2020 IL App (1st) 191255-U No. 1-19-1255 Order filed September 22, 2020 Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ HANIF ABDUL-KARIM, ) Petition for Direct ) Administrative Review of a Petitioner, ) Decision of the Illinois Human ) Rights Commission. v. ) ) THE HUMAN RIGHTS COMMISSION, THE ) No. 2016 SF 3391 DEPARTMENT OF HUMAN RIGHTS, and ) HOLLISTER-WHITNEY ELEVATOR CORP., 1 ) ) Respondents. )
JUSTICE PUCINSKI delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.
ORDER
1 We note that petitioner Hanif Abdul-Karim filed a pro se direct appeal to this court. In doing so, petitioner incorrectly listed this case’s caption as “Hanif Abdul-Karim v. Brian Musholt and Hollister- Whitney Elevator Corp.” To avoid confusion, we have chosen to use the correct caption in our disposition, which matches the caption reflected in the record on appeal. For this reason, the caption used in this disposition differs from this case’s title as docketed in our records. No. 1-19-1255
¶1 Held: The Illinois Human Rights Commission did not abuse its discretion by sustaining the Illinois Department of Human Rights’ dismissal of petitioner’s discrimination charge.
¶2 Petitioner Hanif Abdul-Karim appeals pro se from a final order entered by the Illinois
Human Rights Commission (Commission) sustaining the Illinois Department of Human Rights
(Department) dismissal of his charge of employment discrimination against Brian Musholt and
Hollister-Whitney Elevator Corp. pursuant to the Illinois Human Rights Act (“Act”) (775 ILCS
5/1-101, et seq. (West 2016)). 2 Petitioner alleged that Hollister-Whitney fired him from his job
based on his race and after his participation in a protected activity within such a period of time as
to raise an inference of retaliatory motivation. The Department dismissed petitioner’s charge for
lack of substantial evidence. Petitioner appealed to the Commission, and the Commission
sustained the Department’s decision. Petitioner filed a direct appeal from the Commission’s order.
We affirm.
¶3 Petitioner filed an employment discrimination complaint, alleging that he reported
discriminatory harassment on the basis of his race, self-described as “black,” by Ronald Lord, his
race “white,” to Hollister-Whitney, but the behavior continued. He also alleged that he was
discharged for discriminatory reasons and for retaliatory reasons. 3 Specifically, he alleged that
Lord verbally harassed him daily, by calling him “buckwheat, mayflower, spades, George
Jefferson.” Petitioner reported the verbal harassment to his lead person Robert “Bobby” Gearhart,
2 The alleged civil rights violations took place in Adams County which means the appeal should have been commenced in the Appellate Court, Fourth District. See 775 ILCS 5/8-111 (West 2018). However, petitioner, the Department, and the Commission have waived any objections to venue. 735 ILCS 5/2-104(b) (West 2018). 3 Petitioner originally reported he was harassed by “Ronald Lloyd,” however in the record and his appellate brief he identifies the man as “Ronald Lord.”
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his supervisor Sam Hutton, and another supervisor Randy Orr, but the harassment continued. 4
Petitioner also alleged that Lord physically assaulted him 5 and the next night petitioner’s
employment was terminated but Lord was not. The reason Hollister-Whitney provided for
termination was “poor production.”
¶4 The Department conducted an investigation, which included interviews with petitioner, and
employees of Hollister-Whitney. On February 16, 2017, the Department issued a “Final
Investigation Report” that summarized several interviews conducted by the Department’s
investigator, as well as documents submitted to the investigator.
