Appeal from the Circuit Court of Cook County Honorable Stephen Schiller, Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
Defendants the Chicago Park District (the District) and the Personnel Board of the Chicago Park District (the Board) appeal an order of the Circuit Court of Cook County reversing the decision of the Board and reinstating Plaintiff Maureen Schmeier to her position with the District with full back pay.
The District hired Schmeier as a gymnastics instructor in August 1991. In September 1992 Schmeier filed a charge against the District with the Illinois Local Labor Relations Board, naming her supervisor, Jacquelyn White, and White's assistant, Monte Kimes, as offenders. *fn1 Later in September Schmeier was suspended from employment because she had allowed her United States Gymnastics Federation ("USGF") safety certification to lapse. Approximately three weeks after her suspension Schmeier became recertified and was reinstated in her position.
In November 1992 White brought disciplinary charges against Schmeier, asking for an immediate emergency suspension and recommending that she be terminated because she allegedly threatened violence against White and Kimes. Schmeier was suspended pending a hearing. Additional charges (see below) were raised before a "pre-suspension" meeting in May 1993. Schmeier was terminated after that meeting, in June 1993. The Acting Attorney General of the District sent Schmeier a "Statement of Charges Resulting in Termination" in June, which revealed she had been terminated for three types of misconduct:
"(1) Ms. Schmeier made verbal threats of physical violence against her supervisors during her temporary assignment at Whitney Young in October/November, 1992.
(2) While employed in the gymnastics program, Ms. Schmeier repeatedly engaged in inappropriate conduct by making racially offensive and derogatory remarks to co-workers, which created a disruptive and discordant work environment and adversely affected staff morale and efficiency of program operations.
(3) Ms. Schmeier improperly destroyed Park District property while assigned to the Sherman Park gymnastics center by cutting rolls of floor exercise matting without approval or authorization, thereby voiding the manufacturer's product warranty and rendering the matting useless for its intended purpose."
In July 1993 Schmeier requested a hearing and review of this decision. The matter was set for a hearing before a hearing officer *fn2 in April 1994. The charges considered at the hearing were both Schmeier's lapsed USGF certification (which resulted in her suspension) and the three charges stated above (which were the basis for her termination).
At the hearing the District called 8 witnesses. Its first witness was White. White testified that she had been with the District since 1955, and had been in charge of the gymnastics program since it was established in 1989. She stated that the program was instituted with the aim of making gymnastics accessible to the underprivileged in inner city areas, and it had a large minority enrollment--approximately 60-65 percent African-American, plus a significant Hispanic population. White had supervisory control of the gymnastics instructors at all times Schmeier was employed by the District, as did her assistant, Monte Kimes, whose title with the District was Program Coordinator.
White stated that Schmeier's regular assignment was Sherman Park, at 51st and Racine. White believed it would be classified as an inner city area. The population was almost 100 percent African-American. White stated that Schmeier was informed during the interview process that she would be assigned to that location, because she was hired specifically to fill the vacancy created when Preston Knauf, the previous instructor at Sherman Park, left to become a stuntman at Disney World. Schmeier said she had worked with inner city kids before, and there would be no problem.
White stated Schmeier's performance was acceptable during the first 6 months of her employment, which was a probationary period for District employees. However, after the probationary period ended, Schmeier seemed constantly to complain. White gave the example of Schmeier's concern about not having a working telephone in the building to which she was assigned, although there was one across the street, less than 30 feet away.
White stated that USGF certification was important both to keep instructors aware of how to keep the gym safe and also for insurance purposes. To be certified by the USGF an instructor had to take and pass a 6- or 9-hour course, and had to be recertified every four years. White believed Schmeier was USGF certified when she was first hired, but subsequently allowed her certification to lapse. The District discovered her certification had lapsed through Kimes, Schmeier's assistant. Kimes was a safety certifier, and White said the instructors' certifications were frequently checked. When it was discovered that Schmeier's certification had lapsed, she was suspended until she became re-certified. White was not aware that Schmeier ever offered to explain why her certification had lapsed.
White also was aware of an incident in which Schmeier allegedly made threats of physical violence, although she was not present when the threats were made. When White began to relate the details of the incident, counsel for Schmeier objected that her testimony was hearsay. Counsel for the District stated that the information was not being offered for the truth of the matter asserted, but rather only to show "what the basis for her subsequent actions were, whether or not what she was told was true or false." The Hearing Officer allowed White to testify, but only for this purpose.
