Schmeier v. Chicago Park District

SECOND DIVISION
September 30, 1998


No. 1-96-3054

MAUREEN SCHMEIER,

Plaintiff-Appellee,

v.

CHICAGO PARK DISTRICT, et al,

Defendant-Appellants.
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)Appeal from the
Circuit Court of
Cook County

Honorable
Stephen Schiller,
Judge Presiding.


JUSTICE GORDON delivered the opinion of the court:

Defendants the Chicago Park District (the District) and the Personnel
Board of the Chicago Park District (the Board) appeal an order of the Circuit
Court of Cook County reversing the decision of the Board and reinstating
Plaintiff Maureen Schmeier to her position with the District with full back
pay.
The District hired Schmeier as a gymnastics instructor in August 1991.
In September 1992 Schmeier filed a charge against the District with the
Illinois Local Labor Relations Board, naming her supervisor, Jacquelyn White,
and White's assistant, Monte Kimes, as offenders. [FN1] Later in September
Schmeier was suspended from employment because she had allowed her United
States Gymnastics Federation ("USGF") safety certification to lapse.
Approximately three weeks after her suspension Schmeier became recertified and
was reinstated in her position.
In November 1992 White brought disciplinary charges against Schmeier,
asking for an immediate emergency suspension and recommending that she be
terminated because she allegedly threatened violence against White and Kimes.
Schmeier was suspended for approximately 8 months for the purported threats
pending a hearing. Additional charges (see below) were raised before a "pre-
suspension" meeting in May 1993. Schmeier was terminated after that meeting,
in June 1993. The Acting Attorney General of the District sent Schmeier a
"Statement of Charges Resulting in Termination" in June, which revealed she
had been terminated for three types of misconduct:
"(1) Ms. Schmeier made verbal threats of physical violence against
her supervisors during her temporary assignment at Whitney Young
in October/November, 1992.
(2) While employed in the gymnastics program, Ms. Schmeier
repeatedly engaged in inappropriate conduct by making racially
offensive and derogatory remarks to co-workers, which created a
disruptive and discordant work environment and adversely affected
staff morale and efficiency of program operations.
(3) Ms. Schmeier improperly destroyed Park District property while
assigned to the Sherman Park gymnastics center by cutting rolls of
floor exercise matting without approval or authorization, thereby
voiding the manufacturer's product warranty and rendering the
matting useless for its intended purpose."
In July 1993 Schmeier requested a hearing and review of this decision.
The matter was set for a hearing before a hearing officer [FN2] in April 1994.
The charges considered at the hearing were both Schmeier's lapsed USGF
certification (which resulted in her suspension) and the three charges stated
above (which were the basis for her termination).
At the hearing the District called 8 witnesses. Its first witness was
White. White testified that she had been with the District since 1955, and
had been in charge of the gymnastics program since it was established in 1989.
She stated that the program was instituted with the aim of making gymnastics
accessible to the underprivileged in inner city areas, and it had a large
minority enrollment--approximately 60-65 percent African-American, plus a
significant Hispanic population. White had supervisory control of the
gymnastics instructors at all times Schmeier was employed by the District, as
did her assistant, Monte Kimes, whose title with the District was Program
Coordinator.
White stated that Schmeier's regular assignment was Sherman Park, at
51st and Racine. White believed it would be classified as an inner city area.
The population was almost 100 percent African-American. White stated that
Schmeier was informed during the interview process that she would be assigned
to that location, because she was hired specifically to fill the vacancy
created when Preston Knauf, the previous instructor at Sherman Park, left to
become a stuntman at Disney World. Schmeier said she had worked with inner
city kids before, and there would be no problem.
White stated Schmeier's performance was acceptable during the first 6
months of her employment, which was a probationary period for District
employees. However, after the probationary period ended, Schmeier seemed
constantly to complain. White gave the example of Schmeier's concern about
not having a working telephone in the building to which she was assigned,
although there was one across the street, less than 30 feet away.
White stated that USGF certification was important both to keep
instructors aware of how to keep the gym safe and also for insurance purposes.
To be certified by the USGF an instructor had to take and pass a 6 or 9-hour
course, and had to be recertified every four years. White believed Schmeier
was USGF certified when she was first hired, but subsequently allowed her
certification to lapse. The District discovered her certification had lapsed
through Kimes, Schmeier's assistant. Kimes was a safety certifier, and White
said the instructors' certifications were frequently checked. When it was
discovered that Schmeier's certification had lapsed, she was suspended until
she became re-certified. White was not aware that Schmeier ever offered to
explain why her certification had lapsed.
White also was aware of an incident in which Schmeier allegedly made
threats of physical violence, although she was not present when the threats
were made. When White began to relate the details of the incident, counsel
for Schmeier objected that her testimony was hearsay. Counsel for the
District stated that the information was not being offered for the truth of
the matter asserted, but rather only to show "what the basis for her
subsequent actions were, whether or not what she was told was true or false."
The Hearing Officer allowed White to testify, but only for this purpose.