¶5 The report reflects that it was uncontested that petitioner was black and worked as a
“probationary” General factory helper. “He was considered ‘probationary’ for the first 90 days of
employment before he could become a union member and gain more job security.” Petitioner
stated he was hired by Hollister-Whitney on October 19, 2015, and worked in the shipping
department. His supervisor was Hutton, and Lord was assigned to train petitioner. Lord did not
end up training him. Petitioner stated that beginning on October 28, 2015, he was harassed daily
by Lord, who called him names like “Buckwheat,” “Spades,” George Jefferson,” and “b***.” Lord
also locked or hid petitioner’s tools and drove his forklift behind petitioner and then honked the
horn. Petitioner told Lord to stop harassing him. Because the harassment continued, petitioner
complained to Gearhart, Hutton, and Brian Gustison, former plant manager. Petitioner was told to
stop talking with Lord but he still had to work in the presence of Lord, who continued to harass
4 Petitioner’s original complaint did not provide full names for Gearhart, Hutton, and Orr, however they are contained in the record on appeal. 5 While petitioner’s original complaint did not set forth the date of the alleged physical assault, the record elsewhere indicates that the alleged assault occurred on January 19, 2016.
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him. On January 19, 2016, Lord grabbed petitioner by his coat collar, and petitioner defended
himself. He complained again about the harassment to Gustison, and petitioner continued to work
around Lord. Petitioner was discharged on January 22, 2016, and believes it was because of his
race because Hollister-Whitney did not discharge Lord, and he knows of no other employee
terminated in a similar manner.
¶6 Doug Olson (“white”), human resources manager, was interviewed by the Department and
stated that Hollister-Whitney had a policy against harassment, and when an allegation of
harassment is made, he conducts an investigation. Petitioner did not complain to him of harassment
until after petitioner was discharged. At that time, Olson investigated the claim, and found no
evidence to substantiate petitioner’s allegations. Lord denied harassing petitioner, no one else
heard Lord “calling [petitioner] any names” and there was evidence that petitioner “talk[ed]
negatively about Lord’s family.” Olson explained that Hollister-Whitney takes incidents of racial
harassment seriously as evidenced by the discharge of another employee for creating a hostile
work environment.
¶7 Lord denied harassing petitioner in any way. Lord denied calling him racial names or
“b***,” locking or hiding petitioner’s tools, or driving his forklift behind petitioner and then
honking the horn. Lord stated petitioner harassed him, called him “b***” or “dumb a***” and
made derogatory references to his wife, kids, and mother. Lord explained that supervisors
repeatedly told him and petitioner not to speak with each other, but because Lord was assigned to
train petitioner they had to interact. During these interactions, petitioner would harass Lord. Lord
told the Department that on January 19, 2016, he moved petitioner’s forklift because it was parked
and blocking his way. After Lord moved it, petitioner called him “stupid,” cursed at him, and
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disparaged his wife. He told petitioner to stop, but petitioner continued to disparage Lord’s mother.
Lord then “kind of ‘lost it,’ ” grabbed petitioner by the collar, and told him to “stop talking like
that” and to “leave him alone.” Petitioner swung at Lord and knocked his glasses off. As Lord was
leaving the area, petitioner hit him on the back of the head. The two were separated for the
remainder of their shift.
¶8 Hutton told the department investigator he was not present for any of the arguments
between Lord and petitioner, but petitioner notified him “a couple times that he and Lord had
words.” Petitioner did not tell Hutton that Lord had used racial slurs, called him “racial names”
and that he felt racially harassed.
¶9 Gustison stated to the Department that in early January 2016, petitioner complained to him
about Lord’s harassment and name calling. Petitioner did not tell Gustison that the name calling
involved racial slurs or racial harassment. Gustison spoke with Lord, who made similar complaints
about petitioner. Gustison did not know who was telling the truth.
¶ 10 Gearhart told the Department that petitioner spoke to him about Lord calling him names
such as “f***” and “c***,” but never about any racial names or racial harassment in general.
Gearhart had worked with Lord for over two years and had never heard him use the words “f***”
and “c***.” Gearhart also never heard Lord call petitioner names or see him hide petitioner’s tools
in the workspace. Gearhart had heard petitioner disparage Lord’s family. Gearhart informed
petitioner that that type of language was not allowed at Hollister-Whitney.
