O'Sullivan v. Board of Commissioners
Annotate this Case
First Division
November 10, 1997
No. 1-96-1296)
1-95-1510) Cons.
THOMAS O'SULLIVAN, ) Appeal from the
) Circuit Court
Petitioner-Appellee ) of Cook County.
and Cross-Appellant, )
)
v. )
)
BOARD OF COMMISSIONERS OF )
THE COOK COUNTY BOARD, OAK )
FOREST HOSPITAL, COOK COUNTY )
DEPARTMENT OF HUMAN RESOURCES, )
HENRY TOWNES, Director, Cook )
County Department of Human )
Resources, and PATRICIA DIXON, )
Hearing Officer, Cook County )
Board of Commissioners Bureau )
of Human Resources, ) Honorable
) AARON JAFFE,
Respondents-Appellants ) Judge Presiding.
and Cross-Appellees. )
JUSTICE BUCKLEY delivered the opinion of the court:
This appeal involves the review of an administrative
determination. On August 8, 1993, complaints were filed by Oak
Forest Hospital of Cook County (the Hospital) and three of its
employees against Thomas O'Sullivan (O'Sullivan). Henry Townes
(Townes), the director of the Cook County Department of Human
Resources, held a predisciplinary hearing on August 30, 1993.
Thereafter, Townes discharged O'Sullivan by letter effective
September 3, 1993. A discharge appeal hearing was held on March
11, 1994, at which hearing officer Patricia Dixon presided on
behalf of the County of Cook/Board of Commissioners of Cook
County/Bureau of Human Resources (collectively, the County). On
September 26, 1994, the County sustained O'Sullivan's discharge
from his supervisory position as chief engineer for the Hospital.
O'Sullivan filed a writ of certiorari. On September 28, 1995,
the circuit court, after hearing oral arguments, remanded the
case to the County ordering imposition of a penalty less than
discharge. On March 25, 1996, the circuit court entered a final
order affirming the County's entry of a sanction of demotion
without back pay or related benefits. The County appeals seeking
reversal of the circuit court's orders of September 28, 1995, and
March 25, 1996, and seeking entry of an order reinstating the
County's sanction of discharge. O'Sullivan cross-appeals seeking
reversal of the circuit court's order of March 25, 1996.
The issues presented on appeal are: (1) whether the
County's findings of fact were against the manifest weight of the
evidence; (2) whether the County's decision to discharge was
unreasonable, arbitrary, or unrelated to the requirements of
service; and (3) whether the trial court properly affirmed the
decision of the County whereby O'Sullivan was demoted and
reinstated without back pay or related benefits.
O'Sullivan was suspended from his job at the Hospital on
August 8, 1993, as a result of complaints filed by three
employees, Carolyn Klimp, Laura Finn, and William Belle. A
pretermination hearing was held on August 30, 1993. At the
hearing, Townes heard the complaints of Finn and Klimp. Because
Belle was out of town, Townes was presented with Belle's written
statement. After considering the facts presented at the hearing,
Townes discharged O'Sullivan by letter effective September 3,
1993. According to the letter, O'Sullivan was charged with
violation of Cook County's policy prohibiting sexual harassment,
abusive behavior toward employees, and less than satisfactory
work performance. O'Sullivan appealed.
On March 11, 1994, the County held a discharge appeal
hearing. The Hospital presented the testimony of Lathitha
Chandrashekar, Finn, Klimp, and Belle. The County also heard
testimony on O'Sullivan's behalf from Thomas Kennedy, Gerald
Donnelly, and O'Sullivan.
The following testimony was elicited at the hearing.
Chandrashekar testified that she was asked by Dr. Patricia Rush,
the Hospital director, to investigate the charges of harassment
alleged against O'Sullivan. Chandrashekar testified that she
spoke with the complainants, department staff, and O'Sullivan.
Chandrashekar wrote up her findings and presented them to Townes.
She stated that she never told O'Sullivan to stop his conduct.
Finn testified that she had been an employee of the Hospital
since July 1983 and had transferred into O'Sullivan's department
in 1990. She testified that O'Sullivan expressed to her in
certain ways that she was not a welcome addition. She testified
that he assigned her to very difficult and unpleasant jobs so
that she would want to leave. Finn stated that she felt if she
completed her assignments, O'Sullivan would see that she was
doing her work and, therefore, she wouldn't have any further
problems with him.
Finn testified that O'Sullivan had a tendency to cut out
jokes and pictures and tape them up. She stated that one picture
was of a woman pulling a plow and that O'Sullivan had typed a
caption on it that read "that's the way it should be today." She
also stated that O'Sullivan had a habit of making comments that
he thought were humorous. He made comments regarding women
taking advantage of men when they go out to restaurants and how
women never pay their fair share. Finn testified that O'Sullivan
had two Art Institute pictures on his office wall of nude women.
She testified that once when she was in his office for a meeting
he asked her if she liked his artwork. In response, she just
shook her head. Finn stated that she believed it was in her best
interest not to rock the boat with O'Sullivan, to try to go along
and not cause problems so that the work place would be more
"settled."
Finn testified that in 1992, when she was pregnant,
O'Sullivan assigned her to difficult jobs which entailed walking
alone at the tops of ropes, working in the tunnels alone and
working with the laundry oiler. She stated that while she was
pregnant O'Sullivan asked her if she needed a red flag tapped to
her stomach. She told him she didn't think that was funny and
about three weeks later he asked her the same question again.
About six months into her pregnancy, Finn and O'Sullivan met with
her union representative about the difficulty of her assignments.
Finn requested a transfer to the computer room. O'Sullivan asked
her to think about any other jobs she could do during her last
trimester and he said that he would think about the transfer.
While O'Sullivan never expressly denied Finn's transfer request,
her assignment was not changed until after O'Sullivan left. Finn
stated that this time period was very stressful for her and that
she would get up in the morning and not want to go to work for
fear of what else would be done to her.
Finn testified that after having worked in the boiler room
for two years, she became eligible to take an engineer's test
given by the City of Chicago. A prerequisite to taking the exam,
however, is a letter from the chief engineer verifying that the
candidate has worked on high steam pressure boilers for two
years. When Finn asked O'Sullivan for the letter, O'Sullivan
told her that she had to take a test first. Finn testified that
O'Sullivan had previously never required anyone to take a test
before issuing the letter. Finn went to the associate
administrator, John O'Shaughnessy, who is O'Sullivan's boss and
also Finn's father, and complained to him about this new
requirement. O'Shaughnessy told Finn that she did not have to
take a test. After Finn told O'Sullivan about her conversation
with O'Shaughnessy, O'Sullivan issued the letter.
Finn testified that she complained to O'Shaughnessy about
O'Sullivan on at least two occasions before the letter incident.
Finn stated that O'Shaughnessy told her that he didn't want to
interfere because there may be a perception of bias or prejudice
and that it might cause problems. Finn testified that, as a
result, she felt that there was no one to turn to. She stated
that, while she knew she could file a grievance with the union
representative, she believed it would result in retaliation by
O'Sullivan and even more problems for her at work. Finn
testified that when Dr. Rush joined the Hospital, she had open
meetings with the employees. At that point, Finn felt as if she
could no longer complete a day at work and so she decided to
speak with Dr. Rush about O'Sullivan's conduct.
