Alcequeire v. Human Rights Comm'n

SIXTH DIVISION
September 19, 1997



No. 1-95-3857

JUDE ALCEQUEIRE, ) Appeal from the
) Illinois Human
Petitioner-Appellant, ) Rights Commission
)
v. )
)
THE HUMAN RIGHTS COMMISSION, )
ILLINOIS DEPARTMENT OF HUMAN RIGHTS, )
COOK COUNTY MANAGEMENT INFORMATION )
SYSTEM, and COUNTY OF COOK, )
)
Respondents-Appellees. )

PRESIDING JUSTICE GREIMAN delivered the opinion of the

court:

Petitioner Jude Alcequeire appeals the dismissal of his
racial discrimination claim by the Illinois Human Rights
Commission (Commission). The sole issue on appeal is whether the
decision of the Commission dismissing petitioner's claim by
reason of a lack of substantial evidence was an abuse of
discretion or arbitrary and capricious. We affirm the
Commission's decision.
Petitioner, a black male, was hired as a computer operator
with the Cook County Management Information System (MIS) on
August 8, 1985, suspended on August 26, 1992, and discharged from
his employment on September 3, 1992. On October 6, 1992,
petitioner filed a charge of discrimination with the Illinois
Department of Human Rights (Department) and alleged
discrimination by being suspended from his job and in retaliation
for filing prior discrimination claims. Petitioner never alleged
discrimination regarding his discharge.
The Department investigated petitioner's claims. The
investigator conducted interviews with seven witnesses and
examined numerous documents relevant to the petitioner's claims.
The investigation report revealed the following uncontested
facts. Petitioner was scheduled to work overtime on August 22,
1992 (Saturday), and August 23, 1992 (Sunday). The purpose of
the overtime work was to generate tax bills. Petitioner
previously had complained that he was not allowed to work as much
overtime as white employees. On August 22, 1992, petitioner's
scheduling supervisor (Eugene Majka) telephoned petitioner's
director (Joseph Yaeger) at home to complain that petitioner was
sleeping on the job and performing poorly by interfering with the
work that was to be generated. On August 23, 1992, director
Yaeger called petitioner and told him not to report to work that
day because of his alleged poor performance, including sleeping,
the previous day (Saturday).
On August 24, 1992, director Yaeger wrote a memo to the
chief administrative officer (Albert Pritchett) requesting
permission to commence termination proceedings against petitioner
"for (1) disrespect and insubordination to supervisors and
management personnel; (2) sleeping on the job; and (3)
threatening violence should he not be given his way." On August
25, 1992, petitioner was informed that he was suspended
indefinitely.
In response to the discrimination charge, MIS asserted that
petitioner was suspended for nonracial reasons. MIS submitted
that petitioner
"had been repeatedly warned about his insubordinate
behavior, his excessive verbal and racial attacks
against his supervisors and managers, his threats and
intimidations of co-workers and of supervisors, as well
as his poor work performance as indicated by his coming
to work on Saturday, August 22, 1992, on an overtime
basis to do very important work and continually
sleeping on the job, which seriously reduced tax bill
production for that day."
The Department interviewed seven witnesses that corroborated
the position taken by MIS about petitioner's work history: (1)
Joseph Yaeger (white), former director of petitioner; (2) Robert
Farrington (white), assistant director of petitioner; (3) Thomas
Ryan (white), clerk and coworker of petitioner; (4) Alfred Orrico
(white), computer operator and coworker of petitioner; (5)
Generall Voker (black and Liberian-American), computer operator
and coworker of petitioner; (6) Mikal Ahmad (black), computer
operator and immediate supervisor of petitioner on date of cause
of petitioner's suspension; and (7) Don Ciesla (white),
operations manager.
All of the witnesses stated that petitioner was always
using racial epithets toward his coworkers, supervisors and
managers. Petitioner's verbal attacks were variously described
as "excessivley aggressive" and "routine." Petitioner referred
to black personnel who disagreed with him as "uncle toms" and to
white personnel as "racists," "fascists" or "imperialists." In
addition, petitioner sometimes delivered his tirades angrily and
in a threatening or intimidating manner.
The interviews further revealed that, over the course of his
employment, petitioner was verbally abusive, disrespectful, and
insubordinate toward supervisors and managers and interpreted
everything he did not like as a racial plot against him.
Petitioner also had been warned orally, written up, and
suspended.
Regarding the day of the incident causing petitioner's
suspension (August 22, 1992), the investigation established that
petitioner spent most of the time sleeping or talking on the
telephone. Supervisors were required to wake up petitioner at
least eight times and petitioner continually went back to sleep.
The investigation report also included letters, memos, and
evaluations from petitioner's personnel file. The written
information documented petitioner's performance and attitude
during his employment with MIS. The documents demonstrate that
petitioner was warned or disciplined about disrespect toward
other personnel, not finishing work assignments without
supervision, verbal abuse of his supervisor, constant bickering
with coworkers, direct threats to hurt a supervisor in front of
coworkers, intimidating supervisors and threatening coworkers.
One letter stated that an employee who was white (Stanley
Szrajer) had been suspended for three days without pay for