White testified that another Gymnastics Instructor for the District,
Hong Jiang, told her that Schmeier "had threatened some type of physical
violence against her supervisors if she in fact got fired," namely, that she
would shoot White and Kimes. White took the alleged threat very seriously.
It was because of Jiang's information that White asked for the emergency
suspension of Schmeier.
Disciplinary charges were also brought against Schmeier for making
racially offensive or derogatory remarks. Again, when White began to discuss
details, Schmeier's attorney objected on hearsay grounds, and again the
Hearing Officer allowed White to testify only for the purpose of establishing
a foundation for her subsequent actions, not for the truth of what White had
been told. White said her secretary, Barbara Collins (who is African-
American), had told her that Schmeier had once referred to "gang bangers" as
her (Collins's) "brothers and sisters" in relation to an incident in which
Schmeier's husband was robbed. White believed Collins felt Schmeier had used
"brothers and sisters" in a very derogatory manner, and White thought Collins
felt Schmeier was a bigot and was very upset by the incident.
White testified she received similar complaints from other employees.
She testified that Daryl Harden and George Martenia told her Schmeier had
offered them a ride home, and while in the car she said "she didn't know being
in a black park meant dealing with gang bangers, that your brothers and
sisters, something to that effect, were gang bangers." Also, she received a
memo from Lloyd Bachrach (District Exhibit 12) which stated that Schmeier
"seems to lack patience with black students."
The final basis for Schmeier's termination was destruction of District
property. White received a memo from Kimes (District Exhibit 17), which
stated that foam underlying the floor exercise mats at Sherman Park had been
cut. Although the memo did not mention Schmeier's name, White inferred that
it had been she who had cut the foam. White explained that the gyms were set
up in September and broken down in May; there was no indication the foam had
been cut when the gym was set up in September; and Schmeier had been the only
instructor working at Sherman Park.
Finally, White was asked to summarize the reasons for her request that
the District terminate Schmeier's employment. She stated that her primary
complaint was that she did not think Schmeier wanted to work in the inner
city. She also thought Schmeier was not happy with the District, and her
skill level was "at best mediocre." She stated that the District could have
helped her through clinics, but "you can't come into the type of program we
have and be a bigot." She explained that by the last statement she meant she
believed Schmeier "does not like black people or working with black people,
and does not treat them fairly." When she was asked if there were any other
reasons, she stated that Schmeier "just didn't fit with the program, because
of her attitude toward the inner city." White did not mention the alleged
threat.
On cross-examination White stated that enrollment in the gymnastics
program at Sherman Park increased by approximately 10-15 percent when Schmeier
took over. White also admitted that she never actually measured the distance
between the building to which Schmeier was assigned and the building which
contained a telephone. White stated that she had not solicited any of the
written complaints from their authors. She did ask Jiang to put something in
writing regarding what he had heard Schmeier say because she "was in fear of
[her] life." She admitted that although she did suspend Schmeier and talked
to the District's attorneys, she never called the police about the threat.
White did not know when Schmeier initially made the threat to which Jiang
referred, but thought it was in September or October 1992. She assumed
Collins, her secretary, typed the statement for Jiang (District Exhibit 11),
"because he came into the office, and I could not understand all he said, he
was so excited it sounded like gibberish, so I asked her to type it." She
stated she did not understand him all the time, because he speaks rapidly and
in an animated fashion.
White did not see Schmeier cut any mats, but she did hear Schmeier make
racial remarks about African-Americans. White stated that more than once
Schmeier "has referred to them [sic] as 'those people' or gang bangers, or
gang infested, or drug addicts, or many, many things that she has said about
the black people at Sherman Park when she became unhappy working there."
[Nonpublishable material under Supreme Court Rule 23 omitted.]
The District's sixth witness [FN3] was Hong Jiang, another gymnastics
instructor with the District, who testified regarding a conversation with
Schmeier in November 1992. When Jiang was first asked what he heard Schmeier
say, he said she had said the District was giving her a hard time, but she was
not going to quit, and if she were fired, "she was going sue them [sic]."
After this response, the following colloquy occurred:
"Q [Mr. McVane]. Now, this is important for everyone's sake.
Could you say what you just said again and speak slowly so he can
get this on record?
A [Jiang]. She say--okay. She not going quit, but if somebody
make her quit, she will going sue them. That's--
Q. Just for my clarification, what did she say she was going to
do if they made her quit? What word did she use?
A. She say she was going to sue them.
Q. Going to what?
A. Sue them.
Q. What do you mean by that?
A. Means like use a gun. I don't know."
***
Q [Hearing Officer]. Is that--that you are using the word that's
associated with a gun; is that right?
A. But at that time, I--because I worried. I don't thinking that
way, that's why I think just talk--
Q [McVane]. Mr. Jiang, please, we just want to make sure right
now what words you are using. So the Hearing Officer is asking
you when you made that statement as far as what Ms. Schmeier said
to you, was she referring to the use of a like a firearm or a gun,
for example? Is that what the [sic] word she used? Did she say
shoot?
A. I see. In my mind, I think I remember she says shoot them.
Q. Shoot.
"Q [Hearing Officer]. Let the record show it's still not clear
whether he is saying shoot or sue.
