Kalush v. Dept. of Human Rights

THIRD DIVISION
August 19, 1998

No. 1-97-2771

MARGARET KALUSH, )
)
Petitioner, ) Petition for Review of
) Order of Illinois
v. ) Department of Human
) Rights.
ILLINOIS DEPARTMENT OF HUMAN )
RIGHTS CHIEF LEGAL COUNSEL, )
ILLINOIS DEPARTMENT OF HUMAN ) Charge No. 1996CA3114
RIGHTS, and DELUXE CORPORATION, )
)
Respondents. )

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

Margaret Kalush, the petitioner, filed an age discrimination
charge with the Illinois Department of Human Rights (the
Department) after being terminated by her employer, Deluxe
Corporation (Deluxe). The Department conducted an investigation
and dismissed petitioner's charge finding a lack of substantial
evidence. That dismissal was affirmed by the Chief Legal Counsel
of the Department and the petitioner seeks judicial review of
that order. 775 ILCS 5/7-101.1, 8-111(A)(1) (West 1996). On
appeal, Kalush contends that the Chief Legal Counsel abused her
discretion by failing to further investigate her charge and in
sustaining the Department's dismissal of her charge. For the
reasons discussed below, we affirm.
FACTS
Petitioner alleged in her employment discrimination charge,
filed with the Department on June 20, 1996, that she began
employment with Deluxe, a company which produces checks and other
business forms, in 1973 as an order entry clerk. At the time of
her discharge she was employed as a department manager. The
petitioner alleged that she was discharged on January 31, 1996 at
the age of 42. She stated that during the course of her
employment she had received "exemplary performance reviews, and
was otherwise discharging all of her responsibilities in an
appropriate fashion at the time of her discharge." The
petitioner alleged that she was replaced by an existing employee,
Cheryl Thompson, who was believed to be under the age of forty.
Petitioner further alleged that she was more experienced than
Thompson and better qualified. She contended that Deluxe's
termination of her employment constituted age discrimination in
violation of section 2-102(A) of the Illinois Human Rights Act
(775 ILCS 5/2-102(A) (West 1994)).
Deluxe filed a verified response to Kalush's charge on
August 15, 1996. In that response, Deluxe asserted that Kalush's
employment was terminated due to "unsatisfactory performance."
Deluxe denied that Kalush was performing her job responsibilities
appropriately at the time of her discharge. It stated that on
September 6, 1995 Kalush had been placed on a 90-day warning
after being informed by Bernie Sponsel, facility manager, and
Barbara Lee, production manager, that she (Kalush) was not
performing the basic responsibilities of her job. According to
Deluxe, Kalush received progress reviews at 30-day intervals
thereafter. On October 3 and 5, 1995, Kalush was advised that
her performance continued to be unsatisfactory; on November 9,
1995, Kalush was reminded of areas where her performance needed
improvement; and on December 6, 1995, Kalush's managers
acknowledged improvement but pointed out areas of concern and
extended the warning period an additional five weeks. On
December 27, 1995 Kalush was advised that her improvement had not
been consistent, that she continued to not meet the requirements
of her job, and that she would be permitted to apply for other
posted job openings within the company or be terminated.
Deluxe's response further stated that Kalush never received
an "exemplary" performance review and that her review ratings
ranged from "High Expected" to "Probationary." Deluxe stated
that it originally replaced Kalush with Dennis Fisher, age 46,
who later was replaced by Cheryl Thompson, age 35. According to
Deluxe, Thompson's performance ratings as a department manager
during the period relevant to the charge were "Excellent" or
"High Excellent." Deluxe stated that Thompson was better
qualified for the position of department manager than Kalush.
Deluxe also stated that at the time it terminated Kalush it
terminated another department manager, Thomas Klimczak, age 38,
for reasons similar to those that existed as to Kalush.
Following receipt of Kalush's charge and Deluxe's response,
the Department conducted an investigation. The Department
obtained copies of performance reviews for Kalush from September
6, 1995 to the date of her termination as well as copies of
reports prepared by Sponsel documenting meetings he and Lee had
with Kalush concerning her job performance. In his September 6,
1995 report, Sponsel stated that he and Lee informed Kalush that
she was not meeting the minimum requirements of or the minimum
time requirements for coaching/counseling and "D.P.M.S."
reviews,[fn1] a basic job function of a department manager.
