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Pace Suburban Bus Division of the v. Illinois Labor Relations Board

December 8, 2010


The opinion of the court was delivered by: Presiding Justice Quinn

Petition for Review from the Illinois Labor Relations

PRESIDING JUSTICE QUINN delivered the opinion of the court: Petitioner Pace Suburban Bus Service, a division of the Regional Transportation Authority, d/b/a Pace Northwest Division (Pace), appeals from a decision and order of the Illinois Labor Relations Board, State Panel (Board), finding that Pace violated section 10(a)(1) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1) (West 2008)) by discharging respondent, Urszula Panikowski, in retaliation for filing a grievance for reinstatement in 1999. On appeal, Pace contends that this court should reverse the Board because: (1) Panikowski failed to prove that her discharge was motivated by antiunion animus; (2) the Board's order was based solely on a finding that Pace offered "shifting explanations" for discharging Panikowski, which alone is not sufficient to establish that it had an improper motive for discharging Panikowski; (3) 1-09-2582 the Board erred in refusing to consider Pace's argument that it had a legitimate business reason for discharging Panikowski; and (4) the Board improperly relied on evidence of conduct that occurred outside of the Act's six-month statute of limitations. For the reasons set forth below, we affirm the decision and order of the Board.


Urszula Panikowksi began working for Pace as a bus operator in 1992. During her employment she was a member of the Amalgamated Trust Union (Union), the exclusive representative of a bargaining unit at Pace that includes bus operators. Pace discharged Panikowski in February 2005 on grounds that she violated Pace's rules during a confrontation with a bus passenger and for her "entire work record." On June 21, 2005, Panikowski filed an unfair labor practice charge against Pace alleging that she had been discharged in retaliation for filing a grievance after she had been discharged in 1999. The matter was heard by an administrative law judge (ALJ) on November 14 and 15, 2007, and March 20, 2008. Based on testimony and exhibits presented at the hearing, the ALJ issued a recommended decision and order finding that Pace violated section 10(a)(1) of the Act because it discharged Panikowski in 2005 in retaliation for her filing a grievance in 1999 that resulted in her reinstatement and an award of back pay.

In his recommended decision and order, the ALJ reviewed Panikowski's employment history with Pace, which included numerous customer complaints and disciplinary actions. First, in 1996, Pace suspended Panikowski after she was involved in a verbal altercation with a bus passenger, who alleged that in response to her question about when the bus was scheduled to depart, Panikowski told her to "shut up" and said "I put up with this shit eleven hours a day." Rather than terminating her employment, Pace permitted Panikowski to sign a last-chance agreement pursuant to which she was given a suspension and four months probation and allowed to return to work on a last chance basis.

By 1999, Panikowski had accrued 35 complaints, 22 involving discourtesy or improper passenger service, and in October of that year, Pace terminated her employment based on charges that she had been involved in another verbal altercation with a passenger, had failed to report an incident involving high school students, and had caused damage to a bus and failed to report it. The union filed a grievance on Panikowski's behalf alleging that Pace did not have sufficient cause to terminate her employment, and in September 2001, an arbitrator ordered Pace to reinstate Panikowski with back pay. The arbitrator, who focused primarily on the charge regarding damage to the bus, concluded that although there was just cause for discipline, Pace failed to establish sufficient cause for discharge and failed to establish that Panikowski in fact caused the damage to the bus. The arbitrator suggested that another bus operator, Gina Barsano, might have been responsible for the damage, stating "I am reluctant to conclude, and I do not conclude that [Gina] Barsano caused the damage to the bus although one might be inclined to say that such a conclusion derives inevitably from these observations." Gina Barsano's brother, James Barsano, was, at that time, one of Panikowski's supervisors and conducted a "field investigation" of the bus accident that led to Panikowski's discharge. When Panikowski was discharged in 2005, Barsano, as well as other members of Pace management who were involved in the 1999 discharge, were still Panikowski's supervisors, including Michael Strauss, Stan Pataluch, Pace regional manager Brett Burkhardt, and Pace Superintendent Richard Foster. Panikowski contends that the arbitrator's award of back pay remained an issue between her and Pace, directly involving Superintendent Foster, until at least December 2004, because the parties disagreed about the amount owed.

