Appeal from the Circuit Court of Cook County; the Hon. Richard
L. Curry, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Plaintiff, Loyola University of Chicago, appeals from a trial court order affirming a decision of the Human Rights Commission which held that plaintiff discriminated against defendant Eugene Irvin, Sr., on the basis of race and the basis of retaliation for his filing a complaint with the Commission. On appeal plaintiff contends that the Commission's decision is against the manifest weight of the evidence because it disregards certain evidence, because Irvin failed to establish a prima facie case of racial discrimination and retaliation, and because plaintiff's reason for discharging Irvin was not shown to be pretextual. Plaintiff also contends that the Commission abused its discretion by awarding reinstatement, back pay, and attorney fees.
Irvin, a black male, began working as a security officer at plaintiff's medical complex in Maywood on January 28, 1980. A June 1980 job evaluation rated Irvin's work performance "excellent consistently exceeds most performance standards," and added that he would be promotable in the future. A January 1981 job evaluation again rated his performance as excellent and stated that Irvin was promotable now. His job strengths were listed as "job knowledge, dependability, adaptability, and ability to work with others."
On April 1, 1981, Irvin filed a charge of race discrimination with the Department of Human Rights alleging that he was denied a promotion because of his race. On April 8, 1981, plaintiff received notice of the charge. On April 27, 1981, Susan Paraday, another employee, wrote a letter to plaintiff alleging that Irvin had made sexually suggestive comments to her. On May 12, 1981, plaintiff's personnel director held a meeting at which Irvin was asked to respond to the allegations made by Paraday. Irvin denied the charges. On May 13, 1981, Irvin filed a charge with the Department of Human Rights alleging retaliation for having filed the original failure-to-promote charge. On May 15, 1981, plaintiff fired Irvin. On May 20, 1981, Irvin amended his retaliation charge to include the termination. On November 17, 1981, the Department of Human Rights filed a report finding plaintiff had treated Irvin differently than it had treated other employees, and on March 31, 1982, the Department filed a complaint with the Human Rights Commission. On April 21 and 22, 1983, a hearing was held before an administrative law judge (ALJ). The following evidence was adduced.
The April 27 letter from Paraday to plaintiff stated that on April 26 at 6:30 a.m. Irvin came in to relieve Paraday, who commented that she was tired. Irvin remarked that she could rest on a table in the obstetric-gynecological department, referring to the stirrups at the ends of the table, because the "stirrups are good to hold the legs apart." Paraday left the control center in disgust. The letter also referred to other instances when Irvin made suggestive remarks to Paraday, "remarks that I feel have sexual meanings on his part." In March Irvin called Paraday and asked if she liked him. When she replied negatively. Irvin asked if she hated him. Paraday again replied negatively. Irvin then asked Paraday to give him a wake-up call. "Almost whenever Irvin sees me he starts a conversation and does it with almost the same kind of suggestive remarks." The letter concluded by stating that Paraday did not want to hurt Irvin, but that she wished the department director would make him stop his behavior towards her.
At the hearing, it was established that plaintiff has written disciplinary procedures which grade offenses on four levels. The procedures assign a specific disciplinary measure to each level of offense, depending on the severity of the offense and the number of previous offenses committed in the preceding year. Level 1 offenses require a verbal reprimand for a first offense; a first written warning for a second offense; a second written warning for a third offense; suspension of one to five days for a fourth offense; and discharge for a fifth offense. Level 2 offenses require a written warning for a first offense; suspension of three days for a second offense; and discharge for a third offense. Level 3 offenses require suspension of five days for a first offense, and discharge for a second offense. Level 4 offenses require discharge for the first offense.
Irvin's discharge report showed that he had received three verbal warnings in the eight months prior to his termination but that none were for the same type of offense. On August 8, 1980, he was verbally warned for not following proper departmental procedure in filing a complaint with the State's Attorney on behalf of plaintiff against another employee for theft. On January 16, 1981, Irvin was verbally warned for falling asleep during a departmental meeting. On April 12, 1981, 11 days after filing his original discrimination complaint, he was verbally warned for not carrying a flashlight. The report further indicated that Irvin had been discharged for "conduct which violated community standards of decency and morality; sexual harassment," which is a level 3 infraction. The discharge report did not mention Irvin's conduct during the May 12 meeting. The report was prepared by Paraday's supervisor, who had not attended the meeting. Irvin's termination notice stated that Irvin "had a very disruptive influence upon operations of the security department and the department's employees."
Through the testimony of Leslie Gallay, plaintiff's employee-relations manager, and Edward Pedziwiatr, plaintiff's director of security, it was established that in the year preceding Irvin's termination plaintiff had disciplined other employees for the level 3 offense of immoral and indecent conduct. On May 31, 1980, Jaime Ochoa, a nonblack, received a five-day suspension after grabbing the breast of a deaf-mute employee in a store room. Ochoa admitted to the misconduct and promised to cease such harassment. Ochoa had received a written warning for a level 2 violation 2 1/2 years prior to the sexual-harassment incident. In September 1980, Alex Surmaczynski, a nonblack, received a five-day suspension for a level 3 infraction after several female employees reported various acts of Surmaczynski. These incidents included following one woman into an elevator and asking if she loved him; following her on a different occasion and patting her on the buttocks; asking her on another day if she would go out with him; touching another woman's breast; and waiting at the bottom of stairs to watch women walk upstairs. Surmaczynski admitted his misconduct and apologized. Surmaczynski had received a written warning for a level 2 violation 18 months earlier. On March 10, 1981, Manuel Garcia, a nonblack, received only a verbal warning after several women reported that he had made lewd remarks and improper gestures, including rubbing the thigh of a nurse who was taking his blood pressure in the emergency room. Garcia admitted to the misconduct, was remorseful, and apologized. The three evaluations given Garcia prior to this incident rated his work as "very good" and all three evaluations listed areas needing improvement. Garcia had received a level 3, five-day suspension 2 1/2 years earlier, and a written warning for a level 2 offense 2 years earlier.
