2021 IL App (4th) 200451-U NOTICE FILED This Order was filed under NOS. 4-20-0451, 4-20-0452 cons. August 16, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
TONY BRUMMETT, ) Petition for Review of an Petitioner, ) Order of the Illinois Human v. (No. 4-20-0451) ) Rights Commission ILLINOIS HUMAN RIGHTS COMMISSION; ) ILLINOIS DEPARTMENT OF HUMAN RIGHTS; ) No. 2019-SF-0645 CHIEF LEGAL COUNSEL, NADINE WICHERN; ) KENCO LOGISTICS SERVICES LLC; JOHN ) THACKER; ERIC MORITZ; MELISSA ROWCLIFF; ) STEVE RASO; and AARON GILES, ) Respondents. ) ) ) TONY BRUMMETT, ) Petitioner, ) v. (No. 4-20-0452) ) No. 2019-SF-0736 ILLINOIS HUMAN RIGHTS COMMISSION; ) ILLINOIS DEPARTMENT OF HUMAN RIGHTS; ) CHIEF LEGAL COUNSEL, NADINE WICHERN; ) KENCO LOGISTICS SERVICES LLC; JOHN ) THACKER; ERIC MORITZ; MELISSA ROWCLIFF; ) STEVE RASO; and AARON GILES, ) Respondents.
JUSTICE HOLDER WHITE delivered the judgment of the court. Presiding Justice Knecht and Justice Steigmann concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed, concluding the Illinois Human Rights Commission did not abuse its discretion in sustaining the dismissal of petitioner’s charges of unlawful harassment, discrimination, and retaliation against his former employer.
¶2 Petitioner, Tony Brummett, filed charges of employment discrimination with the
Illinois Department of Human Rights (Department) against his former employer, Kenco Logistics Services, LLC (Kenco). In charge No. 2019-SF-0645, petitioner alleged unlawful
harassment, discrimination, and retaliation against Kenco. In charge No. 2019-SF-0736,
petitioner alleged Kenco discharged him based on unlawful discrimination and retaliation. The
Department dismissed petitioner’s charges, and the Illinois Human Rights Commission
(Commission) sustained the Department’s dismissal.
¶3 Petitioner appeals, arguing the Commission erred in sustaining the dismissal of
his charges. We docketed petitioner’s appeal in charge No. 2019-SF-0645 as No. 4-20-0451 and
petitioner’s appeal in charge No. 2019-SF-0736 as No. 4-20-0452. We have consolidated
petitioner’s cases for review. We affirm.
¶4 I. BACKGROUND
¶5 A. Charges
¶6 1. Charge No. 2019-SF-0645
¶7 In November 2018, pursuant to the Illinois Human Rights Act (Act) (775 ILCS
5/1-101 et seq. (West 2016)), petitioner filed four charges with the Department. Petitioner
alleged (1) Kenco harassed him from September 6, 2018, to October 30, 2018, due to his race
(black), where Kenco instructed other employees to watch him and report back if he did anything
“out of character” (count A); (2) Kenco harassed him from September 6, 2018, to October 30,
2018, in retaliation for making an internal complaint in August 2018 regarding harassment by an
unnamed supervisor and for filing a previous charge with the Department in charge No.
2019-SF-0327 (count B); (3) Kenco in October 2018 subjected him to unequal terms and
conditions of employment due to his race (count C); and (4) Kenco in October 2018 subjected
him to unequal terms and conditions of employment in retaliation for him opposing unlawful
discrimination (count D). As to counts C and D, petitioner alleged Kenco (1) required him to
-2- change his written response to a performance improvement plan (PIP) despite his belief his work
performance met Kenco’s expectations and (2) told him to collect and review safety checklists
from his subordinates at the beginning of the work shift although such instruction violated
Kenco’s policy.
¶8 2. Charge No. 2019-SF-0736
¶9 In November 2018, pursuant to the Act, petitioner filed two more charges with the
Department. Petitioner alleged Kenco discharged him on November 2, 2018, (1) based on his
race where his performance met Kenco’s expectations (count A) and (2) in retaliation for making
an internal complaint in August 2018 regarding harassment by an unnamed supervisor and for
filing previous charges with the Department in charge No. 2019-SF-0327 and charge No. 2019-
SF-0645, where his performance met Kenco’s expectations (count B).
