Janis Hand v. State of Illinois

OPINION

BURNS, J. This matter comes before the Court upon the recommendation of a commissioner following an evidentiary hearing. The Court fully advised finds as follows:

Background

The Claimant, Janis Hand (“Hand”), a registered nurse at the McFarland Mental Health Center in Springfield, Illinois (“McFarland”), filed a claim in this Court pursuant to Section 8(a) of the Court of Claims Act (705 ILCS 505/8(a)), seeking roughly $250,000 in back pay and other benefits allegedly owed to her by her employer, the Illinois Department of Human Services (“DHS”). Hand claims she is owed this money under the Illinois Personnel Code (20 ILCS 415/1 et seq.) after reinstatement to her position at McFarland in 2016 following a wrongful termination.

Respondent concedes that Hand is owed money for the majority of her claims, but disputes that she is entitled to compensation based on “lost overtime.”

We agree with Respondent for the reasons set forth below.

Facts

Hand was an employee at McFarland, a state-run mental health facility, from roughly 1990 through 2017. In 2014, she was working as a Registered Nurse II assigned to Lincoln North Hall, a forensic unit. Patients in Lincoln North Hall are assigned to that unit by court order, and extra hazard pay is provided to employees for working in that unit since some of the patients have a potential for extreme violence. Hand worked a shift beginning at 11:00 in the evening and ending at 7:00 the following morning. Hand was one of three senior nurses working at McFarland-seniority being based on longevity of service on the staff at McFarland.

On June 14, 2014, for reasons not relevant to this matter, Hand was suspended from her employment at McFarland pending termination. At that time, she was removed from DHS payroll. On June 30, 2014, DHS terminated her employment.

Hand filed a timely appeal of her termination with the Illinois Civil Service Commission (the “Commission”). Following evidentiary hearings, the Commission set aside Hand’s termination and, in lieu thereof, assessed her a 90-day suspension. By its terms, Hand’s suspension would have ended on September 13, 2014.

[*249] On December 22, 2015, DHS filed a lawsuit in the Circuit Court of Sangamon County, Illinois, pursuant to the “Administrative Review Law” requesting that the Commission’s decision be reversed. On February 1, 2016, the Circuit Court directed DHS to reinstate Hand to active employment pending the outcome of DHS’s lawsuit. On March 1, 2016, Hand was returned to active employment at McFarland. On May 15, 2017, the Circuit Court of Sangamon County dismissed the lawsuit.

At the time of her termination, Hand, was a Registered Nurse II at McFarland who worked in the forensic unit, earned a base wage rate that effectively provided her average monthly straight time earnings of $8,440.25. This amount included premium pay, shift differential pay, and longevity pay. However, she often earned additional compensation by working overtime shifts that included extra pay.

For example, Hand’s year-to-date gross earning between January 1, 2014, and June 14, 2014, her last day of work at McFarland, was $70,073.38. This included overtime earnings of $6,384.97, based on at least 80 hours of overtime assignment.

Effective July 1, 2014, Hand’s base wage rate was increased by 2 percent. As a result, her average monthly straight time earnings after July 1 increased from $8,440.25 to $8,615.25.

Unfortunately for Hand, when she returned to work in 2016, the appropriation period for DHS to pay its employees during the 2014 calendar year had lapsed. Thus, Hand was paid only a portion of her back wages covering the period of July 1, 2015, through February 29, 2016. At this time, she received a total of $54,100.33, representing $65,652.80 in lost regular pay for the period minus $11,552.47 for accrued vacation and holiday time that had been deducted upon her termination but was to be restored at a later date. However, Hand received the $11,552.47 upon her retirement. Hand also did not receive any back pay for the period from September 14, 2014, through June 30, 2015.

On February 5, 2019, Hand filed her complaint in this court seeking payment for wages and benefits, including lost overtime. Hand’s Complaint cited the following six counts: (Count 1) straight time earned income lost between September 2014 and February 2016; (Count II) lost overtime compensation between September 2014 and February 2016; (Count III) lost overtime earnings between March 2016 and December 2017; (Count IV) vacation days; (Count V) holiday pay; and (Count VI) personal days benefit.