On cross-examination, Finn testified that although she felt
offended by O'Sullivan, she did make attempts to be friendly with
him. The copy machines were located outside his office so if she
had to make copies she would stand by his door and talk to him.
Finn stated that while her working relationship with O'Sullivan
was intolerable, she believed it was in her best interest to be
nice to him so that hopefully things would change.
Klimp, a mechanical assistant in heating and operating for
the Hospital, and Finn's sister, testified that she began working
at the Hospital in 1989 and was the first permanent woman in
O'Sullivan's department. She testified that during a St.
Patrick's Day party, O'Sullivan approached her and said, "And to
think Jerry Donnelly did not want women in this department."
Klimp responded, "Jerry Donnelly was not alone, was he?"
O'Sullivan laughed and walked away. Klimp testified that the
incidents had gradually progressed from there. For example,
Klimp testified that when she was crabby, O'Sullivan referred to
her menstrual cycle. Additionally, O'Sullivan asked Klimp to
tell him when Dr. Rush had her period so that he would know when
to avoid her.
Klimp also testified regarding the two Art Institute
pictures in O'Sullivan's office. She testified that once while
she was in O'Sullivan's office discussing work, O'Sullivan went
up to one of the pictures and began brushing off the breasts and
rear end of the nude woman in the picture. Klimp stated that
this behavior, as well as O'Sullivan's references to her
menstrual cycle, was sexually offensive to her.
Klimp also testified regarding the photo of the woman tied
to the plow. Klimp stated that while she didn't know if
O'Sullivan was the one who hung the photo on the file cabinet
outside his office, O'Sullivan did show it to her. Klimp told
O'Sullivan that she did not think the photo was funny and told
O'Sullivan that she was going to send it to Dr. Rush. She
further testified that she found the photo to be demoralizing to
women.
Klimp testified that, before the charges were brought, she
told O'Sullivan that he could not continue to treat people the
way he was treating them. She informed O'Sullivan that Dr. Rush
was asking about how people were being treated and told him that
he needed to change. Klimp stated that O'Sullivan responded, "I
will quit first and learn to enjoy my retirement." Klimp
testified that she never complained to anyone other than Dr. Rush
about O'Sullivan's actions.
Belle, a black mechanical assistant at the Hospital,
testified that he had worked in O'Sullivan's department for about
four years. Belle, like Finn, wanted to take the engineer's test
administered by the City of Chicago and requested the standard
letter verifying his two years of work experience in the boiler
room from O'Sullivan. O'Sullivan refused to write the letter and
told Belle that he was not smart enough to be an engineer, that
he was already paid enough money, and that he had an arrogant
attitude. O'Sullivan told Belle that he would never write the
letter for him.
Belle testified that his problems with O'Sullivan began
during Belle's first year on the job when O'Sullivan wrote him up
for excessive absenteeism. Belle testified that he was not
absent on the days for which O'Sullivan wrote him up. After
Belle investigated his personnel records and confirmed that the
disciplinary letter was untrue, the letter was removed from his
file and discarded.
Belle testified that O'Sullivan would post pictures of black
criminals who resembled Belle or who had a name similar to
Belle's on the bulletin board for all the engineers to see.
Belle testified that O'Sullivan made comments about the school
sweaters that Belle wore to work and referred to them as gang
symbols. Belle testified that O'Sullivan made comments about the
neighborhood Belle lived in. O'Sullivan also mocked Belle for
carrying a pager and, in front of other employees, asked Belle if
he was doing something illegal.
Belle also testified to an incident when, after working in a
particularly dirty area, his clothes, face and hands became
covered with a lot of black dirt and soot. O'Sullivan approached
him and in front of other engineers stated, "I can't tell if
you're dirty or if you're black." Belle became very upset and
walked away.
Belle also testified that once, after hearing O'Sullivan say
that he was having a dinner party, Belle asked O'Sullivan if he
could come over for dinner. O'Sullivan responded, "Yeah, you can
come over for dinner, we'll be serving mixed vegetables." Belle
testified that the comment referred to blacks and whites getting
together.
Belle also testified to an incident involving O'Sullivan's
instruction to him to put a plastic liner in an incinerator.
Because the incinerator was about 20 feet long and 7 feet wide
and because it was windy, Belle couldn't complete the task alone.
Belle testified that he asked some white engineers to help him
and they refused. O'Sullivan directed Belle to have Kenneth
Smith, another black mechanical assistant, help him. Belle asked
Smith to help him but since Smith was not allowed to leave the
computer room without specific orders from O'Sullivan Smith told
Belle he would have to wait. When O'Sullivan saw that Belle had
not completed the job, O'Sullivan wrote up Belle, Smith and
another black engineer. O'Sullivan did not write up any of the
white employees involved in the incident. Belle testified that
it later took eight men to complete the task.
Belle testified that he complained to Kennedy and Donnelly,
his direct supervisors, about O'Sullivan's racial comments and
the way O'Sullivan treated him. However, since O'Sullivan was
the "big boss" Belle was always referred back to him. Belle
attempted to talk to O'Sullivan about his conduct. Belle did not
file a grievance against O'Sullivan over O'Sullivan's conduct
because he did not feel it would help. Belle went to see Dr.
Rush after O'Sullivan mockingly told him that his evaluation had
improved two points when it actually had only improved two-tenths
of a point.
In defense, O'Sullivan presented the testimony of Thomas
Kennedy, chief engineer and former assistant to O'Sullivan.
Kennedy testified that he has worked for the Hospital for 17
years. Kennedy testified that neither Finn, Klimp nor Belle had
ever complained to him about O'Sullivan. The defense also
presented the testimony of Gerald Donnelly, assistant chief
engineer, who worked as O'Sullivan's assistant for four years.
Donnelly testified that he supervised Finn, Klimp and Belle and
that none of them had ever complained to him about O'Sullivan's
conduct.
O'Sullivan testified in his own defense. O'Sullivan stated
that he worked for the County for close to 23 years. He stated
that during that time he received an award for saving the County
money and that he does not have any reprimands in his file.
O'Sullivan testified that O'Shaughnessy was his boss and that
they spoke on a daily basis. He testified that O'Shaughnessy
never told him that his daughters, Finn and Klimp, found
O'Sullivan sexually offensive. O'Sullivan stated that neither
Klimp nor Finn ever complained to him about his conduct and that
on many occasions they would walk into his office and begin
conversations.
O'Sullivan stated that he vaguely recollects comments made
to Finn during her pregnancy about a red flag and comments made
to Klimp about Dr. Rush's menstrual cycle. O'Sullivan also
testified that he does recall removing tape residue from the
picture of the nude woman in his office while Klimp was present.
He also testified that neither Finn nor Klimp ever complained
about the photos. O'Sullivan testified that he did not show a
picture of a woman tied to a plow to anybody. O'Sullivan
testified that he never received any reprimands from anyone
regarding sexual harassment. O'Sullivan stated that if Finn or
Klimp had asked him to stop making comments that they thought
were offensive he would have stopped.