Mr. Jiang, I am going to ask you a question. If I say the word I
am going to sue them, what am I talking about?
A. You mean going use gun.
Q. If I say I am going to shoot them, what does it mean?
A. Means go to court."
Jiang did not tell anyone about the alleged threat of violence for a few days,
because he did not believe Schmeier would actually do it. However, a few days
later he decided to tell Kimes, and later that day he met with both Kimes and
White and repeated what Schmeier had said. Afterwards, he went down to
White's office and repeated it again to Collins, who typed a statement for him
(District Exhibit 11). He read it to make sure it was correct, and signed it.
As transcribed, Jiang read Exhibit 11 aloud at the hearing to state "if she
were to ever get fired, she would shoot them."
[Nonpublishable material under Supreme Court Rule 23 omitted.]
Schmeier took the stand on her own behalf. She affirmed that she had
been suspended for three weeks in 1992 for allowing her USGF certification to
lapse, but stated that she had not known before her suspension that she had to
keep a current certification, only that she had to have one when she applied
or obtain one within 60 days thereafter.
She stated that she did not remember exactly what she said to Jiang at
Whitney Young in 1992, but stated that at that time she had recently filed a
second complaint with the Illinois Labor Relations Board, so it was very
possible she would have been talking about suing. She did not remember
telling him she was going to sue, but she remembered being at Whitney Young,
talking with him and saying she was unhappy. She stated she never indicated
to Jiang that she would shoot anyone; she is not a violent person by nature,
does not own a handgun, and does not allow her children to play with toy guns
or watch violent television shows.
She remembered having given Martenia and Harden rides home more than
once, and specifically once in or about September 1992. She did not remember
making any derogatory statements about African-Americans, nor any statements
indicating that all African-Americans were muggers or drug dealers, or stating
that there were gangs in African-American areas. She admitted that her
husband had been robbed in July or August 1992, and she did tell at least some
people in the District about it because the day it happened she took personal
leave to be with him. She did not specifically recall talking with Harden and
Martenia about the incident, but admitted it was possible she had. At first
she did not remember anything specific that she said during the van ride with
Martenia and Harden, but then recalled that she had talked about requesting a
transfer out of Sherman Park because it was a depressed economic area, and
there were gangs. She stated that what upset her was the fact that she was
alone in a building until 9:00 at night with no telephone. She said people
had warned her it was an African-American park when she took the job, but said
she did not care; it was not until she began working that she realized it was
a dangerous situation because of the late hours and lack of a telephone.
Schmeier knew that Bachrach had written a letter to White about her at
White's request, but she had not seen it until the hearing. After he told her
that White had requested the letter she asked him several times if she was
doing anything wrong, and he always told her she was doing fine.
She did remember speaking with Collins shortly after her husband had
been robbed. She was very upset at what had happened, but did not volunteer
that the robber was African-American; rather, she told Collins this only after
Collins asked her. She never stated that African-Americans were robbers and
thugs. She stated that she had given Collins rides home on more than one
occasion.
Schmeier stated that some mats were cut when she arrived at Sherman Park
in August 1991. She did not know who had cut the mats, and she never cut any
herself. Kimes visited the gymnastics center at Sherman Park between four and
six times from August 1991 through the summer of 1992 and never said anything
to her about the mats being cut. She admitted she had moved some equipment
and mats with the help of Reggie Dominic in 1992, but she did not cut any
mats.
Schmeier testified that she never made any comment at Whitney Young to
the effect of being surprised that African-Americans could swim; in the summer
of 1992 she was assigned to Broadway Armory, not Whitney Young. She was
assigned to North Avenue Beach at one point, but did not think she spoke to
Knight. [FN4]
In September 1994 the Hearing Officer issued his recommended decision.
After a 27 page recitation of the evidence, he analyzed each of the four
charges separately. He upheld Schmeier's three-week suspension for allowing
her USGF certification to lapse, but felt it would be inappropriate to base
her termination on this charge, as it would constitute double punishment.
Regarding the second charge, that Schmeier had threatened physical
violence against her supervisors, the Hearing Officer held the District had
"presented no credible evidence that Ms. Schmeier ever made any
threats of physical harm to anyone. All testimony in support of
the district's accusation is based upon what Hong Jeong [sic] said
he thought he heard Ms. Schmeier say. However, it is clear that
Mr. Jeong, because of his lack of fluency in the English language,
cannot distinguish between the words 'shoot' and 'sue.'"
In corroboration of the foregoing, the Hearing Officer noted that the alleged
threat did not appear to have been taken seriously, as no one called the
police or filed a charge, nor did anyone keep Schmeier from work or from co-
employees or park patrons. The Officer also found the testimony regarding
Schmeier's non-violent disposition undercut the likelihood of her having made
such a threat. He therefore found "the charge that Ms. Schmeier was fired
because she threatened to cause physical hard [sic] to her supervisors lacks
credibility and is groundless."
The Hearing Officer identified the charge of Schmeier's racist conduct
and statements as "the most serious and troublesome" of the charges against
her. Nevertheless, he found the charge did not support her termination. He
noted that the portion of the District's Code of Conduct which the District
charged that this conduct violated was section I-E, which states "An employee
shall be respectful and polite in conduct while on duty or on park property."