¶ 10 B. Department’s Investigation and Recommendation
¶ 11 1. Charge No. 2019-SF-0645
¶ 12 In October 2019, the Department prepared an “Investigation Report” on
petitioner’s allegations, which revealed the following. Kenco is a third-party logistics company
providing warehousing and logistics support services to other businesses.
¶ 13 In June 2018, John Thacker, Kenco’s general manager, hired petitioner for the
position of operations supervisor at Kenco’s facility in Decatur, Illinois. In his role at Kenco,
petitioner supervised approximately 25 individuals working second shift. Thacker supervised
petitioner until August 2018, when Eric Moritz, operations manager, replaced Thacker as
petitioner’s immediate supervisor. Thacker stated petitioner’s “performance had been lacking
from almost the start. He and Moritz had been noting [petitioner’s] poor performance.”
Specifically, Thacker noted petitioner “was having issues doing his job properly from almost the
-3- beginning of his employment, as well as problem[s] working with other employees.” Both
Thacker and Moritz are white, and petitioner is black.
¶ 14 On September 5, 2018, Kenco issued petitioner a PIP, dated August 30, 2018.
Petitioner did not agree with the PIP’s evaluation of his performance which indicated he needed
improvement. On two separate occasions, September 10, 2018, and October 22, 2018, petitioner
refused to sign the PIP. After Kenco issued petitioner the PIP on September 5, 2018, Steve
Raso, network human resource manager, told petitioner to go home and think about what he
would like to do, so petitioner left work.
¶ 15 On September 6, 2018, petitioner filed charge No. 2019-SF-0327 with the
Department alleging discrimination. That charge was eventually dismissed, and the Commission
affirmed the dismissal. This court affirmed the Commission’s dismissal in Brummett v. Illinois
Human Rights Comm’n, 2021 IL App (4th) 200056-U.
¶ 16 Also, on September 6, 2018, petitioner went to his doctor, who prescribed him
medication and advised him to take a few days off work. Petitioner e-mailed Raso and informed
him he planned to take a few days off. Petitioner also informed Raso he filed a charge with the
Department. Raso told petitioner he could take a few days off.
¶ 17 On September 10, 2018, petitioner returned to work. When petitioner returned to
work, he filled out the employee section of the PIP. In the employee section, petitioner stated,
“in his opinion, there was nothing wrong with his performance. He stated that he was doing just
as good as all of the other white Operation Supervisors who started at the same time as him***.
[Petitioner] stated that if he was placed on a PIP, they should have been too. [Petitioner] stated
that because of that, he disagreed with the PIP.” Petitioner refused to sign the PIP. Petitioner
e-mailed his response to the PIP to Raso, Thacker, and Moritz.
-4- ¶ 18 After petitioner e-mailed his response to the PIP to Raso, Raso told him “he did
not like the way [petitioner] had responded to the PIP.” Raso told petitioner to respond
differently. Petitioner refused to change his response.
¶ 19 Petitioner also alleged that when he returned to work on September 10, 2018,
Aaron Giles, lead worker, disrespected him. Further, petitioner alleged that on September 22,
2018, Moritz yelled at him in front of his associates, which petitioner found disrespectful.
Petitioner never alleged anyone made racial comments to him or made remarks to him about his
prior complaints.
¶ 20 Also, in mid-September, petitioner alleged Moritz and Thacker both started
“ignoring him.” Petitioner also believed Moritz intentionally “locked” a cart that he needed to
use to get from place to place at Kenco.
¶ 21 In October 2018, petitioner met with Raso and Eddie Register, owner, to go over
his PIP. Petitioner alleged Raso tried to “coach” petitioner on how to respond to the PIP.
Petitioner submitted an additional response to the PIP stating, “he was meeting expectations and
how he was currently doing a good job.” Petitioner again refused to sign the PIP.
¶ 22 Raso stated a PIP is created “to try to help an employee succeed.” Specifically, a
PIP is not considered discipline, but rather a tool to help the employee and company work
together on a plan. Raso alleged Thacker expressed concerns with petitioner’s work in July 2018
and they thought placing him on a PIP would help him improve.
¶ 23 Raso stated “he was spoon feeding” petitioner on how to answer the PIP.
