                                                                            FOURTH DIVISION
                                                                             December 17, 2009




No. 1-08-3415


MICHELLE MARZANO                                               )   Appeal from the
                                                               )   Circuit Court of
                Plaintiff-Appellant,                           )   Cook County
                                                               )
       v.                                                      )   No. 08 CH 5503
                                                               )
THE COOK COUNTY SHERIFF’S MERIT BOARD and                      )   Honorable
its Members, James P. Nally, Chairman; Michael D. Carey,       )   Mary K. Rochford
Vice Chairman; Arthur R. Waddy, secretary; Mary Nell           )   Judge Presiding.
Greer; Robert F. Hogan; Brian J. Riordan; Byron T.             )
Brazier; and Daniel J. Lynch; and THOMAS DART,                 )
Sheriff of Cook County, and MICHAEL F. SHEAHAN,                )
Former Sheriff of Cook County,                                 )
                                                               )
                Defendants-Appellees.                          )


       JUSTICE O’MARA FROSSARD delivered the opinion of the court:

       In this administrative review action, plaintiff, Michelle Marzano, appeals from a decision

of the circuit court affirming the January 24, 2008, decision of defendant Cook County Sheriff’s

Merit Board and its members (collectively, the Board) that plaintiff be discharged from

employment, effective July 11, 2006. We affirm.

                                        I. BACKGROUND

       Plaintiff was employed by the former and present sheriff of Cook County (collectively,

the Sheriff). She was appointed a correctional officer and assigned to the Cook County

Department of Corrections on November 16, 1978. The Sheriff has an unauthorized no-pay
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status policy (the Policy) as to employees who do not come to work despite the fact that they are

in no-pay status because they have no remaining benefit time (i.e., sick days or vacation days).

The Policy covers all officers in no-pay status who are off work without authorization, regardless

of the reason for their absence. It is undisputed that the Sheriff, pursuant to a consent decree

entered in Duran v. Sheahan, 74 C 2949, has been required to take affirmative steps in order to

provide adequate staffing at the Department of Corrections (Duran consent decree). The Policy

was instituted to address the serious absentee condition which, among other things, had adverse

effects on jail operations.

        Plaintiff was charged with violations of the Policy. On July 12, 2006, the Sheriff filed a

complaint before the Board against plaintiff seeking her termination as a Cook County

correctional officer. The following is a summary of the relevant allegations contained in the

complaint:

        (1) on April 18, 2005, plaintiff was in unauthorized no-pay status;

        (2) on April 19, 2005, plaintiff was counseled and notified of her options to seek family

medical leave or ordinary disability leave, yet plaintiff continued to use benefit leave time

improperly;

        (3) on or about August 22, 2005, plaintiff received a written reprimand for being in

unauthorized no-pay status;

        (4) on or about October 13, 2005, a complaint investigation was sustained against

plaintiff for being in unauthorized no-pay status with a recommended penalty for a 13-day

suspension;


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          (5) on or about November 1, 2005, another complaint investigation was sustained against

plaintiff for being in unauthorized no-pay status with a recommended penalty for a 15-day

suspension;

          (6) on December 20, 2005, plaintiff applied for family medical leave and her request was

denied;

          (7) on or about December 30, 2005, a complaint investigation was sustained against

plaintiff for being in unauthorized no-pay status with a recommended penalty for a 29-day

suspension;

          (8) plaintiff, in unauthorized no-pay status, failed to report for duty a total of 21 days

between January 9, 2006 and February 20, 2006;

          (9) plaintiff’s actions violated certain rules and regulations of the Cook County

Department of Corrections, specifically, General Order 3.8, section III A-4 and section III D-7

(which mandate that employees will comply with lawful department rules, procedures, directives,

bulletins and verbal orders issued by proper authorities, and that employees will utilize all benefit

time leave categories properly); and

          (10) plaintiff’s actions violated the Board’s rules and regulations, specifically, Article X,

section 3 (which provides that no police officer shall violate any of the general orders, special

orders, directives, or rules and regulations of the Sheriff).

          A hearing on the matter was held on November 14, 2007, before the Board, and both

parties were represented by counsel. On January 24, 2008, the Board found that the evidence

showed that plaintiff was “absent with no sick time and was in unauthorized no-pay status for 19


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days in January and February 2006.” The Board concluded that plaintiff violated General Orders

3.8 III A-4 and III D-7, the Sheriff’s unauthorized no-pay status policy, and Article X, section 3

of the Board’s rules and regulations. The Board ordered that plaintiff's employment be

terminated for cause.

