Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 11 CH 24345. Honorable Rita M. Novak, Judge Presiding.
For Plaintiff-Appellant: Jeffrey E. Jamison, of counsel, Dykema Gossett PLLC, Chicago, Illinois.
For Defendant-Appellee: Karen G. Seimetz, General Counsel, Stephen Wood, Deputy Counsel, Rachel Kaplan, Chief Attorney, of counsel, Chicago Transit Authority, Chicago, Illinois.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Liu concurred in the judgment and opinion.
[¶1] Plaintiff, Daniel Thomas, filed a petition for writ of certiorari in the circuit court seeking review of a Chicago Transit Board (Board) ordinance sustaining the Chicago Transit Authority's (CTA) termination of Thomas's employment for violation of its requirement that certain employees reside within a specified service area. The trial court denied the petition. On appeal, plaintiff seeks reinstatement, contending that the decision to terminate
his employment is clearly erroneous based on the undisputed facts that he abandoned his suburban residence and intended to and did permanently reside within the service area. For the following reasons, we reverse the decisions of the circuit court of Cook County and the Board.
[¶3] During the relevant time, Chicago Transit Authority Ordinance No. 005-201 (eff. Dec. 14, 2005) was in effect and required nonunion CTA workers, like Thomas, to live within a specified residency area within six months of starting work. The ordinance provides that an employee's " (j) 'Residence' shall be defined to be the actual domicile of the individual. An individual can have only one domicile" and " (k) An employee's failure to reside within the residency area shall be considered cause which is detrimental to the service and grounds for discharge." Id. The stated purpose of the ordinance is to provide a " greater recovery of sales tax revenues, a work force more aware of the importance of public transit in communities served by CTA, a more flexible workforce who live closer to where they work, and a workforce having a greater opportunity to travel on CTA buses and trains." Id. Upon good cause shown, an employee could request a one-year extension to establish a qualified residence prior to the expiration of the original six-month period.
[¶4] Thomas was hired by the CTA in June 2008 as a resource planner. During the employment process, he was presented with the CTA's residency requirement and told that his employment was conditioned on satisfying the requirement. Thomas executed a " residency acknowledgment for Non-Union Candidates" form on June 4, 2008, acknowledging that he did not reside in the residency area and attesting that he would move into the residency area within six months from his first day of employment. Contemporaneously, Thomas executed a separate document entitled " Acceptable Proof of Residency." This form instructed Thomas to provide the CTA with two section " A" documents and one section " B" document showing the employee resided in the service area. The section " A" and " B" documents were defined as:
" Section A: Illinois Driver License, Illinois Identification Card, Illinois Vehicle registration card, most recent; Illinois Voter registration card, most recent; Mortgage documents for current residence; Lease Agreement/Housing rental contract for current residence (within 30 days and showing full Illinois address)
Section B: Rent receipt (within 30 days and showing full Illinois address); Utility bill ***; Bank statement (within 45 days and showing full Illinois address); An official letter from another state or local government agency on the agency's letterhead or containing the official seal of the issuing agency issued within the previous 30 days; official postmarked mail ***." (Emphasis in original.)
[¶5] When hired, Thomas and his family were residing in Arlington Heights, Illinois, which is outside of the CTA service area. On July 1, 2008, Thomas received a letter at his Arlington Heights residence explaining that as a condition of his employment he must reside in the service area by December 17, 2008, six months from his first day of work and that failure to comply with the requirement was grounds for termination. The letter further explained that Thomas could apply for a one-year extension to the six-month grace period upon good cause shown.
[¶6] On November 13, 2008, Thomas applied for the one-year extension. In his application, Thomas explained that he had
been attempting to sell his home and move into the residency area since June 2008. He made improvements to the house and placed it on the market, but despite these efforts he had been unable to sell the home. Enclosed with this request was the real estate listing agreement and specifications for the Arlington Heights residence. The CTA responded on November 14, 2008, asking Thomas to provide documents showing not only his attempt to sell or lease the home, but also documents demonstrating that he had searched for a home in the service area. Thomas responded on November 26, 2008, explaining that he and his wife surveyed the service area and spent time reviewing the " housing stock" and schools; that they had driven through various neighborhoods; and that they received daily emails from his realtor listing the homes on the market in the service area. Thomas enclosed correspondence from his real estate broker confirming he was searching for housing in the CTA service area. On December 5, 2008, the human resources department recommended an extension until December 2009. The CTA granted the extension.
[¶7] On December 8, 2009, Thomas submitted a memo and supporting documents to the CTA's human resources department showing a change in his residency. The supporting documents consisted of a copy of a residential lease for 7531 N. Oleander in Chicago, Illinois, a bank statement and an Illinois driver's license, both reflecting the Chicago address. On December 14, 2009, based on the new information, the human resources department declared that Thomas's residence was within the CTA service area.
