Calabrese v. Chicago Park District
Annotate this Case
SIXTH DIVISION
February 27, 1998
No. 1-96-2462
THOMAS CALABRESE, JR., )
)
Plaintiff-Appellee, )
)
v. )
) Appeal from the
CHICAGO PARK DISTRICT; ) Circuit Court of
PERSONNEL BOARD OF THE CHICAGO ) Cook County
PARK DISTRICT, its members, )
JOHN ROGERS, WILLIAM BARTHOLOMAY, ) No. 94 CH 0010276
MARGARET BURROWS, ANITA CUMMINGS, )
MONA CASTILIO, GEROLD SULLIVAN, ) Honorable
and MICHAEL SCOTT, and its General ) John K. Madden,
Superintendant of Employment, ) Judge Presiding.
BECKY FREDERICK, and SHAPPELE )
SMITH, )
)
Defendants-Appellants. )
JUSTICE QUINN delivered the opinion of the court:
Chicago Park District; Personnel Board of the Chicago Park
District, its members, John Rogers, William Barthomayt, Margaret
Burrows, Anita Cummings, Mona Castillo, Gerold Sullivan, and
Michael Scott, and its General Superintendent of Employment,
Becky Frederick; and Shappelle Smith appeal from a circuit court
judgment affirming in part and reversing in part an
administrative decision by the Personnel Board of the Chicago
Park District (Personnel Board) regarding the suspension of
plaintiff. First, defendants raise a threshold issue in arguing
that the circuit court lacked jurisdiction to hear the appeal
from the Personnel Board's decision. Defendants alternatively
argue that the trial court's decision reversing the Personnel
Board's administrative decision
should be reversed, because the decision of the Personnel Board
was not an abuse of discretion.
For the following reasons, we affirm the decision of the
trial court in part, and reverse in part.
Statement of Facts
In 1989, plaintiff was a Chicago Park District (Park
District) playground supervisor at Augusta Playground. On
September 22, 1989, he was terminated by the Park District for
leaving his assigned location without authorization, failing to
follow proper time-keeping procedures and falsifying his time
sheets. Plaintiff appealed to the Personnel Board, but the
Personnel Board hearing did not take place until February 16,
1994, nearly 4 1/2 years later.
On April 18, 1994, the Personnel Board hearing officer found
that plaintiff was guilty only of failing to follow proper time-
keeping procedures and recommended a 10-day suspension for
plaintiff with back pay and benefits. In an oral decision on
October 11, 1994, the Personnel Board adopted the hearing
officer's recommendation to suspend plaintiff for 10 days, but
denied him back pay and benefits for the five-year period he did
not work. The Personnel Board's decision considered plaintiff's
10-day suspension "time already served," even though he had been
suspended for nearly five years. Plaintiff was reinstated to his
position and returned to work on November 7, 1994.
On November 14, 1994, plaintiff filed a "Motion To
Reconsider The Board's Decision Denying Backpay And Benefits"
with the Personnel Board. On that same date, plaintiff also
filed a complaint in circuit court under section 3-111(a) of the
Administrative Review Law. 735 ILCS 5/3-111(a) (West 1994).
The Personnel Board again heard plaintiff's case on February
22, 1995. On March 8, 1995, the Personnel Board issued a written
decision in conformance with its earlier oral decision. The
decision imposed a 10 day suspension, but considered it as "time
already served." The order stated that the Personnel Board's
decision could be reviewed only in the circuit court of Cook
County.
After the issuance of the March 8, 1995, written decision,
plaintiff filed an amended complaint. Both the original and the
amended complaints sought review only of the portion of the
Personnel Board's decision that denied him back pay and benefits,
and not of the 10-day suspension.
Plaintiff moved for summary judgment. Defendants moved to
dismiss the complaint in the circuit court based on lack of
jurisdiction because the Personnel Board decision stated that the
suspension was only for 10 days, and administrative review is
available only for suspensions over 30 days under the Chicago
Park District Act. 70 ILCS 1505/16a(c)(4)(J) (West 1994). On
November 7, 1995, the trial court denied this motion and instead
reversed the Personnel Board's final decision and remanded the
case to the Personnel Board to determine the amount of back pay,
benefits and interest owed to plaintiff.
On remand, the Personnel Board conducted a back pay hearing
on February 7, 1996. Plaintiff was the only witness who
testified on the matter of mitigation of back pay damages. The
parties stipulated that the gross back pay due to plaintiff
without interest was $150,325.17 for 1989 to 1994. The evidence
at the hearing showed that plaintiff worked for a messenger
service following his discharge in 1989 through the first five
months of 1990. After that, from 1990 through 1993, plaintiff
worked as a Teamster "extra" forklift driver at McCormick Place
Convention Center. The parties stipulated that plaintiff's
earnings from this job should be deducted from his gross back pay
as interim mitigation earnings.
At issue in this appeal is plaintiff's work as a real estate
agent during and after his employment at the Park District. At
the back pay hearing on remand, plaintiff testified to the
following. Starting in 1979, and continuing for 10 years until
his discharge in 1989, plaintiff worked as a real estate agent
part-time, in addition to his full-time job at the Park District.
Plaintiff's Park District schedule was five days per week, from 1
p.m. to 9 p.m. Plaintiff testified that he worked as a real
estate agent in the mornings and on weekends.
While suspended from the Park District, plaintiff continued
his real estate work. Evidence was introduced that, beginning in
1990 and through 1994, plaintiff listed his work in real estate
sales as his occupation on his income tax returns. In 1990,
plaintiff began working for a real estate company and intended at
that point to make it his primary occupation. Plaintiff
testified that later, in 1992, he was looking to pursue another
career, and so he enrolled at Triton College.
From 1990 through 1992, on the days plaintiff was not
working at McCormick Place as a Teamster forklift operator, he
would commonly spend three to four days a week working in real
estate, from five to eight hours a day. In 1993, plaintiff
voluntarily left his employment with the Teamsters. At the
hearing, plaintiff testified that he did not look for other
employment in 1993 and 1994 because his primary occupation at
that time was his real estate work. However, plaintiff testified
that he could have earned the same amount from his real estate
work from 1990 to 1994 had he still been working for the Park
District.
Plaintiff testified that he also did not seek other work in
1994, besides his real estate work, partly because he thought he
would be promptly reinstated after the Personnel Board hearing
officer's recommendation on April 18, 1994, that he be reinstated
at the Park District.
The parties stipulated that plaintiff's total unemployment
compensation while he was on temporary lay-off from his
Teamster's Union position during 1990-94 was $18,062. The
Personnel Board deducted these unemployment benefits from
plaintiff's back pay because he "did not engage in an active,
good faith employment search while he was on lay-off status from
his employment through the Teamsters [and] he put greater effort
into expanding his self-employment as a real estate salesperson."
The trial court affirmed this part of the Personnel Board's
decision. Plaintiff voluntarily withdrew his cross-appeal of
this ruling.
The Personnel Board granted in part and denied in part
plaintiff's claim for back pay and benefits, awarding him a total
of $44,824.41. The Personnel Board issued the final
administrative decision with a supporting memorandum on February
21, 1996. The cash settlement awarded by the Personnel Board
included $11,033.28 in interest, which was calculated at a
prejudgment interest rate of 6% per annum based on the total back
pay due after mitigation. The settlement amount included $323.31
in court filing costs. The Personnel Board also credited
plaintiff with personal time, sick time, and vacation time
equivalent to five years' worth of these benefits.