¶ 11 Olson stated that during the first 90 days of employment a probationary employee may be
discharged for any reason. Lord was not a probationary employee, but a full union member with
all union rights and protections, whereas petitioner was a probationary employee. Neither Lord
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nor petitioner were disciplined for the altercation on January 19, 2016. Olson stated that Lord was
not discharged because, unlike petitioner, he did not have repeated poor job performance.
Additionally, Hollister-Whitney employed “other race/black employees.”
¶ 12 Gustison stated that although physical assault is a legitimate reason for discharge, they
could not determine who instigated the altercation on January 19, 2016, and so no action was taken.
With regard to petitioner’s work performance, Gustison stated that he did not label boxes correctly,
pulled product that could have been returned, was not in his area working when he should have
been, and took too long to complete his order. Gustison explained that mislabeling the boxes could
have cost Hollister-Whitney $1000 to $2500 in profits in a worst-case scenario. While Gustison
and others were discussing the altercation between Lord and petitioner, they discovered petitioner
had poorly assembled a “skid.” Gustison stated that petitioner was discharged for his repeated
work performance issues.
¶ 13 Musholt stated that Hollister-Whitney custom built and shipped elevator parts to
customers, and that to do so, it requires that each piece of product on the skid have the same number
so it is shipped to the right customer. Musholt was aware that petitioner had issues with his work
performance in the past and had another problem with a skid after the January 19, 2016, altercation
with Lord. They talked about petitioner’s work performance and made the determination to
discharge him because he was still a probationary employee, who continued to make mistakes.
Musholt cited examples of other employees who were discharged due to poor work performance,
including David Keller (“white”), former general factory helper, Susan McElwee (“white”),
former employee, and Lane O’Donnell (“white”), former general factory helper.
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¶ 14 Hutton stated that petitioner placed the product on the skid in a haphazard way, so that it
could have fallen off the skid and been damaged. Petitioner also wrote on the product over the
sticker number and pulled the wrong product. He also pulled items to ship that were not ready and
incorrectly cut templates for hinges and placed them on backward. Hutton talked with petitioner
several times about his poor work performance. On January 19, 2016, petitioner pulled product
and placed it on a skid in a haphazard way.
¶ 15 The Department investigation included Hollister-Whitney’s harassment policy which
stated that employees may not engage in conduct which could be viewed as unlawful
discrimination or harassment and failure to adhere to this policy may result in termination. The
investigation also included documentation of employee statements made by Lord, Hutton,
Sprinkle, Orr, Chris Holthaus, and Gearhart.
¶ 16 Lord’s written statement was largely the same as his statements to the Department, but
included details that petitioner had threatened him by saying that “he [was] going to come see
(Lord) when he’s ready to leave,” and that “he is about ready to become unglued on [Lord]… That
he knows that he will lose his job but so will” Lord. Lord stated that on January 19, 2016, after he
had moved petitioner’s forklift, petitioner called him a “punk b***, a***, a real f***.” Lord
became so angry that he got out of the forklift, grabbed petitioner and told petitioner to leave him
alone. When Lord walked away, petitioner knocked his glasses off and then punched him in the
back of the head.
¶ 17 In his statement, Orr said that petitioner came to him on or about January 8, 2016, and
informed him that Lord had blocked his work area, and, although petitioner had notified Hutton,
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nothing was done about it. Lord told Orr that petitioner was blocking his work area, so he moved
things around to be able to work.
¶ 18 Petitioner told the Department that he never informed the management of Hollister-
Whitney that Lord was “racially harassing” him. He alleged it should have been obvious based on
his and Lord’s race. He also denied harassing Lord or insulting his family. Petitioner also averred
that although Hollister-Whitney claimed he was being discharged due to “poor work
performance,” they cited something done on a day of the week that he did not work. He had only
been spoken to once for a “red flag” error notification during his probationary period and had
corrected the problem. Lord was not discharged after the altercation, and petitioner knows of no
other employee terminated in a similar manner.