Kalush was told that she was not effectively recognizing and
addressing employee performance issues and problems and was not
engaging in effective problem solving/follow-up for those
situations. Kalush was advised that she exhibited very low skill
level in the areas of human relations, communications, planning,
problem solving/decision making and leadership. Kalush was told
that she needed to exhibit improvement during the next 90 days in
the following areas: updating production and job standards;
updating coaching/counselling and D.P.M.S. reviews; and updating
and sharing with department employees information relative to
department accuracy and front-end billing errors. Kalush also
was told that at the conclusion of the 90-day warning period she
would be told whether she would continue at Deluxe as a
department manager.
In a report dated October 3, 1995, Sponsel stated that he
and Lee conducted a formal performance review of Kalush. They
discussed with Kalush the need to develop better productivity
standards for her employees; to provide good employee feedback
for improvement; to cross-train employees and eliminate overtime;
to develop independent thinking and cooperation among the
employees in her department; and to be proactive in providing
career counseling to her employees. Sponsel stated that Kalush
"knows where she stands regarding coaching, counseling and
D.P.M.S. based on previous conversations." He stated that Kalush
lacked people development skills and was too tolerant of lack of
employee performance. He stated that he and Lee discussed with
Kalush their concern about her future as a manager.
In a report dated November 11, 1995, Sponsel stated that he
and Lee met with Kalush for the 60-day warning period review.
Lee reviewed Kalush's coaching/counseling and D.P.M.S. records
and advised Kalush that her documentation of conversations with
employees needed to be more specific and that her job standards
needed to be updated and applied consistently. Kalush again was
told that she needed to improve her leadership, problem-solving
and decision-making skills.
Sponsel's report for the 90-day warning period review held
on December 6, 1995 stated that he and Lee informed Kalush that
they had reviewed her last 30 days of coaching/counseling and
D.P.M.S reviews and had seen some improvement. They also
informed her that they continued to see a lack of communication,
problem-solving/decision-making, and human relations skills.
Sponsel extended the warning period five weeks to January 12,
1996 but indicated in his report that he saw a "slim chance for
[Kalush] continuing as a Manager and with Deluxe."
Kalush was terminated on January 31, 1996 for
"[u]nsatisfactory work due to lack of job skills." The
termination policy in force at Deluxe at that time provided that
an employee could be discharged without prior warning because of
unsatisfactory work.
Additional information provided to the Department by Deluxe
included the performance reviews of another department manager,
Thomas Klimczak, who, like Kalush, had been terminated after
being placed on a 90-day warning period by Sponsel and Lee.
Reports concerning those reviews, prepared by Sponsel, were
submitted to the Department. The first report, dated September
6, 1995, showed that Klimczak exhibited deficiencies similar to
Kalush with respect to providing necessary and timely
coaching/counseling and D.P.M.S. reviews of employees he
supervised. In that report Sponsel and Lee expressed concern
about the quality of Klimczak's coaching/counseling documentation
and his feedback to employees. The 30-, 60-, and 90-day reports
indicated that Sponsel and Lee continued to have concerns
regarding Klimczak's communication, problem-solving and decision-
making skills. Klimczak's warning period, like Kalush's, was
extended five weeks but he, too, was terminated on January 12,
1996 for "poor performance due to lack of job skills."
Other documentation provided by Deluxe showed that during
the time period in question it had terminated three employees
between the ages of 22 and 25, two of whom worked as telephone
order clerks and one of whom worked as a sales trainer, for poor
work performance.
The Department's investigation report showed that its
investigator conducted telephone interviews of nine current and
former Deluxe employees including Sponsel and Kalush. (The
investigator was unable to locate Lee, who was no longer employed
at Deluxe.) Sponsel told the investigator that Kalush had been
placed on probation because of poor work performance and was
terminated because she was not meeting her overall job
responsibilities. Sponsel also told the investigator that
Klimczak, who was 38, was placed on probation and terminated for
similar reasons. Other Deluxe employees interviewed were: Nick
Fragola, age 50, production manager; Ed Kongnia, age 37,
department manager; Heidi DeZonno, age 32, department manager;
Dennis Fischer, age 47, department manager; Mark Lebeau, age 37,
department manager; Gloria Witaker, age 44, former department
manager; and Hamual Harbin, age 35, department manager.
According to the investigation report, all but Harbin stated that
Deluxe managers were normally subject to work performance
evaluations and could be placed on probationary status or
terminated if their work performance was poor. Harbin indicated
that he was not aware of what happened when a manager failed to
meet company expectations.
