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09/09/87 Ozia Brewington, v. the Illinois Department of

September 9, 1987

OZIA BREWINGTON, PLAINTIFF-APPELLANT

v.

THE ILLINOIS DEPARTMENT OF CORRECTIONS ET AL., DEFENDANTS-APPELLEES. -- THE ILLINOIS DEPARTMENT OF CORRECTIONS, PLAINTIFF-APPELLANT,

v.

OZIA



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

BREWINGTON et al., Defendants-Appellees

513 N.E.2d 1056, 161 Ill. App. 3d 54, 112 Ill. Dec. 447

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

Rehearing denied October 16, 1987; As amended April 25, 1988 1987.IL.1313

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff Ozia Brewington appeals from a judgment of the circuit court of Cook County which affirmed the final administrative decision of the defendant Illinois Human Rights Commission (Commission) finding that she was not entitled to back pay and reinstatement to her former position with the defendant Illinois Department of Corrections . The DOC appeals from the same judgment's affirmance of the Commission's findings that it had discriminated against plaintiff on the basis of sex and that she was entitled to an award of $12,699.16 in reasonable attorney fees from the DOC.

Plaintiff began working for the DOC in 1970. In October 1977, the DOC transferred her to its Chicago Residential Center as a youth supervisor II and assigned her to the 4 p.m. to 12 a.m. shift. Under the contract between the State and plaintiff's union, the American Federation of State, County and Municipal Employees , employees selected their work shifts on the basis of seniority. However, a supplementary agreement limited to one each the number of women who could work the 8 a.m. to 4 p.m. and 12 a.m. to 8 a.m. shifts at the CRC for security purposes. Plaintiff first complained of this policy in October 1977 and made an oral grievance of it on October 17, 1977, to the CRC chief of security. She alleged, and the administrative law Judge who heard the matter found, that she had made at least two oral requests of her supervisor, Sam Haggins, to be transferred from the 4 p.m. to 12 a.m. shift in the first quarter of 1979. She also alleged that she informed him she needed the change because her son was having problems and required additional supervision in the evenings. She was still on the 4 p.m. to 12 a.m. shift on March 16, 1979, when a new male white employee was assigned to the 8 a.m. to 4 p.m. shift. Plaintiff resigned on April 2, 1979.

On July 23, 1979, plaintiff filed a discrimination complaint with the Illinois Fair Employment Practices Commission . She alleged sexual and racial discrimination in that she had been denied a shift change while a newly hired white male was assigned to the 8 a.m. to 4 p.m. shift, one of the shifts to which she had requested a transfer. Having found substantial evidence of an unfair employment practice, the FEPC issued a complaint against the DOC alleging sexual discrimination against plaintiff in denying her a shift change while allowing similarly situated males to change shifts. Plaintiff filed her amended complaint of unfair employment practices against the DOC before the Commission on July 22, 1980. All proceedings were thereafter conducted under the provisions of the Illinois Human Rights Act, which became effective on July 1, 1980. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-101 et seq.

The ALJ who heard the matter found, inter alia, that plaintiff's work environment was not so intolerable as to compel a reasonable person to resign and concluded that, although the DOC had discriminated against her by refusing to process her request for a shift change, it had not constructively discharged her. He therefore recommended that the Commission not award plaintiff reinstatement or back pay. However, he did recommend that: (1) plaintiff's complaint be sustained; (2) the DOC clear from its personnel records all references to plaintiff's complaint; (3) the DOC be ordered to cease and desist from discriminating on the basis of sex and race with respect to its shift selection policy; (4) the DOC pay plaintiff reasonable attorney fees and costs to the extent that plaintiff had prevailed. The Commission affirmed and adopted the recommendations in its order of November 3, 1982. Subsequently, plaintiff filed her petition for $15,076.88 in attorney fees. She sought payment of 49.5 hours expended by two attorneys at a rate of $100 per hour and 428.5 hours expended by three senior law students at a rate of $25 per hour. The ALJ found that the time expended by the law students included 40 hours of duplicative efforts. He reduced plaintiff's fee request by 10% because she had not obtained some of the requested relief. He also concluded that senior law students practicing on a temporary license under Supreme Court Rule 711 (87 Ill. 2d R. 711) are entitled to compensation when they represent prevailing complainants before the Commission. He therefore recommended that plaintiff be awarded $12,669.19 as reasonable attorney fees. The Commission affirmed and adopted the recommendation in its order of May 17, 1984.

