Zunino v. Cook County Comm'n on Human Rights

                                             FOURTH DIVISION
                                             JUNE 19, 1997












No. 1-96-0055


LUIS ZUNINO,                            )  Appeal from the
                                        )  Circuit Court of
               Plaintiff-Appellant,     )  Cook County.
                                        )
v.                                      )  
                                        )  No. 95 CH 754
COOK COUNTY COMMISSION ON  HUMAN RIGHTS )
and DHL AIRWAYS, INC., An Illinois      )
Corp.,                                  )  Honorable
                                        )  John K. Madden,
               Defendants-Appellee.     )  Judge Presiding.
               


     JUSTICE CERDA delivered the opinion of the court: 
                                   
     Plaintiff Luis Zunino filed an employment discrimination
complaint with defendant the Cook County Commission on Human
Rights (Commission) against defendant DHL Airways, Inc. (DHL),
alleging that DHL discharged him because of his sexual
orientation in violation of the Cook County Human Rights
Ordinance (Ordinance).  After a fact-finding conference, the
Commission dismissed plaintiff's complaint, finding no
substantial evidence of a violation of the Ordinance, and
subsequently denied his request for a rehearing.  Plaintiff then
petitioned the circuit court for certiorari.  After review of
memoranda and after hearing arguments of counsel, the court
denied the petition.  Plaintiff contends on appeal that the
Commission abused its discretion in dismissing his complaint
without a hearing, that the circuit court abused its discretion
in dismissing his petition for certiorari, and that both the
Commission and the court applied an erroneous standard by
requiring plaintiff to rebut DHL's proffered nondiscriminatory
reason for discharging plaintiff.
     The record establishes that plaintiff was employed by DHL in
November 1983, promoted to lead courier in 1985, and promoted to
airport supervisor in 1988.  He was discharged from DHL on
September 3, 1993, for tape recording a conversation with Dale
Balogh, DHL's station manager, without Balogh's consent or
knowledge, which was a violation of company policy as set forth
in the employee handbook and human resources guide.  Plaintiff
filed a complaint with the Commission on January 22, 1994,
alleging that DHL became aware of his sexual orientation in
September 1991 when a DHL employee informed several other
employees.  He also alleged that in November 1991, during an
investigation of a sexual harassment complaint filed against DHL
employee John Perham, Balogh asked Perham if plaintiff was his
lover, to which Perham responded negatively, stating he did not
know plaintiff's sexual orientation.  Plaintiff alleged that
Balogh began to harass him beginning November 1, 1992, that DHL's
stated reason for the discharge was pretextual, and that DHL
discriminated against him because of his sexual orientation.     
     The Commission staff conducted an investigation and
interviewed seven witnesses.  A fact-finding conference was also
held on May 31, 1994.  On August 11, 1994, the staff issued an
11-page investigation report concluding the following.  Plaintiff
contended he was discharged because of his sexual orientation. 
DHL contended plaintiff was discharged because he violated the
written policy prohibiting any employee from tape recording a
supervisor or fellow employee without his consent.  The recorded
conversation between plaintiff and Balogh was not preceded by a
request for permission to record or a consent by Balogh, and
plaintiff provided no documentation or evidence to support his
contention that Balogh consented to his tape recording.  In
addition, plaintiff did not provide any evidence that DHL's
reason for discharging him was pretextual or that he was
discharged because of his sexual orientation.  
     The report noted that DHL had an equal opportunity
employment policy expressly setting forth equal opportunity
without regard to, among other things, sexual orientation.  DHL
also provided a list of 10 similarly situated DHL employees who
were discharged for specific rule violations and indicated that
similarly situated nonhomosexual employees were discharged for
violations of company policy on unacceptable behavior.  One
employee was discharged on February 18, 1994, for the same
violation for which plaintiff was discharged.  
     Statements from witnesses revealed a dispute of fact about
whether and when DHL was aware of plaintiff's sexual orientation. 
Plaintiff alleged DHL became aware on September 1, 1991.  But the
