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06/30/88 Ada Phillips, v. the Civil Service

June 30, 1988

ADA PHILLIPS, PLAINTIFF-APPELLANT

v.

THE CIVIL SERVICE COMMISSION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

526 N.E.2d 549, 172 Ill. App. 3d 278, 122 Ill. Dec. 290 1988.IL.1040

Appeal from the Circuit Court of Cook County; the Hon. Arthur Dunne, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. McMORROW, J., concurs. JUSTICE JOHNSON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This is an appeal from the judgment of the circuit court of Cook County which upheld the Illinois Civil Service Commission's decision to approve the discharge of the plaintiff, Ada Phillips, from her position with the Illinois Department of Registration and Education.

On appeal the plaintiff argues that: (1) she was denied her due process right to a pretermination hearing; (2) the post-termination hearing was unreasonably delayed in violation of her constitutional rights and in violation of "state law"; (3) her discharge violated the principle of progressive corrective discipline; (4) her discharge constituted a double sanction; (5) the transfer which led to the facts underlying one of the reasons for her discharge violated section 16.02(f) of the Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111, par. 4435(f)); and (6) her discharge was unwarranted.

The plaintiff began her employment with the Illinois Department of Registration and Education on September 14, 1976. During the major portion of her employment with the Department, the plaintiff worked as a medical investigator in the Medical Investigations Unit. On April 29, 1983, the plaintiff received written notice of intent to suspend for five days and the plaintiff was subsequently suspended for five days, between May 9, 1983, and May 14, 1983. The written notice of suspension stated that the basis of the suspension was continued insubordination and refusal to follow instructions. As examples of her refusal to cooperate, the notice stated that the plaintiff had failed to accept instructions, had failed to complete assignments, and had failed to follow sign-in procedures. The notice of suspension stated that the plaintiff had been issued an oral reprimand on February 25, 1983, a written reprimand on March 2, 1983, and a one-day suspension on March 16, 1983, all for failing to comply with agency policy and procedures. Further, the notice informed the plaintiff that she had two working days after being informed of the proposed suspension within which to address the head of the agency regarding the reason given for the suspension. The plaintiff did in fact respond in writing to the notice of suspension.

On May 14, 1983, the last day of the plaintiff's suspension, she was placed on suspension pending discharge for continued insubordination. The suspension was extended for 23 days.

Subsequently, on June 6, 1983, the plaintiff was discharged for: (1) failure to report for an assignment; (2) failure to comply with work procedures; and (3) falsifying investigative activities/reports. The plaintiff was informed of the underlying facts which according to the Department formed the basis for her discharge. The specific details regarding the basis for her discharge will be provided later.

After her discharge, the plaintiff was granted a post-termination hearing before the Illinois Civil Service Commission. The evidence in the record shows that while working as a medical investigator, the plaintiff received a death threat in connection with a case she had investigated. In response to the seriousness of the matter, the plaintiff's superiors decided to temporarily reassign her to the Health Related Investigations Unit effective April 18, 1983, in order to alter her daily routine and allow her to travel on a statewide basis. The Health Related Investigations Unit investigated allegations against licensed health professionals other than medical doctors. Two of the three reasons for the plaintiff's discharge relate to this temporary assignment.

After being transferred, the plaintiff met with her new supervisor, Gregory Dickinson, to discuss cases which were assigned to her. Details regarding the plaintiff's conduct during this assignment will be provided later.

Shortly after the transfer, the plaintiff met with her former supervisor from the Medical Investigative Section, who asked her to supply some reports or notes regarding medical investigation cases that the plaintiff had worked on since 1980. Certain quarterly summaries of those cases did not have corresponding investigative reports as required by office procedure to substantiate the investigation. Although the plaintiff stated that she had made reports and had notes regarding the investigative activity, she failed to produce copies of the investigative reports or related investigative notes. A search of the plaintiff's files after her discharge failed to produce either the reports or the notes.

At the Conclusion of the evidentiary hearing and upon filing of closing arguments, the hearing officer entered its recommended decision. The recommended finding of the hearing officer was that charges 1 and 2 were not proved and that charge 3 was proved and that the plaintiff should only be suspended for three days. Thereafter, the Commission entered its decision in the case finding that charges 2 and 3 were proved and that the proof of these two charges warranted the discharge of the plaintiff.

The plaintiff initially contends that she was denied her due process right to a pretermination hearing. In Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487, the Supreme Court held that due process requires some kind of hearing prior to the discharge of an employee. Although the hearing need not be elaborate, Loudermill requires some minimal informal pretermination opportunity whereby a public employee is given oral or written notice of the charges against her, an explanation of her employer's evidence, and an opportunity to defend herself against the charges. Loudermill, 470 U.S. at 546, 84 L. Ed. 2d at 506, 105 S. Ct. at 1495.

In the case at bar, the plaintiff was suspended twice. The first time she was suspended for five days and at that time she was given written notice that her suspension was for continued insubordination and refusal to follow instructions. The written notice of suspension listed specific incidents and noted that the plaintiff had previously been issued oral and written reprimands for failing to comply with agency policy and procedure. Further, the notice informed the plaintiff that she had two working days after being informed of the proposed suspension within which to respond to the reasons for the suspension. The plaintiff did in fact respond in writing. On the last day of the plaintiff's suspension, she was placed on suspension pending discharge for continued insubordination and was subsequently discharged. The basis of the suspension pending discharge was, in part, the same as the original suspension. Although the notice of suspension pending discharge did not state that the plaintiff could respond, the plaintiff had already been notified that she could respond to the original suspension, and had in fact taken advantage of that opportunity and detailed her response to the original suspension. Further, the plaintiff had been approached several times by Dickinson, her ...


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