Chicago Transit Authority v. Amalgamated Transit Union, Local 241

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State: Illinois

Court: 1st District Appellate

Docket No: 1-08-3285 Rel

Case Date: 03/24/2010

Preview:THIRD DIVISION March 24, 2010

No. 1-08-3285

CHICAGO TRANSIT AUTHORITY, Plaintiff-Appellant, v. AMALGAMATED TRANSIT UNION, LOCAL 241, Defendant-Appellee.

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Appeal from the Circuit Court of Cook County, Illinois No. 08 CH 01388 Honorable Daniel Riley, Judge Presiding

PRESIDING JUSTICE MURPHY delivered the opinion of the court: This appeal arises out of the discharge of Maurice Gibson, a Chicago Transit Authority (CTA) bus driver, after the CTA discovered he had been convicted of aggravated criminal sexual abuse of his stepdaughter (720 ILCS 5/12-16(b) (West 2006)) and was a registered sex offender. Amalgamated Transit Union, Local 241 (the union), filed a grievance, and an arbitrator reinstated Gibson. On appeal, the CTA contends that the arbitration award should be vacated as against public policy. I. BACKGROUND The union and the CTA are parties to a collective bargaining agreement that covers certain CTA employees, including bus drivers. The agreement contains a provision that the union will not interfere with the CTA's right to discipline its employees covered by the

1-08-3285 agreement "where sufficient cause can be shown." It further provides for a binding arbitration procedure for resolving contractual disputes. The CTA hired Maurice Gibson on May 28, 1987, to be a bus driver. On December 1, 1997, during the time he was employed as a bus driver for the CTA, Gibson pled guilty to aggravated criminal sexual abuse of a family member, a felony. See 720 ILCS 5/12-16(b) (West 2006). The victim was his stepdaughter, who was under 13 years old at the time. This abuse involved both penetration and touching. Gibson told his therapist that the relationship occurred over a period of 6 to 12 months with acts so numerous that he could not count them. As a result of the conviction, Gibson was sentenced to four years' probation. As part of his probation, he could not have any contact with his stepdaughter, and he could not be in the presence of any minors without another adult being present. Gibson was also required to register with the Illinois State Police as a sex offender for 10 years. His name and likeness were posted on the sex offender registry Web site, but his employment information was not. Gibson was further required to attend a sex-offender treatment program, which he did from 1997 through 2001. Gibson never informed CTA management of his arrest or conviction. On May 18, 2004, after someone anonymously mailed a copy of his sex offender registry page to the human resources department, the CTA suspended Gibson. On June 9, 2004, Gibson was discharged based on his violations of General Rule 7, obedience to the rules; General Rule 14, personal conduct; and General Rule 24, use of best judgment. The union filed a grievance challenging Gibson's discharge pursuant to the terms of its

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1-08-3285 collective bargaining agreement with the CTA. The following evidence was presented at the arbitration on January 10, 2006, and March 14, 2007. A. Evidence Presented at the Arbitration Steve Poustinchian, a transportation manager at the CTA, recommended that Gibson be discharged. Gibson gave Poustinchian a copy of an evaluation dated November 19, 2001, showing that Gibson had twice failed polygraphs and that there were indications that he had not been truthful about his activities during treatment. Poustinchian testified that he was concerned about the safety of children, since Gibson came into contact with children as a bus driver. There were several high schools, elementary schools, and parks along Gibson's route, and there was a park near the turnaround for his route. Children frequently ride CTA buses without parents, and sometimes drivers operate a bus that is empty. During the time that Poustinchian was familiar with Gibson's work, there were no customer complaints regarding his conduct. He testified that the buses Gibson drove had cameras and global positioning units. Robert Gierut, vice-president of employee relations for the CTA, testified that the CTA does not have a policy that a conviction for a felony automatically results in discharge, but he could not remember any cases where a conviction of a felony resulted in less than discharge. Joel Falco was Gibson's therapist for almost three years, from 1999 to 2001, at the Center for Contextual Change, where Gibson received individual therapy and participated in a specialized treatment group for sex offenders. By 2001, Falco declared Gibson to be one major step short of completing the program, as he had failed to pass two maintenance polygraphs. In fact, Gibson had failed three polygraphs. After his March 16, 1998, polygraph, when he was