Following her reinstatement, Panikowksi was involved in several incidents between 2001 and 2005, four of which Pace cites as grounds for her 2005 discharge. Three of those incidents are related to a July 6, 2004, motor vehicle accident at Golf Mill Shopping Center in Glenview, Illinois. According to Panikowski, the driver of a pickup truck who was attempting to change lanes drove into the mirror on the left-hand side of the bus. Pace subsequently investigated the accident and determined that it was "preventable." Panikowski appealed that finding to an accident review board, which upheld Pace's finding.

After the accident, Panikowsi had an interaction with Glenview police officer Stacey Carver, who responded to the accident scene. According to Panikowski, Carver approached the bus and asked for her identification and insurance card. Panikowski said that she gave Carver her identification but told her that because Pace is self-insured, she does not have an insurance card. Panikowski also testified that she told Carver that there was a witness to the accident, but Carver responded that she did not care. Carver, however, gave a different version of events, testifying that she told a Pace supervisor at the scene that Panikowski was rude, uncooperative, and argumentative. The next day, Carver spoke on the phone with Pace supervisor James Barsano. There is a dispute as to who initiated this call, with Carver testifying that Barsano called her and asked her to submit a complaint letter to Pace regarding Panikowski's conduct and Barsano testifying that Carver called him. Carver did send a letter to Pace stating that Panikowski repeatedly ignored her requests for her driver's license and registration and her requests to move the bus. According to Carver's letter, Panikowski also interrupted Carver's questioning, was argumentative, "exemplified little respect," and engaged in "verbal abuse."

After Panikowski left the accident scene, a Pace supervisor told her to drive to the Cumberland Circle station and wait for a replacement bus. Some time later, part-time bus operator Steve Wessel arrived with a bus. According to Panikowski, she asked Wessel why he took so long and he replied that there had been no buses available. However, shortly afterwards, Wessel submitted an incident report stating that when he arrived with the bus, Panikowski asked him "what took you so long," and "why did you bring me this piece of shit bus" and kept saying, "I don't care. I don't care."

Pace subsequently disciplined Panikowski by suspending her and requiring her to attend retraining sessions. According to Pace, Panikowski was removed "from service pending investigation regarding verbal altercation[s] with Glenview police officer [Carver] and operator Steve Wessel." Panikowski testified at the hearing, however, that she believed she was being suspended for the accident and for a verbal altercation with Wessel and was not aware that she was charged with misconduct involving Officer Carver.

The fourth incident cited by Pace as grounds for discharging Panikowski involved bus passenger George Wang, who was a regular rider on Pace's Cumberland Circle route. Three bus operators testified at the hearing regarding their interactions with Wang, stating that Wang was unfriendly and repeatedly made comments about their driving and about the bus leaving the 1-09-2582 station on time. They also testified that because Wang could take any one of three buses that left the station at around the same time, Wang would stand in the front doorway of a bus and if another bus left first, he would jump off to board that bus. Panikowski also testified that Wang was a difficult passenger who complained about the bus leaving late, and she said that in January 2005, she talked to Pace supervisors Foster and Barsano to ask for help in dealing with him and was told to "do your best" and to "avoid him." She also testified that neither Pace nor the union acted on her requests to have a supervisor ride that route on her bus. Shortly afterwards, on January 20, 2005, a bus passenger who did not identify himself, but who was later determined to be Wang, called Pace to complain that Panikowski had left the Cumberland Circle station late and was rude to him. Pace investigated the complaint and after determining that the bus did not leave the station late, did not discipline Panikowski.

On February 2, 2005, Panikowski's supervisor, Barsano, informed her that she was being suspended pending an investigation into another complaint from Wang, who asserted that on February 1, 2005, after he boarded Panikowski's bus, she got out of her driver's seat, walked back to where he was sitting, pointed at him, called him a liar, and asked if he would like it if she called his boss and lied about him. Pace investigated the complaint by sending several supervisors to the Cumberland Circle station over several days to find witnesses to the incident. Two witnesses were located, one who testified that she was on another bus and saw Panikowski get up out of her seat and go up to a rider and "aggressively verbally talk to them while shaking her finger" and another witness, who had been on Panikowski's bus on February 1, 2005, and provided a written statement corroborating Wang's complaint.

