Opinion
No. 1-16-2376
01-26-2018
RICHARD MCGOVERN, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 15 CH 9388 Honorable Rodolfo Garcia, Judge Presiding. JUSTICE ROCHFORD delivered the judgment of the court.
PRESIDING JUSTICE REYES and JUSTICE LAMPKIN concurred in the judgment.
ORDER
¶ 1 Held: In this administrative review case, we affirmed defendant's termination of plaintiff from his employment as a recreation leader for violating the Chicago Park District's Code of Conduct. ¶ 2 Defendant-appellee, the Chicago Park District, terminated plaintiff, Richard McGovern, from his position as a recreation leader for having violated section 1(B) of its Code of Conduct (Code). Plaintiff appealed his termination to the Chicago Park District Personnel Board (Personnel Board), which upheld the hearing officer's recommendation to affirm plaintiff's termination. Plaintiff filed a complaint for administrative review in the circuit court of Cook County, which also upheld plaintiff's termination and denied his complaint. Plaintiff appeals the circuit court's order. We affirm. ¶ 3 Plaintiff was hired by defendant for the part-time position of recreation leader in 1997 and assigned to work in Ridge Park. In 2012, defendant learned that, in 2001, while employed as a recreation leader, plaintiff was convicted of theft in the circuit court of Cook County. On December 11, 2012, defendant sent plaintiff a notice of corrective action meeting (CAM), alleging that his 2001 conviction resulted in a violation of section 1(B) of the Code. ¶ 4 Section 1(B) of the Code states:
"An employee shall not commit a criminal offense, as evidence[d] by a conviction by a court of record which offense would have a negative impact on the employee's qualification to serve in the employee's current job title."¶ 5 The Code provides that compliance therewith is "required from all employees" and that violation of the Code "shall result in disciplinary action which could result in termination of employment." ¶ 6 Defendant's human resources department held a CAM with plaintiff on January 8, 2013, where plaintiff was represented by his union representative. The CAM resulted in a finding that plaintiff had violated section 1(B) as a result of his 2001 theft conviction. Defendant terminated plaintiff's employment. ¶ 7 On January 17, 2013, plaintiff appealed his termination and requested a hearing before the Personnel Board pursuant to the collective bargaining agreement. The collective bargaining agreement required that the hearing be conducted within six months of the notice of appeal, i.e., by July 17, 2013. However, the hearing was not conducted until November 14, 2013. ¶ 8 At the hearing, Edward Skerrett testified he is an investigator for defendant. In 2012 Mr. Skerrett received information that plaintiff had a prior criminal conviction. Mr. Skerrett conducted a background check of plaintiff and learned he had a conviction for felony theft in 2001, while he was employed as a recreation leader. Mr. Skerrett interviewed plaintiff in December 2012, and plaintiff stated that the theft occurred from 1995 to 1997 while he was also "connected with" the Southwest Conference of Catholic Schools (the Conference) and that, following his conviction, he received 36 months' probation, and was required to pay $35,000 in restitution. ¶ 9 Mr. Skerrett asked plaintiff whether he handled any money as part of his job as a recreation leader. Plaintiff told Mr. Skerrett "he usually does not handle any cash except for maybe transactions that would occur when he's at the park alone, in which case he would take the money and put it in a locked drawer, and then another employee would enter it into the system during the first part of the week." ¶ 10 Edward Affolter testified he is a park supervisor at Ridge Park and that plaintiff worked for him from 2008 to 2012 as a recreation leader. A recreation leader's responsibilities include assisting in classes, adult leagues, grammar school leagues, assisting patrons, answering phones, and, "if they're financed trained," collecting money for gym rentals, room rentals, and class registrations. ¶ 11 Plaintiff had undergone financial training in 2007 or 2008 and, thus, was allowed to collect money for defendant for the gym and room rentals and class registrations. For a two-year period, plaintiff handled Sunday rentals, usually by himself, received money from defendant's patrons, placing it in a lockbox. Plaintiff had a key to the building at Ridge Park, which he used to open and close the park on Saturdays and Sundays. The park contained athletic equipment, as well as paintings worth thousands of dollars. ¶ 12 Mr. Affolter testified that, because a recreation leader handles money and equipment and has keys to the facility, he needs to be someone who is honest