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07/02/87 Robert Lipsey, v. the Human Rights

July 2, 1987

ROBERT LIPSEY, PLAINTIFF-APPELLANT

v.

THE HUMAN RIGHTS COMMISSION ET AL., DEFENDANTS-APPELLEES



Before we address the contentions raised by plaintiff on appeal, we first consider defendant's claim that plaintiff's brief does not comply with the supreme court rules and that plaintiff's appeal should therefore be dismissed. More specifically, defendant argues that plaintiff's statement of facts is incomplete and his argument lacks proper citation to authorities. Although plaintiff's brief is somewhat deficient, the complete record is before us and a cogent legal argument is discernible. In the interest of Justice, we will consider the merit of plaintiff's appeal. Luethi v. Yellow Cab Co. (1985), 136 Ill. App. 3d 829, 832, 483 N.E.2d 1058.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

510 N.E.2d 1226, 157 Ill. App. 3d 1054, 110 Ill. Dec. 195 1987.IL.953

Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. JIGANTI, J., concurs. JUSTICE LORENZ, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

After plaintiff, Robert Lipsey, was discharged from his employment as an assistant planner with the Chicago/Cook County Criminal Justice Commission because of "problems and attitude," he filed a complaint of racial discrimination with the Fair Employment Practice Commission , now known as the Human Rights Commission (Commission) (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.). Following an evidentiary hearing, an administrative law Judge of the Commission entered an order and decision which found, inter alia, that the CJC did not discharge plaintiff because of problems and attitudes, but rather the CJC discharged plaintiff because he opposed the CJC's racially discriminatory practices and that the CJC committed an unfair employment practice in so doing. The Commission's administrative law Judge ordered plaintiff reinstated to his employment with CJC. A three-member panel of the Commission reversed the finding and decision of the Commission's administrative law Judge, finding that there was no substantial evidence that CJC had discriminated against plaintiff because of his race. On administrative review the circuit court of Cook County affirmed the Commission's decision.

In his appeal from that decision plaintiff contends that the Commission erred when it reversed the order and decision of the administrative law Judge who found that the CJC had terminated plaintiff because of his opposition to racially discriminatory practices and that the circuit court erroneously affirmed the Commission's decision of reversal.

The testimony presented during the evidentiary hearing before the Commission's administrative law Judge established that the CJC is an agency of the City of Chicago and County of Cook which awards State and Federal funds to community organizations and other government agencies to finance their criminal Justice programs. On July 7, 1977, Daniel O'Connell, the executive director of the CJC, hired plaintiff as an assistant planner and assigned him to work on the coordinating community council. According to Director O'Connell, who had a baccalaureate degree and had attended but had twice withdrawn from law school, plaintiff was paid 8% more than other assistant planners because plaintiff was a law school graduate. The evidence further revealed that plaintiff was multilingual and that one of the languages he spoke, in addition to English, was Spanish. The CJC had 23 employees, seven of whom were supervisors, and the remainder of the staff was composed of secretaries, planners or assistant planners. Employees were prohibited from obtaining secondary employment unless it was approved by Director O'Connell. Further, nonsupervisory employees were required to sign time sheets whenever they arrived or left the workplace, to submit memoranda to explain tardiness or absence, and to report weekly on all the projects on which they had worked. Employees were given a "special leave" of three days for the funeral of a family member so long as the employee had provided his supervisor with prior notice. Supervisors were authorized to reprimand nonsupervisory employees and to assign work to them. Reprimands could be issued orally or in writing. There were two types of written reprimands: one advised the employee of the infraction he had committed and the other provided that same advice but in addition gave notice that if the infraction was repeated the employee would be discharged. Nevertheless, the executive director had the sole power to discharge an employee and always approved suspensions.

Plaintiff's immediate supervisor was John Kurtovich, who reported to Margaret Leslie, the assistant to Director O'Connell. Both Leslie and Kurtovich had baccalaureate degrees. Plaintiff testified that his position was a "political job" which he had obtained through an alderman. Plaintiff's duties included writing reports on community criminal Justice programs and legislation. Also, as a staff member of the coordinating community council, plaintiff was required to chauffeur supervisors, to wash their cars and to deliver their packages. During the course of his employment, plaintiff frequently asked for more challenging work which would utilize his academic and racial background and fluency in Spanish.

