Truger v. Department of Human Rights

No. 2--97--0576

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

DARCY TRUGER,

Petitioner,

v.

THE DEPARTMENT OF HUMAN
RIGHTS, THE ILLINOIS HUMAN
RIGHTS COMMISSION, and DE KALB
COUNTY SPECIAL EDUCATION
ASSOCIATION,

Respondents.
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)Appeal from the Human
Rights Commission, Chicago.

Charge No. 1992--CN--2368


JUSTICE COLWELL delivered the opinion of the court:

Petitioner, Darcy Truger, appeals from an order of the
Illinois Human Rights Commission (Commission) affirming the Human
Rights Department's (Department) dismissal of her charge of
discrimination against respondent, De Kalb County Special Education
Association, for lack of substantial evidence. Petitioner had
alleged respondent refused to hire her for the position of social
worker in an alternative high school for students with behavior
disorders because of her handicap, visual impairment, in violation
of the Illinois Human Rights Act (Ill. Rev. Stat. 1991, ch. 68,
par. 1--101 et seq. (now 775 ILCS 5/1--101 et seq. (1996))). We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 1992, petitioner filed a charge of
discrimination against respondent with the Department. Petitioner
alleged that, on September 5, 1991, respondent discriminated
against her by denying her employment as a school social worker
because of her physical handicap, visual impairment. Petitioner
stated that the reasons given for the denial of employment were
that she lacked experience with behavior disorder students and that
her visual impairment was a liability. Petitioner explained that
she believed she was discriminated against because (1) respondent
was aware of her physical handicap; (2) respondent contacted her
regarding the school social worker vacancy; (3) according to the
job description, she was qualified for the position; (4) during an
interview on August 26, 1991, respondent's director told her that
he would like to hire her and gave her a pay scale and other
preemployment information; (5) respondent's director suggested that
she observe the school; and (6) respondent's director expressed
his concern that the students could become aggressive with her and
that there was a possible risk of injury due to her visual
impairment. Petitioner further explained that she assured
respondent's director of her ability to handle herself in
potentially dangerous situations and that she believed working with
students therapeutically lessened the chances of the students
becoming aggressive with her.
The Department conducted an investigation of petitioner's
charge and interviewed petitioner; Mr. Bill Peters, respondent's
executive director; Ms. Virginia Weckerly, a school counselor; and
Ms. Janice Blickman, director of student services. The Department
also reviewed the following documents: (1) a school social worker
job description; (2) petitioner's employment application; (3) an
August 16, 1991, newspaper advertisement for the position; (4) a
detailed job description for social worker; (5) the employment
application of Mr. Michael Postic; (6) petitioner's interview
results; and (7) Mr. Postic's interview results.
According to the Department's investigation report, petitioner
stated that she received her masters degree in social work in the
spring of 1991. Petitioner claimed that during her interview she
explained that she lacked any experience with behavior disordered
children but noted that she had a little experience with aggressive
students.
Petitioner further stated that she was told that if the
position was not filled, respondent would contract out the
services. Petitioner believed respondent was interested in her,
and she received pay scale information. After the two-day
observation period, respondent informed her that they would get
back to her with a decision.
Petitioner stated that she felt she was discriminated against
because, even though she lacked experience with behavior disordered
students, she informed respondent that she would never put herself
or anyone in danger. Petitioner also noted that respondent hired
a less qualified applicant.
Mr. Peters stated that respondent had two social worker
positions open and, during an interview on August 21, 1991,
petitioner expressed interest only in the position at the
Alternative High School for the Behavior Disordered. Mr. Peters
explained that the school was for students with behavior
disabilities, and, historically, it consisted of the toughest 2% of
the student population. The students have conduct disorders, as
well as emotional disorders, and can become extremely aggressive
and require physical restraint.
Mr. Peters further stated that petitioner's primary social
work emphasis involved developmental disabilities, but petitioner
told him that she could handle the situation with little
difficulty. Petitioner was then offered an opportunity for a two-
day trial observation period.
Mr. Peters was not present during petitioner's visit, but
conferred with the school principal and staff who informed him that
petitioner failed to pick up "antecedent signals" that precede
disruptive behavior. Mr. Peters explained that he was told
petitioner seemed unaware of teasing going on around her and
displayed little interaction with the students. According to Mr.
Peters, petitioner was not hired because of her lack of any