Assuming that Schmeier did make the statements of which she was accused, the
Officer noted that the comments to Martenia and Harden did not violate section
I-E, because they occurred off park property and off duty. The comments to
students about which Bachrach testified were not relevant to the charge
against her, which was specifically that she "engaged in inappropriate conduct
by making racially offensive and derogatory remarks to co-workers, which
created a disruptive and discordant work environment and adversely affected
staff morale and efficiency of program operations." Nor had any employee
testified regarding any effect Schmeier's statements might have had on the
work environment, staff morale or efficiency of program operations. However,
the reason the Hearing Officer finally concluded this charge did not support
Schmeier's termination was the District's Guidelines for Discipline. Because
disrespectful, impolite conduct was not listed as "Group A" (most serious) or
"Group B" (second most serious) misconduct, he reasoned, it could only be
"Group C" misconduct--for which termination was allowed only for the third
violation after the District had rendered two previous penalties, including an
oral or written reprimand and a 5-30 day suspension. Thus this charge would
not support her termination.
The Hearing Officer also held that termination was not supported by the
final charge, which attributed to Schmeier the destruction of District
property by the cutting of the mats at Sherman Park. First, he concluded
there was insufficient evidence that Schmeier had actually been the one who
had cut the mats. He characterized Kimes's investigation as "cursory at best"
and noted that the testimony of Harden that Reggie Dominic had told him that
he had helped Schmeier cut the mats was inadmissible hearsay. He also noted
that even assuming it was Schmeier who cut the mats, there was no evidence to
support a finding that she had cut them in "such a manner as would be
considered 'willful or malicious' destruction of [District] property--and
therefore subject to discipline under Group A misconduct--or 'grossly
negligent damage' under Group B." Thus, as with the charge of the racist
remarks, the conduct would not support a termination even if she had engaged
in it.
The Officer concluded that the District had wrongfully terminated
Schmeier and she should be reinstated with back pay and benefits to put her in
the same position as if she had not been terminated.
Becky Frederick, Superintendent of Employment and Secretary of the
Personnel Board, sent Schmeier a copy of the Hearing Officer's decision with
an accompanying letter stating that
"[e]xceptions must be filed in writing and received by the Office
of the Superintendent of Employment, *** no later than ten (10)
calendar days after the date of this letter.
Timely filed exceptions will be considered by the Personnel Board
together with the Hearing Officer's recommended decision. The
Board will thereupon render its final decision on the case."
The District filed exceptions in August 1995, approximately 11 months
after the Hearing Officer's recommendation was issued. It first noted that
Schmeier's failure to maintain USGF certification had not been advanced as a
basis for her termination, but rather had been presented to the Hearing
Officer separately, in its own right, to determine whether the initial 3-week
suspension had been validly imposed. The termination was not predicated on
the certification lapse, but on the other three charges, namely, the
aforementioned alleged threats, racist speech and property destruction. The
District argued each of these charges had been proven by a preponderance of
the evidence and requested that the Board reject the Hearing Officer's
recommended decision and affirm both the suspension and termination of
Schmeier.
The Board held hearings on the case twice, once in August 1995 and once
in September. On October 26, 1995, the Board issued two orders. One order
affirmed the Hearing Officer's recommendation to uphold the suspension for
failure to maintain certification. The second order agreed with the Hearing
Officer that termination was inappropriate. However, it went on to reject the
recommendation that Schmeier be reinstated with back pay. The Board ordered
that termination would be commuted to suspension from June 30, 1993 to October
23, 1995; it reinstated her effective October 23, but without back pay or
benefits. The Board also required Schmeier to "participate in a racial
sensitivity training session to be arranged by the Department of Personnel"
and placed her on strict disciplinary review for one year. However, the
Board's order made no reference to the propriety of Schmeier's 8-month
emergency suspension for the alleged threats pending her hearing.
The Order of the Board did not contain any factual findings. In
addition to the absence of factual determinations, the Board did not state
what provisions of the Code of Conduct it determined Schmeier to have
violated, nor pursuant to which provision(s) of the District's Guidelines for
Discipline the discipline was imposed.
Schmeier appealed to the Circuit Court of Cook County. Her Complaint
was in two counts. Count I sounded in administrative review, and requested
that the Court "reverse those portions of the October 26, 1995 Order [of the
Board] which reversed, or did not sustain, any portion of the Recommendation
of the Hearing Officer," award her "full back pay and benefits as if she had
not been terminated or suspended from October 20, 1992, to October 23, 1995,"
and order that she not be required to participate in the racial sensitivity
training session nor placed on strict disciplinary review. Count II, which
alleged a violation of her constitutional rights, is not before us on this
appeal.
