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May 19, 1994


Appeal from the Human Rights Commission, Chicago, Illinois. Charge No. 1992-CA-1532


The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

Petitioner, Dona J. Marinelli, appeals from the Illinois Human Rights Commission's (Commission) denial of a petition for rehearing after the Commission ordered the dismissal of petitioner's charge of age discrimination against St. Anthony Medical Center (St. Anthony). Petitioner raises two issues for review: whether the Commission applied an erroneous standard when it dismissed the charge of discrimination; and whether the Commission's decision was an abuse of discretion.

Before summarizing the facts, we first address respondents' motion to strike petitioner's brief. We ordered that the motion be taken with the case. According to respondents, petitioner's brief contains inaccurate statements of fact and statements of fact accompanied by argument and comment. Supreme Court Rule 341(e)(6) provides that the statement of facts "shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." (145 Ill. 2d R. 341(e)(6).) Before respondents filed their motion to strike, petitioner had moved to supplement the record on appeal with documents and correspondence which were omitted from the record. We allowed petitioner's motion, and the facts to which respondents object are based on these documents. Thus, petitioner's factual averments are not in violation of Rule 341(e)(6). As for respondents' objection that the statement of facts is argumentative, we deny the motion to strike because the argumentative statements are not so flagrant as to hinder our review. See Cottrill v. Russell (1993), 253 Ill. App. 3d 934, 938, 192 Ill. Dec. 733, 625 N.E.2d 888.

On December 9, 1991, petitioner filed a charge of discrimination against St. Anthony with the Illinois Department of Human Rights (Department). Petitioner alleged that she was 58 years old and had worked as a trauma registry clerk/secretary for 12 years for St. Anthony, then as a data entry clerk/secretary. In the fall of 1990 she became a trauma registry clerk until St. Anthony discharged her. In March 1991, St. Anthony hired a new director of the trauma services department; in July 1991, he gave petitioner a poor performance evaluation; and on August 9, 1991, he told petitioner she was terminated effective September 9, unless she could find another position with St. Anthony, but in another department. Petitioner was not hired for any position for which she applied at St. Anthony. Petitioner believed she was discriminated against on the basis of her age because she was the oldest person in the department, everyone else being in their 20s or 30s; petitioner's prior evaluations were excellent or above average; St. Anthony refused to train petitioneron a new computer, although she made numerous requests; and St. Anthony "scolded [petitioner] for conduct which [she] did not engage in and which younger employees did, without a reprimand."

On September 2, 1992, the Department filed the investigation report (report), recommending a finding of "lack of substantial evidence." According to the report, petitioner stated that she was a trauma registry clerk at St. Anthony from 1974 until 1989, when she became a data entry clerk. In the fall of 1990, the medical director recommended that petitioner become a trauma registry clerk. In March 1991, Gerry Jenich was hired as director of the trauma services department. Prior to his appointment, petitioner's performance was acceptable, but in July 1991, Jenich singled out petitioner and gave her a poor performance evaluation. Jenich asserted that petitioner had problems communicating and was receiving many personal telephone calls. Petitioner stated this was untrue, and she explained that all of her calls were work-related. In addition, she stated that no one ever "talked to her about errors that she made or excessive telephone calls that she received," nor had she received written warnings. According to petitioner, Holly Huffman, a secretary, received as many personal telephone calls as petitioner, but she was not disciplined. In addition, petitioner was supposed to receive training on the computer, which she did not receive. Huffman had problems using the computer, but St. Anthony did not discipline her.

Roy Leslie stated that petitioner was his secretary between 1976 and 1989 and her performance was excellent. Leslie moved from his office at St. Anthony to the State of Illinois building in 1989, after which he did not know what petitioner's duties were or how she performed.

Mark Thate, the human resources director for St. Anthony, stated that when Leslie moved to the State of Illinois building, petitioner's position was eliminated. She became a clerk in the quality assurance department in February 1989, but that position was eliminated on September 30, 1990, in a reduction in force. Petitioner was then transferred back to the position of clerk, with responsibility for trauma registry. After petitioner was terminated, her duties were absorbed by others.

Sue Taphorn, the director of quality assurance and risk management, stated that petitioner made numerous typing mistakes while working in the quality assurance department. Petitioner also had problems using the computer to log in incident reports. Petitioner was not happy in the quality assurance department. Taphorn asked petitioner to limit her personal telephone calls. Petitioner's duties in quality assurance were significantly different from her duties under Leslie.

Lori Sauter, the trauma nurse coordinator, stated that petitioner was entering data from the charts at only half the desired rate, she was away from her desk frequently, and she was given written warnings about her poor performance. Sauter audited petitioner's work, and petitioner was making errors at a rate of 50%. Sauter related this to petitioner. Sauter also observed petitioner having long, nonwork-related, telephone conversations, but Sauter never saw Holly Huffman having long telephone conversations. Sauter took over petitioner's duties when petitioner was discharged.

Gerry Jenich became the director of emergency and prehospital services in March 1991. When he met with petitioner, she informed him that she was accustomed to having her own work space, telephone, and typewriter. Jenich got those things for petitioner. He also gave her more computer time when she asked for it. Both petitioner and Huffman were given daily tutoring on the use of the computer. Petitioner was given additional instruction by Matt Lundquist, but she still made mistakes in entering data. Petitioner was given a written warning about personal telephone calls and was asked to limit those calls to five minutes, yet she continued to spend 15 to 20 minutes on calls. Everyone in the department was asked to limit the length of personal telephone calls. Petitioner often sat at her desk for several hours in the afternoon stating that she had finished her work and had nothing to do. Jenich gave her a written warning in July 1991 for poor performance because petitioner was not doing the job. On August 9, 1991, he gave her 30 days to find a job in another department.

Nicky Gerardi, the quality assurance coordinator for nursing, stated that from 1989 to September 1990 petitioner split her time between the quality assurance department and the trauma department. Petitioner made many spelling errors in typing reports and lost trauma information on computer disks. The telephone log showed that petitioner received many telephone calls from her daughter.

Linda DePorter, the acting director of prehospital trauma services, stated that petitioner returned to the emergency medical services department in September 1990 and did not receive an evaluation for more than one year. Petitioner made mistakes entering ...

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