O'Sullivan also denied posting pictures of black convicts
and putting Belle's name on them; however, he did see one picture
posted with Belle's name on it. O'Sullivan does not recall Belle
ever complaining about such pictures. He also stated that Belle
never complained to him about offensive comments.
O'Sullivan stated that the reason he told Finn she would
have to take a test to get the recommendation letter was because
he wanted to make sure she was qualified and that he had
considered making testing a prerequisite to getting the letter.
O'Sullivan stated that he denied the letter to Belle because
Belle's evaluations were low.
On September 26, 1994, the County issued its written
decision finding that O'Sullivan's behavior created a hostile
working environment justifying his immediate discharge. The
County noted that employee abuse, of any kind, is a major rule of
conduct violation. O'Sullivan filed a petition for certiorari.
The trial court heard oral arguments on September 6, 1995.
On September 28, 1995, the trial court remanded the case to the
County with instructions to impose a penalty less than discharge.
On February 27, 1996, the County entered a sanction of demotion
to the position of fireman's helper, with no supervisory
responsibilities and no back pay. On March 25, 1996, the trial
court affirmed the County's sanction and entered a final order.
The County appeals from the trial court's orders of September 28,
1995 and March 25, 1996, seeking to reverse the orders of the
trial court and seeking entry of an order to reinstate the
County's sanction of discharge. O'Sullivan appeals the trial
court's order of March 25, 1996.
Judicial review of an administrative agency's decision to
discharge a public employee involves a two-step analysis. The
first step requires the reviewing court to determine whether the
agency's decision is contrary to the manifest weight of the
evidence (Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d 101 (1983); Caliendo v. Martin, 250 Ill. App. 3d 409 (1993))
while bearing in mind that the agency's findings are deemed prima
facie true and correct. 735 ILCS 5/3-110 (West 1992). The
second step requires the reviewing court to determine whether the
agency's findings of fact support the conclusion that sufficient
cause for discharge exists. Walsh, 96 Ill. 2d at 105; Caliendo,
250 Ill. App. 3d at 415.
The County's first contention is that its findings of fact
were not against the manifest weight of the evidence and should
have been affirmed by the trial court. If there is evidence in
the record that supports the administrative agency's decision,
the decision must be sustained on judicial review. Yeksigian v.
City of Chicago, 231 Ill. App. 3d 307 (1992). Because the weight
of the evidence and the credibility of the witness are determined
by the agency, there need only be some competent evidence in the
record to support the decision. Iwanski v. Streamwood Police
Pension Board, 232 Ill. App. 3d 180 (1992). The fact that an
opposite conclusion is reasonable or that the reviewing court
might have ruled differently based on the same evidence does not
justify reversal of the findings of the administrative agency.
King v. Justice Party, 284 Ill. App. 3d 886, 888 (1996). Because
we find there is evidence in the record to support the County's
findings, the findings are not against the manifest weight of the
evidence and should have been affirmed by the trial court.
Cook County rules and regulations governing employee conduct
specifically prohibit employees from mistreating or abusing
employees "in any manner, including loud, abusive, insolent, or
rude behavior, and racial or ethnic slurs." Oak Forest Hosptial
Rules and Regulations Governing Employee Conduct, 2(B)(1)
(1987). Cook County executive order 91-4 specifically prohibits
sexual and racial harassment in employment. Section 2(A)(2)(c)
of executive order 91-4 defines sexual harassment to include
"activities such as unwelcome sexual advances *** or activities
of a sexual nature *** hav[ing] the purpose or effect of
substantially interfering with an individual's work performance
or creating an intimidating, hostile or offensive work
environment." Cook County Exec. Order No. 91-4, 2(A)(2)(c)
(1992). This language mirrors the definition of sexual
harassment found in the Illinois Human Rights Act. 775 ILCS 5/2-
101(E) (West 1992). Title VII of the Civil Rights Act of 1964
also prohibits discrimination on the basis of gender and
prohibits discriminatory conduct that creates a hostile work
environment. 42 U.S.C.S. 2000e-2(a) (1989); Harris v. Forklift
Systems, Inc., 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367
(1993).
In addition, the County's rules and regulations expressly
prohibit harassment on the basis of any other protected status,
including race. In particular, section 2(A)(3) of executive
order 91-4 provides that "[s]lurs and other verbal or physical
conduct relating to a person's membership in a protected status
constitutes harassment when this conduct *** has the purpose or
effect of creating an intimidating, hostile or offensive working
environment *** or unreasonably interfer[es] with an individual's
work performance *** or *** adversely effects an individual's
employment environment." Cook County Exec. Order No. 91-4,
2(A)(3) (1992).
Cook County rules and regulations also prohibit employees
from "fail[ing] to follow instructions or fail[ing] to work in
accordance with County policies, procedures and/or practices" and
from "perform[ing] at less than a satisfactory level in any job
classification." Oak Forest Hospital Rules and Regulations
Governing Employee Conduct, 2(B)(9) and (24) (1987).
O'Sullivan contends that because the definition of sexual
harassment applied by the Hospital closely parallels the language
contained in the Illinois Human Rights Act (775 ILCS 5/2-
101(E)(West 1992)), as well as the prohibition against sexual
harassment found in Title VII (42 U.S.C.S. 2000e-2(a) (1989)),
it is appropriate to look to both federal and Illinois law for
interpretation. However, we note at the outset that this case
does not involve the question of whether O'Sullivan's conduct
violated federal law. Rather, the question is whether
O'Sullivan's conduct violated his employer's rules and policies.
Moreover, Illinois courts have noted that "[the Illinois] Act
need not be applied in lockstep with the Supreme Court's
construction of Title VII." Trayling v. Board of Fire & Police
Commissioners, 273 Ill. App. 3d 1, 11 (1995), citing Geise v.
Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 518 (1994)(stating
that under the Illinois Human Rights Act, employers are strictly
liable for acts of sexual harassment committed by their employees
even though title VII may require additional grounds).
Additionally, the County asserts that based on Chalmers v. Quaker
Oats Co., 859 F. Supp. 1149 (N.D. Ill. 1994), a company can
interpret its own sexual harassment policy more stringently than
federal law.
O'Sullivan relies solely on federal case law and contends
that the alleged incidents complained of are isolated incidents
and are not sufficient to create a hostile work environment under
the standard of Harris v. Forklift Systems, Inc., 510 U.S. 17,
126 L. Ed. 2d 295, 114 S. Ct. 367 (1993). In Harris, the Supreme
Court stated that title VII is violated when the workplace is
permeated with discriminatory behavior that is sufficiently
severe or pervasive to create a discriminatorily hostile or
abusive working environment. Harris, 510 U.S. at 21, 126 L. Ed
2d at 301, 114 S. Ct. at 370 (reaffirming standard stated in
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Under Harris, there must be an
objectively hostile or abusive environment and the victim must
also subjectively perceive the environment as hostile or abusive.
Harris, 510 U.S. at 21-22, 126 L. Ed. 2d at 302, 114 S. Ct. at
370. In determining whether the environment is objectively
hostile, the totality of the circumstances should be analyzed.
