Daniel Coleman v. State of Illinois

OPINION

BIRNBAUM, CJ.

FACTUAL BACKGROUND

This claim arises out of the Illinois Department of Human Services’ (DHS) discharge of Claimant Daniel Coleman in September 2009. Coleman was a maintenance worker at Howe Developmental Center (Howe). Coleman had taken disability leave in March 2009 that was scheduled to end on April 17, 2009, but he failed to return on April 17, 2009. He was given two opportunities in July 2009 to either return to work or provide medical documentation for an extension. He did neither and because of this was discharged by DHS on September 6, 2009.

On August 3, 2012, the discharge was found to be wrongful by the Illinois Appellate Court. Specifically, the Court found that instead of Claimant being discharged, he should have been suspended for 90 days. Accordingly, Claimant was reinstated and ordered to be compensated for the period during which he was wrongfully discharged: November 6, 2009 through June 30, 2012.

Respondent calculated Claimant’s back wages based on the amount he would be paid according to his title during that period. Respondent determined that he should be paid $172,040.40 in back wages. Claimant does not dispute that this is the correct amount for the work that he would have been scheduled to perform. However, Claimant argues that this amount does not “make him whole” and argues that Respondent’s back wages calculations should also include: 1) Pay for overtime work he would have done during the period of wrongful discharge and 2) Interest on the back wages. Further, Claimant requests that his salary since being reinstated be adjusted to the higher salary of a Bridge Tender because that is the position he would have received based on seniority after Howe shut down in July 2010.

Respondent agrees that it did not take any of these three factors into account when calculating Claimant’s back wages. However, it argues that its policy is to not pay interest on back wages. Further, it contends that it should not be obligated to pay for overtime work that was not performed because it is too speculative. A hearing was held before Commissioner Cavanaugh on November 2, 2016. Testimony was heard from Claimant as well as Tim Laffey from the DHS payroll office.

[*182] Claimant testified that, as of that date of the hearing, he had been working at Ludeman Developmental Center in Park Forest for four years and had been working for the State of Illinois for 22 years. He started at IDOT in 1993, where he worked for 18 months. He then started working for the Department of Human Services in September of 1995 at Howe, where he remained until the wrongful termination at issue in September 2009. He was one of about 14 to 15 maintenance workers there.

Claimant testified that while he was at Howe he received a lot of overtime work, particularly during the winter. Claimant testified that there was usually pressure on the maintenance workers to take the overtime in those months. Indeed, Claimant’s payment records predating 2009 show that in 2005 overtime equaled 26.01% of his gross wages for that year; in 2006 equaled 24.16% of his gross wages for that year; and in 2007 equaled 27.23% of his gross wages for that year. There is no significant data for 2008 because he did not work nine months in that year.

Claimant testified that in July 2010, three workers with his title and who had worked the same amount of overtime as him, received transfers to the position of Bridge Tender within the Department of Transportation when Howe shut down. Mr. Coleman explained that when one center was closing down, Respondent would try to find the employees at that center positions elsewhere. According to Claimant, employee placement preferences were accommodated based on employee seniority.

Claimant said that Bridge Tender was a coveted position because it had twice the overtime opportunities as his current position. When Claimant was reinstated in 2012 he inquired about a Bridge Tender position, but was told that the position was not available at that time. Claimant contended that had he been working in July 2010 he would have requested a Bridge Tender position. Further, he argues he would have received the position because he would have been given priority since he was 10-12 years senior to the other three maintenance workers who requested and received the same position.

Tim Laffey was called as a witness. He testified that he is a payroll administrator at the DHS payroll office and that he was familiar with Claimant’s payroll records. Mr. Laffey explained that one of his duties is to review back wage claims. He stated that it was DHS’s policy not to pay interest on back wage claims, but he was not aware of any rule or regulation that prohibited DHS from doing so. With respect to overtime, he testified that DHS does not factor in overtime in its back wage calculations because overtime is not considered to be guaranteed. DHS calculated back wages based on what an employee’s schedule would have been, and when an employee’s schedule is set, the schedule does not include overtime.