However, petitioner “believed his first response was correct, in that he was doing nothing
wrong.” Raso also stated he gave out several PIPs during the same time period. David Allen,
-5- operation supervisor, Dwyane Morley, operation supervisor, and Moritz all received PIPs based
on their performance. All three men are white.
¶ 24 Also, in October 2018, Korey Brisch, safety supervisor, told petitioner he wanted
him to turn in safety inspection checklists at the beginning of the shift as opposed to at the end of
the shift. Petitioner declined to change how he submitted safety checklists because he thought it
violated Kenco’s company policy. Petitioner alleged Brisch “yelled at him in front of his
associates that he was reporting this to Thacker.”
¶ 25 Brisch stated that he informed petitioner the safety inspection checklists needed to
be distributed at the beginning of a shift, but petitioner refused to sign off or comply. Brisch told
petitioner such practice was not in violation of any policy. When petitioner failed to comply,
Brisch documented his interaction with petitioner and e-mailed it to Moritz and Raso. Brisch
stated “no mention was made to [petitioner’s] race at any time, and he did not know that
[petitioner] had filed a charge with [the Department].”
¶ 26 On October 29, 2018, several employees told petitioner that they had heard Kenco
was instructing employees to watch petitioner and report any behavior that was “out of
character.” In response, petitioner e-mailed Raso. Raso instructed petitioner to take a few days
off work while Raso investigated. On October 31, 2018, Raso and Marti Donovan, human
resource business partner, called petitioner at home and asked him questions about his allegation
of the “out of character” behavior watching. On November 2, 2018, Raso notified petitioner in
an e-mail “that he had not found any evidence to corroborate the allegation.”
¶ 27 Raso stated that during September and October 2018, petitioner contacted him
several times about things “not being fair.” Raso asserted that petitioner “was just not happy
with what was occurring with the PIP and coworkers, it was a ‘common theme’ with petitioner.”
-6- Raso never observed any discrimination toward petitioner based on race or retaliation. Raso
reaffirmed that he investigated the rumor about other employees watching petitioner for any “out
of character” behavior but did not find any evidence that this occurred.
¶ 28 Thacker stated only he and Moritz gauged petitioner’s behavior. Thacker asserted
that either petitioner or someone else “fabricated” the rumor about watching petitioner’s
behavior.
¶ 29 Based on the information compiled in its investigation report, the Department
recommended all counts be dismissed based on a lack of substantial evidence.
¶ 30 2. Charge No. 2019-SF-0736
¶ 31 In October 2019, the Department prepared an “Investigation Report” on
petitioner’s allegations, which revealed the sequence of events described in charge No.
2019-SF-0645 above and the following.
¶ 32 On October 30, 2018, petitioner filed charge No. 2019-SF-0645 with the
Department. On November 2, 2018, Kenco discharged petitioner for non-compliance with the
PIP process.
¶ 33 As related to discharge, in September 2018, Raso provided the PIP to petitioner
and informed petitioner, “if not successful with the PIP, termination could happen.” Raso also
explained to petitioner what was expected from him. After petitioner refused to sign or comply
with the PIP, as outlined above, Raso, by e-mail, notified petitioner of his discharge and sent him
a letter of termination. Raso stated, “Allen and Moritz were later terminated for not successfully
completing the PIP process.” Raso alleged petitioner never complained of racial harassment or
retaliation, just that he “did not feel it was fair and in general he was not being treated fairly.” At
the time of petitioner’s termination, Kenco was aware of petitioner’s first charge with the
-7- Department (charge No. 2019-SF-0327), but it was not aware of his second charge with the
Department (charge No. 2019-SF-0645).
¶ 34 Based on the information compiled in its investigation report, the Department
recommended all counts be dismissed based on a lack of substantial evidence.
¶ 35 C. Commission’s Order
¶ 36 1. Charge No. 2019-SF-0645
¶ 37 In January 2020, petitioner filed a timely request for review with the Commission.
In February 2020, the Department filed a response to petitioner’s request for review. In March
2020, petitioner filed a reply to the Department’s response.
¶ 38 In August 2020, the Commission entered a written order sustaining the
Department’s dismissal for lack of substantial evidence. In its order, the Commission found the
following.