After the Personnel Board's decision on remand, plaintiff
appealed again, seeking administrative review in circuit court.
Plaintiff was granted leave to file a supplemental complaint on
March 21, 1996, challenging most of the Personnel Board's rulings
on the issues of back pay and benefits. Oral arguments to the
circuit court were held on June 21, 1996.
Defendants again moved to dismiss the case for lack of
subject matter jurisdiction based on the fact that the face of
the order stated that the suspension was only for 10 days.
However, the trial court denied the renewed motion. The trial
court affirmed in part and reversed in part the Personnel Board's
decision on remand, awarding plaintiff $101,062.64 plus $321.31
in costs. The final judgment order was entered on July 3, 1996.
Defendants appeal from this judgment.
After filing this appeal, defendants filed a motion to
dismiss based on lack of subject matter jurisdiction, arguing
that the circuit court never had jurisdiction to hear the case
because the Chicago Park District Act provides for administrative
review only of suspensions over 30 days, and the Chicago Park
District Personnel Board's decision stated that the suspension
was only for 10 days. In his response to this motion, plaintiff
argued that this issue should be reviewed as part of the appeal.
On April 16, 1997, this court entered an order that defendants'
motion be taken with the case. Thus, the motion to dismiss for
lack of jurisdiction is considered as part of this appeal.
Plaintiff initially filed a cross-appeal challenging the
portion of the Personnel Board's decision that credited him with
vacation, sick and personal days rather than giving him back pay
for these days. However, plaintiff voluntarily withdrew the
cross-appeal. Only defendants' appeal and motion to dismiss are
before this court.
Discussion
The threshold issue in this case is whether the
Administrative Review Law is applicable where the oral and
written order of the Personnel Board suspended plaintiff for less
than 30 days, but plaintiff was actually out of work for
approximately five years.
Defendants maintain that the circuit court lacked
jurisdiction to hear the case because the face of the Chicago
Park District's final administrative order suspended plaintiff
for only 10 days, while the Administrative Review Law applies
only to suspensions of more than 30 days. Defendants move this
court to vacate the circuit court's judgment and remand the case
to the circuit court so that plaintiff's complaint seeking
administrative review could be dismissed.
The Chicago Park District Act (the Act) makes the
Administrative Review Law applicable to an administrative
decision of the Chicago Park District regarding discharges and
suspensions. The Act provides the following: "All final
administrative decisions by the personnel board discharging or
suspending, for more than 30 days, an employee *** are subject to
judicial review under the Administrative Review Law." (Emphasis
added.) 70 ILCS 1505/16a(c)(4)(J) (West 1992).
The problem in this case is that it took the Personnel Board
five years to reach a final decision, during which time plaintiff
was suspended without pay. The final decision by the Personnel
Board which imposed a 10-day suspension relegated this case to
the category of administrative decisions unappealable under the
Administrative Review Law.
Whether, and to what extent, action by an administrative
agency is reviewable is a question of statutory interpretation.
Hanrahan v. Williams, 174 Ill. 2d 268, 273, 673 N.E.2d 251
(1996). "While most agency actions are presumed reviewable, no
presumption arises if there is a statutory bar to review or if
statutory language commits the agency decision to unreviewable
agency discretion." Hanrahan, 174 Ill. 2d at 273. Factors to
consider in determining whether the relevant statute precludes
judicial review of the administrative decision include the
statute's express language, the structure of the statutory
scheme, the statute's objectives, legislative history, and the
nature of the administrative action involved. Hanrahan, 174 Ill. 2d at 273.
The Administrative Review Law has two principal objectives:
(1) to eliminate conflicting and inadequate common-law and
statutory remedies for judicial review of decisions of
administrative agencies and substitute a single, uniform, and
comprehensive remedy; and (2) to make available to persons
aggrieved by administrative decisions a judicial review
consistent with due process standards without unduly restricting
the exercise of administrative judgment and the discretion
essential to the effective working of the administrative process.
Orlowski v. Village of Villa Park Board of Fire & Police
Commissioners, 273 Ill. App. 3d 42, 46-47, 652 N.E.2d 366 (1995).
Given the objectives of the Administrative Review Law,
judicial review is not precluded in the instant case. Rather,
given the unusual facts of this case, administrative review
should apply. Here, defendants would have this court vacate the
judgment of the circuit court and remand the case with directions
to dismiss plaintiff's appeal from the decision of the Personnel
Board. However, jurisdiction should be implied in the circuit
court, and thus in this court, where the Chicago Park District's
grievance procedure for a 10-day suspension is inadequate to
review a complaint for back pay for what amounted to a five-year
wrongful termination.
The Chicago Park District Act provides the following:
"Any employee with career service status
shall be discharged or suspended without pay for
more than 30 days only for cause and only upon
written charges for the discharge or suspension.
The employee shall have an opportunity to appeal
the action to the personnel board and to receive a
hearing before the personnel board or a hearing
officer appointed by it. The district may
suspend, without pay, the charged employee pending
a hearing and determination of an appeal by the
personnel board. All final administrative
decisions by the personnel board discharging or
suspending, for more than 30 days, an employee
with career service status are subject to judicial
review, under the Administrative Review Law." 70
ILCS 1505/15a(c)(4)(J) (West 1994).
There is no provision, either in the Act or in the Personnel
Code for Career Service for the Chicago Park District (Personnel
Code), for a minimum or maximum time limit on how long the
Personnel Board may take in reaching a final decision.
In addition, there is limited case law on point. However,
the case that is the most similar to the instant case is Kutz v.
Merit Comm'n, 168 Ill. App. 3d 508, 522 N.E.2d 794 (1988). The
plaintiff in Kutz, an employee of the Department of Personnel of
the Office of the Secretary of State (the Department), was
suspended from his position for 29 days. The plaintiff attempted
to obtain a hearing before the Merit Commission of the Secretary
of State (Merit Comission), but the Department's personnel rules
provided that an employee could obtain a hearing before the Merit
Commission only if he or she was suspended for 30 days or more.
Kutz, 168 Ill. App. 3d at 510. The Merit Commission thus
dismissed the plaintiff's appeal. Kutz, 168 Ill. App. 3d at 510.
The circuit court dismissed the complaint on the theory that if
the Merit Commission did not have jurisdiction to hear the
appeal, then the circuit court did not have jurisdiction either.
Kutz, 168 Ill. App. 3d at 510. This court held that the circuit
court should have heard the administrative review complaint, but
should have affirmed the Merit Commission's dismissal of the
appeal. Kutz, 168 Ill. App. 3d at 510. This court declined to
imply jurisdiction in the Merit Commission where there existed an
adequate grievance procedure, consisting of a three-step process
for suspensions of less than 30 days. Kutz, 168 Ill. App. 3d at
512-13. The relevant statute in Kutz made no express statement
that suspensions of less than 30 days were reviewable, but this
court held that the implication of the statutory scheme was that
such suspensions were reviewable. Kutz, 168 Ill. App. 3d at 512.
This court also held that, even though the Merit Commission
lacked jurisdiction, the circuit court had jurisdiction to review
the Merit Commission's order, and this court had jurisdiction to
review the circuit court's decision. Kutz, 168 Ill. App. 3d at
516.
The court in Kutz declined to imply jurisdiction in the
Merit Commission because there was an adequate grievance
procedure for suspensions of less than 30 days. Kutz, 168 Ill.