Based upon this information, the Department found a lack of
substantial evidence and dismissed Kalush's charge. The
investigation report issued by the Department found that Deluxe's
termination policy allowed for termination because of
unsatisfactory work and that Kalush had been placed on probation
for poor work performance. The Department found that Deluxe
placed a younger employee, Klimczak, on a 90-day probation period
and discharged him due to poor work performance. Finally, the
Department found that Deluxe employed 254 employees and during
the last year discharged 28 employees of which 9 were over the
age of 40 and 19 were under the age of 40.[fn2]
Kalush filed a request for review of the Department's
determination with the Department's Chief Legal Counsel as
permitted by section 7-101.1 of the Human Rights Act (the Act).
775 ILCS 5/7-101.1 (West 1996). In her request for review, she
asserted that she had been a competent and effective department
manager for Deluxe as evidenced by an April 1995 semi-annual
review prepared by Barbara Lee in which she (Kalush) had been
given "high marks." (A copy of that evaluation was not submitted
with Kalush's request for review.) Kalush contended that she had
been performing her responsibilities satisfactorily through the
summer of 1995 when she was informed that Deluxe would be
undergoing a corporate reorganization and that her department
would be affected. Kalush asserted that as part of the
reorganization plan Deluxe offered her a "Business Systems"
severance package which she rejected in favor of continued
employment for one year on a new "customer interface project."
Kalush asserted that she agreed to leave Deluxe when that project
was completed with a severance package known as the "CIP
Separation Package."
In her request for review Kalush contended that the
Department's investigation of her charge was deficient because
the Department did not discover that all department managers had
fallen behind in completing performance evaluations for their
immediate work groups as a result of production pressures and
other matters related to the reorganization. She alleged that
all performance review documentation for her staff was brought up
to date by the end of October 1995 and that ongoing statements by
Sponsel with respect to that deficiency constituted "a subterfuge
to hide the real motivation behind [Sponsel's] actions" which was
to terminate "Kalush along with other higher paid staff at the
plant in order to reduce overall costs." Kalush contended that
Sponsel's decision to terminate her was "purely to save salary
expense as well as to deny Kalush her rightful severance
benefits."
Finally, Kalush contended that the Department's
investigation was inadequate because the Department failed to
interview Barbara Lee and because the Deluxe employees who were
interviewed were not questioned regarding their observations of
Kalush's management skills.[fn3] Kalush asserted that
significant evidence of wrongful discrimination existed and that
she was "a victim of age discrimination perpetrated by Deluxe
Corporation in its efforts to pare down its managerial work
force."
On June 23, 1997, the Chief Legal Counsel issued her order
sustaining the Department's dismissal of Kalush's charge for lack
of substantial evidence. The order found that the evidence
showed that Kalush had been discharged because she failed to
improve her work performance despite receiving several counseling
sessions and opportunities to improve. The order found that
Kalush failed to establish that Deluxe's actions were motivated
by Kalush's age. It found that a similarly situated younger
employee also was subject to a 90-day probationary period and was
discharged for lack of improvement. The order also noted that
Kalush herself identified Sponsel's motive in terminating her as
being to reduce overall costs and "'to save salary expense as
well as to deny [Complainant] her rightful severance benefits.'"
In response to that assertion the order stated:
"Even assuming, arguendo, that Respondent discharged
Complainant in order to 'save salary expense', this, in
and of itself, does not provide sufficient evidence of
age discrimination which would warrant a reversal of
the Department's initial determination."
DISCUSSION
Section 7A-102 of the Human Rights Act provides that the
Department "shall conduct a full investigation of the allegations
set forth in the charge." 775 ILCS 5/7A-102(C)(1) (West 1996).
See Parham v. Macomb Unit School District No. 185, 231 Ill. App.
3d 764, 772-73, 596 N.E.2d 1192, 1197 (1992) stating,
"Investigations conducted by administrative agencies
attempt to discover and produce evidence not for the
purpose of adjudicating guilt or proving pending
charges, but rather to serve as the basis for
determining whether facts exist to justify instituting
a complaint."
The Department's investigation includes consideration of the
complainant's charge, the respondent's verified response to the
allegations contained in that charge; the complainant's reply to
respondent's response, if filed; and supplements filed by either
party while the investigation of the charge is pending. 775 ILCS
5/7A-102(B) (West 1996).
