Hermesdorf v. WU ( 2007 )

No. 2--05--0877 Filed 3-21-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
TIMOTHY HERMESDORF, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 05--MR--242
)
JOHN H. WU, as Chief of the Naperville )
Fire Department; THE CITY OF )
NAPERVILLE; THE BOARD OF POLICE )
AND FIRE COMMISSIONERS OF )
THE CITY OF NAPERVILLE; THE CITY )
OF NAPERVILLE FIRE DEPARTMENT; )
SUSAN M. WEHRLI; RAYMOND E. )
JONES; TRACY K. McLAUGHLIN; )
DAVID L. RECHENMACHER; and )
DONALD E. PERRY, ) Honorable
) Edward R. Duncan, Jr.,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
In this administrative review proceeding, plaintiff, Timothy Hermesdorf, appeals the trial
court's judgment affirming the decision of defendant, the Board of Police and Fire Commissioners
of the City of Naperville (the Board), which discharged plaintiff for cause from his position as a
firefighter and paramedic with defendants, the City of Naperville (the City) and the City of
Naperville Fire Department (the Department). On appeal, plaintiff contends: (1) the Board acted
arbitrarily and unreasonably when it discharged him, given his 17 years of service without prior
No. 2--05--0877
disciplinary action and given his psychiatric condition; (2) the Board violated the Americans with
Disabilities Act of 1990 (the ADA) (42 U.S.C. §12101 et seq. (2000)); and (3) he was denied a full
and fair disciplinary hearing when the City failed to timely tender its discovery responses. We
reverse and remand for further proceedings.
On November 30, 2004, the Department filed formal disciplinary charges with the Board,
seeking plaintiff's discharge from his position as a firefighter and paramedic. The Department
alleged that, on September 19, 2004, plaintiff engaged in acts of misconduct that violated various
provisions of the City's employee policy manual, the Department's performance of duty policy, and
the code of ethics of the Edward Hospital emergency services system. These alleged violations
included failing to perform a proper medical assessment of a patient, failing to provide proper
medical treatment for a patient, verbally abusing a patient, having inappropriate physical contact with
a patient, and causing physical injury to a patient by using inappropriate physical restraint.
On January 27, 2005, the Board conducted a disciplinary hearing. The City first called
paramedic Ron Marx. Marx testified that he had been employed as a firefighter and paramedic with
the Department for 13 years. He testified that he and plaintiff were on duty on September 19, 2004.
At approximately 2:44 a.m., he and plaintiff responded to a call to provide treatment to a female in
custody at the Naperville police department, who was believed to be suffering from a panic or
anxiety attack. When he and plaintiff entered the police station, Marx heard a female, later identified
as Teresa Briskovic, yelling and screaming. Marx testified that he and plaintiff went to Briskovic's
holding cell. Marx observed that Briskovic was sitting in her cell and that she was drooling and
yelling and appeared to be hyperventilating. Marx testified that plaintiff walked over to Briskovic,
pulled her head up by her hair, and said "What the hell is your problem?" Briskovic responded by
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yelling that she wanted her prescription anti-anxiety medication and that she did not want to go to
the hospital. Marx testified that he told plaintiff to stop, and plaintiff released Briskovic's hair.
Marx testified that Briskovic again stated that she did not want to go to the hospital, because she did
not have insurance and could not afford the treatment. He testified that, when Briskovic refused to
be transported, plaintiff twisted Briskovic's arm behind her back to get her to stand up. Briskovic
yelled at plaintiff that he was hurting her and asked him to let her go. Marx testified that plaintiff
responded, "I'll break your f---ing arm. You have to calm down." Marx again told plaintiff to stop,
and plaintiff told Marx to retrieve a gurney.
Marx further testified that, while he was in the hallway preparing the gurney, he heard a
"thud" in the holding cell. He observed Briskovic sitting on the floor in the holding cell and plaintiff
standing over her "with his hand on top of her head." Marx testified that plaintiff and a police officer
helped Briskovic off of the floor and put her onto the gurney. Marx then fastened the straps. Marx
testified that Briskovic continued to be belligerent and that she was yelling "nonstop." Marx testified
that he did not believe Briskovic was a physical threat to herself or anyone else.
