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01/12/95 CAROLE WHIPPLE v. ILLINOIS DEPARTMENT

January 12, 1995

CAROLE WHIPPLE, PETITIONER,
v.
THE ILLINOIS DEPARTMENT OF REHABILITATION SERVICES, THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS, AND THE ILLINOIS HUMAN RIGHTS COMMISSION, RESPONDENTS.



Administrative Review of the Illinois Human Rights Commission. No. 1992SN0034.

Released for Publication January 12, 1995. As Corrected March 31, 1995.

Honorable Frederick S. Green, J., Honorable James A. Knecht, P.j., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

In July 1991, the Illinois Department of Rehabilitation Services (DORS) discharged petitioner, Carole Whipple, after five months of employment as an office associate. Later that month, Whipple filed a handicap discrimination charge (Ill. Rev. Stat. 1991, ch. 68, par. 2-102(A)) with the Illinois Department of Human Rights (Department), claiming DORS had discriminated against her by failing to provide reasonable accommodation and by discharging her from her employment on the basis of her hearing impairment (Ill. Rev. Stat. 1991, ch. 68, par. 1-103(I)(1)). In August 1993, the Department dismissed Whipple's charge based on a lack of substantial evidence.

Whipple requested review by the Human Rights Commission (Commission), which also dismissed the matter for lack of substantial evidence. (In re Whipple (Jan. 31, 1994), Ill. HRC No. 1992SN0034.) Whipple seeks judicial review of the Commission's order pursuant to section 8-111(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/8-111(A) (West 1992)). She argues the Commission erred in finding a lack of substantial evidence to support the handicap discrimination charge.

Upon review of the Department's findings, the Commission may consider any evidence submitted in addition to the Department's report and the results of any investigation. (Ill. Rev. Stat. 1991, ch. 68, par. 8-103(B).) In this case, Whipple had the opportunity to submit new or additional evidence outside the Department record but did not do so.

After a full evidentiary hearing before the Commission's ruling, a reviewing court should sustain the Commission's findings of fact as prima facie true and correct unless they are against the manifest weight of the evidence. ( Zaderaka v. Human Rights Comm'n (1989), 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688, 137 Ill. Dec. 31.) However, when considering whether there is substantial evidence to support a charge, the Commission is not to resolve questions of fact ( Marinelli v. Human Rights Comm'n (1994), 262 Ill. App. 3d 247, 253, 634 N.E.2d 463, 468-69, 199 Ill. Dec. 624); rather, its function is to determine whether substantial evidence exists to warrant further proceedings on the charge. (See Ill. Rev. Stat. 1991, ch. 68, pars. 7A-102(D)(2) through (F); Parham v. Macomb Unit School District No. 185 (1992), 231 Ill. App. 3d 764, 772-73, 596 N.E.2d 1192, 1197, 173 Ill. Dec. 313.) When the Commission dismisses a discrimination charge based on the Department's investigative report, its decision will not be disturbed absent an abuse of discretion. Parham, 231 Ill. App. 3d at 772-74, 596 N.E.2d at 1197-98.

The United States Supreme Court has set out a three-part analysis in considering employment discrimination claims. ( McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) The Supreme Court of Illinois adopted this approach in analyzing employment discrimination claims brought under the Act in the context of dismissal of a Department-issued complaint after a full evidentiary hearing. ( Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687-88.) The first prong of that analysis is whether a prima facie case of discrimination has been made. ( Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687.) In reviewing Commission decisions dismissing a charge after only an investigation by the Department, some decisions of the appellate court of Illinois have considered only the first prong. (See Parham, 231 Ill. App. 3d 764, 596 N.E.2d 1192, 173 Ill. Dec. 313; Marinelli, 262 Ill. App. 3d 247, 634 N.E.2d 463, 199 Ill. Dec. 624.) The second prong concerns articulation by the employer of a legitimate nondiscriminatory reason for its decision, and the third prong, if reached, requires the complainant to prove that the employer's reason was pretext and unlawful discrimination existed. Some appellate court decisions concerning Commission decisions dismissing charges after only departmental investigations have not been limited to consideration of the first prong. See Motley v. Human Rights Comm'n (1994), 200 Ill. Dec. 909, 263 Ill. App. 3d 367, 636 N.E.2d 100; McGaughy v. Human Rights Comm'n (1993), 243 Ill. App. 3d 751, 612 N.E.2d 964, 184 Ill. Dec. 88; Peck v. Department of Human Rights (1992), 234 Ill. App. 3d 334, 600 N.E.2d 79, 175 Ill. Dec. 456; Luckett v. Human Rights Comm'n (1989), 210 Ill. App. 3d 169, 569 N.E.2d 6, 155 Ill. Dec. 6.

We conclude that a decision of the Commission dismissing a charge after only investigation by the Department must be based upon the insufficiency of a prima facie case, as was done in Parham and Marinelli. Going into the second or third prongs of the rule in McDonnell Douglas and Zaderaka would inherently bring into play a balancing of evidence. Examination of the first prong is sufficient here to justify the Commission's order of dismissal.

In establishing a prima facie case of handicap discrimination under the Act, the rule has been stated that an employee must prove (1) she is handicapped within the definition of the Act; (2) her handicap is unrelated to her ability to perform the functions of the job she was hired to perform; and (3) an adverse job action was taken against her related to her handicap. ( Habinka v. Human Rights Comm'n (1989), 192 Ill. App. 3d 343, 372-73, 548 N.E.2d 702, 720, 139 Ill. Dec. 317.) At the investigative stage, as here, however, an employee would only have to tender sufficient evidence to warrant the Director of the Department to conclude substantial evidence exists on each of the elements in support of the charge. Ill. Rev. Stat. 1991, ch. 68, par. 7A-103(D)(2).

An additional element has been interjected here by Whipple's contention that DORS should have made accommodation for her alleged hearing handicap. In Milan v. Human Rights Comm'n (1988), 169 Ill. App. 3d 979, 984, 523 N.E.2d 1155, 1159, 120 Ill. Dec. 244, the court explained that the above-described elements of a prima facie case of handicapped discrimination "include a requirement of accommodation of an employee's handicap by the employer, but the employee bears the burden to assert the duty and to show that the accommodation was requested and necessary for adequate job performance.

The Milan opinion did not say how the accommodation issue fits into the three-prong test for showing a prima facie case of handicap discrimination. In line with the reasoning of Milan, in this case we would expand the second prong of that test to state as follows:

Her handicap is unrelated to her ability to perform the functions of the job she was hired to perform or, if the handicap is related to that ability to perform, after her request, the employer has failed to make a ...


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