¶ 39 As to counts A and B, petitioner argued he was harassed because of his race
(black) and in retaliation for filing the previous charge. However, the Commission found both
counts failed, as none of the allegations showed animus towards petitioner based on race or in
retaliation. The Commission further stated,
“[E]ven taking Petitioner’s allegations as true, the complained-of
actions do not meet the legal standard for harassment. Harassment
must be so severe or pervasive that it alters the conditions of
employment and creates an abusive working environment. Harris
v. Forklift Sys., Inc., 510 U.S. 17, 20, (1993). Whether an
environment is ‘hostile’ or ‘abusive’ can be determined only by
looking at all the circumstances, including ‘the frequency of the
-8- discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance’ Id. at 23. Petitioner alleges isolated incidents of
hostility from Moritz and Thacker, who supervised him, but heavy-
handed management does not constitute harassment. Patel v.
Allstate Insurance, 105 F.3d 365, 373 (7th Cir. 1997); In re
Request for Review of Zoie Reneau, IHRC, ALS 16-0059, 2019
WL 3048672 (June 11, 2019). The last incident (that employees
had been instructed to report to Employer if Petitioner did
something ‘out of character’) is not harassment but typical
management, given the context that Employer was already
displeased with Petitioner’s performance and had issued the PIP.”
¶ 40 As to count C, petitioner alleged he was issued the PIP and accused of submitting
safety checklists incorrectly because of his race. The Commission stated,
“To present a prima facie case, Petitioner must show: 1) he is a
member of a protected class; 2) he was performing his work
satisfactorily; 3) he was subject to an adverse action; and 4) the
Employer treated a similarly situated employee outside his
protected class more favorably under similar circumstances.
Marinelli v. Illinois Human Rights Comm’n, 262 Ill. App. 3d 247,
253-54[, 634 N.E.2d 463, 469] (***1994). Count C fails at the
third prong. Adverse action must be ‘more disruptive than a mere
-9- inconvenience or an alteration of job responsibilities,’ such as
termination, decrease in wages, or material loss of benefits.
Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002); In re Request
for Review of Gene A Willingham, IHRC, ALS 16-362, 2019 WL
2024323 (Apr. 10, 2019). Examples of adverse action include
hiring, firing, failure to promote, reassignment with significantly
different responsibilities, or a significant change in benefits.
Young v. Illinois Human Rights Comm’n, 2012 IL App (1st)
112204, ¶ 35[, 974 N.E.2d 385]. Negative performance
evaluations, standing alone, do not qualify. Smart v. Ball State
Univ., 89 F.3d 437, 441-42 (7th Cir. 1996). The same would apply
to being accused of submitting safety checklists incorrectly.”
¶ 41 As to count D, petitioner alleged he was issued the PIP and accused of submitting
safety checklists incorrectly in retaliation for filing his previous charge with the Department in
charge No. 2019-SF-0327. The Commission found,
“A prima facie case of retaliation requires evidence that the
Petitioner engaged in a protected activity, that they suffered an
adverse action, and that there is evidence of a causal connection
between the protected activity and the adverse action. See Welch
v. Hoeh, 314 Ill. App. 3d 1027, 1035[, 733 N.E.2d 410, 416]
(*** 2000). The standard for adverse action is lower for a
retaliation claim than a claim of discrimination based on a
protected class. Hoffelt v. Illinois Dep’t of Human Rights, 367 Ill.
- 10 - App. 3d 628, 635-36[, 867 N.E.2d 14, 19-20] (*** 2006). If the
Petitioner presents a prima facie case, the Employer must then
produce a legitimate, nondiscriminatory reason for its action, and
Petitioner must prove that this reason is a pretext for
discrimination. Zaderaka v. Illinois Human Rights Comm’n, 131
Ill. 2d 172, 179[, 545 N.E.2d 684, 687-88] (1989).
Assuming that Petitioner presented a prima facie case,
Employer proffers that it issued the PIP because his work
performance was poor, and accused him of submitting safety
checklists incorrectly because he had misunderstood Employer’s
policy. Petitioner has not presented any evidence that these
reasons were pretextual. See Rand v. CF Indus., Inc., 42 F.3d
1139, 1145 (7th Cir. 1994) (‘A plaintiff can establish pretext by
showing either that a discriminatory reason more likely motivated
the employer or that the employer’s proffered explanation is
unworthy of credence.’). The Commission does not sit as a
‘super-personnel department’ to examine an employer’s business
decisions, even if those decisions seem ‘high-handed’ or
‘mistaken.’ Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7th Cir.