Harris, 510 U.S. at 23, 126 L. Ed. 2d at 302-03, 114 S. Ct. at
371. The Court listed the following factors to be considered,
stating that no single factor is required: the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance. Harris, 510 U.S. at 23, 126 L. Ed. 2d at 302-03,
114 S. Ct. at 371.
O'Sullivan contends that there are at most four incidents
attributable to O'Sullivan: the pictures in his office, the
comment regarding Dr. Rush's menstrual cycle, the conversation at
the St. Patrick's Day party, and the remark about the red flag.
O'Sullivan argues that this conduct does not create a hostile
work environment under the Harris test. O'Sullivan cites Saxton
v. American Telephone & Telegraph Co., 10 F.3d 526 (7th Cir.
1993), and Weiss v. Coca Cola Bottling Co., 990 F.2d 333 (7th
Cir. 1993) for examples of behavior that do not rise to sexual
harassment under Title VII.
O'Sullivan likewise contends that the incidents of which
Belle complained were isolated and did not rise to a level of
racial discrimination. O'Sullivan cites Bolden v. PRC Inc., 43 F.3d 545, 550-51 (10th Cir. 1994), and Hong v. Children's
Memorial Hospital, 993 F.2d 1257, 1265 (7th Cir. 1993), for the
proposition that sporadic racial slurs are not enough to support
a claim under title VI. O'Sullivan argues that his refusal to
sign Belle's letter of recommendation to take the engineer's test
was because of Belle's low performance. As for the pictures of
ex-convicts, O'Sullivan denied that he posted the pictures.
O'Sullivan asserts that the two remarks about being "dirty" and
serving "mixed vegetables" do not rise to level of racial slur.
Again, we emphasize that the question for this court to
decide is not whether O'Sullivan's conduct violated federal law.
The issue we must address is whether the record supports the
County's determination. The County, after hearing testimony from
all parties, determined that O'Sullivan violated the County's
rules and regulations. The record supports a finding of employee
abuse based on racial and sexual harassment as well as less than
satisfactory work performance. There is evidence in the record
that O'Sullivan's course of conduct in posting pictures of
females, reference to female employees' menstrual cycles,
assigning progressively difficult tasks to a pregnant employee,
and his refusal to issue a routine letter of verification of work
experience absent a test constitutes "conduct of a sexual nature"
that could be degrading or offensive to a reasonable person under
an objective standard and, therefore, satisfies the Harris test.
O'Sullivan has failed to cite any Illinois law in support of his
argument to the contrary.
Since we find that the County's finding that O'Sullivan
violated the County's policy prohibiting sexual harassment,
employee abuse, and less than satisfactory work performance is
supported by the manifest weight of the evidence, the next issue
for this court to resolve is whether the sanction of discharge
was arbitrary, unreasonable or unrelated to the requirements of
service.
Cause for discharge has been defined by the Illinois Supreme
Court as "some substantial shortcoming which renders continuance
in [the employee's] office or employment in some way detrimental
to the discipline and efficiency of the service and something
which the law and a sound public opinion recognize as a good
cause for [the employee] not longer occupying the place."
Fantozzi v. Board of Fire & Police Commissioners, 27 Ill. 2d 357,
360 (1963); see also Caliendo v. Martin, 250 Ill. App. 3d 409,
418 (1993). In reviewing the County's decision to discharge
O'Sullivan, the question is not whether this court would decide
upon a more lenient sanction than discharge were it to determine
initially what sanction would be appropriate. Sutton v. Civil
Service Comm'n, 91 Ill. 2d 404, 411 (1982). Rather, the question
is whether this court could find, after considering the
circumstances presented, that the County acted unreasonably or
arbitrarily in discharging O'Sullivan, or selected a type of
discipline unrelated to the needs of the department. Sutton, 91 Ill. 2d at 411; Calomino v. Board of Fire & Police Commissioners,
273 Ill. App. 3d 494, 499 (1995).
The County contends that the trial court improperly
substituted its judgment for that of the County when it reversed
the sanction of discharge and remanded for imposition of a
penalty less than discharge. We agree. The trial judge, in
reviewing the County's decision to discharge O'Sullivan, stated
that it was necessary to "balance the equities in these matters."
He inquired into O'Sullivan's pension status and noted that
O'Sullivan worked for the County for 23 years. The trial judge
then stated that "maybe they should have demoted him, or maybe
they should have started him on some course of rehabilitation."
The reviewing court should not substitute its judgment for that
of the County, but should limit its review to a determination of
whether the County acted arbitrarily or unreasonably. Sutton v.
Civil Service Comm'n, 91 Ill. 2d 404 (1982).
Under the County's disciplinary action policy, an employee
can be fired if he commits a major cause infraction; if he is
guilty of a fourth offense; or if he repeated similar infractions
for which there has been progressive discipline. O'Sullivan
contends that because neither sexual nor racial harassment is
listed as a major cause infractions, and because during the 23
years preceding his suspension he never received any reprimands,
progressive discipline was required. However, although the
County does favor progressive discipline, the County recognizes
that progressive discipline is not always feasible. Discipline
may begin at discharge level in the case of a major cause
violation. The County's rules provide that employee abuse is a
major cause violation.
It is not unreasonable to read the prohibition against
"employee abuse" to encompass sexual and racial harassment of
employees. O'Sullivan argues, however, that an interpretation of
the County's rules which includes sexual harassment as a major
cause violation renders the sexual harassment policies of the
County meaningless and defeats their purpose. We disagree. The
sexual harassment policy of the Hospital clearly states that
anyone found to be in violation of the policy will be subject to
disciplinary action ranging from verbal and written warnings to
suspension, demotion or discharge. Likewise, executive order 91-
4 provides that anyone found to have violated the order shall be
subject to employment sanctions, including discharge.
Nevertheless, O'Sullivan contends that under the County's
own rules, he should have received a written or verbal reprimand
and, further, that he was entitled the opportunity to be
counseled and to change his conduct. The County, however, found
that discharge was an appropriate sanction and we agree. The
County noted that because O'Sullivan was a department head, he
was aware of the County's expectations with respect to
discrimination, harassment, or any form of misconduct. The
County also noted there was no indication of regret on the part
of O'Sullivan or that he would change his behavior if reinstated.
The County also found that the complainants' testimony was
credible and that their demeanor and attitude revealed that they
were adversely affected by O'Sullivan's behavior. The County's
decision to discharge was not arbitrary, unreasonable or
unrelated to the requirements of service; therefore, we defer to
the County's conclusion that the circumstances in this case
warranted discharge.
Since we affirm the County's imposition of the sanction of
discharge, we need not address O'Sullivan's contention that he is
entitled to back pay or related benefits from the date of
suspension.
For the aforementioned reasons, we hereby reverse the order
of the circuit court of Cook County remanding the case to the
County for imposition of a sanction less than discharge. We
likewise reverse the order of the circuit court of Cook County
affirming the sanction of demotion. We remand the cause to the
circuit court of Cook County with instructions to enter an order
reinstating the penalty of discharge against O'Sullivan and
dismissing O'Sullivan's cross-appeal.
Reversed and remanded with instructions.
