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Finnerty v. Personnel Board

February 01, 1999

PETER FINNERTY, PLAINTIFF AND PETITIONER-APPELLANT,
v.
PERSONNEL BOARD OF THE CITY OF CHICAGO; THE CITY OF CHICAGO, THE CITY OF CHICAGO, A MUNICIPAL CORPORATION; REVEREND LUCIUS HALL, CHAIRMAN; ROGER J. BALLA, HEARING OFFICER; TIMOTHY J. JOHNS AND ROBERT G. GIBSON, DEFENDANTS AND RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 96 CH 13793 Honorable Stephen Schiller, Judge Presiding.

The opinion of the court was delivered by: Justice Gallagher

Plaintiff, Peter Finnerty, appeals from a circuit court judgment affirming an administrative decision by the Personnel Board (the Board) of the City of Chicago (the City) to discharge plaintiff for his violation of the City's personnel rules. For the following reasons, we affirm the judgment of the circuit court.

In 1987, plaintiff, who was employed by the City of Chicago as a motor truck driver in the Department of General Services, apparently suffered a duty-related back injury that rendered him unable to work. The record contains little to shed light on the circumstances of the injury, but plaintiff received duty disability benefits for two years. During that time, on July 7, 1988, plaintiff filed a workers' compensation claim. This claim was still pending at the time of plaintiff's discharge in 1990. Sometime in 1989, plaintiff's duty disability leave ended when he was released to go back to work by defendant's physician. Plaintiff did return to work in 1989. Although his title of motor truck driver did not change, his duties now consisted of clerical work. Plaintiff stopped appearing for work and time records indicate that he was last physically present at his job on September 19, 1989. He then just stopped coming to work.

In October 1989, Mary Loye, a supervisor of personnel, attempted to contact Finnerty to advise him to request a medical leave of absence to preserve his benefits. On one occasion she spoke with plaintiff's housekeeper. On another occasion, she spoke with plaintiff himself, although he was pretending he was not at home. When she finally did have a conversation with plaintiff, he indicated he was unable to come to work. She requested a letter from his doctor and asked if he wanted a medical leave of absence. He said he would get back to her regarding the leave of absence.

Plaintiff subsequently gave a letter to Loye which was signed by his physician, Dr. Gary R. Fahrenbach. The letter, dated October 26, 1989, stated as follows: "To Whom It May Concern: Mr. Finnerty has been under my care since 8/8/89 for extensive stasis ulceration of the right leg and ankle. His condition requires physical therapy and whirlpool treatments three times each week. He is currently disabled and cannot work." Notably, the letter does not state that plaintiff's condition was related to any work-related injury. Loye never received anything else from plaintiff to substantiate his claim that he was absent from work due to illness. In fact, it is undisputed that, from that point forward, plaintiff made no attempt whatsoever to contact his employer.

Despite plaintiff telling Loye that he would get back to her regarding whether he wanted to take a medical leave of absence, he never did. Within one week of her telephone conversation with plaintiff, Loye sent him two copies of the form needed to request a medical leave of absence. One of the copies, sent by regular mail, was not returned. The other copy, which was sent by certified mail, was returned unopened. Plaintiff never requested a medical leave of absence. Additionally, after plaintiff's original duty disability leave ended, he never requested another duty disability leave. In fact, plaintiff never requested any type of leave which was available to him, and it is undisputed that plaintiff was not on any type of leave which was available at the time to employees, as defined by the City of Chicago's personnel rules.

The record shows that plaintiff never returned to work. While the entries in plaintiff's time record for the remainder of 1989 indicate that he was carried on the payroll and received some compensation as "sick pay" or "vacation pay," the record contains no other evidence showing that plaintiff was sick or that he was on vacation. In any event, plaintiff's time record for the first six months of 1990 contains no entries indicating that plaintiff was sick during that time. The record was devoid of any evidence that plaintiff ever notified the City of his status after October 26, 1989, or that he contacted his employer at all, during the first six months of 1990 while he was absent from work.

Finally, on October 4, 1990, the City sent plaintiff a statement of charges advising him that his discharge was under consideration because he had violated the City's personnel rules. He was informed which specific rules he had violated and was also advised that if he wanted to respond to explain his conduct he must do so in writing by October 12, 1990. Plaintiff again failed to respond.

Next, by a certified letter dated October 24, 1990, the City informed plaintiff that the charges against him had been reviewed and that it had been noted that he failed to respond to those charges. The letter further informed plaintiff that a decision to terminate him from his position had been reached and that the decision was effective at the close of business on October 25, 1990. The letter also notified plaintiff of his right to a hearing before the Board to review the disciplinary action and that the request had to be received by the Board within five calendar days of plaintiff's receipt of the notice.

Plaintiff did respond. He submitted a completed form entitled "Request For Review Of Disciplinary Action With The Personnel Board." Under the section entitled "Reason For Appeal," plaintiff did not provide a reason that went to the merits, but instead noted that he had received the notice of a certified letter on October 26, 1990, to pick up certified mail at his local post office on October 27, 1990, and was, therefore, requesting a hearing. *fn1

The hearing before the Board was originally scheduled for December 12, 1990, and finally took place nearly six years later on September 11, 1996. During this time, there were apparently 14 continuances. Plaintiff requested and was granted 11 continuances. The City agreed to four of these and also requested two additional continuances. The hearing officer continued the matter himself on one occasion.

Plaintiff did not personally attend the hearing, but was represented by counsel. The only witness was Ms. Mary Loye, the supervisor of personnel. The substance of her testimony was essentially an account of the foregoing described events.

On November 11, 1996, the hearing officer submitted his report, which contained his findings and recommendation, to the Board. This report noted that the basis for plaintiff's discharge was excessive absenteeism which, as alleged by the City, constituted violations of the City's personnel rules. The specific violations involved the following: absence without leave; failing to call in advance when tardy or not showing up for work; having an irregular or excessive absence or tardiness record or a pattern of repeated absence or tardiness or at a specific time or on specific days of the week or month or in relation to holidays; and conduct unbecoming an officer or public employee. The first three of these constitute conduct for which an employee's first offense may result in discharge action, although the second and third additionally require that discharge for a first offense is applicable only where the health, safety or welfare of a person is endangered.

The hearing officer's findings were that the testimony and documentary evidence produced by the City proved by a preponderance of the evidence that plaintiff stopped coming to work on September 19, 1989, and while the doctor's excuse may have justified plaintiff's absence between September 8, 1989, and October 26, 1989, the excuse did not explain plaintiff's subsequent absences and failure to comply with the applicable personnel rules by calling in and/or furnishing current medical documentation that would justify his continued absence. The report further stated that there was nothing in the personnel rules exempting an employee who has filed a workers' compensation claim from the absenteeism and call-in provisions. Thus, absent such an exemption, there was no justification for plaintiff's year-long absence without any apparent effort on his part to keep his employer apprised of his medical condition and/or ability to return to work. The hearing ...


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