experience with this type of student population and because of the
possibility of violence affecting herself and others.
Mr. Peters also noted that respondent did not hire anyone for
this position. Instead, respondent contracted out the services to
an existing psychiatrist who had previously counseled some of the
students. Petitioner did hire Mr. Postic for the other position
that petitioner rejected.
Ms. Weckerly stated she had been involved with the program for
13 years and she led the team that included the vacant social
worker position. During petitioner's visit, Ms. Weckerly noticed
petitioner's extremely limited sight and observed petitioner
knocking over certain unspecified objects. Ms. Weckerly also
noticed that the students made inappropriate comments and gestures,
but petitioner seemed unaware of the student's conduct. In
addition, the students got out of hand while petitioner addressed
the class.
Ms. Weckerly further stated that she had explained in detail
to petitioner what type of subtle facial expressions or hand
gestures preceded violent behavior. Ms. Weckerly also explained
what a physical restraint entailed.
Ms. Blickman stated that she discussed the position with
petitioner and the purpose of the visit was for petitioner to
observe the students and for respondent to observe petitioner. Ms.
Blickman was concerned about petitioner's lack of experience.
According to Ms. Blickman, the staff has to be proactive.
The Department's report concluded that petitioner was
inexperienced with behavior disordered students, and respondent
denied her the position based upon her inexperience and its
legitimate concern for safety. The Department further found that
the position was filled, as petitioner alleged. Accordingly, the
Department dismissed petitioner's charge for lack of substantial
evidence.
Thereafter, petitioner filed a request for review of the
Department's decision. In support, petitioner filed a memorandum
of law and an affidavit.
In her memorandum of law, petitioner alleged that the
Department's investigator improperly decided materially contested
facts against her. Petitioner claimed she alleged facts
establishing a prima facie case of handicap discrimination.
Petitioner also argued that the Department improperly considered
the risk of future injury in its hiring decision.
In her affidavit, petitioner averred that she had a bachelor
of science degree in family and social services from Northern
Illinois University and a master of arts degree from Loyola
University. Petitioner was licensed by the State of Illinois as a
social worker with a Type 73 certification. Petitioner further
noted her prior training and experience as a social worker working
with adolescents who had aggressive tendencies.
Petitioner noted her disability was in the form of a visual
impairment known as retinopathy prematurity. According to
petitioner, her visual impairment did not prevent her from
functioning or affect her mobility and she was able to read normal
size print with a magnifying glass.
Petitioner then reviewed her interviewing experience with Mr.
Peters and Ms. Blickman. Petitioner claimed Mr. Peters told her on
three occasions that he wanted to hire her and that there were no
other applicants for the position. Mr. Peters also gave her a copy
of the school's calendar and policy handbook.
During her two-day observation period, she understood that she
was merely to observe and not engage in any other activity.
Petitioner denied that she was asked to or that she engaged in any
interactions with the students. Petitioner also denied that during
her visit she bumped into any objects or that she had any trouble
moving about. Petitioner further denied that during her visit the
students became unruly or aggressive or that staff members needed
to intervene so the students would not become unruly or aggressive.
Petitioner claimed Mr. Peters told her that he had found
someone else who had more experience with students with behavior
disorders and that her vision was a liability. Petitioner stated
that respondent never asked her about the nature or extent of her
visual impairment prior to advising her that she would not be
hired.
On January 24, 1997, the Commission affirmed the Department's
dismissal of petitioner's charge of discrimination. The Commission
summarized respondent's position as "success as a social worker in
the alternative high school depends on being able to recognize
subtle facial expressions and hand gestures." The Commission found
that respondent believed petitioner's condition interfered with her
ability to recognize these subtle signs.
The Commission noted petitioner's position that she did not
witness any students become unruly or aggressive during her visit
but found that petitioner's position did not contradict the
statements made by respondent. Instead, the Commission found that
the essence of respondent's testimony was that petitioner appeared
to be unaware of inappropriate comments and gestures.
The Commission also found petitioner failed to present any
evidence that she ever worked successfully with a behavioral
disordered population. The Commission further found that
respondent made an independent assessment of petitioner's
capabilities and found that petitioner's condition interferes with
her ability to recognize impending aggressive situations. As a