investigation revealed that DHL gave plaintiff favorable comments
and several commendations for his work performance before and
after September 1, 1991, and that DHL was consistent in
evaluating plaintiff's strengths and weaknesses both before and
after that date.  Based on the result of the investigation, the
Commission staff recommended a finding of lack of substantial
evidence.
     Subsequently, the Commission issued an order dated August
17, 1994, stating that it had not found substantial evidence of a
violation of the Ordinance and that dismissal of plaintiff's
complaint was proper pursuant to the Ordinance and section
400.210 of the Commission's rules.  Interim Rules Governing the
Cook County Human Rights Ordinance (Interim Rules), section
400.210, effective May 21, 1993.  On September 13, 1994,
plaintiff filed a request for reconsideration of the Commission's
order.  On December 27, 1994, the Commission denied that request,
stating that the request for reconsideration was, for the most
part, a reargument of facts and issues previously considered by
the Commission during the investigation.  In addition, plaintiff
did not support his allegations that a mistake of fact or law was
made in the investigation or that there was new legal precedent
which would alter the finding of no substantial evidence.
     Plaintiff then filed in the circuit court of Cook County a
complaint entitled "Administrative Review - Writ of Certiorari." 
Defendant Commission moved to strike the pleading pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 1994)), asserting that the statutory cause of action in
administrative review and common law certiorari are mutually
exclusive proceedings and that the Ordinance provides for review
of the final decision of the Commission through a petition for
certiorari.  The circuit court granted the Commission's motion. 
After the parties filed memoranda regarding plaintiff's petition
for certiorari, the circuit court held a hearing and then issued
an order on November 22, 1995, denying the petition.  The court
found that the Commission's findings of fact were supported by
evidence in the record, plaintiff failed to rebut the legitimate,
nondiscriminatory reason given by DHL for his discharge, and the
Commission's standard was not arbitrary, capricious or an abuse
of its discretion.
     Plaintiff contends that the Commission abused its discretion
in dismissing his complaint without a hearing and that the
circuit court abused its discretion in dismissing his petition
for certiorari.  Like the parties, we have found no authority
interpreting a case brought pursuant to the Ordinance.  But the
Commission is authorized to look for guidance to decisions
interpreting other relevant laws.  Interim Rules, section
700.140.  Thus, by analogy we look to precedent interpreting the
Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 1994). 
     Plaintiff contends that the standard of proof at the
investigatory stage for the Ordinance is lower than that
necessary under the Illinois Human Rights Act (735 ILCS 5/7A-
102(D)(2)(West 1994)(authorizing dismissal of a complaint upon a
determination of "no substantial evidence")).  The Interim Rules
state that the Commission's staff shall review the evidence in an
investigation report, make evidence determinations, and "in the
event that a complaint is dismissed upon a determination of lack
of substantial evidence," send all parties an order dismissing
the complaint.  Interim Rules, section 400.210(a)-(c).  If "more
than a scintilla of evidence" of an Ordinance violation is found,
the Commission staff must advise the parties of the "substantial
evidence" determination.  Interim Rules, section 400.210(d).  
     It seems evident from a plain reading of the Interim Rules
that the meaning of the terms "more than a scintilla of evidence"
and "substantial evidence" is interchangeable, and we find no
lower evidentiary standard for establishing a claim under the
Ordinance.  See also Metro Utility v. Illinois Commerce Comm'n,
193 Ill. App. 3d 178, 184 (1990) ("substantial evidence" consists
of "more than a mere scintilla" but may be somewhat less than a
preponderance).   
     In reviewing the Commission's decision to dismiss a
complaint for lack of substantial evidence, the court must
determine if the Commission's action was arbitrary or capricious
or an abuse of its discretion.  Peck v. Department of Human
Rights, 234 Ill. App. 3d 334, 337 (1992); Luckett v. Human Rights
Comm'n, 210 Ill. App. 3d 169, 180-81 (1989); Sanders v. United
Parcel Service, 142 Ill. App. 3d 362, 365 (1986).  In a common
