Brown v. Chicago Park Dist.

SIXTH DIVISION
May 22, 1998


No. 1-96-4294

BENJAMIN BROWN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) 95 CH 8421
)
CHICAGO PARK DISTRICT, )
PERSONNEL BOARD OF THE CHICAGO PARK ) The Honorable
DISTRICT, BECKY J. FREDERICK, ) John K. Madden,
Secretary of the Personnel Board, ) Judge Presiding.
)
Defendants-Appellants. )

JUSTICE GREIMAN delivered the opinion of the court:

The Personnel Board of the Chicago Park District (Board)
appeals from an order of the circuit court reversing the Board's
decision to deny back pay and benefits to plaintiff, Benjamin
Brown. We affirm the circuit court's order.
The Chicago Park District (Park District) charged plaintiff
with misconduct based upon the following allegations: (1) on
August 2, 1989, plaintiff entered a building in Union Park after
working hours with a nonemployee and used illegal drugs; (2) on
August 3, 1989, plaintiff acted insubordinately when he refused to
comply with his supervisor's order to take a fitness-for-duty
evaluation; and (3) plaintiff threatened to physically harm a Park
District security guard in an attempt to prevent the guard from
testifying against him. After a presuspension meeting, which was
not transcribed, plaintiff was terminated from employment with the
Park District.
Plaintiff timely appealed the decision and requested a
hearing. For reasons that are not made clear in the record on
appeal, that hearing was not held until February 23, 1994.
Mitchell Greene, a Park District security guard, testified that on
August 2, 1989, at 1:45 a.m., he saw plaintiff and an unidentified
woman in a Park District building with white powder on a table
between them. Greene caught the woman, but plaintiff ran out the
door. Greene also stated that plaintiff threatened to harm him and
his family if he testified at the hearing.
Juan Rodriguez, cluster manager at Union Park, testified that
the Union Park supervisor, Rich Boykin, filed an incident report
identifying plaintiff as being involved in the August 2, 1989,
incident. Rodriguez testified that plaintiff reported for work on
August 3, 1989. About 2 p.m., Boykin informed Rodriguez that he
thought plaintiff was "under the influence." Rodriguez stated that
he thought Boykin said plaintiff was talking slow and felt "like he
wasn't there when he was talking to him."
Following his conversation with Boykin, Rodriguez called the
internal investigations unit. Rodriguez stated that, at this
point, he did not know whether he would ask plaintiff to take a
fitness-for-duty test, but he wanted witnesses. Accompanied by two
employees from the internal investigations unit, Rodriguez and
Boykin encountered plaintiff. After talking with plaintiff,
Rodriguez concluded that Boykin's observations were correct, so he
requested plaintiff to submit to a fitness-for-duty test.
According to Rodriguez, plaintiff was "a little slow in responding
to questions" and his eyes "looked a little lazy."
Rodriguez further testified that the previous night's incident
was not the specific reason he sought out plaintiff, though he did
acknowledge that it was important that he speak with plaintiff
regarding that incident. Rodriguez stated that the specific reason
he sought out plaintiff was the information that Boykin relayed to
him. Rodriguez stated that he "just went on the information [he]
got from the supervisor." However, Rodriguez also stated that
"[i]f [plaintiff] wasn't [under the influence] at the time or I
didn't suspect him at the time, it would have ended right there."
Plaintiff informed Rodriguez that he would not submit to the
fitness-for-duty test and Rodriguez told him that if he did not
submit to the test, he would be insubordinate and an emergency
suspension would be ordered.
Plaintiff testified that he began working for the Park
District in 1974. His usual work hours were from 7 a.m. to 3 p.m.
