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County of De Witt v. American Federation of State

August 17, 1998

THE COUNTY OF DE WITT, STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cook

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from Circuit Court of De Witt County No. 97MR20

Honorable Arthur F. Powers, Jr.- Judge Presiding.

In September 1995, plaintiff De Witt County terminated Susan Winstead, a certified nurse's aide (CNA), from her employment at the De Witt County Nursing Home (Home). She was terminated for allegedly striking Esther Tatham, a senior citizen resident, in the head. Winstead was a union member of defendant American Federation of State, County and Municipal Employees, Council 31 (AFSCME). According to the collective-bargaining agreement (Agreement) between AFSCME and the County, an employee could only be disciplined for "just cause." The Agreement also provides that "employees shall be immediately subject to discharge for resident abuse."

Pursuant to the Agreement, plaintiff and defendant submitted to arbitration the issue of whether the County had "just cause" to terminate Winstead and, if not, what was the proper remedy. Evidentiary hearings were held before the arbitrator in January and February 1997.

Julie Ann Zook testified she was an intern in the Bogard Specialized Service Program (Program) of the De Witt County Resource Center and was at the Home tending to her clients on the date of the incident. She had just entered the cafeteria and was speaking with Donna Kivlehan, another employee of the Program, when she witnessed the incident. Zook looked over and heard a male nurse yell something like "[y]ou need to get that out of her hand." The nurse was speaking to Winstead and referring to Tatham, who had just grabbed a glass of milk from a resident sitting next to her at the table. Zook testified that Winstead grabbed the glass from Tatham's hand, hit her on the side of her head, and slammed the glass down in front of the other resident. The hit caused Tatham's head to move a little bit, but Zook did not think the hit was hard enough to leave a mark. Zook claimed that Tatham seemed to shrug it off "like it happened to her all of the time" and "she didn't think it was any big deal to be hit."

Kivlehan testified she was a rehabilitation technician for the De Witt County Resource Center and was tending to one of her clients in the cafeteria when she witnessed the incident. She heard a male nurse ask Winstead to "get the milk from Esther." Then she saw Winstead walk over and backhand Tatham on the side of the head and take the milk from her. Kivlehan testified she was very disturbed by Tatham's response to the hit. She claimed that Tatham "just did nothing, and almost as though that was part of the program here, and it was O.K. that it happened to her."

At the time of the incident, Winstead had worked at the Home for 10 years and had a flawless employment record. Winstead testified that at the time of the incident she was feeding another resident in the cafeteria. She could not remember anything out of the ordinary happening that day. Winstead denied that she hit Tatham and testified she had no recollection of going over to Tatham's table.

Karen Mandrell testified she was employed at the nursing home and was working during the lunch period on the date of the incident. She did not hear any loud voices or other incidents out of the ordinary. Mandrell claimed she would have seen such an incident had it occurred. Mandrell admitted that Winstead was a good friend, but that she would still report her if she had struck a resident.

Jean Crispen, a certified nurse assistant, testified she was in the cafeteria that day feeding a resident and did not see anyone hit Tatham. Crispen claimed she would have seen such an incident if it had occurred. Crispen also admitted that Winstead was her personal friend, but she would not lie to protect her. During the investigation of the incident, the police asked Crispen to take a polygraph test. Crispen refused to take the test, claiming that she knew she was telling the truth and she did not need to prove anything.

Sergeant Dale Marlo, a State Police officer, conducted the investigation of the incident. He testified he interviewed nine different employees of the Home, and none of them were aware of Tatham being struck by anyone at the Home. He also interviewed Winstead, who denied that she or any other employee had struck Tatham. Marlo asked Winstead to submit to a polygraph test, but she refused to take it.

Nick Cetwinski, the Home's attorney, testified he spoke with Sergeant Marlo after the incident and asked him whether, in his opinion, the striking had happened. Marlo advised Cetwinski that, in his opinion, the striking had occurred because the Resource Center employees had no reason to fabricate the incident and he felt the employees of the Home felt intimidated by Winstead into not cooperating with him. Based on Marlo's opinion and his own opinion, Cetwinski believed the striking had occurred and he felt the Home had no choice but to terminate Winstead.

The arbitrator found Winstead may have struck Tatham; however, even if she did, Tatham was not injured and it was "just as reasonable to conclude that Grievant just brushed the side of Tatham's head." The arbitrator also determined it was unlikely that Winstead would ever strike a resident again, based on her long service and exemplary record. The arbitrator recognized that the Agreement called for immediate discharge for those employees who commit resident abuse; however, the arbitrator determined that one incident, which did not result in injury, was not "abuse." The arbitrator ruled there was no just cause for Winstead's termination and ordered her to be reinstated to her former position and awarded all lost pay and seniority.

In July 1997, the County brought an action to vacate the arbitration award on the grounds that it violated the State of Illinois public policy of protecting the elderly. In January 1998, the trial court granted the motion to vacate. AFSCME appeals from that order, arguing that we should reverse the trial court ...


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