2002) (citations omitted).”
¶ 42 Ultimately, the Commission found petitioner failed to present sufficient evidence
to show the Department’s dismissal of the charges was not in accordance with the Act.
¶ 43 2. Charge No. 2019-SF-0736
- 11 - ¶ 44 In January 2020, petitioner filed a timely request for review with the Commission.
In February 2020, the Department filed a response to petitioner’s request for review. In March
¶ 45 In August 2020, the Commission entered a written order sustaining the
Department’s dismissal for lack of substantial evidence. In its order, the Commission found the
¶ 46 As stated above in charge No. 2019-SF-0645, the Commission described the
evidence petitioner needed to present a prima facie case of racial discrimination (count A) and
retaliation (count B). Then, the Commission found as follows:
“Here, Employer proffers that Petitioner was discharged
because, despite their encouragement, Petitioner refused to
participate in the PIP process. Petitioner and Employer agree that
Petitioner would not acknowledge any deficiencies in his work,
and he therefore would not follow Employer’s instructions to sign
the PIP and comply with it. This constitutes a legitimate,
nondiscriminatory reason for the discharge, and Petitioner has not
proven that his was pretextual. In his Request (and the attendant
Reply), Petitioner merely reiterates the same evidence he already
alleged in ALS Nos. 19-0402 and 20-0028 [charge No. 2019-SF-
0327 and charge No. 2019-SF-0645]. He strongly disagrees with
Employer’s evaluation of his work, but has not proven that
Employer’s actions were motivated by racial animus or a desire to
retaliate. See Rand v. CF Indus., Inc., 42 F.3d 1139, 1145 (7th Cir.
- 12 - 1994) (‘A plaintiff can establish pretext by showing either that a
discriminatory reason more likely motivated the employer or that
the employer’s proffered explanation is unworthy of credence.’).
The Commission does not sit as a ‘super-personnel department’ to
examine an employer’s business decisions, even if those decisions
seem ‘high-handed’ or ‘mistaken.’ Millbrook v. IBP, Inc., 280
F.3d 1169, 1181 (7th Cir. 2002) (citations omitted).”
¶ 47 Ultimately, the Commission found petitioner failed to present sufficient evidence
to show the Department’s dismissal of the charges was not in accordance with the Act.
¶ 48 Following the Commission’s orders, petitioner appealed to this court. See Ill. S.
Ct. R. 335(a) (eff. July 1, 2017); 775 ILCS 5/8-111(B)(1) (West 2018) (“Any [petitioner] or
respondent may apply for and obtain judicial review of a final order of the Commission entered
under this Act by filing a petition for review in the Appellate Court.”).
¶ 49 This appeal followed.
¶ 50 II. ANALYSIS
¶ 51 On appeal, petitioner argues this court must reverse the Commission’s orders
sustaining the dismissal of his charges because he presented substantial evidence of unlawful
harassment, discrimination, and retaliation. The Commission argues it did not abuse its
discretion in sustaining the Department’s dismissal of petitioner’s charges based on a lack of
substantial evidence. We agree with the Commission.
¶ 52 A. The Act and Standard of Review
¶ 53 The Act provides it is a civil rights violation for an employer “to act with respect
to *** discharge [or] discipline *** on the basis of unlawful discrimination.” 775 ILCS
- 13 - 5/2-102(A) (West 2018). “Unlawful discrimination” means, in part, discrimination against a
person because of that person’s race, color, ancestry, or sex. Id. § 1-103(Q). It is also a civil
rights violation to “[r]etaliate against a person because he or she has opposed that which he or
she reasonably and in good faith believes to be unlawful discrimination.” Id. § 6-101(A). Where
“a civil rights violation allegedly has been committed, a charge *** may be filed with the
Department by an aggrieved party.” Id. § 7A-102(A)(1). Once a charge has been filed, “the
Department shall conduct an investigation sufficient to determine whether the allegations set
forth in the charge are supported by substantial evidence.” Id. § 7A-102(C)(1). If not supported
by substantial evidence, the charge must be dismissed, and the petitioner must be informed of his
right to seek review of the dismissal order before the Commission. Id. § 7A-102(D)(3). If the
Commission sustains the dismissal, the petitioner may appeal directly to this court from the
Commission’s order. Id. § 8-111(B)(1); Ill. S. Ct. R. 335(a) (eff. July 1, 2017).
