Cannon v. Illinois Human Rights Comm'n

2021 IL App (3d) 190280-U

• Court: Appellate Court of Illinois
• Decided: April 14, 2021
• Docket: 3-19-0280
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190280-U

Order filed April 14, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

ANDREA CANNON, ) Petition for Review of Order ) of the Illinois Human Rights Petitioner-Appellant, ) Commission dated April 11, ) 2019. v. ) ) ILLINOIS OF HUMAN RIGHTS ) Charge No. 2015SE1292 COMMISSION, ILLINOIS DEPARTMENT ) OF HUMAN RIGHTS, AND ) SPRINT/UNITED MANAGEMENT CO., ) Appeal from a Decision of ) the Illinois Human Rights Respondents-Appellees. ) Commission. ____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court. Justices Daugherity and O’Brien concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The Illinois Human Rights Commission did not abuse its discretion in sustaining the Illinois Department of Human Rights conclusion that petitioner’s charge of discrimination lacked substantial evidence.

¶2 Petitioner, Andrea Cannon, appeals from a final order entered by the Human Rights

Commission sustaining the Department of Human Right’s dismissal of her charges of employment

discrimination against her former employer, Sprint/United Management Company. We affirm. ¶3 I. BACKGROUND

¶4 On September 11, 2014, petitioner filed a charge of discrimination with respondent

alleging that her employer, Sprint, discharged her due to her race (black). Sprint hired petitioner

as an indirect account executive. Her responsibilities included informing and training sales

associates at outside vendors. Her role involved visiting stores and ensuring that signage, handouts,

and product knowledge were current.

¶5 On August 5, 2015, the Department dismissed petitioner’s claim that Sprint discharged her

due to her race for lack of substantial evidence. The Department provided an investigation report

summarizing the evidence it obtained. The Department interviewed five witnesses: petitioner,

Melissa Baker (former supervisor), Dorie Sonley (human resources), Amalie Aguirre (supervisor),

and Jennifer Hurley (coworker). The Report summarized the evidence as follows.

¶6 Petitioner’s evidence alleged that in June 2013, she received a written warning by her then-

manager Dave Arroyo for missing two expired pieces of signage during a mock audit of one of the

stores in her territory. In December 2013, she received a final warning for telling a customer that

“you’re kinda acting like a brat.” Petitioner appealed the final warning, which was reduced to a

written warning.

¶7 Petitioner stated that in March 2014, Amalie Aguirre became her supervisor. Aguirre

would accompany petitioner when she visited petitioner’s stores. Petitioner alleged that Aguirre

never found anything wrong with her stores. On June 14, 2014, Aguirre discharged petitioner for

having expired posters in a store.

¶8 Petitioner alleged that other employees: Jennifer Hurley (white), Austin Sutton (white),

Ashley Alwein (white), Elizabeth Morelos (Hispanic) and Angel Gomez (Puerto Rican) had not

received written warnings for expired signage and discharged like petitioner.

2 ¶9 Petitioner’s coworker, Jennifer Hurley, stated that she was never written up for expired

signage in one of her stores.

¶ 10 The Department summarized Sprint’s evidence as follows. According to Dorie Sonley, a

human resources representative for Sprint, in September 2012, petitioner had a coaching session

with her then-supervisor, Dave Arroyo, in an attempt to improve petitioner’s performance. Sonley

stated that petitioner’s performance did not improve; she received a written warning in June 2013

for failing to effectively audit one of the stores in her territory.

¶ 11 Baker, who took over supervision of petitioner in September of 2013, began hearing

complaints from some of the dealers regarding the quality of petitioner’s visits. In November 2013,

Abdul Elijah e-mailed Baker to complain that he was offended by petitioner’s behavior during a

phone call in which she acted aggressively and called him a “brat.” Baker met with petitioner on

November 14, 2013, to address her concerns regarding the effectiveness of petitioner’s store visits

and Elijah’s complaints. On December 12, 2013, she provided petitioner with a final written

warning document and allowed petitioner to provide additional comments in response to the

warning.

¶ 12 In response to the warning, petitioner e-mailed Sprint’s director of prepaid sales and human

resources to discuss her corrective action using Sprint’s Open Door Review. Sonley met with

petitioner to discuss her corrective action. As a result of the Open Door Review, Sprint reduced

petitioner’s final warning to a written warning.

¶ 13 Aguirre, who became petitioner’s supervisor in March of 2014, stated that she began doing

occasional ride-along visits with petitioner to track petitioner’s performance. In May 2014, Aguirre

learned that petitioner had failed to make several stores aware of new rate plans before petitioner

left on vacation. As a result, the stores were selling old plans that would negatively impact

3 customers. Aguirre contacted petitioner and instructed her to immediately inform her stores to

cease selling old plans and to make those stores aware of the new plans.

¶ 14 Aguirre made a routine unannounced visit to petitioner’s territory to inspect four of her

stores on May 21, 2014. Aguirre described the visits as “shocking.” Petitioner had failed to address

“serious placement and or training issues” at every store Aguirre visited. Three of the four stores

lacked insurance handouts and employees were unaware of current insurance promotions and

services. Three of the four stores had expired signage, two had employees that were unaware of

pricing changes, and one contained a completely empty space where Sprint’s signage should have

been. Aguirre noted that one of the stores she inspected had been visited by petitioner an hour and

a half before the review.

¶ 15 Aguirre met with the human resources department to discuss petitioner’s performance.

Aguirre believed that petitioner failed to improve her performance. Aguirre and the district

manager then made the decision to discharge petitioner on June 13, 2014.