¶ 19 Documentation presented to the Department showed that petitioner had signed off on an
Order form, and three photos were presented “indicating the number on the box label is ‘incorrect.’
” The Department also received photos of items that were not completely painted. Included in the
documentation was an email from Gustison to Orr, Hutton and Sprinkle. The email, dated January
20, 2016, states that petitioner’s “employment should be terminated. This is not because of the
incident last night. This stems from his inability to complete his job and tasks. We found a skid
just today that he scabbed a bunch of wood onto the side to pack governors and tw (sic) on. They
were all hanging off and crooked.” Petitioner’s discharge document showed he was discharged on
January 21, 2016, for “poor work performance…[and] was talked to by Corrie E. and Sam H.
about his performance.”
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¶ 20 Petitioner responded to this evidence by stating that he was not in charge of painting items
and should not have been held responsible for them. Additionally, petitioner acknowledged that
he had one “red flag” error notification that he corrected and was never written up for.
¶ 21 The Department issued a determination finding that Hollister-Whitney followed its
probationary employee practice and discharged petitioner only after receiving repeated reports of
his poor work performance. Consequently, the Department found no substantial evidence of
discharge based on racial animus, or retaliation based on petitioner’s complaints of harassment.
The Department dismissed petitioner’s charge for lack of substantial evidence.
¶ 22 The Department attached a witness list, and list of exhibits to the report. The witnesses
included petitioner, Musholt, Olson, Hutton, Lord, Gearhart, and Darmez Cary, who did not speak
with investigators. The exhibits included a verified response good cause determination, Hollister-
Whitney’s Equal Employment Opportunity (EEO) report, petitioner’s letter to Illinois Department
of Human Services dated-stamped March 1, 2016, Hollister-Whitney’s harassment policy,
employer witness statements, Gilday’s discharge document and harassment photo, photos of
petitioner’s work items with errors, Gustison’s January 20, 2016 email, petitioner’s discharge
documentation, and the discharge documents for Keller, McElwee, and O’Donnell.
¶ 23 On May 1, 2017, petitioner filed a request for review with the Commission. In the request,
he argued that Lord admitted to grabbing him by his coat collar but only petitioner’s employment
was terminated.
¶ 24 The Department filed a response to petitioner’s request for review. In the response, the
Department argued that it was proper to dismiss the counts and noted there was no substantial
evidence that petitioner was harassed due to his race. The Department also noted that there was no
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substantial evidence that petitioner was discharged due to his altercation with Lord, or evidence of
pretext in his discharge. Finally, there was no substantial evidence that Hollister-Whitney
discharged petitioner in retaliation because there were legitimate non-discriminatory reasons to
discharge petitioner “and there was no evidence of pretext.”
¶ 25 On May 22, 2019, the Commission sustained the Department’s dismissal of petitioner’s
charge for lack of substantial evidence. The Commission found Hollister-Whitney did not subject
petitioner to harassment because he did not notify Hollister-Whitney’s management that he was
being discriminated against on the basis of race. The Commission found Hollister-Whitney did not
discharge petitioner based on his race because petitioner failed to show that he was performing his
work satisfactory and that there was a member outside of his protected class that was treated more
favorably under similar circumstances. Last, the Commission found there was no retaliation
because petitioner did not establish that he was engaged in a protected activity.
¶ 26 On June 21, 2019, petitioner filed a timely petition for direct review of the Commission’s
decision in this court. See Ill. S. Ct. R. 335(a) (eff. July 1, 2017); 775 ILCS 5/8-111(B)(1) (West
2016) (After the Commission has entered a final order, a complainant may obtain judicial review
by filing a petition for review in the Appellate Court within 35 days of the decision.).
