COOK COUNTY RECORD

A Chicago Public Schools elementary school teacher who had a blood-alcohol level of 0.053 at work will be allowed to keep her job after a state appeals court determined the Board of Education's decision to fire her for reporting to work intoxicated was “arbitrary and not supported by evidence.”

Ruling in favor of teacher Kathleen Kinsella, the First District Appellate Court earlier this month overturned the July 2013 decision of the Board of Education of the City of Chicago to terminate Kinsella for allegedly violating CPS rules regarding alcohol use by employees.

The board, according to the appeals panel, based its decision to fire Kinsella solely on the results of a Breathalyzer test, which had been ordered without “any evidence of impairment."

And the justices further noted the board's decision to fire Kinsella went against the recommendation of a hearing officer who conducted a two-day inquiry into the case and determined the teacher should be reinstated with full pay and benefits.

“Here, Kinsella's blood-alcohol level, without any evidence of impairment due to alcohol, is not sufficient to prove she was under the influence of alcohol by a preponderance of the evidence as required under Board rules,” the panel held.  “The record is clear that for an employee to be considered ‘under the influence’ she must show signs of impairment.”

The panel's Feb. 10 opinion was written by Justice Daniel J. Pierce, with justices P. Scott Neville and Laura C. Liu concurring.

Kinsella had worked as a teacher at William H. Ray Elementary School in Chicago’s Hyde Park neighborhood since 2008 and had never before suffered disciplinary action, according to the 14-page ruling.

On May 10, 2012, however, an assistant principal at the school notified the principal that he smelled alcohol on Kinsella’s breath while speaking with her soon after she reported to work at 8:30 a.m.

The principal then reportedly called Kinsella into her office 15 minutes later. The principal, the opinion notes, also said she detected alcohol on the teacher's breath, but witnessed no other signs of impairment or intoxication.

In keeping with CPS policy, the principal ordered Kinsella to undergo a breathalyzer test. Two tests were administered between 11:30 a.m. and noon that day, which returned blood-alcohol results greater than .05. The official result was logged as .053.

Kinsella was then escorted from the school and later charged with violating CPS employee rules.

According to the ruling, Kinsella had testified that on May 9, 2012, she had gone to dinner and had consumed alcohol, prompting her to spend the night at a friend’s house. She said she went to bed at 11 p.m. and woke up at 4:45 a.m. on May 10 to go to her apartment before reporting for work a few hours later. She said she had not eaten anything that morning before going to work.

Kinsella's case was heard by a CPS hearing officer in January and March 2013, resulting in a recommendation for her reinstatement.

After the board brushed aside that recommendation and fired her, Kinsella filed a direct appeal to the appeals court seeking administrative review.

The justices, like the hearing officer, determined the blood-alcohol test results alone were not sufficient to justify firing an employee with no prior disciplinary record. They said the board had “a complete absence of proof” that Kinsella reported to work impaired or under the influence of alcohol.

In addition, the appeals panel noted that CPS has no written policy spelling out an acceptable blood-alcohol level for employees on duty, and chided the board for improperly using “a medical handbook’s suggested calculations” to presume Kinsella must have reported for work with a blood-alcohol level of. 08 or greater without providing “a proper foundation” or “qualified expert” to support that determination.