On August 16, 1977, plaintiff left for lunch at 1:15 p.m. He was required to return at 2:15 p.m. However, he returned at 2:53 p.m. and failed to sign the time sheet. When a secretary/timekeeper brought plaintiff's commission to his attention, plaintiff indicated on the time sheet that he had returned from lunch at 2:30 p.m. Margaret Leslie then reprimanded plaintiff for the inaccuracy and plaintiff corrected the time to 2:53 p.m. On the following day Leslie issued the following written memorandum to plaintiff regarding his tardiness and office records:

"On August 16, 1977, you were considerably late returning from lunch. This alone violates office policy, in that daily lunch hours would be confined to 60 minutes. Any deviation from this policy, for personal and/or other reasons, must first be brought to the attention of your supervisor or the Executive Director, for approval.

Upon return from lunch you had not signed in until 3:50 P.M. when you were requested to. At that time you indicated your return from lunch as 2:15 P.M. Shortly thereafter, you changed the alleged time of your return on the time sheet from 2:15 to 2:45.

The gravity of this matter lies in the fact that you recorded an inaccurate time of return on the office records, on two occasions. These records are official authorization of an employee's time in the office and should not be treated lightly. It is imperative that all time recorded be absolutely accurate. False recording cannot and will not be tolerated.

The seriousness of your actions would normally require disciplinary action; in the form of suspension from the office for up to three days. Considering you are a relatively new employee and although you have been made aware of the realities regarding the application of time sheets and their official use, you have not had any previous violations of office policies, I am therefore not recommending disciplinary action be taken at this time.

I am however submitting this warning to serve as an official reprimand. I would hope that this would suffice as a deterrent from further violations.

Should an action of this nature occur again in the future, I will have no alternative than to recommend immediate disciplinary action."

The record reflects that a copy of this memorandum was also sent to Director O'Connell.

On September 28, 1977, plaintiff was suspended for being insubordinate to his immediate supervisor, John Kurtovich. The events which precipitated his suspension are as follows: On September 16, 1977, plaintiff learned that his grandmother had died in Mississippi. Plaintiff then told Margaret Leslie and other co-workers of the death and that he would attend the funeral. Leslie advised Director O'Connell of the death and the latter extended his condolences to plaintiff through Leslie. Plaintiff was absent from work for the next three days. During that time Kurtovich spoke with plaintiff's wife. When plaintiff returned, Kurtovich asked him why he had not given him notice that he would be absent. Plaintiff replied that because Kurtovich had not been available plaintiff had notified Leslie. Kurtovich then ordered plaintiff to prepare two separate memoranda to explain why he had not given Kurtovich notice and why he had taken three days "special leave" for the funeral. Plaintiff then asked Kurtovich why two separate memoranda were required. According to Kurtovich, plaintiff became argumentative and was insubordinate. A co-worker who observed the incident testified that he had been impressed by the way plaintiff "handled himself" and did "not raise his voice but was getting his answers like in court" from Kurtovich. Margaret Leslie then issued the following memorandum suspending plaintiff for three days:

"As a result of the incident on Thursday, September 22, 1977, involving yourself and your immediate supervisors, I feel disciplinary action is in order.

The altercation which occurred in the presence of other staff members, cannot be tolerated. The uncooperative . . . attitude which you . . . pursued is not constructive and will not permit a healthy contribution to this office.

Your conduct was unbecoming an employee of this Commission. Your attitude and demeanor do not promote a responsible and professional office atmosphere and are conducive to insubordination. On this occasion as well as previous occasions, your attitude has been undesirably reluctant and has been less than satisfactory for a Commission employee.

Therefore, I am hereby notifying you of your immediate suspension from this office, for a three day period."

On January 25, 1978, plaintiff applied for a higher position and a raise. Both requests were denied by Director O'Connell based on a ...


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