App. 3d at 512. The review of such suspensions was conducted in
a three-step process. Kutz, 168 Ill. App. 3d at 512-13.
Here, on the contrary, there is ample indication that the
grievance procedure of the Park District is inadequate to address
the unusual factual situation presented by the instant case. The
grievance procedure provides no redress for an employee who is
suspended for longer than 30 days, but the final order issued by
the Personnel Board is for a suspension of less than 30 days.
Here, plaintiff was suspended, without pay, for five years.
Under a commonsense analysis, the Administrative Review Law
cannot be circumvented in the manner suggested by the defendants.
Five years simply is not equal to 10 days. To hold otherwise
would allow public entities to circumvent judicial review of
their administrative decisions by imposing a retrospective
punishment of less than 30 days for any wrongful disciplinary
action against an employee, even if the employee was out of work
for years.
Under the circumstances presented by this unusual factual
situation, we find that the Chicago Park District Act's provision
for a hearing before the Personnel Board was inadequate. Thus,
jurisdiction should be implied under the Administrative Review
Law. Therefore, we proceed to review the Personnel Board's
decision.
Defendants argue that the trial court exceeded its authority
in crafting its own relief for plaintiff, rather than remanding
the case to the Personnel Board for further proceedings.
However, this argument is unpersuasive because circuit courts
have the authority, under the Administrative Review Law, to do
the following:
"(5) to affirm or reverse the decision in
whole or in part;
***
(8) in case of affirmance or partial
affirmance of an administrative decision which
requires the payment of money, to enter judgment
for the amount justified by the record and for
costs, which judgment may be enforced as other
judgments for the recovery of money." 735 ILCS
5/3-111(a)(5), (8) (West 1994).
Here, the trial court affirmed in part and reversed in part the
Personnel Board's decision. The trial court did not exceed its
authority under the Administrative Review Law. Also, the
question of whether a trial court should remand a case to the
administrative tribunal that rendered a decision for further
hearings is a matter that lies within the discretion of the trial
court. Caliendo v. Martin, 250 Ill. App. 3d 409, 419, 620 N.E.2d 1318 (1993). The trial court's decision to partially
affirm and partially reverse, rather than remand the case, was
not an abuse of discretion.
Defendants argue that the trial court's judgment should be
reversed and that the case should be remanded so that the
Personnel Board's decision could be affirmed by the circuit
court. However, there is no need to remand the case because "[a]
final decision, order, or judgment of the Circuit Court, entered
in an action to review a decision of an administrative agency, is
reviewable by appeal as in other civil cases." 735 ILCS 5/3-112
(West 1994).
An appellate court's role is to review the administrative
decision, not the circuit court decision. Denton v. Civil
Service Comm'n of the State of Illinois, 277 Ill. App. 3d 770,
773, 661, N.E.2d 520 (1996). If an administrative order is
contrary to the manifest weight of the evidence, it is our duty
to set aside the order. Jones v. Illinois Department of
Employment Security, 276 Ill. App. 3d 281, 285, 657 N.E.2d 1141
(1995).
Upon review of administrative decisions, the findings and
conclusions of an administrative agency on questions of fact are
considered prima facie true and correct. Jones, 276 Ill. App. 3d
at 284. An administrative agency's findings will not be
disturbed on review unless such findings are against the manifest
weight of the evidence, after viewing the evidence in a light
most favorable to the agency. Jones, 276 Ill. App. 3d at 284.
An administrative decision is against the manifest weight of the
evidence only if no rational trier of fact could have agreed with
the agency's decision. Jones, 276 Ill. App. 3d at 284. If there
is any evidence that fairly supports the administrative agency's
action, the decision is not against the manifest weight of the
evidence and, must be affirmed. Jones, 276 Ill. App. 3d at 284.
However, "as deferential as this standard of review is, it 'does
not permit Illinois courts to automatically place a stamp of
approval on the findings of the agency merely because [the]
agency heard the witnesses and made the requisite findings.'"
Jones, 276 Ill. App. 3d at 285, quoting Viera v. Illinois Racing
Board, 65 Ill. App. 3d 94, 99, 382 N.E.2d 462 (1978). Thus, we
proceed to review the Personnel Board's decision.
The Personnel Board, in its administrative decision, found
that plaintiff's self-employment as a real estate agent from 1990
to 1994 was incompatible with his full-time employment as a
playground supervisor, and thus offset plaintiff's back pay award
by his real estate income. The Personnel Board also deducted
plaintiff's back pay damages for April 18, 1994, to November 7,
1994, for failure to mitigate damages. The Personnel Board
awarded a rate of prejudgment interest at 6% per annum. The
Personnel Board awarded plaintiff a credit of his back benefit
time, instead of the cash value of those benefits. Finally, the
Personnel Board awarded plaintiff his pension contribution based
on gross back pay after mitigation, rather than premitigation.
The trial court partly reversed and partly affirmed the
Personnel Board's decision in the following respects. The trial
court reversed the portion of the Personnel Board's decision
deducting $36,812 of plaintiff's real estate income from his back
pay award as interim mitigation earnings and ruled that none of
that income should be deducted from the back pay award. The
trial court affirmed the Personnel Board's decision to deduct
$18,062 in unemployment benefits paid during lay-offs in his
interim employment as a Teamster "extra" from plaintiff's back
pay award. The trial court affirmed the Personnel Board's
selection of a 6% interest rate for the back pay award, but
reversed the Personnel Board's decision to compute the interest
as per annum and ruled that the interest rate should be
compounded. The trial court vacated the Personnel Board's
decision to impute $17,356.50 as interim earnings in 1994 for
plaintiff's failure to mitigate damages and ruled that only
$7,500 should be imputed as interim mitigation earnings. The
trial court affirmed the Personnel Board's decision to credit
plaintiff's account with personal days, sick days, and vacation
days, rather than paying him the cash value. Finally, the trial
court reversed the Personnel Board's calculation of plaintiff's
back pay pension benefits on the basis of gross back pay due
after mitigation deductions and ruled that the pension benefits
should be awarded based on the gross back pay due before
deductions for interim earnings.
We affirm the trial court's decision, except as to the
calculation of prejudgment interest as 6% compounded. We reverse
that portion of the trial court's decision and hold that the
Personnel Board's calculation of prejudgment interest as 6% per
annum was correct.
Each of the findings of the Personnel Board raised on appeal
will be analyzed separately.
First, the Personnel Board's ruling that the Park District
could offset plaintiff's back pay by his real estate income was
in error.
The amount recoverable by a wrongfully discharged employee
is to be reduced by the other earnings during that period
"insofar as such income would have been incompatible with
performance of his duties to his erring employer." People ex
rel. Bourne v. Johnson, 32 Ill. 2d 324, 329, 205 N.E.2d 470
(1965). The test for incompatibility is not the amount of
earnings from the secondary employment but, rather, whether there
are "regulatory proscriptions or conflicting hours or duties"
between the primary and secondary jobs. Bourne, 32 Ill. 2d at
329; Board of Education of Berwyn School District No. 100 v.
Metskas, 106 Ill. App. 3d 943, 949, 436 N.E.2d 587 (1982).
Here, plaintiff worked his real estate job in the mornings
and on the weekends before he was suspended, and the hours he
spent on that work did not substantially increase afterwards.
Such a schedule was not inconsistent with working five days a
week at the Park District, from 1:00 to 9:00 p.m. Thus, as
plaintiff's real estate work was not incompatible with his duties
as a playground supervisor, no amount of plaintiff's real estate
income earnings should be used to reduce the amount of his back
pay award.
