wage and promotion mistreatment due to her race and sex and that her 60-day suspension was a reprisal for her legal and union activism. After investigation by Federal authorities, the United States Department of Justice issued a letter granting the right to initiate a civil suit. The Department received notice of this letter on May 30, 1974, and Fox subsequently filed suit in Federal district court. In 1974, Fox also filed a second race discrimination and unfair labor practice complaint with the F.E.P.C. The Department was issued a notice of finding of substantial evidence on July 14, 1975. Within a few weeks the Department initiated discharge proceedings against Fox for the May 12, 1975 incident.

• 1 Presently, these Federal and State unfair labor practice and discrimination actions are still pending. It is not the function of this court to characterize or predict the merits of this pending litigation nor to hold the earlier findings of the F.E.P.C. in any way binding in this cause. However, these matters are part of the Commission's record we are required to review and are relevant to Fox's claim of selective enforcement. We must consider the totality of circumstances surrounding Fox's employment with the Department rather than narrowly focus upon the incident of May 12, 1975. Kreiser v. Police Board (1976), 40 Ill. App.3d 436, 441-42, 352 N.E.2d 389, 394, aff'd and remanded (1977), 69 Ill.2d 27, 370 N.E.2d 511.

At issue before the court are (1) whether the manifest weight of the evidence supports the findings of the Commission, and (2) if so, do these findings ...

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