The Act further provides that each charge shall be the
subject of a report to the Director and that upon review of the
report the Director shall determine whether there is substantial
evidence that the alleged civil rights violation was committed.
775 ILCS 5/7A-102(D) (West 1996). A "substantial evidence"
determination
"is limited to determining the need for further
consideration of the charge pursuant to the Act and
includes, but is not limited to, findings of fact and
conclusions, as well as the reasons for the
determinations on all material issues and questions of
credibility. Substantial evidence is evidence which a
reasonable mind accepts as sufficient to support a
particular conclusion and which consists of more than a
mere scintilla but may be somewhat less than a
preponderance." 775 ILCS 5/7A-102(D)(2) (West 1996).
The Director's dismissal of the charge upon a finding of no
substantial evidence is subject to review by the Chief Legal
Counsel of the Department. 775 ILCS 5/7-101.1(A), 5/7A-
102(D)(2)(a) (West 1996). In conducting its review, the Chief
Legal Counsel
"may consider the Director's report, any argument and
supplemental evidence timely submitted, and the results
of any additional investigation conducted by the
Director in response to the request. In his or her
discretion, the Chief Legal Counsel of the Department
may designate a staff attorney to conduct an
investigation into the factual basis of the matter at
issue." 775 ILCS 5/7-101.1(B) (West 1996).
The determination of the Chief Legal Counsel sustaining or
reversing the Department's dismissal of charges is subject to
judicial review in the appellate court. 775 ILCS 5/7-101.1(A)
(West 1996) ("[a]ny final order entered by the Chief Legal
Counsel under [section 7-101.1] is appealable in accordance with
paragraph (A)(1) of Section 8-111(A)(1)"); 775 ILCS 5/8-111(A)(1)
(West 1996) ("[a]ny complainant or respondent may apply for and
obtain judicial review of any final order entered under this Act
by filing a petition for review in the Appellate Court"). The
standard of review is to determine whether there was an abuse of
discretion by the Chief Legal Counsel in his or her
determination. Traficano v. Department of Human Rights, No. 1-
97-0565 (June 22, 1998) (abuse of discretion standard applies to
review of Chief Legal Counsel's order sustaining Department's
decision to dismiss petitioner's charge for lack of substantial
evidence). See also Parham, 231 Ill. App. 3d 764, 596 N.E.2d 1192 (discussing scope of review of Human Rights Commission whose
reviewing function of Department's dismissal of charges has as of
January 1, 1996 been delegated to Department's Chief Legal
Counsel (775 ILCS 5/7-101.1 (West 1996)). Accord Marinelli v.
Human Rights Comm'n, 262 Ill. App. 3d 247, 634 N.E.2d 463 (1994).
On appeal, Kalush first argues that the Chief Legal Counsel
abused her discretion by failing to conduct her own independent
investigation pursuant to section 7-101.1(B) of the Act. She
argues that such an investigation was necessary because: (1) the
Department failed to conduct a full investigation of her
complaint; and (2) her request for review raised an affirmative
matter not considered by the Department.[fn4] With respect to
the inadequacy of the Department's investigation, Kalush contends
that she provided the Department with a list of witnesses to be
interviewed and a short summary of their involvement. She
concedes that all of these witnesses, with the exception of
Barbara Lee (who had relocated to Arizona), were interviewed by
the Department investigator but contends that the investigator
limited his telephonic interviews of them to questions concerning
Deluxe's policies with respect to reviewing the performance of
its department managers and with respect to disciplining them
and/or terminating them for poor performance. She argues that
those interviews should have included questions concerning the
quality of her work performance and, with respect to Nick
Fragola, should have extended to his involvement in discussions
with Kalush in June 1995 wherein she was urged to accept the
"Business Systems" severance package. Kalush further argues that
the investigator should have interviewed Barbara Lee "who had
been intimately involved in the performance appraisals of
Margaret Kalush for many years prior to the disciplinary action
taken *** in early September, 1995" and who could have shown that
Kalush had satisfactorily performed her duties prior to that
time. Finally she contends that the investigator did not review
Lee's "positive performance appraisals" of Kalush given prior to
the onset of the 90-day warning period.
Based upon the record before us, we cannot say that the
Chief Legal Counsel's decision to forego further investigation,
and the implicit finding thereby that the Department's
investigation was sufficient, was an abuse of discretion.