law certiorari proceeding, substantially the same standard, the
trial court must determine from the record whether there is any
evidence to support the order being reviewed and can reverse it
only if it is manifestly against the weight of the evidence. 
Nowicki v. Evanston, 62 Ill. 2d 11, 15 (1975); Jones v. Lazerson,
203 Ill. App. 3d 829, 834 (1990). 
     In analyzing employment discrimination claims under the
Human Rights Act, Illinois courts use a three-part analysis.  See
Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178-79
(1989).  First, a plaintiff must establish a prima facie case of
unlawful discrimination, which raises a rebuttable presumption
that the employer discriminated.  The plaintiff's burden of
establishing a prima facie case of discrimination includes a
showing that he is a member of a group protected by law, that he
was treated in a certain manner by the employer, and that he was
treated differently than a similarly situated employee who is not
member of the protected group.  Motley v. Human Rights Comm'n,
263 Ill. App. 3d 367, 372 (1994).  Then, to rebut the presumption
of discrimination, the employer must "articulate, not prove" a
legitimate, nondiscriminatory reason for its decision.  Zaderaka,
131 Ill. 2d  at 179.  When the employer carries that burden of
production, the presumption of discrimination falls, and the
plaintiff must then prove by a preponderance of the evidence that
the employer's articulated reason was not true but pretextual. 
Zaderaka, 131 Ill. 2d  at 179.
     Plaintiff contends that the Commission and the circuit court
both erroneously applied the three-part analysis set out in
Zaderaka, arguing that only the first part, establishing a prima
facie case, should be applied at the investigatory stage.  A
conflict of authority exists on this point.  Compare Whipple v.
Department of Rehabilitation Services, 269 Ill. App. 3d 554, 556-
57 (1995) (applying only the prima facie test) to Luckett, 210
Ill. App. 3d at 180-81; Motley, 263 Ill. App. 3d at 371-72; Peck
v. Department of Human Rights, 234 Ill. App. 3d 334, 336-37
(1992) (utilizing the burden shifting analysis).  Thus, we do not
agree with plaintiff that it was "clearly" not his burden to
rebut DHL's legitimate, nondiscriminatory reason for his
discharge.  In any event, under either standard, we find no
error.  The order finding no substantial evidence of a violation
was based on an investigation, including interviews with seven
witnesses, and a fact-finding conference.  DHL denied that it had
discharged plaintiff because of his sexual orientation and stated
his discharge was for a violation of written company policy
forbidding tape recording of a supervisor or other employee
without his consent.  DHL, which had an equal employment
opportunity policy, presented evidence that it discharged 10
employees with a similar or higher grade level than plaintiff for
violations of policy of unacceptable behavior, and discharged
similarly situated nonhomosexual employees for violations of
policy regarding unacceptable behavior, one for the same
violation for which plaintiff was discharged.  Balogh, the
subject of the tape recording, denied consent to or any knowledge
of the tape recording, and plaintiff provided no documentation or
other evidence to support his claim that his supervisor consented
to the tape recording.  Nor did plaintiff establish that DHL's
articulated reason for discharging him was pretextual or that he
was discharged because of his sexual orientation.  Thus, the
Commission correctly concluded that there was no substantial
evidence to sustain plaintiff's action.  And even if only the
prima facie part of the test were applied, plaintiff failed to
establish a prima facie case of discrimination by failing to
establish that he was treated differently than similarly situated
heterosexual employees.  We therefore find that the Commission's
dismissal of plaintiff's claim was not arbitrary, capricious or
an abuse of its discretion.  Whipple, 269 Ill. App. 3d at 559;
Parham v. Macomb Unit School District No. 185, 231 Ill. App. 3d
764, 773 (1992).
     Similarly, we find no error in the circuit court's denial of
plaintiff's petition for certiorari.  The findings of fact were
supported by the evidence in the record.  Nowicki, 62 Ill. 2d  at
15.  Because plaintiff failed to rebut the legitimate
nondiscriminatory reason given and supported by DHL, the
Commission's decision was not arbitrary, capricious or an abuse
of its discretion.  Peck, 234 Ill. App. 3d at 337, 339; Luckett,
210 Ill. App. 3d at 181-83.
     Accordingly, the judgment of the circuit court is affirmed.
     Affirmed.  
     WOLFSON, P.J., and McNAMARA, J., concur.