2020 IL App (5th) 190027-U NOTICE NOTICE Decision filed 03/04/20. The This order was filed under text of this decision may be NO. 5-19-0027 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for IN THE by any party except in the Rehearing or the disposition of limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
JEFFREY BLOCK, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Jefferson County. ) v. ) No. 11-L-47 ) OFFICE OF THE ILLINOIS SECRETARY ) OF STATE and MICHAEL PIPPIN, ) ) Defendants ) ) Honorable (Office of the Illinois Secretary of State, ) Eric J. Dirnbeck, Defendant-Appellee). ) Judge, presiding. ______________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the judgment of the court. Justices Moore and Wharton concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court of Jefferson County in favor of the defendant, the Office of the Illinois Secretary of State (Secretary of State), is affirmed where the court’s finding that, although the plaintiff proved he engaged in statutorily protected whistleblowing conduct, he failed to prove that such conduct was a contributing factor in the Secretary of State’s decision to terminate his employment was not against the manifest weight of the evidence.
¶2 On August 13, 2010, the plaintiff, Jeffrey Block, filed a complaint alleging, inter alia, a
violation of the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq.
(West 2006)) against the defendant, the Office of the Illinois Secretary of State (Secretary of
1 State). 1 After the trial court granted the Secretary of State’s motion to dismiss the plaintiff’s Ethics
Act claim on sovereign immunity grounds, this court reversed and remanded the case for further
proceedings. See Block v. Office of Illinois Secretary of State, 2013 IL App (5th) 120157, ¶¶ 1,
17. On remand, a bench trial was held, which resulted in a verdict in favor of the Secretary of
State. On appeal, the plaintiff argues that the judgment was against the manifest weight of the
evidence. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 In pertinent part, the evidence adduced at trial revealed the following. During the time
period relevant to this appeal, the Secretary of State was made up of several different departments,
including the department of police, the department of personnel, and the office of the inspector
general. The department of police employed sworn police officers called “investigators” who
investigated crimes under the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2018)). The
department of police also conducted internal investigations into allegations of misconduct by its
employees.
¶5 The plaintiff was employed as an investigator in District 4 of the department of police,
which was headquartered in Mount Vernon, Illinois. At the time of the events giving rise to his
discharge, his immediate superior was Sergeant Michael Hoffman, who reported to Captain Brad
Warren. Warren reported to Brad Demuzio, the director of the department of police, as well as
Steve Rutledge and Larry Schmidt, the deputy directors of the department of police.
1 Additionally, the plaintiff’s complaint alleged violations of the Uniform Peace Officers’ Disciplinary Act (Disciplinary Act) (50 ILCS 725/1 et seq. (West 2006)) against the Secretary of State and its employee, Michael Pippin, respectively. The trial court also granted the motion to dismiss with respect to these two counts and that decision was not appealed. Thus, the only allegations relevant to this appeal are those relating to the Secretary of State’s alleged violation of the Ethics Act. 2 ¶6 The department of personnel made employment decisions for all departments within the
Secretary of State’s office, including disciplinary decisions. Other departments, including the
department of police, employed liaisons to interact with the department of personnel on
employment issues. At the time of the plaintiff’s discharge, Stephan Roth was the director of the
department of personnel and Gina DiCaro was its discipline coordinator.
¶7 The office of the inspector general investigated alleged violations of the Ethics Act and
other alleged acts of wrongdoing within the Secretary of State. In cases of alleged misconduct by
department of police investigators, the office of the inspector general sometimes assisted the
department of police in their investigations. In other cases, the office of the inspector general
would investigate department of police investigators without involving the department of police.
Nathan Maddox was the executive inspector general for the Secretary of State during the time
period relevant to this appeal.
¶8 A. The Plaintiff’s Performance Prior to His Whistleblowing Activity
¶9 The plaintiff began working as a department of police investigator in 1988. At trial,
Captain Warren testified that, in the first few years of the plaintiff’s employment, he was “a very
good police officer, hard working, [and] conscientious.” According to Warren, however, the
plaintiff’s performance began steadily declining in the late 1990s, and this continued through the
remainder of his employment. The plaintiff testified that between 2005 and 2007 his performance
was affected by marital problems and Crohn’s disease, which he was diagnosed with in June 2004.
In early 2006, the plaintiff requested medical leave for his Crohn’s disease, which was granted.
