No. 3--02--0007

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

BACKGROUND

On September 23, 1999, Anderson filed a discriminationcharge against McGladrey with the Department. In her charge,Anderson alleged that on April 1, 1999, she learned McGladrey hadbeen paying a similarly situated male employee, John Fishel, Sr.,$110,000 per year during the time McGladrey paid Anderson $68,000per year. She submitted that she had more seniority than Fisheland that her duties and responsibilities were "similar if notidentical" to Fishel's duties and responsibilities. Andersoncontended that McGladrey had sexually discriminated against herbased on disparate pay.

McGladrey responded to Anderson's charge by acknowledgingthe disparity in pay between Anderson and Fishel. The employeradmitted that Fishel was hired by McGladrey after Anderson washired. However, McGladrey submitted that Anderson and Fishelwere not similarly situated employees.

Both employees shared the title, "Senior Manager, ConsultingServices." McGladrey stated that seniority was not a factor indetermining compensation for senior managers. The employercontended that Fishel's and Anderson's duties andresponsibilities were not similar or identical. According toMcGladrey, Anderson had eight years of experience in the field ofhuman resources. Fishel had 12 years of experience in the fieldsof operations, information technology, and financial management. McGladrey submitted that Anderson's and Fishel's positionsrequired dissimilar levels of skill, effort, and responsibility.

On June 5, 2000, the Department issued a notice that it wasdismissing Anderson's charge for lack of substantial evidence. The notice of dismissal was accompanied by an investigationreport. The report stated that it was uncontested that Fishelwas paid more than Anderson.

The report said Anderson's prima facie allegations were that(1) she is female; (2) she performed her duties consistently withMcGladrey policy; (3) she was compensated at $68,000 per year;and (4) McGladrey provided greater compensation to similarlysituated male employees. The report then listed several defensesfor McGladrey, including the differences in experience, duties,responsibilities, and compensation among Anderson, Fishel, andseveral other senior managers.

According to the report, Anderson spoke with Jeff Johnson, a managing director at McGladrey, about her level of compensation. Anderson alleged that Johnson told her that she was "toosensitive to women's issues." Johnson stated that he mentionedAnderson's sensitivity to "women's issues." However, Johnsoncontended that his remark was not related to Anderson'scompensation.

The report concluded that Anderson lacked substantialevidence that McGladrey's defenses were a pretext fordiscrimination. It stated that neither information supplied byAnderson nor the Department's investigation had revealed asimilarly situated male employee at McGladrey who was treateddifferently from Anderson.

On July 10, 2000, Anderson requested that the dismissal ofher charge be reviewed by the Department's Chief Legal Counsel. The Chief Legal Counsel vacated the dismissal and reinstatedAnderson's charge "for further work" and "other proceedings bythe Department" on February 26, 2001.

The Department issued a second notice of dismissal onJuly 5, 2001. The second dismissal was accompanied by anaddendum to the original investigation report. The addendumstated that McGladrey billed its clients for Fishel's services ata higher rate than for Anderson's services. The differencebetween the two billing rates was greater than the differencebetween the compensation McGladrey paid Fishel and Anderson. Fishel had three consulting specialties (operations, informationtechnology, and finance) and Anderson had one specialty (humanresources).

The addendum again concluded that Anderson lackedsubstantial evidence that McGladrey's reasons for the paydifferential between Anderson and Fishel were a pretext fordiscrimination. According to the addendum, this conclusion wassupported by (1) McGladrey's documentation showing that billingrates compared to salaries did not indicate sex discrimination,and (2) the absence of a pattern showing that female employeeswere paid less than their male counterparts.

On July 5, 2001, Anderson requested review by the ChiefLegal Counsel of the second dismissal of her charge. The ChiefLegal Counsel issued her order on November 30, 2001, sustainingthe Department's dismissal of Anderson's charge. In the order,the Chief Legal Counsel stated that she had reviewed theDepartment's investigation file. The order said that becauseFishel's functional area was operations and Anderson's area washuman resources, Fishel was not similarly situated to Anderson. The order also listed the annual salaries of 10 senior managersat McGladrey which indicated no pattern that males were paid morethan females. The order concluded that Anderson failed toestablish, and the Department's investigation failed to show,that McGladrey subjected Anderson to unequal pay because of hersex. Anderson appealed.