¶ 54 This court reviews the Commission’s order for an abuse of discretion. Young,
2012 IL App (1st) 112204, ¶ 32. “Under the abuse of discretion standard, the court should not
disturb the Commission’s decision unless it is arbitrary or capricious” or “where no reasonable
man could agree with the position of the [Commission].” Id. ¶ 33. “A decision is arbitrary or
capricious if it contravenes legislative intent, fails to consider a critical aspect of the matter, or
offer[s] an explanation so implausible that it cannot be regarded as the result of an exercise of the
agency’s expertise.” Id.
¶ 55 B. Employment Discrimination Generally
¶ 56 When analyzing employment discrimination charges brought under the Act, we
follow the framework set forth in federal case law relating to federal anti-discrimination statutes,
including, as relevant here, Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C.
- 14 - § 2000e et seq. (1982)). See Zaderaka, 131 Ill. 2d at 178 (stating claims under the Human
Rights Act are to be evaluated in accordance with federal decisions interpreting federal
anti-discrimination laws).
¶ 57 Discrimination can be proved through either direct or indirect evidence. Sola v.
Illinois Human Rights Comm’n, 316 Ill. App. 3d 528, 536, 736 N.E.2d 1150, 1157 (2000).
Direct evidence of discrimination is evidence an employer “placed substantial reliance” on a
prohibited factor—such as petitioner’s race, age, or disability—in making its employment
decision. See Lalvani v. Illinois Human Rights Comm’n, 324 Ill. App. 3d 774, 790, 755 N.E.2d
51, 65 (2001). Where, as in these cases, direct evidence is not available, the petitioner may use
indirect evidence. Sola, 316 Ill. App. 3d at 536.
¶ 58 To prove discrimination indirectly, Illinois courts follow the three-part test
announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by the
Illinois Supreme Court in Zaderaka, 131 Ill. 2d at 178-79. The employee must first establish by
a preponderance of the evidence a prima facie case of unlawful discrimination. Zaderaka, 131
Ill. 2d at 178-79. If the employee establishes a prima facie case, a rebuttable presumption arises
that the employer unlawfully discriminated against the employee, which the employer may rebut
by providing a legitimate, nondiscriminatory reason for its adverse employment decision. Id. at
179. Finally, if the employer rebuts the presumption, the employee must prove by a
preponderance of the evidence that the employer’s proffered reason was merely pretext for
unlawful discrimination. Id.
¶ 59 C. Charge No. 2019-SF-0645
¶ 60 In charge No. 2019-SF-0645, the Commission sustained the Department’s
dismissal of petitioner’s charges where he failed to present substantial evidence of unlawful
- 15 - harassment, discrimination, or retaliation under any of the four counts. We review each count in
turn.
¶ 61 1. Harassment
¶ 62 We turn first to petitioner’s harassment claims (counts A and B). Petitioner
argues the Commission abused its discretion when it sustained the dismissal of his harassment
claims. Specifically, petitioner alleged he was harassed (1) due to his race where Kenco
instructed other employees to watch him and report back if he did anything “out of character”
and (2) in retaliation for making an internal complaint in August 2018 about harassment by an
unnamed supervisor and for filing a previous charge with the Department in charge No.
2019-SF-0327.
¶ 63 For a claim of harassment to be actionable, petitioner must show: (1) he was
subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by
anti-discrimination laws; (3) the harassment was so severe or pervasive that it altered the
conditions of employment and created a hostile or abusive working environment; and (4) a basis
for employer liability. Smith v. Illinois Department of Transportation, 936 F.3d 554, 560 (7th
Cir. 2019).
¶ 64 Here, the Commission did not abuse its discretion in sustaining the dismissal of
petitioner’s harassment claims because petitioner’s allegations failed to show animus toward
petitioner based on race or in retaliation. We agree with the Commission that even taking
petitioner’s allegations as true, the complained of actions did not rise to the level of harassment.
The Commission reasoned that even if the incident petitioner alleged where he heard a rumor
that Kenco instructed employees to watch petitioner and report back if he did something “out of
character” was taken as true, it did not constitute harassment but rather typical management.
- 16 - Specifically, the Commission reasoned given Kenco’s displeasure with petitioner’s performance
and its issuance of a PIP, this management style did not amount to harassment.
