Reeise v. Dept. Of Human Rights

April 30, 1998

No. 4--97--0658
_________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

DAVE REEISE, ) Petition for Review of an
Petitioner, ) Order of the Chief Legal
) Counsel of the Department of
v. ) Human Rights
)
THE STATE OF ILLINOIS ) No. 1996--SF--0664
DEPARTMENT OF HUMAN RIGHTS, )
CHIEF LEGAL COUNSEL and THE )
PEORIA SCHOOL DISTRICT 150, )
Respondents. )
________________________________________________________________

JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________

Petitioner David Reeise appeals a decision of the Chief Legal
Counsel of the Illinois Department of Human Rights (Counsel),
affirming the Department's finding that Reeise failed to produce
substantial evidence to support a charge of unlawful
discrimination. On appeal, Reeise insists that the Peoria School
District #150 (District) suspended him for 30 days solely because
he is white and physically disabled. After carefully reviewing the
record, we find that we are required to affirm the Commission's
decision.
FACTS
Reeise has been employed by the District as a custodian since
1986. Before he began working for the District he severed a
portion of his left index finger while working at home. This
condition was never brought to the attention of the District, and
it did not affect Reeise's ability to perform his job. At the time
of the occurrence, Reeise worked a split shift between Roosevelt
and Harrison Elementary schools.
In October of 1995, Reeise's supervisor at Roosevelt
Elementary conducted a random check of the rooms for which Reeise
was responsible. Several rooms were not swept, and pencils, chalk
and paper were lying on the floor. Later that day, Reeise's
supervisor and several members of the administration met with
Reeise and Edward Washington, a fellow custodian. The supervisor
explained the problems that had been observed in rooms cleaned by
both custodians and scheduled another meeting in November. As part
of its custodial contract, the District follows a progressive
disciplinary system of a verbal warning, a suspension, followed by
a second suspension, and then discharge.
Before the next meeting, the supervisor conducted another
unannounced inspection and again found four of Reeise's rooms in an
unsatisfactory condition. Reeise had previously served a five-day
suspension for similar performance problems. Consequently, the
District placed Reeise on an immediate suspension for 30 days
without pay. The earlier problems noticed in Washington's rooms
had been corrected. Because Washington's performance record did
not include any prior reprimand, the District issued Washington a
verbal warning for failure to properly clean a room and an
uncooperative attitude.
Reeise filed a charge of racial and physical disability
discrimination with the Department of Human Rights (Department).
During its investigation, the Department found that the District
suspended four custodians in the twelve months preceding Reeise's
suspension: three African-American custodians and one white
custodian. It concluded that there was a lack of substantial
evidence showing discriminatory practices by the District. The
Department, therefore, dismissed the charge. Reeise filed a
request for review with the Counsel and included the names of
several new witnesses. These witnesses were not listed in the
witness section of his complainant information sheet, nor were they
named during the investigation. The Counsel issued a written order
wherein it sustained the Department's dismissal, finding that
Reeise failed to establish any evidence that warranted reversal.
Reeise appeals.
DISCUSSION
The sole issue on appeal is whether the Counsel's decision
sustaining the Department's dismissal of Reeise's charge was
arbitrary or capricious, or an abuse of discretion.
The Human Rights Act (Act) states that it is a civil rights
violation for any employer to discharge an employee on the basis of
unlawful discrimination. 775 ILCS 5/2-102(a)(West 1996). The
Department has the express authority to investigate a charge of
discrimination and may dismiss a charge if there is no substantial
evidence to support it. 775 ILCS 5/7A-102(D)(2)(a)(West 1996).
Substantial evidence is that which a reasonable mind accepts as
sufficient to support a particular conclusion and consists of more
than a mere scintilla but may be somewhat less than a
preponderance. 775 ILCS 5/7A-102(d)(2)(West 1996); Castillo v.
Human Rights Comm'n, 159 Ill. App. 3d 158, 512 N.E.2d 72
(1987)(substantial evidence such that a reasonable mind might find
it sufficient to support such a conclusion). A standard of
reasonableness is used in determining whether substantial evidence
exists to support a charge. Sanders v. United Parcel Service, 142
Ill. App. 3d 362, 491 N.E.2d 1314 (1986). The proper standard of
review of a final order of the Chief Legal Counsel sustaining the
dismissal of a charge is whether the order constituted an abuse of
discretion or was arbitrary or capricious. See 775 ILCS 5/7-
101.1(A)(West 1996)(requests for review of a decision to dismiss a
charge are now reviewed by the Chief Legal Counsel); see also
Marinelli v. Human Rights Comm'n, 262 Ill. App. 3d 247, 634 N.E.2d 463 (1994).
To succeed in a cause of action of employment discrimination
the plaintiff must show that: (1) he is a member of a protected
group; (2) he was treated by his employer in a certain manner; and
(3) he was treated differently than similarly situated employees
who are not members of his protected group. Motley v. Illinois
Human Rights Comm'n, 263 Ill. App. 3d 367, 636 N.E.2d 100 (1994).
Reeise claims that he was unlawfully discriminated against on
the basis of his race. In support of this claim, he points to
Washington. He argues that Washington, who is not a member of his
protected group, is a similarly situated custodian who was not
suspended. We disagree.
Reeise was previously suspended by the District. Washington
has never been suspended. Additionally, upon the second
inspection, the deficiencies in Washington's work were corrected.
Consequently, Reeise and Washington are not similarly situated.
While Washington's punishment of a verbal reprimand is in
sharp contrast to the 30-day suspension Reeise received, under the
District's progressive disciplinary system, the punishment was
appropriate. Had we been the Chief Legal Counsel below, we may
have taken exception to this disparate treatment. However, we are
bound as a court of review to determine only whether the Counsel
abused her discretion. After carefully reviewing the
investigator's report, notes and exhibits, we cannot say that the
Counsel's decision was an abuse of discretion.
Reeise also argues that he was discriminated against due to
his physical disability. Reeise uses Washington as a similarly
situated example in this argument as well. As was the case above,
Washington's treatment by the District fails to establish a
discriminatory motive against Reeise based on his physical
disability. In fact, the evidence suggests that the District did
not even realize that Reeise suffered from a physical disability.
Because Reeise was unable to produce any other evidence showing
that he was suspended on the basis of his physical disability, he
failed to present sufficient evidence concerning this charge.
Accordingly, we hold that the Counsel's order sustaining the
Department's decision was not arbitrary or capricious, or an abuse
of discretion.
Reeise additionally contends that the investigator's failure
to interview several witnesses on his behalf warrants reversal of
the Counsel's decision.
Every litigant deserves the opportunity to fully and fairly
present his claim. Ill. Const. art. 1,  12; see also Waller v.
Bagga, 219 Ill. App. 3d 542, 579 N.E.2d 1073 (1991). The
Department investigator interviewed Reeise and all five witnesses
Reeise listed in his complaint information sheet. Upon review,
Reeise presented an additional list of witnesses to the Counsel.
The investigator spoke with one of these witnesses during the
initial investigation. The remaining witnesses were not contacted
because Reeise failed to included their names on the initial
complaint sheet. Although these witnesses may have supported
Reeise's claim of discrimination, he was given the opportunity to
fully present his position in the underlying investigation and his
failure to do so does not warrant reversal of the Counsel's
decision.
For the foregoing reasons the decision of the Chief Legal
Counsel of the Department of Human Rights is affirmed.
Affirmed.
McCUSKEY, P.J., and SLATER, J., concurring.