[¶8] Sometime later, a request was sent to the CTA's office of the inspector general (OIG) to confirm Thomas's residency. The OIG conducted an investigation and issued a report on February 12, 2010. The OIG report concluded that Thomas was not in compliance with the residency requirement. The OIG report stated that the Chicago residence was owned by a relative of Thomas, and although the Chicago property showed signs it was being occupied and mail for the Thomas family was being received at that address, Thomas actually resided in Arlington Heights. The investigation confirmed the Arlington Heights home had been on the market continuously since June 2008. It stated that Mrs. Thomas and her five-year-old twins continued to reside there. The twins attended day care in Arlington Heights. The investigation showed that Mrs. Thomas is confined to a wheelchair and requires special assistance and accommodations within their home. Due to Mrs. Thomas's disabilities, she had not moved into the Chicago residence because it did not accommodate her disability. The report stated that Thomas explained he lived at the Chicago address Monday through Thursday and stayed with his family on the weekends. Due to his wife's physical disability, he would drive to the Arlington Heights home early in the morning to get the children ready and drive them to day care. Thomas would then assist his wife in getting ready for work, transport and commute with her to her Chicago job and then he would continue to CTA headquarters. After work, Thomas and his wife would take a Metra train to Arlington Heights and pick up their children from day care. After securing his family for the night, Thomas returned to his Chicago residence. The OIG report stated that, pursuant to the residency ordinance, " an individual can have only one domicile" and the law provided that a person's true and permanent home should be his actual residence. The report concluded that because Thomas's " family continues to reside outside the residency area and he only uses the Chicago residence to sleep on certain
nights during the week, he is not in compliance with CTA's residency ordinance."
[¶9] Attached to the report was a memo delineating the dates the investigators checked the residences and their observations: the Chicago residence was for sale and had tire tracks going in and of out of the garage indicating the home was being occupied; the Thomases received mail at the Chicago residence, however, Thomas did not submit a change of address form to establish his new address in Chicago; the Arlington Heights residence had a " For Sale" sign in the front yard and had a shoveled driveway and sidewalk; and, on one occasion surveillance of Thomas showed him leaving CTA headquarters and going to the Ogilvie Transportation Center, where he boarded a train to the northwest suburbs. Lastly, the report indicated that on two separate visits to the Chicago residence, during the daytime, no one answered the doorbell.
[¶10] As a result of the OIG report, the CTA determined that although Thomas had submitted acceptable documentation showing he was living in Chicago, Thomas did not reside in the CTA service area. On February 19, 2010, the CTA sent Thomas a notice of termination explaining the OIG investigation found Thomas did not reside within the CTA service area in violation of the ordinance.
[¶11] Thomas requested review of his termination before the CTA Board pursuant to section 28 of the Metropolitan Transit Authority Act (70 ILCS 3605/28 (West 2008)). In his request Thomas stated that his primary and legal residence was in Chicago and he was in compliance with the ordinance. He further stated: (1) he has attempted to sell his Arlington Heights home since June 2008 and to move into the CTA service area; (2) his wife has a physical disability which requires her to use a wheelchair for mobility; (3) he has been living at the Chicago address (owned by a family member) since December 2009 while looking for a home in the service area and trying to sell his Arlington Heights home; (4) the Chicago house is not wheelchair accessible and, therefore, he resided in a separate residence from his wife and two five-year-old children; and (5) due to his wife's disability, Thomas needs to help her with her daily commute, do chores, care for his wife and children and take the children to school. Thomas further stated that the CTA was requiring him to get divorced in order to establish a separate domicile from his wife. The request for a section 28 hearing was granted.
[¶12] A. The Section 28 Hearing
[¶13] The hearing was held on May 10, 2010. Three witnesses testified: OIG criminal investigator J. Martin Walsh, for the CTA, and Thomas and his wife, Jennifer Thomas.
[¶14] 1. CTA Witness
[¶15] OIG criminal investigator J. Martin Walsh confirmed the veracity of the documents submitted by Thomas to show his residence in Chicago. He testified that the Chicago and Arlington Heights residences were visited for surveillance during the daytime, on a Thursday or Friday and a Saturday. There were visible tire tracks showing a vehicle had entered and exited the garage behind the Chicago residence indicating someone was staying at the Chicago residence. When he was at the suburban residence he observed a " For Sale" sign on the property and no one was present. He interviewed Thomas, his wife, the postal carriers and an employee at the children's suburban preschool. Walsh found that Thomas stayed at the Chicago residence Monday through Thursday and at the suburban residence on the weekends. Walsh testified that throughout Thomas's employment with the CTA, the Thomas family continued their efforts to
sell the suburban residence. Walsh opined that under the CTA's definition, " where you can only have one domicile and based on the fact that the Oleander [residence] was temporary, and that his family resided full time in Arlington Heights and he was there on the weekends and assisting the family on the weekdays, that was, in my mind, considered the primary residence."
[¶16] On cross-examination, Walsh testified that Thomas had been sleeping at the Chicago residence; he had a lease showing he rented the property; he was paying the utility bills for the Chicago residence; and he changed his driver's license and bank statement to reflect the Chicago residence. Walsh concluded that the Thomas family was legitimately trying to sell the suburban home without success. Walsh explained that Thomas slept at the Chicago residence every night Monday thru Thursday, waking at 5 a.m. to go to Arlington Heights to help his wife and children get ready, taking his children to day care and his wife to the train. After work, Thomas would pick up his children from day care and help them throughout the evening with the tasks his wife could not do alone. Thomas would then put the children to bed and return to the Chicago residence. An exchange between plaintiff's counsel and Mr. Walsh highlights his findings as to Thomas's intent.
" Mr. SALTZMAN [petitioner's counsel]: You believe that they were, based on your investigation, that the Thomas family was legitimately trying to sell their ...