Both parties sought administrative review of these orders in the circuit court. The trial court affirmed them as not against the manifest weight of the evidence or contrary to law. Each party appeals from the unfavorable portion of that judgment.

Plaintiff contends on appeal that the trial court erred in applying the wrong test to determine whether she had been constructively discharged by the DOC so as to entitle her to an award of back pay and reinstatement. She contends the court incorrectly required her to prove that defendant intended to force her to resign rather than merely requiring her to prove that a reasonable person in her "shoes" would have felt compelled to resign. She concludes she met the applicable standard and was thus entitled to back pay and reinstatement. The Commission responds that it did not require proof of a discriminatory intent by the DOC, but denied the contested relief because plaintiff failed to prove her working conditions were so unpleasant that she had no reasonable alternative to resignation.

In dealing with the allocation of burdens of proof and persuasion in employment discrimination cases, Illinois courts have turned to cases applying the Federal Civil Rights Act (42 U.S.C. sec. 2000e (1982)). (Burnham City Hospital v. Human Rights Com. (1984), 126 Ill. App. 3d 999, 1002, 467 N.E.2d 635.) The Federal cases proceed on theories of disparate treatment, which requires proof of discriminatory motive, or disparate impact, which involves employment practices falling more heavily on minority groups without justified business necessity. 126 Ill. App. 3d 999, 1002, 467 N.E.2d 635.

The ALJ held that plaintiff had established a prima facie case of disparate treatment where she: (1) was a member of the group protected by the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.); (2) was treated in a particular manner by her employer; and (3) was treated differently than similarly situated white male employees, citing, inter alia, Chicago-Allis Manufacturing Corp. v. Fair Employment Practices Com. (1975), 32 Ill. App. 3d 392, 336 N.E.2d 40. As such, the ALJ also found the burden shifted to the DOC to articulate a legitimate nondiscriminatory reason for its failure to process plaintiff's request for a shift change. (A. P. Green Services Division v. Fair Employment Practices Com. (1974), 19 Ill. App. 3d 875, 880-81, 312 N.E.2d 314.) Because defendant claimed that plaintiff did not request a shift change, the ALJ found the burden shifted back to plaintiff to show that the articulated reason was a pretext for discrimination. (19 Ill. App. 3d 875, 881, 312 N.E.2d 314.) He found that plaintiff met the burden by proving she had requested a transfer. He also found that the supplementary agreement between the DOC and AFSCME discriminated against women on its face in restricting the shifts which they could work and thus revealed that the DOC's articulated reason for denying plaintiff a shift change was pretextual. However, the ALJ rejected plaintiff's argument that the DOC had constructively discharged her. The Commission affirmed and adopted the ALJ's recommended order and decision.

The applicable test is whether "' the working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" (Emphasis added.) (Bourque v. Powell Electric Manufacturing Co. (5th Cir. 1980), 617 F.2d 61, 65, quoting Rosado v. Santiago (1st Cir. 1977), 562 F.2d 114, 119.) In asserting that the proper test is whether "a reasonable person in plaintiff's shoes would have felt compelled to resign," plaintiff ignores the first part of the test. That is, the employee must be compelled to resign by her working conditions, not some cause unrelated and merely coincidental to them. Thus, the applicable test has two prongs: (1) difficult or unpleasant working conditions; and (2) a compulsion to resign in a reasonable person caused by those conditions.

We believe the ALJ and the Commission properly applied this test and did not require plaintiff to prove that the DOC intended, by its discriminatory practice, to force her to resign. Rather, they found that the DOC had not constructively discharged her because she failed to prove the first prong of the Bourque test, i.e., that she was compelled to resign by her working conditions. This Conclusion is borne out by a reading of the recommended order and decision of the ALJ and the order and decision of the Commission.

The ALJ's order and decision stated in pertinent part:

"[To] prove a constructive discharge, a complainant must demonstrate that her work environment was one that would foreseeably result in an ordinary individual's resignation. (Hill and Interlake, Incorporated 1 Ill. F.E.P. Rep. 32, 35 (FEPC June 13, 1974). . . . [Complainant] has not demonstrated that such an environment existed for her at respondent. [She] testified that she desired to be home to supervise her son, who was having trouble, when he returned home from school. Although she preferred to work another shift and . . . felt that respondent's shift change policy was discriminatory, complainant presented no evidence that the work environment on the shift to which she ...


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