¶ 27 On appeal, petitioner reiterates his complaints of racial discrimination and retaliatory
discharge because he was verbally abused and harassed nightly, and physically assaulted by Lord,
and petitioner’s employment was terminated, whereas Lord continues to be employed.
¶ 28 As a preliminary matter, we note that petitioner’s appellate brief fails to comply with
Illinois Supreme Court Rule 341 (eff. May 25, 2018), which governs the contents of briefs and
requires an appellant’s arguments to be supported with citations to relevant legal authority and
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portions of the record. Without outlining the numerous shortcomings of petitioner’s brief, we
briefly point out that his brief fails to comply with Rule 341(h) because it does not include a
statement of the issues presented for review, a statement of jurisdiction, a section detailing the
statutes involved, a statement of facts that references pages of the record, and an argument section
that cites to pertinent legal authority. See Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010)
(this court is not a depository in which the burden of argument and research may be dumped).
¶ 29 Petitioner’s pro se status does not relieve him of the responsibility to comply with the
appellate procedures established by our supreme court. Wing v. Chicago Transit Authority, 2016
IL App (1st) 153517, ¶ 7. Accordingly, we may dismiss an appeal when it “fails to comply with
the requirements of Rule 341.” Zale v. Moraine Valley Community College, 2019 IL App (1st)
190197, ¶ 32. However, we will address petitioner’s arguments here because we have the benefit
of a cogent brief from the opposing party and it is clear that petitioner challenges the Commission’s
final order. See Stolfo v. KinderCare Learning Centers, Inc., 2016 IL App (1st) 142396, ¶ 19.
¶ 30 A case under the Act begins when an aggrieved party files a charge in writing with the
Department. 775 ILCS 5/7A-102(A)(1) (West 2016). Then the Department investigates to
determine if the allegations in the charge are supported by substantial evidence. Id. § 7A-
102(C)(1). “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.” Id. § 7A-102(D)(2). The charge will be dismissed if the
Department determines that there is no substantial evidence. Id. § 7A-102(D)(3). After the
dismissal, the complainant may then file a request for review with the Commission. Id.
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¶ 31 “When a request for review is properly filed, the Commission may consider the
Department's report, any argument and supplemental evidence timely submitted, and the results of
any additional investigation conducted by the Department in response to the request.” Id. § 8-
103(B). Once the Commission has issued a final order, a petitioner may obtain judicial review by
filing a petition for review in the Appellate Court within 35 days of the decision. Id. § 8-111(B)(1).
¶ 32 We review the Commission’s order under an abuse of discretion standard. Young v. Illinois
Human Rights Comm’n, 2012 IL App (1st) 112204, ¶¶ 31-33. “Under the abuse of discretion
standard, the court should not disturb the Commission's decision unless it is arbitrary or capricious.
[Citation.] A decision is arbitrary or capricious if it contravenes legislative intent, fails to consider
a critical aspect of the matter, or offer an explanation so implausible that it cannot be regarded as
the result of an exercise of the agency's expertise.” Id. ¶ 33. In applying this standard, we will not
“reweigh the evidence” or substitute our judgment for that of the Commission. Id. When no
reasonable person could agree with the Commission’s order there is an abuse of discretion. Id.
¶ 33 The Act declares that it is the public policy of Illinois to secure for all individuals freedom
from discrimination on the basis of race in connection with employment. 775 ILCS 5/1-102(A)
(West 2016). It is a civil rights violation for an employer to engage in harassment, or discharge on
the basis of race. 775 ILCS 5/2-102 (West 2020); 775 ILCS 5/1-103(Q) (West 2016). Additionally
under the Act it is a civil rights violation to retaliate against a person because he has opposed
unlawful discrimination. 775 ILCS 5/6-101 (West 2016).