Marx testified that, while he and plaintiff were transporting Briskovic to the ambulance, she
tried to sit up. Marx testified that plaintiff put his open hand on her chest, pushed her down onto the
gurney, and said "Set your ass down." Marx testified that Briskovic tried to sit up a second time and
that plaintiff put his hand on her neck and pushed her down onto the gurney. Marx told plaintiff to
stop. Marx testified that he and plaintiff lifted Briskovic into the ambulance. While they were
waiting for an officer to accompany them to the hospital, plaintiff got into the ambulance and sat in
the attendant's seat next to Briskovic. Marx testified that plaintiff and Briskovic continued to engage
in a verbal argument. Marx asked plaintiff to exit the ambulance. As plaintiff exited the ambulance,
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he apologized to Marx and stated, "I lost it." Marx testified that he attended to Briskovic while
plaintiff drove the ambulance to the hospital. On the way back to the fire station, Marx told plaintiff
that "this was a pretty serious thing" and that plaintiff needed to report the matter to the captain.
Plaintiff agreed he would report the matter.
The City next called Naperville police sergeant Lee Martin. Martin testified that, on
September 19, 2004, at approximately 2:44 a.m., he and sergeant Raymond Atkins were waiting at
the Naperville police station for an ambulance to arrive to treat an individual in police custody.
Martin testified that, when plaintiff first arrived at the police station, he appeared "a little bit upset"
and "a little bit short and gruff." Martin testified that he and Atkins escorted plaintiff and Marx into
the station. Once inside, Martin went into the police station's control room, and Atkins took the
paramedics to Briskovic's holding cell. Martin testified that, through a glass window in the control
room, he observed portions of Briskovic's holding cell. He testified that he heard yelling and when
he looked through the window, he saw plaintiff "forcibly escorting" Briskovic from her cell toward
a gurney. Martin testified that one of plaintiff's hands was "full" of Briskovic's hair and that his other
hand was pulling Briskovic's arm behind her back. Martin observed Marx securing Briskovic to the
gurney with straps, while Briskovic was "flailing around trying to escape" plaintiff's grasp. Martin
testified that Briskovic tried to sit up, and that plaintiff "appeared to take an open hand, grabbed her
by the throat and forcibly put her upper half down on the cot."
The City next called Naperville police sergeant Raymond Atkins to testify. Atkins testified
that he was on duty on September 19, 2004, and that he called for an ambulance for Briskovic.
Briskovic had complained that she was having an anxiety attack and requested her prescription
medication. Atkins testified that plaintiff and Marx arrived in an ambulance and that he took them
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to Briskovic's cell. Atkins testified that plaintiff performed no physical or medical assessment of
Briskovic prior to grabbing her by the hair. Atkins testified that, while he was in the police station's
control room, he heard a loud sound coming from the direction of Briskovic's cell. When Atkins
went into the hallway to see what had happened, he observed Briskovic "almost" on the ground with
plaintiff holding onto her arm. Plaintiff then moved Briskovic toward a gurney while holding her
arm. Atkins testified that, after Briskovic attempted to escape from the restraints on the gurney, he
observed plaintiff force Briskovic down onto the gurney by forming a "V" shape with his hand and
pushing and holding her down around the throat. Atkins suggested that plaintiff remove himself
from contact with Briskovic. Atkins testified that at no time did he consider Briskovic to be a threat
to herself or others.
Atkins further testified that he went to the hospital to speak with plaintiff about the events
at the police station. Plaintiff told him he could not explain what caused him to act in such a
manner. Plaintiff said he had been a paramedic for a long time and that maybe it was time "to get
out." Atkins testified that Briskovic came to see him at the police station later that day, at
approximately 5 p.m. Briskovic filed a complaint against plaintiff. At that time, an evidence
technician took photographs of Briskovic's injuries. Those photographs depicted bruises on
Briskovic's arms, shoulders, neck, and back and were admitted into evidence at the hearing.
The City next called Teresa Briskovic. Briskovic testified that, at approximately 2:44 a.m.
on September 19, 2004, she was sitting on a cot in a holding cell. Briskovic testified that, within a
few seconds after plaintiff entered her cell, he pulled her head up by her hair without any warning.
Briskovic told plaintiff she was having an anxiety attack and needed her medication. Plaintiff told
Briskovic that she could not be having an anxiety attack, because she was able to breathe. Briskovic
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testified that she was "shocked and terrified" by plaintiff's conduct and that she began crying. She
testified that plaintiff then twisted her right arm behind her back. She told plaintiff that she was in
pain and that he was going to break her arm. Plaintiff told her that he would break her arm if he
wanted. Briskovic testified that plaintiff then pushed her into a brick wall and that she fell to the
ground. Briskovic testified that she repeatedly told plaintiff that she did not want to go to the
hospital and that she did not have medical insurance, but plaintiff ignored her. When Briskovic
arrived at the hospital, she told the emergency room staff that she did not want to be treated, and she
was released from the hospital without being treated. Briskovic was then transported back to the
police station and she was later released from custody. She returned to the police station at 5 p.m.
to file a complaint against plaintiff.