White testified that another gymnastics instructor for the District, Hong Jiang, told her that Schmeier "had threatened some type of physical violence against her supervisors if she in fact got fired," namely, that she would shoot White and Kimes. White took the alleged threat very seriously. It was because of Jiang's information that White asked for the emergency suspension of Schmeier.
Disciplinary charges were also brought against Schmeier for making racially offensive or derogatory remarks. Again, when White began to discuss details, Schmeier's attorney objected on hearsay grounds, and again the Hearing Officer allowed White to testify only for the purpose of establishing a foundation for her subsequent actions, not for the truth of what White had been told. White said her secretary, Barbara Collins (who is African-American), had told her that Schmeier had once referred to "gang bangers" as her (Collins's) "brothers and sisters" in relation to an incident in which Schmeier's husband was robbed. White believed Collins felt Schmeier had used "brothers and sisters" in a very derogatory manner, and White thought Collins felt Schmeier was a bigot and was very upset by the incident.
White testified she received similar complaints from other employees. She testified that Daryl Harden and George Martenia told her Schmeier had offered them a ride home, and while in the car she said "she didn't know being in a black park meant dealing with gang bangers, that your brothers and sisters, something to that effect, were gang bangers." Also, she received a memo from Lloyd Bachrach (District Exhibit 12) which stated that Schmeier "seems to lack patience with black students."
The final basis for Schmeier's termination was destruction of District property. White received a memo from Kimes (District Exhibit 17), which stated that foam underlying the floor exercise mats at Sherman Park had been cut. Although the memo did not mention Schmeier's name, White inferred that it had been she who had cut the foam. White explained that the gyms were set up in September and broken down in May; there was no indication the foam had been cut when the gym was set up in September; and Schmeier had been the only instructor working at Sherman Park.
Finally, White was asked to summarize the reasons for her request that the District terminate Schmeier's employment. She stated that her primary complaint was that she did not think Schmeier wanted to work in the inner city. She also thought Schmeier was not happy with the District, and her skill level was "at best mediocre." She stated that the District could have helped her through clinics, but "you can't come into the type of program we have and be a bigot." She explained that by the last statement she meant she believed Schmeier "does not like black people or working with black people, and does not treat them fairly." When she was asked if there were any other reasons, she stated that Schmeier "just didn't fit with the program, because of her attitude toward the inner city." White did not mention the alleged threat.
On cross-examination White stated that enrollment in the gymnastics program at Sherman Park increased by approximately 10-15 percent when Schmeier took over. White also admitted that she never actually measured the distance between the building to which Schmeier was assigned and the building which contained a telephone. White stated that she had not solicited any of the written complaints from their authors. She did ask Jiang to put something in writing regarding what he had heard Schmeier say because she "was in fear of life." She admitted that although she did suspend Schmeier and talked to the District's attorneys, she never called the police about the threat. White did not know when Schmeier initially made the threat to which Jiang referred, but thought it was in September or October 1992. She assumed Collins, her secretary, typed the statement for Jiang (District Exhibit 11), "because he came into the office, and I could not understand all he said, he was so excited it sounded like gibberish, so I asked her to type it." She stated she did not understand him all the time, because he speaks rapidly and in an animated fashion.
White did not see Schmeier cut any mats, but she did hear Schmeier make racial remarks about African-Americans. White stated that more than once Schmeier "has referred to them as 'those people' or gang bangers, or gang infested, or drug addicts, or many, many things that she has said about the black people at Sherman Park when she became unhappy working there." Nonpublishable material under Supreme Court Rule 23 omitted.
The District's sixth witness *fn3 was Hong Jiang, another gymnastics instructor with the District, who testified regarding a conversation with Schmeier in November 1992. When Jiang was first asked what he heard Schmeier say, he said she had said the District was giving her a hard time, but she was not going to quit, and if she were fired, "she was going sue them ." After this response, the following colloquy occurred:
"Q [Mr. McVane]. Now, this is important for everyone's sake. Could you say what you just said again and speak slowly so he can get this on record?
A . She say--okay. She not going quit, but if somebody make her quit, she will going sue them. That's--
Q. Just for my clarification, what did she say she was going to do if they made her quit? What word did she use?
A. She say she was going to sue them.
Q. What do you mean by that?
A. Means like use a gun. I ...