Christ Hospital & Medical Center v. Human Rights Comm'n

FIFTH DIVISION
FILED: 11/7/97

No. 1-96-2687

CHRIST HOSPITAL AND MEDICAL CENTER, ) APPEAL FROM THE
) ILLINOIS HUMAN RIGHTS
Petitioner-Appellant, ) COMMISSION
)
v. ) Charge No. 1984CF2073
)
ILLINOIS HUMAN RIGHTS COMMISSION, )
THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS,)
and CHARLES HUGHES, )
)
Respondents-Appellees. )

JUSTICE HOFFMAN delivered the opinion of the court:
This appeal arises out of a decision of the Illinois Human
Rights Commission (Commission) finding that petitioner, Christ
Hospital, discriminated against respondent, Charles Hughes, in
denying Hughes a promotion. Christ Hospital argues that the
Commission (1) made a determination that was contrary to the
manifest weight of the evidence; (2) applied an incorrect legal
standard; and (3) awarded damages that were unsupported by the
evidence.
Hughes, who is black, was hired by the hospital in early June
1980, as a third-shift housekeeping supervisor. On April 12, 1984,
he filed a petition with the Department of Human Rights alleging
that the hospital had discriminated against him based upon his
race. The Department subsequently brought a complaint before the
Commission alleging that, beginning in October of 1983, the
hospital had subjected Hughes to unequal terms and conditions of
employment, by mandating that he sign in and out while not
requiring the same of similarly-situated non-black managers; giving
him an unfounded poor performance evaluation; demoting him for no
apparent reason; and by denying him a promotion to quality control
officer.
After a hearing, the administrative law judge (ALJ) concluded
that the hospital had racially discriminated against Hughes in
denying him the promotion to quality control officer. The ALJ
found insufficient evidence to support Hughes's remaining claims.
The hospital filed exceptions to the finding of discrimination, and
the Commission affirmed the ALJ's decision. This appeal followed.
The evidence supporting the ALJ's finding of discrimination is
summarized below. At the time Hughes was hired, his immediate
supervisor was Kevin Darling, the head of housekeeping. At all
times relevant, Coletta Neuens was the hospital's associate
administrator and Kevin Scanlan was the director of human
resources, who reported to Neuens. Part of Neuens's
responsibilities were to oversee the housekeeping administrators.
She also had the ultimate authority over any decisions regarding
Hughes's employment.
When he began at the hospital, Hughes's duties included
shining floors, delivering linens and removing garbage. In
December of 1982, Hughes was promoted to housekeeping operations
manager. In that position, he was required to travel between three
facilities to supervise housekeeping employees: the hospital
itself, its corporate offices in Oak Brook, and Bethany Hospital,
which was owned and operated by the hospital. Hughes was
reimbursed for his travel to and from these facilities.
In late 1983, the hospital commenced an investigation into
alleged irregularities in the housekeeping department. Scanlan,
who took part in the investigation along with Neuens, testified
that they had received reports regarding petty cash fund
irregularities, the submission of excessive travel expense reports,
and the alleged use of hospital employees and supplies to clean
locations not owned by the hospital. The investigation initially
focused on Darling but later was expanded to include Hughes and
another housekeeping operations manager, Thomas Walsh. Darling and
Walsh, both of whom were white, were suspended without pay during
the investigation based upon suspicion of petty cash
irregularities. Darling's duties were temporarily assumed by
assistant administrator Charles Jones. Hughes remained at work
during the investigation.
The investigation inquired into claims that Hughes had
submitted falsified mileage reports for his trips to Bethany, and
that he was working for another employer during the hours he was
supposedly working for the hospital. In late fall 1983, Jones
notified Scanlan that the investigation had disclosed that Hughes
was overpaid more than $500 in travel expenses, and that he had
furnished the hospital with a social security number that was
different than that given to his prior employer. When confronted
with the overpayment, Hughes acknowledged responsibility and made
restitution to the hospital. According to Hughes, he had been
instructed by Darling to take indirect routes to the other sites
due to construction on the main routes.