Both defendants and plaintiff discuss the fact that
plaintiff was a real estate agent during the time he worked for
the Park District prior to his discharge, and defendants also
refer to various "dual employment" documents prior to plaintiff's
discharge. This time frame is irrelevant, however, to the issue
of whether plaintiff's real estate work after his discharge
increased to the point where it was inconsistent with his duties
to the Park District such that offsetting plaintiff's back pay
award was warranted. See Bourne, 32 Ill. 2d at 329; Metskas, 106
Ill. App. 3d at 948-49.
Plaintiff's comparison of the relative incomes earned at his
messenger service job, Teamster position at McCormick Place, and
his real estate work is likewise misplaced. The amount of income
from his work as a real estate agent is irrelevant to the issue
of whether that work was incompatible with his Park District
work. Metskas, 106 Ill. App. 3d at 949.
The instant case is similar to plaintiff's cited case, Board
of Education of Berwyn School District No. 100 v. Metskas, 106
Ill. App. 3d 943, 436 N.E.2d 587 (1982). Metskas held that the
defendant's work as a musician was not incompatible with his
teaching position where he had worked as a musician throughout
the years he had been teaching. Metskas, 106 Ill. App. 3d at
949. In Metskas, the defendant testified that, even after he was
discharged, his work as a musician continued to be compatible
with teaching because he performed only on evenings or weekends.
Metskas, 106 Ill. App. 3d at 949.
Similarly, here plaintiff's real estate work continued to be
compatible with his work as a playground supervisor because he
primarily worked on mornings and weekends. The burden falls on
the employer, not the discharged employee, to prove the amount of
mitigation earnings in order to reduce the damage award. Bourne,
32 Ill. 2d at 329. The Personnel Board's finding that
plaintiff's employment as a real estate agent from 1990-94 was
incompatible with his employment as a Park District playground
supervisor was against the manifest weight of the evidence.
Thus, the portion of the trial court's decision reversing the
Personnel Board on this issue is affirmed.
Second, the trial court's ruling that only $7,500 should be
deducted from plaintiff's back pay award for failure to mitigate
damages for the period April 18, 1994, to November 7, 1994, is
affirmed because the Personnel Board's decision to impute
$17,356.50 as interim earnings was not supported by the evidence.
A wrongfully discharged employee must act to mitigate his
damages by seeking similar employment, and his damages will be
reduced by those sums that he could have earned through the
exercise of reasonable diligence in seeking employment. Arneson
v. Board of Trustees, 210 Ill. App. 3d 844, 851-52, 569 N.E.2d 252 (1991).
Here, the Personnel Board hearing officer recommended on
April 18, 1994, that plaintiff be reinstated at the Park
District. The Park District did not reinstate plaintiff until
November 7, 1994, even though the Park District itself agreed
plaintiff should only have been suspended for 10 days. The Park
District failed to meet its burden under Bourne of proving that
plaintiff's earnings during this period would have been
$17,356.50. See Bourne, 32 Ill. 2d at 329. Nothing in the
record indicates that the trial court's determination of $7,500
as imputed mitigation earnings was against the manifest weight of
the evidence. Therefore, we affirm this portion of the trial
court's decision.
Third, the Personnel Board applied a 6% interest rate in the
computation of the entire back pay award, to be computed per
annum. Plaintiff withdrew his cross-appeal of the portion of the
Personnel Board's ruling selecting 6%. The trial court affirmed
the 6% rate, but reversed the portion of the Personnel Board's
order that applied this rate per annum, and instead ordered the
Park District to pay interest at 6% compounded.
Here, the Personnel Board did not abuse its discretion in
awarding an interest rate of 6% per annum. The Interest Act (815
ILCS 205/2 (West 1994)) provides for a prejudgment interest rate
of 5%. The Interest Act applies to creditors. 815 ILCS 205/2
(West 1994). However, prejudgment interest may be awarded where
the amount due is liquidated and readily ascertainable, as it is
here. 815 ILCS 205/2 (West 1994). See Dow v. Columbus-Cabrini
Medical Center, 274 Ill. App. 3d 653, 659, 655 N.E.2d 1 (1995)
(where this court applied the prejudgment interest provision of
the Interest Act in a suit by an employee against his former
employer for the value of his unused sick-day time). The award
of prejudgment interest at a rate of 6% per annum is not an abuse
of discretion. See Licciardi v. Collins, 180 Ill. App. 3d 1051,
1064, 536 N.E.2d 840 (1989) (where an award of 5% prejudgment
interest, rather than 6.74% compounded daily, was not an abuse of
discretion).
Also, the Personnel Board did not abuse its discretion in
partially relying on the postjudgment interest statute (735 ILCS
5/2-1303 (West 1994)). In its ruling, the Personnel Board
recognized that there is no specific statutory provision
governing the award of prejudgment interest on back pay in a case
of wrongful suspension or discharge. Therefore, the Personnel
Board looked to section 2-1303 of the Code of Civil Procedure for
guidance because it "represent[s] a statement by the Legislature
addressing what interest should be charged against a public body
such as the Park District when a judgment has been entered
against it." The Personnel Board properly looked to section 2-
1303 in an attempt to ascertain legislative intent and properly
awarded an interest rate of 6% per annum. There is no relevant
statutory provision requiring a different calculation of the
interest rate.
Thus, plaintiff has not shown that the Personnel Board's
decision to compute the interest rate per annum is an abuse of
discretion and, further, has not pointed to relevant authority
that would mandate a different ruling. Therefore, the
computation of the interest rate at 6% per annum should have been
affirmed by the trial court. We reverse the trial court's
decision in this respect.
Finally, the Personnel Board awarded plaintiff an amount of
pension contributions based on his gross back pay after deducting
interim earnings and imputed earnings due to failure to mitigate.
The trial court held that these pension contributions should have
been computed based on plaintiff's back pay before deductions for
interim earnings. We affirm the trial court.
Neither defendants nor plaintiff cites to any authority that
is on point. The Chicago Park District Act does not cover this
issue. However, the guiding principle is that a wrongfully
discharged employee should be placed as close to the position he
would have occupied had he not been discharged, no better, no
worse. Glenn v. City of Chicago, 256 Ill. App. 3d 825, 839
(1993). Glenn cited Clark v. Human Rights Comm'n, 141 Ill. App.
3d 178 (1986), which defined "whole" as "meaning that it should
put the claimant in the position he or she would have been in
respecting salary, raises, sick leave, vacation pay, pension
benefits and other fringe benefits, but for the discriminatory
act." (Emphasis added.) Clark, 141 Ill. App. 3d at 182.
Further, "ambiguities should be resolved against the
discriminating employer, since the employer's wrongful act gave
rise to the uncertainty." Clark, 141 Ill. App. 3d at 183.
Because plaintiff's pension contributions would have been
calculated based on his gross pay, he is entitled to have his
back pay pension contributions calculated based on his gross back
pay before deducting $7,500 in imputed interim earnings in 1994
for plaintiff's failure to mitigate and before deducting the
monies earned as a Teamsters "extra" or the monies received from
unemployment compensation while on layoffs from the Teamsters
job. This is especially appropriate since plaintiff earned no
credit toward any pension from any of these interim mitigation
earning sources.
For the above reasons, we affirm the judgment of the circuit
court in part and reverse in part.
Affirmed in part and reversed in part.