Pace supervisors Foster and Barsano subsequently met with Panikowski, the union president, and a union steward regarding Wang's accusations, which Panikowski denied. Pace division manager Foster testified that after the meeting he reviewed the evidence and Panikowski's file and recommended that she be terminated. Final authority regarding terminations, however, rested with Pace regional manager Brett Burkhardt, who reviewed the file, met with Foster and decided to terminate Panikowski. On February 17, 2005, Pace issued a letter to Panikowski, signed by Foster, stating that it was discharging her because its investigation determined that she violated several Pace rules, which were listed in the letter and for her "entire work record."

On March 17, 2005, Panikowski met with Pace managers Foster, Barsano, and Strauss and union representatives, at which time Pace offered Panikowski a last-chance agreement. Panikowski testified that she rejected the last-chance agreement but that after she left the building she was approached by Foster in the parking lot, who told her that she had accidentally been given another employee's last chance agreement and asked her to return to the meeting. Panikowski went back in and was given a blank page to sign, which she was told was a release form for the last-chance agreement. Panikowski testified that she signed the paper because she wanted her job back, but was unhappy because her union steward signed "very low" and she wanted to sign it higher up because there was an open space left on the page. Later, when she went to apply for unemployment benefits, Panikowski learned that the blank page she had signed was actually the last-chance agreement. A few days later, however, on March 21, 2005, Panikowski met with Foster and gave him a written statement rejecting the last-chance agreement

On June 24, 2005, Panikowski filed an unfair labor practice charge with the Board alleging that Pace violated section 10(a)(1) of the Act by discharging her in retaliation for filing a grievance following her 1999 discharge that resulted in her being reinstated to her job in September 2001.*fn1 On November 30, 2005, the Board dismissed the charge. Panikowski appealed and pursuant to an order dated March 7, 2006, the Board reversed the dismissal and remanded for further investigation. On June 19, 2007, the Board issued a complaint for hearing against Pace, alleging that Pace discharged Panikowski in retaliation for her successfully invoking a contractual grievance procedure provided for in the labor agreements in effect between Pace and the union, and that in doing so, Pace interfered with, restrained, or coerced a public employee in exercise of the rights guaranteed by section 10(a)(1) of the Act. Pace filed a timely answer asserting that Panikowski's 2005 discharge was motivated by her misconduct, that no hostility existed following her 2001 reinstatement, and that even if there was lingering hostility, business reasons would have dictated that she be discharged for her misconduct.

Following a three-day hearing, the ALJ issued a recommended decision and order finding that Pace discharged Panikowski in retaliation for her previous successful pursuit of her grievance for wrongful discharge in violation of section 10(a)(1) of the Act. The ALJ's order stated that to establish a prima facie case in support of a section 10(a)(1) violation, a charging party must prove, by a preponderance of the evidence that: (1) she was engaged in protected concerted activity; (2) respondent had knowledge of such activity; and (3) respondent took adverse employment action against her because of her involvement in that activity. The ALJ found that Panikowski met these three requirements because her 1999 grievance constituted protected activity under section 10(a)(1), Pace's managers involved in the 2005 discharge, who were some of the same parties involved in the 1999 discharge, had knowledge of such protected activity, and Pace fired her in retaliation for her protected activity. Although the ALJ did not find direct evidence of retaliation, he inferred Pace's illegal motive from its "shifting explanations and manufactured reasons for discharging" Panikowski, as well as its disparate treatment of Panikowski during her employment with Pace.

As evidence of shifting explanations, the ALJ noted that at the time of her discharge, Pace cited Panikowski's entire employment history as the cause, but at the hearing, Pace supervisors also cited the 2005 Cumberland Circle station incident involving Wang and the three incidents in 2004 related to the Golf Mill Mall accident as grounds for her termination. Further, the ALJ noted that Foster also claimed to rely on the 1996 discharge documents and regional manager Burkhardt stated that he relied on various documents in Pace's files, verbal reports from Foster, Barsano and Strauss, Panikowski's reports of the incidents, and a synopsis of Panikowski's employment record, which no longer exists. The ALJ also cited Pace's shifting explanations ...

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