APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
August 25, 1995
INTERSTATE MATERIAL CORPORATION, PETITIONER-APPELLANT,
ILLINOIS HUMAN RIGHTS COMMISSION, DONALD BRANDY AND WILLIAM THOMAS, RESPONDENTS-APPELLEES.
ON PETITION FOR DIRECT REVIEW FROM THE ILLINOIS HUMAN RIGHTS COMMISSION.
The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
On June 9, 1986 and June 11, 1986 respondents, Donald Brandy and William Thomas, respectively filed charges with the Illinois Department of Human Rights alleging purposeful discrimination by Interstate Material Corporation, hereinafter referred to as "Interstate," in violation of section 2-102(A) and 6-101(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, pars. 2-102(A), 6-101(A)). They alleged that Interstate discriminated against them because of their race when it laid them off while retaining others less senior but of a different race and also alleged that Interstate retaliated against them by withholding wages due them because they reported the alleged discriminatory treatment to a union representative who was not affiliated with Interstate.
In May, 1987, when the Department of Human Rights did not complete its investigation within the statutory 300-day time period (Ill. Rev. Stat. 1987, ch. 68, par. 7-102(G)), Brandy and Thomas filed complaints with the Illinois Human Rights Commission (the Commission). At the request of the complainants, their cases were consolidated by the Commission in June, 1987. On October 4, 1989, one week before the scheduled administrative hearing, Brandy was granted leave to amend his complaint by deleting his retaliation claim; and on the day of hearing, Thomas' motion for voluntary withdrawal of his entire complaint was granted.
On June 27, 1991 the administrative law judge (ALJ) entered an interim recommended order and decision sustaining Brandy's discrimination charge and directed that he be reinstated and awarded back pay of $44,345 as well as attorneys fees and costs. The ALJ ordered that Interstate cease and desist from discriminating on the basis of race in terminating or laying off employees and recommended the denial of Interstate's motion for sanctions against Brandy and Thomas based on the late withdrawal of Brandy's retaliation charge and Thomas' entire complaint. A recommended order and decision was entered by the ALJ on September 11, 1991 incorporating the interim order and recommending that Interstate be ordered to pay Brandy $73,125.20 for attorneys' fees and $435.33 for costs. On February 8, 1993, the Human Rights Commission issued its order and decision rejecting Interstate's exceptions and affirming and adopting the recommended order and decision of the ALJ. Interstate filed a direct appeal to this court pursuant to section 8-111 of the Human RightsAct (775 ILCS 5/8-111 (West 1992)) and Supreme Court Rule 335 (134 Ill. 2d R. 335). *fn1
On appeal, Interstate contends that the Commission's finding that Interstate discriminated against Brandy on the basis of race was against the manifest weight of the evidence; that the Commission's award of back pay and attorneys' fees to Brandy was an abuse of discretion; and that the Commission's rejection of Interstate's motion for sanctions against Brandy and Thomas was an abuse of discretion. *fn2
At the hearing before the ALJ, Brandy introduced evidence to show that an employee (John Burgess, Jr.) having the same job functions but of a different race was treated more favorably; that there were problems with Burgess' work performance; that Brandy's supervisor used language and invectives reflecting racial bias; and that the reasons given by Interstate for Brandy's lay off were pretextual. Interstate contended that Brandy was laid off because of his job performance, his inability to drive a truck and a decrease in work orders.
Interstate Material Corporation is an African-American minority-owned ready-mix concrete supplier. In May, 1986, three white males and Donald Brandy and William Thomas, who are African-Americans, were hired to work for Interstate by John Weaver, a white male, who worked as a supervising consultant to Interstate. Brandy and Thomas had previously worked as concrete finishers for Ebony Construction Company, a concrete placement and finishing company that shared common owners with Interstate. Two weeks later, Weaver hired two more white employees, one of whom was Norman Burgess, Jr. Ronald Siwinski, a white male, was the plant superintendent and immediate supervisor of Brandy, Thomas and Burgess. Siwinski reported to Weaver who reported to Renee Bradford, Interstate's vice president and chief operating officer. Bradford as well as Interstate's president/owner, are African-American.
According to Brandy, when he was hired, Weaver told him he did not know what Brandy would be doing, but that he would be working in the yard. Siwinski put Brandy and Thomas to work as "troubleshooters" in the "pit." They ran gravel and sand up into the plant by a conveyor belt and cleaned the trucks and yard of concrete when necessary. After the first week, Brandy was trained to run the conveyor belt. When Burgess began work at Interstate, Brandy was in charge of the "pit;" and Siwinski assigned Burgess to assist Brandy. Siwinski often gave Burgess direct instructions as to what he was to do. Two days after Burgess was hired, he was put in charge of the conveyor belt and "pit."
