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11/10/97 THOMAS O'SULLIVAN v. BOARD COMMISSIONERS

November 10, 1997

THOMAS O'SULLIVAN, PETITIONER-APPELLEE AND CROSS-APPELLANT,
v.
BOARD OF COMMISSIONERS OF THE COOK COUNTY BOARD, OAK FOREST HOSPITAL, COOK COUNTY DEPARTMENT OF HUMAN RESOURCES, HENRY TOWNES, DIRECTOR, COOK COUNTY DEPARTMENT OF HUMAN RESOURCES, AND PATRICIA DIXON, HEARING OFFICER, COOK COUNTY BOARD OF COMMISSIONERS BUREAU OF HUMAN RESOURCES, RESPONDENTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable AARON JAFFE, Judge Presiding.

As Corrected December 16, 1997. The Docket Number of this Case has been Corrected by the Court December 16, 1997. Rehearing Denied December 22, 1997. Released for Publication December 24, 1997.

The Honorable Justice Buckley delivered the opinion of the court. Campbell, P.j. and O'brien, concur.

The opinion of the court was delivered by: Buckley

The Honorable Justice BUCKLEY delivered the opinion of the court:

This appeal involves the review of an administrative determination. On August 8, 1993, complaints were filed by Oak Forest Hospital of Cook County (the Hospital) and three of its employees against Thomas O'Sullivan (O'Sullivan). Henry Townes (Townes), the director of the Cook County Department of Human Resources, held a predisciplinary hearing on August 30, 1993. Thereafter, Townes discharged O'Sullivan by letter effective September 3, 1993. A discharge appeal hearing was held on March 11, 1994, at which hearing officer Patricia Dixon presided on behalf of the County of Cook/Board of Commissioners of Cook County/Bureau of Human Resources (collectively, the County). On September 26, 1994, the County sustained O'Sullivan's discharge from his supervisory position as chief engineer for the Hospital. O'Sullivan filed a writ of certiorari. On September 28, 1995, the circuit court, after hearing oral arguments, remanded the case to the County ordering imposition of a penalty less than discharge. On March 25, 1996, the circuit court entered a final order affirming the County's entry of a sanction of demotion without back pay or related benefits. The County appeals seeking reversal of the circuit court's orders of September 28, 1995, and March 25, 1996, and seeking entry of an order reinstating the County's sanction of discharge. O'Sullivan cross-appeals seeking reversal of the circuit court's order of March 25, 1996.

The issues presented on appeal are: (1) whether the County's findings of fact were against the manifest weight of the evidence; (2) whether the County's decision to discharge was unreasonable, arbitrary, or unrelated to the requirements of service; and (3) whether the trial court properly affirmed the decision of the County whereby O'Sullivan was demoted and reinstated without back pay or related benefits.

O'Sullivan was suspended from his job at the Hospital on August 8, 1993, as a result of complaints filed by three employees, Carolyn Klimp, Laura Finn, and William Belle. A pretermination hearing was held on August 30, 1993. At the hearing, Townes heard the complaints of Finn and Klimp. Because Belle was out of town, Townes was presented with Belle's written statement. After considering the facts presented at the hearing, Townes discharged O'Sullivan by letter effective September 3, 1993. According to the letter, O'Sullivan was charged with violation of Cook County's policy prohibiting sexual harassment, abusive behavior toward employees, and less than satisfactory work performance. O'Sullivan appealed.

On March 11, 1994, the County held a discharge appeal hearing. The Hospital presented the testimony of Lathitha Chandrashekar, Finn, Klimp, and Belle. The County also heard testimony on O'Sullivan's behalf from Thomas Kennedy, Gerald Donnelly, and O'Sullivan.

The following testimony was elicited at the hearing. Chandrashekar testified that she was asked by the female Hospital director, to investigate the charges of harassment alleged against O'Sullivan. Chandrashekar testified that she spoke with the complainants, department staff, and O'Sullivan. Chandrashekar wrote up her findings and presented them to Townes. She stated that she never told O'Sullivan to stop his conduct.

