Axsert J. Barausxt v. Intinors

J. Barauski, claimant, seeks to recover the sum of $17,352.00 in salary for a period of suspension from October 12, 1958 to August 16, 1961, when the claimant was restored to his position as a Sergeant in the [*348] Illinoig State Police as the result of a decision by the Appellate Court of the State of Illinois.

The evidence discloses that claimant was employed as a State Police Officer by the State of Dlinois from March 28, 1949 to October 11, 1958, at which time he was suspended from duty by the Superintendent of the Ihnois State Police. At the time of his suspension he was a Sergeant. Hearings were held before the State Police Merit Board relative to the charges filed against claimant, and, by order and decision of that Board, dated March 23, 1959, claimant was discharged. Claimant filed an application for judicial review of the decision of the State Police Merit Board, and, after a hearing, the Cireuit Court of Bureau County, Illinois, reversed the findings of the Merit Board. The State of Illinois, respondent, then appealed to the Appellate Court of the State of Illinois in the Second District. This Court considered the merits, and affirmed the decision of the Circuit Court of Bureau County, reversing the State Police Merit Board.

No further proceedings were held relative to the matter, and the decision of the Appellate Court became final.

Claimant was restored to duty on August 16, 1961. There is no dispute as to the amount, being $17,352.00, in salary lost during the period of suspension.

Respondent contends that it is entitled to a set-off for wages earned by claimant during the period from October 11, 1958 to August 16, 1961, and that all earnings of claimant during the period of suspension and wrongful dismissal be used as a set-off in determining the amount of the claim against the State of Illinois.

Claimant contends that he had applied for and received permission from the Superintendent of Tlinois State Police, Phil M. Brown, to perform off-duty employment, and that this provision had never been revoked. He [*349] testified that he had authority to work 20 to 25 hours a week, based on 4, 5 or 6 hours a day, as a compositor.

Claimant stated that he made reports from time to time to his superiors relative to his off-duty employment.

Claimant argues that, in the event respondent is entitled to a set-off, the entire amount of claimant’s earnings during his period of suspension should not be taken into consideration, because claimant had permission to work a portion of this time. Claimant testified that after his wrongful suspension he took up his trade on a full-time basis. It is this contention of claimant upon which the Court has focused its greatest attention. This Court has recognized time and time again that it is the duty of the claimant to mitigate his alleged damages by doing everything in his power to seek, find and accept other employment during the period of his illegal suspension. This position has been supported by Schnevder vs. State of Illinois, 22 C.C.R. 453, Otto vs. State of Illinois, No. 4474, Kelly vs. Chicago, 409 Ill. 91, Poynter vs. State of Tilanois, 21 C.0.R. 393, and many others cited by this Court on numerous occasions.

The evidence shows that claimant was a compositor by trade prior to his employment by the Tllincis State Police, and that upon his suspension he returned to this trade as a full-time employee. The same transcript of evidence discloses that, during his employment by the Illinois State Police from March 28, 1949 until the time of his resignation subsequent to his restoration, claimant had always worked the shift from 12:00 M. to 8:00 A.M., in order that he could work part-time at his trade as a compositor, The evidence clearly discloses that his superiors were fully aware of his extra employment, and that he had complied with the regulations of the Department with regard to procuring approval for part-time work outside of his regular hours of employment as a q t [*350] pes tetprestet es er State Policeman. Claimant testified that he had the authority to work 20 to 25 hours a week, based upon 4, 5 or 6 hours a day, and this testimony was not disputed by any of respondent’s witnesses.

Tt is the contention of claimant that, should this Court find that he is not entitled to the full amount of his salary lost by him during the period of his suspension and wrongful dismissal, he should be entitled to a reasonable application of the mitigation rule by virtue of the fact that he had previously been given the right to work at least half of the amount of time that he was working during his suspension. The proof in the case at hand further indicates that he was not able to work more than 40 hours per week as a compositor during the period of his suspension. We find some merit in claimant’s contention as to the reasonableness of the application of the te, and believe that the set-off must be ablishes a total loss of salary rule to mitig noble. Claimant es reé during his suspension of $17,352.00. The evidence introduced in his behalf indicates that his earnings during that same period of time amounted to $15,742.00. We hold that claimant should not be penalized, and his claim only mitigated to the extent of one-half of his earnings, or the sum of $7,871.00.

Claimant is, therefore, awarded the sum of $9,481.00.

Jo. 5020-Claimant awarded $1,603.33.)

Nicuoras Mexzas, Claimant, vs. SraTe oF ILLINoIs, Respondent.

Opinion filed May 14, 1963.

WotsLecEen aNp Armstrone, Attorneys for Claimant.

Wim G. Cuarx, Attorney General; Epwarp G. tant Attorney General, for Respondent.

[*351] Crviz Service Act-duty to mitigate damages during period of unlawful discharge. It is the duty of every suspended State employee to mitigate damages incurred through loss of salary due to suspension and discharge.

Samn-same. Mitigation rule is subject to particular facts of each case. Where claimant was busy preparing a defense, and occupied with hearing on his suspension, no mitigation was required for that period.

Przan, J. Claimant, Nicholas Mellas, by reason of his reinstatement by the Illinois Civil Service Commission following his disciplinary suspension and wrongful discharge by the Illinois Youth Commission, seeks to recover back salary in the amount of $1,603.33.

