Peyton v. Department of Human Rights
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0207
Case Date: 09/18/1998
NO. 4-97-0207
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DAVID PEYTON, ) Administrative Review
Petitioner, ) of the Human Rights
v. ) Commission
THE DEPARTMENT OF HUMAN RIGHTS ) No. 1996SF0646
and THE CITY OF CHAMPAIGN, )
)
)
)
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Petitioner David Peyton brings this direct review of an
decision of the chief legal counsel of the Illinois Department of
Human Rights (Department) dismissing his charge of discrimination
against the City of Champaign (City). 775 ILCS 5/8-111(A)(1) (West
1996); 155 Ill. 2d R. 335. Taken with the case was petitioner's
motion to amend the petition for direct review by adding Jacqueline
S. Lustig, the Department's chief legal counsel, as an additional
named respondent. The Department objected on the basis that the
request is untimely. Because we decide that Lustig is not a
necessary party, the motion to amend is denied. The issues on
appeal are whether (1) the Department applied the correct standard
for determining whether petitioner offered sufficient substantial
evidence to justify issuance of a complaint, and (2) petitioner
offered sufficient substantial evidence to justify the issuance of
a complaint. We affirm.
On April 22, 1996, petitioner filed a charge with the
Department alleging discrimination against him by the City's fire
department based on sex (Department charge No. 1996SF0646). It
alleged petitioner was hired on September 5, 1985, and was demoted
from fire inspector on November 17, 1995, because the position was
to be reopened and the qualifications for it would be changed;
there were no complaints about his job performance to warrant the
demotion; after two women who did not meet the original job
qualifications threatened to file a grievance, his promotion was
eliminated and the position was reposted to allow the women to
apply; and previously, once an employee was offered and accepted a
position, the position was not taken away unless the individual was
found to be ineligible.
The City's verified response admitted petitioner was
hired on September 5, 1985, but denied he was demoted. Instead,
the City stated that the hiring period was extended because of a
revision in the job qualification.
On November 18, 1996, the Department dismissed the charge
for lack of substantial evidence to support the allegations. The
Department's investigation report found the following uncontested
facts: petitioner was hired on September 5, 1985; the fire
inspector position was originally announced and posted on August 1,
1995; it was announced as a position outside the bargaining unit,
a special duty assignment on a 40-hour workweek schedule; candi-
dates were requested from within the fire-suppression division;
City property maintenance inspectors Janet Maupin and Sue Salzman
submitted applications, although they were not currently from the
fire-suppression unit; petitioner was interviewed and acknowledged
as the only candidate on September 5, 1995; Maupin and Salzman were
not interviewed and questioned the fairness to women because of the
fire-suppression-only requirement; Ernestine Jackson, assistant to
the city manager, was concerned with the validity of the require-
ment and raised the issue with the city manager; and the posting
was closed and then reopened to include all City employees. During
the investigation, the Department interviewed witnesses, including
petitioner; Chris Bezruki, director of personnel; John Corbly, the
City's fire chief; Lieutenant Robert Quinlan, petitioner's
supervisor; Maupin; and Salzman. The Department found petitioner
failed to provide a correlation between his alleged demotion and
his gender; evidence did not indicate petitioner was offered the
position of fire inspector and could not have been demoted; and the
fire inspector position was filled by a male applicant, indicating
the City did not discriminate against petitioner because of his
gender. The facts supporting these conclusions were stated in
detail in the investigation report. Also attached to the report
were exhibits considered by the Department.
Following dismissal of the charge, petitioner sought
review before the chief legal counsel of the Department. 775 ILCS
5/7A-102(D)(2)(a) (West 1996). Petitioner submitted exhibits to
the memorandum in support of the request for review. The City
filed a responsive memorandum.
On February 28, 1997, the Department's chief legal
counsel sustained the dismissal for lack of substantial evidence:
"In support of which determinations the
Chief Legal Counsel states the following
findings of fact and reasons:
1. Complainant filed a discrimination
charge with the Department on April 19, 1996,
alleging that Respondent demoted him because
of his sex, male, in violation of Section 2-
102(A) of the Illinois Human Rights Act. On
November 18, 1996, the Department dismissed
Complainant's charge, making a finding of lack
of substantial evidence.
