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08/17/87 Robert E. Nelmark, v. the Board of Fire and

August 17, 1987

ROBERT E. NELMARK, PLAINTIFF-APPELLANT

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF DE KALB ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

512 N.E.2d 1021, 159 Ill. App. 3d 751, 111 Ill. Dec. 480 1987.IL.1189

Appeal from the Circuit Court of De Kalb County; the Hon. Rex F. Meilinger, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

This is an appeal by the plaintiff, Robert E. Nelmark, from an order of the circuit court of De Kalb County affirming the decision of the defendant, board of fire and police commissioners of the city of De Kalb (board), discharging the plaintiff from the city's fire department. The plaintiff has raised three issues on appeal which we shall restate as follows: whether it was proper for the board to consider charges other than those occurring on September 12, 1985; whether the findings of the board were against the manifest weight of the evidence; and whether the board's findings were sufficient to justify plaintiff's discharge for "cause."

Prior to the commencement of these proceedings, the plaintiff had been employed as a fireman by the city of De Kalb for 15 years and 7 months. On September 25, Albert Riippi, chief of the city of De Kalb fire department, filed a three-count complaint against the plaintiff with the board. Count I of the complaint alleged that on September 12, 1985, plaintiff had failed to participate in a rappelling drill when directed to do so by a superior officer. Count II alleged that on the same day, plaintiff filed a false accident report. Count III alleged in pertinent part as follows:

"3. That Respondent (Nelmark) had failed to fully, efficiently and/or effectively perform his duty as a Fireman of the City of De Kalb and to justify the salary/fringe benefits paid him by the City of De Kalb."

The complaint requested that plaintiff be suspended without pay pending the outcome of the hearing and, further, that plaintiff be discharged if found guilty of one or more of the counts in the complaint.

The hearings on the complaint took place on October 16, November 4, and November 18, 1985. At the hearings, the following facts were adduced. On September 12, 1985, plaintiff and two other firemen responded to an ambulance call on the campus of Northern Illinois University. Upon their arrival at the university, they proceeded to the third floor of Graham Hall, where the patient was located. The firemen placed the patient on a stretcher. The stretcher was then carried down the stairs to the ground floor by the firemen. Plaintiff was in the lead holding the head of the stretcher, and the other two firemen carried the foot of the stretcher. According to plaintiff, as they were descending the stairs, he felt a pain in the area of his lower back and the area of his right hip "like it tore." According to Paul Campbell, one of the other firemen present, he asked if plaintiff was okay, to which plaintiff responded, "Yes, I am fine." Plaintiff explained his reluctance to acknowledge the injury came from the fact that his back had been injured many times, and he had experienced lower back problems due to on-duty injuries, for which he had received workers' compensation benefits. He was also concerned that he might experience some harassment for reporting the injury.

After lunch that day, plaintiff and several other firemen were scheduled to participate in a rappelling drill. The drill consisted of rappelling off a snorkel bucket which was 5 to 10 feet above the fire station's second-story roof, about 50 to 75 feet in the air. According to plaintiff, he spoke to Captain Lubbers, who was supervising the drill, and told him that the drill was unsafe because they were using only one rope, contrary to what the manual provided, and that the rope was old. He informed Captain Lubbers that he would have to be given a direct order to complete the drill. Lubbers ordered him to participate in the drill. Plaintiff then left the drill area and went to see Captain Killingsworth, the second in command. According to plaintiff, he informed Killingsworth that he thought the drill was unsafe and that two ropes should be used instead of one as provided in the manual. Killingsworth replied that if the manual provided that two ropes be used instead of one, then that was how it should be done. Plaintiff then questioned whether there would be a personal liability on Killingsworth's part if plaintiff was forced under threat of disciplinary action to participate in an unsafe drill. Killingsworth indicated that a person who refuses to obey an order would be suspended. Plaintiff stated that he was not refusing an order and that he would participate in the drill, but that it might result in a lawsuit. With that, plaintiff walked away to get a drink of water. Killingsworth ordered him to come back or face a suspension. Plaintiff returned after obtaining a drink of water and was informed by Killingsworth that he was suspended. Plaintiff was also sent a letter confirming the suspension.

According to Captain Killingsworth, when plaintiff first came to his office, he stated that the drill was unsafe due to the lack of a pad or an air bag. No mention was made of the rope until Killingsworth brought it up in an effort to discover what plaintiff's problem with the drill was. He advised plaintiff that if he wanted a double rope, he could have one. That did not seem to satisfy plaintiff, and Killingsworth continued to inquire as to the real nature of plaintiff's problem with the drill. At that point, plaintiff turned and walked away from Killingsworth's desk. Killingsworth stated that he was not through talking to the plaintiff and that he should return to the desk. However, plaintiff continued to walk away. Killingsworth then gave him a direct order to return to his desk and indicated that he would file charges if plaintiff did not obey his order. Plaintiff responded to go ahead. Killingsworth then suspended plaintiff for the rest of the day. This suspension was not for plaintiff's failure to obey Captain Lubbers' order.

Following his Discussion with Captain Killingsworth, plaintiff filled out an accident report indicating that he had injured himself on the ambulance call to Northern Illinois University. He informed Captain Lubbers, who had him transported to Kishwaukee Community Hospital. He was examined in the emergency room by his family physician, Dr. Periakaruppan Ramanathan, who had previously treated plaintiff for lower back problems in January 1985.

Dr. Ramanathan, who specializes in internal medicine and endocrinology, diagnosed plaintiff as suffering from "right groin strain, muscle sprain." He prescribed a muscle relaxant and told the plaintiff not to return to work until he was better. On September 16, 1985, Dr. Ramanathan saw plaintiff in his office. Plaintiff was complaining of groin and back pain. Plaintiff's pelvis was X-rayed but proved negative. The doctor prescribed pain medication and instructed plaintiff not to return to work until September 23, 1985. The doctor also saw plaintiff on September 23, 1985. Plaintiff continued to complain of pain in the right groin and back area. Dr. Ramanathan prescribed anti-inflammation medication and referred plaintiff to two orthopedic surgeons. He also advised plaintiff to be off work until October 9, 1985. Dr. Ramanathan's earlier diagnosis of plaintiff's condition did not change after plaintiff was seen by the other two doctors. In Dr. Ramanathan's opinion, plaintiff had chronic back problems and that as a result of the incident of September 12, 1985, he had reinjured his back. However, Dr. Ramanathan admitted that he had made his diagnosis at least in part based upon what plaintiff had told him.

With respect to the charges in count III of the complaint, there was testimony that plaintiff did not know where emergency equipment was located or how to use the equipment; that plaintiff was reluctant to enter a fire scene and appeared to be avoiding fire scenes. He lacked knowledge as to where streets where located and at times headed away from fire scenes rather than in the direction of the fire. He appeared to have more trouble with his oxygen mask than the other firemen. ...


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