FIRST DIVISION March 31, 2011
No. 1-09-1272
MARISOL RODRIGUEZ, ) Appeal from the ) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) ) v. ) No. 08 CH 32743 ) ) JODY P. WEIS, Superintendent of ) Police of the City of Chicago, and ) the POLICE BOARD OF THE CITY OF ) CHICAGO, ) ) Honorable ) William O. Maki, Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE HALL delivered the judgment of the court,
with opinion. Justices Hoffman and Rochford concurred in the
judgment and opinion.
Plaintiff Marisol Rodriguez appeals from a circuit court
order affirming a decision of the Police Board of the City of
Chicago (Board) discharging her from her position as a Chicago
police officer. The Board determined that plaintiff altered
certain documents (return-to-work status reports) and submitted
them to the Chicago police department's medical services section
(hereinafter, Medical Services), falsely representing that a
physician had recommended that her work duties be limited due to
injury.
The Board concluded that plaintiff's conduct violated the
following rules of article V of the rules and regulations of the No. 1-09-1272
Chicago police department (Department): Rule 2, which prohibits
"[a]ny action or conduct which impedes the Department's efforts
to achieve its policy and goals or brings discredit upon the
Department," and Rule 14, which prohibits "making a false report,
written or oral."
Plaintiff sought administrative review of the Board's
decision in the circuit court. The circuit court affirmed the
Board's decision. Plaintiff appeals. We affirm.
BACKGROUND
On May 14, 2008, the superintendent of police filed charges
with the Board against plaintiff, recommending that she be
discharged from her position as a Chicago police officer for
violating Department Rules 2 and 14. The Board conducted a two-
day hearing on the matter at which the following evidence was
presented.
Plaintiff worked routine patrol duty at the 20th District.
In June 2006, she was reassigned to a light-duty desk job due to
alleged problems with her right hand. Plaintiff maintained she
was left-handed, but that she used her right hand to fire her
service weapon.
Dr. David Garelick, an orthopedic surgeon at the Illinois
Bone and Joint Institute's Desilva Center, first examined
plaintiff on July 14, 2006. Plaintiff complained of numbness and
tingling in her right hand. She claimed that her symptoms were
aggravated when she typed.
-2- No. 1-09-1272
Plaintiff was initially diagnosed as suffering from possible
carpal tunnel syndrome. However, after failing to identify a
specific cause of plaintiff's symptoms, the doctor scheduled
plaintiff to undergo an electromyogram (EMG)/nerve conduction
test. The doctor also completed a return-to-work status report,
stating that plaintiff could return to work, but with limited
repetitive movement of her right hand, no strenuous activity with
her right hand, and no typing. Plaintiff was given an
appointment to return on July 28, 2006.
On July 28, 2006, Dr. Garelick examined plaintiff and
discussed the results of her EMG test. The test results were
normal. Again, the doctor was unable to identify a specific
cause of plaintiff's symptoms. He determined that there was
nothing further he could do for plaintiff within his specialty of
orthopedics. He discharged plaintiff from his care and referred
her to a neurologist.
Dr. Garelick testified that plaintiff requested a doctor's
note recommending that she be placed on light duty for six
months. The doctor responded that he was uncomfortable making
such a recommendation in light of his inability to identify a
cause of plaintiff's symptoms. Instead, he agreed to extend her
light duty a week or two, to give her time see the neurologist.
The doctor also completed another return-to-work status report,
stating that plaintiff could return to work, but that she should
be limited to mostly left-handed work.
-3- No. 1-09-1272
During his testimony, Dr. Garelick was shown the return-to-
work status reports from plaintiff's file at Medical Services.
The doctor noted that the reports contained alterations and extra
notations not found on the copies of the reports retained in his
office files.
Dr. Garelick observed that on his copy of the return-to-work
status report for July 14, 2006, he had only recommended that
plaintiff's duties include "no typing," but that the copy of the
report from the Medical Services file had been altered to include
the word "writing" after "no typing." The doctor further noted
that on his copy of the return-to-work status report for July 28,
2006, the line adjacent to "Next Appointment" had been left
blank, but that the copy of the report from the Medical Services
file had been altered to list the "Next Appointment" as
"8/16/06." The report had also been altered to recommend that
plaintiff's light duties be extended for "11-12" weeks, instead
of the "1-2" weeks the doctor had written.
In addition, the doctor noted that on his copy of the
return-to-work status report for July 28, 2006, he had not
written anything on the line next to "Other (specify)," and he
had not put a check mark on the line next to "Limited
pushing/pulling." However, the copy of the report taken from the
Medical Services file showed that someone had altered the report
by putting a check mark on the line next to "Limited
pushing/pulling," and by inserting the phrase "no writing, no
-4- No. 1-09-1272
typing" on the line next to "Other (specify)."