and trustworthy and who would not steal money or equipment from the park. Mr. Affolter considered plaintiff to be trustworthy and a good employee, and had no reason to doubt his honesty. He never received any complaints from co-workers or patrons that plaintiff had taken any of their possessions. ¶ 13 Mary Saieva testified she is a human resource manager for defendant. Ms. Saieva received a memo from the Chicago Park District Office of the Inspector General that plaintiff had been convicted in 2001 of theft for stealing over $100,000 from a sports league, the Conference. She scheduled a CAM with plaintiff for January 8, 2013. ¶ 14 At the meeting, plaintiff was represented by his union representative, who argued that plaintiff was an excellent employee for defendant both before and after his conviction for theft. Plaintiff did not deny having committed the theft. ¶ 15 Following the meeting, plaintiff was terminated from his position as a recreation leader because his 2001 theft conviction violated section 1(B) of the Code, which prohibited an employee from being convicted of an offense negatively impacting his qualification to serve in that position. Ms. Saieva explained that honesty and trustworthiness are necessary qualifications for recreation leaders with finance training because "[t]hey have access to everything in the facility especially if they are assigned keys. That's equipment. That's sporting equipment. That's furniture, computers. At that location, there is an art gallery. *** They have opportunity to take in money from patrons, also to rent the spaces in the facility, room rental, gym rental." Ms. Saieva noted that plaintiff had received finance training and, as a recreation leader, he had issued receipts for monies collected by him from defendant's patrons for rentals and activity fees. Ms. Saieva identified several such receipts from January 2012. Ms. Saieva concluded that plaintiff's theft conviction, based on his stealing over $100,000 from the Conference, made him untrustworthy to continue to handle financial transactions as a recreation leader, thereby negatively impacting his qualification to serve in that capacity and constituting a violation of section 1(B) of the Code. ¶ 16 Plaintiff testified he was first employed as a recreation leader for Ridge Park in 1980. He resigned in 1987, and went back to work as a recreation leader in 1997 until his dismissal in January 2013. As a recreation leader, plaintiff had a key to the building and access to all the park's equipment. He received finance training in 2007 and collected money and issued receipts to patrons for rentals and registrations. ¶ 17 Plaintiff admitted that, as a recreation leader, he was required to be honest and trustworthy. ¶ 18 Plaintiff testified that, in addition to being a recreation leader, he was also president of the Conference from 1991 to 1998. In 2001, plaintiff was convicted of theft for stealing over $100,000 from the Conference from 1995 to 1997. Joe Sebek, the treasurer of the Conference, pled guilty and was indicted for the same crime. ¶ 19 Adina Evans, a recreation leader at Ridge Park, testified she knows plaintiff because he is a former co-worker. She had an opportunity to observe his work, and stated that he performed his job well. She never saw him take anything from another co-worker or park patron, and she never saw him steal money from a gym or room rental. Ms. Evans stated that plaintiff was honest and trustworthy. On cross-examination, Ms. Evans stated she did not work weekends with plaintiff, and was unaware he had been convicted of theft. ¶ 20 John Killacky testified he runs an Alcoholics Anonymous meeting every Sunday morning at Ridge Park and pays plaintiff for the room rental. Mr. Killacky described plaintiff as a "nice young guy," who appeared to be honest. On cross-examination, Mr. Killacky stated he only went to the park on Sunday mornings and that, when he was at the park, he did not go out of his way to observe plaintiff performing his job duties. Mr. Killacky was unaware of plaintiff's theft conviction. ¶ 21 Michael Sheehan, the Cook County Sheriff from 1990 to 2006, testified he played in a number of basketball leagues at Ridge Park, worked as a referee there, and became acquainted with plaintiff. Mr. Sheehan observed that plaintiff was punctual, courteous, and a "very good representative of the Chicago Park District." On cross-examination, Mr. Sheehan stated he was not plaintiff's supervisor or boss, and never gave him any instructions on how to handle defendant's money. Mr. Sheehan was unaware of plaintiff's theft conviction. ¶ 22 Following all the testimony, the hearing officer found that honesty and trustworthiness are essential qualifications of a recreation leader with finance training, such as plaintiff, who handles patrons' money and who has access to the park's sporting equipment, computers, and art gallery. The hearing officer further found:
"Given the undisputed fact that [plaintiff] stole money from [the Conference] while he was a fiduciary of the organization certainly shows that at least that [plaintiff] cannot be trusted with money which would have a negative impact on his qualification to serve as recreation leader because one of his duties is to collect money and place the collected monies into a lockbox."Accordingly, the hearing officer found that plaintiff's theft conviction was a violation of section 1(B) of the Code, and recommended that his termination be affirmed. ¶ 23 On August 27, 2014, plaintiff filed exceptions to the findings and recommendations of the hearing officer. The Personnel Board voted on May 13, 2015, to uphold the hearing officer's recommendation and affirm plaintiff's termination. ¶ 24 Plaintiff filed a complaint for administrative review in the circuit court of Cook County. On July 28, 2016, the circuit court denied the complaint, upholding defendant's decision to terminate plaintiff. Plaintiff filed this timely appeal. ¶ 25 Pursuant to the Administrative Review Law (735 ILCS 5/3-101 (West 2010)), we review the final decision of the administrative agency and not the decision of the circuit court. 520 South Michigan Avenue Associates v. Department of Employment Security, 404 Ill. App. 3d 304, 312 (2010). The hearing officer acts as the initial fact finder and, in that capacity, hears the testimony of the witnesses, and determines their credibility and the weight to be given their statements. Jackson v. Board of Education of the City of Chicago, 2016 IL App (1st) 141388, ¶ 26. The administrative agency is required to consider the hearing officer's factual findings and, as here, may choose to adopt them. Beggs v. Board of Education of Murphysboro Community Unit School District No. 186, 2016 IL 120236, ¶ 61. ¶ 26 The appropriate standard of review depends on the questions presented. Kinsella v. Board of Education of the City of Chicago, 2015 IL App (1st) 132694, ¶ 20. When a question of fact is raised, we determine whether the agency's findings of fact are against the manifest weight of the evidence (id.), i.e., whether the opposite conclusion is clearly evident or whether the factual findings are arbitrary, unreasonable, or not based on the evidence. Id. ¶ 22. ¶ 27 A question of law is reviewed de novo. Id. ¶ 20. ¶ 28 A mixed question of law and fact is reviewed under the clearly erroneous standard. Id. A mixed question of law and fact examines the legal effect of a given set of facts and asks whether the facts satisfy the statutory standard or whether the rule of law as applied to the established facts is or is not violated. Beggs, 2016 IL 120236, ¶ 50. Under the clearly erroneous standard, the agency's conclusion will not be reversed unless, after reviewing the entire record, we are left with the definite and firm conviction that a mistake has been committed. Kinsella, 2015 IL App (1st) 132694, ¶ 23. ¶ 29 In this appeal, plaintiff does not dispute the hearing officer's factual finding that he pleaded guilty in 2001 to committing theft by stealing over $100,000 from the Southwest Conference of Catholic Schools from 1995 to 1997 while serving as the Conference's president. Instead, plaintiff contends the hearing officer erred in making the findings adopted by the Personnel Board that his theft conviction rendered him untrustworthy to handle defendant's money in his position as a recreation leader, thereby having a negative impact on his qualification to serve in that position in violation of section 1(B) of the Code and necessitating his discharge. ¶ 30 Plaintiff's argument is best addressed by dividing it into four issues. The first issue is whether honesty and trustworthiness are qualifications for the position of recreation leader. This issue is one of fact which is reviewed under the manifest weight of the evidence standard. Id. ¶ 22. ¶ 31 The second issue is whether plaintiff's theft conviction rendered him untrustworthy, as a recreation leader, to handle defendant's money. This issue is one of fact which is reviewed under the manifest weight of the evidence standard. Id. ¶ 32 The third issue is whether plaintiff's theft conviction had a negative impact on his qualification to serve as a recreation leader, i.e., whether his conviction constituted a violation of section 1(B). This issue is a mixed question of law and fact and is reviewed under the clearly erroneous standard. Id. ¶ 23. ¶ 33 The fourth issue is whether he should have been discharged. The decision to discharge plaintiff is a mixed question of law and fact reviewable under the clearly erroneous standard. Beggs, 2016 IL 120236, ¶¶ 70-72.
