The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County
Honorable Stephen Schiller, Judge Presiding.
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 for approximately 8 months for the purported threats 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 [her] 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 [sic] 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."
[The following material is non-publishable under Supreme Court Rule 23]
After the Conclusion of White's testimony, Schmeier was allowed to call a witness, LaQuita Gowder, out of turn because of time constraints. Gowder testified that she babysat for Schmeier's children while Schmeier was working for the District and she had known Schmeier personally for a few years. She stated that Schmeier was not racially prejudiced and was not violent; she would not even allow her children to play with water guns or watch violent programs. So far as Gowder (who is African-American) was aware, Schmeier had never said anything racist. Gowder believed Schmeier treated her "better than equal," as exemplified by her willingness to accommodate Gowder when Gowder became ill while working for her. Gowder did not believe Schmeier was racist and never heard her say anything racist during the time she worked for the District.
On cross-examination Gowder stated she usually spent between one and two hours a day with Schmeier herself on the days when she babysat her children, because she (Gowder) often got there early and had to wait for a ride after work. Gowder babysat for her every day except on Mondays (Schmeier's day off) and on any days Schmeier's husband did not work.
The District's second witness was Monte Kimes. Kimes was Gymnastics Program Coordinator during the time of Schmeier's employment, and had been a gymnastics instructor with the District before that. Kimes was also a certifier for the USGF, and had been since 1986. He stated that generally gymnastics instructors for the District were required to maintain USGF certification at all times as a condition of employment.
Kimes testified that although Schmeier was a "very enthusiastic," "cooperative," "motivated employee" during her probationary period of employment, she became "confrontational" thereafter. He also stated that he had gotten complaints by telephone from some parents that Schmeier was talking excessively about District matters with the public. Kimes did not keep records of any of these conversations.
Kimes stated that in March 1993 he went to Sherman Park to remove the equipment, because the facility was going to be renovated. He noticed that a lot of the floor exercise foam had been cut into various shapes and placed around different pieces of gymnastics equipment. After he wrote a memo to White indicating that some of the foam had been cut (District Exhibit 16), he contacted the people who had set the foam up that year, to see if it had been cut at that time; he determined it had not been. He next spoke with Preston Knauf (Schmeier's predecessor), who indicated that he (Knauf) had not cut the foam. Kimes also stated that at Schmeier's disciplinary hearing he had heard Daryl Harden say that he had heard Reggie Dominic say that he (Dominic) had been with Schmeier and had assisted her in placing the cut mats around some of the equipment. When counsel for Schmeier objected on hearsay grounds, the testimony was allowed in for the limited purpose of establishing the basis for Kimes's subsequent actions.
Finally, Kimes testified that Jiang came to him first about Schmeier's alleged threat that if she were fired she would shoot Kimes and White. Kimes took the threat seriously, and told Jiang he should talk to White about it. Kimes did not notify the police, nor did he report it to the District's Internal Investigation Department.
The District's third witness was Barbara Collins, White's former secretary. She stated that in March 1992 Schmeier told her that her (Schmeier's) husband had been robbed or beaten up, apparently by an African-American perpetrator. Collins stated that "in the course of the conversation she made a comment saying like the black brothers and sisters or whatever and I didn't--I mean, I did make it clear that not all black people do those kind of things." She stated that she could not recall Schmeier's statement verbatim, but it was "something to the effect of black--my black brothers and sisters were robbers."
Collins identified District Exhibit 9 as a memo she had written to White in November 1992 about the incident. The memo reflects that Schmeier said something to the effect of "Barbara, I hate to tell you this, but your black brothers are something else." She stated that White requested her to prepare the memo in writing after she (Collins) first told White about the incident. Schmeier did not say that all African-Americans are robbers and thugs, and Collins did not consider Schmeier a racist, although she thought Schmeier's comments were racist comments. She acknowledged that the memo reflected that the conversation had taken place sometime between June and August.
The District's next witness was George Martenia, another gymnastics instructor for the District. Martenia testified regarding some comments Schmeier had made while she was giving him and another employee (Daryl Harden) a ride home in October 1992. Schmeier's husband had been robbed not long before, and she stated that they suspected it was an African-American former employee who had recently been fired. Harden asked her how she knew that it was an African-American, as Schmeier originally stated that the perpetrator had something covering his hands and face; she said it was from his hands. Martenia did not perceive these comments as racist.
He testified that Schmeier had said something else during the car ride, however. At some point previously followers of Minister Louis Farrakhan had held a demonstration in the park in which she worked. Martenia said Schmeier said she was "scared because she was the only white person there and that these guys were making comments in their speech about the blue-eyed demon." What Martenia regarded as racist was Schmeier's use of the term "those people," in a statement that "those people scared her." He thought she was scared because they were African-American. He also referred to a statement Schmeier made about not having been aware that working in a primarily African-American community "meant being exposed to the gangs, the violence, the drugs, that atmosphere that happens in low-income areas all over the place." He was offended by this statement because "it just felt as if she was saying it because they were black, not just because they were low income."
He wrote White a memo about the incident (District Exhibit 9) at White's request, after he had overheard White and Collins talking about Schmeier and mentioned the incident to them.
On cross-examination, Martenia stated that the ride took place after working hours. He did not indicate to Schmeier at the time of the car ride that he took offense at anything she said.
The District next called Darion Knight. Knight is a "rec leader" for gymnastics for the District, which basically involves spotting the gymnasts as they learn skills and routines. Knight worked with Schmeier at various competitions, although they worked at different locations. Knight testified that in July 1992 he and Schmeier were at North Avenue Beach, in Chicago, at a gymnastics meet on the beach. When he was about to enter the water, Schmeier made a comment to him along the lines of "I didn't know that you people could swim." This comment upset him a great deal, because he believed it was based on his race (Knight is African-American). Although Knight had been working at the meet, the meet had ended and he had signed out before Schmeier made this comment. [The preceding material is nonpublishable under Supreme Court Rule 23]
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 ...