ANALYSIS

A. Overtime

Respondent argues that overtime back pay is speculative because it is impossible to calculate how much overtime an individual would have worked. Further, Respondent notes that, pursuant to the union contract, the number of overtime hours is not to be construed as a [*183] guarantee. However, regardless of overtime not being “guaranteed,” it is a factor that can be considered if a claimant can show by a preponderance of the evidence that a certain amount of overtime was available and he would have taken the overtime. Gant v. State, 45 Ill. Ct. Cl. 24, 31 (1993). How much overtime he would have taken cannot be speculative. Smith v. State, 35 Ill. Ct. Cl. 191, 195 (1982).

Here Claimant’s overtime work predating his discharge was consistent. In 2005 overtime equaled 26.01% of his gross wages; in 2006, 24.16% of his gross wages; and in 2007, 27.23% of his gross wages. Over the three-year period, Claimant’s overtime equaled an average of 25.8% of Claimant’s gross wages.

The Howe Developmental Center was shut down in July 2010. As such, the 25.8% overtime should be applied to the period between November 6, 2009 through July 31, 2010. Claimant also argues for higher wages and overtime for the period of August 2010 to June 30, 2012 based upon Claimant’s contention that he would have received a Bridge Tender position in July 2010.

Without even addressing the merits of how much gross income and overtime the Bridge Tender position would have brought in, we find that Claimant has not met his burden in establishing by a preponderance of the evidence that he would have received the position. He simply says the position was based on seniority, but we do not have evidence that the three employees picked had more seniority than the 10 or so other maintenance workers at Howe. Further, we know nothing about any of the three employees’ discipline records and whether Claimant’s 90-day suspension would have affected his ability to get the position. No witness with first-hand knowledge was presented by Claimant to explain selection criterion for the Bridge Tender position. Claimant has not proven by a preponderance of the evidence what assignment he would have received in July 2010 and what overtime would have been.

Accordingly, we find that for the period of August 1, 2010 to June 30, 2012, any overtime calculations are too speculative.

B. Interest

Claimant argues that he is entitled to post judgment interest pursuant to Section 2-103 of the Illinois Code of Civil Procedure, which states:

Interest on Judgment. Judgments recovered in any court shall draw interest at the

rate of 9% per annum from the date of the judgment until satisfied or 6% per

annum when the judgment debtor is a unit of local government, as defined in

Section 1 of Article VII of the Constitution, a school district, a community college

district, or any other governmental entity. When judgment is entered upon any

award, report or verdict interest shall be computed at the above rate, from the time

when made or rendered to the time of entering judgment upon the same, and

included in the judgment. The judgment debtor may by tender of payment of

judgment, costs and interest accrued to the date of tender, stop the further accrual [*184]

of interest on such judgment notwithstanding the prosecution of an appeal, or

other steps to reverse, vacate or modify the judgment.

The Illinois Supreme Court has held that interest is only recoverable against the State if it is specifically provided in a statute. “Interest statutes, like statutes imposing costs, are in derogation of the common law and must be strictly construed. Nothing is to be read into them by intendment or implication.” City of Springfield v. Allphin, 82 Ill.2d 571, 413 N.E.2d 394 (1980). This Court has found that Section 2-103 makes no such specific mention of the State of Illinois and is thus not applicable. See I & D Pharmacy, Inc. v. State, 37 Ill. Ct. Cl. 37, 42 (1984). Accordingly, Claimant is not entitled to post-judgment interest.

Claimant is hereby awarded $172,040.40 in gross back wages plus $11,713.20 in overtime he would have made at Howe Developmental Center until its closing for a total of $183,753.60 in gross back wages and overtime.

In order to pay Claimant the amount awarded, the Court will need a current Back Wage Claim Worksheet to be completed by DHS and filed by Respondent. This Worksheet will be similar to that previously filed by Respondent on March 21, 2016, but should now reflect the overtime wages referenced above and contain updated withholdings and state contributions. Respondent is given 30 days to file this Worksheet.