¶ 10 According to Sergeant Hoffman, the plaintiff’s performance started “suffering long before”
his Crohn’s disease diagnosis. Hoffman testified that he tried to help the plaintiff with his marital
and medical problems for “years and years and years.” Hoffman repeatedly encouraged the
3 plaintiff to use the psychological services available through the department of police’s Employee
Assistance Program, but the plaintiff refused. Hoffman also helped the plaintiff with his request
for medical leave.
¶ 11 After the plaintiff returned from medical leave in March 2006, Director Demuzio instructed
Warren to require the plaintiff to attend weekly mental health counseling and to meet with
Hoffman regularly. During these biweekly meetings, Hoffman and the plaintiff discussed the
personal and professional issues the plaintiff was dealing with and strategies for improving his
work performance.
¶ 12 B. The Plaintiff’s Whistleblowing Activity
¶ 13 In April 2006, Lieutenant Robert Wingo of the department of police, who was one of the
plaintiff’s superior officers, and his personal friend, asked the plaintiff to come to his house while
he was off duty. During the plaintiff’s visit, Wingo confessed that he was having an affair with a
coworker. Wingo was afraid that the coworker was going to accuse him of sexual harassment, so
he asked the plaintiff and another friend to help him think of a false story to discredit any
allegations against him. The plaintiff did not act on Wingo’s request.
¶ 14 In August 2006, the office of the inspector general began investigating Wingo for misusing
grant funds. The investigation revealed that Wingo reported being on duty to receive
compensation funded by state and federal government grants but did not actually perform any
work during that time.
¶ 15 On September 4, 2006, Wingo called the plaintiff and asked him to watch his children
while he ran a triathlon in Missouri. Wingo then told the plaintiff that he was going to falsely
report being on duty to receive grant-funded compensation while he was participating in the
4 triathlon. After this conversation, the plaintiff decided to report Wingo’s misconduct to his
superiors.
¶ 16 On September 12, 2006, the plaintiff and his attorney met with Director Demuzio,
Executive Inspector General Maddox, and Director Roth. The plaintiff asked if he would be given
whistleblower protection for disclosing information about Wingo; Maddox said that he would.
The plaintiff then recounted Wingo’s alleged misconduct. Both Roth and Maddox testified that
they did not believe the plaintiff revealed anything new about Wingo because the investigation
about Wingo’s misuse of grant funds was already ongoing. However, they could not recall if they
had heard about Wingo’s attempt to cover up sexual harassment before they met with the plaintiff.
¶ 17 On September 27, 2006, Wingo committed suicide.
¶ 18 C. The Plaintiff’s Work Performance After Wingo’s Death
¶ 19 The night after Wingo’s death, the plaintiff failed to inform dispatch that he was going off
duty and did not answer his cell phone. The next day, Warren, still unable to reach the plaintiff,
requested that the Illinois State Police broadcast an “attempt to locate” message to all police
agencies in the state. The message stated that the plaintiff was missing, possibly armed, and
possibly suicidal. After the message was sent out, a department of police investigator found the
plaintiff at the home of his estranged wife, Sandy. 2
¶ 20 The plaintiff testified that, throughout October 2006, he was experiencing grief over
Wingo’s death and still dealing with marital issues. Warren testified that Wingo’s death affected
the morale of every officer in the department of police, not just the plaintiff. Warren did not
believe that the plaintiff was struggling to deal with it any more than any other investigator.
2 Because the plaintiff and his estranged wife share a last name, we will refer to Sandy by her first name for ease of reference. 5 ¶ 21 Hoffman continued to meet with the plaintiff every two weeks throughout the summer and
fall of 2006, and he reported on the plaintiff’s work performance to his superiors. On October 3,
2006, Hoffman told Warren that the plaintiff had “not completed any work for the month of
September.” Hoffman stated that the plaintiff lacked the “self discipline or drive to complete [any]
case report writing” and that individuals had complained about his failure to return phone calls.
Ten days later, Hoffman again reported that the plaintiff’s “lack of work ethic” was causing
problems. Hoffman noted that the plaintiff had not turned in any completed work in August,
September, or October of that year and that the plaintiff had not reported any work activity in 33
of his 43 assigned cases. Nevertheless, Hoffman stated that, in light of Wingo’s death, he did not
believe that disciplining the plaintiff was appropriate at that time. Correspondence between
Hoffman, Warren, and other supervisors reveals that they were actively trying to help the plaintiff
improve his work performance, but he was not responsive to their assistance. On October 24,
2006, Warren wrote that he and the plaintiff’s supervisors had “exhausted every possible
motivation/disciplinary tool [they] could collectively think of.”