Contrary to Kalush's contentions, it cannot be said that the
Department's investigation was incomplete and limited. There is
no dispute that the investigator contacted all Deluxe employees
identified by Kalush as having information relative to her charge
with the exception of Lee, who had relocated to Arizona.
Although the Department's report only accounts for certain
information provided by the managers, the report does not purport
to be a detailed recitation of all information gathered during
the course of the interviews. Thus, there is no reason to
presume, as Kalush contends, that the Department's investigator
failed to elicit information regarding Kalush's work performance
immediately preceding her discharge. We must also reject
Kalush's contention that the investigator's interview of Nick
Fragola should have extended to Fragola's involvement in
discussions with Kalush in June 1995 concerning Deluxe's
severance packages. First, for the reasons stated above, it is
not clear that no such discussion occurred. Even assuming it did
not occur, however, this does not reveal a shortcoming in the
investigation. There would have been no reason for the
investigator to question Fragola regarding the severance packages
offered to Kalush since Kalush's charge and Deluxe's response did
not mention Deluxe's reorganization and offer of severance
packages and did not relate those factors in any way to the age
discrimination charge.
The Chief Legal Counsel also could readily find that the
Department's investigation was sufficient even though Barbara Lee
was not contacted. In that regard, we note that the investigator
interviewed Bernie Sponsel, the plant manager and person who,
along with Lee, evaluated Kalush's performance during the time
period immediately preceding her termination. Sponsel was the
person responsible for the termination decision. Moreover, any
information Lee could have provided with respect to Kalush's job
performance prior to the 90-day warning period and any
documentary evidence of Lee's "positive performance appraisals"
of Kalush given prior to the onset of the 90-day warning period
were remote in time and would not have disproved the fact that
Kalush was terminated due to poor job performance occurring
immediately prior to her termination. See Marinelli, 262 Ill.
App. 3d at 254, 634 N.E.2d at 469 (employee's prior good
performance evaluations did not refute fact that employee's
performance immediately prior to termination was deficient).
We also reject Kalush's contention that the Chief Legal
Counsel abused her discretion by failing to conduct a further
investigation inquiring into a new matter raised by Kalush in her
request for review which was not raised or considered during the
Department's investigation. That matter concerned Deluxe's
reorganization and offer of two severance packages to Kalush and
Kalush's assertion that Sponsel's decision to terminate her was
motivated by a desire to save salary costs and severance
benefits. Initially, while not raised by the Chief Legal Counsel
in this appeal, we note that the Chief Legal Counsel would not
have had jurisdiction over the new assertion because it was not
timely raised in Kalush's charge filed with the Department. See
775 ILCS 5/7-102(A) (West 1996) (a charge must be filed within
180 days of the date an alleged civil rights violation has been
committed). Moreover, as the Chief Legal Counsel held in her
order sustaining the dismissal, even assuming the new information
were true, a desire to save salary expense would not in and of
itself "provide sufficient evidence of age discrimination which
would warrant a reversal of the Department's initial
determination." See Hazen Paper Co. v. Biggins, 507 U.S. 604,
113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993); Chiaramonte v. Fashion
Bed Group, Inc., 129 F.3d 391, 398-99 (7th Cir. 1997); Anderson
v. Baxter Healthcare Corp., 13 F.3d 1120, 1125-26 (7th Cir. 1994)
(employer's decision to terminate employee in order to reduce
costs or prevent vesting of pension benefits, without more, does
not constitute age discrimination under Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq. (1982)). See also
Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 545 N.E.2d 684 (1989) (adopting framework of federal Title VII
discrimination cases when applying the Illinois Human Rights
Act).
Kalush next contends that regardless of the sufficiency of
the investigation of her charge the Chief Legal Counsel abused
her discretion in sustaining the Department's dismissal of her
age discrimination charge. Kalush contends that she provided the
Department with significant facts and well as sources of
information which would have established, for purposes of a
preliminary investigation, a prima facie case of age
discrimination. She concedes that facts in the record "colorably
suggest" that Deluxe had a legitimate, nondiscriminatory reason
for its decision to terminate her. She also concedes that the
burden of persuasion would have shifted back to her to establish
that Deluxe's articulated reason was a mere pretext for an act of
unlawful discrimination.[fn5]
In analyzing employment discrimination actions brought under
the Human Rights Act, Illinois has adopted the analytical
framework utilized by the federal courts addressing
discrimination claims brought under Title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq. (1982) and the Age
Discrimination in Employment Act (29 U.S.C. 621 et seq. (1982)).