Dr. Garelick testified that he did not alter the return-to-
work status reports and he did not authorize anyone else to alter
them. The doctor testified that if he had made such alterations,
a new form would have been used and a carbon copy retained in
plaintiff's office file. He testified that the practice in his
office is to prepare duplicate return-to-work status reports,
where the original is given to the patient to take back to the
employer and the carbon copy is retained in the patient's office
file.
In October 2006, Officer Erica Jenkins, a registered nurse
and case manager at Medical Services, informed plaintiff that she
needed to submit an updated return-to-work status report because
her light-duty assignment would soon expire. Plaintiff contacted
Dr. Garelick's office for an appointment, but was told no
appointment was available. Plaintiff testified that she then
told someone in the doctor's office that if she could not get an
appointment, she at least needed the doctor to submit a report
with recommended work restrictions. Plaintiff was informed that
the recommendation would be for her to return to full duty.
Officer Jenkins testified that shortly after October 18,
2006, plaintiff returned to active duty status, based on a report
from Dr. Garelick stating that plaintiff was cleared to return to
work with no restrictions. On October 25, 2006, plaintiff
submitted a note from Dr. Byung-Ho Yu of the First Korean
-5- No. 1-09-1272
Multispecialty Clinic, requesting that she be placed on light
duty for asthma. Plaintiff testified that she had previously
submitted similar notes from Dr. Yu in August 2006, and later in
November 2006.
Officer Mary L. Zia, a clerk in Medical Services, testified
that in November 2006, plaintiff was ordered to have her asthma
diagnosis confirmed by an independent medical pulmonologist
approved by the City. Officer Zia testified that she was
reviewing plaintiff's file in order to compile a list of
pulmonologists plaintiff could choose from, when she noticed that
a return-to-work status report from Dr. Garelick had extended
plaintiff's light duty for 11 to 12 weeks. The officer believed
that such an extension period was not normal.
After conferring with a supervisor, Officer Zia contacted
Dr. Garelick's office and requested them to fax over copies of
plaintiff's return-to-work status reports from July 14 and 28,
2006. Upon receipt of the reports, the officer noticed
discrepancies between the faxed versions and those maintained in
plaintiff's file at Medical Services.
Officer Zia observed that the return-to-work status report
for July 28, 2006, from the doctor's office, only extended
plaintiff's light-duty status for "1-2" weeks, rather than the
"11-12" weeks listed on the report from plaintiff's file at
Medical Services. The officer further observed that the only
duty modification listed on the return-to-work status report for
-6- No. 1-09-1272
July 28, 2006, from the doctor's office, was that plaintiff
should perform mostly or only left-handed work. However, on the
copy of the report from plaintiff's file at Medical Services,
someone had altered the report by putting a check mark on the
line next to "Other (specify)," and adding the phrase "no
writing, no typing."
The report was also altered to indicate that plaintiff's
duties should include limited pushing and pulling. The officer
further noticed that where the doctor's copy of the return-to-
work status report for July 14, 2006, listed "no typing" as a
restriction, the copy of the report from plaintiff's file at
Medical Services had been altered to list "no typing, writing,"
as restrictions.
In December 2006, plaintiff was placed on light duty for her
asthma. She remained on light duty until her suspension on May
15, 2008.
On August 21, 2008, the Board unanimously found plaintiff
guilty of violating Department Rule 2, which prohibits "[a]ny
action or conduct which impedes the Department's efforts to
achieve its policy and goals or brings discredit upon the
Department," and Rule 14, which prohibits "making a false report,
written or oral." The Board subsequently discharged plaintiff
from her position as a Chicago police officer. Additional facts
are set forth as each issue is addressed.
-7- No. 1-09-1272
ANALYSIS
Plaintiff contends it was against the manifest weight of the
evidence for the Board to discharge her from her position as a
Chicago Police officer. We must disagree.
In reviewing a final decision under the Administrative
Review Law (735 ILCS 5/3-101 et seq. (West 2002)), we review the
administrative agency’s decision, not the trial court’s
determination. XL Disposal Corp. v. Zehnder, 304 Ill. App. 3d
202, 207, 709 N.E.2d 293 (1999). Appellate review of an
administrative agency's decision regarding a discharge is a two-
step analysis. Siwek v. Police Board, 374 Ill. App. 3d 735, 737-
38, 872 N.E.2d 87 (2007).
First, the reviewing court must determine if the agency's
factual findings are contrary to the manifest weight of the
evidence. Kappel v. Police Board, 220 Ill. App. 3d 580, 588, 580
N.E.2d 1314 (1991). Reviewing courts generally defer to an
administrative agency's findings of fact since they are deemed to
be prima facie true and correct. Williams v. Board of Review, 395
Ill. App. 3d 337, 339, 917 N.E.2d 1094 (2009).
