Stone v. Department of Human Rights
State: Illinois
Court: 4th District Appellate
Docket No: 4-98-0054
Case Date: 09/28/1998
NO. 4-98-0054
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
KAREN M. STONE, ) Administrative
Petitioner, ) Review of the
v. ) Human Rights
THE DEPARTMENT OF HUMAN RIGHTS, ) Commission
THE HUMAN RIGHTS COMMISSION, and ) No. 1996SF0130
THE VILLAGE OF RIVERTON, ILLINOIS, )
a Municipal Corporation, )
Respondents. )
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Petitioner, Karen Stone, brings this direct review (155
Ill. 2d R. 335) of an order of the Illinois Human Rights Commis-
sion (Commission), sustaining the Illinois Department of Human
Rights' (Department) dismissal of petitioner's charges against
the Village of Riverton (Village) of gender discrimination in
employment and of retaliation resulting in a constructive dis-
charge from her employment. 775 ILCS 5/8-111(A)(1) (West 1996).
The issues are whether (1) the Department and the Com-
mission used the correct legal standard for determining whether
petitioner offered sufficient substantial evidence to justify the
issuance of a complaint; and (2) whether the decision of the
Commission to dismiss her charges constituted an abuse of discre-
tion.
Petitioner's charges of discrimination, filed September
7, 1995, alleged she was hired in August 1993 by the Village as a
part-time police officer and applied for two openings for full-
time police officers in 1995 but was not hired in favor of male
candidates both times. She later added an amendment to her
charges on December 5, 1996, alleging the Village improperly re-
taliated against her resulting in a constructive discharge from
her job on September 6, 1996.
In support of her charges, petitioner stated she was
doing a good job in her position as a part-time police officer
and she was qualified for the full-time position. She claims the
Village treated female applicants differently from male appli-
cants. Her qualifications included 10 years' employment with the
Sangamon County sheriff's department as a dispatcher, two years'
employment as a part-time police officer with the Village and
service with the Sangamon County sheriff's auxiliary patrol for
five years. Petitioner did not have any training with the Police
Training Institute (PTI), but she did have other training, in-
cluding seven years with the United States Air Force and the
Illinois Air National Guard in munitions work, canine training
for 14 weeks, and various training programs offered by the Vil-
lage and the Sangamon County sheriff.
The first full-time position with the Village for which
petitioner applied was given to Thomas Maybury. Maybury's quali-
fications consisted of two years in his part-time position with
the Village, five years with the auxiliary sheriff's patrol with
the Sangamon County sheriff and five years as a corrections offi-
cer with the Sangamon County sheriff. His training included 200
hours of PTI training in the corrections division at the Univer-
sity of Illinois. Petitioner states in her affidavit filed with
the Commission upon review of the Department's decision,
Maybury's PTI training was in the specialized area of correction-
al officer training and is not creditable toward general PTI
training. She admits in the same affidavit she and Maybury have
comparable firearms training.
The notice the Village provided of the opening for the
full-time police officer position stated the position was for
federally funded "Community Oriented Policing." It did not state
PTI training of any kind was required for the position. However,
the Village took into account the PTI hours Maybury had accumu-
lated that petitioner did not have. Marti Dove, a member of the
administrative committee for the Village which interviewed the
job applicants, stated PTI training is an issue because it is a
statutory requirement officers meet the requirements set out by
the Police Training Board. Dove and other members of the inter-
view committee stated petitioner did not interview well but,
rather, tried to convince the committee of the value of canine
policing that she could offer the Village and tried to sell her
dog rather than herself in her interview. Petitioner states in
her affidavit she spoke only twice about her dog and once was in
response to a question from the committee.
Petitioner states Todd Williams, a member of the inter-
view committee, asked her if she felt she could get along with
the men in the police force as it was all male and asked her if
she could handle the job because she was a woman and also small
in stature. Williams did not recall making any reference to
petitioner being a small woman but did state he asked if she were
aware there were no other female officers on the force.
The Department found in its report petitioner and
Maybury were equally qualified for the job except for Maybury's
200 hours of PTI training. Further, the Department determined
Maybury interviewed better and petitioner did not show the
Village's responses were pretext. The Commission found the Vil-
lage asked all applicants if they had PTI training, which the
Village contended was required by statute, and Maybury, unlike
petitioner, had this training. The record does not establish
whether the kind of PTI training Maybury received was that re-
quired by statute. The Commission went on to find the
Department's investigation did not reveal the Village's stated
reason for hiring Maybury instead of petitioner was a pretext for
sex discrimination.