Plaintiff filed a pre-hearing motion to dismiss based on its untimeliness. The hearing officer stated it was going to reserve ruling on the motion until after the hearing was conducted. Following the hearing, the hearing officer recommended that plaintiff's termination be affirmed, and did not explicitly rule on the motion to dismiss. We discuss the dismissal motion later in this order.
¶ 34 I. Whether Honesty and Trustworthiness are Qualifications
for the Position of Recreation Leader
¶ 35 Ms. Saieva testified that one of the qualifications of a recreation leader with finance training, such as plaintiff, is that he be honest and trustworthy, because his responsibilities include handling defendant's money (collected from its patrons) and renting rooms and equipment. Honesty and trustworthiness are also required where, as here, plaintiff has keys to open the building at Ridge Park, thereby giving him access to the sporting equipment, computers, and art gallery. Mr. Affolter and plaintiff testified similarly to Ms. Saieva. Accordingly, the hearing officer's factual finding, adopted by the Personnel Board, that honesty and trustworthiness are qualifications for plaintiff's position of recreation leader was not against the manifest weight of the evidence. ¶ 36 Plaintiff argues that under section 16a(c)(5) of the Chicago Park District Act (70 ILCS 1505/16a(c)(5) (West 2012)), defendant is required to have position descriptions specifying "the minimum requirements of education, training, or experience required for the position." Pursuant to section 16a(c)(5), defendant issued a written description of the position of recreation leader, stating in pertinent part that he must be a high school graduate or have a GED. Plaintiff contends that a recreation leader is qualified if he meets these educational requirements, regardless of whether or not he is honest and trustworthy. We disagree. Defendant's written description of a recreation leader explicitly stated it was only setting forth the "minimum qualifications" for the position and, thus, it is not an exhaustive list of all required qualifications. The testimony of Ms. Saieva, Mr. Affolter, and plaintiff, recounted above, support the finding that honesty and trustworthiness are qualifications for plaintiff's position of recreation leader.
¶ 37 II. Whether Plaintiff's Theft Conviction Rendered Him Untrustworthy
to Handle Defendant's Money as a Recreation Leader
¶ 38 While employed as a recreation leader, plaintiff was convicted in 2001 for stealing more than $100,000 from the Conference while serving as its president from 1995 to 1997. The hearing officer found that plaintiff's theft conviction rendered him untrustworthy to handle defendant's money in his position as a recreation leader. The hearing officer's finding, which was adopted by the Personnel Board, was supported by the testimony of Ms. Saieva recounted earlier in this order. ¶ 39 Plaintiff contends that Ms. Saieva's testimony regarding his untrustworthiness was speculative, not based on any evidence, and should not have been considered. Plaintiff's argument is without merit, where Ms. Saieva's testimony regarding plaintiff's untrustworthiness was not speculative but was properly based on the evidence of his having stolen over $100,000 in a two-year period from the Conference while acting as its president. ¶ 40 Plaintiff also contends that the hearing officer and personnel board should have credited Mr. Affolter's testimony over Ms. Saieva's testimony. Mr. Affolter testified that he believed plaintiff to be honest and trustworthy. It was the hearing officer's duty to hear the testimony of the witnesses, determine their credibility, and the weight to be given their statements. Jackson, 2016 IL App (1st) 141388, ¶ 26. Here, the hearing officer heard the testimony of all the witnesses, including Ms. Saieva and Mr. Affolter, and made a finding that he agreed with Ms. Saieva's determination that plaintiff's theft conviction rendered him untrustworthy to handle defendant's monies in his job as a recreation leader. The Personnel Board adopted the hearing officer's factual findings and credibility determinations, and we review the Personnel Board's findings of fact under the manifest weight of the evidence standard. Id. ¶ 61. The Personnel Board's finding of plaintiff's untrustworthiness to handle defendant's monies in his job as a recreation leader, supported by the testimony of Ms. Saieva, which was found to be credible, was not against the manifest weight of the evidence.
