In re Toledo, No. 1-99-1670

1st District, February 8, 2000

SECOND DIVISION

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

The Department of Human Rights (the Department), on behalf of petitioner, Maria Toledo, filed a complaint with the Human Rights Commission (the Commission) against Westlake Community Hospital (the hospital), alleging national origin discrimination in violation of the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 1994)). After a four-day hearing, an administrative law judge (ALJ) issued his recommended order and decision, recommending that the complaint and underlying charge be dismissed with prejudice. After declining to review the recommended decision and order of the ALJ, the Commission adopted the recommendation as its final administrative order. On direct appeal, petitioner contends the Commission erred in concluding, as a matter of law, that the hospital articulated a legitimate, nondiscriminatory reason for its employment decision to discharge petitioner where the record contains no admissible evidence of articulation and where it was shown that the purported articulation was a pretext for unlawful discrimination based on national origin.

We affirm.

BACKGROUND

Petitioner, who was born and educated in Mexico, worked as a data entry/computer operator for the hospital from January 1978 to November 1989. Petitioner was assigned to the second shift for the entire time she was employed by the hospital, working from 4 p.m. until 2:30 a.m. As a computer operator, petitioner was responsible for entering data, running reports, supporting other computers users and monitoring computer services. Petitioner would usually work by herself on the second shift; however, one day out of every two weeks she would be scheduled to work with another operator, Patricia Rich, who was not a member of any minority group. Between 1978 and 1989, Nancy Abenanti, petitioner's immediate supervisor, gave petitioner reasonably favorable reviews regarding her work performance and recommended a series of raises. To some extent, however, petitioner's performance reviews criticized her relationships with her coworkers, particularly Rich, as well as her attendance.

On November 2, 1989, petitioner was scheduled to work with Rich but was reportedly absent from her assigned desk for several hours. Specifically, between 5 p.m. and the end of her shift, petitioner did not log onto the computer, enter any data, help Rich or remain available to perform her user-support responsibilities. After receiving reports from three of petitioner's coworkers (Patricia Rich, Bart Costales and Yolanda Ong) that petitioner had been absent from her work station for several hours during her shift, Abenanti went to Dale Westcoat, Abenanti's supervisor, who instructed her to conduct an investigation, which included talking to all of the computer operators, except petitioner, about the allegations.

Upon interviewing Rich, Abenanti was informed that, on November 2, 1989, petitioner was absent from her work station from 5:30 p.m. to 10:30 p.m., and then went to and remained in Westcoat's office until 2:30 a.m. Costales, who was Cuban and worked the third shift, informed Abenanti that petitioner was not present in the department between 9 p.m. and 10:30 p.m., and then went in Westcoat's office until about 2:30 a.m. Ong, who was Filipino, informed Abenanti that the other operators had been talking about the fact that petitioner had been leaving the department.

While Abenanti exercised the discretion to determine whether any rule or regulation applied to the conduct of an employee, she did not have the authority to discharge an employee. Therefore, on November 13, 1989, Westcoat and Abenanti arrived at the decision to discharge petitioner due to "neglect of duty" after meeting to discuss the investigation and review the computer logs indicating petitioner last signed onto the computer at 5:07 p.m.

On November 15, 1989, petitioner received her notice of discharge.

On January 19, 1990, petitioner filed a charge of national origin discrimination against the hospital with the Department. In her charge, petitioner alleged that, on November 15, 1989, the hospital discharged her from her position as a computer operator on the pretext that, on November 2, 1989, she was absent from her department for over three hours, but that the discharge had actually been motivated by discriminatory animus because of her Mexican origin. See Ill. Rev. Stat. 1989, ch. 68, par. 2-102(A) (now 775 ILCS 5/2-102(A) (West 1998)).

On March 7, 1994, the Department filed a complaint with the Commission on behalf of petitioner. See 775 ILCS 5/7A-102(F) (West 1994). The complaint alleged, in pertinent part, that petitioner had been present at her work station for the required time on November 2, 1989, except for a scheduled meal break, and that the reason given by the hospital for her discharge was a pretext for unlawful discrimination based on her national origin. See 775 ILCS 5/2-102(A) (West 1994).

On August 11, 1997, a four-day hearing commenced before an ALJ. At the hearing, petitioner testified that, on November 2, 1989, shortly after 5 p.m., she logged off the computer and then told Rich that she was going to the cafeteria to get a soft drink. Upon her return, at approximately 5:30 p.m., petitioner went into Westcoat's office to work on her own ideas for reducing down time and increasing productivity on the third shift. Petitioner then took her lunch at 9 p.m., returning at or around 10 p.m. Upon her return, she was seen by both Rich and Costales, but neither said anything to her indicating that they needed assistance in user support. Thus, she returned to Westcoat's office to continue working on her project until the end of her shift, at 2:30 a.m.

Petitioner also offered testimony that Rich, Abenanti and Westcoat made comments to her that indicated their dislike of her due to her Mexican origin. As to Rich, petitioner testified that Rich made over 500 anti-Mexican remarks over the course of her employment. As to Abenanti, petitioner testified that Abenanti stated to her that she liked Mexican food, "but it was different working with one." However, petitioner did not recall when the statement was made, what else was said or how many times Abenanti made the statement. Petitioner also testified that Abenanti was consistently lenient with Rich when it came to matters of discipline and work. As to Westcoat, petitioner testified that, during a phone conversation with her that took place between October 1989 and November 1989, Westcoat stated that he did not like "people like" petitioner.