The second full-time position for which petitioner
applied was given to Daniel Parrish. Petitioner alleges she was
doing a good job in her part-time position and was qualified for
the full-time position. Petitioner again alleges the Village
treated male officers differently from female officers. Peti-
tioner felt she and Parrish were equally qualified. Parrish also
was a part-time officer with the Village and he had three years'
seniority on petitioner. His full-time job was with the Sangamon
County sheriff's department as a court security officer, a posi-
tion he had held for six years. He also had experience as a
corrections supervisor.
The interview committee felt Parrish was better quali-
fied because his experience with the court system and court secu-
rity was "hands on" while petitioner was only a dispatcher; he
lived in the Village, which petitioner did not, and was active in
the community activities; he had worked for the Village three
years longer than petitioner; petitioner's demeanor during her
interview was poor and she again made too many references to how
her dog could help the community.
The Department's findings were that both petitioner and
Parrish were qualified for the position but the committee felt
Parrish was better qualified based on his experience and visi-
bility and rapport in the community; Parrish interviewed better
than petitioner; and petitioner did not show the Village's rea-
sons were pretext.
The Commission found petitioner alleged Parrish was
less qualified than she but the Village contended Parrish was
more qualified because he had more experience in the court sys-
tem. Further, the evidence did not establish the Village's stat-
ed reason for hiring Parrish was a pretext for sex discrimina-
tion.
Petitioner's final charge is the Village constructively
discharged her by engaging in retaliatory actions after she filed
her initial discrimination charges. Petitioner asserts after she
filed her discrimination charges she was scheduled to work on
days she said she was unable to work and then she was required to
get substitutes and her hours worked thus decreased. She was
scheduled to work midnight shifts more frequently, which inter-
fered with her daytime job. The police chief was a "DARE" offi-
cer and was gone during the day shift. He asked other officers
to cover for him but never asked petitioner. The number of total
hours petitioner was assigned decreased. The chief started to
return her written police reports to her because they were not
fully completed when previously she had been praised for her
work. Petitioner claims her reports were no different than be-
fore she filed her charges. Petitioner was told she could no
longer take her lunch break at the end of her shift even though
she had always obtained permission from the chief to do so. The
Village had, prior to filing her charges, allowed petitioner to
respond to requests for canine calls from other jurisdictions and
provided monetary assistance toward the upkeep of her dog, but
the policy changed drastically after she filed her charges to
limit her ability to respond to requests for canine calls and the
monetary assistance was also lowered.
Finally, the Village told petitioner part-time posi-
tions would be eliminated because the Village was moving to a
full-time police department. Petitioner stated she resigned
because she believed her position was going to be eliminated and,
since she needed other part-time work, she took a job elsewhere.
These are the reasons given in the letter of resignation. How-
ever, petitioner also stated she felt she had to resign because
of the stress the Village's retaliatory acts were causing in her
life and she would not have taken another position except she was
subjected to a continuing reduction in hours and assignments that
were incompatible with her full-time job. Petitioner states in
her affidavit filed with the Commission on review that she has
discovered, following her resignation, the Village has not elimi-
nated part-time police officers and filled her position with a
male.
In petitioner's letter of resignation she stated she
was resigning because of uncertainty as to whose part-time posi-
tion would be eliminated and she had obtained employment else-
where. The Village and the Department point to the letter as
evidence petitioner did not resign due to the adverse actions she
alleges were taken by the Village. They point out her letter
admits she was unsure if she would be affected by job elimina-
tions.
The Village and the Department maintain the remaining
reasons petitioner states for resigning would not have compelled
a reasonable person to resign. The Department points out peti-
tioner admits the conflict in shift scheduling may have been a
mistake. Reports were sent back to other officers as well as
complainant. The police department instituted an office-wide
policy of precluding employees from taking their lunch hour at
the end of their shift because there would be no protection for
the Village. The changes in the canine policies were instituted
for liability purposes because petitioner was in the uniform of a
Village police officer when responding in other jurisdictions.
The changes in the reimbursement of expenses for petitioner's dog
were a cost-saving measure.
The Department found petitioner as well as other of-
ficers had reports returned because they lacked detail in infor-
mation required for the computer package; all officers received a
memo stating no one could take lunch at the end of a shift be-
cause the Village would be unprotected; petitioner's shift re-
quests could not always be honored because of the number of peo-
ple in the rotation and because vacation time had to be covered;
petitioner admitted it might have been a mistake when she was
scheduled to work on days that overlapped her shifts at the sher
iff's department; restrictions on canine calls were due to lia-
bility concerns; petitioner stated she submitted her letter of
resignation because she had been told her position would be elim-
inated; and petitioner did not show the Village's reasons for its
actions were pretext.
The Commission found the evidence did not establish the
Village's conduct amounted to constructive discharge or that the
actions that petitioner alleged amounted to constructive dis-
charge were the result of her filing a charge with the Depart-
ment. The Commission further found petitioner's affidavit filed
with her request for review provided more details of her specific
allegations of retaliation but she did not provide any reason for
not providing these details during the Department's investiga-
tion.