About 3 p.m. on August 3, 1989, plaintiff was on his way to the
field house to sign out when he encountered Rodriguez, a man from
the administration building, and two men from the investigation
department. Plaintiff could not recall the name of the person with
whom he spoke, but stated that it was the man from the
administration office and not Rodriguez. The man informed
plaintiff that he was being asked to take the test because of the
August 2 incident and told plaintiff that any illegal substance
would show up in his urine. Plaintiff asked the man whether he
looked drunk, whether anyone saw him taking anything, or whether he
looked "high." According to plaintiff, the man replied "no" and
stated "they say they seen [sic] you in the building on the
weekend."
Plaintiff informed the man that it was time for him to leave
for the day and that he had already made plans. Plaintiff was
informed that he would be paid for the time it took to take the
fitness-for-duty test. Plaintiff argued with the man because the
Park District had not paid him for his "F time" on prior occasions.
Furthermore, plaintiff stated that he did not want to take the test
because the accusations against him were false. Plaintiff also
stated that his speech and the appearance of his eyes were normal
for him. He further stated that he was not in the boiler room, he
never spoke to Greene after the incident, he did not call Greene's
house and he did not know Greene's telephone number or where he
lived. Plaintiff stated that he did go to the park to speak with
Greene to make certain Greene knew whom he was talking about.
However, a police officer told plaintiff to leave before he had an
opportunity to speak with Greene.
The hearing officer determined that Greene was not a credible
witness and found that plaintiff did not improperly enter park
facilities or threaten Greene. The hearing officer did find,
however, that plaintiff's failure to obey a direct order of his
supervisor constituted insubordination and recommended termination
of plaintiff's employment with the Park District.
The hearing officer stated that the evidence showed that
plaintiff's supervisor observed plaintiff and requested that
Rodriguez order plaintiff to submit to a fitness-for-duty test.
Rodriguez also observed plaintiff and believed him to be under the
influence. The hearing officer found that Rodriguez stated
sufficient grounds to require plaintiff to submit to a fitness-for-
duty evaluation and that plaintiff's disagreement with Rodriguez's
observations and conclusions was insufficient to "render his
supervisor's order to submit to a test invalid and therefore did
not excuse [plaintiff's] failure to obey said order." The hearing
officer concluded that although Park District policies required
Rodriguez to provide written reasons for requiring plaintiff to
submit to a fitness test, Rodriguez's failure to do so did not
render void his direct order to plaintiff to submit to the test.
The hearing officer found plaintiff guilty of insubordination,
noted that he had previously been suspended for 18 days in 1982 and
for 4 days in 1975, and recommended plaintiff's termination.
Plaintiff appealed. The Board did not immediately schedule a
hearing to consider plaintiff's claim. Plaintiff filed an action
in mandamus, and the Park District was ordered to reach a final
decision by February 28, 1995.[fn1] At the Board's request,
plaintiff later agreed to extend this date until March 31, 1995.
The Board first considered the case on February 22, 1995. At
that hearing, the hearing officer recounted his findings and stated
that Greene's testimony was "contrived" and he was not a believable
witness. The hearing officer also stated:
"I thought that under the guidelines, as long
as Mr. Rodriguez set forth reasonable grounds,
that was sufficient. I did not have to find
that, in fact, on that date and at that time
[plaintiff] was slow or had hazy eyes.