       Plaintiff filed a timely complaint in the circuit court of Cook County seeking

administrative review of the Board's decision to terminate her employment. The circuit court

affirmed the Board’s decision. Plaintiff now appeals.

                                          II. ANALYSIS

       Plaintiff raises three issues in this appeal, which are interrelated and which we restate as

follows: (1) whether the Board’s decision to terminate plaintiff was in error where her absences

were due to her medical condition; (2) whether the Board incorrectly failed to consider an

arbitration award which had found the Policy unreasonable; and (3) whether plaintiff’s due

process rights were violated when the Board terminated her employment.

                 A. The Board’s Decision to Discharge Plaintiff was Not In Error

       In an administrative review case, we review the decision of the administrative agency, not

the circuit court decision. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497,

531, 870 N.E.2d 273, 292 (2006). Our scope of review of an administrative agency's decision to

discharge an employee is a two-step process. Walsh v. Board of Fire & Police Commissioners,

96 Ill. 2d 101, 105, 449 N.E.2d 115, 117 (1983). The first step in our analysis is to determine

whether the agency's findings of fact are contrary to the manifest weight of the evidence. Walsh,

96 Ill. 2d at 105, 449 N.E.2d at 117. Plaintiff did not make any claim in the circuit court that the


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Board’s findings of fact were against the manifest weight of the evidence, nor does she make any

claim in this appeal.

       The second step in our analysis is to determine if the Board’s findings of fact provide a

sufficient basis for its conclusion that cause for discharge exists. Walsh, 96 Ill. 2d at 105, 449

N.E.2d at 117. The Illinois Supreme Court has “defined ‘cause’ as ‘some substantial

shortcoming which renders [the employee's] continuance in his 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 not longer occupying the place.’

[Citations.] ” Walsh, 96 Ill. 2d at 105, 449 N.E.2d at 117. The Board, and not the reviewing

court, is in the best position to determine the effect of an employee’s conduct on the department.

Hermesdorf v. Wu, 372 Ill. App. 3d 842, 852, 867 N.E.2d 34 (2007). Thus, as the Walsh court

explained, considerable deference must be afforded to an administrative finding of “cause” for

discharge and it is not to be overturned unless it is arbitrary and unreasonable or unrelated to the

requirements of the service. Walsh, 96 Ill. 2d at 105, 449 N.E.2d at 117.

       Plaintiff, relying on Walsh, contends that because her absences in violation of the Policy

were related to her medical condition, this court must overturn the Board’s decision. We agree

with defendants that plaintiff’s reliance on Walsh is misplaced.

       Walsh involved a police officer who, while already on disability leave for psychological

problems, committed the acts which resulted in his discharge. Walsh, 96 Ill. 2d at 107, 449

N.E.2d 115. Because the evidence pertaining to those psychological problems was so vague, and

because the Board's decision to dismiss the officer for cause might jeopardize the officer's


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pension, the supreme court remanded the case for a more thorough examination of the officer's

psychological problems. Walsh, 96 Ill. 2d at 108, 449 N.E.2d 115. The court further held that if

it was determined the officer's misconduct was related to his psychological problems, the

sanction against him should be other than discharge for cause. Walsh, 96 Ill. 2d at 108, 449

N.E.2d 115. Walsh did not involve a discharge for violation of a no-fault attendance policy. The

issue in the instant case was whether plaintiff’s excessive unexcused absences under a no-fault

attendance policy constituted a substantial breach reasonably related to the requirements of

service, thereby establishing cause for termination.

       Plaintiff misinterprets Walsh as standing for the general proposition that she cannot be

discharged because her absences were caused by her medical condition. Under Illinois law, an

employer may fire an employee for unexcused absences when they become excessive. Hartlein v.

Illinois Power Co., 151 Ill. 2d 142, 601 N.E.2d 720 (1992). Plaintiff’s discharge was for

numerous unexcused absences. On April 19, 2005, plaintiff was counseled and notified of her

options to apply for family medical leave or ordinary disability leave. Nonetheless, even after

she was counseled, she missed numerous days and she did not apply for family medical leave

until December 20, 2005. Additionally, she did not apply for disability until June 2006, which

was four months after she had missed 20 days without any benefit time on the books. Although

plaintiff was progressively disciplined, it had no deterrent effect on her behavior.

       Management’s right to discipline and ultimately to discharge an employee for

absenteeism and tardiness is based on its right to operate efficiently. This court has held that a

34-day unexcused absence from duty by a correctional officer was a substantial breach very much


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related to the requirements of the service. Mack v. Cook County Police & Corrections Merit

Board, 94 Ill. App. 3d 227, 230, 418 N.E.2d 788, 790 (1981). We agree with defendants that

plaintiff’s continued inability to come to work effectively turned her full-time position into a

part-time job that clearly had a significant impact on the operation of the sheriff of Cook County.