The City next called Naperville fire chief John "George" Wu to testify. Wu testified that he
and assistant fire chief Pat Mullen conducted an investigation into the incident involving plaintiff.
As part of this investigation, Mullen interrogated plaintiff on the record. Wu testified that, in filing
the instant charges, he took into account all of the information uncovered in the investigation and
contained in the transcript of the interrogation. Wu testified that, based upon his review of these
materials, he believed plaintiff was guilty of all of the charges alleged in the complaint. The City
then rested its case.
In his case in chief, plaintiff recalled Sergeant Atkins to testify. Atkins acknowledged that,
at the time Briskovic filed her complaint, she told him that she had been trying to pull away from
plaintiff when she fell into the wall in her holding cell. Plaintiff then rested his case.
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The Board went into closed session to deliberate, and when it returned to open session, the
Board found plaintiff guilty of the misconduct alleged in the complaint. The Board then proceeded
to the penalty phase of the hearing.
The City recalled Wu to testify in aggravation. Wu testified that, when plaintiff was being
interrogated during the Department's investigation, he did not accept responsibility for his actions.
Wu explained that plaintiff was specifically asked whether all of his conduct during the incident was
appropriate under the Department's policies and procedures. Plaintiff responded that, considering
the circumstances, he did the best he could. When plaintiff was asked whether he thought he had
taken any actions that were inconsistent with the Department's policies and procedures, plaintiff
answered that he did not. Wu testified that plaintiff's unwillingness to accept responsibility for his
actions led Wu to conclude that plaintiff did not understand the nature of his wrongdoing. Wu
testified that he was concerned that plaintiff might repeat his misconduct in the future. Based upon
those considerations, Wu recommended that the Board discharge plaintiff to protect the public.
In mitigation, plaintiff introduced into evidence several documents from his employment file.
Specifically, plaintiff introduced his annual performance reviews for the preceding 17 years. Each
of those reviews reflected "above average" performance. Plaintiff also introduced several
commendations he had received from the City and the Department, as well as many letters of
appreciation he received for his work in developing and teaching continuing education courses for
fellow paramedics and for hospital personnel.
Additionally, plaintiff submitted documentation relating to his psychiatric treatment
following the incident. Among these records were the admitting notes of Dr. Balamoorti Gaonkar.
Those notes indicated that plaintiff checked himself into the behavioral health services unit of
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Provena Mercy Center in Aurora at approximately 8 p.m. on September 19, 2004. At the time of his
admission, plaintiff reported having been severely depressed for the prior few months and that his
depression had worsened over the past two weeks. Plaintiff also reported that he had been taking
Paxil since he was first diagnosed with depression in 2002. The admitting notes indicated that
plaintiff reported a history of "explosive behaviors" and that he easily became irritable, angry, and
agitated. Plaintiff reported that, earlier in the day, he had become so irritable that he was aggressive
toward a patient. The notes reflected that plaintiff complained of hopelessness and vague suicidal
thoughts, decreased sleep, and decreased appetite.
Plaintiff also introduced into evidence a discharge summary authored by Dr. Sandeep
Gaonkar and the discharge instructions he received from the hospital. Both of these documents
reflected that plaintiff was discharged on September 26, 2004, with diagnoses of depression and
bipolar disorder. Dr. Sandeep Gaonkar prescribed Trazodone, Risperdal, Depakote, and an increased
dosage of Paxil. Plaintiff was instructed to continue anger management classes, as well as group and
individual counseling sessions.
Plaintiff also introduced a "Return to Work/Fitness for Duty Form" and a "Medical
Certification Statement" that were completed and signed by plaintiff and Dr. Sandeep Gaonkar on
September 29, 2004. These forms indicated that plaintiff had been newly diagnosed with bipolar
disorder and that he was currently unable to return to work because his medication was affecting his
motor skills. Plaintiff also submitted four letters signed by Dr. Sandeep Gaonkar. Each of these
letters was addressed "To Whom it May Concern." The first letter was dated October 21, 2004, and
indicated that plaintiff was released to return to work for the purpose of teaching courses. The
second letter was dated October 24, 2004, and indicated that Dr. Sandeep Gaonkar needed to
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reschedule an appointment. The third letter was dated November 3, 2004, and indicated that plaintiff
was to continue taking his medications and was to remain off work "until further notice." The fourth
letter was dated December 8, 2004, and stated, in part:
"I am writing this letter to let you know that Timothy Hermesdorf was seen by me
inpatient at Provena Mercy *** and discharged with the diagnosis of Bipolar II Disorder,
depressed. Since he was started on medication, Tim has shown significant improvement
with his symptoms namely with areas of mood swings, irritability, and impulsive behaviors.