***

I could not possibly do that."
Ricardo Losa, a representative of plaintiff's union, stated
that the union contract required timely and progressive discipline
and that this hearing, 5 1/2 years after the incident, could not be
considered timely. According to Losa, Rodriguez, who was an
experienced supervisor in the Park District, knew the correct
procedure to request the fitness-for-duty test and did not follow
it. "[I]n the eyes of the union," the request to take the fitness-
for-duty test was not reasonable because it was not documented.
The Board decided to "reopen" the matter and continued the
hearing until March 14, 1995. On that date, the Board considered
the circumstances surrounding the request for plaintiff to submit
to the fitness-for-duty test. The hearing officer recounted his
findings and his interpretation of the Park District policies.
After a recess, secretary Frederick stated that, as the secretary
of the Personnel Board, she was prepared to report what the Board
was "prepared to do in terms of ruling on this [matter]," stating:
"[W]e feel strongly that the testimony taken
was not strong enough to convince this board,
in fact, that [plaintiff's] request to be
reinstated is improper, and, in fact, this
board is prepared today to make the motion to
reinstate [plaintiff] *** with a couple of
understandings very clearly, that he would be
placed on a one-year probationary period and
that there will be no back-pay awarded."

Plaintiff argued that he was entitled to back pay because he
was unjustly terminated. The Park District argued that if the
Board did decide to award back pay to plaintiff, it should be done
on a nonprecedential basis to avoid "the floodgate that would open
as a result of this if it were held as a precedent for other
cases." The Board instructed the parties to prepare arguments on
the back pay issue. Plaintiff was reinstated at that time.
Although plaintiff's employment with the Park District was
terminated on August 3, 1989, and he was not reinstated until
February 22, 1995, he requested back pay only for the time period
of August 3, 1989, to March 31, 1991, because he received social
security income during the remainder of the time period. Plaintiff
argued that he was entitled to back pay because he was unlawfully
terminated. The Park District argued that plaintiff was legally
terminated and the Board "merely exercised its authority to reject"
the hearing officer's recommendation that plaintiff be terminated
for his insubordination. The Park District argued that if back pay
and benefits were awarded, it should be done on a nonprecedential
basis to preclude a
"deluge of similarly-based claims in the
future that would further lengthen the time
needed to finally resolve such cases, and
which would likely open a floodgate of new as
well as retroactive claims, any number of
which would be frivolous, and all of which
would further burden an already backlogged
system."

On August 3, 1995, the Board issued a written order, stating:
"[H]aving heard the Hearing Officer's
recommendation that the charges resulting in
termination be sustained, the Board moved to
reject that recommendation. The Chicago Park
District has reinstated the employee to the
payroll. The Board rejects the request for
one year and seven months of back pay, and
grants the request for restoration of
seniority."

Plaintiff sought judicial review of this order, and on August 23,
1996, the circuit court remanded this cause to the Board for
clarification of its finding regarding plaintiff's insubordination.
On September 19, 1996, the Board issued an amended order[fn2]
adopting the "recommended decision of the hearing officer to the
extent that he found [plaintiff] acted insubordinately when he
refused a direct order of his superior to take a fitness-for-duty
drug test." The Board found that the insubordination justified the
"maximum penalty of immediate termination for the first offense,"
but it rejected the recommendation of termination "given all the
factors surrounding [plaintiff's] insubordination." The Board
ordered plaintiff reinstated "subject to a suspension for his
insubordination from the date of his discharge to the date of his
reinstatement." The Board found that plaintiff was not entitled to
any back pay or benefits for the time period that he was suspended,
but granted his request for restoration of seniority.
On December 2, 1996, the circuit court found that the Board
violated its fitness-for-duty and code of conduct policies. The
circuit court concluded that the Park District policies required
the supervisor to document his reasons for requesting that an
employee submit to a fitness test. Because Rodriguez failed to
comply with these policies, plaintiff was not required to submit to
the fitness-for-duty test. Therefore, he should not have been
suspended or terminated from employment. Accordingly, the circuit
court reversed the Board's amended order and awarded plaintiff back
pay and benefits for the period of August 3, 1989, through March
31, 1991. Enforcement of the circuit court order has been stayed
pending the outcome of this appeal.
Resolution of this matter is dependent upon the interpretation
of Park District policies, including the fitness-for-duty policy,
the "Code of Conduct," and the "Guidelines for Discipline." A memo
dated March 28, 1989, from the executive vice president to Park
District employees, apprised employees of these policies, stating:
"The Code of Conduct and the Guidelines for
Discipline give employees and their
supervisors notice as to what conduct is
acceptable and what disciplinary action should
be taken when an employee fails to perform in
accord with this code. * * *.

The Fitness-for-Duty policy and
procedures describe in detail the procedures
to be taken when it appears that an employee
is not fit for duty, particularly due to the
use of alcohol or drugs. This policy and
procedures will streamline the handling of
these problems, while fully protecting the
employee who is being evaluated."

Under the heading "Duty of Supervisor to Require Fitness-For-
Duty Evaluation," the fitness-for-duty policy states that a
supervisor "shall refer an employee for a fitness-for-duty
evaluation" when he has a "reasonable suspicion" that the employee
is under the influence of drugs or alcohol.
Under the heading "Procedure for Referral" the fitness-for-
duty policy states:
"The supervisor must complete Part A of the
'Request and Authorization' form and the
designated part of the evaluation form with
the reasons for his/her suspicion of the
inability of the employee to safely and
properly perform his/her work duties."

Part A of the "Request and Authorization for Fitness-For-Duty
Evaluation" is addressed to the Chicago Park District or the
hospital designated to perform the evaluation. Part A has spaces
for the employee's name, the supervisor's name, and the jobsite
and states:
"Please evaluate his/her [sic] employee
for Fitness-for-Duty. An employee is unfit
for duty if his/her physical and/or mental
condition are such that his/her judgment
and/or mental or physical ability to safely
and efficiently perform his/her job duties are
impaired."

