Bono v. Chicago Transit Authority

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-0560 Rel

Case Date: 02/07/2008

Preview:FOURTH DIVISION February 7, 2008

No. 1-07-0560

ROBERT M. BONO, Petitioner-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, THE CHICAGO TRANSIT BOARD, and CAROLE L. BROWN, Chicago Transit Board Chairman, Respondents-Appellees, (John Plante, Carlos Campos, Hugh Muller, Kathleen Herrmann, Michael Bobko, and Roxanne Galvan, Respondents).

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Appeal from the Circuit Court of Cook County, Illinois.

No. 06 CH 05109 Honorable Peter Flynn, Judge Presiding.

JUSTICE MURPHY delivered the opinion of the court: Petitioner, Robert M. Bono, was discharged from his position as a supervisor with respondent, Chicago Transit Authority (CTA), on September 16, 2005, for misconduct regarding improper personal use of the telephone for a call he made to a customer while working. Petitioner requested a "for cause" hearing before respondent Chicago Transit Board (Board) pursuant to section 28 of the Metropolitan Transit Authority Act (Act) (70 ILCS 3605/28 (West 2004)). Following a full hearing on the matter, respondent chairperson of the Board, Carole L.

No. 1-07-0560 Brown, issued an ordinance dated February 15, 2006, upholding the termination. Petitioner filed a petition for writ of certiorari with the circuit court. Following the dismissal of the additional respondents as unnecessary parties and denial of respondents' motion to dismiss for lack of subject matter jurisdiction, the parties briefed and argued the issue. The trial court upheld the decision of the Board on January 25, 2007. This appeal followed. For the following reasons, we affirm the findings of the Board. I. BACKGROUND On September 15, 2005, petitioner received notice of termination of employment from his supervisor, Steve Kelso. In support of the termination, Kelso cited petitioner's violation of CTA rules (including Rule 7, "Obedience to Rules"; Rule 14, "Personal Conduct"; Rule 24, "Use of Best Judgment"; and Rule 25, "Courtesy"), as a result of an August 25, 2005, telephone call placed while at work. Petitioner invoked his right to a "for cause" hearing before the Board pursuant to section 28 of the Act. A hearing was scheduled for October 19, 2005. At the hearing, the CTA presented the testimony of three witnesses. Michael Bobko, a criminal investigator from the office of the inspector general for the CTA, testified first. Bobko testified that on August 25, 2005, a complaint was made via the office of the inspector general hotline by a Lisa Johnson. Johnson, an e-mail applicant for a CTA fare card, registered a complaint regarding a call she had received from a CTA employee identifying himself as "Bob." Bobko was assigned to investigate the complaint. After determining that petitioner was the employee assigned the telephone from where the call was made, Bobko contacted Johnson to conduct a telephone interview.

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No. 1-07-0560 Following his telephone interview of Johnson, Bobko interviewed petitioner at the office of Roxanne Galvan, who was petitioner's supervisor. Galvan was present for the interview as a "prover" of any statements made by petitioner. Petitioner admitted that he had called Johnson, immediately stating that he knew it was poor judgment and it would not happen again. Petitioner stated that he called Johnson because he had seen her name on a customer contact list and that he used to work with someone with the same name either at the Federal Reserve Bank or at the CTA. After learning that Johnson was not his former coworker, petitioner answered Johnson's questions regarding the CTA's Chicago Card and agreed to mail her a brochure, which he subsequently mailed. Petitioner also admitted that during the conversation, he learned that Johnson was from Minneapolis, Minnesota. Bobko testified that petitioner admitted that he had made a joke during the phone call referencing the town of Moorhead, Minnesota, where his brother and sister-in-law lived. Petitioner denied that it was a joke because it was a sexual reference. However, Bobko testified that when petitioner was pressed about why it was funny, he admitted that it was only humorous as a sexual joke. Petitioner again apologized and stated that he had never made sexual calls from work and would never in the future. Bobko summarized the findings of his investigation as follows: that the phone used to call Johnson was petitioner's office phone; that Johnson complained of a man named Bob calling her; that Galvan indicated petitioner's job duties did not require calling customers; petitioner had not called any other customers; petitioner's call was personal and social in nature; petitioner had relatives residing in Moorhead, Minnesota; and that the nature of petitioner's reference to

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No. 1-07-0560 Moorhead, Minnesota, was as a sexual joke. Accordingly, Bobko concluded that petitioner's actions were inappropriate because of the personal use of CTA phones and the improper content of the call. Bobko memorialized this summary in a written report to his supervisor. Galvan testified next that she was manager of fare media operations and that she had supervisory authority over petitioner at the time of the incident. Galvan testified that petitioner's job duties at the time were overseeing the student permit program and being involved in day-today operations in a supervisory role. Galvan stated that it was in the normal course of business for fare media operations personnel to make telephone calls to customers to resolve various issues in their orders. However, Galvan stated that there were no circumstances involving Johnson's order that required phone contact. The CTA was not telemarketing the Chicago Card at that time, but only doing mail marketing of the program. Galvan testified that she sat in on Bobko's interview of petitioner as a witness and that petitioner appeared nervous. During the interview, petitioner explained that he saw Johnson had ordered a 30-day pass, he thought he knew her, so he called her to talk with her and suggest a Chicago Card. Petitioner explained they had a conversation and he learned that it was not the woman he knew. Galvan testified that after additional questioning from Bobko, petitioner initially stated that he discussed his family from Minnesota, but could not recall the town name. After more questioning, petitioner recalled that the town was Moorhead, Minnesota. Petitioner also admitted that he joked about the town name Moorhead to Johnson, but said that Bobko's interpretation of that as a sexual reference was out of context. Galvan questioned petitioner about what the joke was. Galvan testified that petitioner seemed surprised