He is regular in attending his appointments and is compliant with his medications."
After the arguments of counsel, the Board voted unanimously to discharge plaintiff for cause.
The Board found that plaintiff's physical and verbal abuse of a patient was a "substantial
shortcoming" that warranted discharge. In making its findings, the Board specifically noted that the
medical records plaintiff introduced did not mitigate against the Board's decision to discharge
plaintiff. Instead, the Board found that the records provided additional support for discharge, noting
that plaintiff "has a tendency for explosive behavior."
On March 7, 2005, plaintiff filed a complaint for administrative review in the trial court.
Before the trial court, plaintiff argued: (1) he was deprived of a fair hearing as a result of the City's
failure to timely tender its discovery responses; (2) the Board's decision was contrary to the manifest
weight of the evidence; and (3) the Board's decision to discharge plaintiff was a violation of the
ADA. On August 3, 2005, the trial court affirmed the decision of the Board, finding that (1) any
procedural deficiencies that may have occurred did not deprive plaintiff of a fair hearing, and (2) the
Board's decision to terminate plaintiff was not against the manifest weight of the evidence. The trial
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court did not specifically rule upon plaintiff's argument relating to the ADA. Plaintiff filed a timely
notice of appeal.
Prior to discussing the merits, we first consider two motions taken with the case. After
defendants filed their appellate briefs, plaintiff moved to supplement the record on appeal with a
May 8, 2006, written decision of the Naperville Board of Trustees of the Firefighters' Pension Fund
(the Pension Board), granting plaintiff's request for a nonduty disability pension. Plaintiff later
moved to supplement the record on appeal with the transcripts of those proceedings. Plaintiff argues
that a consideration of these documents is necessary to give a proper context in which to review the
Board's decision. Defendants object, arguing that it would be improper for this court to consider
evidence not presented to the Board at the time of the disciplinary hearing. We allow the first
motion and deny the second motion.
We allow the motion that asks this court to take judicial notice of the decision of the Pension
Board. This court may take judicial notice of a written decision that is part of the record in another
court or administrative tribunal because such documents fall within the category of readily verifiable
facts "which are capable of 'instant and unquestionable demonstration.' " May Department Stores
Co. v. Teamsters Union Local No. 743, 64 Ill. 2d 153, 159 (1976), quoting 9 J. Wigmore, Evidence
§2571, at 598 (3rd ed. 1940). We deny the motion that asks this court to consider evidence by way
of the report of proceedings of the hearing before the Pension Board. This case involves the review
of a decision made by the Board, an administrative agency. As such, our scope of review is governed
by section 3--110 of the Code of Civil Procedure (the Code) (735 ILCS 5/3--110 (West 2004)),
which provides, in part, "No new or additional evidence in support of or in opposition to any finding,
order, determination or decision of the administrative agency shall be heard by the [reviewing]
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court." We agree with defendants that section 3--110 of the Code precludes our consideration of the
evidence introduced during the hearing on plaintiff's disability pension. The evidence was not before
the Board when it decided to discharge plaintiff. See Rodriguez v. The Sheriff's Merit Comm'n of
Kane County, 218 Ill. 2d 342, 349-50 (2006) ("The Administrative Review Law was an innovation
and a departure from the common law, and the procedures established therein must be followed");
Deen v. Lustig, 337 Ill. App. 3d 294, 304-05 (2003) (denying police officer's motion to supplement
the record on appeal with a medical report that was not introduced at the administrative hearing).
Plaintiff relies on this court's recent decision in Lynch v. City of Waukegan, 363 Ill. App. 3d
1078 (2006), to argue that it is appropriate for this court to take judicial notice of the evidence
introduced at the Pension Board's hearing. In Lynch, a firefighter was discharged for cause after he
had been granted a medical leave of absence to seek treatment for psychiatric conditions that were
the basis for misconduct both on duty and off duty. Lynch, 363 Ill. App. 3d at 1085. The firefighter
was later granted a duty-related medical pension. Lynch, 363 Ill. App. 3d at 1085. This court took
judicial notice of the evidence submitted to the Pension Board in that case because it appears that
no party objected to that evidence being considered by this court. It is the duty of the parties on
appeal to object to supplementation of the record on appeal with inappropriate or irrelevant
materials. State Farm Fire & Casualty Co. v. M. Walter Roofing Co., 271 Ill. App. 3d 42, 47 (1995).