On April 16, 2019, Respondent filed a motion for summary judgment in which it conceded that Hand was entitled to certain straight time earnings (Count I), vacation days that were not paid to her at retirement and accrued vacation benefits during the back pay period (Count IV), accrued holiday pay (Count V), and lost personal days (Count VI), though it disputed some of the precise amounts. However, Respondent asserted that Hand was not entitled to any damages on Counts II or III regarding the allegedly lost overtime pay between the respective periods of September 14, 2014, through February 28, 2016, and March 1, 2016, through December 31, 2017.

The Hearing

[*250] On March 18, 2021, a hearing was held before Commissioner Reid. The evidence consisted of the pleadings, Exhibits 1-18, and a stipulation of undisputed facts. The referenced exhibits include the Labor Agreement by and between the Illinois Nurses Association RC-23 and the Illinois Department of Central Management Services, earning statements, seniority rosters, and documents relating to termination and reinstatement of employment. Respondent filed a Motion in Limine with respect to a listed witness, but the matter was resolved prior to the hearing. The transcripts of the hearings on the suspensions and termination proceedings by the Commission and Court were not available to Respondent.

At the hearing, Donna Palazzolo, the account supervisor in the McFarland business office, testified that while overtime is often available at the facility, it is not guaranteed. When it is needed, Palazzolo said that overtime is generally made available to Registered Nurse IIs on the basis of seniority. Palazzolo acknowledged that Hand regularly worked overtime in 2013 and the first half of 2014, but that overtime is not guaranteed and therefore is an unknown variable.

Palazzolo’s testimony generally was supported by other Respondent witnesses.

Theresa Benson, a payroll employee, testified that Hand received only partial payment of her back pay upon reinstatement in 2016 because the appropriations year for 2014-2015 had lapsed. She also stated that any enhanced benefits - other than overtime-would have been included in this amount. Beth Ray, also a Registered Nurse II at McFarland, testified that overtime was not guaranteed, but that between 2013 and the present, overtime was “always available” on Lincoln North Hall due to it being understaffed. Terry Goff, who worked as a Registered Nurse II before retiring, also testified that there was a regular shortage of nurses at Lincoln North Hall during the period in question and that she was able to work “a considerable amount of overtime.”

Goff further recalled that overtime may have been mandatory at times, but more often was a voluntary process.

Other testimony and documentary evidence established that the relevant labor agreement in effect during the time of Hand’s employment provided management with the right to establish and change work schedules and assignments. In terms of overtime procedure at McFarland, the witness generally testified that when overtime was required by management, a list would be distributed identifying overtime availability for the upcoming month for all units. Employees in each unit would get first opportunity to work overtime in that same unit. The DHS scheduler would then produce a list of employees entitled to work overtime.

Further testimony established that if Hand had not been terminated, she would have remained eligible to earn overtime in the same manner as she did prior to her termination. Except for Hand’s suspension, no conditions at McFarland changed concerning the availability for overtime.

Hand testified that when she returned to work in March 2016 following her reinstatement, she was no longer permitted to work as a nurse. Rather, she was assigned clerical and related administrative work. Hand stated that she applied for overtime on [*251] several occasions after her reinstatement but was never granted any opportunity for overtime work. Hand later retired on December 31, 2017.

Analysis

This case requires determination of whether Claimant Hand is entitled to compensation for “lost overtime” earnings that she argues would have been received had she not been wrongfully terminated. It is well-settled that the burden of proof lies with the claimant, and that the plain language of contracts and statutes control the interpretation of those documents. Donald Wagner v. State, 60 Ill. Ct. Cl. 248 (2008).

The record of this case shows that Hand was, at all times relevant to this case, a covered employee under the collective bargaining agreement between the Illinois Nurses Association and the Illinois Department of Central Management services (the “Labor Agreement”). The Labor Agreement provides that Respondent has authority to determine work assignments, including the award of overtime.