2. Respondent contends that it demoted
Complainant because it reevaluated the re-
quirements for the fire inspector position and
determined that some of the qualifications
needed to be modified. Once the requirements
were amended, Respondent considered other
applicants, including Complainant, for the
position.
3. Evidence from the Department's inves-
tigation showed that Complainant was offered
the position of fire inspector and accepted
it. However, the Department's investigation
also revealed that Respondent reevaluated the
position shortly after it had offered the
position to Complainant. The evidence showed
that Respondent decided to modify the require-
ments for the position to be consistent with
national standards. As a result, Respondent
posted the revised position and accepted
applications for interviews including Com-
plainant's application. The evidence did not
indicate that Respondent demoted Complainant
because of his sex. Rather, Respondent modi-
fied the requirements of the position and
offered it to a larger pool of applicants.
Thus, the Department's investigation did not
show that Respondent's actions were
pretextual.
4. In his Request for Review, Complain-
ant does not provide any additional evidence
or argument which warrants a reversal of the
Department's initial finding. Complainant
presents several arguments that he was offered
the position which he subsequently accepted.
The evidence indicates that this may be true.
However, even if Complainant accepted the
position, he still failed to prove that he was
demoted because of his sex. Complainant
argues that the fire inspector position was
modified because two applicants 'questioned
the fairness to women.' However, the Depart-
ment's investigation showed that Respondent
presented a legitimate, non-discriminatory
reason for modification of the position.
Complainant was unable to show, and the De-
partment's investigation failed to uncover,
that Respondent's action was pretextual. In
fact, the evidence showed that the fire in-
spector position ultimately was awarded to a
male.
5. Thus, there is insufficient evidence
to support the allegation that Complainant was
demoted because of his sex.
6. This is a final Order. A final Order
may be appealed to the Appellate Court by
filing a petition for review by naming the
Department and Respondent with the Clerk of
the Appellate Court within 35 days after the
date of service of this Order. The Department
deems 'service' complete 5 days after mail-
ing."
As a preliminary matter, the Department argues that the
chief legal counsel must be named as a respondent in the petition
for review pursuant to the "agency and all other parties of record"
language contained in Rule 335(a) (155 Ill. 2d R. 335(a)). The
Department observed that the Human Rights Act (Act) has been
amended to allow (1) review of dismissals by the chief legal
counsel, instead of the Human Rights Commission (Commission), and
(2) direct review in the appellate court of the chief legal
counsel's decision. 775 ILCS 5/7-101.1, 7A-102(D)(2)(a), 8-
111(A)(1) (West 1996). Relying on McGaughy v. Illinois Human
Rights Comm'n, 165 Ill. 2d 1, 12-15, 649 N.E.2d 404, 410-11 (1995),
and the cases cited therein, the Department argues that, in effect,
the chief legal counsel now stands in the position of the Commis-
sion and the chief legal counsel must now be named as a respondent
just as the Commission had to be in McGaughy. The Department
further notes that section 3-107(a) of the Administrative Review
Law provisions contained in the Code of Civil Procedure (Code) has
now been amended to prevent dismissal for failure to name as a
respondent an employee, agent, or member of an administrative
agency in her administrative capacity (735 ILCS 3-107(a) (West
1996)), but that is not one of the sections of the Code that has
been incorporated by reference into Rule 335 (155 Ill. 2d R.
335(i)(2)).
We disagree that McGaughy requires that the chief legal
counsel be named a respondent. The chief legal counsel is an
employee of the Department, while the Commission is a separate
agency.
"For the purpose of this Act:
'administrative agency' means a person, body
of persons, group, officer, board, bureau,
commission or department (other than a court
or judge) of the State, or of any political
subdivision of the State or municipal in the
State corporation in the State, having power
under law to make administrative decisions.
'Administrative decision' or 'decision'
means any decision, order or determination of
any administrative agency rendered in a par-
ticular case, which affects the legal rights,
duties or privileges of parties and which
terminates the proceedings before the adminis-
trative agency." 735 ILCS 5/3-101 (West
1996.)
Section 3-101 is expressly incorporated into Rule 335 by reference.