Part A also has a checklist entitled "Reasons for Request." The
checklist included such factors as drowsiness, odor of alcohol on
breath, slurred speech, lack of coordination in walking,
unexplained accident. Part A is to be signed and dated by the
supervisor and a witness. Part C of the form is a consent form to
be signed by the employee and a witness.
Under the heading "Duty of Employee to Submit to Fitness-For-
Duty Evaluation," the policy provides that an employee is
"obliged to report to the Medical Department,
the Office of Inspections and Investigations
or to a selected hospital for a fitness-for-
duty evaluation which may include testing for
drug levels in the body at any time when
referred by his/her supervisor."

Under the heading "Refusal by Employee to Submit to Fitness-
For-Duty Evaluation," the policy provides:
"If an employee refuses to submit to a
fitness-for-duty evaluation, including a drug
test as part of that evaluation, or to sign a
release of information to the Chicago Park
District, the employee will be subject to
disciplinary action, including termination of
employment."

Section I of the Park District's Code of Conduct provides that
an employee shall obey supervisory orders properly given in the
course of employment. Section II of the Code of Conduct, entitled
"Alcohol & Drugs," states:
"An employee, on a direct order of
his/her supervisor or other employee in the
line of supervision, shall submit to testing
for drugs and/or alcohol and shall accompany
personnel escorting him/her to a site for such
testing, provided that his/her behavior,
demeanor or speech provides reasonable basis
for suspecting that he/she has been drinking
or using drugs on duty or that he/she is
intoxicated while on duty from use of drugs or
alcohol. The supervisor shall record in
writing his/her specific reasons for believing
that the employee was intoxicated while on
duty or had ingested drugs or alcohol while on
duty."

The "Guidelines for Discipline" sets forth a table delineating
sanctions that are deemed appropriate for specified acts of
misconduct. Group A misconduct includes:
"refusal, on direct orders of a superior, to
submit to testing for drugs and/or alcohol or
to accompany personnel escorting him or her to
a site for such testing, provided that his or
her behavior, demeanor or speech provides
reasonable basis for suspecting that he or
she has been drinking or using drugs on duty
or that he or she is intoxicated from alcohol
or under the influence of drugs while on
duty."