¶ 22 On November 1, 2006, Hoffman told Warren that the plaintiff had not updated any of his
reports in October and had “completely shut down on his duties and requirements.” Hoffman
noted that the Perry County State’s Attorney’s office was upset at the plaintiff’s failure to complete
his investigation in one case so that it could begin its prosecution. Hoffman believed that the
plaintiff had recovered from Wingo’s death; he noted that the plaintiff had not mentioned Wingo
in two weeks and did not seem depressed.
¶ 23 D. The Investigation Into the Plaintiff’s Alleged Misconduct
¶ 24 On October 25, 2006, Warren was contacted by Sandy, who said she wanted to meet with
him to discuss the plaintiff’s allegedly “unethical and possibly illegal” conduct. Sandy claimed
6 that the plaintiff broke into her house, accessed her phone records, and hacked into her computer.
She also claimed that the plaintiff slept all day while telling the department of police that he was
on duty. Warren relayed this information to Deputy Director Schmidt and Steve Chiapelli, an
investigator for the office of the inspector general. Warren recognized “the potential for inaccurate
information coming from an *** estranged spouse” but requested that an investigation be initiated
into Sandy’s allegations.
¶ 25 Captain Michael Pippin, who was in charge of all internal investigations for the department
of police, was assigned to investigate Sandy’s allegations. Pippin was outside of the plaintiff’s
chain of command.
¶ 26 On October 26, 2006, Pippin interviewed Sandy. Pippin testified that he “was concerned”
by Sandy’s allegations, but he did not immediately determine whether they were “credible or not.”
He added that his investigation was designed, at least in part, to find out if Sandy was telling the
truth. Pippin and Office of the Inspector General Inspector Tim Young conducted a follow-up
interview with Sandy on November 27, 2006.
¶ 27 At Demuzio’s direction, Pippin installed a global positioning system (GPS) tracking device
on the plaintiff’s squad car to assess the veracity of Sandy’s claim that the plaintiff was engaging
in personal activities while reporting that he was on duty. The GPS tracker recorded the plaintiff’s
whereabouts from October 26, 2006, to November 2, 2006. Thereafter, Pippin compared the data
from the tracker to the plaintiff’s activity reports in the department of police’s computer-aided
dispatch (CAD) system. The CAD system was a radio broadcast system used by the department
of police to keep track of its investigators’ work activity. Throughout the day, department of police
investigators were required to report their activities, whereabouts, and the case they were working
on to CAD.
7 ¶ 28 Pippin drafted documents detailing the discrepancies between the plaintiff’s CAD reports
and the GPS data. These documents showed that the plaintiff repeatedly notified CAD that he
would be in one location, when the GPS tracker showed his squad car in a different location. For
example, on October 27, 2006, the plaintiff reported to CAD that he was writing reports at the
department of police’s Carbondale, Illinois, office, but the GPS showed him parked at his residence
in a different part of Carbondale. Similarly, on October 30, 2006, the plaintiff reported that he
was on duty performing an investigation, but the GPS showed that he drove to Sandy’s house in
O’Fallon, Illinois. Pippin also noted that the GPS showed that, on three of the days recorded, the
plaintiff’s squad car reached a maximum speed of 100, 87.6, and 98.2 miles per hour, respectively,
though CAD did not reflect any traffic stops or activity requiring the plaintiff to travel at excessive
speeds.
¶ 29 On November 14, 2006, Hoffman, at Pippin’s request, questioned the plaintiff about his
work activity on October 27 and 30, 2006. According to Hoffman, the plaintiff said he could not
remember his location or activity on either day. Hoffman asked the plaintiff why he was not using
CAD, and the plaintiff responded by asking if every investigator was using CAD or if Hoffman
was singling him out. The plaintiff admitted that he had been trained on how to use CAD and said
that “he would do better.” Hoffman subsequently drafted a summary of his November 14 meeting
with the plaintiff and gave it to Pippin.
¶ 30 Pippin and Toni Bentel, the department of police’s liaison to the department of personnel,
prepared a “Notification of Charges/Allegations,” which Hoffman served on the plaintiff on
November 15, 2006. The Notification of Charges/Allegations listed numerous Secretary of State
and department of police policies that the plaintiff had violated, including misusing state working
time, falsifying reports, violating the Illinois Vehicle Code, and engaging in conduct that brought
8 discredit on the department of police. The notice also informed the plaintiff that he had been
scheduled for an interrogation with Department of Police Lieutenant Donelle Grygiel and
Inspector Young.