With respect to Burgess' work performance, Brandy testified that on one occasion, while he was working with Burgess, Burgess opened a chute after Brandy had already opened one. Siwinski had put Burgess in charge of the conveyor belt although Brandy did not know this at that time. According to Brandy, when a chute is opened, rawmaterial falls onto the conveyor belt and is sent up for mixing in the cement production process. On the day in question, the weight from the additional materials caused the conveyor belt to separate in two parts, and work ceased until the belt was repaired. It took one day to shovel and clean up the sand that had fallen on the ground and in the tunnel.
Brandy also testified that on May 28, 1986, four days after Burgess had been hired, the pit crew, consisting of Burgess, Brandy and Thomas, was assigned to put some gravel into a new pit for a City of Chicago cement order. Brandy and Thomas told Burgess that there was contaminated material in the pit and that it should not be used for that order. Burgess disregarded their warning and told them to run the gravel into the pit. Shortly thereafter, a City of Chicago inspector saw the contamination and caused the pit to be shut down.
Henry Little, a former mechanic at Interstate, testified that, in June or July, 1989, Burgess overloaded an end loader with gravel causing a hose in the engine of the vehicle to break. The vehicle could not be used until the hose was replaced. Little testified that Burgess was verbally reprimanded by Weaver.
After the contamination incident, Siwinski told Brandy and Thomas not to come back to work for a day or two because the plant would be shut down until the contaminated material was cleaned up. Burgess was not laid off. Brandy and Thomas were never called back to work at Interstate.
In further support of his racial discrimination claim Brandy presented evidence of racial bias on the part of Siwinski. Three witnesses, Henry Little; Clifford Braxton, a former mechanic at Interstate who was supervised by Siwinski; and Michael Thomas, who worked in various capacities under Weaver and Siwinski from October, 1986 to August, 1989, a time period after which Brandy had been laid off, testified that on many occasions they heard Siwinski refer to African-American employees as "you people" while referring to the white employees by name. In addition to hearing Siwinski use the phrase "you people," Braxton also testified that in March, 1989 he overheard Siwinski refer to African-American employees as "niggers," stating "those niggers in the plant don't know nothing. They are dumb. *** What I am, going to do is I am going to fire all of them and hire me a new crew."
During Interstate's case, Siwinski testified that Brandy was hired as a driver-trainee and that he had informed Brandy that Brandy would be taught how to drive a ready-mix truck and would perform other functions within the company. Siwinski stated that Brandy's inability to drive a ready-mix truck at the time he was hired did notpresent a problem because Siwinski had taught others how to drive while on the job and intended to teach Brandy as well.
With respect to Brandy's work performance, Siwinski testified that on "several occasions" he saw Brandy and Thomas leaning on their shovels and that a couple of times he "approached them" and told them "there's no time to lean on shovels." He said that on one occasion he walked over to Brandy and Thomas and that "they never even made an effort to even seem like they were going to do anything." When asked how many occasions he observed this type of conduct, Siwinski stated "at least two or three times" although, on cross-examination, he stated the number was "exactly four times *** three, four times."
Siwinski also stated that he attempted to teach Brandy how to drive a ready-mix truck. He considered Brandy to be a "washout" because Brandy could not shift gears. Siwinski stated that he discussed Brandy's driving ability with Weaver about three times and that he discussed Brandy's work habits with Weaver about three or four times. He testified that he did not have any discussions with Bradford about Brandy.
According to Siwinski, Weaver made the decision to lay off Brandy and Thomas. This decision was based upon Siwinksi's recommendations and was accepted by Renee Bradford, Interstate's vice-president. As to the reasons Brandy and Thomas were let go, Siwinski first testified that he believed Brandy and Thomas were let go because of a lack of work due to a large decline in orders. He stated that Brandy was not let go because of his driving ability. On further questioning, Siwinski stated that he did not know why Weaver laid off Brandy and then stated that he believed Brandy was laid off because of his work habits.
