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June 19, 1996


Appeal from the Circuit Court of Cook County. Honorable Ellis E. Reid, Judge Presiding.

Presiding Justice Tully delivered the opinion of the court: Cerda, J., concurs. Greiman, J., dissents.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Petitioner, Thomas McElroy, sought administrative review in the circuit court of Cook County from an administrative hearing that upheld the discharge of McElroy from employment with respondent, Cook County. The circuit court reversed the hearing officer's decision and ordered that respondent reinstate McElroy with full back pay and benefits. It is from this order that respondent now appeals pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we affirm and remand.


The pertinent facts are as follows. Cook County is a body politic and corporate (55 ILCS 5/2-5002; 55 ILCS 5/2-5009; 5/3-14001 et seq. (West 1996)) which hired McElroy on June 19, 1991. McElroy became an office automation technician for the Cook County Bureau of Administration's Office of Management Information Systems on June 19, 1992. On September 30, 1993, the director of the Department of Office Automation and McElroy's direct supervisor, Mary Jo Horace, scheduled a meeting with McElroy, where she discussed his job performance. Horace addressed three alleged recent incidents: (1) his refusal to move some computer equipment; (2) his twelve tardies during the first half of September; and (3) his incorrect connection of four computer terminals earlier that week. According to Horace, McElroy was unhappy and dissatisfied with his employment. Immediately after the meeting, Horace met with her supervisor and the personnel director, and decided that terminating McElroy was "in the county's best interests." Subsequently, McElroy was fired on September 30, 1993, because of his "failure to perform at a satisfactory work level, excessive tardiness and insubordination for tasks assigned."

In December of 1992, eight months prior to his discharge, McElroy contacted Steve Klem of the Bureau of Human Resources to review his employee personnel file. It was on this day that McElroy first saw the memoranda submitted by Horace in his personnel file that had been placed in the file without his knowledge. Shortly thereafter, McElroy sent a letter in January of 1993 to Albert Pritchett, the chief administrative officer of the Cook County Bureau of Administration, responding to all the memoranda Horace had written about him. The memoranda included: (1) July 15, 1992 -- general job description; (2) July 15, 1992 -- McElroy informed Horace of his computer experience; (3) October 23, 1992 -- regarding Horace's dissatisfaction of McElroy's work performance; (4) October 27, 1992 -- regarding Horace's dissatisfaction of McElroy's work performance (5) November 30, 1992 -- concerning McElroy's lack of proper care of county equipment; (6) December 1, 1992 -- regarding McElroy's abuse of telephone privileges; (7) December 8, 1992 -- McElroy's suspension for refusing to inventory furniture; (8) December 14, 1992 -- McElroy's personal matters should be taken care of outside the office; (9) January 15, 1993 -- concerning McElroy's florist bill being sent to his place of work. Klem had told McElroy that only the supervisor who wrote the memoranda had the authority to remove them. Klem further advised McElroy that if Horace choses not to remove the memoranda, McElroy can then submit statements that will always appear with the questioned items. Subsequently, McElroy submitted nine responses, with the expectation that they were to be attached to his personnel file to correct the "misinformation and false allegations." Pritchett never responded to McElroy regarding the memoranda, nor placed McElroy's responses in his personnel file.

McElroy was terminated on September 30, 1993. In October of 1993, 9 months after McElroy sent his responses to Klem and Pritchett, McElroy requested to see his file again. Upon reviewing his file, McElroy realized that none of his letters or responses were noted in his employee personnel file. He again contacted Klem to inquire about the incomplete record. Klem informed McElroy that "it is incumbent upon this agency to ascertain the accuracy of documents submitted. The procedure was undertaken and has not been completed at this time. *** The personnel record correction materials may not be part of your file as of this date *** [but] the ready availability of these documents in the Bureau should not result in any impairment of your ability to prepare for any hearing."

Consequently, McElroy requested a hearing before the Bureau of Human Resources to determine whether there was just cause to support his discharge. The hearing was scheduled for November 18, 1993, with Charles Ard as the hearing officer. Horace, McElroy and his counsel, Roma Stewart, were present at the hearing. Horace testified first. She stated that McElroy was fired because of insubordination, tardiness and improperly connecting computer equipment. Horace testified that McElroy had been previously disciplined. Horace acknowledged that she only brought the incomplete department file with her. She did not bring McElroy's official employee personnel file.

McElroy gave his testimony after Horace. He began by stating that his copy of the official personnel file was incomplete. There was no record of: (1) his request for medical leave; (2) certain unidentified progressive disciplinary forms; (3) a memorandum where McElroy was docked for 1 1/2 hours of pay; and (4) the nine responses he had submitted to Pritchett and Klem. Since the official personnel file could not be located as Horace had just brought the department file, McElroy told the hearing officer that they would provide him with copies of all the documents they referred to.

During his testimony, McElroy rebutted the charges against him. First, he stated that his refusal to move some computer equipment was not insubordination. Rather, he was under strict medical orders not to move anything weighing over 21 pounds, since he had recently undergone surgery to repair a severed Achilles tendon. Horace stated that she knew that McElroy had been recovering from surgery, but did not know that he was on restricted duty. Second, although McElroy did not deny his tardiness, he maintained that no documentation existed of his 12 instances of tardiness. Furthermore, McElroy attributed his tardiness to his medical condition, because his leg was stiff when he attempted to move around early in the day. Third, he recalled that he incorrectly connected four computer terminals. McElroy stated that Horace did not answer any of his inquiries regarding the connection, so he did the best he could under the circumstances.

On February 28, 1994, the hearing officer issued his final decision. He summarized all the testimony and considered all the documents, whether they were in the personnel file or not. The hearing officer acknowledged that there were differences in the McElroy's records and the documentation submitted to him by Horace and McElroy, but he emphasized that the "differences were not material to the decision to either uphold or deny reinstatement of the employee to County Service." The hearing officer denied McElroy's discharge appeal.

Upon administrative review, the circuit court reversed the hearing officer's ruling as petitioner was denied due process and ordered that petitioner be reinstated with backpay and ...

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