¶ 31 On November 21, 2006, the plaintiff, accompanied by an attorney, appeared for his formal
interrogation. Although Pippin was present, only Grygiel and Young questioned the plaintiff.
Pippin testified that he asked Grygiel to conduct the interrogation because she was not assigned to
District 4; Pippin used investigators from different districts to conduct internal interrogations to
avoid “any kind of prejudice.”
¶ 32 At the outset of the interrogation, the plaintiff said he was unorganized and distracted since
Wingo’s death. He admitted that he had done a poor job in his investigations, was not a “perfect
report writer,” failed to return phone calls, and had not “done *** a great job with CAD.” When
Grygiel asked him if he ever reported to CAD that he was conducting an investigation when he
was actually at his residence, the plaintiff admitted that he had in the past “stayed at [his] house
for whatever reason.” He claimed that this was “not a normal thing” but acknowledged that it had
“happened *** for whatever reason—being on the telephone or whatever.” He could not say how
often he stayed at home while reporting that he was on duty. When asked why he did not tell his
supervisors that he was staying home, the plaintiff cited the mental health issues he had been
dealing with since Wingo’s death. The plaintiff provided Grygiel and Young with a note from his
counselor diagnosing him with panic disorder, major depressive disorder, and posttraumatic stress
disorder (PTSD).
¶ 33 Grygiel then confronted the plaintiff with the discrepancies between his CAD reports and
the GPS data. Specifically, Grygiel noted that, on October 27, 2006, GPS showed the plaintiff
leaving his house at 8:35 a.m., but he did not report being on duty until 9:07 a.m. The plaintiff
9 could not explain this discrepancy except by saying that his “head [was] in the clouds.” Grygiel
then asked the plaintiff why, on the same day, he reported to CAD that he was writing reports at
the department of police’s Carbondale office from 10:20 a.m. to 1:19 p.m., but the GPS showed
that he was driving around a different part of Carbondale and at his residence during that time.
The plaintiff responded that his CAD report was “obviously not accurate,” but he had “no idea
why.”
¶ 34 Grygiel also asked why, on October 30, 2006, the plaintiff reported to CAD that he was on
duty at 7:52 a.m., but the GPS showed that, instead of doing any work, he drove 89 minutes to
Sandy’s house in O’Fallon. The plaintiff claimed that Sandy was not answering her phone, so he
drove to her house to “make sure she was okay.” The plaintiff admitted that he did not tell any of
his supervisors that he was traveling to O’Fallon. He also did not dispute the GPS data showing
that he drove 100 miles per hour on that trip. The plaintiff agreed that after he left Sandy’s house,
he drove to the District 4 headquarters in Mount Vernon, then went to an address on North 27th
Street without reporting the trip to CAD. After stopping on North 27th Street, the GPS showed
that the plaintiff drove to a friend’s house on Gray Drive in Carbondale. Although he used the
code for investigation during that time, the plaintiff admitted that he did not perform any official
business while he was there. When asked why he told CAD that he was participating in an
investigation when he was actually visiting a friend, the plaintiff answered that he had “no idea.”
¶ 35 The plaintiff also could not remember why he returned to that same friend’s house the next
day, October 31, 2006, while reporting to CAD that he was on duty. Grygiel noted that, other than
the visit to his friend’s house, the GPS data showed the plaintiff driving aimlessly around
Carbondale. The plaintiff admitted that he had “done a lot of that” and again said that his “head
[had] been in the clouds.” Grygiel then asked the plaintiff what he was doing on November 2,
10 2006, when his CAD report said that he was on duty at the Carbondale office but the GPS tracker
showed his squad car sitting motionless in different areas of Carbondale and driving to Livan,
Illinois. The plaintiff again said that he had “no idea” and he could have been doing “a variety of
things.”
¶ 36 At the conclusion of the interrogation, the plaintiff admitted that his CAD reports were
inaccurate but said that he would “make attempts to correct it.” The plaintiff said he was not proud
of his lack of productivity, but he hoped that the department of police would “help [him] out”
because was “struggling” over Wingo’s death. Other than the day he drove 100 miles per hour to
O’Fallon because he was worried about Sandy, the plaintiff could not explain why he drove at
excessive speeds at times when he was not making a traffic stop.