155 Ill. 2d R. 335(i)(2).
In Mazurek Pharmacy v. Department of Public Aid, 268 Ill.
App. 3d 1085, 1087-93, 645 N.E.2d 365, 366-70 (1994), the court
adopted the analysis of this court in Pontiac Lodge No. 294 v.
Department of Revenue, 243 Ill. App. 3d 186, 187-89, 611 N.E.2d 62,
63-64 (1993), and distinguished Zientara v. Lottery Control Board,
214 Ill. App. 3d 961, 968-69, 574 N.E.2d 747, 751-52 (1991), on
which the Department relies. In Mazurek and Pontiac Lodge, the
courts found that the directors were agents of the Departments,
relying on section 4 of the Civil Administration Code of Illinois
(now 20 ILCS 5/4 (West 1996)). In Mazurek, Zientara was distin-
guished because in Zientara there was a three-tier appeal process
for resolving disputes and the Department's rule expressly stated
that any party adversely affected by a final decision or order of
the "Director" may obtain judicial review. Mazurek, 268 Ill. App.
3d at 1093, 645 N.E.2d at 370.
The Department is charged with duties and powers to
"issue, receive, investigate, conciliate, settle, and dismiss
charges filed in conformity with" the Act. 775 ILCS 5/7-101(B)
(West 1996). As it relates to the duties and powers of the chief
legal counsel, section 7-101.1 of the Act provides:
"(A) Jurisdiction. The Chief Legal
Counsel of the Department shall have jurisdic-
tion to hear and determine requests for review
of (1) decisions of the Director to dismiss a
charge; (2) notices of default issued by the
Director; and (3) dismissals for refusal to
accept a settlement offer. Any final order
entered by the Chief Legal Counsel under this
Section is appealable in accordance with
paragraph (A)(1) of Section 8-111.
(B) Review. When a request for review is
properly filed, the Chief Legal Counsel of the
Department may consider the Director's report,
any argument and supplemental evidence timely
submitted, and the results of any additional
investigation conducted by the Director in
response to the request. In his or her dis-
cretion, the Chief Legal Counsel of the De-
partment may designate a staff attorney to
conduct an investigation into the factual
basis of the matter at issue." 775 ILCS 5/7-
101.1(A), (B) (West 1996).
The chief legal counsel is no less an employee of the
Department than is the Director. Neither is a "part[y] of record";
Rule 335(a) expressly distinguishes between the "agency and all
other parties of record." 155 Ill. 2d R. 335(a). As long as the
Department is named a respondent, it is unnecessary to name the
chief legal counsel of the Department as a respondent.
The next issue is whether the Department applied the
correct standard for determining whether the charge lacked
substantial evidentiary support. The Act authorizes the dismissal
of a charge based on a determination of no substantial evidence.
775 ILCS 5/7A-102(D)(2)(a) (West 1996). The Director of the
Department reviews the investigative report to determine if there
is enough evidence to justify the filing of the complaint.
"(1) Each charge shall be the subject of
a report to the Director. The report shall be
a confidential document subject to review by
the Director, authorized Department employees,
the parties, and, where indicated by this Act,
members of the Commission or their designated
hearing officers.
(2) Upon review of the report, the Direc-
tor shall determine whether there is substan-
tial evidence that the alleged civil rights
violation has been committed. The determina-
tion of substantial evidence is limited to
determining the need for further consideration
of the charge pursuant to this Act and in-
cludes, but is not limited to, findings of
fact and conclusions, as well as the reasons
for the determinations on all material issues
and questions of credibility. Substantial
evidence is evidence which a reasonable mind
accepts as sufficient to support a particular
conclusion and which consists of more than a
mere scintilla but may be somewhat less than a
preponderance." 775 ILCS 5/7A-102(D)(1),
(D)(2) (West 1996).
In the past, when a decision of the Commission was being reviewed,
the dismissal of the charge would be set aside only if the action
was arbitrary or capricious or amounted to an abuse of discretion.