Second, the reviewing court must determine if the findings
of fact provide a sufficient basis for the agency's conclusion
that cause for discharge exists. Kappel, 220 Ill. App. 3d at 588-
89; Krocka v. Police Board, 327 Ill. App. 3d 36, 46, 762 N.E.2d
577 (2001). "An administrative tribunal's finding of 'cause' for
discharge is entitled to considerable deference and is to be
-8- No. 1-09-1272
overturned only if it is arbitrary and unreasonable or unrelated
to the requirements of the service." Allman v. Police Board, 140
Ill. App. 3d 1038, 1041, 489 N.E.2d 929 (1986); see also Walsh v.
Board of Fire & Police Commissioners, 96 Ill. 2d 101, 105-06, 449
N.E.2d 115 (1983) (an "administrative tribunal's finding of
'cause' for discharge commands our respect, and it is to be
overturned only if it is arbitrary and unreasonable or unrelated
to the requirements of the service") (citing DeGrazio v. Civil
Service Comm'n, 31 Ill. 2d 482, 489, 202 N.E.2d 522 (1964)).
Plaintiff contends that the Board's decision to discharge
her was arbitrary, capricious, and utterly disproportionate to
the nature and extent of her conduct. She seeks to support these
claims with citations to cases in which police officers whose
conduct was arguably worse than hers received less severe
sanctions.
"However, cause for discharge can be found regardless of
whether other employees have been disciplined differently."
Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419,
442, 603 N.E.2d 477 (1992). The "fact that different individuals
have been disciplined differently is not a basis for concluding
that an agency's disciplinary decision is unreasonable." Siwek,
374 Ill. App. 3d at 738.
Such inferences are appropriate only where the factual
circumstances surrounding the discharge of other employees are
sufficiently similar to the facts surrounding the discharge at
-9- No. 1-09-1272
issue to enable the reviewing court to perform a meaningful and
informed comparison. See Launius, 151 Ill. 2d at 441-43; Siwek,
374 Ill. App. 3d at 738. In the instant case, plaintiff fails to
cite any cases in which the factual circumstances surrounding the
discharge of other police officers are sufficiently similar to
the factual circumstances surrounding her discharge so as to
enable our court to perform a meaningful and informed comparison.
See, e.g., Siwek, 374 Ill. App. 3d at 738.
Plaintiff next contends it was against the manifest weight
of the evidence for the Board to discharge her because there was
no direct evidence that she was the person who altered her
return-to-work status reports. Again, we must disagree.
Although no one on the Board actually observed plaintiff
alter her return-to-work status reports, there was circumstantial
evidence from which the Board could have reasonably inferred that
she did so. "Circumstantial evidence is the proof of certain
facts and circumstances from which the fact finder may infer
other connected facts which usually and reasonably follow
according to the common experience of mankind." Eskridge v.
Farmers New World Life Insurance Co., 250 Ill. App. 3d 603, 610,
621 N.E.2d 164 (1993).
The circumstantial evidence establishes that plaintiff had
both a motive and the opportunity to alter her return-to-work
status reports. In regard to motive, Dr. Garelick testified that
when he saw plaintiff on July 28, 2006, he refused her request
-10- No. 1-09-1272
for a recommendation to be placed on light duty for six months.
The doctor maintained that he was uncomfortable giving such a
recommendation in light of his inability to specifically identify
a cause of plaintiff's symptoms.
Given the doctor's testimony, it is reasonable to assume
that plaintiff wished to avoid being returned to full-duty
status. It is also not unreasonable to infer that when the
doctor refused plaintiff's request to be placed on light duty for
six months, she took matters into her own hands and altered the
return-to-work status report to extend her light-duty status "11-
12" weeks, rather than the "1-2" weeks recommended by the doctor.
In regard to the opportunity to alter the return-to-work
status reports, plaintiff suggests that she did not have an
opportunity to alter the reports because they were faxed directly
from Dr. Garelick's office to Medical Services. Plaintiff
contends that no clear evidence was presented as to how the
reports arrived at Medical Services. We disagree.
The testimonial and documentary evidence establishes that
the return-to-work status reports at issue were given directly to
plaintiff during her appointments with Dr. Garelick, as opposed
to being faxed from the doctor's office to Medical Services as
plaintiff testified.
Dr. Garelick testified that the practice in his office is to
prepare duplicate return-to-work status reports for the patient,
where the original is given to the patient to take back the
-11- No. 1-09-1272
employer and the carbon copy is retained in the patient's office
file. In addition, the return-to-work status reports from
plaintiff's file at Medical Services bore no indication that they
had been faxed. In contrast, the copies of the reports that were
faxed from the doctor's office to Medical Services on prior
occasions bore transmission stamps documenting the time and date
they were faxed.