With respect to Burgess' work performance, Siwinski testified that Burgess was not at fault for the contamination incident because Burgess had been instructed by John Weaver to mix the wrong material in the pit. Siwinski also stated that Burgess did not overload the end loader because the end loader was designed so that it could not be loaded beyond its carrying capacity. He further stated that the end loader was very old and that its hoses broke frequently and resulted in daily repair orders. It was Siwinski's opinion that the hose broke because of fatigue and that the amount of the load did not cause the hose to break.
Siwinski also testified that he never used the word "nigger," but admitted that he frequently used the phrase "you people." He testified that he used that phrase to refer to whomever he was speaking to, including his family, and that it had no derogatory meaning to him.
Based on the evidence summarized above, the ALJ issued an interim recommended order and decision finding that the preponderance of the evidence sustained Brandy's complaint of race discrimination. After hearing oral argument, the Human Rights Commission affirmed the ALJ's recommended order holding that there was evidence in the record, based on credible witness testimony, from which the ALJ could find:
"(1) that the reasons given by Interstate for laying off Brandy were untrue, (2) that a similarly situated white individual had a much poorer work record, but was retained, and (3) that the individual responsible for recommending the complainant's termination had used racist language with respect to [African-American] employees."
Employment discrimination actions brought under the Illinois Human Rights Act are to be analyzed in accordance with the framework set forth by United States Supreme Court decisions reviewing claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (1982)) and the Age Discrimination in Employment Act (29 U.S.C. § 621 et seq. (1982)). ( Zaderaka v. Illinois Human Rights Comm'n (1989), 131 Ill. 2d 172, 545 N.E.2d 684, 137 Ill. Dec. 31; ISS International Service System, Inc. v. Illinois Human Rights Comm'n (1st Dist. May 24, 1995), Nos. 1-92-2641 and 1-92-3759, slip op. at 10.) That three-part analysis, set out in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, was explained in Zaderaka as follows:
"First, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against plaintiff. Second, to rebut the presumption, the employer must articulate, not prove ( Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089, 1097), a legitimate, nondiscriminatory reason for its decision.
"Finally, if the employer carries its burden of production, the presumption of unlawful discrimination falls and plaintiff must then prove by a preponderance of the evidence that the employer's articulated reason was not its true reason, but was instead a pretext for unlawful discrimination. This merges with the plaintiff's ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against plaintiff. (Burdine, [citation].) This ultimate burden remains at all times with plaintiff. (Burdine, [citation].)" Zaderaka, 131 Ill. 2d at 177-79, 545 N.E.2d at 687.
Employment discrimination may be established by showing disparate treatment and disparate impact. ( Valley Mould & Iron Co. v. Illinois Human Rights Comm'n (1985), 133 Ill. App. 3d 273, 478N.E.2d 449, 88 Ill. Dec. 134.) The former theory requires proof that the employer simply treated some people less favorably than others because of their race, color, religion, sex, or national origin. The latter theory involves proof of employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. ( International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 335 n.15; 97 S. Ct. 1843, 1854-55 n.15, 52 L. Ed. 2d 396, 415 n.15.) Proof of discriminatory motive is required under the disparate treatment theory but not the disparate impact theory; and may be inferred in some cases from the mere fact of differences in treatment. International Brotherhood of Teamsters v. United States; Burnham City Hospital v. Human Rights Comm'n (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635, 81 Ill. Dec. 764.
Prima facie proof of discrimination in work force reduction cases, based upon disparate treatment, can be established upon a showing by the complainant that (1) he was within the protected class; (2) he was performing according to his employer's legitimate expectations; (3) he was terminated or demoted; and (4) others not in the protected class were treated more favorably. ( Clyde v. Human Rights Comm'n (1990), 206 Ill. App. 3d 283, 564 N.E.2d 265, 151 Ill. Dec. 288 citing Oxman v. WLS-TV (7th Cir. 1988), 846 F.2d 448.) Once a prima facie case of discrimination has been established and the employer has articulated a legitimate reason for its actions, the complainant must show that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence. (Texas Department of Community Affairs v. Burdine; Burnham City Hospital v. Human Rights Comm'n; see Clyde v. Human Rights Comm'n.) It then becomes a question of fact as to which party's explanation of the employer's motivation is the more credible. United States Postal Service Board of Governors v. Aikens (1983), 460 U.S. 711, 716, 75 L. Ed. 2d 403, 411, 103 S. Ct. 1478, 1482; Burnham City Hospital v. Human Rights Comm'n.