result, the Commission found petitioner's visual impairment was not
a handicap because it was related to her ability to the job in
question.
On February 25, 1997, petitioner filed a petition for direct
review of the Commission decision.
ANALYSIS
Petitioner first contends that the Commission dismissed her
charge based upon an erroneous standard of review. Similarly,
petitioner also contends her allegations and facts supported a
prima facie case of handicap discrimination.
When a charge of discrimination is filed, a Department
investigator investigates the facts and allegations set forth in
the charge by interviewing witnesses, by examining records and
documents, and by conducting a fact finding conference to be
attended by the petitioner and the respondent. Ill. Rev. Stat.
1991, ch. 68, par. 7A--102(C)(1), (C)(2), (C)(4) (now 775 ILCS
5/7A--102(C)(1), (C)(2), (C)(4) (West 1996)). The petitioner may
supplement the record at any time while the investigation of the
charge is pending. Ill. Rev. Stat. 1991, ch. 68, par. 7A--102(B)
(now 775 ILCS 5/7A--102(B) (West 1996)). At the conclusion of the
investigation, the investigator prepares a report, and the
Department's director determines whether there is substantial
evidence of the alleged violation. Ill. Rev. Stat. 1991, ch. 68,
par. 7A--102(D)(1), (D)(2) (now 775 ILCS 5/7A--102(D)(1), (D)(2)
(West 1996)). If there is a lack of substantial evidence, the
Department will dismiss the charge, and the petitioner may seek
review before the Commission. Ill. Rev. Stat. 1991, ch. 68, par.
7A--102(D)(2)(a) (now 775 ILCS 5/7A--102(D)(2)(a) (West 1996)).
In reviewing the Department's findings, the Commission may
consider the Department's report, any argument and supplemental
evidence submitted, and the results of any additional
investigation. Ill. Rev. Stat. 1991, ch. 68, par. 8--103(B) (now
775 ILCS 5/8--103(B) (West 1996)). When considering whether there
is substantial evidence to support a charge, the Commission's
function is to review the Department's factual findings and
determine whether there is enough evidence to support the filing of
a charge. Marinelli v. Human Rights Comm'n, 262 Ill. App. 3d 247,
253 (1994). The Commission is not to resolve credibility issues or
questions of fact. Marinelli, 262 Ill. App. 3d at 253. The
Commission must adopt the Department's factual findings unless they
are against the manifest weight of the evidence. Marinelli, 262
Ill. App. 3d at 253. The Commission's decision is then subject to
judicial review in the appellate court. Ill. Rev. Stat. 1991, ch.
68, par. 8--111(A)(1) (now 775 ILCS 5/8--111(A)(1) (West 1996)).
This court will not disturb the Commission's decision to
dismiss a complaint for lack of substantial evidence, unless that
decision was arbitrary and capricious or an abuse of discretion.
Marinelli, 262 Ill. App. 3d at 253. We review the Commission's
decision, not the Department's decision. Marinelli, 262 Ill. App.
3d at 253.
In analyzing employment discrimination actions brought under
the Act, Illinois courts have adopted the three-part analysis set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, (1973). Peck v. Department of Human
Rights, 234 Ill. App. 3d 334, 336 (1992). First, petitioner must
establish by a preponderance of the evidence a prima facie case of
unlawful discrimination. Peck, 234 Ill. App. 3d at 336. If this
is done, then a rebuttable presumption arises that the employer
unlawfully discriminated. Peck, 234 Ill. App. 3d at 336-37. The
employer must then articulate, not prove, a legitimate,
nondiscriminatory reason for its decision. Peck, 234 Ill. App. 3d
at 337. If this is done, the presumption of discrimination is
rebutted. Peck, 234 Ill. App. 3d at 337. The petitioner must then
prove by a preponderance of the evidence that the employer's
articulated reason was not the true reason, but was instead a
pretext for unlawful discrimination. Peck, 234 Ill. App. 3d at
337.
In this case, to establish a prima facie case of physical
handicap discrimination, petitioner must establish (1) that she was
handicapped within the Act's definition, (2) that she was not hired
and that that decision was related to her handicap, and (3) that
her handicap was unrelated to her ability to perform the job. See
Milan v. Human Rights Comm'n, 169 Ill. App. 3d 979, 984 (1988). A
charge may be dismissed for lack of substantial evidence where the
petitioner fails to present substantial evidence of an element of
a prima facie case. See Parham v. Macomb Unit School District No.
185, 231 Ill. App. 3d 764, 772 (1992).
The Commission found petitioner failed to establish the third
requirement of her prima facie case. We agree. We also believe
the Commission could have found petitioner failed to establish the
second requirement of her prima facie case.
Petitioner sought the position of social worker at an
alternative high school for students with behavior disorders that
included the toughest 2% of the student population. These students
can become extremely aggressive and require restraint. As a
result, a social worker at the high school must be proactive and be
able to recognize subtle facial expressions or hand gestures that
precede violent behavior. In addition, such a social worker must
be able to perform a physical restraint. According to Ms.