The Board’s finding of “cause” for discharge of plaintiff was not arbitrary or unreasonable.

       We further note that our decision is consistent with the recent case of Cruz v. Cook

County Sheriff's Merit Board, 394 Ill. App. 3d 337, 342, 914 N.E.2d 653, 658 (2009), which is

factually similar to the instant case in that it also involved a correctional officer discharged for

violations of the subject Policy. Similar to plaintiff here, the officer in Cruz called in sick even

though she did not have any accrued sick days. As this court explained, although the plaintiff

provided medical notes for her absences, “they were irrelevant under the Policy, since

establishing that she was actually sick did not negate the fact that she had no more sick days.”

Cruz, 394 Ill. App. 3d at 342, 914 N.E.2d at 658. Moreover, “[i]f an employee has used all his

sick days, it is irrelevant that he has a legitimate medical excuse for not attending work, because

he is informed at the first (counseling) stage that he may apply for family medical leave or

disability leave.” (Emphasis added.) Cruz, 394 Ill. App. 3d at 339, 914 N.E.2d at 655. In sum,

we conclude that the Board’s decision to discharge plaintiff for violations of the Policy and her

numerous unexcused absences was not in error.

                 B. The Board Correctly Did Not Consider an Arbitration Award

       Plaintiff also argues that the Board’s decision was clearly erroneous for failing to

recognize the binding legal effect of an arbitration award in a collective bargaining agreement


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matter brought before the Illinois Labor Relations Board by the Metropolitan Alliance of Police,

the union representing sheriff's correctional officers (the Union), against the County of Cook and

the sheriff of Cook County (employers). Metropolitan Alliance of Police v. Sheriff of Cook

County (January 10, 2007). In that matter, the arbitrator had been asked to determine whether the

employers’ unilateral implementation of the Policy, without providing notice to the Union or an

opportunity to bargain, violated the collective bargaining agreement between the parties and/or

any past practice.

       The arbitrator acknowledged that the Sheriff’s decision to institute the Policy was

justifiable in view of (1) the degree of unauthorized absenteeism and its adverse effects on jail

operations; (2) the direct and indirect costs of that absenteeism; and (3) the Sheriff’s obligation to

comply with the Duran consent decree. Interestingly, the arbitrator also noted that it has long

been held in labor arbitration matters that “repeated absences over a long period of employment

for valid reasons such as genuine illnesses, may make an employee of so little value, if not an

actual handicap to the Company, as to justify a severance of the employment relationship.”

(Emphasis in original) Metropolitan Alliance of Police v. Sheriff of Cook County, slip op. at 15-

16. The arbitrator also acknowledged the legitimacy of no-fault attendance policies, such as the

subject Policy. The arbitrator ultimately concluded that the employers had not violated the

collective bargaining agreement or any past practice when they unilaterally implemented the

Policy because they were under no obligation to bargain with plaintiff regarding it. Nevertheless,

after finding that the Policy was properly adopted and did not violate the collective bargaining

agreement of the parties, the arbitrator went further and found that the Policy was unreasonable.


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       On February 8, 2007, prior to the administrative hearing, plaintiff, along with five other

correctional officers who had matters pending before the Board, including the plaintiff in the

Cruz case discussed earlier, filed a motion to dismiss the charges against her based on the

arbitrator’s finding that the Policy was unreasonable. The Board, concluding that it was not

bound by the decision of another administrative agency or its finding that the Policy was

unreasonable, denied plaintiff’s motion to dismiss.

       It should be noted that the arbitrator’s decision was reviewed by this court in

Metropolitan Alliance of Police, Cook County Correctional Officers Chapter 222 v. County of

Cook, No. 1-08-0282 (2008) (unpublished order under Supreme Court Rule 23) (Metropolitan

Rule 23 order). We determined that the arbitrator had exceeded his authority, because the issue

of officer discipline was not subject to arbitration and the arbitrator was limited to reviewing only

the unilateral implementation of the Policy. Metropolitan Rule 23 order; see also Cruz v. Cook

County Sheriff's Merit Board, 394 Ill. App. 3d at 341, 914 N.E.2d at 657. In so doing, we relied

upon the well-established legal propositions outlined in the case of Shultz v. Atlantic Mutual

Insurance Co., 367 Ill. App. 3d 1 (2006), that parties are only bound to arbitrate those specific

issues agreed to, that arbitration agreements will not be extended by implication or construction,

and that the Illinois Uniform Arbitration Act (710 ILCS 5/12(b)(West 2006)) does not control

which issues are subject to arbitration – only the agreement of the parties does, and this, in turn,

limits the arbitrator’s powers. See Shultz, 367 Ill. App. 3d at 10-11, citing Flood v. Country

Mutual Insurance Co., 41 Ill. 2d 91, 93-94 (1968).