After the complaint had twice been amended, the court by written order
granted Schmeier's motion for judgment on count I "consistent with the
decision rendered in open court." At the hearing to which the court's written
order referred, the court stated that with respect to count I it would "grant
the relief prayed. That is, that the Petitioner's personnel record be
expunged of references to suspension, that any benefits or salary lost be
reinstated," because "the record filed with this Court is insufficient to
support the action taken by the Personnel Board." The court found its
decision on Count I was a final and appealable order under Supreme Court Rule
304(a) (155 Ill. 2d R. 304(a)) and that there was no just reason to delay
enforcement or appeal of its ruling on Count I. The Board has now brought
this appeal from the court's ruling on Count I.
In essence, the issues raised by the Board are relatively
straightforward. It argues it was not required to adopt the Hearing Officer's
findings, and this Court should treat its Order as containing implicit factual
findings--different from the Hearing Officer's--which support its Order. If
we are not willing to infer findings from its order, it argues the proper mode
of proceeding is not to reverse outright, but rather to remand the case to the
Board with directions to make findings. Second, it argues the facts and law
support its resolution of the case. Specifically, it argues its (implicit)
finding that Schmeier had committed disciplinary violations (especially the
act of threatening her supervisors) was supported by the record and was not
against the manifest weight of the evidence and its decision to suspend
Schmeier for two years and four months was within its discretion since it
would have been justified in terminating her. Finally it argues the
District's lateness in filing with the Board its exceptions to the Hearing
Officer's Recommendation should have no effect on the outcome of the case.
Schmeier argues that the District's late filing of exceptions should
have barred it from objecting to the Hearing Officer's Recommendation. In the
alternative, she argues that the Board had the obligation to make explicit
factual findings sufficient to support its order, and its failure to do so is
grounds for outright reversal. She argues the length of the suspension in
this case was an abuse of discretion. And she argues that even if we were to
accept the Board's argument regarding "implicit" findings of fact, we should
hold those findings to have been against the manifest weight of the evidence.
ANALYSIS
I. Jurisdiction
As a preliminary matter, the Board and the District have filed a motion
in this court to dismiss for lack of subject-matter jurisdiction any portion
of the Circuit Court's order and this appeal which deal with Schmeier's 3-week
suspension for failure to maintain her USGF certification. They argue that
since the Act only provides for appeal to the circuit court of terminations or
suspensions of 30 days or more, this less-than-30-day suspension is not
properly appealable.
We deny the motion as moot, as our review of Schmeier's Circuit Court
complaint reveals that she only requested reversal of "those portions of the
October 26, 1995 Order which reversed, or did not sustain, any portion of the
Recommendation of the Hearing Officer." The Hearing Officer had recommended
that the 3-week suspension was reasonable and should be upheld, and
accordingly the Board's separate order affirming the 3-week suspension was not
put at issue in the circuit court. Nor did Schmeier request relief from the
3-week suspension in any other portion of her Circuit Court brief. We find
this order was not appealed from, and thus the question whether it could have
been appealed is moot. We do not believe the Circuit Court purported to grant
relief on this issue. To do so would be to act beyond its jurisdiction, since
the suspension was not the subject of Schmeier's appeal.
II. Merits
On the merits of the appeal, the general rule in administrative review
is that the findings of the agency are presumed prima facie true and correct
(735 ILCS 5/3-110 (West 1996)), and will not be overturned unless against the
manifest weight of the evidence. Abrahamson v. Illinois Dept. of Professional
Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992). Findings are
against the manifest weight of the evidence only when it is "clearly evident"
that the opposite conclusion from that at which the agency arrived is the
correct one. Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117. The law is
settled that it is the findings of the agency which are entitled to deference,
not the findings of a hearing officer or administrative law judge (ALJ). This
is true even when the agency's findings differ from those of the hearing
officer and the agency has not had the opportunity to observe the witnesses.
Starkey v. Civil Service Comm'n, 97 Ill. 2d 91, 101, 454 N.E.2d 265, 269
(1983).
The Board is correct that it need not adopt the Hearing Officer's
findings. Starkey, 97 Ill. 2d at 101, 454 N.E.2d at 269. Schmeier argues
that an agency may only reject the findings of a Hearing Officer or ALJ if
those findings are against the manifest weight of the evidence, citing
Department of Corrections v. Adams, 146 Ill. App. 3d 173, 181, 496 N.E.2d 1138, 1143 (1986). We find Adams inapposite. Adams involved the Human Rights
Commission, which was required by statute to adopt a hearing officer's
findings "'if they are not contrary to the manifest weight of the evidence.'"
Adams, 146 Ill. App. 3d at 180, 496 N.E.2d at 1143, quoting Ill. Rev. Stat.
1983, ch. 68, para. 8-107(E)(1) (now renumbered at 775 ILCS 5/8A-103(E)(1)
(West 1996)). Our attention has not been drawn to any statute or rule
requiring the Personnel Board of the Chicago Park District to accord deference
to the factual findings of its hearing officers. Thus, in this case the rule
as articulated in Starkey applies, pursuant to which the Board may review the
conclusions of its hearing officer de novo. See Lachenmyer v. Didrickson, 263
Ill. App. 3d 382, 386-87, 636 N.E.2d 93, 97-98 (1994), quoting Gregory v.