Findings of fact by the Human Rights Commission "shall be sustained [on judicial review from final orders] unless the court determines that such findings are contrary to the manifest weight of the evidence." (775 ILCS 5/8-111(A)(2) (West 1993 Supp.).) A decision is contrary to the manifest weight of the evidence only when, after reviewing the evidence in a light most favorable to the administrative agency, the court determines that no rational trier of factcould have agreed with the agency's decision because an opposite conclusion is clearly warranted. (E.g., Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 524 N.E.2d 1172, 121 Ill. Dec. 124.) The mere fact than an opposite conclusion is reasonable or that the reviewing court might have ruled differently will not justify reversal of the administrative findings. If the record contains any evidence supporting the administrative agency's decision, the decision must be affirmed. Obasi v. Department of Professional Regulation (1994), 266 Ill. App. 3d 693, 639 N.E.2d 1318, 203 Ill. Dec. 499 citing Abrahamson v. Illinois Department of Professional Regulation (1992), 153 Ill. 2d 76, 606 N.E.2d 1111, 180 Ill. Dec. 34.
In the instant case Brandy claimed racial discrimination based on disparate treatment. He established a prima facie case with proof that he was within the protected class of African-Americans; that he was performing the laborer tasks he had been hired to do; that he was laid off; and that Burgess, a similarly situated employee who performed the same job functions Brandy performed and who was not within the protected class, was not laid off. (See Bellwood Board of Fire & Police Commissioners v. Human Rights Comm'n (1989), 184 Ill. App. 3d 339, 541 N.E.2d 1248, 133 Ill. Dec. 810 (prima facie case of racially motivated discharge established by evidence that complainant was member of a protected class who was disciplined in a harsher manner than comparably situated persons of a different race); see also Clyde v. Human Rights Comm'n.) Interstate rebutted the presumption of discrimination by articulating several reasons for its decision to lay off Brandy; namely, poor work habits, inability to drive a ready-mix truck and decrease in work orders. It then became incumbent upon Brandy to show that Interstate intentionally discriminated by direct proof of racial motivation or by indirect proof that Interstate's proffered explanation was not credible. Texas Department of Community Affairs v. Burdine; Burnham City Hospital v. Human Rights Comm'n.
On appeal Interstate argues that Brandy did not prove racial motivation or animus as a matter of law because the comments attributed to Siwinski, even if made, *fn3 were sporadic, accidental and merely part of casual conversation. Interstate relies on Bellwood Board of Fire & Police Commissioners v. Human Rights Comm'n (1989), 184 Ill. App. 3d 339, 541 N.E.2d 1248, 133 Ill. Dec. 810 and two federal cases cited therein, Johnson v. Bunny Bread Co. (8th Cir. 1981), 646 F.2d 1250 and Equal Employment Opportunity Comm'n v. Murphy Motor Freight Lines, Inc. (D. Minn. 1980), 488 F. Supp. 381.
The comments made by Siwinski could be considered by the ALJ and the Commission as evidence of Siwinski's state of mind and the motivation for Siwinski's reports to Weaver which served as the basis for Brandy's lay off. Whether those comments alone would have sustained Brandy's ultimate burden of showing unlawful discrimination is a question we need not decide (see Bellwood Board of Fire & Police Commissioners v. Human Rights Comm'n (sporadic racial slurs insufficient evidence of racial harassment); cf. Shager v. Upjohn Co. (7th Cir. 1990), 913 F.2d 398 (slur in and of itself not sufficient evidence of discrimination but is relevant evidence of discrimination with greater or lesser probative value depending on precise character of remark)), since additional proof of racial motivation was offered by Brandy in the form of Burgess' inadequate work performance. The ALJ concluded that Burgess' work performance was "problematic" and inferior to Brandy's; and while we might not agree with that finding, we must give deference to it. The difference in treatment accorded to Burgess and Brandy, where Burgess was retained and Brandy was laid off, especially where their job performances were unequal, supports an inference of discriminatory motive. (See International Brotherhood of Teamsters v. United States; Burnham City Hospital v. Human Rights Comm'n (discriminatory motive may be inferred from mere fact of differences in treatment).) Furthermore, in addition to presenting proof of racial motive, Brandy presented evidence that discredited the reasons articulated by Interstate for Brandy's lay off.