Alcequeire v. Human Rights Comm'n, 292 Ill. App. 3d 515, 519-20,
685 N.E.2d 974, 976 (1997); Motley v. Human Rights Comm'n, 263 Ill.
App. 3d 367, 371, 636 N.E.2d 100, 102 (1994). The parties do not
suggest a different standard of review even though this appeal is
from the decision of the chief legal counsel of the Department.
In analyzing employment discrimination actions brought
under the Act, a three-part analysis is utilized.
"First, plaintiff must establish by a prepon-
derance of the evidence a prima facie case of
unlawful discrimination. If a prima facie
case is established, a rebuttable presumption
arises that the employer unlawfully discrimi-
nated against plaintiff. Second, to rebut the
presumption, the employer must articulate, not
prove [citation], a legitimate, nondiscrimina-
tory reason for its decision.
Finally, if the employer carries its
burden of production, the presumption of
unlawful discrimination falls and plaintiff
must then prove by a preponderance of the
evidence that the employer's articulated
reason was not its true reason, but was in-
stead a pretext for unlawful discrimination.
This merges with plaintiff's ultimate burden
of persuading the trier of fact that the
employer unlawfully discriminated against
plaintiff. [Citation.] This ultimate burden
remains at all times with plaintiff. [Cita-
tion.] In the case at bar, brought under the
disparate-treatment theory, rather than the
disparate-impact theory [citation], the ulti-
mate factual inquiry is whether defendant
employer intentionally discriminated against
plaintiff." Zaderaka v. Illinois Human Rights
Comm'n, 131 Ill. 2d 172, 178-79, 545 N.E.2d
684, 687-88 (1989).
It is petitioner's contention that the Department may not
reach the second and third prongs of the analysis at the stage of
the proceeding involving dismissal of the charge, relying on
Whipple v. Department of Rehabilitation Services, 269 Ill. App. 3d
554, 556-57, 646 N.E.2d 275, 277 (1995). After reconsidering the
Whipple decision, we have concluded it no longer correctly states
the law. Webb v. Lustig, No. 4-97-0625, slip op. at 9 (September
__, 1998), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___.
Here, the investigation report, before discussing other
evidence, stated simply:
"A. Prima facie case
1. Complainant is male.
2. Complainant was performing satisfac-
torily.
3. Complainant was demoted."
The conclusions of both the Department's report and the chief legal
counsel's decision suggest that the second and third parts of the
analysis were properly considered.
It is a civil rights violation for an employer to refuse
to promote on the basis of unlawful discrimination. 775 ILCS 5/2-
102(A) (West 1996). A municipal corporation is an employer subject
to the Act. 775 ILCS 5/2-101(B)(1)(c) (West 1996).
"Employment discrimination may be estab-
lished by showing disparate treatment and
disparate impact. (Valley Mould & Iron Co. v.
Illinois Human Rights Comm'n (1985), 133 Ill.
App. 3d 273, 478 N.E.2d 449.) The former
theory requires proof that the employer simply
treated some people less favorably than others
because of their race, color, religion, sex,
or national origin. The latter theory in-
volves proof of employment practices that are
facially neutral in their treatment of differ-
ent groups but that in fact fall more harshly
on one group than another and cannot be justi-
fied by business necessity. (International
Brotherhood of Teamsters v. United States
(1977), 431 U.S. 324, 335 n.15, 52 L. Ed. 2d
396, 415 n.15, 97 S. Ct. 1843, 1854-55 n.15.)
Proof of discriminatory motive is required
under the disparate treatment theory but not
the disparate impact theory and may be in-
ferred in some cases from the mere fact of
differences in treatment. International
Brotherhood of Teamsters v. United States, 431
U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843;
Burnham City Hospital v. Human Rights Comm'n
(1984), 126 Ill. App. 3d 999, 467 N.E.2d 635.
Prima facie proof of discrimination ***
based upon disparate treatment, can be estab-
lished upon a showing by the complainant that
(1) he was within the protected class; (2) he
was performing according to his employer's
legitimate expectations; (3) he was terminated
or demoted; and (4) others not in the protect-
ed class were treated more favorably. (Clyde
v. Human Rights Comm'n (1990), 206 Ill. App.
3d 283, 292, 564 N.E.2d 265, citing Oxman v.
WLS-TV (7th Cir. 1988), 846 F.2d 448.)"