Moreover, plaintiff's testimony suggesting that the return-
to-work status reports at issue were faxed from the doctor's
office to Medical Services was contradicted by the testimony of
Officer Beverly Holowach and Officer Erica Jenkins.
Officer Holowach, who is also a nurse at Medical Services,
testified that plaintiff came to Medical Services on July 19,
2006, and personally submitted a return-to-work status report
from Dr. Garelick, dated July 14, 2006. The officer's testimony
was corroborated by a sign-in sheet from Medical Services dated
July 19, 2006, bearing plaintiff's signature and employee number.
Officer Jenkins, a registered nurse and case manager at
Medical Services, testified that plaintiff came to Medical
Services on August 1, 2006, and personally submitted a return-to-
work status report from Dr. Garelick, dated July 28, 2006.
Officer Jenkins' testimony was also corroborated by a sign-in
sheet from Medical Services dated August 1, 2006, bearing
plaintiff's signature and employee number.
Resolution of the factual issues in this case required the
-12- No. 1-09-1272
Board to evaluate the credibility of the witnesses. On appeal,
we will not disturb the Board's findings which follow therefrom.
See Jackson v. Board of Review of the Department of Labor, 105
Ill. 2d 501, 513, 475 N.E.2d 879 (1985) ("[t]he weight to be
given to the evidence and the credibility of the witnesses are
within the province of the administrative agency"); Cartwright v.
Civil Service Comm'n, 80 Ill. App. 3d 787, 794, 400 N.E.2d 581
(1980) ("[i]t is not the function of a reviewing court *** to
reweigh the evidence or redetermine the credibility of witnesses
after an administrative decision has been made"). In light of
the evidence and given our limited power of review, we cannot say
that the Board's factual findings, that plaintiff violated
Department Rules 2 and 14 by submitting altered documents to
Medical Services, were against the manifest weight of the
evidence.
The second and final step in the analysis requires us to
determine whether the factual findings are sufficient to support
the Board's conclusion that "cause" exists for plaintiff's
discharge. As mentioned, an agency's decision as to cause is
entitled to considerable deference and will not be reversed
unless it is arbitrary, unreasonable, or unrelated to the
requirements of service. Sangirardi v. Village of Stickney, 342
Ill. App. 3d 1, 17, 793 N.E.2d 787 (2003).
The Board has considerable latitude and discretion in
determining what constitutes cause for discharge. Sangirardi, 342
-13- No. 1-09-1272
Ill. App. 3d at 17. Illinois courts have defined "cause" for
discharge as some "substantial shortcoming which renders the
employee's continuance in office in some way detrimental to the
discipline and efficiency of the service and which the law and
sound public opinion recognize as good cause for his no longer
holding the position." Collins v. Board of Fire & Police
Commissioners, 84 Ill. App. 3d 516, 521, 405 N.E.2d 877 (1980);
Robinson v. Cook County Police & Corrections Merit Board, 107
Ill. App. 3d 978, 983, 436 N.E.2d 617 (1982).
Our courts have concluded that because the Board "is in the
best position to determine the effect of an officer's conduct on
the department, the reviewing court is required to give the
Board's determination of cause for terminating an officer
considerable deference." Sangirardi, 342 Ill. App. 3d at 18. In
the instant case, we believe that plaintiff's conduct, when
viewed in its entirety, warrants the sanction of discharge.
The essence of the misconduct for which plaintiff was found
guilty focuses directly upon her lack of honesty. Plaintiff
exhibited a lack of honesty by altering her return-to-work status
reports and submitting them to Medical Services, and then again
by giving testimony under oath that the Board rightly found
incredible. "Trustworthiness, reliability, good judgment, and
integrity are all material qualifications for any job,
particularly one as a police officer." Village of Oak Lawn v.
Human Rights Comm'n, 133 Ill. App. 3d 221, 224, 478 N.E.2d 1115
-14- No. 1-09-1272
(1985).
Plaintiff's attempts to avoid full-duty status by
misrepresenting a doctor's recommendation could have potentially
deprived other officers of light-duty assignments if they became
injured or ill. Moreover, "as the guardians of our laws, police
officers are expected to act with integrity, honesty, and
trustworthiness." Sindermann v. Civil Service Comm'n, 275 Ill.
App. 3d 917, 928, 657 N.E.2d 41 (1995).
A police officer's credibility is inevitably an issue in the
prosecution of crimes and in the Chicago police department's
defense of civil lawsuits. A public finding that an officer had
lied on previous occasions is detrimental to the officer's
credibility as a witness and as such may be a serious liability
to the department.
In sum, the Board's decision to discharge plaintiff from her
position as a Chicago police officer was not arbitrary,
unreasonable, or unrelated to the requirements of service.
Accordingly, we affirm the judgment of the circuit court which
upheld the Board's order of discharge.
Affirmed.
-15-