ANALYSIS

Anderson argues that the Chief Legal Counsel abused herdiscretion by sustaining the dismissal of Anderson'sdiscrimination charge.

Under the Illinois Human Rights Act (Act) (775 ILCS 5/1--101et seq. (West 1998)), an employee may file a discriminationcharge against the employer with the Department. 775 ILCS 5/7A--102(A)(1) (West 1998). If the charge is dismissed by theDepartment, the dismissal is reviewable by the Department's ChiefLegal Counsel. 775 ILCS 5/7A--102(D)(2)(a) (West 1998).

The Chief Legal Counsel's order reviewing the dismissal is afinal and appealable order. 775 ILCS 5/7--101.1(A) (West 1998). The plaintiff then may seek review of the Chief Legal Counsel'sorder in the appellate court. 775 ILCS 5/8--111(A)(1) (West1998). The standard of review is whether the Department's ChiefLegal Counsel abused her discretion. Kalush v. Department ofHuman Rights, 298 Ill. App. 3d 980, 700 N.E.2d 132 (1998).

In Zaderaka v. Illinois Human Rights Commission, 131 Ill. 2d172, 545 N.E.2d 684 (1989), the Illinois Supreme Court adopted athree-part analysis for employment discrimination charges underthe Act. First, the plaintiff must establish a prima facie caseof discrimination by a preponderance of the evidence. If theplaintiff presents a prima facie case, a rebuttable presumptionarises that the employer discriminated against the plaintiff. Second, in order to rebut the presumption of discrimination, theemployer only need articulate, but not prove, a legitimate,nondiscriminatory reason for its decision. Third, if theemployer articulates such a reason, the plaintiff then must proveby a preponderance of the evidence that the employer's reason wasuntrue and was a pretext for discrimination.

To establish a prima facie case of employmentdiscrimination, the plaintiff must show that (1) she is a memberof a protected group; (2) she performed her job satisfactorily;(3) the employer took adverse action against her despite theadequacy of her work; and (4) a similarly situated employee, whois not a member of the protected group, was not subjected to thesame adverse action. Kalush, 298 Ill. App. 3d 980, 700 N.E.2d132.

In the present case, the Chief Legal Counsel agreed with theDepartment's determination that Anderson established a primafacie case in her charge of discrimination. As a woman, she is amember of a protected group. She performed her jobsatisfactorily. Anderson alleged that McGladrey subjected her todisparate pay despite the adequacy of her work. She contendedthat Fishel was a similarly situated employee, was not a memberof the protected group, but was compensated at a much higherrate.

Having established her prima facie case, the burden shiftedto McGladrey to articulate, but not prove, a reason for thedisparate pay. McGladrey carried its burden by stating thatAnderson and Fishel had substantially dissimilar experience,duties, and responsibilities. The burden then shifted back toAnderson to prove that McGladrey's reasons were a pretext fordiscrimination.

Anderson contended that Johnson's remark about hersensitivity to "women's issues" showed that she was paid lessthan Fishel because she is a woman. Anderson, however, failed toprove that Johnson's comment about her sensitivity to "women'sissues" was connected to her level of compensation. She did nototherwise prove that McGladrey's reasons for the disparity in paywere pretexts for discrimination.

Under the three-part test in Zaderaka, Anderson did notprove that McGladrey discriminated against her. Therefore, theDepartment's Chief Legal Counsel did not abuse her discretion bysustaining the Department's dismissal of Anderson's charge of sexdiscrimination based on disparate pay.

CONCLUSION

For the foregoing reasons, we affirm the order of the ChiefLegal Counsel of the Illinois Department of Human Rightsdismissing Anderson's discrimination charge.

Affirmed.

HOLDRIDGE and McDADE, J.J., concur.