Interstate Material Corp. v. Human Rights
Comm'n, 274 Ill. App. 3d 1014, 1021-22, 654
N.E.2d 713, 718 (1995).
"'Sex' means the status of being male or female." 775 ILCS
5/1-103(O) (West 1996).
In this case, petitioner would testify he was offered and
accepted the fire inspector position and that he would start in
that position by September 8, 1995. Two women complained about the
fairness to women of the qualifications for the job because of the
fire-suppression-only requirement. There is no evidence that
petitioner was demoted or denied the fire inspector position as a
result of the threats of these women. The union also objected
because it was a special duty assignment, a nonunion position. The
letter of Corbly, which petitioner submitted to the chief legal
counsel, stated that the special duty assignment was terminated and
there would be a new posting. Petitioner was given an equal
opportunity to get the job after the reposting, and he did not get
it. Instead, another man was hired for the job. Bezruki's answers
to interrogatories indicate that there were 29 applicants for this
position after the reposting, and it would appear based on the
names listed that there were only four women applicants, none of
whom were hired for the job. The fact that petitioner was removed
from the fire inspector position and the job was reposted to create
a hiring practice that was clearly free from charges of sexual
discrimination does not mean the position was eliminated because of
his sex. The Department and chief legal counsel could find that
there was no substantial evidence that petitioner was demoted or
denied promotion because of his sex. The dismissal of the charge
is not arbitrary, capricious, or an abuse of discretion. If
petitioner has a cause of action, it is for breach of contract.
The decision of the chief legal counsel of the Department
is affirmed.
Affirmed.
GREEN, J., concurs.
COOK, J., dissents. JUSTICE COOK, dissenting:
Whatever one's views of affirmative action in the filling
of new positions, it seems clear that affirmative action cannot
justify taking existing jobs, for example, from whites so that they
may be given to African-Americans, taking existing jobs from women
so that they may be given to men, or vice versa. Would we tolerate
a situation where all male employees of the City were discharged,
so that females could have the opportunity to show their qualifica-
tions for those jobs, even if those male employees "were given an
equal opportunity" to get their jobs back? The majority says that
the fact that petitioner was removed from his position and the job
was reposted "to create a hiring practice that was clearly free
from charges of sexual discrimination does not mean the position
was eliminated because of his sex." Slip op. at 15. The majority
seems to be saying that reverse discrimination, or discrimination
with a good motive, cannot be discrimination. I do not understand
why that is so. Two wrongs do not make a right.
The Department found the "evidence did not indicate
petitioner was offered the position of fire inspector." Slip op.
at 3. The Department was clearly wrong, according to the chief
legal counsel: "Evidence from the Department's investigation
showed that [c]omplainant was offered the position of fire inspec-
tor and accepted it." Slip op. at 4. The chief legal counsel went
on, however, to say that the City reevaluated the position, modi-
fied it to be consistent with (unnamed) national standards, and
that the evidence did not indicate that petitioner was demoted
because of his sex. The majority states that "[t]here is no
evidence that petitioner was demoted or denied the fire inspector
position as a result of the threats of these women," and seems to
suggest that the union may have been the reason for whatever
happened to petitioner. Slip op. at 14.
The majority elsewhere, however, tells us that the facts
are uncontested and sets out the following chronology: (1) Maupin
and Salzman submitted applications; (2) petitioner was interviewed
and acknowledged as the only candidate; (3) Maupin and Salzman, who
were not interviewed, questioned the fairness of the position to
women because of the fire-suppression-only requirement; (4)
Ernestine Jackson, the assistant to the mayor in charge of EEOC
matters, raised the issue with the city manager; and (5) "the
posting was closed and then reopened to include all City employ-
ees." Slip op. at 3. These uncontested facts are not simply some
evidence, they are overwhelming evidence. It is clear what
happened in this case.
The questions in this case are whether petitioner was
demoted (did he have the position and then later not have it),
whether that demotion was made on account of his sex, and whether
demotion on account of sex was justified in the circumstances of
this case. It was improper for the Department to refuse to
consider the issue of justification by pretending there was no
evidence petitioner had accepted the position or that his sex had
nothing to do with the job being taken away from him.
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