E.g., Zaderaka, 131 Ill. 2d 172, 545 N.E.2d 684; Interstate
Material Corp. v. Human Rights Comm'n, 274 Ill. App. 3d 1014, 654 N.E.2d 713 (1995). That analysis establishes a three-part test
for establishing a claim of discrimination. First, the plaintiff
must establish by the preponderance of the evidence a prima facie
case of unlawful discrimination. Thereafter, a rebuttable
presumption arises that the employer unlawfully discriminated
against the plaintiff. Second, to rebut the presumption, the
employer must articulate, not prove, a legitimate
nondiscriminatory reason for its decision. Third, if the
employer carries its burden of production, the presumption of
unlawful discrimination falls and the plaintiff must prove by a
preponderance of the evidence that the employer's articulated
reason was not its true reason, but a pretext for unlawful
discrimination. Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at
687; Christ Hospital & Medical Center v. Human Rights Comm'n, 293
Ill. App. 3d 105, 687 N.E.2d 1090 (1997).
To establish a prima facie case of discrimination, the
petitioner must show that: (1) she is a member of a group
protected by the law; (2) she was performing satisfactorily; (3)
she was discharged despite the adequacy of her work; and (4) a
similarly situated employee who is not a member of the protected
group was not discharged. E.g., Traficano, No. 1-97-0565;
Marinelli, 262 Ill. App. 3d 247, 634 N.E.2d 463. Cf. ISS
International Service System, Inc. v. Human Rights Comm'n, 272
Ill. App. 3d 969, 651 N.E.2d 592, 597 (1995) (stating that
necessary element to a prima facie case depends upon facts in
case and need not include showing that discharged employee was
performing job in satisfactory manner or that he was replaced by
a member of an unprotected class). For purposes of determining
whether there is substantial evidence of discrimination to
support a charge, the evidence "may be somewhat less than a
preponderance" but must be more than a scintilla. 775 ILCS 5/7A-
102(D)(2) (West 1996). Substantial evidence exists when a
reasonable mind accepts that evidence as sufficient to support
the charge. 775 ILCS 5/7A-102(D)(2) (West 1996). Here it was
not an abuse of discretion for the Chief Legal Counsel to find
that a prima facie case of age discrimination had not been proved
by substantial evidence.
The evidence reviewed by the Chief Legal Counsel showed that
Kalush only satisfied the first element of a prima facie case,
that she was a member of a protected class. The Human Rights Act
provides that unlawful discrimination includes discrimination
against an individual because he or she is over forty years of
age. 775 ILCS 5/1-103(A) (West 1996). Kalush was 42 years old
at the time of her discharge. The evidence did not satisfy the
remaining elements of a prima facie case. In her charge of age
discrimination, Kalush asserted that she was replaced by an
existing employee, Cheryl Thompson, who was under the age of 40,
less experienced, and less qualified. That allegation was not
supported by even a scintilla of evidence acquired during the
Department's investigation of the charge. The documents
submitted by Deluxe showed that Thompson was better qualified
than Kalush and, as a department manager, had received
performance ratings that were better than Kalush's. See
Traficano, No. 1-97-0565 (finding that no prima facie case
established because employees not similarly situated); Marinelli,
262 Ill. App. 3d 247, 634 N.E.2d 463 (finding that petitioner's
co-worker was not similarly situated since there was no evidence
that co-worker had error rate as high as petitioner). Additional
documentary evidence submitted by Deluxe showed that it treated
similarly an employee who was not within the protected class but
who was similarly situated to Kalush. That employee, Thomas
Klimczak, who was 38, was discharged, like Kalush, for poor work
performance after having been placed on a 90-day warning period.
See Marinelli, 262 Ill. App. 3d at 253, 634 N.E.2d at 468
(evidence that employer did not treat complainant differently
from her similarly situated younger co-worker justified dismissal
of age discrimination charge for lack of substantial evidence).
Accord Interstate Material Corp., 274 Ill. App. 3d at 1021-23,
654 N.E.2d at 718 (to establish prima facie case of
discrimination, petitioner must establish that others outside the
protected class were treated more favorably).
Kalush has not set forth, either in her request for review
or in her brief on appeal, any facts establishing discrimination.