¶ 37 Pippin subsequently completed an investigative report summarizing the evidence he
gathered during his investigation. Pippin then sent his report, his comparisons of the GPS data to
the plaintiff’s CAD reports, and the transcript of the interrogation to Director Demuzio; the
information was eventually forwarded to the department of personnel.
¶ 38 E. The Decision to Discharge the Plaintiff
¶ 39 As the director of the department of personnel, it was Roth’s responsibility to determine
what discipline was appropriate to impose on the plaintiff. Before making its decision, the
department of personnel sent the plaintiff for an independent medical examination in light of his
complaints of anxiety, depression, and PTSD. Dr. Terry Killian, a psychiatrist, performed the
examination in February 2007. DiCaro, the department of personnel’s discipline coordinator,
provided Dr. Killian with a list of issues to evaluate, the plaintiff’s personnel records, and
information from Pippin’s investigation. DiCaro denied that the independent medical examination
11 was performed as cover for any retaliation against the plaintiff for engaging in whistleblowing
activity.
¶ 40 In April 2007, Dr. Killian concluded that the plaintiff was fit for duty. DiCaro and Roth
both testified that Dr. Killian’s finding was not the reason that the plaintiff was ultimately
discharged—it only affected the disciplinary decision to the extent that it showed that his mental
condition did not impair his ability to do his job.
¶ 41 After the plaintiff was found fit for duty, Roth reviewed the evidence from Pippin’s
investigation, determined that the plaintiff’s conduct warranted discharge, and directed DiCaro to
prepare a letter informing the plaintiff of the decision. The letter, which DiCaro drafted with input
from Roth and Pippin, stated that the plaintiff was “being considered for discharge” from his
position with the Secretary of State. It listed nine charges against the plaintiff: (1) insubordination
or disobedience; (2) incompetence or inefficiency in the performance of a duty, or inattention to
duty; (3) making false reports; (4) misuse or abuse of state working time for reasons other than the
plaintiff’s assigned duties; (5) misusing state property for reasons other than the plaintiff’s
assigned duties; (6) disorderly conduct during work hours; (7) failing to perform duties during
scheduled work hours; (8) failure to obey all laws, ordinances, rules, and regulations; and
(9) failing to treat state property with due care. The letter cited the discrepancies between the
plaintiff’s CAD reports and the GPS data, as well as the plaintiff’s speeding in his squad car. It
further noted that, during his interrogation, the plaintiff “made several admissions to violations of
policy,” which supported the charges against him, including his admission that he failed to use the
CAD system properly and failed to update his case reports.
¶ 42 The letter stated that, on September 24, 2000, the plaintiff served an eight-day suspension
“as a result of [his] filing of false reports and misrepresentation of [his] work activities.” Roth
12 acknowledged that he generally did not consider an employee’s past discipline that was more than
12 months old in assessing progressive discipline. Roth explained, however, that the letter
mentioned the plaintiff’s prior suspension, not as a basis for more severe discipline, but rather to
show that the plaintiff should have known that the rules prohibited him from filing false reports
and misrepresenting his work activity.
¶ 43 The letter concluded that the plaintiff “repeatedly misrepresented [his] whereabouts,”
“attempted to conceal [his] inactivity *** by giving false reports through *** CAD,” ignored his
assigned responsibilities, and “traveled at speeds in excess of the posted speed limits” without
justification. It also asserted that the plaintiff acknowledged that he was familiar with the rules
and procedures of the department of police but “willfully and consciously chose not to adhere to
them.” The letter directed the plaintiff to submit his rebuttal to the charges within four days.
¶ 44 In his rebuttal, the plaintiff “acknowledge[d] and accept[ed] responsibility for the policies
[he] violated” but claimed that discharge was “unjustified and excessive.” The plaintiff stated that
he had received “numerous commendations” in the past and “strived to be a good employee.” He
also noted that he had experienced stress and anxiety after he reported Wingo’s misconduct and
that his emotional state was “fragile” following Wingo’s death. The plaintiff further alleged that
the department of police had tried to cause him more stress and failed to take any responsibility
for the situation. The plaintiff claimed that the message the department of police broadcasted when
it could not locate him on September 29, 2006, “outraged and humiliated” him because it said he
was suicidal. He also alleged that the department of police failed to make a “reasonable
accommodation” for his mental health issues, which he asserted fell under the Americans with
Disabilities Act. The plaintiff argued that, in light of his mental state, progressive discipline was
warranted before his termination.