Neither Rich nor Westcoat testified at the hearing; Rich was deceased and Westcoat was no longer employed by the hospital at the time of the hearing. However, Abenanti admitted to telling petitioner that she liked Mexican food, but denied petitioner's allegation that Abenanti added the words "but working with you is different." Abenanti further testified that the conversation took place when petitioner first started working at the hospital, during the time when she and petitioner were "just getting to know each other."

On December 18, 1998, the ALJ issued its 78-page "Recommended Order and Decision," finding that petitioner was successful in establishing, through indirect evidence, a prima facie case of national origin discrimination. However, in that the hospital articulated a legitimate, nondiscriminatory reason for petitioner's discharge (i.e., that it believed petitioner had abandoned her work station without permission from or notice to her supervisors), the ALJ found that petitioner failed to provide sufficient evidence that the articulated reason was a pretext for discrimination based on her national origin. Specifically, the ALJ stated that petitioner failed to present "credible direct evidence" upon which it could be concluded that petitioner's national origin had influenced the discharge decision. As such, the ALJ concluded that petitioner failed to prove by a preponderance of the evidence that the hospital discharged her because of her national origin and, therefore, it recommended that petitioner's complaint and the underlying charge before the Department be dismissed with prejudice.

On January 19, 1999, petitioner filed her objections to the ALJ's recommended order and decision. Therein, she argued that no one other than the actual decision-maker should be allowed to articulate a legitimate reason for the discharge. Thus, in the absence of testimony from Westcoat, the ALJ should have held, as a matter of law, that the hospital failed to articulate a legitimate, nondiscriminatory reason for the alleged action. Petitioner further alleged that the hospital could not have legitimately discharged her for neglect of duty as she had not, in fact, neglected any of her duties.

In its response, filed February 16, 1999, the hospital asserted that because Abenanti attended the meeting where the discharge decision was reached and because Larry Krueger, the information systems manager at the hospital, had been present when petitioner received her discharge notice, their testimonies at the hearing were sufficient to prove that a legitimate, nondiscriminatory reason existed for petitioner's discharge. It further asserted that petitioner's exceptions did not show that the ALJ's refusal to find pretext was contrary to the manifest weight of the evidence.

On April 23, 1999, the Commission notified the parties that a three-member panel had declined to review the recommended order and decision of the ALJ and, instead, adopted the recommended order and decision as its final order, thereby dismissing the complaint and underlying charge with prejudice. See 775 ILCS 5/8A-103(E)(2) (West 1998).

On May 20, 1999, petitioner timely filed her petition for direct review of the final administrative order. See 775 ILCS 5/8-111(A)(1) (West 1998).

OPINION

Upon judicial review of a final order of the Commission, the Commission's findings and conclusions on questions of fact are deemed prima facie true and correct (735 ILCS 5/3-110 (West 1998)) and "shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence" (775 ILCS 5/8-111(A)(2) (West 1998)); Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688 (1989). In order to set aside the Commission's findings as against the manifest weight of the evidence, the reviewing court must find that "no rational trier of fact, after viewing all of the evidence in a light most favorable to the agency, could have found as that agency did." Szkoda v. Human Rights Comm'n, 302 Ill. App. 3d 532, 539, 706 N.E.2d 962, 968 (1998). The reviewing court cannot reweigh the evidence, the credibility of witnesses or the reasonable inferences to be drawn from the evidence. Christ Hospital & Medical Center v. Human Rights Comm'n, 293 Ill. App. 3d 105, 109, 687 N.E.2d 1090, 1093 (1997); Page v. City of Chicago, 299 Ill. App. 3d 450, 464, 701 N.E.2d 218, 228 (1998). Thus, if a review of the record reveals any evidence supporting the administrative agency's decision, the decision must be sustained. Interstate Material Corp. v. Human Rights Comm'n, 274 Ill. App. 3d 1014, 1023, 654 N.E.2d 713, 719 (1995).

Initially, we address the Attorney General's contention that the Department should be dismissed from this appeal because it was neither the agency whose order is the subject of this appeal nor a party of record to the proceedings before the Commission. The complaint before the Commission was filed by the Department, on behalf of petitioner, pursuant to the Illinois Human Rights Act (Act) (775 ILCS 5/7A-102(F) (West 1998)). After the Commission rendered its final order, petitioner appealed to this court pursuant to section 8-111 of the Act (775 ILCS 5/8-111(A)(1) (West 1998)), naming the hospital, the Commission and the Department as respondents. Such petitions for review are governed by Supreme Court Rule 335 (155 Ill. 2d R. 335), which states that "the agency and all other parties of record shall be named respondents." 155 Ill. 2d R. 335. In our view, whereas the Commission was the final decision maker who acted as the "administrative agency" whose order both affected "the legal rights, duties or privileges of parties" and terminated the proceedings before it (735 ILCS 5/3-101 (West 1998)), and whereas the Department was not a party of record to the proceedings before the Commission, the Department is dismissed from the appeal. The caption of the appeal has been changed to reflect our decision pertinent to this issue.

As to the merits of petitioner's appeal, we note that in analyzing employment discrimination claims brought under the Act (775 ILCS 5/1-101 et seq. (West 1998)), Illinois courts have routinely adopted the analytical framework set forth in United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C.