In analyzing employment discrimination actions brought
under the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et
seq. (West 1996)), a three-part analysis first articulated by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 36 L. Ed. 2d 668, 677-79, 93 S. Ct. 1817, 1824-25
(1973), is used.
"First, plaintiff must establish by a pre-
ponderance of the evidence a prima facie
case of unlawful discrimination. If a
prima facie case is established, a rebut-
table presumption arises that the employer
unlawfully discriminated against plaintiff.
Second, to rebut the presumption, the em-
ployer must articulate, not prove [citation],
a legitimate, nondiscriminatory 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.
[Citation.]" Zaderaka v. Human Rights Comm'n,
131 Ill. 2d 172, 178-79, 545 N.E.2d 684, 687
(1989).
Petitioner argues that, based on Whipple v. Department
of Rehabilitation Services, 269 Ill. App. 3d 554, 556-57, 646
N.E.2d 275, 277 (1995), the Department and the Commission should
not have considered the second and third prongs of the analysis.
In Whipple, this court concluded a decision to dismiss a charge
after the Department investigation must be based on the insuffi-
ciency of the prima facie case alone. According to Whipple,
going into the second and third prongs of the Zaderaka analysis
would inherently bring into play a balancing of evidence.
Whipple, 269 Ill. App. 3d at 556-57, 646 N.E.2d at 277.
A conflict in authority has developed on whether only
the first prong of the analysis can be considered at the inves-
tigative stage. In Alcequeire v. Human Rights Comm'n, 292 Ill.
App. 3d 515, 520, 685 N.E.2d 974, 977 (1997), the court disagreed
with Whipple and said the consideration of a dismissal of a
charge for lack of substantial evidence need not be restricted to
the prima facie prong but may also include an analysis of whether
the employer has articulated a legitimate reason for the actions
taken and the petitioner has not shown the reasons are pretext.
We have reconsidered the Whipple decision and conclude
it does not correctly state the law. See Webb v. Lustig, No. 4-
97-0625 (September 4, 1998), ___ Ill. App. 3d ___, ___ N.E.2d
___. If the Department and the Commission cannot consider the
second and third prongs of the analysis, this would unduly re-
strict their investigative authority. In determining whether a
charge filed by a complainant should go forward, the Director of
the Department is charged with determining whether there is "sub-
stantial evidence that the alleged civil rights violation has
been committed." 775 ILCS 5/7A-102(D)(2) (West 1996).
In making such a determination, the Department and
Commission should be able to consider at the initial stages
whether a legitimate reason for an employer's actions exists
because the petitioner's prima facie case sets up only a rebut-
table presumption discrimination occurred. As noted in
Alcequeire, the Commission's limited resources would then be used
only for those cases where there is substantial evidence the
employer's stated reasons for its discriminatory actions are pre-
text.
Further, we note the section of the Act dealing with
the determination of whether there has been substantial evidence
an alleged civil rights violation has occurred has been amended
for all causes of action filed after January 1, 1996, to clarify
that this determination includes not only findings of fact and
conclusions but also "the reasons for the determinations on all
material issues and questions of credibility." 775 ILCS 5/7A-
102(D)(2), (H) (West 1996). Thus, there is no longer a need to
restrict a consideration of substantial evidence to the prima
facie to avoid a balancing of evidence. The statute expects the
investigation phase to involve such a balancing and to determine
whether substantial evidence exists as to each of three prongs of
the analysis.
Under the Act as it existed for causes of action filed
before January 1, 1996, after the Department has conducted its
investigation of a complaint, the Director of the Department re-
views the investigative report to determine whether there is
substantial evidence the alleged civil rights violation occurred.
775 ILCS 5/7A-102(D)(2) (West 1994). If the Director determines
there is no substantial evidence, the complaint is dismissed and
the complainant may then seek review of the Department's dismiss-
al with the Commission. 775 ILCS 5/7A-102(D)(2)(a) (West 1994).
