Farmer v. McClure, 87-3657
| Decision Date | 28 June 1988 |
| Docket Number | No. 87-3657,87-3657 |
| Parties | , 122 Ill.Dec. 227 Darrell FARMER, Plaintiff-Appellee, v. Richard McCLURE, Michael Tristano, Defendants-Appellants (Illinois Civil Service Commission, Defendant). |
| Court | United States Appellate Court of Illinois |
Neil F. Hartigan, Atty. Gen., and Shawn W. Denney, Sol. Gen. (Deborah L. Ahlstrand, Asst. Atty. Gen., of counsel), for defendants-appellants.
Wahler, Pecyna and Fleming, Chicago, for plaintiff-appellee.
Defendants Richard McClure and Michael Tristano, former and current directors of the Illinois Central Management Services ("CMS") appeal from a mandamus order and a mandatory injunction commanding plaintiff's certification as an apprehension specialist employed by the Illinois Department of Corrections ("DOC"); restoration of all benefits as though he had worked continuously since his discharge, including an award of full back pay; and restraining defendants from enforcing the order of plaintiff's discharge. Defendants also appeal denial of their motion to dismiss plaintiff's mandamus count.
Defendants ask that we review whether: (1) the mandamus count in plaintiff's complaint stated a cause of action; (2) the doctrine of sovereign immunity barred the mandamus and injunctive relief sought; (3) the mandamus and injunctive relief granted was in error. We affirm.
Plaintiff was hired as a DOC apprehensions specialist on December 17, 1984, after achieving a well qualified score on his examination. The job involved investigating fugitive warrants for escaped criminals or parole violators, and locating and apprehending such fugitives.
Plaintiff served a six-month probationary period. After successful completion of probation, state employees achieve certified status. (80 Ill.Adm.Code 302.310 (1985).) No probationary employee may be discharged without approval of the director of CMS, who may approve discharge of a probationary employee at any agency's request after considering the employee's performance records. (80 Ill.Adm.Code 302.320, 302.780 (1985).) State agencies are required to prepare two evaluations of six-month probationary employees: one at the end of the third month and the other 15 days prior to the period's ending. 80 Ill.Adm.Code 302.270 (1985).
On his first evaluation, plaintiff was rated positively: he met five of the "assigned" objectives and exceeded one. In the "general appraisal" categories, he exceeded expectations in two and met expectations in the remaining six categories. He was not shown as needing improvement or failing to meet objectives in any category. In the "remarks" section of his evaluation, plaintiff's supervisor noted his "very professional manner," "excellent" performance, and that his value to his unit was "demonstrated by his initiative and resourcefulness in all assignments."
In early 1985, plaintiff decided to run for state representative in the next election. He claimed he was warned it would be a mistake and could cost him his job. In March 1985, he and another trainee arrived at a parking lot in Springfield, pulled behind a vehicle with a man standing in back of it and asked the man, who turned out to be Michael Lane, DOC Director, if he was in the apprehension unit. Lane considered that the two trainees he observed in the parking lot behaved in a disruptive and unprofessional manner, informed his deputy director, Douglas Brown, and asked him to investigate. Lane later learned plaintiff was involved, but asserted he did not instruct Brown to fire him.
Plaintiff received no disciplinary warnings or suspensions; instead, several letters of commendation were received for his work. On June 10, 1985, he learned that he and his partner, veteran apprehensions specialist Carl Flagg, ranked second among the 20 to 22 teams in northern Illinois.
Harold Thomas, Superintendent of the DOC Area 1 Community Services Division, prepared favorable evaluations of approximately 27 probationary employees for the six month period ending in June 1985, including plaintiff. Thereafter, Thomas' superior, Brown, by telephone, ordered Thomas, without reason, to change plaintiff's evaluation so as to prevent his certification. Thomas refused. Thomas never before had been asked to change an evaluation of a probationary employee. If "Springfield" disagreed with him they had to do so indicate in writing.
Thomas' secretary, Laura Lenkowski, had a telephone conversation with "someone" in Springfield, who dictated new wording for the supervisor's remarks section of the evaluation form. She could not recall any other certification recommendation that had been overruled, but had been instructed, on occasion, to change some category evaluations when employees came up for raises, usually to improve them so that an increase could be granted.