Because we are presented with an objection to the proposed supplementation in this appeal, and
because we have found that section 3--110 of the Code precludes our consideration of the evidence
introduced during the hearing on plaintiff's disability pension, we will disregard all references in
plaintiff's reply brief to the report of proceedings and the evidence submitted at the hearing before
the Pension Board. See Allstate Insurance Co. v. Kovar, 363 Ill. App. 3d 493, 499 (2006).
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Turning to the merits of the case, we first consider plaintiff's contention that the Board's
decision to discharge him was arbitrary and unreasonable. Plaintiff argues that the Board acted
arbitrarily and unreasonably in discharging him because the instant incident was the first time he was
disciplined in more than 17 years of employment. Plaintiff argues that the Board failed to give
sufficient consideration to his above-average performance reviews, his numerous commendations,
and the many letters of appreciation he received for his work in developing and teaching continuing
education courses to paramedics and medical personnel in hospitals. Plaintiff also argues that the
Board acted arbitrarily and unreasonably in discharging him because it did not consider the
possibility that his acts of misconduct were caused by a psychiatric illness or condition.
In an appeal from the judgment of an administrative review proceeding, the appellate court
reviews the administrative agency's decision, not the trial court's decision. Dowrick v. Village of
Downers Grove, 362 Ill. App. 3d 512, 515 (2005). In reviewing an administrative agency's decision
to discharge an employee, this court applies a two-step process. Valio v. Board of Fire & Police
Commissioners, 311 Ill. App. 3d 321, 328 (2000). First, we must determine whether the
administrative agency's finding of guilt was contrary to the manifest weight of the evidence. Walsh
v. Board of Fire & Police Commissioners, 96 Ill. 2d 101, 105 (1983). Second, we must determine
whether the administrative agency's findings of fact provide a sufficient basis for the agency's
conclusion that cause for discharge existed. Walsh, 96 Ill. 2d at 105.
Turning first to a consideration of the Board's finding of guilt, we note that an administrative
agency's findings will be deemed contrary to the manifest weight of the evidence only where the
opposite conclusion is clearly apparent. Du Page County Airport Authority v. Department of
Revenue, 358 Ill. App. 3d 476, 481 (2005). The reviewing court starts from the position that the
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administrative agency's findings of fact are prima facie true and correct. 735 ILCS 5/3--110 (West
2004); Valio, 311 Ill. App. 3d at 328-29. Here, although plaintiff notes some inconsistencies in
certain testimony presented at the hearing, he does not contend that the Board's finding of guilt was
against the manifest weight of the evidence. Plaintiff concedes in his appellate brief that "he has
some accountability for actions during that early morning call." After reviewing the record on
appeal, we conclude that the Board's finding of guilt was not against the manifest weight of the
evidence.
As detailed above, ample evidence was introduced during the hearing to show that: (1)
plaintiff failed to perform a medical assessment of Briskovic before transporting her to the hospital;
(2) plaintiff failed to provide any medical treatment for Briskovic; (3) plaintiff verbally abused
Briskovic by cursing at her and by threatening to break her arm; and (4) plaintiff physically abused
Briskovic by pulling her hair, twisting her arm behind her back, and pushing her onto a gurney with
his hand on her chest and on her neck. In light of this evidence, we conclude that the Board's finding
that plaintiff was guilty of the charges alleged was supported by the evidence.
The second step of our analysis is to determine whether the administrative agency's findings
of fact provide a sufficient basis for its conclusion that plaintiff should be discharged for cause.
Walsh, 96 Ill. 2d at 105. Our supreme court has defined cause for discharge as " 'some substantial
shortcoming which renders [the employee's] continuance in his [or her] office or employment in
some way detrimental to the discipline and efficiency of the service and something which the law
and a sound public opinion recognize as a good cause for his [or her] not longer occupying the place.'
" Walsh, 96 Ill. 2d at 105, quoting Fantozzi v. Board of Fire & Police Commissioners, 27 Ill. 2d
357, 360 (1963). The administrative agency, rather than the reviewing court, is in the best position
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to determine the effect of the employee's conduct on the department. Valio, 311 Ill. App. 3d at 330.
Therefore, an administrative agency's finding of cause for discharge will be overturned only if it is
arbitrary and unreasonable or unrelated to the needs of the department. Walsh, 96 Ill. 2d at 105-06.