The record shows that Siwinski gave three reasons for Brandy's lay off. He testified that he observed Brandy leaning on his shovel; that Brandy was required to drive a ready-mix truck but was not able to learn that skill; and that the company experienced a large decrease in orders for cement. It then became a question of fact as to which party's explanation of the employer's motivation was the more credible. (United States Postal Service Board of Governors v. Aikens; Burnham City Hospital v. Human Rights Comm'n.) TheALJ found Siwinski's testimony to be inconsistent as to which of these reasons was the determinative factor. The ALJ rejected Interstate's evidence that Brandy was hired to be a truck driver and found that Brandy was hired as a laborer. The ALJ found that Brandy's inability to drive a ready-mix truck was inconsequential to his continued employment. The ALJ also rejected Interstate's evidence that Brandy's job performance was the reason for his lay off. The ALJ found Siwinski's testimony inconsistent as to the number of times he saw Brandy lean on his shovel and concluded that the vagueness in Siwinski's answers gave the "impression" that Siwinski "probably did not intend for them [his observations of Brandy] to become the basis for Complainant's termination." The ALJ also opined that, even assuming Siwinski's testimony was accepted, complainant's job of shovelling sand would require him to pause for brief moments to rest and could not have been proof of poor work performance. Finally, the ALJ concluded that there was no large decline in work orders or in the amount of concrete delivered by Interstate as compared to the time prior to Brandy's lay off. Based upon these credibility determinations and a weighing of the evidence, the ALJ found Interstate's proffered reasons to be pretextual and further found that Brandy had set forth sufficient proof that Interstate's lay off decision was racially motivated and that that decision amounted to racial discrimination in violation of the Human Rights Act.
Interstate also attempts to defeat Brandy's contentions of racial motivation or animus by relying on the fact that it is a minority-owned company with a stated purpose of "enabl[ing African-Americans] to participate in the ready-mix industry." This fact is not dispositive, however. (Cf. Castaneda v. Partida (1977), 430 U.S. 482, 499, 97 S. Ct. 1272, 1282, 51 L. Ed. 2d 498 (court stated "because of the many facets of human motivation, it would unwise to presume as a matter of law that human beings of one definable group would not discriminate against other members of their group"); Eccleston v. Secretary of Navy (D.D.C. 1988), 700 F. Supp. 67, 69 (African-American supervisor discriminated against African-American employee by promoting white employee; court stated "there is no question that a[n African-American] may consciously or unconsciously discriminate against another black and be liable under Title VII").) In this context, Interstate also indirectly raises as error, the ALJ's refusal to allow Interstate's attorney, who also was its owner and president, to testify concerning his state of mind and Interstate's history regarding racial discrimination. While we have no reason to doubt the owner's sincerity and lack of racial animus or bias, his intentions or state of mind would not be dispositive of the facts ofthis case since he did not purport to have involvement in the decision to lay off Brandy. Moreover, even if the owner had participated in the lay off decision, as in fact the African-American vice president had done, such participation, even if itself devoid of racial animus, would not insulate Interstate from liability where that participation merely adopted the recommendation of a racially motivated or biased supervisory employee. See Shager v. Upjohn Co. (7th Cir. 1990), 913 F.2d 398 (Title VII age discrimination case reversing summary judgment to employer; court held company can be liable where personnel committee acted as conduit for supervisory manager's prejudice and discriminatory actions).
The ALJ and the Commission found Brandy's evidence more credible and determined that Brandy had proved racial discrimination by a preponderance of the evidence. While the evidence does not overwhelmingly compel such an ultimate finding, that is not the standard for review. It is not our function to retry the case or to second guess the Commission. If there is any evidence to support the Commission's findings and decision, it must be affirmed. Here, while there is some evidence to support a contrary decision, there also is sufficient evidence to support the Commission's decision. Thus, it is not against the manifest weight of the evidence; and we must affirm. [The following material is nonpublishable under Supreme Court Rule 23.]
Interstate next contends that the amount of damages awarded Brandy was erroneous as a matter of law. Interstate argues that Brandy did not submit evidence of what his earnings would have been had he remained at Interstate; failed to submit evidence of what his earnings were after the lay off through the time of hearing; and failed to show his efforts to obtain alternate employment. Interstate also argues that the ALJ and the Commission improperly rejected Interstate's evidence showing the average earnings of all of its employees. Finally, Interstate argues that the award for attorneys' fees and costs was erroneous since Brandy did not prove his case and because the fee petition contained improprieties with respect to lumping of time, lack of detail and excessive conferencing.