13 ¶ 45 Roth reviewed the plaintiff’s rebuttal prior to making his final decision. Roth testified that
he reviewed an employee’s rebuttal before imposing discipline and, if it raised factual questions,
he would order further investigation. He determined that, in the plaintiff’s case, the rebuttal did
not raise any such questions. Roth noted that the plaintiff admitted that he had committed policy
violations, and thus, there was no need for further investigation. He disagreed with the plaintiff’s
request for progressive discipline because the information gathered and “the severity of the
situation” warranted discharge. Roth explained that the plaintiff’s misconduct was severe and
justified discharge because it “involved theft of time; basically, that he was supposed to be doing
work [but was not] doing work.” The plaintiff also filed false reports, which called into question
his truthfulness. Roth believed that truthfulness was especially important for law enforcement
officers like the plaintiff because “[i]f [they are] called before a case and they have to give
testimony, the last thing you want is somebody who has been disciplined for not providing truthful
information.” Roth noted that other Secretary of State employees who were found guilty of theft
of time had also been discharged. Finally, Roth indicated that the plaintiff’s invoking of his rights
as a whistleblower during the September 12, 2006, meeting was not a factor in the decision to
discipline him. Roth did not see any evidence that Pippin or Hoffman held any bias against the
plaintiff or had any motive to try to get him fired. This was corroborated by Pippin, who testified
that his investigative decisions were not influenced by the fact that the plaintiff had reported
wrongdoing by Wingo.
¶ 46 The plaintiff was discharged from his employment on July 16, 2007.
¶ 47 F. Relevant Procedural Posture
¶ 48 In August 2010, the plaintiff initiated the present action in the circuit court. In his
complaint, he alleged that the Secretary of State retaliated against him in violation of the Ethics
14 Act. The court dismissed the plaintiff’s Ethics Act claim on the basis of sovereign immunity, but
the dismissal was reversed on appeal. Block, 2013 IL App (5th) 120157, ¶¶ 1, 17. Finding that
the Ethics Act claim was not barred by sovereign immunity, this court remanded the case for
further proceedings on that claim. Id. ¶¶ 7-17.
¶ 49 On remand, the case proceeded to a bench trial on March 6 and 7, 2008. The plaintiff,
DiCaro, Hoffman, Maddox, and Roth testified at trial, and the parties submitted depositions of
Warren and Pippin in lieu of live testimony. The trial court admitted all of the parties’ exhibits
without objection except for the Secretary of State’s exhibits 1, 11, 15, and 17.
¶ 50 After considering the evidence and the parties’ written closing arguments, the trial court
found that the plaintiff proved that he had engaged in statutorily protected whistleblowing conduct
under the Ethics Act but failed to prove that such conduct was a contributing factor in the Secretary
of State’s decision to terminate his employment. Thus, the court entered a judgment in favor of
the Secretary of State and against the plaintiff.
¶ 51 The plaintiff timely filed his notice of appeal on January 9, 2019.
¶ 52 II. ANALYSIS
¶ 53 In reviewing a trial court’s judgment following a bench trial, we will affirm so long as the
judgment is not against the manifest weight of the evidence. Wynn v. Illinois Department of
Human Services, 2017 IL App (1st) 160344, ¶ 56; Chicago’s Pizza, Inc. v. Chicago’s Pizza
Franchise Ltd. USA, 384 Ill. App. 3d 849, 859 (2008). “ ‘A judgment is against the manifest
weight of the evidence only when an opposite conclusion is apparent or when findings appear to
be unreasonable, arbitrary, or not based on evidence.’ ” Buckner v. Causey, 311 Ill. App. 3d 139,
143 (1999) (quoting Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995)).
15 ¶ 54 “As the trier of fact, the trial judge was in a superior position to judge the credibility of the
witnesses and determine the weight to be given to their testimony. [Citation.] When contradictory
testimony that could support conflicting conclusions is given at a bench trial, an appellate court
will not disturb the trial court’s factual findings based on that testimony unless a contrary finding
is clearly apparent.” Chicago’s Pizza, 384 Ill. App. 3d at 859.