Plaintiff initially argues that the Board's disciplinary sanction was arbitrary and unreasonable
because the instant incident was the first time he was disciplined in over 17 years of employment
with the Department. However, Illinois reviewing courts have repeatedly found that a single instance
of misconduct can constitute cause for discharge where the misconduct is serious. See Walsh, 96
Ill. 2d at 106-07 (holding that police officer's misconduct in misuse of his gun on a single occasion
was sufficiently serious to warrant discharge for cause); Valio, 311 Ill. App. 3d at 331 (finding that
a police officer's single instance of lying during a police investigation of his alleged misconduct was
sufficient cause for termination); Kappel v. Police Board of the City of Chicago, 220 Ill. App. 3d
580, 592 (1991) (finding that a police officer's single act of possessing and firing an unregistered
handgun was sufficient cause for discharge); McHenry v. City of East St. Louis, 210 Ill. App. 3d 861,
869 (1991) (finding that a police officer's single act of allowing a ward of the court to live with him
warranted dismissal for cause); Bultas v. Board of Fire & Police Commissioners, 171 Ill. App. 3d
189, 196 (1988) (finding that a police officer's single act of kicking and injuring a detainee was
sufficient cause for discharge despite the officer's otherwise "unblemished career").
In the instant case, plaintiff physically and verbally abused Briskovic, a patient who was in
physical and emotional distress. He committed these acts while he was charged with Briskovic's
care, treatment, and well-being. A paramedic's verbal and physical abuse of a patient is undoubtedly
a serious offense. See Bultas, 171 Ill. App. 3d at 196 (reasoning that an officer's physical abuse of
a detainee should give rise to dismissal). In considering an appropriate discipline, the Board received
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and considered all of the materials in plaintiff's employment file, including his performance reviews,
commendations, and letters of appreciation that he received for his work in developing and teaching
continuing education courses. The Board could have reasonably concluded that, despite plaintiff's
17 years of commendable service, the severity of his misconduct in this case rendered his continued
employment detrimental to the discipline and efficiency of the Department and undermined the
public's confidence in the Department. See Bultas, 171 Ill. App. 3d at 196. Given the seriousness
of the misconduct, had plaintiff's mitigating evidence been limited only to his previous employment
record, we cannot say the Board's decision to discharge for cause would have been arbitrary and
unreasonable or unrelated to the needs of the Department. See Walsh, 96 Ill. 2d at 106-07.
However, as noted by plaintiff, this was not the only mitigating evidence introduced at the
hearing. Specifically, plaintiff introduced evidence that he may have been suffering from psychiatric
conditions at the time of the alleged misconduct. As noted above, following the incident at the
Naperville police station, plaintiff admitted himself into a hospital for psychological treatment.
Plaintiff remained in the hospital for a week and was diagnosed with bipolar disorder and depression.
Relying primarily on Walsh v. Board of Fire & Police Commissioners, 96 Ill. 2d 101 (1983), and
Kloss v. Board of Fire & Police Commissioners, 96 Ill. 2d 252 (1983), plaintiff argues that the Board
failed to sufficiently consider whether his psychiatric conditions were substantially related to his
misconduct. Plaintiff argues that the Board should have made further inquiry into the nature of his
psychiatric conditions and should have considered whether his conditions were a cause of his
misconduct. Plaintiff argues that, instead, the Board inappropriately used the medical evidence as
an aggravating factor to justify its decision to discharge him. The Board counters that it should not
be placed in the position of advocating for plaintiff, that plaintiff had the obligation to present
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evidence of the causal connection between his psychological conditions and his misconduct, and that
he failed to do so. The Board argues its decision to discharge plaintiff was not arbitrary and
unreasonable given plaintiff's failure to present it with sufficient evidence.
In Walsh, the plaintiff was a police officer who was terminated after an incident in which he
pointed and discharged his gun in close proximity to other people, accidently shooting another
person. Walsh, 96 Ill. 2d at 104-05. Prior to this incident, the plaintiff had been diagnosed with
psychiatric "problems" and had been placed on a medical suspension pending the treatment of his
illness. The plaintiff had also been awarded a medical disability pension. Walsh, 96 Ill. 2d at 103-
04. On administrative review of the discharge, our supreme court concluded that the plaintiff's
misconduct of recklessly and irresponsibly displaying and using his gun was a serious offense that
was "more than enough to warrant the board's decision" to discharge him. Walsh, 96 Ill. 2d at 106-
07. Nevertheless, the supreme court remanded the case for a new administrative hearing because
the record reflected that the plaintiff was suffering from a psychiatric illness that the administrative
agency had not fully investigated. Walsh, 96 Ill. 2d at 108. In so ruling, the supreme court
explained:
"[B]ecause the psychiatric evidence presented was so vague and because the board's decision
to discharge [plaintiff] for cause may jeopardize his pension rights, we believe that justice
and fairness require us to vacate the judgments of the appellate and circuit courts and the
order of the board and remand this cause to the board for submission by either party of
further evidence that is relevant to the issue of whether [plaintiff's] misconduct was
substantially the result of the psychiatric problems that led to his prior medical suspension.