A negative evaluation for plaintiff's work in the period from March 16 to June 15, 1985 apparently bore Thomas' signature; however, Thomas testified that he may have signed the evaluation forms in blank, with the materials to be filled in later, including comments made by the individual employee, which the employee then signed. In this case, the block indicating that the document had been discussed with the employee was not checked and plaintiff's signature was not present.
The new wording dictated to Lenkowski showed that plaintiff failed to meet "assigned" objectives for six categories and succeeded in only one. In the "general appraisal" portion, plaintiff needed improvement in all eight categories. In the "remarks" section, plaintiff was shown to lack initiative, failed to meet established objectives, conducted ineffective follow-up investigations and displayed an unprofessional demeanor by vocally expressing dissatisfaction at being temporarily assigned to the evening shift. His refusal to accept an extradition assignment allegedly bordered on insubordination. Thomas stated he wrote none of these comments nor graded plaintiff in the categories as the form did. Thomas never received notice of any written disciplinary action against plaintiff. Thomas disagreed with the revised evaluation and believed plaintiff's discharge unwarranted by his record. Shortly thereafter, Thomas, himself, was relieved of his duties.
According to Robert Tapscott, manager of the Bureau of Personnel in CMS, the supervisor usually discussed evaluations with the employee concerned and both signed them before the forms were forwarded for further review. This afforded the employee an opportunity to comment and explain any disagreement with his supervisor's recommendations and was one reason for the two-week time period for advance preparation of appraisal forms. An employee could be discharged even though he met his goals, for example, if there was some critical incident. A higher superior might have access to some information on misconduct that an immediate supervisor lacked. Tapscott believed employees had frequently received evaluations less than 15 days before the end of the probationary period and considered the critical date the day that period ended.
Tapscott characterized plaintiff's June 1985 evaluation as incomplete and not filled out in accord with personnel rules. A form lacking an employee's signature would be a "red flag" to CMS, requiring an investigation to determine the reason for the lack of an employee signature. CMS usually relied on contacting the agency, not the employee, to resolve such problems. Plaintiff's evaluation bore the appearance of having been done by Thomas. Tapscott thought one of his employees learned from DOC that a meeting was held with plaintiff prior to his discharge, but he had no firsthand knowledge of this. If no satisfactory explanation had been received for the missing signature, plaintiff probably would have been certified. CMS has so certified employees without agency recommendations.
Plaintiff's dismissal notice, mailed June 14, 1985 and containing an effective discharge date of June 15, 1985, referred to his unsatisfactory job performance, failure to meet objectives and his unprofessional conduct and demeanor. Nevertheless, on June 21, 1985, plaintiff was mailed a notice that he became a certified employee on June 17, 1985. The information concerning his discharge may not have been put into the state computer before the notice of certification was sent out. Plaintiff actually had worked on June 15 and 16, 1985. On June 17, 1985, he received and signed for his evaluation and notice of discharge.
On June 18, 1985, plaintiff requested an immediate discharge hearing by the Illinois Civil Service Commission ("CSC"). He also filed a verified complaint for injunctive relief against DOC and CMS, and filed a federal suit for damages. Plaintiff asked for a formal CSC hearing, alleging that administrative rules and his union contract were violated because he had not received his second evaluation 15 days before the end of his probationary period. Under the union contract, employers must prepare two written evaluations of probationary employees; the latter evaluation two weeks prior to probation ending. Evaluations are to be discussed with the employees.
A civil service hearing was held on August 7, 1985, focusing on whether plaintiff was a probationary employee or a certified employee at the time of his dismissal. Plaintiff argued that his certification was effective June 17, 1985, the same date he received notice of his termination and such notice should be effective on receipt. The hearing officer concluded that plaintiff's discharge was effective when the papers were approved and the termination notice mailed. On August 21, 1985, CSC adopted the hearing officer's report and dismissed plaintiff's charges for lack of jurisdiction and on the ground that he had been a probationary employee when dismissed. CMS refused plaintiff a hearing for similar...
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