CAMPBELL, P.J. and O'BRIEN, concur.
November 10, 1997
No. 1-96-1296)
1-95-1510) Cons.
THOMAS O'SULLIVAN, ) Appeal from the
) Circuit Court
Petitioner-Appellee ) of Cook County.
and Cross-Appellant, )
)
v. )
)
BOARD OF COMMISSIONERS OF )
THE COOK COUNTY BOARD, OAK )
FOREST HOSPITAL, COOK COUNTY )
DEPARTMENT OF HUMAN RESOURCES, )
HENRY TOWNES, Director, Cook )
County Department of Human )
Resources, and PATRICIA DIXON, )
Hearing Officer, Cook County )
Board of Commissioners Bureau )
of Human Resources, ) Honorable
) AARON JAFFE,
Respondents-Appellants ) Judge Presiding.
and Cross-Appellees. )
JUSTICE BUCKLEY delivered the opinion of the court:
This appeal involves the review of an administrative
determination. On August 8, 1993, complaints were filed by Oak
Forest Hospital of Cook County (the Hospital) and three of its
employees against Thomas O'Sullivan (O'Sullivan). Henry Townes
(Townes), the director of the Cook County Department of Human
Resources, held a predisciplinary hearing on August 30, 1993.
Thereafter, Townes discharged O'Sullivan by letter effective
September 3, 1993. A discharge appeal hearing was held on March
11, 1994, at which hearing officer Patricia Dixon presided on
behalf of the County of Cook/Board of Commissioners of Cook
County/Bureau of Human Resources (collectively, the County). On
September 26, 1994, the County sustained O'Sullivan's discharge
from his supervisory position as chief engineer for the Hospital.
O'Sullivan filed a writ of certiorari. On September 28, 1995,
the circuit court, after hearing oral arguments, remanded the
case to the County ordering imposition of a penalty less than
discharge. On March 25, 1996, the circuit court entered a final
order affirming the County's entry of a sanction of demotion
without back pay or related benefits. The County appeals seeking
reversal of the circuit court's orders of September 28, 1995, and
March 25, 1996, and seeking entry of an order reinstating the
County's sanction of discharge. O'Sullivan cross-appeals seeking
reversal of the circuit court's order of March 25, 1996.
The issues presented on appeal are: (1) whether the
County's findings of fact were against the manifest weight of the
evidence; (2) whether the County's decision to discharge was
unreasonable, arbitrary, or unrelated to the requirements of
service; and (3) whether the trial court properly affirmed the
decision of the County whereby O'Sullivan was demoted and
reinstated without back pay or related benefits.
O'Sullivan was suspended from his job at the Hospital on
August 8, 1993, as a result of complaints filed by three
employees, Carolyn Klimp, Laura Finn, and William Belle. A
pretermination hearing was held on August 30, 1993. At the
hearing, Townes heard the complaints of Finn and Klimp. Because
Belle was out of town, Townes was presented with Belle's written
statement. After considering the facts presented at the hearing,
Townes discharged O'Sullivan by letter effective September 3,
1993. According to the letter, O'Sullivan was charged with
violation of Cook County's policy prohibiting sexual harassment,
abusive behavior toward employees, and less than satisfactory
work performance. O'Sullivan appealed.
On March 11, 1994, the County held a discharge appeal
hearing. The Hospital presented the testimony of Lathitha
Chandrashekar, Finn, Klimp, and Belle. The County also heard
testimony on O'Sullivan's behalf from Thomas Kennedy, Gerald
Donnelly, and O'Sullivan.
The following testimony was elicited at the hearing.
Chandrashekar testified that she was asked by Dr. Patricia Rush,
the Hospital director, to investigate the charges of harassment
alleged against O'Sullivan. Chandrashekar testified that she
spoke with the complainants, department staff, and O'Sullivan.
Chandrashekar wrote up her findings and presented them to Townes.
She stated that she never told O'Sullivan to stop his conduct.
Finn testified that she had been an employee of the Hospital
since July 1983 and had transferred into O'Sullivan's department
in 1990. She testified that O'Sullivan expressed to her in
certain ways that she was not a welcome addition. She testified
that he assigned her to very difficult and unpleasant jobs so
that she would want to leave. Finn stated that she felt if she
completed her assignments, O'Sullivan would see that she was
doing her work and, therefore, she wouldn't have any further
problems with him.
Finn testified that O'Sullivan had a tendency to cut out
jokes and pictures and tape them up. She stated that one picture
was of a woman pulling a plow and that O'Sullivan had typed a
caption on it that read "that's the way it should be today." She
also stated that O'Sullivan had a habit of making comments that
he thought were humorous. He made comments regarding women
taking advantage of men when they go out to restaurants and how
women never pay their fair share. Finn testified that O'Sullivan
had two Art Institute pictures on his office wall of nude women.
She testified that once when she was in his office for a meeting
he asked her if she liked his artwork. In response, she just
shook her head. Finn stated that she believed it was in her best
interest not to rock the boat with O'Sullivan, to try to go along
and not cause problems so that the work place would be more
"settled."
Finn testified that in 1992, when she was pregnant,
O'Sullivan assigned her to difficult jobs which entailed walking
alone at the tops of ropes, working in the tunnels alone and
working with the laundry oiler. She stated that while she was
pregnant O'Sullivan asked her if she needed a red flag tapped to
her stomach. She told him she didn't think that was funny and
about three weeks later he asked her the same question again.
About six months into her pregnancy, Finn and O'Sullivan met with
her union representative about the difficulty of her assignments.
Finn requested a transfer to the computer room. O'Sullivan asked
her to think about any other jobs she could do during her last
trimester and he said that he would think about the transfer.
While O'Sullivan never expressly denied Finn's transfer request,
her assignment was not changed until after O'Sullivan left. Finn
stated that this time period was very stressful for her and that
she would get up in the morning and not want to go to work for
fear of what else would be done to her.
Finn testified that after having worked in the boiler room
for two years, she became eligible to take an engineer's test
given by the City of Chicago. A prerequisite to taking the exam,
however, is a letter from the chief engineer verifying that the
candidate has worked on high steam pressure boilers for two
years. When Finn asked O'Sullivan for the letter, O'Sullivan
told her that she had to take a test first. Finn testified that
O'Sullivan had previously never required anyone to take a test
before issuing the letter. Finn went to the associate
administrator, John O'Shaughnessy, who is O'Sullivan's boss and
also Finn's father, and complained to him about this new
requirement. O'Shaughnessy told Finn that she did not have to
take a test. After Finn told O'Sullivan about her conversation
with O'Shaughnessy, O'Sullivan issued the letter.
Finn testified that she complained to O'Shaughnessy about
O'Sullivan on at least two occasions before the letter incident.
Finn stated that O'Shaughnessy told her that he didn't want to
interfere because there may be a perception of bias or prejudice
and that it might cause problems. Finn testified that, as a
result, she felt that there was no one to turn to. She stated
that, while she knew she could file a grievance with the union
representative, she believed it would result in retaliation by
O'Sullivan and even more problems for her at work. Finn
testified that when Dr. Rush joined the Hospital, she had open
meetings with the employees. At that point, Finn felt as if she
could no longer complete a day at work and so she decided to
speak with Dr. Rush about O'Sullivan's conduct.