In her brief she summarily states, without explanation, that "the
record in this case does establish that facts exist to prove a
prima facie case of age discrimination." In her request for
review, Kalush disputed the Department's finding that she was
terminated because of poor job performance. She asserted that
she was performing her job satisfactorily and that she was
discharged to save salary expense. Her request for review
attacked the sufficiency of the Department's interviews of the
managerial witnesses. As previously discussed, there is no
indication that the Department's investigation was in any way
insufficient. Kalush's contention that, had they been asked, the
managerial witnesses would have indicated that Kalush was an
"efficient and effective department manager" was mere speculation
and conjecture. Parham, 231 Ill. App. 3d at 771, 596 N.E.2d at
1197 (speculation and conjecture cannot stand as a matter of
law). Moreover, as also discussed above, there is no reason to
presume that the employees did not give information to the
Department's investigator relative to Kalush's performance. All
that can be said is that any such information was not found to be
relevant to Kalush's charge and thus was not included in the
Department's report.
Kalush's request for review also speculated that, if
contacted, Barbara Lee could have commented upon the "actual
management skills and manager competencies exhibited by Kalush"
and could have confirmed that she gave Kalush "high marks" in
April 1995. This contention carries little weight because,
according to the reports prepared by Sponsel, Lee was involved in
the performance reviews of Kalush that occurred immediately prior
to her discharge; and those reports indicated that Lee expressed
concerns about Kalush's performance at those times. Moreover, as
discussed above, even if Lee would have confirmed that she gave
Kalush "high marks" in April 1995, that fact would not disprove
evidence of poor performance by Kalush subsequent to that time.
Finally, as also discussed above, Kalush's assertion in her
request for review that her discharge was due to a desire to save
salary expense would not in and of itself provide sufficient
evidence of age discrimination. See Hazen Paper Co., 507 U.S. 604, 113 S. Ct. 1701; Chiaramonte, 129 F.3d 391; Anderson, 13 F.3d 1120 (employer's decision to terminate employee in order to
reduce costs or prevent vesting of pension rights, without more,
does not constitute age discrimination under Title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq. (1982)).
Since no other evidence of age discrimination was presented by
Kalush, that assertion must fail as well. Thus, given the record
before it, the Chief Legal Counsel did not abuse her discretion
in sustaining the dismissal of Kalush's discrimination charge for
lack of substantial evidence of age discrimination.[fn6]
For the foregoing reasons, the order of Chief Legal Counsel
of the Department of Human Rights dismissing petitioner's charge
is affirmed.
Affirmed.
LEAVITT, P.J. and BURKE, J.

[fn1] There is no indication in the record what "D.P.M.S." means.

[fn2] We note that the report did not indicate the number of
employees over the age of 40 and and the number of employees
under the age of 40. The absence those statistics renders the
statistics given in the report less than fully significant.

[fn3] Kalush's request for review also asserted discriminatory
treatment in that Lee, who had voluntarily left Deluxe in March
1996 to relocate to Arizona, had received a severance package
even though she did not qualify for any such benefit. In
sustaining the Department's findings, the Chief Counsel found
that Kalush had waived this argument by not raising it in a
timely manner. See 775 ILCS 5/7-102(A) (West 1994). Kalush has
not appealed this waiver finding.

[fn4] Petitioner argues that there was error in both the Chief
Legal Counsel's failure to conduct an independent investigation
and in the Department's failure to conduct a full investigation.
However, as discussed in the text of this opinion, we review only
the determination of the Chief Legal Counsel. See 775 ILCS 5/7-
101.1(A), 5/8-111(A)(1) (West 1996); Traficano v. Department of
Human Rights, No. 1-97-0565 (June 22, 1998); Parham v. Macomb
Unit School District No. 185, 231 Ill. App. 3d 764, 596 N.E.2d 1192 (1992). It is the Chief Legal Counsel who determines the
sufficiency of the Department's investigation. See Gayle v.
Human Rights Comm'n, 218 Ill. App. 3d 109, 578 N.E.2d 144 (1991)
(discussing power of Human Rights Commission to review
sufficiency of Department's investigation under 775 ILCS 5/8-103
(West 1994), a power now delegated to the Chief Legal Counsel
under 775 ILCS 5/7-101.1 (West 1996)). Our review must then
consider whether the Chief Legal Counsel abused her discretion in
refusing to conduct an independent investigation which ultimately
brings the sufficiency of the Department's investigation under
scrutiny. We further must determine whether the Chief Legal
Counsel otherwise abused her discretion in not pursuing
investigation of new matter raised in the request for review and
in sustaining the Department's dismissal of the charge.