Section 8A-104(B) of the Illinois Human Rights Act provides that, upon finding a civil rights violation, a hearing officer may recommend and the Commission may provide for relief in the form of actual damages for injury or loss suffered by the complainant. (ISS International Service System, Inc. v. Illinois Human Rights Comm'n; 775 ILCS 5/8A-104(B) (West 1992) formerly Ill. Rev. Stat. 1989, ch. 68, par. 8A-104(B).) It also provides authority to order reinstatement and payment of the complainant's costs of maintaining the action, including reasonable attorney fees. (775 ILCS 5/8A-104(C), (G) (West 1992) formerly Ill. Rev. Stat. 1989, ch. 68, par. 104(C), (G).) The purpose of the award is to make the complainant whole. (775 ILCS 5/8A-104(J) (West 1992) formerly Ill. Rev. Stat. 1989, ch. 68, par. 8A-104(J).) In Clark v. Human Rights Comm'n (1986), 141 Ill. App. 3d 178, 490 N.E.2d 29, 95 Ill. Dec. 556, this court adopted federal decisions for establishing a methodology for setting damages in employment discrimination matters. That court held that in order to make a complainant whole, back pay was to be awarded in the following manner:
"First, plaintiff should advance his theory of likely earnings along with supporting evidential material. If the Commission (or the hearing officer), finds this showing to be reasonable, the burden should shift to the company to show that plaintiff's earnings likely would have been less." Clark, 141 Ill. App. 3d at 185, 490 N.E.2d at 35.
Where a precise amount cannot be determined, ambiguities should be resolved against the discriminating employer, since the employer's wrongful act gave rise to the uncertainty. Clark v. Human Rights Comm'n; see Chas. A. Stevens & Co. v. Human Rights Comm'n (1990), 196 Ill. App. 3d 748, 554 N.E.2d 976, 143 Ill. Dec. 904 (age discrimination).
Here, Brandy presented proof that at the time of his lay off he was paid $9.23 per hour. The ALJ multiplied this hourly figure by 40 hours per week and concluded that Brandy would have earned $62,530 from the time of his lay off until the date of the hearing. He then subtracted Brandy's actual earnings during that time ($10,303.65). Although the remainder totalled $52,226.35, the ALJ entered a back pay award of $44,345 because Brandy stipulated in a joint pre-hearing memorandum that the amount of $44,345 was his maximum potential back pay relief. In making this determination, the ALJ rejected a formula presented by Interstate which was based on the average income of all of Interstate's employees, excluding clericals, management and mechanics, for the years 1986, 1987, 1988 and 1989. The ALJ found that this analysis did not reflect the average income of an employee with an employment profile similar to Brandy's and because the yearly averages were skewed by their reflection of salary lengths of employees who had quit or were fired. The ALJ concluded that Interstate did not meet its burden of showing that the complainants earnings likely would have been less than the $44,345. Finally, the ALJ rejected Interstate's argument that Brandy failed to mitigate his damages by seeking alternate employment.
We do not believe the ALJ's award of back pay damages was erroneous. Brandy presented evidence of his wages at the time he was hired and at the time he was laid off. The burden was on Interstate to show that Brandy's earnings likely would have been less. This Interstate did not do. As noted above, Interstate presented calculations that were far too global and skewed. Any ambiguity as to the precise calculations of Brandy's back pay had to be resolved against Interstate, the discriminating employer. (Clark v. Human Rights Comm'n.)
We further note that, while Brandy was required to make reasonable efforts in seeking subsequent employment, Interstate had the burden to prove that Brandy did not do so. (Chas. A. Stevens v. Human Rights Comm'n; see ISS International Service System, Inc. v. Illinois Human Rights Comm'n.) The ALJ concluded that Interstate did not submit any persuasive evidence to discredit Brandy's mitigation, and this determination was not against the manifest weight of the evidence. See Chas. A. Stevens v. Human Rights Comm'n.
With respect to the award of attorneys' fees and costs, we first note that Interstate has not supported this contention with detailed argument or citation to authority and is thus in violation of Supreme Court Rule 341(e)(7) (157 Ill. 2d R. 341(e)(7)). (See In re Estate of Sewart (1st Dist. June 23, 1995), No. 1-93-2618, slip op. at 4; Bank of Illinois v. Thweatt (1994), 258 Ill. App. 3d 349, 630 N.E.2d 121, 196 Ill. Dec. 424 (issue waived when failure to argue or cite to authority).) In addition to this procedural shortcoming, Interstate's contention fails on its merits as well. A reviewing court will not vacate an award of attorneys' fees absent a showing of abuse of discretion. Bellwood Board of Fire & Police Commissioners v. Human Rights Comm'n.
