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11/03/88 Ozell Smith, v. the Chicago Board of

November 3, 1988

OZELL SMITH, PETITIONER

v.

THE CHICAGO BOARD OF EDUCATION ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

530 N.E.2d 1089, 176 Ill. App. 3d 109, 125 Ill. Dec. 680 1988.IL.1596

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, J., concurs. JUSTICE JOHNSON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Petitioner, Ozell Smith, is a black woman who was discharged from her position as vocational assistant by the principal of Thorp E.V.G. Center in June of 1980, when her position and that of another person were eliminated. She had been employed by the Chicago Board of Education (Board) for approximately 10 years in various positions. In 1973, Smith was offered a career service probationary teacher's aide position, which she declined in favor of participating in a federally funded program known as "Basic Occupational and Skilled Therapy" .

From September 1977 until June 1979 Smith had a provisional position as vocational assistant in the print shop of Tennyson School, which closed in June 1979. Thereafter she obtained the provisional appointment as vocational assistant at Thorp, a position that was funded with money from the BOAST program. This money was to be allocated by Thorp's principal, Adolph Lebres. The BOAST budget depended on how many BOAST students were anticipated to be in the school the following year. Lebres had no input as to the amount of money that the government would allow per student in the BOAST program.

The BOAST personnel at Thorp included two shop teachers and a program coordinator, as well as the vocational assistants and home visitors. Lebres determined that for the 1979-80 school year he would eliminate two staff positions, one vocational assistant and one home visitor position. He would then add one teacher's aide position. Another vocational assistant, Thelma Bush (also black), was certified in her position, which gave her greater security than Smith had, because the Board's procedure requires that provisional or temporary personnel are to be terminated before certified personnel.

In June 1980 Lebres told Smith that her position had been eliminated because of budget considerations. According to Smith, she then offered to take a pay cut even though Lebres told her that it would be a $200 reduction.

The teacher's aide position was filled by a white woman, who was a certified teacher's aide. This position differs from that of a vocational assistant. Apparently, the teacher's aide performs some work, such as special tutoring in the language arts, that Smith's position did not involve.

Lebres had no control over the person appointed to fill the teacher's aide position. According to the board, such assignments are made on the basis of seniority in the system.

On September 4, 1980, Smith filed a complaint with the Illinois Department of Human Rights alleging that she had been discriminated against because of her race in violation of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 1-101 et seq.). The Department filed a complaint on her behalf on August 28, 1981, before the Illinois Human Rights Commission (Commission). In May 1982, there was a hearing before an administrative law Judge. At the close of Smith's case, respondent moved for entry of a directed finding in its favor. Although the administrative law Judge indicated her inclination to grant the motion, she requested that a formal motion be filed.

In July 1982 this Judge resigned and chief administrative law Judge Patricia Patton took over the case. On January 21, 1983, Judge Patton imposed discovery sanctions on respondent and ordered a hearing de novo. The hearing was set for March 1983.

On September 4, 1985, Judge Patton entered her interim recommended order and decision. She found that Smith had established a prima facie case of race discrimination by the school board. She held that the Board had failed to articulate a legitimate nondiscriminatory reason for Smith's termination. In the alternative, Judge Patton found ...


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