In December of 1983, Jones gave Hughes a poor performance
evaluation, and one month later, while the investigation remained
pending, Jones wrote Scanlan expressing his lack of confidence in
Hughes based on the investigation. Jones recommended to Neuens
that Hughes and Walsh be terminated based upon "their performance
as managers in connection with their involvement" in the matters
under investigation. Neuens rejected the recommendation, finding
it unwarranted under the hospital's human resources and personnel
policies.
The investigation ultimately revealed insufficient evidence
against Hughes to warrant termination or other disciplinary action.
In addition, Hughes contested his December 1983 evaluation, and
after an objective review of the matter, Neuens determined that the
evaluation should be changed to reflect competent performance.
Hughes was given a salary increase and full retroactive pay.
In early 1984, the hospital reorganized several of its
departments, including housekeeping. A plan was devised calling
for the elimination of the operations manager positions held by
Hughes and Walsh, and the creation of a new position, that of
quality control officer. Effective May 13, 1984, Hughes was
demoted to third-shift supervisor; Walsh resigned prior to being
demoted.
In the meantime, in February 1984, the hospital posted the
opening for the position of quality control officer. According to
Neuens, the hospital had a "bidding" policy, under which all new
positions were posted on an employee board, and employees were
required to "bid" on those they desired. Hughes applied for the
position of quality control officer, and remained the sole
applicant. The job's responsibilities included ensuring the safe
use of toxic chemicals throughout the hospital, conducting tests to
assure compliance with federal regulations, and providing in-
service training programs for housekeeping and other personnel.
In April 1984, the hospital denied Hughes the position. Both
Neuens and Scanlan testified that the reason for the refusal was
Hughes's lack of sufficient knowledge and experience regarding
toxic cleaning substances. Additionally, Neuens testified that she
had a policy against promoting anyone who was under investigation.
However, on further examination, Neuens admitted that she had
no idea when the investigation concluded or whether it was still in
progress when she made her decision. She further acknowledged
neither speaking with Hughes personally regarding the claims, nor
independently verifying the truth of the allegations before
deciding not to promote him.
In addition, on cross-examination as to Hughes's supposed lack
of qualifications, both Neuens and Scanlan admitted being aware
that Hughes had been working with the toxic cleaning chemicals in
question since 1980, and training the cleaning staff on how to use
them. Neuens also admitted that the new position had substantially
the same duties as Hughes's position at the time.
The quality control officer position remained open until
August 1984, when it was withdrawn without being filled. In
October 1984, the hospital created the position of quality control
training coordinator, the focus of which was upon training rather
than toxic chemical use. The position was awarded to Judith Lake,
a white woman who was subordinate to Hughes.
It was undisputed that Hughes never applied for the position
of quality control training coordinator. According to Hughes, this
was because the position was never posted. Neuens, however,
testified that the position had been posted.
The Commission issued a memorandum order affirming the
recommended order and decision of the ALJ. The Commission found
that the hospital's proffered reasons for refusing to promote
Hughes to the position of quality control officer were unworthy of
belief. It observed that the hospital had a strong policy of
promoting from within; that Hughes was qualified and had filed the
sole application; and last, that Neuens never attempted to
independently verify whether Hughes was suitable for the position.
On appeal, the hospital first challenges the Commission's
finding that its proffered reasons for refusing to promote Hughes
were pretextual.
On appellate review, the findings and conclusions of an
administrative agency on questions of fact are held to be prima
facie true and correct. 735 ILCS 5/3-110 (West 1994). The
Commission's factual findings must be affirmed unless the court
concludes that they are against the manifest weight of the
evidence. Raintree Health Care Center v. Illinois Human Rights
Commission, 173 Ill. 2d 469, 479, 672 N.E.2d 1136 (1996); Southern
Illinois Clinic v. Human Rights Commission, 274 Ill. App. 3d 840,
846, 654 N.E.2d 655 (1995). Determinations as to the credibility
of witnesses and the weight to be given their testimony are
reserved for the agency, and it is not this court's function to
substitute its judgment on those issues. Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992); Southern Illinois Clinic, 274 Ill. App. 3d at
846. However, such deference is not afforded to the agency's
conclusions of law and statutory construction; this court exercises
independent review over such questions. Raintree, 173 Ill. 2d at
479.