¶ 34 Racial harassment occurs when there has been a “steady barrage” of racial abuse. Village
of Bellwood Board of Fire and Police Commissioners v. Human Rights Comm'n, 184 Ill. App. 3d
339, 350 (1989). However, an “employer is not automatically liable for the harassment of its
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employees” but will be held liable where it does not respond. Id. The Act explains that the
employer is responsible if they become aware of the conduct and fail to take reasonable corrective
measures. 775 ILCS 5/2-102 (West 2020).
¶ 35 Here, the record shows that although petitioner complained to Hollister-Whitney
management, he acknowledged that he never informed them that the harassment towards him was
racial in nature. Additionally, there is evidence from Olson that Hollister-Whitney immediately
responded and took reasonable corrective measures to harassment in the past. Consequently, where
Hollister-Whitney was not aware of the alleged racial discrimination, the Commission did not
abuse its discretion by sustaining the dismissal of petitioner’s harassment claim.
¶ 36 The Commission also did not abuse its discretion by sustaining the dismissal of petitioner’s
discharge. The burden is on petitioner to establish a prima facie case of employment discrimination
by a preponderance of the evidence. Young, 2012 IL App (1st) 112204, ¶ 34. “To establish a prima
facie case of employment discrimination, the employee must first show that: (1) she is a member
of a protected class; (2) she was meeting her employer's legitimate business expectations; (3) she
suffered an adverse employment action; and (4) the employer treated others similarly– situated
outside the class more favorably.” Id. After petitioner has done so, the employer may rebut the
presumption of discrimination by articulating a legitimate reason. Id. ¶ 36. Petitioner must then
show that this reason provided is only pretext. Id.
¶ 37 The parties do not dispute that petitioner is a member of a protected class (due to his race)
and that he suffered an adverse employment action (termination). However, petitioner has not
established a prima facie case of employment discrimination because he has not shown that he was
meeting his employer’s legitimate business expectations as evidenced by his “red flag” notice and
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poor work performance. Specifically, the record shows that during his probationary period
petitioner pulled the wrong product, wrote on the product over the sticker number and placed
product on skids haphazardly. Hutton informed petitioner several times about his poor work
performance. Musholt was also aware of petitioner’s poor work performance. The record also
shows that in his email, Gustison recommended that petitioner be terminated because of his
inability to complete his job, citing petitioner’s failure to properly prepare a skid.
¶ 38 Furthermore, petitioner has not pointed out anyone who was similarly situated as him that
faired better. The comparison to Lord is not appropriate because Lord was a full union member
with all union rights and protections and not a probationary employee, who could be discharged
for any reason. Additionally, there is no evidence that Lord had similar “red flag” notices at work
for poor work performance. There is also no evidence that others similarly situated as petitioner
faired better than he did. In fact, Musholt provided three examples of other employees outside of
petitioner’s protected class who were discharged for poor work performance. Therefore, the
Commission did not abuse its discretion in sustaining the dismissal of petitioner’s claim of
discriminatory discharge.
¶ 39 The final count considered by the Commission was whether petitioner was discharged in
retaliation. Here, again the Commission’s finding that petitioner was not discharged in retaliations
was not against the substantial weight of the evidence. “A prima facie case of retaliation is
established by showing that (1) the petitioner engaged in a protected activity; (2) the employer
committed an adverse act against the petitioner; and (3) a causal connection existed between the
protected activity and the adverse act.” Welch v. Hoeh, 314 Ill.App.3d 1027, 1035 (2000).
Hollister-Whitney took an adverse action against petitioner. However, petitioner acknowledged he
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did not notify management of Hollister-Whitney that he was being harassed on the basis of his
race. Accordingly, he has failed to establish that the adverse action was taken against him because
he was engaged in a protected activity where there is no evidence that Hollister-Whitney was aware
of the discrimination.
¶ 40 For the above reasons, we conclude that the Commission did not abuse its discretion in
sustaining the dismissal of petitioner’s complaint.
¶ 41 Affirmed.
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