Calabrese v. Chicago Park Dist.

• Decision Date: 27 February 1998
• Docket Number: No. 1-96-2462,1-96-2462
• Citation: Calabrese v. Chicago Park Dist., 691 N.E.2d 850, 294 Ill.App.3d 1055, 229 Ill.Dec. 377 (Ill. App. 1998)
• Parties: , 229 Ill.Dec. 377 Thomas CALABRESE, Jr., Plaintiff-Appellee, v. CHICAGO PARK DISTRICT; Personnel Board of the Chicago Park District, its members, John Rogers, William Bartholomay, Margaret Burrows, Anita Cummings, Mona Castilio, Gerold Sullivan, and Michael Scott, and its General Superintendent of Employment, Becky Frederick, and Shappele Smith, Defendants-Appellants.
• Court: Appellate Court of Illinois

Page 850

691 N.E.2d 850

294 Ill.App.3d 1055, 229 Ill.Dec. 377

Thomas CALABRESE, Jr., Plaintiff-Appellee, v. CHICAGO PARK DISTRICT; Personnel Board of the Chicago Park District, its members, John Rogers, William Bartholomay Margaret Burrows, Anita Cummings, Mona Castilio, Gerold Sullivan, and Michael Scott, and its General Superintendent of Employment, Becky Frederick, and Shappele Smith Defendants-Appellants.

No. 1-96-2462.

Appellate Court of Illinois First District, Sixth Division.

Feb. 27, 1998.

Chicago Park District, Chicago (Nelson A. Brown, Jr., of counsel), for Defendants-Appellants.

Asher, Gittler, Greenfield, Cohen and D'Alba, Ltd., Chicago (Stephen Feinberg, of counsel), for Plaintiff-Appellee.

Justice QUINN delivered the opinion of the court:

Chicago Park District; Personnel Board of the Chicago Park District, its members, John Rogers, William Barthomay, Margaret Burrows, Anita Cummings, Mona Castilio, Gerold Sullivan, and Michael Scott, and its General Superintendent of Employment, Becky Frederick; and Shappele 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...