Finn testified that she had been an employee of the Hospital since July 1983 and had transferred into O'Sullivan's department in 1990. She testified that O'Sullivan expressed to her in certain ways that she was not a welcome addition. She testified that he assigned her to very difficult and unpleasant jobs so that she would want to leave. Finn stated that she felt if she completed her assignments, O'Sullivan would see that she was doing her work and, therefore, she wouldn't have any further problems with him.

Finn testified that O'Sullivan had a tendency to cut out jokes and pictures and tape them up. She stated that one picture was of a woman pulling a plow and that O'Sullivan had typed a caption on it that read "that's the way it should be today." She also stated that O'Sullivan had a habit of making comments that he thought were humorous. He made comments regarding women taking advantage of men when they go out to restaurants and how women never pay their fair share. Finn testified that O'Sullivan had two Art Institute pictures on his office wall of nude women. She testified that once when she was in his office for a meeting he asked her if she liked his artwork. In response, she just shook her head. Finn stated that she believed it was in her best interest not to rock the boat with O'Sullivan, to try to go along and not cause problems so that the work place would be more "settled."

Finn testified that in 1992, when she was pregnant, O'Sullivan assigned her to difficult jobs which entailed walking alone at the tops of ropes, working in the tunnels alone and working with the laundry oiler. She stated that while she was pregnant O'Sullivan asked her if she needed a red flag tapped to her stomach. She told him she didn't think that was funny and about three weeks later he asked her the same question again. About six months into her pregnancy, Finn and O'Sullivan met with her union representative about the difficulty of her assignments. Finn requested a transfer to the computer room. O'Sullivan asked her to think about any other jobs she could do during her last trimester and he said that he would think about the transfer. While O'Sullivan never expressly denied Finn's transfer request, her assignment was not changed until after O'Sullivan left. Finn stated that this time period was very stressful for her and that she would get up in the morning and not want to go to work for fear of what else would be done to her.

Finn testified that after having worked in the boiler room for two years, she became eligible to take an engineer's test given by the City of Chicago. A prerequisite to taking the exam, however, is a letter from the chief engineer verifying that the candidate has worked on high steam pressure boilers for two years. When Finn asked O'Sullivan for the letter, O'Sullivan told her that she had to take a test first. Finn testified that O'Sullivan had previously never required anyone to take a test before issuing the letter. Finn went to the associate administrator, John O'Shaughnessy, who is O'Sullivan's boss and also Finn's father, and complained to him about this new requirement. O'Shaughnessy told Finn that she did not have to take a test. After Finn told O'Sullivan about her conversation with O'Shaughnessy, O'Sullivan issued the letter.

Finn testified that she complained to O'Shaughnessy about O'Sullivan on at least two occasions before the letter incident. Finn stated that O'Shaughnessy told her that he didn't want to interfere because there may be a perception of bias or prejudice and that it might cause problems. Finn testified that, as a result, she felt that there was no one to turn to. She stated that, while she knew she could file a grievance with the union representative, she believed it would result in retaliation by O'Sullivan and even more problems for her at work. Finn testified that when Dr. Rush joined the Hospital, she had open meetings with the employees. At that point, Finn felt as if she could no longer complete a day at work and so she decided to speak with Dr. Rush about O'Sullivan's conduct.

On cross-examination, Finn testified that although she felt offended by O'Sullivan, she did make attempts to be friendly with him. The copy machines were located outside his office so if she had to make copies she would stand by his door and talk to him. Finn stated that while her working relationship with O'Sullivan was intolerable, she believed it was in her best interest to be nice to him so that hopefully things would change.

Klimp, a mechanical assistant in heating and operating for the Hospital, and Finn's sister, testified that she began working at the Hospital in 1989 and was the first permanent woman in O'Sullivan's department. She testified that during a St. Patrick's Day party, O'Sullivan approached her and said, "And to think Jerry Donnelly did not want women in this department." Klimp responded, "Jerry Donnelly was not alone, was he?" O'Sullivan laughed and walked away. Klimp testified that the incidents had gradually progressed from there. For example, Klimp testified that when she was crabby, O'Sullivan ...


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