CAMPBELL, P.J., and GREIMAN, J., concur.
February 27, 1998
No. 1-96-2462
THOMAS CALABRESE, JR., )
)
Plaintiff-Appellee, )
)
v. )
) Appeal from the
CHICAGO PARK DISTRICT; ) Circuit Court of
PERSONNEL BOARD OF THE CHICAGO ) Cook County
PARK DISTRICT, its members, )
JOHN ROGERS, WILLIAM BARTHOLOMAY, ) No. 94 CH 0010276
MARGARET BURROWS, ANITA CUMMINGS, )
MONA CASTILIO, GEROLD SULLIVAN, ) Honorable
and MICHAEL SCOTT, and its General ) John K. Madden,
Superintendant of Employment, ) Judge Presiding.
BECKY FREDERICK, and SHAPPELE )
SMITH, )
)
Defendants-Appellants. )
JUSTICE QUINN delivered the opinion of the court:
Chicago Park District; Personnel Board of the Chicago Park
District, its members, John Rogers, William Barthomayt, Margaret
Burrows, Anita Cummings, Mona Castillo, Gerold Sullivan, and
Michael Scott, and its General Superintendent of Employment,
Becky Frederick; and Shappelle Smith appeal from a circuit court
judgment affirming in part and reversing in part an
administrative decision by the Personnel Board of the Chicago
Park District (Personnel Board) regarding the suspension of
plaintiff. First, defendants raise a threshold issue in arguing
that the circuit court lacked jurisdiction to hear the appeal
from the Personnel Board's decision. Defendants alternatively
argue that the trial court's decision reversing the Personnel
Board's administrative decision
should be reversed, because the decision of the Personnel Board
was not an abuse of discretion.
For the following reasons, we affirm the decision of the
trial court in part, and reverse in part.
Statement of Facts
In 1989, plaintiff was a Chicago Park District (Park
District) playground supervisor at Augusta Playground. On
September 22, 1989, he was terminated by the Park District for
leaving his assigned location without authorization, failing to
follow proper time-keeping procedures and falsifying his time
sheets. Plaintiff appealed to the Personnel Board, but the
Personnel Board hearing did not take place until February 16,
1994, nearly 4 1/2 years later.
On April 18, 1994, the Personnel Board hearing officer found
that plaintiff was guilty only of failing to follow proper time-
keeping procedures and recommended a 10-day suspension for
plaintiff with back pay and benefits. In an oral decision on
October 11, 1994, the Personnel Board adopted the hearing
officer's recommendation to suspend plaintiff for 10 days, but
denied him back pay and benefits for the five-year period he did
not work. The Personnel Board's decision considered plaintiff's
10-day suspension "time already served," even though he had been
suspended for nearly five years. Plaintiff was reinstated to his
position and returned to work on November 7, 1994.
On November 14, 1994, plaintiff filed a "Motion To
Reconsider The Board's Decision Denying Backpay And Benefits"
with the Personnel Board. On that same date, plaintiff also
filed a complaint in circuit court under section 3-111(a) of the
Administrative Review Law. 735 ILCS 5/3-111(a) (West 1994).
The Personnel Board again heard plaintiff's case on February
22, 1995. On March 8, 1995, the Personnel Board issued a written
decision in conformance with its earlier oral decision. The
decision imposed a 10 day suspension, but considered it as "time
already served." The order stated that the Personnel Board's
decision could be reviewed only in the circuit court of Cook
County.
After the issuance of the March 8, 1995, written decision,
plaintiff filed an amended complaint. Both the original and the
amended complaints sought review only of the portion of the
Personnel Board's decision that denied him back pay and benefits,
and not of the 10-day suspension.
Plaintiff moved for summary judgment. Defendants moved to
dismiss the complaint in the circuit court based on lack of
jurisdiction because the Personnel Board decision stated that the
suspension was only for 10 days, and administrative review is
available only for suspensions over 30 days under the Chicago
Park District Act. 70 ILCS 1505/16a(c)(4)(J) (West 1994). On
November 7, 1995, the trial court denied this motion and instead
reversed the Personnel Board's final decision and remanded the
case to the Personnel Board to determine the amount of back pay,
benefits and interest owed to plaintiff.
On remand, the Personnel Board conducted a back pay hearing
on February 7, 1996. Plaintiff was the only witness who
testified on the matter of mitigation of back pay damages. The
parties stipulated that the gross back pay due to plaintiff
without interest was $150,325.17 for 1989 to 1994. The evidence
at the hearing showed that plaintiff worked for a messenger
service following his discharge in 1989 through the first five
months of 1990. After that, from 1990 through 1993, plaintiff
worked as a Teamster "extra" forklift driver at McCormick Place
Convention Center. The parties stipulated that plaintiff's
earnings from this job should be deducted from his gross back pay
as interim mitigation earnings.
At issue in this appeal is plaintiff's work as a real estate
agent during and after his employment at the Park District. At
the back pay hearing on remand, plaintiff testified to the
following. Starting in 1979, and continuing for 10 years until
his discharge in 1989, plaintiff worked as a real estate agent
part-time, in addition to his full-time job at the Park District.
Plaintiff's Park District schedule was five days per week, from 1
p.m. to 9 p.m. Plaintiff testified that he worked as a real
estate agent in the mornings and on weekends.
While suspended from the Park District, plaintiff continued
his real estate work. Evidence was introduced that, beginning in
1990 and through 1994, plaintiff listed his work in real estate
sales as his occupation on his income tax returns. In 1990,
plaintiff began working for a real estate company and intended at
that point to make it his primary occupation. Plaintiff
testified that later, in 1992, he was looking to pursue another
career, and so he enrolled at Triton College.
From 1990 through 1992, on the days plaintiff was not
working at McCormick Place as a Teamster forklift operator, he
would commonly spend three to four days a week working in real
estate, from five to eight hours a day. In 1993, plaintiff
voluntarily left his employment with the Teamsters. At the
hearing, plaintiff testified that he did not look for other
employment in 1993 and 1994 because his primary occupation at
that time was his real estate work. However, plaintiff testified
that he could have earned the same amount from his real estate
work from 1990 to 1994 had he still been working for the Park
District.
Plaintiff testified that he also did not seek other work in
1994, besides his real estate work, partly because he thought he
would be promptly reinstated after the Personnel Board hearing
officer's recommendation on April 18, 1994, that he be reinstated
at the Park District.
The parties stipulated that plaintiff's total unemployment
compensation while he was on temporary lay-off from his
Teamster's Union position during 1990-94 was $18,062. The
Personnel Board deducted these unemployment benefits from
plaintiff's back pay because he "did not engage in an active,
good faith employment search while he was on lay-off status from
his employment through the Teamsters [and] he put greater effort
into expanding his self-employment as a real estate salesperson."
The trial court affirmed this part of the Personnel Board's
decision. Plaintiff voluntarily withdrew his cross-appeal of
this ruling.
The Personnel Board granted in part and denied in part
plaintiff's claim for back pay and benefits, awarding him a total
of $44,824.41. The Personnel Board issued the final
administrative decision with a supporting memorandum on February
21, 1996. The cash settlement awarded by the Personnel Board
included $11,033.28 in interest, which was calculated at a
prejudgment interest rate of 6% per annum based on the total back
pay due after mitigation. The settlement amount included $323.31
in court filing costs. The Personnel Board also credited
plaintiff with personal time, sick time, and vacation time
equivalent to five years' worth of these benefits.