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1-08-3285 being treated by Central Baptist Family Services, the examiner concluded as follows: "There were significant emotional responses indicative of deception throughout this subject's polygraph records when asked the following questions: (1) Did you have sexual contact with more than one person under the age of 18? Answer: No. (2) Are you lying about the number of persons under the age of 18 that you had sexual contact with? Answer: No." The letter from the examiner further provided that when advised of the results of the exam, Gibson stated that he had a sexual relationship with the 17- or 18-year-old niece of an exgirlfriend in 1993 or 1994. He further indicated that when he was a college student, he had a sexual relationship with a 17- or 18-year-old woman. Gibson's September 22, 1999, and October 27, 2000, polygraph tests collectively showed deception when he responded that he had not had sexual contact or sexual relations with anyone under the age of 18 since he was on probation or since his last polygraph, and that he had not put his penis in the vagina of anyone under the age of 18 since he was on probation or since his last polygraph. Falco testified that he discussed these polygraph results with Gibson, who stated that he did not know why he failed the exams. Gibson passed his last polygraph in November 2001. At that time, Gibson told Falco that he would continue treatment in consolidation, a process where clients taper off their treatment and integrate what they learned into their behavior. However, Gibson did not continue with any further treatment. Falco testified that Gibson did not complete the program because he failed to

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1-08-3285 take an additional maintenance polygraph and to continue treatment in consolidation. Falco also reevaluated Gibson between the 2006 and 2007 arbitration hearings to assess the risk to the CTA if Gibson returned to work. As part of the evaluation, Gibson completed an ABEL assessment of sexual interest, which showed that his significant sexual interests include adolescent and adult females. Falco testified that this was an "expected profile" for a heterosexual adult male. In 2006, Gibson also passed a polygraph about his sexual behavior since he left therapy in November 2001. After the 2006 evaluation, Falco concluded that there was little in Gibson's history that would preclude him from resuming safe and responsible employment at the CTA. Falco cited two reasons. First, Gibson's risk level is very low because he had eight years of no reoffenses. Second, his offense was in the context of a long-term relationship as opposed to the relatively public environment that a bus driver works in. Falco also relied on the Static-99 and Stable2000 tests in determining that Gibson had a low risk of sexual offense during his employment. Falco stated that Gibson admitted to a sexual relationship with a 17 year old when he was in college, but Gibson never revealed that he had a sexual relationship with a 17 or 18 year old when he was 32 or 33. Falco did not consider the college relationship to be an important factor in his treatment, since the age gap between them was not significant. The CTA retained Dr. Barry Leavitt, who reviewed Gibson's treatment records, polygraph exams, and other tests to assess Gibson's employability as a bus driver. He disagreed with Falco's conclusion that there is nothing in Gibson's history precluding him from working. Leavitt believed that Gibson is not simply a person who engaged in sexual offending against his

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1-08-3285 stepdaughter under particular stress; rather, his other relationships with 17 year olds demonstrate that he does not exercise good judgment and has difficulty controlling his impulses. The fact that Gibson had a sexual relationship with a 17 year old when he was a 22-year-old college student was "not necessarily alarming," but it speaks to poor judgment because "you can get in trouble for that." There were also issues regarding Gibson's truthfulness and his willingness to be open and honest about what he has done. This lack of openness prevented his treatment team from preparing an adequate relapse-prevention plan. Leavitt testified, however, that "polygraphs themselves are questionable in terms of their reliability and validity." Although he thought that employment was important, Leavitt concluded that Gibson's working as a bus driver is "potentially problematic" because he sees Gibson as more vulnerable to acting in sexually inappropriate ways than was initially documented in the reports. In particular, he noted that as a bus driver, Gibson has potential exposure to women and children. B. Arbitrator's Decision The arbitrator sustained the grievance, finding that there was no nexus between Gibson's off-duty misconduct and his CTA job. He noted that there was no showing that Gibson's criminal behavior harmed the CTA's reputation, adversely affected his ability to perform his duties, or caused other employees to refuse to work with him. There was no evidence that any employee or passenger made a complaint about Gibson's behavior either before or after the conviction, and there was no publicity of the offense or publication of the fact that Gibson worked for the CTA. The arbitrator concluded that the psychologists' opinions did not establish that Gibson's employment as a bus driver would jeopardize the public interest in safe transportation. -6-

