Roedle v. Midco International

Rule 23 Order filed
March 20, 1998;
Motion to publish granted
April 29, 1998.                NO. 5-97-0481

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

CHARLES J. ROEDL,                  )  Review from the Department
                                   )  of Human Rights.
     Petitioner,                   )
                                   )
v.                                 )  Charge No. 1996SA0695
                                   )
MIDCO INTERNATIONAL, THE DEPARTMENT)
OF HUMAN RIGHTS, and THE CHIEF     )
LEGAL COUNSEL OF THE DEPARTMENT OF )
HUMAN RIGHTS,                      )
                                   )
     Respondents.                  )
_________________________________________________________________

     JUSTICE HOPKINS delivered the opinion of the court:  
     Charles J. Roedl, complainant, appeals from a decision of the
Chief Legal Counsel of the Illinois Department of Human Rights (the
Department) sustaining the Department's dismissal of complainant's
charge of age discrimination against his former employer, Midco
International (Midco), for lack of substantial evidence.  On direct
appeal to this court, pursuant to section 8-111(A)(1) of the
Illinois Human Rights Act (775 ILCS 5/8-111(A)(1) (West 1996)),
complainant argues that the Chief Legal Counsel erred in sustaining
the Department's dismissal because the Department failed to
consider all of the evidence.  We affirm.
                                   FACTS
     On May 10, 1996, complainant filed a charge of discrimination
against Midco, alleging that Midco fired him on March 26, 1996, in
discrimination of his age.  Complainant worked for Midco for 17
years before his termination.  He was 48 years of age when he was
fired.  In his charging form, complainant listed 24 instances where 
his superiors made "negative reference to [his] age."  Complainant
alleged that he had "documented" each of the instances in which
someone negatively referred to his age. 
     On June 13, 1996, Midco filed a verified response to
complainant's charge, denying that it fired complainant on the
basis of his age.
     On February 6, 1997, the Department dismissed complainant's
charge for lack of substantial evidence.  The Department's
investigative report was attached to the notice of dismissal.  The
investigative report sets forth complainant's prima facie case as:
"1. Complainant was 48 years old.  2. Complainant was performing
satisfactorily.  3. Complainant was discharged.  4. Complainant
alleges Respondent does not discharge similarly situated younger
employees."  The Department accepted Midco's defense that
"Complainant was discharged as a result of his explosive temper." 
     The Department listed nine witnesses that the investigator
interviewed personally or by telephone.  The nine witnesses were
all current or former Midco employees whose statements supported
Midco's defense that complainant "had temper outbursts and violent
episodes that were becoming more frequent" and that complainant's
work became less effective as his temper outbursts increased. 
Several of the witnesses stated that they had heard complainant's
superiors make statements about his health but that they had not
heard any derogatory remarks concerning his age.  
     In rebuttal of Midco's defense, complainant asserted that he
was no more volatile than any other employee.  Complainant also
informed the investigator that another employee, Bertha Dobson,
whose age complainant did not know, "was discharged because of her
age."  Complainant did not submit any additional information and
did not submit the "diary" in which, he claimed, he detailed the
negative comments by management regarding his age.    
     Midco claimed in surrebuttal that other employees display
their tempers at the work site occasionally, but "nothing
comparable to Complainant."  Midco also claimed that Bertha Dobson
was not fired due to her age but because she "was reluctant to
learn to use a piece of equipment associated with doing her job." 
     The Department stated that its finding of lack of substantial
evidence was based upon evidence supporting Midco's defense that
complainant had become increasingly combative on the job and that
complainant was aware of the issue created by his temper.  The
Department found that complainant's temper outbursts became more
intense and frequent toward the end of his employment.  The
Department found that other Midco employees occasionally succumbed
to temper outbursts, but never to the extent of complainant's
behavior.  The Department found no evidence to corroborate
complainant's allegations regarding age-related comments.  The
Department concluded that complainant failed to show that Midco's
"articulated reasons for discharge were pretextual."
     On March 13, 1997, complainant filed a timely request for
review of the Department's dismissal of his charge of
discrimination.  In his 16-page argument, complainant argued,
"[M]uch of the information gathered [by the Department] was either
untrue or deliberately distorted to cover up the fact that MIDCO