After the Personnel Board's decision on remand, plaintiff
appealed again, seeking administrative review in circuit court.
Plaintiff was granted leave to file a supplemental complaint on
March 21, 1996, challenging most of the Personnel Board's rulings
on the issues of back pay and benefits. Oral arguments to the
circuit court were held on June 21, 1996.
Defendants again moved to dismiss the case for lack of
subject matter jurisdiction based on the fact that the face of
the order stated that the suspension was only for 10 days.
However, the trial court denied the renewed motion. The trial
court affirmed in part and reversed in part the Personnel Board's
decision on remand, awarding plaintiff $101,062.64 plus $321.31
in costs. The final judgment order was entered on July 3, 1996.
Defendants appeal from this judgment.
After filing this appeal, defendants filed a motion to
dismiss based on lack of subject matter jurisdiction, arguing
that the circuit court never had jurisdiction to hear the case
because the Chicago Park District Act provides for administrative
review only of suspensions over 30 days, and the Chicago Park
District Personnel Board's decision stated that the suspension
was only for 10 days. In his response to this motion, plaintiff
argued that this issue should be reviewed as part of the appeal.
On April 16, 1997, this court entered an order that defendants'
motion be taken with the case. Thus, the motion to dismiss for
lack of jurisdiction is considered as part of this appeal.
Plaintiff initially filed a cross-appeal challenging the
portion of the Personnel Board's decision that credited him with
vacation, sick and personal days rather than giving him back pay
for these days. However, plaintiff voluntarily withdrew the
cross-appeal. Only defendants' appeal and motion to dismiss are
before this court.
Discussion
The threshold issue in this case is whether the
Administrative Review Law is applicable where the oral and
written order of the Personnel Board suspended plaintiff for less
than 30 days, but plaintiff was actually out of work for
approximately five years.
Defendants maintain that the circuit court lacked
jurisdiction to hear the case because the face of the Chicago
Park District's final administrative order suspended plaintiff
for only 10 days, while the Administrative Review Law applies
only to suspensions of more than 30 days. Defendants move this
court to vacate the circuit court's judgment and remand the case
to the circuit court so that plaintiff's complaint seeking
administrative review could be dismissed.
The Chicago Park District Act (the Act) makes the
Administrative Review Law applicable to an administrative
decision of the Chicago Park District regarding discharges and
suspensions. The Act provides the following: "All final
administrative decisions by the personnel board discharging or
suspending, for more than 30 days, an employee *** are subject to
judicial review under the Administrative Review Law." (Emphasis
added.) 70 ILCS 1505/16a(c)(4)(J) (West 1992).
The problem in this case is that it took the Personnel Board
five years to reach a final decision, during which time plaintiff
was suspended without pay. The final decision by the Personnel
Board which imposed a 10-day suspension relegated this case to
the category of administrative decisions unappealable under the
Administrative Review Law.
Whether, and to what extent, action by an administrative
agency is reviewable is a question of statutory interpretation.
Hanrahan v. Williams, 174 Ill. 2d 268, 273, 673 N.E.2d 251
(1996). "While most agency actions are presumed reviewable, no
presumption arises if there is a statutory bar to review or if
statutory language commits the agency decision to unreviewable
agency discretion." Hanrahan, 174 Ill. 2d at 273. Factors to
consider in determining whether the relevant statute precludes
judicial review of the administrative decision include the
statute's express language, the structure of the statutory
scheme, the statute's objectives, legislative history, and the
nature of the administrative action involved. Hanrahan, 174 Ill. 2d at 273.
The Administrative Review Law has two principal objectives:
(1) to eliminate conflicting and inadequate common-law and
statutory remedies for judicial review of decisions of
administrative agencies and substitute a single, uniform, and
comprehensive remedy; and (2) to make available to persons
aggrieved by administrative decisions a judicial review
consistent with due process standards without unduly restricting
the exercise of administrative judgment and the discretion
essential to the effective working of the administrative process.
Orlowski v. Village of Villa Park Board of Fire & Police
Commissioners, 273 Ill. App. 3d 42, 46-47, 652 N.E.2d 366 (1995).
Given the objectives of the Administrative Review Law,
judicial review is not precluded in the instant case. Rather,
given the unusual facts of this case, administrative review
should apply. Here, defendants would have this court vacate the
judgment of the circuit court and remand the case with directions
to dismiss plaintiff's appeal from the decision of the Personnel
Board. However, jurisdiction should be implied in the circuit
court, and thus in this court, where the Chicago Park District's
grievance procedure for a 10-day suspension is inadequate to
review a complaint for back pay for what amounted to a five-year
wrongful termination.
The Chicago Park District Act provides the following:
"Any employee with career service status
shall be discharged or suspended without pay for
more than 30 days only for cause and only upon
written charges for the discharge or suspension.
The employee shall have an opportunity to appeal
the action to the personnel board and to receive a
hearing before the personnel board or a hearing
officer appointed by it. The district may
suspend, without pay, the charged employee pending
a hearing and determination of an appeal by the
personnel board. All final administrative
decisions by the personnel board discharging or
suspending, for more than 30 days, an employee
with career service status are subject to judicial
review, under the Administrative Review Law." 70
ILCS 1505/15a(c)(4)(J) (West 1994).
There is no provision, either in the Act or in the Personnel
Code for Career Service for the Chicago Park District (Personnel
Code), for a minimum or maximum time limit on how long the
Personnel Board may take in reaching a final decision.
In addition, there is limited case law on point. However,
the case that is the most similar to the instant case is Kutz v.
Merit Comm'n, 168 Ill. App. 3d 508, 522 N.E.2d 794 (1988). The
plaintiff in Kutz, an employee of the Department of Personnel of
the Office of the Secretary of State (the Department), was
suspended from his position for 29 days. The plaintiff attempted
to obtain a hearing before the Merit Commission of the Secretary
of State (Merit Comission), but the Department's personnel rules
provided that an employee could obtain a hearing before the Merit
Commission only if he or she was suspended for 30 days or more.
Kutz, 168 Ill. App. 3d at 510. The Merit Commission thus
dismissed the plaintiff's appeal. Kutz, 168 Ill. App. 3d at 510.
The circuit court dismissed the complaint on the theory that if
the Merit Commission did not have jurisdiction to hear the
appeal, then the circuit court did not have jurisdiction either.
Kutz, 168 Ill. App. 3d at 510. This court held that the circuit
court should have heard the administrative review complaint, but
should have affirmed the Merit Commission's dismissal of the
appeal. Kutz, 168 Ill. App. 3d at 510. This court declined to
imply jurisdiction in the Merit Commission where there existed an
adequate grievance procedure, consisting of a three-step process
for suspensions of less than 30 days. Kutz, 168 Ill. App. 3d at
512-13. The relevant statute in Kutz made no express statement
that suspensions of less than 30 days were reviewable, but this
court held that the implication of the statutory scheme was that
such suspensions were reviewable. Kutz, 168 Ill. App. 3d at 512.
This court also held that, even though the Merit Commission
lacked jurisdiction, the circuit court had jurisdiction to review
the Merit Commission's order, and this court had jurisdiction to
review the circuit court's decision. Kutz, 168 Ill. App. 3d at
516.
The court in Kutz declined to imply jurisdiction in the
Merit Commission because there was an adequate grievance
procedure for suspensions of less than 30 days. Kutz, 168 Ill.
App. 3d at 512. The review of such suspensions was conducted in
a three-step process. Kutz, 168 Ill. App. 3d at 512-13.