We reject outright Interstate's first contention, that Brandy was not entitled to attorneys' fees and costs because he did not prevail on his discrimination claim, since that contention is baseless and Brandy has succeeded in his discrimination claim. As to Interstate's second contention that the fee petition contained improper lumping of time, lack of detail and sought reimbursement for excessive conferencing, we note that these same arguments were made before the ALJ and the Commission and were rejected.
The ALJ found that Interstate did not submit counter-affidavits or any evidence in support of its objections to Brandy's fee petition and failed to point to any specific examples of lack of detail. The ALJ concluded that the entries in the fee petition wherein a "lumping" of functions occurred were sufficiently detailed and reasonable. With respect to the conferencing objection, the ALJ found that the case required extensive discovery requests and involved complex factual and evidentiary issues which necessitated frequent discussions among counsel. He concluded that the conferencing between Brandy's attorneys was entirely reasonable.
We believe the ALJ was in the better position to review the fee petition and determine the reasonableness of the entries therein. We believe the ALJ made a sufficiently thorough review of the fee petition as further evidenced by his rejection of certain entries that were not objected to by Interstate. The ALJ independently rejected certain requests which he found to be duplicitous or which could have been performed by clerical staff. The Commission agreed with the ALJ's award of attorneys fees and costs and found it to be reasonable. We find no abuse of discretion in that determination.
Interstate's final argument on appeal is that the Commission erred in failing to impose sanctions against Brandy and Thomas when, on the eve of hearing, Brandy withdrew his retaliation charge and Thomas withdrew his entire complaint. Initially, we note, again, the absence of citation to authority by Interstate in support of this argument and the resultant violation of Supreme Court Rule 341(e)(7) (157 Ill. 2d R. 341(e)(7)). See In re Estate or Sewart; Bank of Illinois v. Thweatt (failure to cite to authority results in waiver of error).
The bases for the retaliation claims stemmed from wage deductions made by Interstate from Thomas' and Brandy's final paychecks. Thomas and Brandy alleged in their complaints filed with the Human Rights Commission in May of 1987 that these deductions were made by Interstate in retaliation for their complaints of discriminatory treatment. One week prior to the hearing before the Human Rights Commission, Brandy was granted leave to file an amended complaint which deleted his retaliation claim. On the morning of the hearing, Thomas moved to voluntarily dismiss his entire complaint. At that time, Thomas stated that he did not wish to pursue his claim because his damages were nominal and he did not want to take time off from his job to attend the hearing. Thomas' case did not go to hearing and Interstate subsequently filed motions for sanctions against both complainants.
Section 8A-102(I)(5) of the Human Rights Act provides that:
"A recommended order dismissing a complaint may include an award of reasonable attorneys fees in favor of the respondent if the hearing officer concludes that the complaint was frivolous, unreasonable or groundless or that the complainant continued to litigate after it became clearly so." (775 ILCS 5/8A-102(I)(5) (West 1992) formerly Ill. Rev. Stat. 1989, ch. 68, par. 8A-102(I)(5).)
Pursuant to this provision, Interstate sought sanctions against Brandy contending that his retaliation charge was frivolous; that Brandy could have determined the reason for the wage deduction with little effort; and that Brandy should have withdrawn the retaliation claim much earlier in the proceedings. (The wage deduction was made for union dues based on Brandy's authorization given to Ebony Construction Company, Brandy's previous employer which was owned by the same individuals who owned Interstate.) The ALJ denied Interstate's request for sanctions against Brandy finding in his interim recommended order and decision:
"While the Complainant admits that he was a member of Allied [the union], he joined that union while employed by Ebony, a job which he held before going to work for Interstate. However, once Complainant left Ebony and started his employment with Interstate, he never knew that Interstate and Ebony were owned by the same person or that Interstate had authority to deduct union dues based on an agreement with Ebony. While the Respondent vehemently argues that the Complainant knew or should have known this, the record fails to reflect that the Complainant ever signed any union authorization card for the deduction of dues while employed by Interstate.
Therefore, when Interstate withheld union dues from the Complainant's paycheck after he was terminated, it was not unreasonable for him to believe that the Respondent was acting in retaliation against him for having filed a charge of discrimination." (Emphasis original.)
This recommended order was affirmed and adopted by the Commission.