If the board finds that the misconduct was substantially related to those problems, the proper
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sanction would be other than discharge for 'cause.' " (Emphasis added.) Walsh, 96 Ill. 2d
at 108.
In Kloss, the plaintiff police officer was discharged after an incident in which he threatened
to shoot and kill a superior officer. Kloss, 96 Ill. 2d at 254-55. The evidence presented at the
disciplinary hearing established that, during the incident, the plaintiff vacillated between periods of
lucidity and irrationality. Kloss, 96 Ill. 2d at 255-56. The evidence further established that the
plaintiff's behavior could be attributed to a reaction that he had after combining his prescription
medications with alcohol. Kloss, 96 Ill. 2d at 256-57. Although the supreme court noted that the
plaintiff's misconduct was sufficiently serious to warrant discharge, it nonetheless remanded the case
for additional proceedings to determine whether the plaintiff's conduct was the result of an
inadvertently induced adverse reaction to his medication. Kloss, 96 Ill. 2d at 258-59. The supreme
court explained that, "In view of plaintiff's otherwise unblemished record, it was unreasonable for
the board to discharge him without availing itself of the opportunity to examine in greater detail the
medically related aspects of the basis for his discharge." Kloss, 96 Ill. 2d at 259.
The rationale of Walsh and Kloss establishes that discharge for cause is inappropriate where
the employee's alleged misconduct was substantially related to or caused by a psychiatric condition.
Walsh, 96 Ill. 2d at 108; Kloss, 96 Ill. 2d at 259. In both Walsh and Kloss, the administrative
agencies were presented with evidence that the employees were suffering from psychiatric conditions
at the time the alleged misconduct occurred. Walsh, 96 Ill. 2d at 108; Kloss, 96 Ill. 2d at 258-59.
In each case, the supreme court found that the administrative agency failed to make a determination
as to whether the misconduct was substantially related to or caused by the psychiatric condition.
Walsh, 96 Ill. 2d at 108; Kloss, 96 Ill. 2d at 259. In such circumstances, the supreme court held that
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justice and fairness required a remand of the case for additional proceedings to determine whether
the misconduct was "substantially the result of the psychiatric problems." Walsh, 96 Ill. 2d at 108.
The supreme court instructed that, if on remand the administrative agency found that the misconduct
was substantially the result of the psychiatric condition, the proper sanction would be other than
discharge for cause. Walsh, 96 Ill. 2d at 108; Kloss, 96 Ill. 2d at 259.
The Board attempts to distinguish Walsh and Kloss. The Board distinguishes Walsh on the
ground that prior to the misconduct that supported the disciplinary complaint in Walsh, the
department had known of the plaintiff's recurring medical problems and had suspended him on that
basis. The Board argues that, in contrast to Walsh, in this case there was no knowledge of the
alleged mental infirmity prior to the misconduct. However, the Board does not explain why such
a distinction dictates a different outcome or a departure from supreme court precedent. The issue
in Walsh and in the instant case is the same: whether the medical condition was the cause of the
misconduct.
The Board distinguishes Kloss on the ground that the officer's actions in that case were
induced by an adverse reaction to medication and there was testimony regarding the reaction, which
mitigated the officer's conduct. The Board argues that, in the instant case, there was no testimony
about any medical or mental condition mitigating plaintiff's conduct toward Briskovic. As explained
below, this contention is unfounded, as plaintiff did present some evidence of a psychiatric condition
that may have been related to his conduct. As such, we do not find Kloss distinguishable on this
basis.
In the instant case, as in Walsh and Kloss, the Board was presented with some evidence that
plaintiff was suffering from psychiatric conditions at the time of the incident with Briskovic. As
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detailed above, plaintiff presented the Board with copies of medical records from his hospitalization
following the incident. These documents reflect that plaintiff had suffered from depression for more
than two years and that he had been prescribed medication to treat the condition. These documents
also reflect that plaintiff was discharged from the hospital with diagnoses of depression and bipolar
disorder. Plaintiff's treatment plan, both during and after his hospitalization, required attendance at
therapy sessions and included medications such as Trazodone, Risperdal, Depakote, and an increased
dosage of Paxil. Plaintiff also introduced letters and forms completed by his treating physician
indicating plaintiff's need for a medical leave of absence due to his illnesses.
Despite the presence of evidence reflecting that plaintiff was suffering from psychiatric
conditions at the time of his misconduct, the record reflects that the Board failed to make any
determination as to whether the misconduct was the substantial result of his psychiatric illnesses.
In fact, the only reference the Board made to plaintiff's medical evidence was to note that plaintiff
had a history of "explosive behavior" as a further justification for discharge.