Here, on the contrary, there is ample indication that the
grievance procedure of the Park District is inadequate to address
the unusual factual situation presented by the instant case. The
grievance procedure provides no redress for an employee who is
suspended for longer than 30 days, but the final order issued by
the Personnel Board is for a suspension of less than 30 days.
Here, plaintiff was suspended, without pay, for five years.
Under a commonsense analysis, the Administrative Review Law
cannot be circumvented in the manner suggested by the defendants.
Five years simply is not equal to 10 days. To hold otherwise
would allow public entities to circumvent judicial review of
their administrative decisions by imposing a retrospective
punishment of less than 30 days for any wrongful disciplinary
action against an employee, even if the employee was out of work
for years.
Under the circumstances presented by this unusual factual
situation, we find that the Chicago Park District Act's provision
for a hearing before the Personnel Board was inadequate. Thus,
jurisdiction should be implied under the Administrative Review
Law. Therefore, we proceed to review the Personnel Board's
decision.
Defendants argue that the trial court exceeded its authority
in crafting its own relief for plaintiff, rather than remanding
the case to the Personnel Board for further proceedings.
However, this argument is unpersuasive because circuit courts
have the authority, under the Administrative Review Law, to do
the following:
"(5) to affirm or reverse the decision in
whole or in part;
***
(8) in case of affirmance or partial
affirmance of an administrative decision which
requires the payment of money, to enter judgment
for the amount justified by the record and for
costs, which judgment may be enforced as other
judgments for the recovery of money." 735 ILCS
5/3-111(a)(5), (8) (West 1994).
Here, the trial court affirmed in part and reversed in part the
Personnel Board's decision. The trial court did not exceed its
authority under the Administrative Review Law. Also, the
question of whether a trial court should remand a case to the
administrative tribunal that rendered a decision for further
hearings is a matter that lies within the discretion of the trial
court. Caliendo v. Martin, 250 Ill. App. 3d 409, 419, 620 N.E.2d 1318 (1993). The trial court's decision to partially
affirm and partially reverse, rather than remand the case, was
not an abuse of discretion.
Defendants argue that the trial court's judgment should be
reversed and that the case should be remanded so that the
Personnel Board's decision could be affirmed by the circuit
court. However, there is no need to remand the case because "[a]
final decision, order, or judgment of the Circuit Court, entered
in an action to review a decision of an administrative agency, is
reviewable by appeal as in other civil cases." 735 ILCS 5/3-112
(West 1994).
An appellate court's role is to review the administrative
decision, not the circuit court decision. Denton v. Civil
Service Comm'n of the State of Illinois, 277 Ill. App. 3d 770,
773, 661, N.E.2d 520 (1996). If an administrative order is
contrary to the manifest weight of the evidence, it is our duty
to set aside the order. Jones v. Illinois Department of
Employment Security, 276 Ill. App. 3d 281, 285, 657 N.E.2d 1141
(1995).
Upon review of administrative decisions, the findings and
conclusions of an administrative agency on questions of fact are
considered prima facie true and correct. Jones, 276 Ill. App. 3d
at 284. An administrative agency's findings will not be
disturbed on review unless such findings are against the manifest
weight of the evidence, after viewing the evidence in a light
most favorable to the agency. Jones, 276 Ill. App. 3d at 284.
An administrative decision is against the manifest weight of the
evidence only if no rational trier of fact could have agreed with
the agency's decision. Jones, 276 Ill. App. 3d at 284. If there
is any evidence that fairly supports the administrative agency's
action, the decision is not against the manifest weight of the
evidence and, must be affirmed. Jones, 276 Ill. App. 3d at 284.
However, "as deferential as this standard of review is, it 'does
not permit Illinois courts to automatically place a stamp of
approval on the findings of the agency merely because [the]
agency heard the witnesses and made the requisite findings.'"
Jones, 276 Ill. App. 3d at 285, quoting Viera v. Illinois Racing
Board, 65 Ill. App. 3d 94, 99, 382 N.E.2d 462 (1978). Thus, we
proceed to review the Personnel Board's decision.
The Personnel Board, in its administrative decision, found
that plaintiff's self-employment as a real estate agent from 1990
to 1994 was incompatible with his full-time employment as a
playground supervisor, and thus offset plaintiff's back pay award
by his real estate income. The Personnel Board also deducted
plaintiff's back pay damages for April 18, 1994, to November 7,
1994, for failure to mitigate damages. The Personnel Board
awarded a rate of prejudgment interest at 6% per annum. The
Personnel Board awarded plaintiff a credit of his back benefit
time, instead of the cash value of those benefits. Finally, the
Personnel Board awarded plaintiff his pension contribution based
on gross back pay after mitigation, rather than premitigation.
The trial court partly reversed and partly affirmed the
Personnel Board's decision in the following respects. The trial
court reversed the portion of the Personnel Board's decision
deducting $36,812 of plaintiff's real estate income from his back
pay award as interim mitigation earnings and ruled that none of
that income should be deducted from the back pay award. The
trial court affirmed the Personnel Board's decision to deduct
$18,062 in unemployment benefits paid during lay-offs in his
interim employment as a Teamster "extra" from plaintiff's back
pay award. The trial court affirmed the Personnel Board's
selection of a 6% interest rate for the back pay award, but
reversed the Personnel Board's decision to compute the interest
as per annum and ruled that the interest rate should be
compounded. The trial court vacated the Personnel Board's
decision to impute $17,356.50 as interim earnings in 1994 for
plaintiff's failure to mitigate damages and ruled that only
$7,500 should be imputed as interim mitigation earnings. The
trial court affirmed the Personnel Board's decision to credit
plaintiff's account with personal days, sick days, and vacation
days, rather than paying him the cash value. Finally, the trial
court reversed the Personnel Board's calculation of plaintiff's
back pay pension benefits on the basis of gross back pay due
after mitigation deductions and ruled that the pension benefits
should be awarded based on the gross back pay due before
deductions for interim earnings.
We affirm the trial court's decision, except as to the
calculation of prejudgment interest as 6% compounded. We reverse
that portion of the trial court's decision and hold that the
Personnel Board's calculation of prejudgment interest as 6% per
annum was correct.
Each of the findings of the Personnel Board raised on appeal
will be analyzed separately.
First, the Personnel Board's ruling that the Park District
could offset plaintiff's back pay by his real estate income was
in error.
The amount recoverable by a wrongfully discharged employee
is to be reduced by the other earnings during that period
"insofar as such income would have been incompatible with
performance of his duties to his erring employer." People ex
rel. Bourne v. Johnson, 32 Ill. 2d 324, 329, 205 N.E.2d 470
(1965). The test for incompatibility is not the amount of
earnings from the secondary employment but, rather, whether there
are "regulatory proscriptions or conflicting hours or duties"
between the primary and secondary jobs. Bourne, 32 Ill. 2d at
329; Board of Education of Berwyn School District No. 100 v.
Metskas, 106 Ill. App. 3d 943, 949, 436 N.E.2d 587 (1982).
Here, plaintiff worked his real estate job in the mornings
and on the weekends before he was suspended, and the hours he
spent on that work did not substantially increase afterwards.
Such a schedule was not inconsistent with working five days a
week at the Park District, from 1:00 to 9:00 p.m. Thus, as
plaintiff's real estate work was not incompatible with his duties
as a playground supervisor, no amount of plaintiff's real estate
income earnings should be used to reduce the amount of his back
pay award.
