Petition for Review of Order of Illinois Human Rights Department Charge No. 1996 CA 2011 EEOC No. 21B961339
The opinion of the court was delivered by: Justice Galasso
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The complainant, Michelle Anderson, appeals from a final order issued by the chief legal counsel (Chief Counsel) of the Illinois Department of Human Rights (the Department) sustaining the dismissal of a charge she filed with the Department pursuant to the Illinois Human Rights Act (the Act) (775 ILCS 5/1--101 et seq. (West 1996)) against her employer, Modern Metal Products, and Nancy Kolar. On appeal, the complainant raises the following issues: (1) whether the decision to affirm the dismissal of the complainant's charge of discrimination against the employer for lack of substantial evidence was an abuse of discretion; (2) whether the decision to affirm the dismissal of the complainant's charge of discrimination against the employer based upon the complainant's handicap for lack of jurisdiction was an abuse of discretion; and (3) whether the decision to dismiss the complainant's charge of discrimination based upon retaliation against Nancy Kolar for lack of jurisdiction was an abuse of discretion. The Human Rights Commission, originally a party in this appeal, was dismissed as such by order of this court on August 28, 1998.
On February 21, 1996, the complainant filed charges against her employer and Nancy Kolar, a supervisor with the employer. In her charge she alleged that she is a white female, suffering disabilities resulting from work-related injuries. She further alleged that she had been wrongfully disciplined and harassed by her male supervisors because of her sex and disabilities; that she had been unjustly disciplined and suspended for attendance problems while her male co-workers and nondisabled co-workers were not disciplined or harassed for similar attendance records; that she had complained about the discrimination; and that she believed that the employer was trying to have her fired based upon her sex, disabilities, and in retaliation for her justified complaints.
On May 14, 1996, the complainant filed an amended charge against the employer in which she alleged that on November 17, 1995, Nancy Kolar suspended her and that on April 4, 1996, Ms. Kolar threatened to fire the complainant in retaliation for filing the February 21, 1996, discrimination complaint. In that complaint, the complainant alleged that, due to the illness of her daughter, she requested time off under the Family and Medical Leave Act of 1993 (Family and Medical Leave Act) (29 U.S.C. §2601 et seq. (1994)), a federal statute, and that the employer did not treat males or other nondisabled employees who had not filed charges as harshly as she had been treated. The complainant reiterated that she was being harassed and retaliated against in violation of the Family and Medical Leave Act and because of her sex, disability, and prior charges of discrimination. The employer's verified responses to both the charge and the amended charge denied the charges of discrimination and harassment.
On December 4, 1996, following an investigation, the Department dismissed the charge based upon lack of substantial evidence or for lack of jurisdiction. The order did not address the counts of the charge against Nancy Kolar. On January 23, 1997, the complainant filed a request for review by the Chief Counsel of the Department of the decision to dismiss the charges. The request for review was supported by the complainant's affidavit, in which she stated that the Department's investigator had misconstrued or misrecorded facts she had given to him, and that the investigative report was inaccurate in many respects. The complainant further stated that she had numerous medical records to establish her medical condition, that her attorney could obtain medical opinions, and that her disabilities were a handicap or were perceived as one by the employer.
On April 24, 1997, the Chief Counsel issued an order remanding the counts of the charge against Nancy Kolar for further investigation and all other counts against the employer except for the count concerning the Family and Medical Leave Act. On June 26, 1997, following additional investigation, the Department dismissed the counts of the charge against Nancy Kolar for lack of jurisdiction. The remaining counts of the charge against the employer were again dismissed for lack of substantial evidence or lack of jurisdiction. On August 14, 1997, the complainant again requested that the dismissal of the charge against the employer and Ms. Kolar be reviewed by the Chief Counsel. On December 1, 1997, the Chief Counsel issued an order finding that there was no evidence that the complainant was physically handicapped within the meaning of the Act and that Nancy Kolar was not an employer within the meaning of the Act. The order affirmed the dismissal of those charges but remanded the remaining counts of the charge for further investigation.
On December 8, 1997, the Department dismissed all of the remaining counts of the charge against the employer for lack of substantial evidence, except for the count against Nancy Kolar based upon a violation of the Family and Medical Leave Act, which was dismissed based upon lack of jurisdiction. On January 8, 1998, the complainant again requested review of the Department's decision. On May 28, 1998, the Chief Counsel issued an order affirming the dismissal of all the remaining counts. This appeal followed.
The complainant contends, first, that the dismissal of her charge of discrimination for lack of substantial evidence was an abuse of discretion. The complainant argues that the decision to dismiss the charge of discrimination must be based solely on whether there was substantial evidence of a prima facie case.
A reviewing court will not disturb the Chief Counsel's (formerly the Commission's) decision to dismiss a complaint for lack of substantial evidence, unless that decision is arbitrary and capricious or an abuse of discretion. Marinelli v. Human Rights Comm'n, 262 Ill. App. 3d 247, 253 (1994). In Marinelli, this court held that, in considering whether there is substantial evidence to support a charge, the Department is not to resolve credibility issues or questions of fact. Marinelli, 262 Ill. App. 3d at 253.Marinelli was followed in Whipple v. Department of Rehabilitation Services, 269 Ill. App. 3d 554, 556 (1995). The Whipple court set forth the three-prong analysis utilized in considering employment discrimination claims in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), which was adopted by the Illinois Supreme Court in Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178-79 (1989). The first prong of the test is whether a prima facie case of discrimination has been made; the second prong concerns articulation by the employer of a legitimate nondiscriminatory reason for its decision; and the third prong, if reached, requires that the complainant prove that the employer's reason was a pretext and unlawful discrimination existed. Whipple, 269 Ill. App. 3d at 556. The Whipple court concluded that the decision to dismiss a charge after only an investigation by the Department must be based upon the insufficiency of the prima facie case, since going into the second and third prongs of the test would inherently bring into play a balancing of the evidence. Whipple, 269 Ill. App. 3d at 556-57.
Recently, the Appellate Court, Fourth District, reconsidered its decision in Whipple in Webb v. Lustig, 298 Ill. App. 3d 695 (1998) and concluded as follows:
"After reconsidering the Whipple decision, we conclude it no longer correctly states the law. Section 7--102(D) of the Act has been amended since Whipple was decided. The amended statute allows the Department to make findings of fact and Conclusions on all material issues, including credibility. Compare 775 ILCS 5/7A--102(D), 8--103 (West 1996), with Ill. Rev. Stat. 1991, ch. 68, pars. 7A--102(D), 8--103. The consideration of the denial of a charge of lack of substantial evidence need not be restricted to the prima facie prong. [Citation.]" Webb, 298 Ill. App. 3d at 702. See also Alcequeire v. Human Rights Comm'n, 292 Ill. App. 3d 515, 520 (1997), (court rejected the reasoning in Whipple, noting that limiting consideration to the prima facie prong unnecessarily restricts the investigative authority of the Department and the Commission and wastes their limited resources on matters that can be more productively and efficiently handled).
Our decision in Marinelli predated the amendments to the Act considered in Webb. Moreover, we agree with the reasoning set forth in Webb and Alcequeire and hold that the determination as to whether substantial evidence of discrimination exists is not limited to whether or not a prima facie case has been shown by the complainant. Since the investigator was not limited to considering whether the complainant had established a prima facie case, we need not address the complainant's argument that her charge should not have been dismissed, because if the investigator considered the issue of pretext, it necessarily follows that he must have first determined that the complainant had established a prima facie case of discrimination.
We conclude that the Chief Counsel did not abuse her discretion when she affirmed the dismissal of the complainant's charge of ...