The Labor Agreement provides in pertinent part as follows:

ARTILE III

Management Rights

Section 1. Management Rights.

It is understood and agreed by the parties that subject to the provisions of this Agreement and the I.P.L.R.A. (P.A. 83-1012), the Employer possesses the sole right to operate its agencies so as to carry out the statutory mandate and goals assigned to the agencies and all management rights lie in management: the management of the operations of the Employer, the determination of its policies, budget and operations, the manner of exercise of its statutory functions and the direction of its working forces, including, but not limited to, the right to hire, promote, demote, transfer, evaluate, allocate, assign and direct employees; to discipline, suspend and discharge for just cause; to relieve employees from duty because of lack of work or other legitimate reasons; to determine the size and composition of the work force; to make and enforce reasonable rules of conduct and regulations; to determine the departments, divisions and sections and work to be performed therein; to determine the number of house shifts per workweek, to establish and change work schedules and assignments; the right to introduce new methods of operation; to eliminate, relocate, subcontract or transfer work to maintain efficiency in the department is vested exclusively in the Employer.

The language above unambiguously provides that Respondent has the authority to evaluate, assign, and direct employees and work schedules. Specifically, management at McFarland has the right to direct its working forces, including but not limited to, the right to hire, promote, demote, transfer, evaluate, allocate, assign, and direct employees; to discipline, suspend and discharge for just cause.” Provided this authority and due to the activities or events which led to Hand’s termination on June 14, 2014, it is possible that Hand would not have been selected for overtime between September 15, 2014, through February 28, 2016, and March 1, 2016, through December 31, 2017, because the [*252] employer has the authority to grant the opportunity to work overtime; this is not a decision made solely by the employee.

The Personnel Code does not support the payment of compensation beyond the stated position classification. Section 415/11b of the Personnel Code provides as follows: Sec. 11b. Every employee reinstated for the period for which [they were] suspended, discharged or improperly laid off shall receive full compensation for such period notwithstanding the fact that any person was employed to perform any duties of such employee during the time of such suspension, discharge or layoff. For purposes of this Section 11b, full compensation shall mean compensation such suspended, discharged or laid off employee would have earned in the position classification during the period of suspension, discharge or layoff less amounts earned by the employee from any other source and unemployment compensation payments received during such period. 20 ILCS § 415/11b.

Provided this definition and the unknown “overtime hours.” If any, a literal reading of the statute addresses only the compensation stated in the “position classification.” This “position classification” references known amounts, not possible compensation. Since the State of Illinois management rights have input on “overtime opportunities and pay,” and Respondent does not know the amount of overtime, if any, that would have been earned if the employee chose to work overtime, this Court is unable to determine the compensation that Hand would have earned.

Similarly, we cannot say based on the record that management did not have the right to change Hand’s specific work assignment after she was reinstated. It appears that both the Commission and the Circuit Court of Sangamon County determined that Hand should be reinstated to work at McFarland, but we are unaware if either of their respective decisions specified the position or duties that Hand were to assume upon reinstatement. Thus, on this issue as well, Hand has not met her burden of proof.

In Glenda Hunter v. State, 44 Ill. Ct. Cl. 65 (1992), this Court found that the claimant failed to sustain her burden of proof as to entitlement to compensation she would have earned if she was not recuperating from an injury at the time. Also, in Hunter, we found that the claimant was not entitled to a “bonus” because there was no testimony or evidence as to how the amount of the bonus would have been determined.

Similarly, the record of the present matter contains no evidence or direction as to how the overtime would have been determined. The rate of overtime pay is discernible, but the hours of overtime pay are not readily apparent. References to prior overtime pay are simply too random and thus inadequate to apply to overtime that would or could have been earned by Hand. The fact remains that she did not work any overtime during this period. For purposes of comparison, shift differentials are included in the calculation of lost pay because they are based on 11 percent of the employee’s straight time hourly rate. These are known facts. The amount of overtime that Hand might have worked during her period of termination is not a known fact.