On cross-examination, Finn testified that although she felt
offended by O'Sullivan, she did make attempts to be friendly with
him. The copy machines were located outside his office so if she
had to make copies she would stand by his door and talk to him.
Finn stated that while her working relationship with O'Sullivan
was intolerable, she believed it was in her best interest to be
nice to him so that hopefully things would change.
Klimp, a mechanical assistant in heating and operating for
the Hospital, and Finn's sister, testified that she began working
at the Hospital in 1989 and was the first permanent woman in
O'Sullivan's department. She testified that during a St.
Patrick's Day party, O'Sullivan approached her and said, "And to
think Jerry Donnelly did not want women in this department."
Klimp responded, "Jerry Donnelly was not alone, was he?"
O'Sullivan laughed and walked away. Klimp testified that the
incidents had gradually progressed from there. For example,
Klimp testified that when she was crabby, O'Sullivan referred to
her menstrual cycle. Additionally, O'Sullivan asked Klimp to
tell him when Dr. Rush had her period so that he would know when
to avoid her.
Klimp also testified regarding the two Art Institute
pictures in O'Sullivan's office. She testified that once while
she was in O'Sullivan's office discussing work, O'Sullivan went
up to one of the pictures and began brushing off the breasts and
rear end of the nude woman in the picture. Klimp stated that
this behavior, as well as O'Sullivan's references to her
menstrual cycle, was sexually offensive to her.
Klimp also testified regarding the photo of the woman tied
to the plow. Klimp stated that while she didn't know if
O'Sullivan was the one who hung the photo on the file cabinet
outside his office, O'Sullivan did show it to her. Klimp told
O'Sullivan that she did not think the photo was funny and told
O'Sullivan that she was going to send it to Dr. Rush. She
further testified that she found the photo to be demoralizing to
women.
Klimp testified that, before the charges were brought, she
told O'Sullivan that he could not continue to treat people the
way he was treating them. She informed O'Sullivan that Dr. Rush
was asking about how people were being treated and told him that
he needed to change. Klimp stated that O'Sullivan responded, "I
will quit first and learn to enjoy my retirement." Klimp
testified that she never complained to anyone other than Dr. Rush
about O'Sullivan's actions.
Belle, a black mechanical assistant at the Hospital,
testified that he had worked in O'Sullivan's department for about
four years. Belle, like Finn, wanted to take the engineer's test
administered by the City of Chicago and requested the standard
letter verifying his two years of work experience in the boiler
room from O'Sullivan. O'Sullivan refused to write the letter and
told Belle that he was not smart enough to be an engineer, that
he was already paid enough money, and that he had an arrogant
attitude. O'Sullivan told Belle that he would never write the
letter for him.
Belle testified that his problems with O'Sullivan began
during Belle's first year on the job when O'Sullivan wrote him up
for excessive absenteeism. Belle testified that he was not
absent on the days for which O'Sullivan wrote him up. After
Belle investigated his personnel records and confirmed that the
disciplinary letter was untrue, the letter was removed from his
file and discarded.
Belle testified that O'Sullivan would post pictures of black
criminals who resembled Belle or who had a name similar to
Belle's on the bulletin board for all the engineers to see.
Belle testified that O'Sullivan made comments about the school
sweaters that Belle wore to work and referred to them as gang
symbols. Belle testified that O'Sullivan made comments about the
neighborhood Belle lived in. O'Sullivan also mocked Belle for
carrying a pager and, in front of other employees, asked Belle if
he was doing something illegal.
Belle also testified to an incident when, after working in a
particularly dirty area, his clothes, face and hands became
covered with a lot of black dirt and soot. O'Sullivan approached
him and in front of other engineers stated, "I can't tell if
you're dirty or if you're black." Belle became very upset and
walked away.
Belle also testified that once, after hearing O'Sullivan say
that he was having a dinner party, Belle asked O'Sullivan if he
could come over for dinner. O'Sullivan responded, "Yeah, you can
come over for dinner, we'll be serving mixed vegetables." Belle
testified that the comment referred to blacks and whites getting
together.
Belle also testified to an incident involving O'Sullivan's
instruction to him to put a plastic liner in an incinerator.
Because the incinerator was about 20 feet long and 7 feet wide
and because it was windy, Belle couldn't complete the task alone.
Belle testified that he asked some white engineers to help him
and they refused. O'Sullivan directed Belle to have Kenneth
Smith, another black mechanical assistant, help him. Belle asked
Smith to help him but since Smith was not allowed to leave the
computer room without specific orders from O'Sullivan Smith told
Belle he would have to wait. When O'Sullivan saw that Belle had
not completed the job, O'Sullivan wrote up Belle, Smith and
another black engineer. O'Sullivan did not write up any of the
white employees involved in the incident. Belle testified that
it later took eight men to complete the task.
Belle testified that he complained to Kennedy and Donnelly,
his direct supervisors, about O'Sullivan's racial comments and
the way O'Sullivan treated him. However, since O'Sullivan was
the "big boss" Belle was always referred back to him. Belle
attempted to talk to O'Sullivan about his conduct. Belle did not
file a grievance against O'Sullivan over O'Sullivan's conduct
because he did not feel it would help. Belle went to see Dr.
Rush after O'Sullivan mockingly told him that his evaluation had
improved two points when it actually had only improved two-tenths
of a point.
In defense, O'Sullivan presented the testimony of Thomas
Kennedy, chief engineer and former assistant to O'Sullivan.
Kennedy testified that he has worked for the Hospital for 17
years. Kennedy testified that neither Finn, Klimp nor Belle had
ever complained to him about O'Sullivan. The defense also
presented the testimony of Gerald Donnelly, assistant chief
engineer, who worked as O'Sullivan's assistant for four years.
Donnelly testified that he supervised Finn, Klimp and Belle and
that none of them had ever complained to him about O'Sullivan's
conduct.
O'Sullivan testified in his own defense. O'Sullivan stated
that he worked for the County for close to 23 years. He stated
that during that time he received an award for saving the County
money and that he does not have any reprimands in his file.
O'Sullivan testified that O'Shaughnessy was his boss and that
they spoke on a daily basis. He testified that O'Shaughnessy
never told him that his daughters, Finn and Klimp, found
O'Sullivan sexually offensive. O'Sullivan stated that neither
Klimp nor Finn ever complained to him about his conduct and that
on many occasions they would walk into his office and begin
conversations.
O'Sullivan stated that he vaguely recollects comments made
to Finn during her pregnancy about a red flag and comments made
to Klimp about Dr. Rush's menstrual cycle. O'Sullivan also
testified that he does recall removing tape residue from the
picture of the nude woman in his office while Klimp was present.
He also testified that neither Finn nor Klimp ever complained
about the photos. O'Sullivan testified that he did not show a
picture of a woman tied to a plow to anybody. O'Sullivan
testified that he never received any reprimands from anyone
regarding sexual harassment. O'Sullivan stated that if Finn or
Klimp had asked him to stop making comments that they thought
were offensive he would have stopped.