1-08-3285 The arbitrator noted that the State does not restrict sex offenders from working as a bus driver for the CTA. Indeed, probation officers visited Gibson's home but not his place of employment, and they never contacted anyone at the CTA. He continued that the criminal court "apparently did not have any problem with" Gibson working as a CTA bus driver; in fact, during the initial phase of Gibson's probation, he was under a curfew designed to allow him to go to work. The arbitrator noted that there was no evidence "of any public policy restriction in Illinois or elsewhere" on Gibson's employment as a public transit bus driver. The arbitrator found that Leavitt was at a "comparative disadvantage" because he, unlike Falco, did not speak to Gibson before rendering his opinion at arbitration. Furthermore, unlike Falco, who had a "relatively long, close therapy experience" with Gibson, Leavitt did not tender a written report. The arbitrator noted Leavitt's conclusions that Gibson had "several years of involving himself with a 17 or 18 year old non-acquaintance" and that there had been a longstanding documented pattern of "difficulty controlling sexual impulses under stress of relationships breaking up or problems with family life" were unsupported by the evidence. He further noted that Leavitt initially believed that Gibson had a sexual relationship with his 17- or 18-year-old niece but corrected the reference to the niece of an ex-girlfriend. The arbitrator found Leavitt's opinion that it would be "potentially problematic" to reinstate Gibson as a bus driver was "equivocal." While Leavitt was concerned with Gibson's exposure to children and 17- and 18-year-old women riding the bus, "there was no evidence that there had been any problems with 17 or 18 year old women nor any suggestions why someone with [Gibson's] track record with an 11 year old would be a risk to 17 or 18 year old women." Leavitt, relying only on the documents he reviewed, maintained that there was a "possibility, not -7-

1-08-3285 likelihood" that Gibson would reoffend. Leavitt's concern of a possibility of reoffending was based on Gibson's deception during the treatment period, Gibson's failure to complete the treatment program, and the lack of a relapse-prevention program in place. However, "he did not express a definite opinion" and instead spoke in terms of what would make him "more comfortable." The arbitrator relied primarily on Falco's opinions, since he had a longer association with Gibson. Falco concluded that if Gibson were reinstated, the risk of a sexual offense in the course of his employment would be low. He stressed two factors: (1) Gibson had eight years of no reoffenses, and (2) his offense was in the context of an "intimate relationship where he lived with the person and had close contact one-on-one." The arbitrator also noted that while Falco's notes in May 2001 show that Gibson failed a polygraph, passing a polygraph, the most important marker for successful conclusion of treatment, occurred in 2006 when Gibson passed a second polygraph. The arbitrator also cited Falco's opinion that there was no evidence of sexual addiction. Furthermore, the tests that Falco performed in 2006 showed that the risk of a sexual offense during the course of his employment was low. The arbitrator concluded that Gibson's reinstatement would not violate Illinois public policy. However, he conditioned Gibson's reinstatement on compliance with Falco's recommendation that he resume participation in the sex-offender treatment program for at least three months or until Falco released him from treatment. Although it appeared to the arbitrator that Gibson already integrated what he learned in therapy into his daily life, "such continued counseling would further reduce any risk to the lowest possible level." The arbitrator awarded back pay only from August 1, 2006, when Gibson passed the -8-