[fn5] In a supplemental brief filed pursuant to leave of court,
Deluxe argues that Kalush is collaterally estopped from
challenging the finding by the Department of Human Rights,
affirmed by the Chief Legal Counsel, that she was discharged for
poor performance. In support of this argument, Deluxe notes
that, in addition to filing the instant action, Kalush filed a
federal lawsuit. The latter lawsuit alleged the same wrongful
termination and sought recovery on two theories: breach of an
oral employment contract and promissory estoppel. The federal
court granted summary judgment to Deluxe on both counts. In its
memorandum opinion and order, the court recited the facts of the
case stating that Sponsel terminated Kalush "for unsatisfactory
work performance." The court found that no contract existed
because there was no clear promise of employment, no
consideration, and no writing to satisfy the statute of frauds.
The court also found that Kalush could not establish promissory
estoppel because she could not prove the existence of an
unambiguous promise of employment. In a footnote, the court
observed the existence of certain documents in the record which
could have been relied upon by Kalush as evidence of an alleged
oral contract or to show she had a written contract. The court
dismissed this observation because Kalush had not raised any
argument in that regard, noting further that "[i]n any case,
considerable evidence indicates that Deluxe had cause to fire
Kalush, especially given the climate created by the company's
consolidation process and expressed intent to demand a higher
standard of performance from its employees."
Deluxe relies on the federal court's statement that Sponsel
dismissed Kalush for unsatisfactory work performance and the
footnote quoted above as the basis for its collateral estoppel
contention that Kalush is barred from relitigating the issue of
the reason for her termination. We disagree. Collateral
estoppel applies to bar relitigation of an issue where: (1) the
issue decided in the prior adjudication is identical to that
presented in the current case; (2) the party against whom the
estoppel is asserted was a party or privity with a party to the
prior litigation; and (3) the prior suit resulted in a final
judgment on the merits. E.g., Herzog v. Lexington Township, 167 Ill. 2d 288, 657 N.E.2d 926 (1995); Rhodes v. Board of Trustees
of Calumet City Policemen's Pension Fund, 293 Ill. App. 3d 1070,
689 N.E.2d 266 (1997); Midland Hotel Corp. v. Director of
Employment Security, 282 Ill. App. 3d 312, 668 N.E.2d 82 (1996).
Collateral estoppel can apply only where a decision on an issue
was necessary to a judgment in the first litigation and the
individual sought to be bound actually litigated the issue in the
suit. Herzog, 167 Ill. 2d 288, 657 N.E.2d 926; Rhodes, 293 Ill.
App. 3d 1070, 689 N.E.2d 266. The issue of the reason for
Kalush's discharge was not litigated in the federal court nor was
its determination necessary to the federal court judgment.
The issue in Kalush's federal action was whether Deluxe had
made a promise of employment. The court's statement that Kalush
had been terminated for "unsatisfactory work performance" was not
a finding of a disputed fact. It did not appear in the
"Analysis" section of the memorandum opinion but, rather, in the
earlier section that set forth the facts of the case. It was a
recitation of the reason given by Sponsel for his termination of
Kalush. The court's footnote statement that considerable
evidence indicated that Deluxe had cause to terminate Kalush also
did not dispose of the federal lawsuit. It was merely dictum
since the court found the absence of a contract of employment
such that Kalush could be terminated at-will. Since the federal
court decision was not required to determine the issue of the
reason for Kalush's termination, the principles of collateral
estoppel do not bar consideration of that issue in the instant
case.

[fn6] In a separate argument, Kalush contends that the findings
of the Department sustained by the Chief Legal Counsel were
against the manifest weight of the evidence. We will not address
this argument as it is repetitious of Kalush's earlier argument
that the Department's investigation was deficient. Moreover, as
discussed earlier, the standard of review of the Chief Legal
Counsel's order sustaining the Department's dismissal of a charge
after investigation is the more deferential abuse of discretion
standard rather than the manifest weight standard applied to
dismissal of charges after hearings. Traficano v. Department of
Human Rights, No. 1-97-0565 (June 22, 1998); Parham v. Macomb
Unit School District No. 185, 231 Ill. App. 3d 764, 596 N.E.2d 1192 (1992).