¶ 65 Further, during the Department’s investigation into petitioner’s claims of
harassment, petitioner alleged in addition to the rumor, that he experienced isolated incidents of
harassment. Specifically, (1) Giles disrespected him; (2) Moritz “yelled” at him in front of other
employees; (3) Moritz and Thacker ignored him; and (4) Moritz locked a cart that petitioner
needed to use. The Commission found these “isolated incidents of hostility” by his supervisors
were incidents of heavy-handed management that did not constitute harassment. Petitioner never
alleged anyone made racial comments to him or took actions based on his race. While petitioner
may have found others’ actions disrespectful, he failed to present any evidence those actions
were motivated by race or in retaliation for filing another charge with the Department.
Accordingly, we find no abuse of discretion where the Commission sustained the dismissal of
petitioner’s harassment claims.
¶ 66 2. Unequal Terms and Conditions of Employment
¶ 67 We turn next to petitioner’s claims he was subjected to unequal terms and
conditions of his employment on the basis of race (count C) and in retaliation for engaging in
protected activities (count D) where Kenco (1) required him to change his written response to the
PIP despite his belief his work performance met Kenco’s expectations and (2) told him to collect
and review safety checklists from his subordinates at the beginning of the work shift although
such instruction violated Kenco’s policy.
¶ 68 a. Discrimination
¶ 69 “To establish a prima facie case of employment discrimination, the petitioner
must first show that (1) he is a member of a protected class; (2) he was meeting his employer’s
- 17 - legitimate business expectations; (3) he suffered an adverse employment action; and (4) the
employer treated similarly situated employees outside the class more favorably.” Owens v.
Department of Human Rights, 403 Ill. App. 3d 899, 919, 936 N.E.2d 623, 640 (2010). “A
materially adverse employment action is ‘one that significantly alters the terms and conditions of
the employee’s job’ ” and “include[s] things such as hiring, denial of promotion, reassignment to
a position with significantly different job responsibilities, or an action that causes a substantial
change in benefits.” Id. at 919 (quoting Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004).
¶ 70 Here, the Commission did not abuse its discretion in sustaining the dismissal of
petitioner’s discrimination claim because he did not suffer an adverse employment action. The
Commission found negative performance evaluations and being accused of submitting safety
checklists incorrectly were not tantamount to denial of promotion, reassignment with
significantly different job responsibilities, substantial change in benefits, or termination. See
Smart, 89 F.3d at 442. Petitioner’s job responsibilities remained the same.
¶ 71 Further, Raso stated a PIP is created “to try to help an employee succeed.”
Specifically, a PIP is not considered discipline, but rather a tool to help the employee and
company work together on a plan for improvement. Based on Thacker and Moritz’s
observations of petitioner’s work, it was determined a PIP was necessary to help petitioner
improve—not to discipline him. Raso also stated he gave out several PIPs during the same time
to other employees. Allen, Morley, and Moritz all received PIPs based on their performance.
All three men are white. In addition, petitioner never alleged anyone made racial comments to
him.
¶ 72 Accordingly, we find the Commission did not abuse its discretion when it
sustained the dismissal of petitioner’s racial discrimination claim.
- 18 - ¶ 73 b. Retaliation
¶ 74 In order to establish a prima facie case of retaliation under the Act, petitioner
must show: (1) he was engaged in a protected activity; (2) his employer committed a material
adverse act against him; and (3) a causal nexus existed between the protected activity and the
adverse act. Hoffelt, 367 Ill. App. 3d at 633. As noted in the Commission’s order, the standard
for determining whether an employer’s act is “materially adverse” is less demanding in
retaliation cases than discrimination cases. See id. at 635-36.
¶ 75 As stated above, the Commission found negative performance evaluations and
being accused of submitting safety checklists incorrectly did not amount to an adverse
employment action. However, we agree with the Commission that even assuming, arguendo,
petitioner established a prima facie case of retaliation, Kenco rebutted the presumption of
retaliation with legitimate, nondiscriminatory reasons for its actions. Specifically, Thacker stated
petitioner’s “performance had been lacking from almost the start. He and Moritz had been
noting [petitioner’s] poor performance.” Thacker disclosed petitioner “was having issues doing
his job properly from almost the beginning of his employment, as well as problem[s] working
with other employees.” In response, Kenco created a PIP for petitioner to try and help petitioner
succeed and improve. Raso stated petitioner submitted a response to the PIP asserting he did not
agree with the PIP’s evaluation of his performance and there was nothing wrong with his
performance. Petitioner refused to sign the PIP. Raso told him “he did not like the way
[petitioner] had responded to the PIP.” Raso told petitioner to respond differently. Petitioner
refused to change his response. Petitioner never alleged anyone made comments to him about
his previous complaints.