Where there is sufficient proof in the record to support a conclusion that the claim was not frivolous, unreasonable or groundless, the decision to deny sanctions pursuant to section 8A-102(I)(5) of the Human Rights Act will be affirmed. (See Pepsi-Cola General Bottlers, Inc. v. Illinois Human Rights Comm'n (1985), 137 Ill. App. 3d 288, 484 N.E.2d 538, 92 Ill. Dec. 23 (citing former codification at Ill. Rev. Stat. 1983, ch. 68, par. 8-106(F)(5)).) Here the record supports the conclusion of the ALJ. At trial, Interstate introduced into evidence one of Brandy's interrogatory answers in which he stated that he was not represented by a union while he worked at Interstate and that he was not told or aware of any requirement to pay union dues while at Interstate. There was no evidence that Brandy had signed a union dues authorization card while he was employed by Interstate. As further evidence of Brandy's lack of knowledge concerning the union's representation at Interstate was Brandy's testimony that he questioned the union's status at the time he filed his charges with the Department of Human Services. Moreover, although we believe there is ample evidence to support the ALJ's conclusion, we also note that, when Brandy withdrew the retaliation claim, his complaint against Interstate remained viable because of Brandy's racial discrimination claim which was successful on the merits.
With respect to Thomas, Interstate first argues that his complaint was frivolous because it was voluntarily dismissed without hearing. The ALJ rejected this contention finding that Thomas' claims were not frivolous since they were identical in time and substance to Brandy's claims. The ALJ concluded that, since the record supported Brandy's discrimination claim, Thomas' claim also would have been sustained had it gone to hearing. (See Alexander v. Fair Employment Practices Comm'n (1980), 83 Ill. App. 3d 388, 403 N.E.2d 1271, 38 Ill. Dec. 667 (similar conduct by an employer in dealing with another employee involved in the same dispute is relevant to instant employee's action).) With respect to the retaliation claim, the ALJ found evidence to support "a reasonable belief that Interstate had no authority to withhold any dues from either Complainant," and, "therefore, *** Thomas did not bring his claim of retaliation frivolously." The Commission affirmed the ALJ and found that the denial of sanctions was not an abuse of discretion. As these conclusions are supported by the record, they will be affirmed.
Interstate next argues that Thomas' complaint was frivolous because Thomas' answers to certain interrogatories reflected an absence of damages. Initially, we note that those interrogatory answers were not included in the record on appeal. Although Interstate argued in its motion for sanctions that Thomas did not sustain any damages, Interstate did not specifically refer to Thomas' interrogatory responses nor did it attach copies of those responses to its motion for sanctions or to the memorandum in support of its motion filed with the Commission. This court denied Interstate's motion to supplement the record with those documents because Interstate had not filed them with the Commission as it was required to do in accordance with section 5300.725 of chapter 56 of the Illinois Administrative Code (56 Ill. Admin. Code § 5300.725 (1992)). *fn4 Thus, the interrogatory answers dehors the record; and Interstate is barred from relying on them to substantiate its appellate argument. *fn5
Even were we to consider this contention on its merits, we note that Thomas' decision to voluntary dismiss his action was not premised on a belief that he had no damages but, rather, that his damages were nominal and that he did not wish to absent himself from his job in order to attend the lengthy hearing that was anticipated. In the joint pre-hearing memorandum submitted by Brandy, Thomas and Interstate, Thomas contended that his maximum potential for damages was $2,957.48 plus attorneys fees and costs. Moreover, in accordance with section 8A-104 of the Human Rights Act, when a party has successfully proved a civil rights violation, the Commission "may provide for any relief or penalty identified in this Section, separately or in combination." (775 ILCS 5/8A-104 (West 1992) formerly Ill. Rev. Stat. 1989, ch. 68, par. 8A-104(B).) That relief includes entry of a cease and desist order against the employer; submission of compliance reports; payment of actual damages sustained by the complainant; reinstatement; payment of back pay; and partial or full payment of the costs of maintaining the action. Since the relief that can be recommended by the Commission is not limited to an award for back pay, a complainant's inability to establish wage loss would not prevent other forms of relief from being ordered.
As noted above, there appears to be sufficient support in the record for the Commission's determination that, based upon Brandy's success, Thomas would have succeeded in proving his discrimination claim as well. If successful, Thomas would have been entitled to any of the various forms of relief enumerated in section 8A-104 of the Human Rights Act; and the complaint could not be considered frivolous. Thus, the denial of sanctions to Interstate was not an abuse of discretion. [The preceding material is nonpublishable under Supreme Court Rule 23.]
For the foregoing reasons, the order and decision of the Human Rights Commission is affirmed.
COUSINS, Jr., P.J., and McNULTY, J., concur.