[*253] We recognize that overtime pay can be recoverable in a wrongful discharge case.

In Tavoletti v. State, 32 Ill. Ct. Cl. 162 (1978), we granted overtime pay to a snowplow and salt truck driver who had been reinstated after settling a disciplinary matter.

However, in that case the court took judicial notice of the fact that snow plowing would have been needed during the period in question, and thus overtime could be assessed.

We find the circumstances in that case different enough from the current situation to justify following a more recent case, Gant v. State, 45 Ill. Ct. Cl. 24 (1993), wherein the claimant, a Department of Corrections transportation officer, was denied retroactive overtime pay on the basis that it was too speculative. Smith v. State, 35 Ill. Ct. Cl. 191, 195 (1982). If a claimant did not perform any such overtime work, he or she is not entitled to overtime payment. Smith, 35 Ill. Ct. Cl. at 195.

Recently, an Illinois appellate court addressed the issue of whether “holiday pay” is considered “fixed compensation” for pension purposes. In Village of Hanover Park, the appellate court held that both statutory and regulatory authority make clear that if police compensation is not “fixed,” it is not considered “salary” for pension purposes. Vill.

Of Hanover Park v. Bd. of Trustees of Vill. of Hannover Park Police Pension Fund, 2021 IL App (2d) 200380, 59, 184 N.E.3d 413, 426-27. While Hannover Park is not directly on point with the facts of this case, the same legal principles apply: if overtime is not worked, it is not fixed for compensation purposes.

The speculative nature of overtime assignments in this case is bolstered by the record, which shows that Hand was suspended from work on two occasions prior to her termination in 2014. While her termination was eventually set aside by the Commission and Circuit Court, the actions or omissions that gave rise to her termination resulted in a third suspension within a time period of two years. It is quite possible that these transgressions would have entered the “overtime work assignments” decision by management.

Additionally, as a practical issue, and as stated by Respondent’s witnesses, overtime compensation in this case is not guaranteed. It is subject to numerous variables that preclude definiteness. In conclusion, we find the overtime issue here to be speculative, and that Claimant Hand has failed to meet the burden of proof necessary to establish these damages. Gant, 45 Ill. Ct. Cl. at 32.

Having determined that Hand is not entitled to overtime pay, we next turn to her claims for unused vacation (Count IV), holiday pay (Count V), and personal days (Count VI). On these counts, Respondent agrees that Hand is entitled to compensation for all of the above, but disputes the exact amounts for each of the three categories.

Hand has provided a Bill of Particulars (Ex. C to Joint Ex. 17), but we find some of the computations of lost compensation to be suspect. For example, Respondent’s figure for “straight time earnings” owed to Hand for the periods at issue amounted to $96,925.00, while Hand’s figure for the same straight time earnings inclusive of longevity benefits amounted to $150,766.88. however, Hand later revised her figures for unpaid straight time earnings in her May 24, 2021, memorandum to match Respondent’s [*254] figure of $96,925.00. For this reason, we accept $96,925.00 as the unpaid straight time earnings to be awarded to Hand.

Finally, a review of the record indicates agreement by both Respondent and Hand as to the sum Hand is owed for “vacation time” accrued prior to her termination: $11,552.47. The record also shows that Hand is due to $14,055.60 for accrued vacation benefits during the back pay period; $9,011.25 for “lost holiday pay”; and $2,385.00 for “lost personal days.” Once again, no award is made for the “claimed lost overtime pay.”

We therefore find that Hand is due $133,929.32 for the period of June 14, 2014 (the date Hand was removed from the DHS payroll), through March 1, 2016 (the date Hand was reinstated to active employment at McFarland). It follows that the claim is awarded in part and denied in part.

IT IS HEREBY ORDERED that Claimant Janis Hand be awarded the sum of $133,929.32, in full and final satisfaction of this claim.