sleeping on the job in July 1988.
On August 9, 1994, following its investigation, the
Department recommended a finding of lack of substantial evidence
that petitioner was discriminated against on the basis of race.
Regarding petitioner's claim that he was improperly suspended,
the Department found that the evidence showed that petitioner was
an unsatisfactory employee and had been repeatedly warned that
his inappropriate behavior could result in suspension or
discharge. Regarding petitioner's claim that he was suspended in
retaliation for filing complaints opposing race discrimination,
the Department found that a white employee (Stanely Szrajer) who
had not filed a discrimination charge was suspended for sleeping
on the job and a black employee who had formally complained of
racial discrimination had not been indefinitely suspended. The
Department found that petitioner was suspended for legitimate
reasons and any disciplinary actions taken against petitioner
were for good cause.
On September 12, 1994, petitioner filed a request for review
of the Department's dismissal with the Commission. In response,
the Department did not oppose the request and the Commission
remanded the matter for further investigation. On April 7, 1995,
after conducting a further investigation, the Department again
dismissed petitioner's charge for lack of substantial evidence.
Thereafter, the Department opposed a second request for review
filed by petitioner. On October 6, 1995, the Commission upheld
the Department's decision and dismissed the matter for lack of
substantial evidence.
On appeal, petitioner asserts that the decision of the
Commission is in error. We disagree.
The Illinois Human Rights Act authorizes the dismissal of a
complaint based on a determination of "no substantial evidence."
775 ILCS 5/7A-102(D)(2) (West 1994). The term "substantial
evidence" has been described as "more than a mere scintilla" but
somewhat less than a preponderance. See Metro Utility v.
Illinois Commerce Comm'n, 193 Ill. App. 3d 178, 184 (1990).
Where the dismissal of the charge is based on lack of substantial
evidence, the Commission determines whether there was "enough
evidence to justify the filing of a complaint." Marinelli v.
Human Rights Comm'n, 262 Ill. App. 3d 247, 253 (1994).
We review the decision of the Commission, not the
Department. Marinelli, 262 Ill. App. 3d at 253. In our review
of the Commission's decision to dismiss a complaint for lack of
substantial evidence, we must determine if the Commission's
action was arbitrary or capricious or an abuse of its discretion.
Zunino v. Cook County Comm'n of Human Rights, No. 1-96-0055 (June
19, 1997); Marinelli, 262 Ill. App. 3d at 253.
In analyzing employment discrimination actions brought under
the Illinois Human Rights Act, the Illinois Supreme Court adopted
the three-part analysis enunciated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178-79
(1989). First, the petitioner must establish, by a preponderance
of the evidence, a prima facie case of unlawful discrimination.
Zaderaka, 131 Ill. 2d at 179. Second, assuming that the first
prong has been satisfied, the employer must articulate, not
prove, a legitimate, nondiscriminatory reason for its decision.
Zaderaka, 131 Ill. 2d at 179. The third prong, if reached,
requires proof by the petitioner that the employer's articulated
reason was a pretext for unlawful discrimination. Zaderaka, 131 Ill. 2d at 179.
A conflict of authority exists on whether only the first
prong of the Zaderaka analysis should be considered or whether
the three-part analysis should be applied at this stage in the
complaint's proceeding. Zunino, No. 1-96-0055 (June 19, 1997)
(noted the conflict but did not resolve the issue) (and cases
cited therein); Whipple v. Department of Rehabilitation Services,
269 Ill. App. 3d 554, 556 (1995) (considered only the prima facie
prong) (and cases cited therein). In Whipple, the fourth
district concluded "that a decision of the Commission dismissing
a charge after only investigation by the Department must be based
upon the insufficiency of a prima facie case ***. Going into the
second or third prong of the rule *** would inherently bring into
play a balancing of evidence." Whipple, 269 Ill. App. 3d at 556-
57.
We disagree with the conclusion reached in Whipple and
believe that the Commission's consideration of a dismissal of a
discrimination charge for lack of substantial evidence need not
be restricted to the prima facie prong. See, e.g., Peck v.
Department of Human Rights, 234 Ill. App. 3d 334 (1992); Luckett
v. Human Rights Comm'n, 210 Ill. App. 3d 169 (1989). To hold
otherwise 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.
In the present case, the Commission reached the second and
third prongs of a discrimination analysis. The Commission
concluded that the evidence established a lack of substantial
evidence to support petitioner's claim that his suspension was
based on race or in retaliation for opposing race discrimination.
We affirm the Commission's decision, finding that the record
overwhelmingly establishes that the actions taken by the employer
were justified by legitimate, nonrace-related reasons.
Petitioner was employed by MIS for seven years and had
accumulated a personnel file filled with examples of petitioner's
inappropriate behavior and poor work. The statements by the
seven witnesses further provided ample evidence of petitioner's
outrageous conduct. To have tolerated petitioner's conduct for
seven years only exemplifies MIS' capacity to endure an employee
who was unable to function in his job and with other personnel.
Affirmed.
THEIS and ZWICK, JJ., concur.