¶ 41 III. Whether Plaintiff's Theft Conviction Had a Negative Impact on His Qualification to
Serve as a Recreation Leader in Violation of Section 1(B)
¶ 42 Section 1(B) of the Code provides that an employee of defendant shall not be convicted of a criminal offense having a "negative impact on [his] qualification to serve in [his] current job title." ¶ 43 Plaintiff, Mr. Affolter, and Ms. Saieva testified that one of the qualifications of a recreation leader such as plaintiff who handles defendant's monies is that he be honest and trustworthy. Ms. Saiva testified that plaintiff's 2001 theft conviction, in which he pleaded guilty to stealing over $100,000 from the Conference while serving as its president, demonstrated his untrustworthiness to handle defendant's money as required by his job as a recreation leader. Relying on Ms. Saieva's testimony, the hearing officer made a finding, adopted by the Personnel Board, that plaintiff's theft conviction showed his dishonesty and untrustworthiness and therefore negatively impacted his qualification to serve as a recreation leader in violation of section 1(B). The Personnel Board's finding was not clearly erroneous. ¶ 44 Plaintiff argues, though, that his theft conviction did not negatively impact his qualification to serve as a recreation leader in violation of section 1(B) because the conviction was over 10 years old. In support, plaintiff cites Rule 609(b) of the Illinois Rules of Evidence (Ill. R. Evid. 609(b) (eff. Jan. 1, 2011)), which prohibits the use of a conviction to impeach a witness if more than 10 years has elapsed since the date of the conviction. Rule 609(b) is not applicable here, where this case does not involve an impeachment by evidence of the conviction of a crime, but rather involves defendant's decision as to whether to continue to employ plaintiff as a recreation leader, where his conviction for theft at the time he was employed by defendant was found to violate section 1(B) of the Code. Unlike Rule 609(b) of the Illinois Rules of Evidence, section 1(B) of the Code does not contain a 10-year time limit precluding consideration of plaintiff's 2001 conviction of theft. ¶ 45 Plaintiff also cites section 16a-5 of the Chicago Park District Act (70 ILCS 1505/16a-5 (West 2016)), which provides that an applicant for employment with defendant is required as a condition of employment to authorize an investigation to determine if he has been convicted of a felony within the last seven years. Plaintiff contends that section 16a-5 exhibits a legislative intent only to preclude defendant's employment of persons with felony convictions within seven years of employment and, thus, that defendant erred in considering his 11-year old theft conviction. We disagree. Section 16a-5 of the Chicago Park District Act applies only to applicants for employment with defendant. Once an applicant has been hired by defendant, section 16a-5 no longer applies to him. Instead, he is covered by section 1(B) of the Code, which applies to current employees, and which prohibits an employee from committing a criminal offense negatively impacting his qualification to serve in his job. Section 1(B) imposes no time limit precluding defendant's consideration of plaintiff's 2001 theft conviction when deciding whether to retain him as an employee.