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No. 1-07-0560 by the question and simply deliberately repeated the name of the town to Galvan to explain it. Galvan testified that she was also present at meetings on September 14 and 15, 2005, with her supervisor, Kelso, petitioner and petitioner's attorney. Kelso had reviewed the investigation report and set the meeting to allow petitioner to present his side of the story. Galvan testified that Kelso presented a recap of the report and his understanding of the incident. Petitioner was apologetic and offered that he meant no harm by the call and would not want to jeopardize his 21 years with the CTA. Petitioner indicated that he was just filling in for someone on the day of the incident and happened upon Johnson's name when he was filling orders. Petitioner claimed that his joke was taken out of context and that he just thought the name of the town was funny. Kelso informed petitioner that he had decided that petitioner was to be terminated for the incident. The testimony of Kelso was presented next. Kelso testified that he was petitioner's supervisor and that, upon learning that the office of the inspector general was investigating petitioner, he met with petitioner on September 12, 2005, and again on September 14 and 15. The first meeting was simply to set up the second meeting and petitioner was informed he would be allowed to present his side of the story. Kelso testified that petitioner admitted to using CTA information and resources to call Johnson on August 25, 2005. Petitioner explained that his brother and sister-in-law lived in Moorhead and they often joked about the town's name, but did not explain to Kelso why it was a joke. Petitioner was remorseful and apologetic about the incident. Kelso explained that this concerned him because they cannot have employees utilize customer information to contact them for personal or social reasons. Kelso stated that he

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No. 1-07-0560 determined this was in the detriment of the service. Although petitioner did not specifically admit to making a sexual joke, Kelso testified that the inappropriate comments made by petitioner as reported by the investigator made the violation even more serious. Kelso determined that he had no assurance that it would never happen again and concluded that he had to terminate petitioner's employment for his violation of the rules. Kelso stated that he also did not want to pass this problem off on another manager. Kelso admitted that petitioner's discharge notice did not mention a complaint of any sexually inappropriate behavior. However, discharge notices only contain the rules violation underlying the decision to discharge, not the conduct at issue. Kelso also admitted that he was not aware of any progressive discipline program at the CTA. Despite petitioner's lack of disciplinary problems in the past, Kelso rested his concern that the incident could be a recurring problem simply because it happened once. Petitioner testified on his own behalf. Petitioner testified to his education and almost 22 years' service for the CTA, without incident. Petitioner testified that on the date of the incident, he was student permit coordinator, but was filling in for a vacationing coworker in Internet sales. On the date of the incident, petitioner spotted Johnson's name on the list of customers and called her. After identifying himself and talking with Johnson, petitioner realized this was not the same woman and he then informed her of the benefits of a Chicago Card. During the call, Johnson informed petitioner that she had just relocated from Minnesota. Petitioner testified that he had been to Moorhead frequently and often joked that he found the name of the town funny. Johnson did not ask why it was a funny name and petitioner did not 6

1-07-0560 explain the humor or dwell on the subject. The phone call then ended. Petitioner next heard about the phone call when he met with Bobko in Galvan's office. Petitioner admitted that making the call was wrong and stated that he would not do it again. When told by Bobko that the complaint was a "sexual harassment thing," petitioner denied asking Johnson on a date or any comment or question regarding Johnson's sexual practices. Other than the Moorhead comment, petitioner could not conceive how anything could substantiate a harassment claim. Petitioner however later claimed Moorhead was a joke simply because the name of the town of Moorhead sounds funny. Petitioner testified that on September 12, 2005, he met with Kelso, who gave him notice of his discharge pending a hearing and told him that he could return on September 14, 2005, to offer his account of the phone call. At the hearing before Kelso and Galvan, petitioner asserted that he did not intend anything sexually toward Johnson. On September 15, 2005, Kelso read the charges against petitioner and gave him his notice of discharge. The notice included citations to rules violations, but did not note any detail regarding anything done that was sexual in nature. On February 15, 2006, the Board passed an ordinance affirming petitioner's dismissal. Petitioner filed a writ of certiorari to the circuit court, seeking review of the Board's decision. Following the denial of respondents' motion to dismiss for lack of subject matter jurisdiction, a hearing was held, and the trial court affirmed the Board's findings. This appeal followed. II. ANALYSIS A. Subject Matter Jurisdiction First, we address the trial court's denial of respondents' motion to dismiss based on a lack 7

1-07-0560 of subject matter jurisdiction. Respondents raise this issue in their response brief and acknowledges that it did not file notice of a cross-appeal. However, they note that the issue of subject matter jurisdiction cannot be waived and no notice was required to preserve the issue. Ruff v. Industrial Comm'n, 149 Ill. App. 3d 73, 78 (1986). We review de novo a trial court's jurisdictional ruling. Siakpere v. City of Chicago, 374 Ill. App. 3d 1079, 1081 (2007). Respondents argue that a court may only review an administrative action as provided by law. See Walters v. Department of Labor, 356 Ill. App. 3d 785, 788 (2005), citing Ill. Const. 1970, art. VI,

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