Lopez v. Dart

• Decision Date: 28 September 2018
• Docket Number: No. 1-17-0733,1-17-0733
• Citation: 427 Ill.Dec. 379,2018 IL App (1st) 170733,118 N.E.3d 580
• Parties: Miguel LOPEZ, Plaintiff-Appellant, v. Thomas J. DART, Sheriff of Cook County, and the Cook County Sheriff's Merit Board, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 170733

118 N.E.3d 580

427 Ill.Dec. 379

Miguel LOPEZ, Plaintiff-Appellant,

v.Thomas J. DART, Sheriff of Cook County, and the Cook County Sheriff's Merit Board, Defendants-Appellees.

No. 1-17-0733

Appellate Court of Illinois, First District, THIRD DIVISION.

Opinion filed September 28, 2018

Nicole L. Chaney, of Park Ridge, for appellant.

Stephanie A. Scharf and Sara R. Marmor, of Scharf Banks Marmor LLC, of Chicago, for appellee Thomas Dart.

Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein, Assistant State’s Attorney, of counsel), for other appellee.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Miguel Lopez, appeals from the circuit court's order affirming the decision of the Cook County Sheriff's Merit Board (Merit Board) terminating him from his employment as an officer with the Cook County Department of Corrections (CCDOC). The plaintiff argues that because at least one of the Merit Board members who participated in this termination decision was appointed without proper authorization, pursuant to Taylor v. Dart , 2017 IL App (1st) 143684-B, 414 Ill.Dec. 735, 81 N.E.3d 1, the Merit Board's decision was a nullity and void from inception. Accordingly, the plaintiff seeks reinstatement or, in the very least, remand for a hearing before a properly constituted Merit Board. In the alternative, the plaintiff contends that the Merit Board's decision is against the manifest weight of the evidence and lacking cause. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The record reveals the following facts and procedural history. The plaintiff was employed as a correctional officer with the CCDOC for more than nine years, beginning on November 1, 2004.

¶ 4 On July 9, 2013, the defendant, Cook County Sheriff Thomas J. Dart (Sheriff), filed a complaint with the Merit Board seeking to remove the plaintiff from employment.

¶ 5 The defendant Merit Board is an administrative body created by statute, and its members are appointed by the Sheriff and approved by the Cook County Board of Commissioners (County Board). 55 ILCS 5/3-7002 (West 2012).

¶ 6 The Sheriff's complaint alleged that between December 29, 2012, and April 13, 2013, without authorization, the plaintiff failed to appear at scheduled work shifts for a total of 96 hours. The complaint further alleged that in February 2012, the Sheriff's Attendance Review Unit (ARU) counseled the plaintiff regarding unauthorized absence and the options available to him to apply for different types of extended leave, which the plaintiff refused. According to the complaint, later in 2012, the Sheriff served the plaintiff with four unauthorized absence disciplinary action forms, a written reprimand and six suspension days, but the absences continued.

¶ 7 The complaint alleged that by his actions, the plaintiff violated the following rules: (1) general order 3.8, which requires employees to obtain proper authorization prior to or immediately after the need for an absence and permits an employee under the collective bargaining agreement who incurs 80 hours of unauthorized absences to be recommended to the Merit Board for termination; (2) Sheriff's order 11.4.1.1, which provides all of the options available to employees to authorize an absence or obtain extended leave if necessary; and (3) article X of the Cook County Sheriff's Department Merit Board Rules and Regulations (Cook County Sheriff's Department Merit Board Rules and Regulations, art. X (eff. Jan. 2008) ), which requires that no correctional officer violate any of the general orders, special orders, directives, or rules and regulations of the Sheriff's office.

¶ 8 The plaintiff's complaint was assigned to Merit Board member, John R. Rosales, and Rosales was the hearing officer that presided over the evidentiary hearing in the plaintiff's case. That evidentiary hearing was held on July 17, 2014, and the following relevant evidence was adduced.

¶ 9 Investigator Georgia Garcia from the Sheriff's Office of Professional Review (OPR) testified that in 2012 she was assigned to investigate allegations of unauthorized absences involving the plaintiff. Garcia received a complaint register from the ARU alleging that the plaintiff had accumulated 96 hours of unauthorized absences. She explained that the ARU keeps track of all unauthorized absences and counsels and disciplines employees, up until an employee acquires 80 hours of unauthorized absences. At that point, the matter is forwarded to OPR, pursuant to Sheriff's order 11.4.1.1.