¶ 55 Under section 15-10(1) of the Ethics Act, a state employee or state agency is prohibited
from taking any retaliatory action against a state employee who “[d]iscloses or threatens to disclose
to a supervisor or to a public body an activity, policy, or practice of any officer, member, State
agency, or other State employee that the State employee reasonably believes is in violation of a
law, rule, or regulation.” 5 ILCS 430/15-10(1) (West 2006). “A violation of this Article may be
established only upon a finding that (i) the State employee engaged in conduct described in Section
15-10 and (ii) that conduct was a contributing factor in the retaliatory action alleged by the State
employee.” Id. § 15-20. A “contributing factor” has been defined as any factor, in isolation or
combined with other factors, that tends to affect the outcome of the decision. Wynn, 2017 IL App
(1st) 160344, ¶ 58.
¶ 56 In this case, it is undisputed that the plaintiff engaged in statutorily protected
whistleblowing conduct when he reported on Wingo. The plaintiff contends on appeal, however,
that the trial court’s finding that such conduct was not a contributing factor in the Secretary of
State’s decision to discharge him was against the manifest weight of the evidence. In support of
his position, the plaintiff argues that the following evidence showed that his whistleblowing was a
contributing factor in his discharge: (1) his issues of poor work performance had not resulted in
disciplinary action prior to his reporting of Wingo, (2) Pippin’s investigation arose from
allegations made by the plaintiff’s estranged wife, (3) Pippin researched laws relating to
16 whistleblower protections on the same day that the plaintiff reported on Wingo, (4) the plaintiff
was not informed of his rights under the Disciplinary Act during his formal interrogation,
(5) “questionable medical determinations,” (6) the Secretary of State failed to impose progressive
discipline, and (7) another department of police investigator who reported Wingo’s misconduct
was also terminated.
¶ 57 In pursuing such an argument on appeal, the plaintiff asks us to ignore our standard of
review by ruling on matters of witness credibility and the weight given to conflicting evidence.
However, a reviewing court “may not assess the credibility of witnesses, and we will reverse the
[trial] court’s factual determinations only if they are clearly against the manifest weight of the
evidence.” ALSJ, Inc. v. Kurtz, 2016 IL App (2d) 150492, ¶ 49. Based on our review of the record,
we find that the court’s conclusion was not against the manifest weight of the evidence because
the Secretary of State presented overwhelming evidence that the plaintiff’s discharge was related
to an extended period of declining work performance and policy violations to which he admitted.
¶ 58 The department of personnel letter informing the plaintiff that he was “being considered
for discharge” listed nine charges to support the decision: (1) insubordination or disobedience;
(2) incompetence or inefficiency in the performance of a duty, or inattention to duty; (3) making
false reports; (4) misuse or abuse of state working time for reasons other than the plaintiff’s
assigned duties; (5) misusing state property for reasons other than the plaintiff’s assigned duties;
(6) disorderly conduct during work hours; (7) failing to perform duties during scheduled work
hours; (8) failure to obey all laws, ordinances, rules, and regulations; and (9) failing to treat state
property with due care. The letter cited to the discrepancies between the plaintiff’s CAD reports
and the GPS data, as well as the plaintiff’s speeding in his squad car. It further noted that, during
his interrogation, the plaintiff “made several admissions to violations of policy” that supported the
17 charges against him, including his admission that he failed to use the CAD system properly and
failed to update his case reports.
¶ 59 The letter went on to explain that, in September 2000, the plaintiff served an eight-day
suspension “as a result of [his] filing of false reports and misrepresentation of [his] work
activities.” Although this fact was not used as a basis for more severe discipline, it indicated that
the plaintiff should have known that the rules prohibited him from filing false reports and
misrepresenting his work activity. The letter then concluded that the plaintiff “repeatedly
misrepresented [his] whereabouts,” “attempted to conceal [his] inactivity *** by giving false
reports through *** CAD,” ignored his assigned responsibilities, and “traveled at speeds in excess
of the posted speed limits” without justification. Finally, the letter asserted that the plaintiff
acknowledged that he was familiar with the rules and procedures of the department of police but
“willfully and consciously chose not to adhere to them.”
¶ 60 The letter did not rely on the fact that the plaintiff had reported on Wingo as a reason for
his proposed discharge. Similarly, Roth’s testimony indicated that the plaintiff’s whistleblowing
activity was not a factor that he considered when he decided to discipline him. Roth further
testified that he did not see any evidence that Pippin or Hoffman held any bias against the plaintiff
or had any motive to try to get him fired. Pippin himself testified that his investigative decisions
were not influenced by the fact that the plaintiff had reported wrongdoing by Wingo.
