## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

William s v. Illinois Civil S ervic e Com m ’n , 2012 IL App (1st) 101344

Appellate Court Caption BEN NIE WI L L I AMS, J R., Plaintiff-Appellee
, v. ILL INO I S CI VIL SERVI CE COMMI SSI ON and CHRI S KO L KER, in His Offic ial Capac ity as Chairman of the I llinois C i v i l Service Commi ssion, Def endants-A ppellees (The Depa rtment of Transportation, DefendantAppellant).

District & N o. First District, F ourth Division Docke t No. 1-10-1344

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed Marc h 15, 2012

April 18, 2012 April 26, 2012

Held ( Note : Thi s syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er o

f D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where t he I llinois Civil Service Commi ssion’s orig inal decision discharg ing plaint i ff from his position with the I llinois Depa rtment of Transportation for throwing his paper pick at a cowor ker was reve rsed by the trial court on administrative revie w and, on rema nd, the Commi ssion suspended plaintiff for 90 day s, the s u s p en s i o n was reve rsed by the appella te court pursuant to the Depa rtment’s appeal, since the Commi ssion’s orig inal decision to discharg e plaintiff wa s not arbitrary , unrea sonable, or unrelated to th e re qu ire me n ts of service
, espec ially when plaintiff endang ere d the cowor ker by his actions and the Depa rtment had a zero-toler ance policy

ag ainst workplac e violence

.Dec ision Under

Review Appea l from the Circuit Court of Cook County
, No. 09-L -50046; the Hon. Richard J. Billik, J r., Judge, pr esiding

.

J udg ment Reverse d and vac ated.

Counsel on Appea l L isa Madig an, Attorney Gene ral, of C h i cago (Michae l A. Scodro, Solicit o r Gene ral, and Sunil Bha ve, Assistant Attorney Gene ral, of counsel), f

or appe llant.

No brief filed for appellee s.

Panel J USTI CE FITZ GERALD SMI TH delivere d the judgme nt of t h e court, with opinion. Presiding J ustice L avin and J ustice Sterba concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff Be nnie Wil liams, J r., soug ht administrative revie w of the decision of the Civil Service Commi s s i on (Commissi on) discharg ing him from employ ment with the I llinois Depa rtmen t o f T ransportation (I DOT). The circuit court rever sed t he C ommissi on’s order of di schar g e and rema nded the matter to the C ommissi on for impos ition of an appropriate discipline other than discharg e. On rema nd, the Commi ssion suspended Wil liams for 90 day s, and the circ uit court aff irmed the Commi ssion’s decision. On appea l, I DOT contends that the circuit court erre d in ordering the C o m mission to impose a level of di scipline less
t h an discharg e, wher e the Commi ssion’s orig inal decision to discharg e Wil liams was n o t

unrea sonable or arbitra

ry

. W i l l i ams has not filed a brief in response ; howeve r, we may p roceed under the principles set forth in First Capitol Mortgage Corp. v. Tala n d i s Construction C orp. , 63 I ll. 2d 128, 133 (1976). We reve rse and vacate. ¶ 2 W i l l i am s b egan at IDOT in October 2002 and in 2008 was working as a highw ay maintainer at the Dan Ry an Ya rd. IDOT broug ht char g es ag ainst Wi lliams for eng ag ing in disruptive and violent conduct in the workplac e stemmin g fr o m an incident at about 7:15

a.m. on April 30, 2008, when Williams was observe d by cowor kers throwing a paper pick at another cowor ker in the g ara g e bay . A pape r pick is a stick with a long , sharpe ned point
to pick up debris, such as paper an d ca n s , al ong the highw ay

. As a result of this incident,

-2-Wil liams was dischar g ed on June 10, 2008.

¶ 3 At hearings held in J uly an d S eptember 2008, the evidenc e showed that on April 30, 2008, Wil liams went to the storag e room to sharpe n his paper pick. Be cause the g rinder used
to sharpe n the paper pick was unplugg ed, Wil liams te stified that he reque sted an extension cord from the manag er of the storag e ro o m , Anthony Holey field, who ignored him. Acc ording to Wil liams, he was “fr ustrated” that Holeyfield ignor ed his reque st and “tossed” the paper pick next to Holey field. Wil liams claimed that he was only five to eig ht fee t behind Holey field when he tossed the pick. Wil liams stated he used an overhand toss by raising his

arm a bove his shoulder with the fr ont of the pick fa cing forwa rd. ¶ 4 Wil liams’ cowor kers, Kelvin Br own and Kim Steele, t es t i fi ed that Wil liams threw his
paper pick at Holey field from a dis tance of about 30 fee t, and the pick l anded about 2 fee t away from Holey field. Steele stated that Wil liams threw the pick like “a javelin” with an “upwa rd trajec tory .” Holey field then walked to the front office and complained to h i s supervisor, Dionne Winesberry , reg arding the incident. ¶ 5 Giovanni Fulg enzi, I DOT’s district personne l service s manag er, testified that I DOT has

a zero-tolerance policy for violence or a threat of violence in the workplac e. Fulg enzi define d the policy as meaning that “any act by an employ ee that may be const ru ed as an act of violence or a threat of violence may be cause d [ sic ] for di s ch ar ge. ” I DOT ultimately conclude d that Wil liams’ conduct violated its zer o -t o lera nce policy ag ainst workplac e violence, and he wa s thus subject to imm ediate disc harg e. ¶ 6 On Dec ember 5, 2008, following the hearings, an administrative law judge (AL J ) issued

a rec ommended finding that Wil liams’ discharg e was war rante d. I n doing so, the ALJ found that, based primarily on the testimony of Br own and Steele, Wil liams thre w the pape r pick in Holey field’s gen er al direc tion from a distance of about 30 fee t. This conduct alone