It was further established that on May 5, 1980, Thomas Campagna, a security officer, was discharged for having a female employee sitting on his lap while he was on duty in the main lobby. Campagna failed to enforce visitor policy or monitor visitor passes during this time. While the original charge was classified as level 3 "immoral and indecent conduct which violates common decency or morality" the charge was subsequently changed to level 4 "actions which could reasonably cause harm to patients, students, visitors, or employees through intentional acts of commission or omission." Campagna had received two written disciplinary warnings during the year prior to his termination. The first warning was for tardiness and the second was for action which could cause harm to a trainee officer.
Lowell Dunlap, assistant to plaintiff's vice-president for administration, testified that Irvin was fired because of the Paraday incidents, including a verbal attack on Paraday at the May 12, 1981, meeting. Dunlap stated that at that meeting, Irvin was confronted by Paraday in front of their supervisors. At one point, Irvin turned to Paraday and "said words to this effect, `Your husband would be very interested in knowing about your boy friend.'" Dunlap stated that the people at the meeting viewed the remark as a "verbal attack" which was "irrelevant to the nature of the charges." Dunlap believed that discharging Irvin was the only way to guarantee that the harassment would not occur in the future. Dunlap testified further that during various conversations he had with Paraday concerning Irvin, she had been very distraught.
Pedziwiatr testified that Irvin was fired because of his performance in the department, his comment that Paraday was dating an engineer, and the sexual comment on April 26. At the May 12 meeting, Irvin "mentioned something about Susan Paraday dating an engineer in the maintenance department." Pedziwiatr believed Irvin was merely trying to discredit Paraday. Pedziwiatr thought that very few people in the department liked Irvin, that his superiors had difficulty with him, that he was a trouble maker, and that his presence was counterproductive to efficiency and morale.
Irvin testified that on April 26, 1981, he spoke with Paraday twice but did not make sexually suggestive remarks to her. When he arrived to relieve her, an engineer was about 30 feet away. Irvin stated further that at the May 12 meeting he was shown Paraday's letter and that was the first time he heard of the sexual-harassment charges. He denied the allegations and asked Paraday why she would do something like that. Irvin stated that he had no other direct conversation with Paraday during the meeting. At the end of the meeting, Irvin spoke to the personnel director, saying "Mr. Heuel, it isn't even logical that a man would say something out of the way to a female and her boy friend is right there about 25 or 30 feet away from them." Irvin testified that on May 15 he was told by his supervisor and the director that since Irvin would not resign and would not admit what he had done he was being fired. He was given no other reasons for the discharge. Irvin also stated that on other occasions he had asked Paraday to give him a wake-up call, which was a typical practice for the security personnel.
Norbert Heuel, personnel director, testified that when Irvin was first confronted with Paraday's letter at the May 12 meeting, Irvin asked if an engineer had been present when the comment was allegedly made. Paraday stated that the engineer had not been present, and Irvin replied that he would not make those statements in front of the engineer. Heuel described Irvin as very annoyed and "not hostile, but I think he was retaliatory." Heuel testified that generally sexual-harassment charges were investigated and turned over to the EEO officer. He also stated that sexual harassment was a level 3 infraction which required suspension before discharge. During Heuel's testimony, plaintiff attempted to introduce a letter written by Irvin's estranged wife accusing him of misconduct generally related to his family life. The letter was received by plaintiff on August 9, 1982. Heuel testified that the allegations typically trigger an investigation and possibly termination. The ALJ refused to admit the letter as evidence on the grounds that it was hearsay and received after the termination.
Susan Paraday, a security-officer dispatcher, testified that Irvin had made the comment regarding her resting on an obstetric-gynecological table on April 26, 1981. Irvin had previously made comments to her, but none had been so direct and usually she just ignored him. The previous comments included such statements as "I can't believe a girl like you would be going straight home," or saying that a girl like Paraday should have lots of boyfriends. After Irvin made the comment on April 26, Paraday walked out of the room. Paraday was advised by a co-worker to report the incident to the director. Paraday also testified that at the May 12 meeting, Irvin "denied ever saying anything and just got very upset, saying that I had a lot of boyfriends * * * implicating one of the engineers." Paraday could not remember exactly what Irvin said at the meeting. She believed that Irvin was "just hurt and had to get back at me." After the meeting, Paraday went to Hogan's office, crying, and told Hogan she was going to quit. She testified that she was not afraid of Irvin.
Sandra O'Rourke, a security officer, testified that she and Paraday were friends and had discussed Irvin's behavior several times. O'Rourke believed Irvin's misconduct was escalating and she ...