In analyzing claims of racial discrimination under the Act,
courts employ a three-step approach set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817
(1973), and adopted by the supreme court in Zaderaka v. Illinois
Human Rights Commission, 131 Ill. 2d 172, 545 N.E.2d 684 (1989).
First, the plaintiff must establish by a preponderance of the
evidence a prima facie case of unlawful discrimination. Once the
prima facie case is established, it gives rise to a rebuttable
presumption that the employer unlawfully discriminated against the
plaintiff. Second, in order to rebut the presumption, the employer
must articulate, but not prove, a legitimate, non-discriminatory
reason for the action taken. Zaderaka, 131 Ill. 2d at 179, citing
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089, 1097 (1981).
Finally, if the employer carries its burden, the presumption of
unlawful discrimination falls and the plaintiff must then prove
that the employer's articulated reason was not its true reason, but
a pretext for unlawful discrimination. Zaderaka, 131 Ill. 2d at
179. Although the presumption of discrimination operates to shift
the burden of production to the employer, the burden of persuading
the trier of fact that the employer intentionally discriminated
remains with the plaintiff throughout the case. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 416, 113 S. Ct. 2742, 2747 (1993); Zaderaka, 131 Ill. 2d at 179. The question
of whether or not a stated reason was pretextual is one of fact.
Zaderaka, 131 Ill. 2d at 180.
The hospital's reasons for denying Hughes the job were that he
was unqualified because he lacked the requisite knowledge and
experience regarding toxic cleaning substances; and that he had
been the subject of an internal investigation and thus was not
suitable for promotion to a supervisory position. The Commission
concluded that the ALJ properly could have found that these reasons
were unbelievable and were not the true reasons for denying Hughes
the promotion. A review of the record fails to show that this
finding was against the manifest weight of the evidence.
On the question of whether or not Hughes was qualified for the
job, both Neuens and Scanlan contradicted themselves: while
initially testifying that he lacked adequate knowledge or
experience, both witnesses admitted that Hughes had been working
with the very chemicals in question since 1980, and that he had
primary responsibility for training employees in the safe use of
these chemicals. Further, they admitted that the duties of the
quality control officer were essentially identical to those that
had been performed by Hughes when he was operations manager.
Although Neuens vaguely indicated that the new position "had a
greater expectation" and was derived from new federal regulations,
when pressed, she was unable to convincingly explain how this
impacted upon Hughes's qualifications.
Neuens also attributed the decision to the fact that Hughes
was under investigation. However, the Commission pointed out
Neuens's specific testimony that the investigation failed to
produce evidence to warrant termination or disciplinary action;
thus, the Commission found, the ALJ could reasonably have rejected
Neuens's assertion that the investigation formed the basis for her
decision not to promote Hughes. We find that Neuens's testimony
supported this finding, and there is no basis to disturb it.
We do find reversal warranted, however, based upon the
hospital's contention that the Commission applied an incorrect
standard. Specifically, the hospital argues that the Commission
proceeded to rule for Hughes based solely on the finding that its
proffered reasons were unworthy of belief, and never reached the
question of whether they were pretexts for racial discrimination.
