Chicago Transit Auth. v. Union

• Citation: 926 N.E.2d 919,399 Ill.App.3d 689,339 Ill.Dec. 444
• Decision Date: 24 March 2010
• Docket Number: No. 1-08-3285.,1-08-3285.
• Parties: CHICAGO TRANSIT AUTHORITY, Plaintiff-Appellant,v.AMALGAMATED TRANSIT UNION, LOCAL 241, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 689

926 N.E.2d 919

339 Ill.Dec. 444

CHICAGO TRANSIT AUTHORITY, Plaintiff-Appellant,v.AMALGAMATED TRANSIT UNION, LOCAL 241, Defendant-Appellee.

No. 1-08-3285.

Appellate Court of Illinois First District, Third Division.

March 24, 2010.

Steven J. Teplinsky, Dorothy M. Brackett, Michael Best & Friedlich LLP, Chicago, IL, Attorney for Plaintiff-Appellant.

Sherrie E. Voyles, Taylor E. Muzzy, Jacobs, Burns, Orlove, Stanton & Hernandez Chicago, IL, Attorneys for Defendant-Appellee.

Presiding Justice MURPHY delivered the opinion of the court:

This appeal arises out of the discharge of Maurice Gibson, a Chicago Transit Authority (CTA) bus driver, after the CTA discovered he had been convicted of aggravated criminal sexual abuse of his stepdaughter (720 ILCS 5/12-16(b) (West 2006)) and was a registered sex offender. Amalgamated Transit Union, Local 241 (the union), filed a grievance, and an arbitrator reinstated Gibson. On appeal, the CTA contends that the arbitration award should be vacated as against public policy.

I. BACKGROUND

The union and the CTA are parties to a collective bargaining agreement that covers certain CTA employees, including bus drivers. The agreement contains a provision that the union will not interfere with the CTA's right to discipline its employees covered by the agreement “where sufficient cause can be shown.” It further provides for a binding arbitration procedure for resolving contractual disputes.

The CTA hired Maurice Gibson on May 28, 1987, to be a bus driver. On December 1, 1997, during the time he was employed as a bus driver for the CTA, Gibson pled guilty to aggravated criminal sexual abuse of a family member, a felony. See 720 ILCS 5/12-16(b) (West 2006). The victim was his stepdaughter, who was under 13 years old at the time. This abuse involved both penetration and touching. Gibson told his therapist that the relationship occurred over a period of 6 to 12 months with acts so numerous that he could not count them.

As a result of the conviction, Gibson was sentenced to four years' probation. As part of his probation, he could not have any contact with his stepdaughter, and he could not be in the presence of any minors without another adult being present. Gibson was also required to register with the Illinois State Police as a sex offender for 10 years. His name and likeness were posted on the sex offender registry Web site, but his employment information was not. Gibson was further required to attend a sex-offender treatment program, which he did from 1997 through 2001.

Gibson never informed CTA management of his arrest or conviction. On May 18, 2004, after someone anonymously mailed a copy of his sex offender registry page to the human resources department, the CTA suspended Gibson. On June 9, 2004, Gibson was discharged based on his violations of General Rule 7, obedience to the rules; General Rule 14, personal conduct; and General Rule 24, use of best judgment.

The union filed a grievance challenging Gibson's discharge pursuant to the terms of its collective bargaining agreement with the CTA. The following evidence was presented at the arbitration on January 10, 2006, and March 14, 2007.

A. Evidence Presented at the Arbitration

Steve Poustinchian, a transportation manager at the CTA, recommended that Gibson be discharged. Gibson gave Poustinchian a copy of an evaluation dated November 19, 2001, showing that Gibson had twice failed polygraphs and that there were indications that he had not been truthful about his activities during treatment. Poustinchian testified that he was concerned about the safety of children, since Gibson came into contact with children as a bus driver. There were several high schools, elementary schools, and parks along Gibson's route, and there was a park near the turnaround for his route. Children frequently ride CTA buses without parents, and sometimes drivers operate a bus that is empty. During the time that Poustinchian was familiar with Gibson's work, there were no customer complaints regarding his conduct. He testified that the buses Gibson drove had cameras and global positioning units.

Robert Gierut, vice-president of employee relations for the CTA, testified that the CTA does not have a policy that a conviction for a felony automatically results in discharge, but he could not remember any cases where a conviction of a felony resulted in less than discharge.