1-08-3285 2006 polygraph, based on "two especially relevant factors." First, Gibson failed to advise the CTA that he was not to be unsupervised in the presence of minor children during his probation. Second, he did not complete the sex-offender treatment program. Gibson's failure to follow Falco's recommendations contributed to a delay in processing his grievance and the scheduling of a second day of arbitration. C. Trial Court The CTA filed a petition to vacate the arbitrator's award, arguing that the award violated public policy, and the union filed a counterpetition to enforce the award. The parties filed crossmotions for summary judgment. On October 22, 2008, the court granted the union's counterpetition and motion for summary judgment and denied the CTA's petition and motion. This appeal followed. II. ANALYSIS The CTA argues on appeal that the reinstatement of a convicted sex offender as a CTA bus driver violates Illinois public policy. It contends that the arbitrator's decision to reinstate Gibson threatens harm to children because Gibson, a child sex offender, hid his conviction from the CTA, violated his probation on an ongoing basis by having unsupervised contact with minors while driving the bus, and failed to complete his treatment program due to his inability to pass a polygraph exam. It further contends that the order threatens harm to the CTA because (1) if passengers knew that one of the CTA's bus drivers was a child sex offender, they would feel less safe on the system and parents would be much less likely to allow their children to use the system unescorted and (2) if a common carrier were to voluntarily hire a convicted sex offender, with full knowledge of his record, it would expose itself to liability for negligent hiring. -9-

1-08-3285 Judicial review of an arbitral reward is "extremely limited." Chicago Fire Fighters Union Local No. 2 v. City of Chicago, 323 Ill. App. 3d 168, 174 (2001). The rationale for the limited review of an award interpreting a collective bargaining agreement is that "the parties have contracted to have their disputes settled by an arbitrator, rather than by a judge." American Federal of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 305 (1996) (AFSCME II). A labor arbitration award must be enforced if the arbitrator acts within his scope of authority and the award draws its essence from the parties' collective bargaining agreement. American Federal of State, County & Municipal Employees v. State, 124 Ill. 2d 246, 254 (1988) (AFSCME I). However, a court will vacate the award if it is repugnant to the established norms of public policy. Chicago Fire Fighters Union, 323 Ill. App. 3d at 174. "The 'public policy' exception is narrow and its successful invocation requires a clear showing that the award violates some explicit public policy." City of Highland Park v. Teamster Local Union No. 714, 357 Ill. App. 3d 453, 460 (2005). The contract as interpreted by the arbitrator must violate some explicit public policy that is " 'well-defined and dominant' and ascertainable 'by reference to the laws and legal precedents and not from generalized considerations of supposed public interest.' " AFSCME II, 173 Ill. 2d at 307, quoting W.R. Grace & Co. v. Local Union No. 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183 (1983). Accordingly, the public policy of a state must be determined by its constitution, laws, and judicial decisions. AFSCME I, 124 Ill. 2d at 260. However, the "reinstatement of an employee who has violated an important public policy does not necessarily itself violate public policy." City of Highland Park, 357 Ill. App. 3d at 462. To vacate an award under the public policy exception, this court is required to undertake -10-

1-08-3285 a two-step analysis. The threshold question is whether a well-defined and dominant public policy can be identified. County of DeWitt v. American Federation of State, County & Municipal Employees, Council 31, 298 Ill. App. 3d 634, 637 (1998). If so, the court must determine whether the arbitrator's award, as reflected in his interpretation of the agreement, violated public policy. County of DeWitt, 298 Ill. App. 3d at 637. As our supreme court has cautioned, "although a rote recitation of the exception's two-prong test can be easily made, the exception's ultimate applicability to a case is necessarily fact dependent." AFSCME II, 173 Ill. 2d at 311. The CTA argues that the arbitrator's decision reinstating Gibson violated the well-defined and dominant public policies favoring the safe and secure transportation of the public, including children, and the protection of the public, especially juveniles, from convicted sex offenders. The union does not dispute that these policies exist. In support of its argument of a policy favoring the safe and secure transportation of the public, the CTA cites article XIII, section 7, of the Illinois Constitution, which provides as follows: "Public transportation is an essential public purpose for which public funds may be expended. The General Assembly by law may provide for, aid, and assist public transportation, including the granting of public funds or credit to any corporation or public authority authorized to provide public transportation within the State." Ill. Const. 1970, art. XIII,

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