¶ 46 IV. Whether Plaintiff Should Have Been Discharged
¶ 47 Next, plaintiff argues the hearing officer erred in making the finding, adopted by the Personnel Board, that he should be discharged. Plaintiff contends that given the mitigating circumstances of his good work history and length of service, a lesser form of discipline should 13 have been imposed. As discussed, the decision to discharge is a mixed question of law and fact reviewed under the clearly erroneous standard (Beggs, 2016 IL 120236, ¶¶ 70-72), meaning we will not reverse the discharge decision unless, after review of the entire record, we are left with the definite and firm conclusion that a mistake has been committed. Kinsella, 2015 IL App (1st) 132694, ¶ 23. A discharge decision is clearly erroneous when it was arbitrary, unreasonable and unrelated to the requirements of service. Beggs, 2016 IL 120236, ¶ 72. ¶ 48 Cause for discharge has been judicially defined as "some substantial shortcoming which renders the employee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position." Department of Mental Health and Developmental Disabilities v. Civil Service Comm'n, 85 Ill. 2d 547, 562 (1982) (quoting Kreiser v. Police Board, 40 Ill. App. 3d 436, 441 (1976)). Here, as discussed, Ms. Saieva testified that plaintiff's theft conviction rendered him untrustworthy to perform his job duties of handling defendant's money as a recreation leader, thereby negatively impacting his qualification to serve in that position in violation of section 1(B) of the Code. Ms. Saieva's testimony indicates that plaintiff's theft conviction constituted a substantial shortcoming rendering his continuance as a recreation leader detrimental to the discipline and efficiency of the service and constituted good cause for his no longer holding the position. Moreover, the Code expressly provides that violations thereof "shall result in disciplinary action which could result in termination of employment." Accordingly, the decision to discharge plaintiff was not arbitrary, unreasonable, 14 and unrelated to the requirements of service, and we cannot say we are left with a definite and firm conviction that a mistake was committed. Therefore, plaintiff's discharge was not clearly erroneous. ¶ 49 We now address plaintiff's remaining arguments regarding his termination. ¶ 50 First, plaintiff cursorily argues that section 1(B) was "vague and uncertain." We are unclear from plaintiff's argument whether he is making some type of constitutional/due process argument regarding section 1(B); further, he provides no relevant citation to authority. Accordingly, the issue is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017). ¶ 51 Next, plaintiff argues that defendant failed to prove that during his tenure as a recreation leader, he was aware of section 1(B)'s prohibition of the commission of criminal offenses negatively impacting his qualification to serve as a recreation leader. Plaintiff cites no relevant authority in his appellant's brief showing that defendant was required to make him aware of section 1(B) and instead cites a factually inapposite case (Hoffman v. Lyon Metal Products, Inc., 217 Ill. App. 3d 490 (1991)), construing section 602(A) of the Unemployment Insurance Act (820 ILCS 405/602A (West 2016)). Accordingly, in the absence of any citation to relevant authority in his appellant's brief, the issue is forfeited. Ill. S. Ct. R. 341 (h)(7) (eff. Nov. 1, 2017). ¶ 52 Next, plaintiff argues the hearing officer erred by failing to rule on his motion to dismiss the charge against him based on defendant's failure to abide by the collective bargaining agreement's requirement that he be provided a hearing within six months from the filing of the notice of appeal from his termination. The hearing was held approximately 11 months from the filing of the notice of appeal from his termination, i.e., it was held five months late under the terms of the collective bargaining agreement. 15 ¶ 53 The collective bargaining agreement contains a grievance procedure governing any "alleged violation of the express language or the intent of any express provision of this Agreement." The grievance procedure provides: "No grievance shall be entertained or processed unless it is submitted, in writing, within fifteen (15) business days after the employee concerned became aware, or should have become aware through the use of reasonable diligence, of the occurrence of the event giving rise to the alleged grievance. If a grievance is not presented within the time limits set forth above, it shall be considered 'waived.' " ¶ 54 Timely-filed grievances that are not settled in accordance with the grievance procedure are subject to binding arbitration under the collective bargaining agreement. ¶ 55 Defendant's alleged failure to hold the hearing within six months was a grievance that should have been submitted within 15 business days after the six-month period had expired. Plaintiff waived his grievance by failing to file it within the 15-day period as required by the collective bargaining agreement. ¶ 56 We have held that "where, as in the present case, a collective-bargaining agreement