In light of plaintiff's otherwise unblemished employment record and the medical evidence
presented, we conclude that it was unreasonable for the Board to have discharged plaintiff for cause
without having made a specific finding as to whether plaintiff's illnesses were substantially related
to his misconduct. See Walsh, 96 Ill. 2d at 108; Kloss, 96 Ill. 2d at 259-60. We recognize, however,
that as in Walsh, the medical evidence introduced at the disciplinary hearing was insufficiently
developed, in that plaintiff did not present evidence regarding the causal connection between his
psychiatric conditions and his misconduct, to support any factual determination as to the existence
of a causal connection. Accordingly, we conclude that a remand of this case for additional
proceedings is necessary. See Walsh, 96 Ill. 2d at 108 (remand "for submission by either party of
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further evidence"); Kloss, 96 Ill. 2d at 259 (remand so the board could "avail[] itself of the
opportunity to examine in greater detail the medically related aspects" of the basis for discharge).
Contrary to the Board's contention, we do not place it in the position of "advocating" for plaintiff,
as we recognize the Board's proper role in these proceedings is to act as the impartial finder of fact.
See Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419, 427 (1992). Rather, we
conclude that a remand of this case is necessary because the Board did not make the required finding,
per Walsh and Kloss, regarding whether plaintiff's psychological conditions were substantially
related to his misconduct. Walsh, 96 Ill. 2d at 108; Kloss, 96 Ill. 2d at 259-60.
On remand, the Board shall determine whether plaintiff's misconduct on September 19, 2004,
was substantially related to any psychiatric condition from which he was suffering at that time. In
abiding by this mandate, the Board may, in its discretion, reopen the proofs so that either or both
parties may introduce medical evidence to allow the Board to make its determination. See Kloss,
96 Ill. 2d at 259. In the event that the Board determines plaintiff's misconduct was substantially
related to a psychiatric condition, it shall be the obligation of the Board to fashion a disciplinary
sanction consistent with the fairness and justice goals enunciated in Walsh, 96 Ill. 2d at 108.
Plaintiff's second contention is that the Board violated the provisions of the ADA (42 U.S.C.
§12101 et seq. (2000)) when it discharged him. The ADA prohibits certain employers from
discriminating against individuals with disabilities. See 42 U.S.C. §12112(a) (2000). Plaintiff
argues that his psychiatric illnesses qualify him as a disabled person and entitle him to protection
under the ADA. We need not address the merits of this contention, because the issue is not properly
before us. The record reflects that the applicability of the ADA was never pleaded or raised during
the administrative hearing. The United States Supreme Court has held that individuals invoke the
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protections of the ADA by initiating private causes of action. See Barnes v. Gorman, 536 U.S. 181,
184-85, 153 L. Ed. 2d 230, 235, 122 S. Ct. 2097, 2099-2100 (2002). The instant litigation does not
arise from a cause of action filed to enforce the provisions of the ADA. Instead, this case is an
administrative proceeding initiated by the Department seeking to discharge plaintiff for cause. The
scope of our review on appeal is therefore limited to a consideration of whether the Board's decision
to discharge plaintiff was arbitrary and unreasonable or unrelated to the needs of the Department.
See Walsh, 96 Ill. 2d at 105-06. As plaintiff has not initiated a cause of action alleging a violation
of the ADA, we need not determine whether the Board's decision to discharge plaintiff violated the
protections accorded under that act, and we decline to consider that issue.
Plaintiff's final contention on appeal is that he was denied a fair hearing when the City failed
to timely tender its discovery responses. Specifically, plaintiff argues that he did not receive a copy
of the transcript of his administrative interrogation prior to the commencement of the disciplinary
hearing. A review of the record reveals that, although plaintiff objected to the admission of the
transcript on the basis that the document contained hearsay, at no time during the disciplinary
hearing did plaintiff object to the timeliness of the City's disclosure of the transcript or its other
discovery responses. Although the trial court considered the merits of this issue, we decline to do
so, as we find that plaintiff has waived this issue as a result of his failure to object at the time of the
disciplinary hearing. National City Bank of Michigan/Illinois v. Property Tax Appeal Board, 331
Ill. App. 3d 1038, 1044 (2002) (holding that an argument or objection not raised in an administrative
hearing is waived and may not be raised for the first time on administrative review).
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For the foregoing reasons, we reverse the circuit court's judgment affirming the Board's
decision to discharge plaintiff for cause and we remand this case to the Board for further proceedings
consistent with the views expressed herein.
Reversed and remanded.
CALLUM and GILLERAN JOHNSON, JJ., concur.
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