management repeatedly referred to my age prior to my termination."
Complainant charged that "a complete and thorough investigation was
not conducted."  
     In support of his request for review, complainant submitted
his observations about the evidence and the Department's
investigation.  Complainant did not submit the testimony of any
other witnesses.  Although he frequently referred to the "diary" in
which he documented all of the derogatory comments about his age,
he did not submit the diary or any other exhibits in support of his
argument.  The majority of complainant's argument is devoted to a
discussion of the manner in which others, especially Rick Drumm,
complainant's supervisor and Midco's chief executive officer, acted 
similarly to or worse than complainant.  Complainant's  viewpoint
is that the testimony of the other Midco employees, who testified
favorably for Midco, is not credible.  Complainant argued that the
Department's investigation was not thorough and that if a more
thorough investigation were conducted, the Department would have
known that Midco "deliberately" concealed the age discrimination in
complainant's termination.
     Midco responded:  "The bulk of the material the Complainant
has asserted in support of his Request for Review was not presented
by him to the Department's investigator."  (Emphasis omitted.) 
Midco charged, "It is fundamental that Complainant cannot sit on
his hands during the investigation and wait until the Request for
Review stage of the investigation to disclose his alleged facts and
legal theories."  Midco argued that much of complainant's argument
was irrelevant and did not add anything to his charge of age
discrimination and that the evidence considered by the Department's
investigator was overwhelming.  
     On June 6, 1997, the Chief Legal Counsel sustained the
Department's dismissal of complainant's charge of discrimination. 
The basis for the Chief Legal Counsel's decision was the lack of
substantial evidence.  In support of her order, the Chief Legal
Counsel listed the following findings of fact and reasons:
     "[B]eginning in August 1989, and continuing until the time of
     his discharge, Complainant was repeatedly counseled by [Midco]
     that his behavior was inappropriate.  The investigation
     documents numerous incidents when Complainant was unable to
     control his temper resulting in repeated physical and verbal
     outbursts.  
          *** Because of such incidents, on March 26, 1996,
     Complainant was discharged for his inability to control his
     temper.  The investigation is devoid of evidence that suggests
     that Complainant's age was a factor in [Midco's] discharge of
     Complainant.  Accordingly, Complainant has failed to submit
     sufficient evidence to establish that [Midco's] stated reason
     is pretextual.  
          *** Complainant, in his timely Request for Review, fails
     to present any relevant additional materials in support of his
     position, except to mention a diary in which he has documented
     all incidents of alleged age discrimination committed against
     him by [Midco].  Complainant has not shown good cause why he
     has failed to present this evidence to the investigator
     previously, however, and accordingly, it cannot be considered
     at this time." 
                                 ANALYSIS
     On appeal, complainant argues that the Chief Legal Counsel
erred in sustaining the Department's dismissal of his charge of age
discrimination. Complainant insists that he presented sufficient
evidence to establish a prima facie case of unlawful age
discrimination.  We agree that complainant established his prima
facie case, and we find that both the Department and the Chief
Legal Counsel accepted this as well.
     A prima facie case of age discrimination is established by a
showing, by a preponderance of the evidence, that (1) the
complainant is a member of a protected class (age 40 or over), (2)
he was doing the job well enough to meet his employer's legitimate
expectations, (3) he was discharged or demoted, and (4) the
employer sought a replacement for him.  Southern Illinois Clinic,
Ltd. v. Human Rights Comm'n, 274 Ill. App. 3d 840, 847 (1995).  In
the case at bar, the evidence established that complainant was over
40, that he was doing his job well enough except for his inability
to control his temper, and that he was fired.  There is no evidence
that complainant was replaced, but it is obvious from the record
that both the Department and the Chief Legal Counsel determined
that complainant established a prima facie case of age
discrimination.
     Once a prima facie case of discrimination is established, "a
rebuttable presumption arises that the employer unlawfully
discriminated against" the complainant.  Zaderaka v. Illinois Human
Rights Comm'n, 131 Ill. 2d 172, 179 (1989).  In order to rebut this
presumption, the employer "must articulate, not prove [citation],
a legitimate, nondiscriminatory reason for its decision." 
Zaderaka, 131 Ill. 2d  at 179.  In the case at bar, Midco