Weckerly, a school counselor with 13 years of experience and the
head of the team, petitioner seemed unaware of the students'
inappropriate comments and gestures. In addition, Mr. Peters was
told by the school principal and staff that petitioner failed to
pick up on "antecedent signals" that precede disruptive behavior
and seemed unaware of teasing going on around her.
Petitioner admittedly lacked experience working with students
with behavior disorders, even if she had a little experience
working with aggressive students. Ms. Blickman stated that she was
concerned with petitioner's lack of experience, and Mr. Peters
stated that petitioner was not hired because of her lack of
experience with students with behavior disorders and their penchant
for violence. We note that petitioner had just received her
masters degree in the spring of 1991 and the interview was in
August of 1991. Furthermore, petitioner failed to present any
substantial evidence of any prior experience with students with
behavior disorders or that her degrees or licensing qualified her
to work with students with behavior disorders. As a result,
petitioner offered no evidence that to be qualified as a social
worker is the equivalent of being qualified to work with students
with behavior disorders.
These facts support two possible conclusions. The facts
support the Commission's conclusion that petitioner's visual
impairment prevented her from performing a critical job function--
recognizing subtle signs which precede violence--of a social worker
working with students with behavior disorders such as those found
at the alternative high school. In addition, the facts support
another conclusion--petitioner was not hired because she was not
qualified as a result of her lack of experience. Thus, her lack of
experience may have been the reason she was unaware of the
students' inappropriate behavior. We therefore conclude that the
Commission's decision of a lack of substantial evidence was not an
abuse of discretion.
Petitioner also contends that, regardless of the Commission's
standard of review, the Commission erred by weighing the
credibility of the witnesses in respondent's favor. We disagree.
Petitioner claims she presented evidence that contradicts the
Commission's findings that the students made inappropriate comments
and gestures and that the students got out of hand. Petitioner's
affidavit stated that no students became unruly or aggressive
during her visit. No one claimed, however, that the students
became unruly or aggressive. Instead, Ms. Weckerly claimed
petitioner seemed unaware of the signs that precede violent
behavior, and the school's principal and staff likewise reported to
Mr. Peters that petitioner was unable to recognize such "antecedent
signals." Petitioner failed to present any evidence that
contradicted such claims, and the Commission based its decision
primarily on petitioner's inability to recognize these subtle
signs. Accordingly, we find the Commission did not weigh the
evidence or resolve issues of credibility in respondent's favor;
the Commission properly determined whether there was substantial
evidence to support a charge.
Petitioner further contends the Commission improperly
permitted respondent to raise a defense to petitioner's charge
based upon respondent's generalized fear of a future safety risk.
The Commission, however, expressly noted that respondent made an
individualized assessment of petitioner's capabilities in
accordance with Raintree Health Care Center v. Illinois Human
Rights Comm'n, 173 Ill. 2d 469 (1996) and believed that
petitioner's visual impairment interfered with her ability to
recognize signs of impending violence. The Commission's conclusion
is supported by respondent's observation of petitioner during her
two-day observation period. In addition, the Commission did not
consider respondent's position as a defense based on generalized
future safety risks. Rather, the Commission found petitioner
failed to satisfy an element of her prima facie case. We further
note that petitioner's conduct does not impose a blanket
restriction against individuals with visual impairments as social
workers at the alternative high school. Respondent's actions only
indicate that it did not believe petitioner was qualified, whether
because of her visual impairment or her lack of experience.
Finally, petitioner contends the Commission erred when it
failed to consider whether respondent offered petitioner a
reasonable accommodation. An employer's duty to accommodate does
not attach until the employee asserts that she would have performed
the essentials of the job if afforded a reasonable accommodation.
Illinois Bell Telephone Co. v. Human Rights Comm'n, 190 Ill. App
3d 1036, 1050 (1989). In addition, the employee has the burden of
asserting the duty and showing the accommodation was requested and
necessary for adequate job performance. Whipple v. Department of
Rehabilitation Services, 269 Ill. App. 3d 554, 557 (1995).
Petitioner presented no evidence that she asked for a reasonable
accommodation or that any type of accommodation would enable her to
recognize the subtle antecedent signs of violence. Consequently,
petitioner's contention is rejected.
For the foregoing reasons, we affirm the Commission's decision
dismissing petitioner's charge of discrimination.
Affirmed.
McLAREN and THOMAS, JJ., concur.