On review, the Commission may consider the Department's report,
any argument and supplemental evidence submitted, the results of
any additional investigation conducted by the Department in re-
sponse to the request for review and, in its discretion, may hold
a hearing into the factual basis of the issues presented. 775
ILCS 5/8-103(B) (West 1994). Final orders of the Commission are
subject to review by the appellate court. 775 ILCS 5/8-111(A)(1)
(West 1994). While any findings of fact by the Commission may
only be reversed if they are contrary to the manifest weight of
the evidence (775 ILCS 5/8-111(A)(2) (West 1994)), the proper
standard of review of the ultimate decision of the Commission to
dismiss a complaint for lack of substantial evidence is whether
the order constituted an abuse of discretion or was arbitrary and
capricious. Alcequeire, 292 Ill. App. 3d at 519-20, 685 N.E.2d
at 976; Whipple, 269 Ill. App. 3d at 556, 646 N.E.E.2d at 277;
Peck v. Department of Human Rights, 234 Ill. App. 3d 334, 337,
600 N.E.2d 79, 81 (1992).
Substantial evidence means more than a mere scintilla
but less than a preponderance of the evidence. Alcequeire, 292
Ill. App. 3d at 519, 685 N.E.2d at 976; Metro Utility v. Illinois
Commerce Comm'n, 193 Ill. App. 3d 178, 184, 549 N.E.2d 1327,
1330-31 (1990). Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a con-
clusion. Sanders v. United Parcel Service, 142 Ill. App. 3d 362,
364-65, 491 N.E.2d 1314, 1317 (1986).
To establish a prima facie case of employment discrim-
ination, a complainant must show (1) she is a member of a pro-
tected class; (2) she applied and was qualified for a job for
which the employer was seeking applicants; (3) she was rejected
despite her qualifications; and (4) after she was rejected, the
position remained open and the employer sought other applicants
from persons of complainant's qualifications. See McDonnell
Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 677, 93 S. Ct. at 1824;
Schoneberg v. Grundy County Special Education Cooperative 67
Ill. App. 3d 899, 903, 385 N.E.2d 351, 356 (1979). In this case,
petitioner's first two charges involved this standard of proof.
In the case of the first charge, Maybury's PTI training
makes him more qualified for the position than petitioner not-
withstanding her statements in her affidavit Maybury's PTI train-
ing was not "real." Those statements are not substantiated in
any way. Further, petitioner did not interview well, spending
too much time talking about her dog. Petitioner failed to show
the Village's reasons for hiring Maybury, PTI training and better
interview, were pretext.
As for the second charge involving the hiring of
Parrish instead of petitioner, the evidence indicated the quali-
fications of petitioner and Parrish were equal. An employer need
not hire an applicant just because she is in a protected class if
she is only equally or less qualified than an applicant who is
hired. The comments of the Supreme Court discussing Title VII
would seem to apply to complaints brought under the Act also:
"Title VII, however, does not demand that
an employer give preferential treatment
to minorities or women. [Citations.]
The statute was not intended to 'diminish
traditional management prerogatives.'
[United Steelworkers of America v. Weber,
443 U.S. 193, 207, 61 L. Ed. 480, 491, 99
S. Ct. 2721, 2729 (1979)]." Texas Department
of Community Affairs v. Burdine, 450 U.S. 248,
259, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089,
1096 (1981).
When qualifications are equal, an employer is not obligated to
accord a preference to a minority or female applicant over a
white male applicant. "Rather, the employer has discretion to
choose among equally qualified candidates, provided the decision
is not based upon unlawful criteria." Burdine, 450 U.S. at 259,
67 L. Ed. 2d at 219, 101 S. Ct. at 1097.
The Village's hiring committee believed Parrish's expe-
rience was more "hands on" and he had visibility in the community
because he lived there and was active in community events. There
was also a finding Parrish interviewed better than petitioner,
who still talked about her dog. Petitioner was not able to show
the Village's reasons for hiring Parrish, community visibility,
more experience in the court system and a better interview, were
pretext for sex discrimination.
Finally, to show a prima facie case of retaliation a
petitioner must show the following: (1) she engaged in a protect-
ed activity; (2) the employer committed an adverse act against
her; and (3) a causal connection existed between the protected
activity and the adverse act. Carter Coal Co. v. Human Rights
Comm'n, 261 Ill. App. 3d 1, 7, 633 N.E.2d 202, 207 (1994).
A constructive discharge occurs when an employee's
working conditions are made so intolerable the employee, acting
as a reasonable person, is compelled to resign. The focus in
such a case is on a reasonable person's reaction to the
petitioner's situation. Motley v. Human Rights Comm'n, 263 Ill.
App. 3d 367, 373, 636 N.E.2d 100, 104 (1994).
The evidence did not support a prima facie case of
retaliation because most of the actions petitioner viewed as
adverse were not committed just against petitioner but applied to
all officers. Thus, the fact they occurred shortly after peti-
tioner filed her charges with the Department does not show a
causal link between the charges and the actions. Further, the
actions taken were not of such magnitude a reasonable person
would resign a position. The Village's reasons for its actions
were all lawful and legitimate. There is no evidence supporting
a finding they were a pretext.
The Commission's decision dismissing each of the three
charges was not an abuse of discretion nor was it arbitrary and
capricious. The decision of the Commission is affirmed.
Affirmed.
COOK and GREEN, JJ., concur.
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