¶ 10 Garcia testified that after receiving the complaint register, she reviewed the plaintiff's attendance records and counseling forms from the ARU and spoke to personnel to confirm the number of unauthorized absences the plaintiff had accumulated. Garcia also interviewed the plaintiff on April 23, 2013, in the presence of a union representative. According to Garcia, during that interview, the plaintiff explained that the 96 hours of absences were due to medication he was taking that made him drowsy. The plaintiff told Garcia that because of this medication he would sleep past the time he needed to call into the Sheriff's medical line to report his absences. Garcia testified that the plaintiff did not tell her the name his medication or the reason for taking it. The plaintiff also never told Garcia that he had a problem with alcohol dependency. In addition, Garcia stated that during her investigation, she never received any information about the plaintiff's alcoholism from any peer or employee support groups. Based on her investigation, Garcia concluded that the Sheriff's allegations of violations of the general orders were substantiated.

¶ 11 On cross-examination, Garcia acknowledged that in the course of her investigation she did not learn that prior to December 29, 2012, the plaintiff had been on disability leave. She acknowledged that an employee's time sheets only show when an employee is absent and do not reflect if an employee is making an effort to see a Cook County Medical Unit (CC Medical Unit) physician to obtain clearance to return to work after a disability.

¶ 12 Former Sheriff's ARU supervisor Prentiss Jones next testified that he was instrumental in drafting Sheriff's order 11.4.1.1, governing unauthorized absences, disciplinary actions related to such absences, and all options available to employees in achieving authorized attendance status. Jones explained that this order had been created, among other reasons, to address safety concerns in the CCDOC.

¶ 13 According to Jones, under the order, the threshold number of unauthorized hours that would trigger referral to OPR was 80. However, before a complaint register was issued to OPR, the ARU followed a standard procedure. First, for every unauthorized absence of at least one hour that was deemed actionable, an employee would be brought in for counseling. If multiple infractions of the attendance policy continued, the employee would be progressively disciplined and continually reminded not to exceed 80 hours of unauthorized absences. After any disciplinary action, the employee could file a grievance with the legal department, challenging that action. One purpose for the grievance procedure was to protect any medical information that the employee felt uncomfortable disclosing to the ARU and still permit the employee to be placed back into authorized status.

¶ 14 Jones testified that the plaintiff visited the ARU on at least four occasions during which his options for obtaining authorized status were explained. The first such meeting and counseling session occurred on February 24, 2012, during which the plaintiff was provided with an unauthorized absence counseling form and a family medical leave absence (FMLA) packet and advised on obtaining disability. According to Jones, the plaintiff indicated he did not plan on applying for authorized status by checking the box on the counseling form, dating, and signing it.

¶ 15 Jones confirmed that additional counseling meetings with the plaintiff were conducted on February 24, 2012, April 19, 2012, June 20, 2012, and August 14, 2012. These corresponded to disciplinary forms submitted against the plaintiff on April 19, 2012 (for an absent late call on April 14, 2012), June 20, 2012 (for no personal time), and August 10, 2012 (for no holiday time).

¶ 16 Jones acknowledged that the plaintiff filed three grievances with the legal department but that all three were denied with a recommendation for suspension time in order to follow the ARU's progressive discipline procedure.

¶ 17 The deputy director of human resources of CCDOC, Sharon Little, next testified that after her investigation into the matter it was her conclusion that the plaintiff had violated Sheriff's order 11.4.1.1. Little confirmed that the plaintiff was "absent no call" from work on December 29, 2012, and on January 1 through January 10, 2012. She also confirmed that the plaintiff was "absent late call" on February 20, 2012, and March 19, 2013. She explained that this meant that the plaintiff had called in after the one-hour-before-shift requirement. Little testified that these unauthorized absences totaled 96 hours.

¶ 18 Little next acknowledged that the plaintiff did apply and was granted disability leave at a later date but testified that this did not negate any part of the 96 hours of previously unauthorized absences that he had accumulated. Little similarly acknowledged that the plaintiff applied for FMLA leave in April 9, 2013, but explained that he was denied this benefit because he had not accumulated the requisite number of hours in his previous year of employment.

¶ 19 Little also testified that she scrutinized the plaintiff's absences after April 2013, which revealed a pattern of abuse. She explained that plaintiff had several unauthorized absences that coincided with regular days off, which meant that the plaintiff was extending his weekends.

¶ 20 Little...