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Webb v. Lustig

September 08, 1998


McCullough, J., Cook and Green, JJ., concur.

The opinion of the court was delivered by: Justice McCULLOUGH

Administrative Review of the Human Rights Commission

No. 1996SF0536

Petitioner Jamelle Webb brings this direct review of an order of Jacqueline Lustig, chief legal counsel (Chief Counsel) of the Illinois Department of Human Rights (Department), sustaining the Department's dismissal of petitioner's charges against Mason County Service Company (respondent) of unlawful discharge from employment based on her sex and as retaliation. 775 ILCS 5/8-111(A)(1) (West 1996); 155 Ill. 2d R. 335.

The issues are whether (1) the Department and the Chief Counsel used the correct legal standard for determining whether petitioner offered sufficient substantial evidence to justify the issuance of the complaint; (2) the Department and the Chief Counsel erred in failing to consider the definition of sexual harassment contained in the Illinois Human Rights Act (Act) (775 ILCS 5/2-101(E) (West 1996)) in evaluating petitioner's discharge for retaliation claim; and (3) the dismissal of the claims relating to discharge from employment violated petitioner's right to due process under the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2). We affirm.

Petitioner's charge of discrimination (Illinois Department of Human Rights No. 1996SF0536) alleged she was hired on June 20, 1995, and discharged from her bookkeeper/secretary position on January 18, 1996; from August 1995 to January 1996, she was sexually harassed by plant manager Kenny Brown and Mike Hudgins, in and away from the workplace; and the general manager told her she was being discharged because it was just not working out and Brown did not believe their relationship could ever be restored. In support of her claims for having been sexually harassed, discriminated against because of her sex, and retaliated against for opposing unlawful discrimination, petitioner further alleged there were no complaints about her job performance; the sexual harassment included disgusting remarks asking her about her breasts and tan legs; she objected to these comments and refused offers to drink beer with Hudgins; after Hudgins made sexually derogatory remarks to her and her boyfriend at the Havana Octoberfest, his behavior worsened and she reported him; although she complained to her supervisor, Darrell Batley, by mid-November 1995 her work environment became extremely hostile; on December 26, 1995, Hudgins and three other employees threw the shop phone at her; a dead mouse was placed in her desk drawer; Brown ignored her and refused to answer questions; she contacted Batley again, and he said he would talk to Brown, but he did not; and upon discharging her, Batley said he was sorry it had to end that way.

In its verified response, respondent employer admitted the dates of hire and discharge, stated petitioner was discharged for poor perfor- mance and for improperly performing her job duties, and denied the rest of petitioner's allegations.

On February 21, 1997, Rose Mary Bombela, Department Director, issued a notice of substantial evidence and a notice of dismissal. There was a finding of substantial evidence to support the allegations of sexual harassment and harassment based on petitioner's sex. The charges of discharge based on sex and discharge based on retaliation were dismissed. Petitioner was advised she could appeal to the Chief Counsel and, if an Equal Employment Opportunity Commission (EEOC) number had been assigned to the case, she could request EEOC to perform a substantial weight review of the dismissal. Petitioner's claim had been assigned EEOC No. 21B961513. The record does not indicate whether a substantial weight review was initiated by petitioner.

The investigative report found the followiong as uncontested facts: petitioner (a) was hired on June 20, 1995, as a bookkeeper/secretary; (b) worked with Brown and Hudgins on a daily basis; (c) met with Batley in November 1995 to discuss her job performance; (d) received a 75›-per- hour raise in November 1995; and (e) was discharged on January 18, 1996. With regard to sexual harassment, substantial evidence was found for the following reasons:

"1. Complainant refers to incidents in which members of management made comments of a sexual nature of which Complainant considered to be offensive. That Complainant worked in this office environment and found it difficult to perform her duties. That such comments continued throughout Complainant's employment.

2. That Complainant reported to management that she wanted the comments and behavior stopped. That she also objected to such behavior verbally, but the comments and behavior continued despite her objections. That Respondent failed to take the appropriate action necessary to provide an environment free of sexual harassment."

With regard to harassment based on sex, substantial evidence was found because:

"1. The evidence shows that during Complainant's employment certain things were done to her that may be construed as harassment. Listening to telephone conversations, asking questions of a personal nature and going through one's ...

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