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Weigel Broadcasting Co. v. Hammer





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.


Plaintiff filed a complaint under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) for review of a final order entered by the Illinois Fair Employment Practices Commission (FEPC), regarding defendant's charges of unfair employment practices. The circuit court affirmed the FEPC's order and decision in part, reversed it in part, and remanded the cause with directions. On appeal, defendant contends that the portion of the court's order which reversed the FEPC in part is erroneous and should be reversed.

The following facts are pertinent to the disposition of this appeal.

On June 22, 1973, defendant filed a charge with the FEPC alleging that plaintiff, her employer, was discriminating against her because of her sex and national origin. By stipulation of the parties, the matter was continued for investigation and conciliation. On January 3, 1974, defendant filed amended charges which repeated her claims of employment discrimination and further alleged that plaintiff had discharged her in retaliation for her filing of the original charge with the FEPC. The parties were unable to reach a settlement and, on February 19, 1974, the FEPC issued a complaint of unfair employment practice. After plaintiff filed an answer, a hearing was held before an FEPC hearing examiner, and the following pertinent evidence was adduced.

For Defendant

Rhea Mojica Hammer on her own behalf

She is a Mexican-American, and is fluent in Spanish and English. She was hired by WCIU-TV in 1970, and worked on a live community service program for Spanish speaking people called "Ayuda." In August 1972, WBBM-TV, the CBS affiliate in Chicago, offered her a job as hostess of a television program. She indicated to J.W. O'Connor, WCIU's station manager, that she wished to accept WBBM's offer and be set free from her contract with WCIU. She subsequently met with Howard Shapiro, chairman of the board of WCIU. He told her that while they were not going to prevent her from leaving, he wanted to offer her the position of Executive Director of Spanish Programming. He described certain duties the job would entail and promised that she would get a substantial increase in pay. He agreed, at her suggestion, that she would be allowed to do the news on the air, and that a press release announcing her appointment would be released. She accepted Shapiro's offer and said she would communicate to WBBM that she declined their offer. A week after the conversation, J.W. O'Connor, who was the person in management she dealt with directly, told her she could have a private office, and could choose any of the rooms that were empty. He also told her that she would be getting pay increases which by December of 1972 would total $200 a week. She received those increases. Although no announcement of her new position was made, WCIU did provide her, at their expense, with business cards which contained her name and new title. She subsequently performed various assignments including going on the air and doing the news. She was also given permission by Howard Shapiro to work one day a week as hostess on television programs being taped at WBBM-TV. She had two conversations with J.W. O'Connor at the end of 1972 or beginning of 1973. He told her that a Mr. Lopez and certain other Spanish-speaking male employees were objecting to her role, saying that they could not accept a woman as director. On May 3, 1973, she was visited by WCIU's vice-president and general manager, Herman Sitrick. He told her that due to a decrease in WCIU's sales her position would be terminated, effective June 15. He offered her a position as sales person, and told her that she would make much more money there than as executive director of Spanish programming.

She declined to accept this offer and asked that her position be defined. She was sent a memorandum on June 18 which said that she was "reinstated on the payroll" but would not be involved with "old duties." The memo said she would temporarily be assigned to making phone calls, regarding the station's FCC license renewal, under the supervision of Fran Lindstrom. She filed her original charge of discrimination based on sex and national origin with the FEPC on June 22, 1973. She subsequently discussed her situation with Howard Shapiro. At one point during the discussion he said, "Rhea, if you are so unhappy, why don't you leave?" and she responded by stating that he could terminate her. She continued to make community "ascertainment" phone calls which were needed in regard to the license renewal. She was "pressed" by Shapiro that she was not making enough calls. Other than making those calls, she did "mostly nothing." On November 20, 1973, she met with Shapiro. He asked her what she did with her time, and she said "I read the newspaper and magazines with the door open. * * * because I have nothing to do." Shapiro suggested that if she was unhappy, she should begin to look for another job, but she said that if he was unhappy he should take appropriate action and put it in writing. She received a termination memo that day and left the station. Her lack of work was caused by the fact that since she finished working on the station's license renewal, which was filed in August, she had not received any assignment. When she told Shapiro this he did give her "several things to do" and she did them. She never refused any assignment.

On cross-examination she admitted that she authorized the release of an announcement that she was executive director of Spanish programming at WCIU-TV from September 1972 until November 1973, even though that position had been terminated in June. She conceded that on August 13, 1973, she was appointed special assistant to the president, Howard Shapiro, and she worked on assignments he gave her. She acknowledged that in the beginning of June 1973, she refused any directions to appear on the air, saying that she would not do so until her "situation was resolved one way or the other." She conceded that prior to working at WCIU-TV she had no previous experience on television. She acknowledged that in May of 1973, she took a 10-working-day vacation without prior notification to anyone at WCIU. From September 1972 to May 1972, she worked at WBBM-TV one day a week, which she had been allowed to do, and spent a minimum of 35 hours per week at WCIU. She spent a small amount of that time on personal matters. She got along reasonably well with most of the WCIU employees. She acknowledged that on "several occasions" from May 3 through November 20 she asked Howard Shapiro and J.W. O'Connor to terminate her employment.

For Plaintiff

Frances Lindstrom

In June of 1973, Rhea Hammer was assigned to work with her on the station's FCC license renewal project. On July 2, 1973, she wrote a memo to J.W. O'Connor regarding the lack of work being done on that project by Ms. Hammer. Approximately 600 calls needed to be made in connection with the project. Ms. Hammer completed a total of 199 calls, while another woman named Joette, who worked on the project part time in June and then in July, completed 222 calls. She had occasion to pass by Hammer's office and noticed that she was often looking at magazines, writing notes or talking on the phone. Lindstrom would at times wait to speak to Ms. Hammer, and she observed that her phone calls did not always concern the license renewal project. She occasionally received complaints from other employees about Ms. Hammer.

On cross-examination she acknowledged that Rhea was requested to make Spanish speaking calls as much as possible and recalled that in June and July of 1973 the phone calls were Rhea's only assignment. She acknowledged that Rhea did the "recap" of all of the project's calls.

J.W. O'Connor

He is chairman of the board and was previously president of WCIU-TV. He substantially corroborated Rhea Hammer's account of how she was offered the position of executive director of Spanish programming. Although she did receive her own office and the wage increases that were promised, she was not actually appointed to the position due to the reaction of the Spanish language department. Specifically, Lilly Acala, Henry Lopez and Armando Perez had such violent opposition that if the appointment had been made, they all would have refused to continue working. He was also told by Ed Scotch, a producer at WCIU, that Rhea Hammer was not very interested in Spanish programming, was no longer cooperative, and would be a bad choice for the executive position. He told Rhea of the negative reaction of the Spanish department and that she therefore would not receive the appointment. She was very upset that those people were against her. He wanted to keep Rhea and the other employees too, so he directed that Rhea be offered a position in sales and talent. He learned, however, that Rhea was not interested in that or anything else except executive director of Spanish programming. In May of 1973, Rhea Hammer went away on vacation, although she did not inform him that she was leaving. When she returned he tried to convince her to accept the new position, but she refused. At the end of May 1973, because he still thought Rhea was a valuable employee who should stay with the station, he assigned her to make FCC ...

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