Bernardi, 125 Ill. App. 3d 376, 379, 465 N.E.2d 1052, 1056 (1984) (the State
of Illinois Department of Employment Security Board of Review, although not
entitled to conduct a de novo hearing (i.e., it must consider the evidence
adduced before the hearing officer), "'is to make its own independent
assessment of the evidence on record and need not defer to the findings of the
referee'").
Schmeier next contends as grounds for reversal the fact that in this
case the Board did not make any findings in support of its decision. Its one-
page order simply provided that it had "heard" the Hearing Officer's
recommendation and received the District's exceptions. Without making any
explicit findings of fact nor stating whether it agreed or disagreed with any
of the findings of the Hearing Officer, it made its decision. The Board
argues that based on the District's Guidelines for Discipline (Guidelines),
which it asserts are controlling in this case, we should infer findings of
fact--or at least one finding of fact--from its result. We disagree.
The Guidelines provide for 3 categories of misconduct: Group A, which
comprises the most serious infractions an employee may commit; Group B, which
is of intermediate severity; and Group C, the least severe. What punishment
may be administered to an employee for misconduct depends on how the
misconduct is classified. The penalty for Group A misconduct is
"[t]ermination for first offense, absent mitigating circumstances justifying a
less serious penalty"; Group B misconduct may be punished by a 10-30 day
suspension or termination for a first offence and a 30-day suspension or
termination for subsequent offenses; and Group C misconduct may be punished by
an oral or written reprimand or a 1-10 day suspension for a first offense, a
5-30 day suspension for a second offense, and a 30-day suspension or
termination for a third or subsequent offense.
According to the Hearing Officer, only Schmeier's threat against her
supervisors would constitute Group A misconduct. Counsel for the Board
admitted at oral arguments that only the threat charge would fit within Group
A, and warrant the punishment imposed on Schmeier. Even had the Board not so
conceded, examination of the Guidelines reflects the findings of the Hearing
Officer that none of the other infractions charged against the plaintiff,
including the charges involving racially tainted or offensive speech and
destruction of property, [FN5] fall within the definition of Group A or Group
B misconduct. Under the Guidelines these charges would therefore by
definition constitute Group C misconduct, which is defined as "misconduct ***
or the failure satisfactorily to perform the duties of the person's job other
than actions defined as Group A or B misconduct." As the Board has not called
our attention to any prior instances of Group C misconduct, it appears that
neither of these two charges could properly have been the basis of a
suspension of more than ten days, much less the over two-year suspension
imposed on Schmeier in this case.
The Board argues we should infer from the fact that Schmeier was
suspended for more than 30 days that it found she had committed the alleged
threats, and we should affirm that determination because it is not against the
manifest weight of the evidence. If we are not willing to infer that it found
Schmeier had made the threat, it argues, the proper remedy is to remand for
the Board to make factual findings, not to reverse outright.
Schmeier points out that there is a strong basis for rejecting the
inference that the Board found she had made the threats. If the Board had
found she had threatened to kill her fellow employees, she argues, it would
have terminated her outright instead of returning her to work, and if the
District or her co-workers had taken the threat seriously they would have
contacted the police or its own internal security unit. She argues
additionally that even if we do infer that the Board found she had made the
threat, and we apply the manifest weight of the evidence standard of review to
that finding, the finding was against the manifest weight of the evidence.
Schmeier draws our attention to Bell v. Civil Service Comm'n, 161 Ill.
App. 3d 644, 515 N.E.2d 248 (1987), which rejected an administrative agency's
decision as "arbitrary and unreasonable" because the agency failed to set
forth any facts to support its decision. Bell, 161 Ill. App. 3d at 651, 515 N.E.2d at 252; see also Austin v. Civil Service Comm'n, 247 Ill. App. 3d 399,
405, 617 N.E.2d 349, 353 (1993). However, Bell and Austin involved review of
an order of the Civil Service Commission, an agency subject to the
requirements of the Administrative Procedure Act (APA) (5 ILCS 100/1-1 et seq.
(West 1996)). See Bell, 161 Ill. App. 3d at 651, 515 N.E.2d at 252; Austin,
247 Ill. App. 3d at 405, 617 N.E.2d at 353. The APA requires that in
contested cases, "[a] final decision shall include findings of fact and
conclusions of law, separately stated." 5 ILCS 100/10-50(a) (West 1994).
The Board does not appear to be subject to the APA. The APA only
applies to agencies (5 ILCS 100/1-5 (West 1996)) as it defines them:
"each officer, board, commission, and agency created by the
Constitution, whether in the executive, legislative, or judicial
branch of State government, but other than the circuit court;
each officer, department, board, commission, agency, institution,
authority, university, and body politic and corporate of the
State; each administrative unit or corporate outgrowth of the
State government that is created by or pursuant to statute, other
than units of local government and their officers, school
districts, and boards of election commissioners; and each
administrative unit or corporate outgrowth of the above and as may
be created by executive order of the Governor." (Emphasis added.)