Under the holding in Hicks, 509 U.S. 502, 125 L. Ed. 2d 407,
113 S. Ct. 2742 (1993), followed by this court in Southern Illinois
Clinic, 274 Ill. App. 3d 840, and Cisco Trucking Co. v. Human
Rights Commission, 274 Ill. App. 3d 72, 653 N.E.2d 986 (1995), a
finding that the employer's proffered reasons were pretextual does
not automatically compel judgment for the employee. Rather, the
burden rests with the employee to prove that the reasons were
pretexts for racial discrimination. Hicks, 509 U.S. at 511, 125 L. Ed. 2d at 419, 113 S. Ct. at 2749. The factfinder's disbelief
of the reasons advanced by the defendant may, together with the
elements of the prima facie case, suffice to create an inference of
discrimination. Hicks, 509 U.S. at 511, 125 L. Ed. 2d at 418, 113 S. Ct. at 2749. However, the inquiry cannot end merely because the
employee has succeeded in discrediting the employer's proffered
reasons; the employee must present sufficient evidence to permit a
finding that the employer's proffered reasons masked intentional
racial discrimination rather than some other legitimate, though not
necessarily commendable, motive. Such a rule necessarily follows
from the premise that the employee retains the burden of persuasion
throughout the case. See Hicks, 509 U.S. at 511, 125 L. Ed. 2d at
419, 113 S. Ct. at 2749; Cisco, 274 Ill. App. 3d at 76.
In its memorandum order, the Commission painstakingly recounts
the inconsistencies in Neuens's and Scanlan's testimony,
discrediting the hospital's proffered reasons for denying Hughes
the promotion. However, after finding that the hospital's reasons
for denying Hughes the promotion were pretextual, the Commission,
without further findings of fact, concluded that the hospital
discriminated against Hughes on the basis of race.
In fact, the record indicates that Hughes was treated equally
throughout his employment. There is evidence that he received
praise, a promotion and a pay increase for good work. Although he
became the subject of an investigation, he was treated no
differently than non-black employees from housekeeping who were
also being investigated. When he received an unfair performance
evaluation, Neuens conducted her own investigation and then revised
the evaluation to indicate competent performance, giving Hughes a
commensurate raise and back pay.
Hughes argues that there was circumstantial evidence
supporting a finding of discrimination. Namely, he asserts that
(1) he was the sole applicant for the position, and was qualified;
(2) the hospital rejected him despite a strong policy of promoting
from within; and (3) it subsequently proceeded to rewrite the
position as "quality control training coordinator", and then,
without posting it, award the new position to a less-qualified
white woman.
Of these factors, we find that the latter arguably could
justify an inference of racial discrimination. However, the
Commission made scant findings on this point, and in fact, didn't
even refer to it as a basis for its final decision. Although
Hughes was never offered the job of quality control training
coordinator, it was undisputed that he never applied for the
position, despite a hospital requirement that employees "bid" on
all positions they desire. Although Hughes maintained that the
hospital never posted the position, this was contradicted by
Neuens, who testified that it was posted. The Commission failed to
resolve this issue.
The remaining points cited by Hughes, that the hospital had a
strong policy of internal promotion, that he had the requisite
knowledge and experience for the job, and that he was the sole
applicant, simply prove that the hospital did not desire to give
Hughes the promotion. These facts, standing alone, do not support
an inference of racial discrimination. Cf. Hicks, 509 U.S. at 508-
09, 125 L. Ed. 2d at 417, 113 S. Ct. at 2748.
Based on the foregoing, we conclude that the Commission failed
to make any factual findings in support of its conclusion that the
hospital discriminated against Hughes based on his race. In
particular, it failed to properly consider the question of whether
or not the position of quality control training coordinator was
properly posted to be bid upon by employees. Accordingly, we
exercise our power under Supreme Court Rule 335(i)(2) (155 Ill. 2d
R. 335(i)(2)), and section 3-111(a)(7) of the Code of Civil
Procedure (735 ILCS 5/3-111(a)(7) (West 1994)), and reverse and
remand this case to the Commission for the taking of further
evidence necessary for a resolution of the issue of whether the
hospital's reasons for denying Hughes a promotion to the position
of quality control officer were a pretext for racial
discrimination. Because of our disposition, we need not address
the damage issue raised by the hospital.
Reversed and remanded with directions.
HARTMAN, P.J., and HOURIHANE, J., concur.