¶ 61 In contrast to the plaintiff’s assertion, testimony presented by Roth demonstrated that he
believed discharge was warranted instead of progressive discipline because of the information that
had been gathered against the plaintiff and because of the “severity of the situation.” Roth
explained that the plaintiff’s misconduct was severe and justified discharge because it “involved
theft of time; basically, that he was supposed to be doing work [but was not] doing work.” The
18 plaintiff also filed false reports, which called into question his truthfulness. Roth considered this
especially troublesome because if the plaintiff were to be called to testify in a case “and [he would]
have to give testimony, the last thing you want is somebody who has been disciplined for not
providing truthful information.” Roth further testified that other Secretary of State employees who
were found guilty of theft of time (one of the plaintiff’s charges) had also been discharged.
¶ 62 In addition to the preceding, the testimony of the plaintiff’s supervisors revealed years of
poor work performance by the plaintiff. According to Warren, the plaintiff’s performance began
steadily declining in the late 1990s, and this continued through the remainder of his employment.
Hoffman similarly testified that the plaintiff’s performance started “suffering long before” his
marital issues, Crohn’s disease diagnosis, whistleblowing activity, or even Wingo’s death. And
although Hoffman tried to help the plaintiff with his marital and medical problems, the plaintiff
refused.
¶ 63 Moreover, the evidence indicated that, beginning in March 2006, the plaintiff was required
to attend weekly mental health counseling and meet with Hoffman regularly to discuss his personal
and professional issues as well as strategies to improve his work performance. After the events
surrounding Wingo’s death occurred, the plaintiff’s work performance increasingly suffered. The
plaintiff failed to complete any work in August, September, or October of 2006, but Hoffman
advised against disciplining the plaintiff at that time considering Wingo’s death. Correspondence
between Hoffman, Warren, and other supervisors revealed they were actively trying to help the
plaintiff improve his work performance, but he was not responsive to their assistance.
¶ 64 After Pippin investigated the truth of Sandy’s allegations, discrepancies were revealed
between the plaintiff’s CAD reports and his actual whereabouts throughout the workday.
Thereafter, the plaintiff was informed that he had violated numerous Secretary of State and
19 department of police policies, including misusing state working time, falsifying reports, violating
the Illinois Vehicle Code, and engaging in conduct that brought discredit on the department of
police. The plaintiff was then formally interrogated about the charges against him. Importantly,
the plaintiff made several admissions during this interrogation, including that (1) he had done a
poor job in his investigations, (2) he was not a “perfect report writer,” (3) he failed to return phone
calls, (4) he had not “done *** a great job with CAD,” (5) he had “stayed at [his] house for
whatever reason” while reporting to CAD that he was conducting an investigation, (6) he took a
personal trip to O’Fallon during work hours without informing any of his supervisors, and (7) his
CAD reports were inaccurate. The plaintiff could not explain the discrepancies in his CAD reports
versus his actual whereabouts as revealed by the GPS data. Finally, the plaintiff did not dispute
that he drove at excessive speeds at times when he was not making a traffic stop but could not
explain why that happened.
¶ 65 Given the record before us, the evidence clearly supported the trial court’s conclusion that
the plaintiff’s whistleblowing activity was not a contributing factor in the Secretary of State’s
decision to discharge him. The testimony of Warren, Hoffman, Pippin, and Roth, along with the
plaintiff’s own admissions, demonstrate that the Secretary of State was justified in terminating the
plaintiff because he admitted to policy violations and his work performance was inadequate,
despite his supervisors’ continued patience and attempts to help him improve. “It is well
established that where, as here, the testimony adduced at trial conflicted and was contradictory,
the trial judge, as trier of fact, was in a superior position to hear and weigh the evidence and
determine the credibility of the witnesses.” Dutton v. Roo-Mac, Inc., 100 Ill. App. 3d 116, 122
(1981). Implicit in its ruling, the trial judge found the Secretary of State’s version of the facts
credible, and we find no reason to disturb that determination. Having carefully reviewed the record
20 in this case, we conclude that the court’s judgment was not against the manifest weight of the
evidence, as the opposite result was not clearly apparent, the decision was not unreasonable or
arbitrary, and it was based on the evidence presented. Accordingly, we affirm the court’s judgment
in favor of the Secretary of State and against the plaintiff.
¶ 66 III. CONCLUSION
¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court of Jefferson County.
¶ 68 Affirmed.