Absent mitigating circumstances, the penalty for group A misconduct
is termination for the first offense.
The Park District now appeals the order of the circuit court.
The issues on appeal are (1) whether plaintiff could be found
insubordinate for refusing to submit to a fitness-for-duty test
under Park District policies where his supervisor failed to
document his reasons for asking plaintiff to take the test; (2)
whether the Board made the requisite finding that Rodriguez had a
reasonable basis to ask plaintiff to submit to the test; (3)
whether that finding was against the manifest weight of the
evidence; and (4) whether imposition of a six year suspension was
arbitrary, capricious, or unrelated to the requirements of
plaintiff's employment.
An administrative agency's interpretation of its own rules and
regulations is entitled to "respectful consideration" (Board of
Trustees of the University of Illinois v. Illinois Educational
Labor Relations Board, 274 Ill. App. 3d 145, 152 (1995)), and will
not be overruled unless clearly erroneous, arbitrary or
unreasonable (Water Pipe Extension, Bureau of Engineering, Laborers
Local 1092 v. Illinois Local Labor Relations Board, 252 Ill. App.
3d 932, 936 (1993)). An agency's interpretation of a rule is not,
however, binding on this court (Inwang v. Community College
District No. 508, 117 Ill. App. 3d 608, 611 (1983)), which must
engage in an independent analysis with respect to questions of law
(see Board of Education of Round Lake Area Schools, Community Unit
School District No. 116 v. State Board of Education, 292 Ill. App.
3d 101, 109-111 (1997); Cook County State's Attorney v. Illinois
State Labor Relations Board, 292 Ill. App. 3d 1, 6-7 (1997)).
"Courts apply the same rules of construction used in
construing statutes when interpreting the meaning of an agency
rule." Board of Trustees, 274 Ill. App. 3d at 153. "Each
provision must be construed in connection with every other
provision to produce a harmonious whole." White v. Department of
Employment Security, 264 Ill. App. 3d 851, 854 (1994). In
determining the intent of the drafters in adopting a regulation, a
court may consider the language used, the reason and necessity for
the regulation, the evil sought to be remedied and the purpose to
be achieved. John Sexton Contractors Co. v. Pollution Control
Board, 201 Ill. App. 3d 415, 424 (1990), citing Stewart v.
Industrial Comm'n, 115 Ill. 2d 337, 341 (1987). The language of an
administrative regulation is to be given its ordinary meaning.
Linderman v. Illinois Civil Service Comm'n, 188 Ill. App. 3d 554,
557 (1989).
Plaintiff argues that Park District policies require
supervisors to document a reasonable basis for requesting an
employee to take a fitness test. Absent such documentation, an
employee is not required to submit to a fitness test and cannot be
disciplined for his refusal to submit to testing.
Section II of the Code of Conduct, titled, "Alcohol & Drugs,"
provides that an employee "shall" submit to testing when given a
direct order to do so, provided that there is a reasonable basis
for suspecting that the employee has been using drugs or alcohol.
The same section states that the supervisor "shall record in
writing his/her specific reasons for believing" that the employee
was using drugs or alcohol. Clearly, this language imposes a duty
on supervisors to make a written record of their observations.
Under these sections and in light of the policies as a whole, we
believe that a supervisor is required to document his or her
reasons for asking an employee to submit to the fitness-for-duty
test before an employee can be found insubordinate for refusing the
testing.
The fitness-for-duty policy also states that a supervisor
"shall refer an employee for a fitness-for-duty evaluation" when he
has a "reasonable suspicion" that the employee is under the
influence of drugs or alcohol. The section entitled "Procedure for
Referral," states that the supervisor "must complete Part A of the
'Request and Authorization' form and the designated part of the
evaluation form" by recording the reasons why the employee is being
asked to take the test. Part A of the "Request and Authorization"
form is a checklist of observable symptoms that would indicate that
a person was using drugs or alcohol, such as slurred speech and
lack of coordination. It is to be signed by the supervisor and a
witness. Part C of the form is a consent form requiring the
employee's signature. These provisions provide further support for
our conclusion that the policies require the supervisor to provide
a written reasonable basis before an employee can be required to
submit to a fitness-for-duty test. The supervisor must complete
this form to properly refer an employee for the testing under the
policies.
Moreover, the March 28, 1989, memo states that the fitness-
for-duty policy and procedures "will streamline the handling of
these problems, while fully protecting the employee who is being
evaluated." We find this policy statement definitive to our
interpretation. The fitness-for-duty policies were developed to
ensure that workers were not operating under the influence of
alcohol or drugs while performing their employment duties. The
very detailed procedures for actually directing such tests were
adopted to streamline the process and to protect employees from
unreasonable invasions of their privacy when handling these
matters. In the interests of protecting the employees' privacy,
the creation of these specific directives can only be interpreted
as to require supervisors to have a reasonable basis and to
document that basis before requiring an employee to submit to a
fitness-for-duty test.
The Park District argues that the provisions requiring a
supervisor to document his or her reasons for requesting the
fitness-for-duty test are merely an "independent obligation"
imposed on supervisors, and any supervisor who violates the
policies would be subject to discipline. We do not find this a
reasonable interpretation of the policies. Under such
interpretation, a supervisor could ignore the policies and direct
an employee to submit to the testing without providing reasons for
the testing. While such a supervisor could then be found in
violation of the policies, the policies would provide no protection
to employees against unreasonable requests for testing and
therefore defeat one of the clear, and we believe important,
purposes of the policies.
We conclude that the Park District's policies at issue in this
case require that a supervisor provide a written basis for
requesting a fitness-for-duty test. Plaintiff could not be found
insubordinate for failing to submit to a fitness-for-duty test
where his supervisor failed to follow the specific directives of
the Park District.
We therefore affirm the judgment of the circuit court.
Because this issue disposes of the matter, we need not address the
remaining issues.
Affirmed.
CAMPBELL, P.J., and QUINN, J., concur.
[fn1]This order has not been included in the record on review.
The Park District does not dispute that a mandamus action was
filed, but makes no reference as to its ultimate resolution.
[fn2]Although appellant failed to include the Board's amended
order in the record on appeal, both parties have included copies of
the order in their briefs, and they do not dispute its contents.
Therefore, pursuant to Ray v. Winter, 67 Ill. 2d 296, 302-03
(1977), we will amend the record on appeal to include the order.