       After reviewing the collective bargaining agreement between the parties, we further noted


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that the parties had agreed, among other things, that matters falling within the jurisdiction of the

Merit Board could not be challenged as a grievance and that Merit Board action was subject to

administrative review of the circuit court of Cook County. We also explained that “even if”

officer discipline under the Policy had been submitted as an issue upon arbitration, this would

have been improper pursuant to the very agreement of the parties. That is, pursuant to the

collective bargaining agreement, the actions of the Board, which is the body that imposes

discipline under the Policy, would be reviewable only by the circuit court of Cook County, and

not by an arbitrator. Metropolitan Rule 23 order.

       In discussing the Metropolitan Rule 23 order, we explained in Cruz v. Cook County

Sheriff's Merit Board, that in Metropolitan, we “vitiated all provisions of the Award beyond the

arbitrator’s finding that the Policy was duly adopted and not contrary to the collective bargaining

agreement. [Citation.] ” Cruz, 394 Ill. App. 3d at 342, 914 N.E.2d at 658. The Cruz court,

addressing the particular facts presented in Cruz, went on to conclude that it saw “nothing

arbitrary or unreasonable” about the employer’s decision to terminate the plaintiff’s employment,

in view of her “multiple unauthorized absences from work, following earlier and repeated

discipline for the same.” Cruz, 394 Ill. App. 3d at 342, 914 N.E.2d at 658. The court further

stated that it found “nothing unreasonable about the Policy’s proviso that medical notes for

unauthorized sick days do not excuse them. The Policy provides two alternatives to an officer’s

expended sick days – family medical leave and disability leave – and provides that an officer will

be informed of these options before any further disciplinary steps.” Cruz, 394 Ill. App. 3d at 343,

914 N.E.2d at 659.


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       The Cruz court, in addition to noting that the arbitrator had “inappropriately” addressed

the issue of the reasonableness of the Policy, stated that it did not find the arbitrator’s decision

“particularly persuasive on this point.” Cruz, 394 Ill. App. 3d 343, 914 N.E.2d at 658. As the

Cruz court explained, it had a “particular case” to consider, while the arbitrator had addressed the

reasonableness of the Policy “in the abstract.” Cruz, 394 Ill. App. 3d 343, 914 N.E.2d at 658.

       In the instant case, similar to Cruz, we also have a particular case to consider. In the

factual context of the instant case, we conclude that the Board properly disregarded the

arbitration award that found the Policy unreasonable. As correctly noted, in both the

Metropolitan Rule 23 order and the Cruz case, the Policy was reasonable and the arbitrator

exceeded his authority by addressing the reasonableness of the Policy.

        C. Plaintiff’s Contention That Her Due Process Rights Were Violated is Meritless

       Plaintiff asserts that her termination from employment diminished her protectable

property interest in her pension. She correctly notes that a public pension in Illinois is “an

enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

Ill. Const. 1970, art. XIII, §5. Plaintiff asserts that if her medical condition improves, and she is

no longer eligible for the disability payments that she is currently receiving from the pension

board, her pension benefit will be less than it would have been had she remained an employee.

While this may be accurate, plaintiff has nonetheless failed to make any argument with respect to

how the contractual relationship was violated by her discharge.

       Plaintiff raises another due process argument. While conceding that she had a hearing on

her misconduct, plaintiff argues that the due process afforded her during the hearing was


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inadequate because of the Board’s failure to consider, and follow, the arbitration award that had

found the Policy to be unreasonable. As we have already noted, the Board correctly ignored the

arbitration award which resulted from the arbitrator exceeding his authority. Moreover, the

Policy is reasonable.

       Plaintiff's arguments that her due process rights were violated have no merit. She has

failed to argue that her contractual right to a pension was violated by her discharge for cause.

She has also failed to show that the Board’s hearing did not afford her sufficient due process.

                                        III. CONCLUSION

       Plaintiff has failed to raise any issues that would warrant reversal of the Board’s decision

on administrative review. For all of the foregoing reasons, we affirm the decision of Cook

County Sheriff’s Merit Board.

       Affirmed.

       O’BRIEN and GALLAGHER, JJ., concur.




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