The parties hereto stipulated as follows: That claimant, presently a Guard Sergeant at the Industrial School for Boys in Sheridan, Hlinois, was appointed to his present position on February 16, 1954, and performed his duties until written charges seeking a thirty day disciplinary suspension pending discharge was served on claimant on February 20, 1961; that notice of grievance concerning this disciplinary suspension pending discharge was filed with the Chairman of the Illinois Youth Commission on March 1, 1961; that on March 20, 1961 written charges seeking the discharge of claimant, effective March 20, 1961, were served on claimant; that claimant appealed by written notice of appeal to the Illinois Civil Service Commission; that a hearing was held before John Morrow, Hearings Referee, on April 28, 1961, and, on November 22, 1961, Morrow’s decision was that claimant be retained in his position as Guard Sergeant at the Illinois Industrial School for Boys with full compensation; that the decision was unanimously concurred in by the Illinois Civil Service Commission on November 29, 1961; that claimant requested the Director of the Department of Personnel to review the thirty day disciplinary suspension in accordance with the Department of Personnel Rule No. 25; that the Department of Personnel, [*352] through its Director, replied by letter stating that the Department would be bound by the ruling of the Civil Service Commission as to the thirty day disciplinary suspension insofar as the accrual pay and other benefits were concerned; that on December 15, 1961 the Director of the Department of Personnel, by letter, recommended to the Chairman of the Illinois Youth Commission that claimant be paid his regular monthly salary from February 20, 1961 to March 20, 1961, the period of disciplinary suspension.

In the cause at hand, claimant Mellas testified that he had no employment, and earned no money during the time he was wrongfully suspended and discharged except the sum of $112.00 in National Guard drill pay, He further stated he had received no salary for the period from February 20, 1961 to July 1, 1961, but that he was paid $1,530.70 back salary from July 1, 1961 to December 10, 1961 by the Youth Commission. Claimant further testified that his gross salary of $1,603.33 for the period from February 20, 1961 to July 1, 1961 was not paid due to the fact that the appropriation for the salary for the period in question had lapsed. These facts were confirmed by the testimony of Dr. Arthur FE. Wright, Superintendent of the Illinois Industrial School for Boys at Sheridan, who was also called as a witness. Dr. Wright testified claimant was paid back salary for the period from July 1, 1961 to November 30, 1961, and further stated that claimant would have been paid his salary from February 20, 1961 to July 1, 1961, if the appropriation had not expired. Res the argument that it was the duty of imant to mitigate his alleged damages by securing employment; that, in fact, it became incumbent upon claimant to show that all times during his ten month period of suspension he made every effort consistently to obtain employment.

spondent raise [*353] The principle that it is the duty of every suspended State employee to mitigate damages incurred through loss of salary due to suspension and discharge, and to do all in their power to seek, find, and accept other employment during the period following discharge is well established. Schneider vs. State of Illinois, 22 C.C.R. 453; Otto vs. State of Illinois, No. 4744; Poynter vs. State of Illinois, 21 C.C.R. 393; Kelly vs. Chicago, 409 Tl. 91, and many others. However, the mitigation rule cannot be broadly applied without distinction as to the particular facts of each case. In the case at hand, we are only concerned with the period from February 20, 1961 to July 1, 1961, or a total of approximately four months and ten dave of the total suspension of ten months. The Youth Commission has already paid him his back salary from July 1, 1961 to November 30, 1961, after being told to do so by the Department of Personnel. During the four month period involved in the claim at hand, claimant was grossly occupied defending the charges against himself. The facts reveal that written charges were served on claimant on February 20, 1961. These charges sought a thirty day disciplinary suspension pending discharge.

Subsequently, on March 1, 1961, a notice of grievance concerning this disciplinary suspension was filed with the Chairman of the Youth Commission. On March 20, 1961, written charges seeking the discharge of claimant, effective March 20, 1961, were served on claimant, and after that claimant appealed by written notice of appeal to the Illinois Civil Service Commission for a hearing in defense of the written charges. A hearing was held before the Hearings Referee on the 28th day of April, 1961, and again later on November 22nd of the same year. It is easy to discern that claimant had his hands full defending the charges against him during the period for which the -12 [*354] appropriation has lapsed for salary that he claims. The basic facts are not in dispute between the parties hereto, nor are the amounts claimed by claimant disputed by respondent, and, in fact, the chief witness called by respondent, Dr. Arthur Wright, Superintendent at the Industrial School, testified that claimant was not paid for the period of February 20, 1961 to July 1, 1961, but was paid for the period from July 1, 1961 to November 30, 1961, and that claimant would have been paid his salary for the prior period starting February 20th, if the appropriation had not expired.

It is the opinion of this Court that claimant has clearly established his right to recover his back salary for the period involved, February 20, 1961 to July 1, 1961, without the application of the rule requiring him to mitigate by seeking and obtaining employment. The application of this rule has been distinguished herein, and the particular facts involved in this cause, including the short span of time, the large number of charges and defenses required of claimant, cause this Court to believe that claimant could not have had much time during the four month and ten day period within which to mitigate, and still prepare his own defense.

Claimant is hereby awarded the sum of $1,603.33.