Appeal from the Circuit Court of Cook County. 95 CH 8421 The Honorable John K. Madden, judge Presiding.
The opinion of the court was delivered by: Justice Greiman
The Personnel Board of the Chicago Park District (Board) appeals from an order of the circuit court reversing the Board's decision to deny back pay and benefits to plaintiff, Benjamin Brown. We affirm the circuit court's order.
The Chicago Park District (Park District) charged plaintiff with misconduct based upon the following allegations: (1) on August 2, 1989, plaintiff entered a building in Union Park after working hours with a non-employee and used illegal drugs; (2) on August 3, 1989, plaintiff acted insubordinately when he refused to comply with his supervisor's order to take a fitness-for-duty evaluation; and (3) plaintiff threatened to physically harm a Park District security guard in an attempt to prevent the guard from testifying against him. After a presuspension meeting, which was not transcribed, plaintiff was terminated from employment with the Park District.
Plaintiff timely appealed the decision and requested a hearing. For reasons that are not made clear in the record on appeal, that hearing was not held until February 23, 1994. Mitchell Greene, a Park District security guard, testified that on August 2, 1989, at 1:45 a.m., he saw plaintiff and an unidentified woman in a Park District building with white powder on a table between them. Greene caught the woman, but plaintiff ran out the door. Greene also stated that plaintiff threatened to harm him and his family if he testified at the hearing.
Juan Rodriguez, cluster manager at Union Park, testified that the Union Park supervisor, Rich Boykin, filed an incident report identifying plaintiff as being involved in the August 2, 1989, incident. Rodriguez testified that plaintiff reported for work on August 3, 1989. About 2 p.m., Boykin informed Rodriguez that he thought plaintiff was "under the influence." Rodriguez stated that he thought Boykin said plaintiff was talking slow and felt "like he wasn't there when he was talking to him."
Following his conversation with Boykin, Rodriguez called the internal investigations unit. Rodriguez stated that, at this point, he did not know whether he would ask plaintiff to take a fitness-for-duty test, but he wanted witnesses. Accompanied by two employees from the internal investigations unit, Rodriguez and Boykin encountered plaintiff. After talking with plaintiff, Rodriguez concluded that Boykin's observations were correct, so he requested plaintiff to submit to a fitness-for-duty test. According to Rodriguez, plaintiff was "a little slow in responding to questions" and his eyes "looked a little lazy."
Rodriguez further testified that the previous night's incident was not the specific reason he sought out plaintiff, though he did acknowledge that it was important that he speak with plaintiff regarding that incident. Rodriguez stated that the specific reason he sought out plaintiff was the information that Boykin relayed to him. Rodriguez stated that he "just went on the information [he] got from the supervisor." However, Rodriguez also stated that "[i]f [plaintiff] wasn't [under the influence] at the time or I didn't suspect him at the time, it would have ended right there."
Plaintiff informed Rodriguez that he would not submit to the fitness-for-duty test and Rodriguez told him that if he did not submit to the test, he would be insubordinate and an emergency suspension would be ordered.
Plaintiff testified that he began working for the Park District in 1974. His usual work hours were from 7 a.m. to 3 p.m. About 3 p.m. on August 3, 1989, plaintiff was on his way to the field house to sign out when he encountered Rodriguez, a man from the administration building, and two men from the investigation department. Plaintiff could not recall the name of the person with whom he spoke, but stated that it was the man from the administration office and not Rodriguez. The man informed plaintiff that he was being asked to take the test because of the August 2 incident and told plaintiff that any illegal substance would show up in his urine. Plaintiff asked the man whether he looked drunk, whether anyone saw him taking anything, or whether he looked "high." According to plaintiff, the man replied "no" and stated "they say they seen [sic] you in the building on the weekend."
Plaintiff informed the man that it was time for him to leave for the day and that he had already made plans. Plaintiff was informed that he would be paid for the time it took to take the fitness-for-duty test. Plaintiff argued with the man because the Park District had not paid him for his "F time" on prior occasions. Furthermore, plaintiff stated that he did not want to take the test because the accusations against him were false. Plaintiff also stated that his speech and the appearance of his eyes were normal for him. He further stated that he was not in the boiler room, he never spoke to Greene after the incident, he did not call Greene's house and he did not know Greene's telephone number or where he lived. Plaintiff stated that he did go to the park to speak with Greene to make certain Greene knew whom he was talking about. However, a police officer told plaintiff to leave before he had an opportunity to speak with Greene.
The hearing officer determined that Greene was not a credible witness and found that plaintiff did not improperly enter park facilities or threaten Greene. The hearing officer did find, however, that plaintiff's failure to obey a direct order of his supervisor constituted insubordination and recommended termination of plaintiff's employment with the Park District.
The hearing officer stated that the evidence showed that plaintiff's supervisor observed plaintiff and requested that Rodriguez order plaintiff to submit to a fitness-for-duty test. Rodriguez also observed plaintiff and believed him to be under the influence. The hearing officer found that Rodriguez stated sufficient grounds to require plaintiff to submit to a fitness-for-duty evaluation and that plaintiff's disagreement with Rodriguez's observations and Conclusions was insufficient to "render his supervisor's order to submit to a test invalid and therefore did not excuse [plaintiff's] failure to obey said order." The hearing officer concluded that although Park District policies required Rodriguez to provide written reasons for requiring plaintiff to submit to a fitness test, Rodriguez's failure to do so did not render void his direct order to plaintiff to submit to the test. The hearing officer found plaintiff guilty of insubordination, noted that he had previously been suspended for 18 days in 1982 and for 4 days in 1975, and recommended plaintiff's termination.
Plaintiff appealed. The Board did not immediately schedule a hearing to consider plaintiff's claim. Plaintiff filed an action in mandamus, and the Park District was ordered to reach a final decision by February 28, 1995. *fn1 At the Board's request, plaintiff later agreed to extend this date until March 31, 1995.
The Board first considered the case on February 22, 1995. At that hearing, the hearing officer recounted his findings and stated that Greene's testimony was "contrived" and he was not a believable witness. The hearing officer also stated:
"I thought that under the guidelines, as long as Mr. Rodriguez set forth reasonable grounds, that was sufficient. I did not have to find that, in fact, on that date and at ...