- 19 - ¶ 76 Brisch stated he told petitioner he wanted him to turn in safety inspection
checklists at the beginning of the shift as opposed to how he did it at the end of the shift.
Petitioner declined to sign off or change how he submitted safety checklists because he thought it
violated Kenco’s company policy. Brisch told petitioner such practice was not in violation of
any policy. When petitioner failed to comply, Brisch documented his interaction with petitioner
and e-mailed it to Moritz and Raso. Brisch stated “no mention was made to [petitioner’s] race at
any time, and he did not know that [petitioner] had filed a charge with [the Department].”
¶ 77 In turn, petitioner failed to provide any evidence Kenco’s cited reasons for issuing
the PIP and asking him to submit safety checklists at the beginning of the shift were pretextual.
Accordingly, we find the Commission did not abuse its discretion when it sustained the dismissal
of petitioner’s retaliation claim.
¶ 78 D. Charge No. 2019-SF-0738
¶ 79 In charge No. 2019-SF-0738, the Commission agreed with the Department that
petitioner failed to present substantial evidence to show he was discharged based on race (count
A) or in retaliation for making an internal complaint in August 2018 regarding harassment by an
unnamed supervisor and for filing previous charges with the Department in charge No.
2019-SF-0327 and charge No. 2019-SF-0645 (count B). We will review these claims, as the
Commission did, under the same discrimination and retaliation standards set forth above.
¶ 80 Here, the Commission did not abuse its discretion in sustaining the dismissal of
petitioner’s claims he was discharged based on race or in retaliation. Even assuming, arguendo,
petitioner established a prima facie case of discrimination and retaliation, Kenco rebutted the
presumption of discrimination and retaliation with legitimate, nondiscriminatory reasons for its
actions. Specifically, Kenco discharged petitioner based on his refusal to participate in the PIP
- 20 - process. Petitioner refused to acknowledge any deficiencies in his work, and therefore declined
to follow Kenco’s instructions to sign the PIP and comply with it. Instead, petitioner maintained
his work met company expectations and he was currently doing a good job. However, Thacker
stated petitioner’s “performance had been lacking from almost the start” and Thacker and Moritz
both noted petitioner’s poor performance. In response, Kenco created a PIP for petitioner to try
and help petitioner succeed and improve. Raso informed petitioner “if he was not successful
with the PIP, termination could happen.” Petitioner continued to refuse to sign the PIP or
comply with the PIP process.
¶ 81 In turn, petitioner failed to provide any evidence Kenco’s reasons for discharging
him were pretextual. While petitioner strongly disagreed with Kenco’s evaluation of his work,
petitioner failed to prove Kenco’s actions were motivated by racial animus or a desire to
retaliate. Raso stated petitioner never complained of racial discrimination or retaliation, just that
he “did not feel it was fair and in general he was not being treated fairly.” The Commission
stated in its order, and we agree, the Commission “does not sit as a ‘super-personnel department’
to examine an employer’s business decisions, even if those decisions seem ‘high-handed’ or
‘mistaken.’ ” See Millbrook, 280 F.3d at 1181.
¶ 82 Moreover, the evidence showed that after petitioner’s dismissal, two other
employees, Allen and Moritz, were also terminated for not successfully completing the PIP
process. Both men are white. Also, at the time of petitioner’s termination, Kenco acknowledged
it was aware of petitioner’s first charge with the Department in charge No. 2019-SF-0327, but it
was not aware of his second charge with the Department in charge No. 2019-SF-0645. Based on
the evidence, we find the Commission did not abuse its discretion when it sustained the
- 21 - Department’s dismissal for lack of substantial evidence because the evidence failed to show
petitioner was discharged based on race or in retaliation.
¶ 83 III. CONCLUSION
¶ 84 For the reasons stated, we affirm the Commission’s order.
¶ 85 Affirmed.
- 22 -