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Folbert v. Department of Human Rights

February 01, 1999


The opinion of the court was delivered by: Justice O'mara Frossard

Petition for review of an Order of the chief legal counsel of the Department of Human Rights

Charge No. 1996CA2051

EEOC No. 21B961425

Petitioner, Grette Folbert, appeals from a final order issued by the chief legal counsel of the Illinois Department of Human Rights (Department) sustaining the Department's dismissal of her charge of age discrimination against Courtesy Manufacturing Company (Courtesy) for lack of substantial evidence.

Petitioner filed a two-count charge of discrimination based on her discharge by Courtesy. The first count alleged age discrimination and the second count alleged sex discrimination. The Department's investigator found in her favor on the sex discrimination count, but ruled against her on the age discrimination count. Petitioner appealed from the "lack of substantial evidence" finding on the age discrimination count to the chief legal counsel, who affirmed the investigator's finding and indicated that this determination was a "final order." The final order regarding the age discrimination count is the subject of this appeal.

On appeal, petitioner challenges the constitutionality of recent amendments to the Illinois Human Rights Act (Act)(Pub. Act 89-370, eff. August 18, 1995 (amending 775 ILCS 5/7-101.1) (West 1996))). Under Public Act 89-370, the Department's dismissal of a discrimination claim for lack of substantial evidence is no longer reviewed by the Illinois Human Rights Commission but is now reviewed by the chief legal counsel of the Department. Pub. Act 89-370, eff. August 18, 1995 (amending 775 ILCS 5/7-101.1 (West 1996)). Petitioner also asserts that the chief legal counsel's dismissal of her age discrimination charge for lack of substantial evidence was arbitrary and capricious.


Petitioner was employed at Courtesy from August 1980 until her dismissal on September 22, 1995. At the time of her dismissal, petitioner was 43 years old and a materials manager. Prior to July 1995, petitioner was both an engineering and materials manager and her responsibilities included overseeing how price quotes were generated and cost estimating in support of submitting bids for work.

On February 28, 1996, petitioner filed a two-count charge of age and sex discrimination with the Department against Courtesy. After Courtesy denied petitioner's allegations, the Department conducted an investigation of Courtesy's charges. The Department interviewed several witnesses and reviewed Courtesy's policies and petitioner's work evaluations. During its investigation, the Department considered numerous exhibits which included Courtesy's 1994 equal employment opportunity report; a memorandum regarding petitioner's work performance dated July 19, 1995; petitioner's evaluation for the period of August 8, 1994, to August 7, 1995; Courtesy's written procedure for quote processing; and the termination notices for several employees. In addition, the Department interviewed petitioner; Guy Lombardo, chairman; Brad Enslin, former president; Carl Jelinek, former sales manager; John Curcio, former general manager; and "Confidential Witness A."

Courtesy's employees, whom the Department interviewed, including the company's owner and members of management, reported that in 1995 petitioner began to produce unreliable cost estimates. A memorandum Courtesy submitted to the Department regarding petitioner's work performance discussed how petitioner resisted management's efforts to install the new EZ quote system. The memorandum further reported that petitioner criticized employees responsible for installing the new EZ quote system, undermined management's reliance on the EZ quote system and threatened the success of the system.

Moreover, in the spring of 1995, Guy Lombardo, chairman of Courtesy, stated that petitioner contacted some of Courtesy's competitors about purchasing another company to compete with Courtesy. According to Lombardo, in July of 1995 petitioner's duties as an engineering manager were removed because she presented a poor price quote to one of Courtesy's clients. In September 1995, Lombardo chose to discharge petitioner because, in his opinion, she was untrustworthy. He indicated that some of petitioner's actions appeared questionable, she began to misquote Courtesy's costs for running its presses and she presented varying prices for running the same press. Lombardo further stated that Dawn Schrimsher, who was 13 years older than petitioner, took over petitioner's responsibilities as materials manager.

In rebuttal to Courtesy's witnesses, petitioner denied that she ever attempted to undermine the EZ quote system, but contended that she only expressed an opinion to management that this system would not increase revenue. Petitioner further denied responsibility for producing unreliable or inaccurate quotes. Petitioner claimed that her firing was part of a pattern of discharging older employees. She alleged that John Curio, who was hired as president in 1995, was responsible for a series of dismissals of older employees throughout 1995. Petitioner additionally claimed that Curio replaced her with Derrin Taylor, who was 30 years old. According to petitioner, many of the errors that management blamed petitioner for were in fact committed by Taylor.

Carl Jelinek, a former manager, reported to the Department that petitioner was hard working and a loyal employee. Jelinek believed the petitioner's quotes were outbid because of Courtesy's high gross margin requirement within the quote. Jelinek reported that Lombardo would routinely pressure his employees until they resigned to lower the payroll. Jelinek, however, did not believe that petitioner was discharged because of her sex or age. The Department further interviewed "Confidential Witness A." This witness stated that she had no evidence that petitioner's age was a factor in her dismissal. However, this witness reported that she overheard John Curio, the former president of Courtesy, tell petitioner that she had too much power in the company for a woman. Witness A believed that Courtesy's reasons for discharging petitioner were pretextual.

On January 16, 1997, the Department concluded that there was a lack of substantial evidence to support petitioner's age discrimination charge and thus dismissed it. However, the Department concluded that there was substantial ...

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