APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
569 N.E.2d 6, 210 Ill. App. 3d 169, 155 Ill. Dec. 6 1989.IL.2049
Petition for Review of Order of The Human Rights Commission. No. 1985 CF 2837.
MANNING, P.J., BUCKLEY and O'CONNOR, JJ., Concurring.*
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
Steve Luckett, Jr., ("Luckett") appeals directly to this court from adverse orders of The Department of Human Rights ("Department") and The Human Rights Commission ("Commission"), wherein the the Department and Commission dismissed his charge which alleged employment discrimination against Amco Corporation. The questions presented on appeal are: (1) whether the Commission's dismissal of Luckett's discrimination charge for lack of substantial evidence was against the manifest weight of the evidence; and (2) whether the Commission's adoption of the Department's finding of lack of substantial evidence denied Luckett's right to procedural due process?
The record below reveals the facts as follows. Luckett, a black male, was hired by Amco Corporation as a stockroom keeper on December 28, 1982. Luckett had a history of absenteeism and had received several oral and written warnings from Amco. On the warning notice dated February 2, 1984, Amco stated that Luckett had missed at least six days and had been late at least six times in the past few months. On a notice dated August 30, 1984, Luckett was cited for 26 excused and unexcused absences in the previous year. Thereafter, he was suspended. In a memo dated September 5, 1984, which stated that Luckett's absences had become excessive, Amco also advised him that a single absence in the next 30 days or two absences in the next 60 days would result in termination. Additionally, Amco issued Luckett more warnings on October 20, 1984, February 11, 1985, and March 7, 1985, regarding absenteeism and tardiness. Luckett also received several warning notices regarding his employment at Amco for deficient work performance.
On May 10, 1985, Luckett received his final warning notice which constituted the notice of termination for "defective work" citing, "[m]iscounts on 5/2/85. Employee was given 3 days off for prior miscounts. Employee to be terminated."
On or about June 19, 1985, Luckett filed a charge of discrimination with the Department pursuant to the Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 101 et seq.), regarding his discharge on May 10, 1985. In the charge, Luckett alleged he had been discriminated against on account of his race in that Amco discharged him and other blacks and replaced them with Hispanic employees. He also alleged that the reason given for his termination, excessive absenteeism, was merely pretextual. Luckett alleged that he had requested to be off from work on May 3, 1985, two weeks in advance of that date, and that upon his return to work, he was given two employee warnings and terminated. He alleged that a non-black, Ramon Castro, had requested time off from work and was granted the time but was not terminated upon his return. Luckett further alleged that "non-black employees such as Ramon are off work as much or more than I had been and no actions are ever taken against them."
After conducting a fact-finding investigation, the Department in its investigation report dated April 14, 1986, determined and recommended a finding of lack of substantial evidence regarding the allegations in Luckett's charge. The report stated that: (1) Luckett was absent and tardy more often than his non-black comparison; (2) Luckett was not terminated for requesting time off, but because he took the day off without permission, coupled with his history of absenteeism; and (3) the documents revealed that Luckett's allegation that Amco was discharging blacks and replacing them with Hispanics was un-founded.
On August 7, 1986, the Department notified the parties that based upon the investigation report, it had determined there was not substantial evidence to support the allegations of the charge and the charge, therefore, was dismissed in accordance with section 7-102of the HRA. (Ill. Rev. Stat. 1983, ch. 68, par. 7-102.) On September 11, 1986, Luckett filed a request for review with the Commission. On October 10, 1986, Luckett filed his "Argument and Materials in Support" of the request for review, maintaining that substantial evidence existed to support the charge. Amco, in its response, pointed out a number of factual inconsistencies and inaccuracies in Luckett's memoranda and requested that all relief be denied.
On February 19, 1987, the Commission adopted and affirmed the decision of the Department and entered an order dismissing Luckett's charge for lack of substantial evidence, citing several findings of fact and reasons in support of its decision. Luckett has appealed directly to this court pursuant to section 8-111(a)(1) of the HRA. Ill. Rev. Stat. 1983, ch. 68, par. 8-111(a)(1).
Initially, we turn our attention to the motions filed by the parties to this appeal, which were taken with the case. Since oral argument in this matter, both parties have filed several motions to file additional or supplemental authority. These motions primarily concern the interpretation of and application to be given to the several rulings in the case of Lemon v. Tucker (N.D. Ill. 1988), 695 F. Supp. 963 ("Lemon II"), related to Lemon v. Tucker (N.D. Ill. 1985), 625 F. Supp. 1110
In Lemon I, the plaintiffs filed a two-count complaint challenging the constitutionality of the procedures for processing charges under the HRA. Initially, plaintiffs had sought declaratory and injunctive relief against the defendant, maintaining due process and equal protection violations. However, pursuant to a motion to dismiss filed by the defendant, the court dismissed count II, the equal protection claim, but declined to dismiss count I, the due process claim. Lemon, 625 F. Supp. at 1117-18.
Essentially, plaintiffs charged that the defendant deprived them of their State-created property interests in their HRA actions without due process of law. Specifically, count I alleged that the Department's procedures were deficient in the following respects:
(1) Complainants do not have the right to have an adjudicatory hearing.
(2) Complainants do not have the right to know the evidence against them.
(3) Ex parte contacts are permitted.
(4) Complainants do not have the right to cross-examine ...