Both defendants and plaintiff discuss the fact that
plaintiff was a real estate agent during the time he worked for
the Park District prior to his discharge, and defendants also
refer to various "dual employment" documents prior to plaintiff's
discharge. This time frame is irrelevant, however, to the issue
of whether plaintiff's real estate work after his discharge
increased to the point where it was inconsistent with his duties
to the Park District such that offsetting plaintiff's back pay
award was warranted. See Bourne, 32 Ill. 2d at 329; Metskas, 106
Ill. App. 3d at 948-49.
Plaintiff's comparison of the relative incomes earned at his
messenger service job, Teamster position at McCormick Place, and
his real estate work is likewise misplaced. The amount of income
from his work as a real estate agent is irrelevant to the issue
of whether that work was incompatible with his Park District
work. Metskas, 106 Ill. App. 3d at 949.
The instant case is similar to plaintiff's cited case, Board
of Education of Berwyn School District No. 100 v. Metskas, 106
Ill. App. 3d 943, 436 N.E.2d 587 (1982). Metskas held that the
defendant's work as a musician was not incompatible with his
teaching position where he had worked as a musician throughout
the years he had been teaching. Metskas, 106 Ill. App. 3d at
949. In Metskas, the defendant testified that, even after he was
discharged, his work as a musician continued to be compatible
with teaching because he performed only on evenings or weekends.
Metskas, 106 Ill. App. 3d at 949.
Similarly, here plaintiff's real estate work continued to be
compatible with his work as a playground supervisor because he
primarily worked on mornings and weekends. The burden falls on
the employer, not the discharged employee, to prove the amount of
mitigation earnings in order to reduce the damage award. Bourne,
32 Ill. 2d at 329. The Personnel Board's finding that
plaintiff's employment as a real estate agent from 1990-94 was
incompatible with his employment as a Park District playground
supervisor was against the manifest weight of the evidence.
Thus, the portion of the trial court's decision reversing the
Personnel Board on this issue is affirmed.
Second, the trial court's ruling that only $7,500 should be
deducted from plaintiff's back pay award for failure to mitigate
damages for the period April 18, 1994, to November 7, 1994, is
affirmed because the Personnel Board's decision to impute
$17,356.50 as interim earnings was not supported by the evidence.
A wrongfully discharged employee must act to mitigate his
damages by seeking similar employment, and his damages will be
reduced by those sums that he could have earned through the
exercise of reasonable diligence in seeking employment. Arneson
v. Board of Trustees, 210 Ill. App. 3d 844, 851-52, 569 N.E.2d 252 (1991).
Here, the Personnel Board hearing officer recommended on
April 18, 1994, that plaintiff be reinstated at the Park
District. The Park District did not reinstate plaintiff until
November 7, 1994, even though the Park District itself agreed
plaintiff should only have been suspended for 10 days. The Park
District failed to meet its burden under Bourne of proving that
plaintiff's earnings during this period would have been
$17,356.50. See Bourne, 32 Ill. 2d at 329. Nothing in the
record indicates that the trial court's determination of $7,500
as imputed mitigation earnings was against the manifest weight of
the evidence. Therefore, we affirm this portion of the trial
court's decision.
Third, the Personnel Board applied a 6% interest rate in the
computation of the entire back pay award, to be computed per
annum. Plaintiff withdrew his cross-appeal of the portion of the
Personnel Board's ruling selecting 6%. The trial court affirmed
the 6% rate, but reversed the portion of the Personnel Board's
order that applied this rate per annum, and instead ordered the
Park District to pay interest at 6% compounded.
Here, the Personnel Board did not abuse its discretion in
awarding an interest rate of 6% per annum. The Interest Act (815
ILCS 205/2 (West 1994)) provides for a prejudgment interest rate
of 5%. The Interest Act applies to creditors. 815 ILCS 205/2
(West 1994). However, prejudgment interest may be awarded where
the amount due is liquidated and readily ascertainable, as it is
here. 815 ILCS 205/2 (West 1994). See Dow v. Columbus-Cabrini
Medical Center, 274 Ill. App. 3d 653, 659, 655 N.E.2d 1 (1995)
(where this court applied the prejudgment interest provision of
the Interest Act in a suit by an employee against his former
employer for the value of his unused sick-day time). The award
of prejudgment interest at a rate of 6% per annum is not an abuse
of discretion. See Licciardi v. Collins, 180 Ill. App. 3d 1051,
1064, 536 N.E.2d 840 (1989) (where an award of 5% prejudgment
interest, rather than 6.74% compounded daily, was not an abuse of
discretion).
Also, the Personnel Board did not abuse its discretion in
partially relying on the postjudgment interest statute (735 ILCS
5/2-1303 (West 1994)). In its ruling, the Personnel Board
recognized that there is no specific statutory provision
governing the award of prejudgment interest on back pay in a case
of wrongful suspension or discharge. Therefore, the Personnel
Board looked to section 2-1303 of the Code of Civil Procedure for
guidance because it "represent[s] a statement by the Legislature
addressing what interest should be charged against a public body
such as the Park District when a judgment has been entered
against it." The Personnel Board properly looked to section 2-
1303 in an attempt to ascertain legislative intent and properly
awarded an interest rate of 6% per annum. There is no relevant
statutory provision requiring a different calculation of the
interest rate.
Thus, plaintiff has not shown that the Personnel Board's
decision to compute the interest rate per annum is an abuse of
discretion and, further, has not pointed to relevant authority
that would mandate a different ruling. Therefore, the
computation of the interest rate at 6% per annum should have been
affirmed by the trial court. We reverse the trial court's
decision in this respect.
Finally, the Personnel Board awarded plaintiff an amount of
pension contributions based on his gross back pay after deducting
interim earnings and imputed earnings due to failure to mitigate.
The trial court held that these pension contributions should have
been computed based on plaintiff's back pay before deductions for
interim earnings. We affirm the trial court.
Neither defendants nor plaintiff cites to any authority that
is on point. The Chicago Park District Act does not cover this
issue. However, the guiding principle is that a wrongfully
discharged employee should be placed as close to the position he
would have occupied had he not been discharged, no better, no
worse. Glenn v. City of Chicago, 256 Ill. App. 3d 825, 839
(1993). Glenn cited Clark v. Human Rights Comm'n, 141 Ill. App.
3d 178 (1986), which defined "whole" as "meaning that it should
put the claimant in the position he or she would have been in
respecting salary, raises, sick leave, vacation pay, pension
benefits and other fringe benefits, but for the discriminatory
act." (Emphasis added.) Clark, 141 Ill. App. 3d at 182.
Further, "ambiguities should be resolved against the
discriminating employer, since the employer's wrongful act gave
rise to the uncertainty." Clark, 141 Ill. App. 3d at 183.
Because plaintiff's pension contributions would have been
calculated based on his gross pay, he is entitled to have his
back pay pension contributions calculated based on his gross back
pay before deducting $7,500 in imputed interim earnings in 1994
for plaintiff's failure to mitigate and before deducting the
monies earned as a Teamsters "extra" or the monies received from
unemployment compensation while on layoffs from the Teamsters
job. This is especially appropriate since plaintiff earned no
credit toward any pension from any of these interim mitigation
earning sources.
For the above reasons, we affirm the judgment of the circuit
court in part and reverse in part.
Affirmed in part and reversed in part.
CAMPBELL, P.J., and GREIMAN, J., concur.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