establishes a grievance and arbitration procedure, the agreement must be construed to establish these procedures as the exclusive mode of redress for the enforcement of the terms of the employment contract unless the parties, through the agreement, expressly agree otherwise." Spooner v. Armour-Dial, 131 Ill. App. 3d 929, 936 (1985). "Requiring union members to exhaust their contract remedies is part of the trade-off such employees accept in exchange for the many rights that they will benefit from, and rights which the employer gives up." Id. at 938. In the present case, plaintiff's failure to exhaust his grievance and arbitration remedies precludes us from considering his grievance regarding the allegedly untimely hearing. Id. 16 ¶ 57 Plaintiff has filed a petition for rehearing, arguing for the first time that the requirement that he be provided a hearing within six months is not part of the collective bargaining agreement, but rather is part of a separate Chicago Park District Code of Conduct. Plaintiff contends that as the hearing requirement is not part of the collective bargaining agreement, it is not subject to the agreement's grievance provision. Plaintiff's argument on rehearing is directly contrary to his argument on direct appeal, where he specifically contended that the six month hearing requirement was part of the collective bargaining agreement. However, even assuming, without deciding, that the hearing requirement is not subject to the agreement's grievance provision, the result on appeal would still be the same. Plaintiff's contention is that he was denied due process by the failure to hold the hearing within six months; however, plaintiff does not dispute defendant's response that the delay in holding the hearing was immaterial and for plaintiff's benefit, as the hearing was continued to accommodate plaintiff's scheduling issues and discovery requests. Plaintiff has made no argument that he was in any way prejudiced by the delay in holding the hearing. Plaintiff's claim of a due process violation fails where, as here, there is no showing of prejudice in the proceeding. See My Baps Construction Corp. v. City of Chicago, 2017 IL App (1st) 161020, ¶ 98. ¶ 58 Plaintiff also argues for the first time in his rehearing petition that under section 16.7 of the collective bargaining agreement, suspensions and discharges are not subject to the grievance procedure but rather are the exclusive jurisdiction of defendant's Personnel Board. Plaintiff argues that the Personnel Board's exclusive jurisdiction over suspensions and discharges necessarily includes jurisdiction over any procedural violations that occurred in the course thereof (such as the failure here to hold the hearing within six months of the notice of appeal from his termination). Again, even assuming that the hearing requirement is not subject to the 17 grievance provision, the result on appeal would be the same, where plaintiff makes no argument that he was prejudiced by the delay in holding the hearing. Id. ¶ 59 Next, plaintiff argues that defendant failed to comply with the Open Meetings Act when it voted to discharge him. The Open Meetings Act provides that a public body, such as defendant, may consider matters involving employment, discipline, or dismissal of specific employees in closed session, so long as final actions are taken in an open meeting. 5 ILCS 120/2(c)(1), (e) (West 2016). ¶ 60 The record indicates that on August 27, 2014, plaintiff filed exceptions to the findings and recommendations of the hearing officer that he be dismissed. The Personnel Board held a closed meeting on March 11, 2015, to consider his dismissal, as it was allowed to do under section 2(c)(1) of the Open Meetings Act. 5 ILCS 120/2 (c)(1) (West 2016). No action was taken on that date regarding whether to affirm plaintiff's dismissal. Instead, the cause was continued to May 13, 2015, when the Personnel Board reconvened in a closed session to again consider plaintiff's dismissal pursuant to section 2(c)(1), after which, in open session, it issued a report on the closed session. The next day, May 14, 2015, the Personnel Board sent plaintiff a letter informing him that it had voted to uphold the recommendation of the hearing officer that he be dismissed. ¶ 61 The vote affirming plaintiff's termination was the final action and was required to occur during an open meeting. 5 ILCS 120/2(e)(West 2012). The record on appeal contains no indication whether the vote was taken in the closed session or in the subsequent open session. ¶ 62 Plaintiff bears the burden of proving a violation of the Open Meetings Act (In re Foxfield Subdivision, 396 Ill. App. 3d 989, 992 (2009)) and, as the appellant, he also bears the burden of providing a sufficient record to support his claim of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 18 391 (1984). In the absence of a sufficient record showing whether the final vote occurred in open or closed session and, thus, whether a violation of the Open Meetings Act occurred, we resolve any doubts against the appellant. Id. at 392. ¶ 63 For all the foregoing reasons, we affirm the circuit court. ¶ 64 Affirmed.