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Parks v. City of Evanston

OPINION FILED DECEMBER 30, 1985.

JEFFREY PARKS, PLAINTIFF-APPELLANT,

v.

THE CITY OF EVANSTON ET AL., DEFENDANT-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Lester D. Foreman, Judge, presiding.

PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Plaintiff Jeffrey Parks filed a complaint in five counts. In counts I through IV, he sued defendant city of Evanston (the city) for breach of contract, fraud, retaliatory discharge, and discharge in violation of civil service rules. In count V, plaintiff sued defendants Evanston City Employees Union, Local 1891, American Federation of State, County and Municipal Employees, AFL-CIO (Local 1891), and union officials Robert Covin and Robert Breving for failure to provide fair representation in grievance hearings. The trial court struck counts II, III and IV of the complaint, and dismissed count V of the complaint with prejudice with respect to Local 1891. Plaintiff amended his complaint, bringing substantially the same claims against the city, Covin and Breving, but bringing no claim against Local 1891. The trial court dismissed the amended complaint. Plaintiff appeals from the order dismissing the amended complaint, and from the order dismissing count V of the original complaint with prejudice with respect to Local 1891.

Plaintiff alleges in his amended complaint that in January 1982 the city ran a newspaper ad seeking applicants for a position as water plant operator, which stated that the city would provide "full tuition reimbursement" for successful applicants. Plaintiff alleges that he responded to that ad, and that at his job interview, his interviewer, Paul Wagner, superintendent of the city's water department, told plaintiff that plaintiff would receive tuition reimbursement for courses taken towards a civil engineering degree if the courses were approved. Plaintiff began working for the city as a water plant operator on February 8, 1982.

Plaintiff applied for Northwestern University's civil engineering program in the fall of 1982. Plaintiff alleges in his amended complaint that Wagner agreed that the courses would improve plaintiff's skills for his position, and Wagner wrote a recommendation to Northwestern on plaintiff's behalf. After Northwestern accepted plaintiff, plaintiff asked the city to reimburse him for the tuition. Plaintiff alleges that Wagner did not approve the courses, and therefore plaintiff's request for tuition reimbursement was denied. Plaintiff subsequently discussed the matter with the city manager, but his request was again denied.

In December 1982, the city fired Randel Milan. Plaintiff alleges that he complained to Wagner that the firing was unfair. Plaintiff asked the union to intervene on Milan's behalf, and the union told plaintiff not to concern himself with the matter. Plaintiff alleges that he subsequently asked some of the city's aldermen and a minister to help Milan.

Plaintiff alleges that shortly after these incidents, plaintiff's supervisors began to harass him with written reprimands, and they threatened to discharge him. In April 1983, plaintiff requested vacation time so that he could attend his classes at Northwestern. The city denied his request although other city employees were allowed time off for educational purposes. Plaintiff sought to employ a maintenance mechanic to replace him during the hours he needed to be in class. The mechanic had previously replaced other operators without objection, but the city refused to allow him to replace plaintiff.

Plaintiff alleges that he asked Local 1891 to bring a grievance proceeding concerning plaintiff's right to attend classes. Local 1891 refused to file a grievance, and plaintiff alleges that this left him without remedy against the city.

On April 19, 1983, plaintiff advised his immediate supervisor that he had a class to attend at noon. Plaintiff alleges that the supervisor refused to allow any personnel to fill in for plaintiff. Plaintiff left for class and returned at 1 p.m. Again on April 20, 1983, plaintiff attended class from noon to 1 p.m. When he returned, his supervisor instructed him to turn in his plant key.

Defendants Covin and Breving represented plaintiff on behalf of defendant Local 1891 in the subsequent grievance proceedings. However, plaintiff alleges that Covin and Breving failed to interview plaintiff or any of the witnesses he suggested, failed to examine pertinent records, and demanded that certain persons be excluded from the proceedings, although plaintiff requested their presence. Plaintiff further alleges that Covin and Breving failed to prepare for the hearings, failed to supply outside legal counsel, and failed to advise plaintiff of his rights. He alleges that Covin, Breving and Local 1891 only asked plaintiff to apologize to the city. On April 27, 1983, following the second grievance proceeding, the city discharged plaintiff.

Plaintiff alleges that he asked Local 1891 to submit the matter to arbitration, pursuant to the union's contract with the city, but it refused to pursue the matter any further. Plaintiff alleges that the city failed to file written charges with the civil service commission, it failed to give him notice in accord with the rules, and the hearing officer was not appointed properly. Plaintiff alleges that these procedures were required by the city's civil service ordinance.

Under Article VI of Local 1891's contract with the city:

"Definition of Grievance. A grievance is a difference of opinion between an employee or the Union and the City with respect to the meaning or application of the express terms of this Agreement, or with respect to inequitable application of the Personnel Rules of the City or with respect to inequitable application of the Unified Work Rules."

Section 6.3 of the contract describes procedures for processing grievances.

Before plaintiff could bring his claims against the city in court, he was required to attempt to settle his grievances through the procedures delineated by the contract. (Republic Steel Corp. v. Maddox (1965), 379 U.S. 650, 652-53, 13 L.Ed.2d 580, 583, 85 S.Ct. 614, 616.) Plaintiff is entitled to judicial review of the grievance procedures in this case only if he can show that Local 1891's conduct in processing the grievance was arbitrary, discriminatory, or in bad faith. (Vaca v. Sipes (1967), 386 U.S. 171, 185, 190, 17 L.Ed.2d 842, 855, 857-58, 87 S.Ct. 903, 914, 916-17.) If plaintiff is able to ...


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