war rante d Willi ams ’ d is c h a

r g e b e c a u s e it violated IDOT’s zero-tolerance policy for incidents of workplac e violence. On Dec ember 18, 2008, the Commi ssion aff irmed the ALJ ’s decision and upheld Williams’ discharg e. ¶ 7 On J anuary 15, 2009, Wil liams filed a complaint for administ rative review. O n Marc h 4, 2010, the circ uit court aff irmed the Commi ssion’s decision in part, holding that discipline

m ay b e i m p o s ed in this case

. Howeve r, the court reve rsed the determination to discharg e Wil liams and remanded t h e ca u s e to the Commi ssion for the imposit ion of appropriate discipline other than discharg e. On Mar ch 1 9, 2010, the Commi ssion enter ed an order on

rema nd, finding the appropr iate discipline to be a 90-day suspension. On April 19, 2010, the circ uit court aff

irmed the Commission’s March 19 dec ision. ¶ 8 I DOT now appea ls the p o rt i o n o f t h e ci rc u i t co u rt’s final judgme nt aff irming the Commi ssion’s decision to reduc e the discipline Willi ams was subjec t to f rom discharg e to

a 90-day suspension. I DOT specific ally maintains that the Commi ssion’s or iginal de cision
to discharg e Wil liams was not arbitra ry or unrea sonabl e g iven his violent conduct in throwing the pape r pick at a cowor ker. ¶ 9 We r eview the decision of the administrative ag ency and not the dec ision of the circ uit
court. Departme nt of Rev enue v. C ivil Serv i ce C o mm ’n
, 357 I ll. App. 3d 352, 361 (2005). Where, as here
, the circ uit court rema nded the matter to the Commi ssion to impose a lesser

-3-penalty than the orig inal pena l t y of discharg e, we can revie w the Commi ssion’s orig inal

d ec ision to discharg e. Johnson v. Departme nt of Corrections
, 187 I ll. App. 3d 8 0 4
, 8 1 2 (1989). I n ca s es of discharg e, the scope of revie w is a two-step proce ss. Johnson
, 187 I ll. App. 3d at 811. We must first determine whether the ag ency ’s finding s of fac t a re contra ry to the manifest weight o f the evidenc e. Johnson
, 187 I ll. App. 3d at 811. I f the ag ency ’s finding s of fac t are not contra ry t o t h e m an ifest weig ht of the evidenc e, we must next determine whether the finding s of fac t pr ovide sufficie nt ba sis f or discharg e. Johnson
, 187 I ll. App. 3d at 811. The latter consideration is measure d by whether the decision is arbitra ry , unrea sonable, or unrelated to the require ments of service

. Departme nt of Human Servic es v. Porter , 396 I ll. App. 3d 701, 726 (2009). ¶ 10 The Commission’s reg ulations define “ cause for discha rg e exists” as follows: “a) Cause for discharg e consists of some substantial shortcoming which rende rs the employ ee’ s continuance in his or her position in some way detrimental to the discipline and eff iciency of the service and that the law and sound public opinion rec og nize as g ood

cause for the e mploy ee no long er holding the position. b) I n determining the appropriate level of discipline, the Commi ssion shall consider the employ ee’ s perf

ormanc e re cord, including disciplinary history
, and the employ ee’ s leng th of continuous service
, unless the offe nse would wa rra nt immediate discharg e in

acc ordanc e with subsection (a ).” 80 Ill. Adm. Code 1.170 (2012).
Porter , 396 I ll. App. 3d at 726. ¶ 11 I n the instant case , the hearing office r’s finding s of fac t, adopted by the Commi ssion, a re not disputed. There fore , we must only determine whether or not, in light of those f indings,
t he Commi ssion’s orig inal decision to discharg e Wil liams was arbitra ry , unrea sonable, o r unrelated to the require ments of service

. For the following rea sons, w e find that it wa s not. ¶ 12 The rec ord shows that the De p ar t m en t h ad a wr i t t en , z er o -tolera nce rule a g ainst workplac e viol ence

. The policy specific ally

stated t hat, “[ t] he use of vi olence or t he threat of t he use of vi olence by Depa rtment employ ees to su b o rd i n ates, co-worke rs, s uperiors or others will not be tolerate d.” Wil liams violated this policy when he threw his paper pick like

a javelin at Holey field from a dist an ce o f ab o u t 30 fee t and landed it only 2 fee t from his targ et. Wil liams claimed that this action arose from his frustration. The ALJ ’s decision, which the Commi ssion adopted, found that Wil liams could have responde d in a nonviolent fashion when Holey field i gn ored him, i.e.
, Wil liams could have walked away from Holey field, contac ted his lead worke r, or spoken to Winesberry

. I nstead, the AL J found that Wil liams chose a “ rec kless response that endang ere d a co- worke r.” ¶ 13 W e t h us find that the Commi ssion’s orig inal decision to discharg e Wil liams wa s n o t arbitra ry , unrea sonable, or unrelated to the require ments of service wher e Wil l i ams endang ere d Holey field b y h i s ac t i ons. By failing to acknow ledg e the g ravity of Wil liams’ misconduct, the circ uit court improperly substitut ed its judgme nt for that of the Commi ssion when it orde red the Commi ssion to impose an appropriate discipline other than discha rg e. See Fox v. Illinois Civil Servic e Comm’n
, 6 6 I ll. App. 3d 381, 387 (1978) (stating that a revie wing court may not substitute its judg ment for that of the Commi ssion). Acc ording ly
, the circ uit court’s judgme nt aff irming the Commi ssion’s second d ecision, which imposed

-4-a 90-day suspension, is reve rs ed and vacated, and the Commi ssion’s orig inal decision to

discharg e Willi ams is reinstated.

¶ 14 Reverse d and vac ated.

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