Joel Falco was Gibson's therapist for almost three years, from 1999 to 2001, at the Center for Contextual Change, where Gibson received individual therapy and participated in a specialized treatment group for sex offenders. By 2001, Falco declared Gibson to be one major step short of completing the program, as he had failed to pass two maintenance polygraphs. In fact, Gibson had failed three polygraphs. After his March 16, 1998, polygraph, when he was being treated by Central Baptist Family Services, the examiner concluded as follows:

“There were significant emotional responses indicative of deception throughout this subject's polygraph records when asked the following questions:

(1) Did you have sexual contact with more than one person under the age of 18? Answer: No.

(2) Are you lying about the number of persons under the age of 18 that you had sexual contact with? Answer: No.”

The letter from the examiner further provided that when advised of the results of the exam, Gibson stated that he had a sexual relationship with the 17- or 18-year-old niece of an ex-girlfriend in 1993 or 1994. He further indicated that when he was a college student, he had a sexual relationship with a 17- or 18-year-old woman. Gibson's September 22, 1999, and October 27, 2000, polygraph tests collectively showed deception when he responded that he had not had sexual contact or sexual relations with anyone under the age of 18 since he was on probation or since his last polygraph, and that he had not put his penis in the vagina of anyone under the age of 18 since he was on probation or since his last polygraph. Falco testified that he discussed these polygraph results with Gibson, who stated that he did not know why he failed the exams.

Gibson passed his last polygraph in November 2001. At that time, Gibson told Falco that he would continue treatment in consolidation, a process where clients taper off their treatment and integrate what they learned into their behavior. However, Gibson did not continue with any further treatment. Falco testified that Gibson did not complete the program because he failed to take an additional maintenance polygraph and to continue treatment in consolidation.

Falco also reevaluated Gibson between the 2006 and 2007 arbitration hearings to assess the risk to the CTA if Gibson returned to work. As part of the evaluation, Gibson completed an ABEL assessment of sexual interest, which showed that his significant sexual interests include adolescent and adult females. Falco testified that this was an “expected profile” for a heterosexual adult male. In 2006, Gibson also passed a polygraph about his sexual behavior since he left therapy in November 2001.

After the 2006 evaluation, Falco concluded that there was little in Gibson's history that would preclude him from resuming safe and responsible employment at the CTA. Falco cited two reasons. First, Gibson's risk level is very low because he had eight years of no reoffenses. Second, his offense was in the context of a long-term relationship as opposed to the relatively public environment that a bus driver works in. Falco also relied on the Static-99 and Stable-2000 tests in determining that Gibson had a low risk of sexual offense during his employment.

Falco stated that Gibson admitted to a sexual relationship with a 17 year old when he was in college, but Gibson never revealed that he had a sexual relationship with a 17 or 18 year old when he was 32 or 33. Falco did not consider the college relationship to be an important factor in his treatment, since the age gap between them was not significant.

The CTA retained Dr. Barry Leavitt, who reviewed Gibson's treatment records, polygraph exams, and other tests to assess Gibson's employability as a bus driver. He disagreed with Falco's conclusion that there is nothing in Gibson's history precluding him from working. Leavitt believed that Gibson is not simply a person who engaged in sexual offending against his stepdaughter under particular stress; rather, his other relationships with 17 year olds demonstrate that he does not exercise good judgment and has difficulty controlling his impulses. The fact that Gibson had a sexual relationship with a 17 year old when he was a 22-year-old college student was “not necessarily alarming,” but it speaks to poor judgment because “you can get in trouble for that.” There were also issues regarding Gibson's truthfulness and his willingness to be open and honest about what he has done. This lack of openness prevented his treatment team from preparing an adequate relapse-prevention plan. Leavitt testified, however, that “polygraphs themselves are questionable in terms of their reliability and validity.”

Although he thought that employment was important, Leavitt concluded that Gibson's working as a bus driver is “potentially problematic” because he sees Gibson as more vulnerable to acting in sexually inappropriate ways than was initially documented in the reports. In particular, he noted that as a bus driver, Gibson has potential exposure to women and children.

B. Arbitrator's Decision

The arbitrator sustained the grievance, finding that there was no nexus between Gibson's off-duty misconduct and his CTA job. He noted that there was no showing that Gibson's criminal behavior harmed the CTA's reputation, adversely affected his ability to perform his duties, or caused other employees to refuse to work with him. There was no evidence that any employee or passenger made a complaint about Gibson's behavior either before or after the conviction, and there...