O'Sullivan also denied posting pictures of black convicts
and putting Belle's name on them; however, he did see one picture
posted with Belle's name on it. O'Sullivan does not recall Belle
ever complaining about such pictures. He also stated that Belle
never complained to him about offensive comments.
O'Sullivan stated that the reason he told Finn she would
have to take a test to get the recommendation letter was because
he wanted to make sure she was qualified and that he had
considered making testing a prerequisite to getting the letter.
O'Sullivan stated that he denied the letter to Belle because
Belle's evaluations were low.
On September 26, 1994, the County issued its written
decision finding that O'Sullivan's behavior created a hostile
working environment justifying his immediate discharge. The
County noted that employee abuse, of any kind, is a major rule of
conduct violation. O'Sullivan filed a petition for certiorari.
The trial court heard oral arguments on September 6, 1995.
On September 28, 1995, the trial court remanded the case to the
County with instructions to impose a penalty less than discharge.
On February 27, 1996, the County entered a sanction of demotion
to the position of fireman's helper, with no supervisory
responsibilities and no back pay. On March 25, 1996, the trial
court affirmed the County's sanction and entered a final order.
The County appeals from the trial court's orders of September 28,
1995 and March 25, 1996, seeking to reverse the orders of the
trial court and seeking entry of an order to reinstate the
County's sanction of discharge. O'Sullivan appeals the trial
court's order of March 25, 1996.
Judicial review of an administrative agency's decision to
discharge a public employee involves a two-step analysis. The
first step requires the reviewing court to determine whether the
agency's decision is contrary to the manifest weight of the
evidence (Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d 101 (1983); Caliendo v. Martin, 250 Ill. App. 3d 409 (1993))
while bearing in mind that the agency's findings are deemed prima
facie true and correct. 735 ILCS 5/3-110 (West 1992). The
second step requires the reviewing court to determine whether the
agency's findings of fact support the conclusion that sufficient
cause for discharge exists. Walsh, 96 Ill. 2d at 105; Caliendo,
250 Ill. App. 3d at 415.
The County's first contention is that its findings of fact
were not against the manifest weight of the evidence and should
have been affirmed by the trial court. If there is evidence in
the record that supports the administrative agency's decision,
the decision must be sustained on judicial review. Yeksigian v.
City of Chicago, 231 Ill. App. 3d 307 (1992). Because the weight
of the evidence and the credibility of the witness are determined
by the agency, there need only be some competent evidence in the
record to support the decision. Iwanski v. Streamwood Police
Pension Board, 232 Ill. App. 3d 180 (1992). The fact that an
opposite conclusion is reasonable or that the reviewing court
might have ruled differently based on the same evidence does not
justify reversal of the findings of the administrative agency.
King v. Justice Party, 284 Ill. App. 3d 886, 888 (1996). Because
we find there is evidence in the record to support the County's
findings, the findings are not against the manifest weight of the
evidence and should have been affirmed by the trial court.
Cook County rules and regulations governing employee conduct
specifically prohibit employees from mistreating or abusing
employees "in any manner, including loud, abusive, insolent, or
rude behavior, and racial or ethnic slurs." Oak Forest Hosptial
Rules and Regulations Governing Employee Conduct, 2(B)(1)
(1987). Cook County executive order 91-4 specifically prohibits
sexual and racial harassment in employment. Section 2(A)(2)(c)
of executive order 91-4 defines sexual harassment to include
"activities such as unwelcome sexual advances *** or activities
of a sexual nature *** hav[ing] the purpose or effect of
substantially interfering with an individual's work performance
or creating an intimidating, hostile or offensive work
environment." Cook County Exec. Order No. 91-4, 2(A)(2)(c)
(1992). This language mirrors the definition of sexual
harassment found in the Illinois Human Rights Act. 775 ILCS 5/2-
101(E) (West 1992). Title VII of the Civil Rights Act of 1964
also prohibits discrimination on the basis of gender and
prohibits discriminatory conduct that creates a hostile work
environment. 42 U.S.C.S. 2000e-2(a) (1989); Harris v. Forklift
Systems, Inc., 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367
(1993).
In addition, the County's rules and regulations expressly
prohibit harassment on the basis of any other protected status,
including race. In particular, section 2(A)(3) of executive
order 91-4 provides that "[s]lurs and other verbal or physical
conduct relating to a person's membership in a protected status
constitutes harassment when this conduct *** has the purpose or
effect of creating an intimidating, hostile or offensive working
environment *** or unreasonably interfer[es] with an individual's
work performance *** or *** adversely effects an individual's
employment environment." Cook County Exec. Order No. 91-4,
2(A)(3) (1992).
Cook County rules and regulations also prohibit employees
from "fail[ing] to follow instructions or fail[ing] to work in
accordance with County policies, procedures and/or practices" and
from "perform[ing] at less than a satisfactory level in any job
classification." Oak Forest Hospital Rules and Regulations
Governing Employee Conduct, 2(B)(9) and (24) (1987).
O'Sullivan contends that because the definition of sexual
harassment applied by the Hospital closely parallels the language
contained in the Illinois Human Rights Act (775 ILCS 5/2-
101(E)(West 1992)), as well as the prohibition against sexual
harassment found in Title VII (42 U.S.C.S. 2000e-2(a) (1989)),
it is appropriate to look to both federal and Illinois law for
interpretation. However, we note at the outset that this case
does not involve the question of whether O'Sullivan's conduct
violated federal law. Rather, the question is whether
O'Sullivan's conduct violated his employer's rules and policies.
Moreover, Illinois courts have noted that "[the Illinois] Act
need not be applied in lockstep with the Supreme Court's
construction of Title VII." Trayling v. Board of Fire & Police
Commissioners, 273 Ill. App. 3d 1, 11 (1995), citing Geise v.
Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 518 (1994)(stating
that under the Illinois Human Rights Act, employers are strictly
liable for acts of sexual harassment committed by their employees
even though title VII may require additional grounds).
Additionally, the County asserts that based on Chalmers v. Quaker
Oats Co., 859 F. Supp. 1149 (N.D. Ill. 1994), a company can
interpret its own sexual harassment policy more stringently than
federal law.
O'Sullivan relies solely on federal case law and contends
that the alleged incidents complained of are isolated incidents
and are not sufficient to create a hostile work environment under
the standard of Harris v. Forklift Systems, Inc., 510 U.S. 17,
126 L. Ed. 2d 295, 114 S. Ct. 367 (1993). In Harris, the Supreme
Court stated that title VII is violated when the workplace is
permeated with discriminatory behavior that is sufficiently
severe or pervasive to create a discriminatorily hostile or
abusive working environment. Harris, 510 U.S. at 21, 126 L. Ed
2d at 301, 114 S. Ct. at 370 (reaffirming standard stated in
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Under Harris, there must be an
objectively hostile or abusive environment and the victim must
also subjectively perceive the environment as hostile or abusive.
Harris, 510 U.S. at 21-22, 126 L. Ed. 2d at 302, 114 S. Ct. at
370. In determining whether the environment is objectively
hostile, the totality of the circumstances should be analyzed.