articulated its reason in response to complainant's charge:
complainant's frequent, unreasonable temper outbursts. 
     By articulating "a legitimate, nondiscriminatory reason" for
complainant's discharge, Midco "carried its burden of production,"
and the presumption of unlawful discrimination fell.  Zaderaka, 131 Ill. 2d  at 179.  Complainant was therefore compelled to prove by a
preponderance of the evidence that Midco's articulated reason,
complainant's unreasonable temper outbursts, "was not its true
reason[] but was instead a pretext for unlawful discrimination." 
Zaderaka, 131 Ill. 2d  at 179.  Complainant's burden in this regard
was part of his ultimate burden to prove that Midco unlawfully
discriminated against him, which remained with complainant "at all
times."  Zaderaka, 131 Ill. 2d  at 179.  
     Whether Midco's articulated reason for discharging complainant
was pretextual is a question of fact.  Zaderaka, 131 Ill. 2d  at
180.  Thus, the question before this court is whether the Chief
Legal Counsel's finding of no pretext is against the manifest
weight of the evidence.  Zaderaka, 131 Ill. 2d  at 180; 775 ILCS
5/7-101.1 (West 1996).  The function of the Chief Legal Counsel is
the same as formerly assigned to the Human Rights Commission:  "to
determine whether substantial evidence exists to warrant further
proceedings on the charge."  Whipple v. Department of
Rehabilitation Services, 269 Ill. App. 3d 554, 556 (1995).  It is
not the function of the Chief Legal Counsel to resolve questions of
fact which are entirely within the province of the Department. 
Whipple, 269 Ill. App. 3d at 556. 
     The reviewing court cannot reweigh the evidence or substitute
its judgment for the trier of fact, here the Department.  Clyde v.
Human Rights Comm'n, 206 Ill. App. 3d 283, 291 (1990).  "Findings
of fact are entitled to deference, and this is particularly true of
credibility determinations."  Zaderaka, 131 Ill. 2d  at 180.  Since
the Chief Legal Counsel reviewed the Department's findings of fact
and was only to determine if substantial evidence existed to
support complainant's charges, our review is limited to deciding
whether the Chief Legal Counsel's decision dismissing complainant's
charge for lack of substantial evidence is "arbitrary and
capricious or an abuse of discretion."  Marinelli v. Human Rights
Comm'n, 262 Ill. App. 3d 247, 253 (1994).  Our review is of the
Chief Legal Counsel's decision, not the decision of the Department.
Marinelli, 262 Ill. App. 3d at 253.   
     Complainant could have shown that Midco's explanation of why
it fired him was pretextual either directly, by showing that the
discriminatory reason more likely motivated the employer, or
indirectly, by showing that the employer's explanation is not
worthy of credence.  See Southern Illinois Clinic, Ltd., 274 Ill.
App. 3d at 846.  Complainant argues, however, that he "was not
given the opportunity" to prove that Midco's explanation was a
pretext for discrimination.  He bases this argument upon the Chief
Legal Counsel's refusal to consider his "diary."  This argument
must fail.  Complainant never produced the "diary" for either the
Department or the Chief Legal Counsel to review.  Moreover,
complainant never explained why he did not offer the "diary" to the
Department during its investigation or why he did not offer to
supplement the record before the Chief Legal Counsel with the
"diary".  Without some explanation for why complainant previously
omitted the submission of the "diary", the Chief Legal Counsel did
not abuse her discretion in refusing to consider this so-called
evidence.
     The Chief Legal Counsel was empowered to review the
Department's order, any argument or supplemental evidence
submitted, and the results of any additional investigation
conducted by the Department.  Marinelli, 262 Ill. App. 3d at 253;
775 ILCS 5/7-101.1(B) (West 1996).  The Chief Legal Counsel
reviewed the Department's factual findings and determined that
there was no substantial evidence to support complainant's charge
of discrimination.  In making this determination, the Chief Legal
Counsel was required to adopt the Department's factual findings
unless they were against the manifest weight of the evidence.
Marinelli, 262 Ill. App. 3d at 253; 775 ILCS 5/7-101.1(B) (West
1996).  
     The record is clear that there was ample evidence from which
the Department could find Midco's reason for firing complainant to
be legitimate.  The record is devoid of any evidence to support
complainant's argument that Midco's explanation was pretextual.  In
fact, complainant's arguments consist entirely of speculation,
conjecture, and complainant's opinion that the other witnesses were
not worthy of belief.  Thus, the Chief Legal Counsel's decision,
sustaining the Department's dismissal of complainant's charge of
discrimination, was not an abuse of discretion.
     For all the reasons stated, we affirm the decision of the
Chief Legal Counsel dismissing complainant's charge for lack of
substantial evidence.

     Affirmed.

     MAAG, J., and KUEHN, J., concur.