5 ILCS 100/1-20 (West 1996).
Clearly the Board is an administrative unit created pursuant to statute,
specifically, the Chicago Park District Act (Park Act) (see 70 ILCS
1505/16a(c)(2) (West 1996)). However, the APA does not apply to it because it
is a unit of local government and is therefore specifically exempted from its
provisions. The Illinois Constitution of 1970 defines units of local
government as "counties, municipalities, townships, special districts, and
units, designated as units of local government by law, which exercise limited
governmental powers or powers in respect to limited governmental subjects, but
does not include school districts." (Emphasis added.) IL Const. 1970, Art.
VII,  1. The District is created by Chapter 70 of the Illinois Compiled
Statutes--entitled "Special Districts"--and it fits the definition of a
"relatively autonomous local government which provides a single service." See
Chicago Transit Authority v. Danaher, 40 Ill. App. 3d 913, 917, 353 N.E.2d 97,
100 (1976), citing Anderson and Louisin, From Bone Gap to Chicago: A History
of the Local Government Article of the 1970 Illinois Constitution, 9 J.
Marshall J. of Prac. & Proc. 700, n. 8 (1976). Since the Board was created by
the board of commissioners of the District (see 70 ILCS 1505/16a(c)(2) (West
1996)), the Board is an outgrowth of the District. Thus it is not an "agency"
as that term is used in the APA, and section 10-50 of the APA does not apply
to it. Accordingly, the holdings of Bell and Austin are inapposite.
However, this does not mean that we must adopt the Board's suggested
modus operandi, and (1) assume that it made factual findings which would
render its order not an abuse of discretion, (2) search the record to figure
out what such findings it could have made, and (3) uphold those findings which
we guess the Board to have made unless they are against the manifest weight of
the evidence. There are serious problems with this suggested approach, not
the least of which is that it would appear to eliminate the possibility of a
finding that the agency had abused its discretion. When an agency states its
factual conclusions and states what action it is taking based on those
findings, this Court may determine whether the agency has abused its
discretion and will reverse when it has done so. See Cook County State's
Attorney v. Illinois State Labor Relations Board, 292 Ill. App. 3d 1, 684 N.E.2d 970, 973 (1997). Under the Board's proposal there is no possibility of
such a finding unless its findings are against the manifest weight of the
evidence, because we must assume that the agency made factual findings which
would support its action. Effectively, this court would become an advocate
for the agency.
The Board cites O'Boyle v. Personnel Bd. of City of Chicago, 119 Ill.
App. 3d 648, 657, 456 N.E.2d 998, 1005 (1983) and Mahonie v. Edgar, 131 Ill.
App. 3d 175, 476 N.E.2d 474 (1985) for the proposition that an administrative
agency is not required to make specific findings of fact in its final order.
These cases are unconvincing. Mahonie performs no analysis in reaching the
above conclusion except citing to O'Boyle. Mahonie, 131 Ill. App. 3d at 178,
476 N.E.2d at 477. O'Boyle, in turn, performs no analysis, and cites Suttle
v. Police Bd. of City of Chicago, 11 Ill. App. 3d 576, 579, 297 N.E.2d 174,
176 (1973) and Massey v. Fire and Police Commission of City of Mt. Vernon, 26
Ill. App. 2d 147, 150, 167 N.E.2d 810, 812 (1960). The administrative
decision being appealed in Suttle contained findings of fact sufficient to
support its conclusion (11 Ill. App. 3d 576, 579, 297 N.E.2d 174, 176), and
the appellant in Massey admitted all the details of all the charges brought
against him (26 Ill. App. 2d at 148, 167 N.E.2d at 811). This line of cases
is not compelling support for the unlikely proposition that findings of fact
are never required in final administrative orders.
However, we need not reach a final resolution of the effect of the
failure of the Board to make explicit factual findings in this case beyond
noting that the APA requirement of factual findings does not apply. We
recognize that previous cases have held that where there were a number of
possible grounds for an administrative decision, but the agency did not state
its findings in its order, the appropriate course of action was to remand the
case to the agency for it to make findings. E.g., Reinhardt v. Board of Ed.
of Alton Community Unit School Dist. No. 11, 61 Ill. 2d 101, 104-5, 329 N.E.2d 218, 220 (1975). However, the reason for doing so was to ascertain the basis
of the agency's decision in order to facilitate judicial review thereof.
Reinhardt, 61 Ill. 2d at 104-5, 329 N.E.2d at 220. In this case, as
previously discussed, there is no dispute that the only possible factual
finding which would have supported the Board's Order was the alleged threat of
violence. Thus even assuming that on remand the Board would make this finding
of fact, for the reasons stated below we can determine here and now that this
finding would be against the manifest weight of the evidence.
As noted, Hong Jiang was the only direct witness to the alleged threat.
Jiang's testimony, quoted at length above, shows that he had a difficult time
making his speech understood. But more importantly, his testimony
unequivocally establishes that he was insufficiently well acquainted with the
English language to differentiate between the words "sue" and "shoot" as he
heard them:
"Q [Hearing Officer]. Let the record show it's still not clear
whether he is saying shoot or sue.
Mr. Jiang, I am going to ask you a question. If I say the word I
am going to sue them, what am I talking about?