Harris, 510 U.S. at 23, 126 L. Ed. 2d at 302-03, 114 S. Ct. at
371. The Court listed the following factors to be considered,
stating that no single factor is required: the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance. Harris, 510 U.S. at 23, 126 L. Ed. 2d at 302-03,
114 S. Ct. at 371.
O'Sullivan contends that there are at most four incidents
attributable to O'Sullivan: the pictures in his office, the
comment regarding Dr. Rush's menstrual cycle, the conversation at
the St. Patrick's Day party, and the remark about the red flag.
O'Sullivan argues that this conduct does not create a hostile
work environment under the Harris test. O'Sullivan cites Saxton
v. American Telephone & Telegraph Co., 10 F.3d 526 (7th Cir.
1993), and Weiss v. Coca Cola Bottling Co., 990 F.2d 333 (7th
Cir. 1993) for examples of behavior that do not rise to sexual
harassment under Title VII.
O'Sullivan likewise contends that the incidents of which
Belle complained were isolated and did not rise to a level of
racial discrimination. O'Sullivan cites Bolden v. PRC Inc., 43 F.3d 545, 550-51 (10th Cir. 1994), and Hong v. Children's
Memorial Hospital, 993 F.2d 1257, 1265 (7th Cir. 1993), for the
proposition that sporadic racial slurs are not enough to support
a claim under title VI. O'Sullivan argues that his refusal to
sign Belle's letter of recommendation to take the engineer's test
was because of Belle's low performance. As for the pictures of
ex-convicts, O'Sullivan denied that he posted the pictures.
O'Sullivan asserts that the two remarks about being "dirty" and
serving "mixed vegetables" do not rise to level of racial slur.
Again, we emphasize that the question for this court to
decide is not whether O'Sullivan's conduct violated federal law.
The issue we must address is whether the record supports the
County's determination. The County, after hearing testimony from
all parties, determined that O'Sullivan violated the County's
rules and regulations. The record supports a finding of employee
abuse based on racial and sexual harassment as well as less than
satisfactory work performance. There is evidence in the record
that O'Sullivan's course of conduct in posting pictures of
females, reference to female employees' menstrual cycles,
assigning progressively difficult tasks to a pregnant employee,
and his refusal to issue a routine letter of verification of work
experience absent a test constitutes "conduct of a sexual nature"
that could be degrading or offensive to a reasonable person under
an objective standard and, therefore, satisfies the Harris test.
O'Sullivan has failed to cite any Illinois law in support of his
argument to the contrary.
Since we find that the County's finding that O'Sullivan
violated the County's policy prohibiting sexual harassment,
employee abuse, and less than satisfactory work performance is
supported by the manifest weight of the evidence, the next issue
for this court to resolve is whether the sanction of discharge
was arbitrary, unreasonable or unrelated to the requirements of
service.
Cause for discharge has been defined by the Illinois Supreme
Court as "some substantial shortcoming which renders continuance
in [the employee's] office or employment in some way detrimental
to the discipline and efficiency of the service and something
which the law and a sound public opinion recognize as a good
cause for [the employee] not longer occupying the place."
Fantozzi v. Board of Fire & Police Commissioners, 27 Ill. 2d 357,
360 (1963); see also Caliendo v. Martin, 250 Ill. App. 3d 409,
418 (1993). In reviewing the County's decision to discharge
O'Sullivan, the question is not whether this court would decide
upon a more lenient sanction than discharge were it to determine
initially what sanction would be appropriate. Sutton v. Civil
Service Comm'n, 91 Ill. 2d 404, 411 (1982). Rather, the question
is whether this court could find, after considering the
circumstances presented, that the County acted unreasonably or
arbitrarily in discharging O'Sullivan, or selected a type of
discipline unrelated to the needs of the department. Sutton, 91 Ill. 2d at 411; Calomino v. Board of Fire & Police Commissioners,
273 Ill. App. 3d 494, 499 (1995).
The County contends that the trial court improperly
substituted its judgment for that of the County when it reversed
the sanction of discharge and remanded for imposition of a
penalty less than discharge. We agree. The trial judge, in
reviewing the County's decision to discharge O'Sullivan, stated
that it was necessary to "balance the equities in these matters."
He inquired into O'Sullivan's pension status and noted that
O'Sullivan worked for the County for 23 years. The trial judge
then stated that "maybe they should have demoted him, or maybe
they should have started him on some course of rehabilitation."
The reviewing court should not substitute its judgment for that
of the County, but should limit its review to a determination of
whether the County acted arbitrarily or unreasonably. Sutton v.
Civil Service Comm'n, 91 Ill. 2d 404 (1982).
Under the County's disciplinary action policy, an employee
can be fired if he commits a major cause infraction; if he is
guilty of a fourth offense; or if he repeated similar infractions
for which there has been progressive discipline. O'Sullivan
contends that because neither sexual nor racial harassment is
listed as a major cause infractions, and because during the 23
years preceding his suspension he never received any reprimands,
progressive discipline was required. However, although the
County does favor progressive discipline, the County recognizes
that progressive discipline is not always feasible. Discipline
may begin at discharge level in the case of a major cause
violation. The County's rules provide that employee abuse is a
major cause violation.
It is not unreasonable to read the prohibition against
"employee abuse" to encompass sexual and racial harassment of
employees. O'Sullivan argues, however, that an interpretation of
the County's rules which includes sexual harassment as a major
cause violation renders the sexual harassment policies of the
County meaningless and defeats their purpose. We disagree. The
sexual harassment policy of the Hospital clearly states that
anyone found to be in violation of the policy will be subject to
disciplinary action ranging from verbal and written warnings to
suspension, demotion or discharge. Likewise, executive order 91-
4 provides that anyone found to have violated the order shall be
subject to employment sanctions, including discharge.
Nevertheless, O'Sullivan contends that under the County's
own rules, he should have received a written or verbal reprimand
and, further, that he was entitled the opportunity to be
counseled and to change his conduct. The County, however, found
that discharge was an appropriate sanction and we agree. The
County noted that because O'Sullivan was a department head, he
was aware of the County's expectations with respect to
discrimination, harassment, or any form of misconduct. The
County also noted there was no indication of regret on the part
of O'Sullivan or that he would change his behavior if reinstated.
The County also found that the complainants' testimony was
credible and that their demeanor and attitude revealed that they
were adversely affected by O'Sullivan's behavior. The County's
decision to discharge was not arbitrary, unreasonable or
unrelated to the requirements of service; therefore, we defer to
the County's conclusion that the circumstances in this case
warranted discharge.
Since we affirm the County's imposition of the sanction of
discharge, we need not address O'Sullivan's contention that he is
entitled to back pay or related benefits from the date of
suspension.
For the aforementioned reasons, we hereby reverse the order
of the circuit court of Cook County remanding the case to the
County for imposition of a sanction less than discharge. We
likewise reverse the order of the circuit court of Cook County
affirming the sanction of demotion. We remand the cause to the
circuit court of Cook County with instructions to enter an order
reinstating the penalty of discharge against O'Sullivan and
dismissing O'Sullivan's cross-appeal.
Reversed and remanded with instructions.
CAMPBELL, P.J. and O'BRIEN, concur.
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