A. You mean going use gun.
Q. If I say I am going to shoot them, what does it mean?
A. Means go to court."
This clearly reflects a lack of ability to comprehend spoken English. And it
is exactly this skill which is called into question in this case--whether or
not Jiang correctly understood what Schmeier was saying. Jiang's statement
(dictated to Collins), which states that Schmeier threatened to "shoot them"
if she were ever fired, is of no value because it rests not only on the
assumption that Collins understood Jiang correctly, but also on the assumption
that Jiang understood Schmeier correctly.
The Board represents to this Court that Jiang's testimony was
accompanied by gestures which indicate he intended all along to say that
Schmeier intended to "shoot" White and Kimes. First, we may not consider the
alleged gestures as they are not reflected in the record. Second, this
argument misses the point: even if Jiang thought that Schmeier had used the
word associated with firing a gun, the record establishes that he was unable
to understand the difference between that word and the word associated with a
legal action when other people said them aloud. Indeed, if Jiang was
gesturing as if he were firing a gun when he said, four times in a row, that
Schmeier threatened to "sue them," it reinforces rather than weakens the
argument that he did not understand the word he heard. It is plain that he
heard Schmeier to say she would "sue them" and understood this to mean she
would use a firearm in an attempt to injure them.
Jiang's testimony is insufficient to establish that Schmeier made the
threat of which she was accused. There is no other evidence in the record to
support this finding. We specifically reject the suggestion by the Board that
it could have relied upon White's testimony that Jiang told her that Schmeier
had threatened to "shoot" her. This portion of White's testimony is hearsay,
and was objected to on that basis at the hearing. Counsel for the District
stated that White's testimony regarding what Jiang told her was not being
offered for the truth of what she was told, but rather simply to establish the
basis for White's subsequent actions. In addition, this argument
mischaracterizes White's testimony. When White was asked what Jiang had said,
she stated that he had said Schmeier "had threatened some type of physical
violence against her supervisors if she got fired." When she was prompted
with the question "[d]id he in fact say that if she got fired she was going to
shoot Monte and Jackie, something along that line?" she responded "[s]omething
along that. It was very strange." There is no support here for an inference
that Jiang was able accurately to comprehend the English language.
We find the conclusion that Schmeier made threats against White and
Kimes was against the manifest weight of the evidence.
Because of our resolution of the previous issues, we need not determine
whether the Board would have been within its discretion in imposing a two-year
four-month suspension nor need we reach the question of the effect of the
District's delay in filing exceptions to the Hearing Officer's recommendation.

CONCLUSION
Schmeier's alleged threats against White and Kimes was the only possible
factual finding which would have sufficed to uphold the discipline imposed by
the Board. We have found that conclusion to be against the manifest weight of
the evidence. Accordingly, the Board's order suspending Schmeier for two
years and four months without pay, ordering her to participate in a racial
sensitivity training session and placing her on strict disciplinary review was
an abuse of discretion. We affirm the Circuit Court's reversal thereof. We
also affirm the Circuit Court restoration to Schmeier of the salary and
benefits she lost during the period of "emergency suspension," from November
13, 1992, through June 29, 1993, which the Board order of suspension did not
purport to address. Finally, the Circuit Court's order did not address the
propriety of the 3-week suspension for Schmeier's lapse in USGF certification,
nor do we.
Affirmed.
CAHILL and LEAVITT, JJ., concurring.
[FN1] It appears that this matter is currently before this court on
appeal, but no effort has been made by the parties to consolidate the two
cases nor has either party moved to supplement the record in this case.
[FN2] The record does not reflect before whom the May 1993 pre-termination
hearing was held.
[FN3] In addition to White, the District introduced the testimony of seven
other witnesses, each of whom testified, based on their own firsthand
knowledge, to each of the charges referred to by White. In addition to the
incidents outlined by White, two employees, Darion Knight and Daryl Harden,
testified regarding incidents at two different locations during the summer of
1992 in which Schmeier made remarks indicating surprise that African-Americans
could swim.
Because of the page limitations imposed under revised Supreme Court Rule
23 (166 Ill. 2d R. 23), we are compelled to delete our summaries of the
testimony of six of these witnesses in the published portion of the opinion,
as well as our summary of one of the two witnesses for Schmeier. However,
these summaries are part of the unpublished portion of this decision. A full,
unabridged text of this decision is on file with the clerk of this court under
Docket No. 96-3054.
We have included the full summary of the testimony of one additional
District witness, Hong Jiang. The testimony of this witness provides the
basis of the finding that Schmeier threatened to harm her supervisors. This
finding is the purported basis of the Board's decision to reject the findings
of the Hearing Officer. The testimony of this witness must be viewed in full
detail in order to properly evaluate the correctness of the Board's
disposition.
[FN4] We note that seven pages of the transcript of Schmeier's testimony
were omitted from the record submitted to this Court. None of the parties,
however, has raised any issue as to any material testimony which those pages
may have contained.
[FN5] The Guidelines do classify "willful or malicious" property damage as
Group A misconduct and classify "grossly negligent" damage as Group B
misconduct. However, the Board has not relied on these provisions as a basis
for its ruling, nor, had it so relied, would we accept such reliance, since it
appears plain that the cutting of mats to make them fit more closely around
gymnastics equipment would not fall into either category.