¶ 16 Sonley explained that petitioner used Sprint’s Alternate Dispute Resolution Process to

contest her discharge. Her discharge was upheld due to her job performance issues. Sonley

explained that petitioner’s comparatives Jennifer Hurley (white), Austin Sutton (white), and

Elizabeth Morelos (Hispanic), were all indirect account executives who reported to Aguirre and

Arroyo. Sonley indicated that none of these employees demonstrated the same chronic

performance issues as petitioner. None of these employees received corrective actions for

performance. However, in 2012 and 2013, three employees received correction action for their

performance issues and all self-identified as race white.

¶ 17 Petitioner filed a request for review of the Department’s dismissal with the Commission.

The Department filed a response, which agreed with petitioner, and requested for the Department

4 to vacate the dismissal. Upon review of the petitioner’s request, the Commission vacated

respondent’s dismissal and remanded the charge back to the Department for further investigation.

¶ 18 On June 27, 2016, the Department again dismissed petitioner’s charge of discrimination

for lack of substantial evidence. The Department created a new Report that included additional

evidence from its investigation. The Department attempted to contact several other witnesses

identified by petitioner. Those witnesses included: Ashley Alwein (coworker); Austin Sutton

(coworker); Elizabeth Morelos (coworker); Dave Arroyo (former manager); Angel Gomez

(manager), Jamal Zied (outside vendor); and Laura Ball (coworker). However, those witnesses

either declined to comment, did not return the Department’s call, or did not know petitioner.

¶ 19 Hurley did provide additional statements to the Department. Hurley stated that Aguirre had

treated her “poorly” and referred to her as “white girl.” Hurley recalled Aguirre making

inappropriate comments to her at a Christmas party, but did not recall the substance of the

comments. Hurley believed that Aguirre targeted petitioner but noted that Aguirre “did that to a

lot of people.”

¶ 20 In response to the Department’s decision, petitioner filed a second request for review with

the Commission. The Commission concluded that petitioner’s claim lacked substantial evidence

and the Commission sustained the Department’s dismissal. Petitioner appeals.

¶ 21 II. ANALYSIS

¶ 22 On appeal, petitioner does not contend that the Commission erred in finding her claim that

Sprint discharged her based on her race lacked substantial evidence. In fact, she concedes that it

lacked substantial evidence. Instead, she contends that the Commission abused its discretion in

sustaining the dismissal of her charge because she believes the Department performed an

inadequate investigation.

5 ¶ 23 We review the decision of the Commission under an abuse of discretion standard. Young

v. Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 32. Under the abuse of discretion

standard, this court should not disturb the Commission’s decision unless it is arbitrary or

capricious. Owens v. Department of Human Rights, 403 Ill. App. 3d 899, 917 (2010). A decision

is arbitrary or capricious if it contravenes legislative intent, fails to consider a critical aspect of the

matter, or offers an explanation so implausible that it cannot be regarded as the result of an exercise

of the agency’s expertise. LaSalle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 786

(2001). Under this standard, the court may not reweigh the evidence or substitute its judgment for

that of the Commission. Owens, 403 Ill. App. 3d at 917. Abuse of discretion will be found where

no reasonable person could agree with the position of the lower court. Matthews v. Avalon

Petroleum Co., 375 Ill. App. 3d 1, 9 (2007).

¶ 24 Petitioner claims the Commission abused its discretion in sustaining the dismissal of her

charge for two reasons. First, she notes that the Department’s investigation Report relied on

exhibits, which were not included in the record. According to petitioner, the Commission failed to

consider the evidence supporting of the Report. Petitioner’s argument fails in that it is her burden

to establish a prima facie case of discrimination. See Zaderaka v. Illinois Human Rights Comm’n,

131 Ill. 2d 172, 178-79 (1989). The Illinois Human Rights Act (Act) (775 ILCS 5/1-101, et seq.

(West 2018)) permits petitioner to submit additional evidence and argument to the Commission

with the request for review. Parham v. Macomb Unit School District No. 185, 231 Ill. App. 3d

764, 770 (1992); 775 ILCS 5/8-103(B) (West 2018). Petitioner could have submitted the evidence

she believed the Commission should have considered for its review. She did not do so. She cannot

contend now that the Commission relied upon an incomplete record. See Young, 2012 IL App (1st)

112204, ¶ 50.

6 ¶ 25 Petitioner’s argument also fails as there is no requirement that the Department attach

supporting evidence to its Report. On request for review, the Commission considers the Report,

any argument or supplemental evidence, and the results of any additional investigation conducted

by the Department in response to the request for review. 775 ILCS 5/8-103(B) (West 2014). When

the Department opposes a request for review, the Act only requires it to submit to the Commission:

“1) a copy of the Charge, including amendments.

2) the Department’s investigation report.

3) results of additional DHR investigation, if any.

4) a statement of DHR’s position, including proposed findings to support

dismissal.” 56 Ill. Admin. Code § 5300.430.

There is no requirement to include the full investigative file, or the exhibits referenced in the

Department’s report.

¶ 26 Petitioner’s second claim that the Commission abused its discretion is based upon her belief

that the Department failed to conduct a full investigation into her allegations. She points to several

issues with the Department’s Report that she believes established that the Department failed to

conduct an adequate investigation. The Department fulfills its statutory duty to investigate a charge

of discrimination when it investigates “the verifiable facts tending to show the circumstances and

causes of petitioner’s dismissal.” See Parham, 231 Ill. App. 3d at 771; see also 775 ILCS 5/7A-

102(C)(1) (West 2018).

¶ 27 We find the Department fully investigated the verifiable facts tending to show the

circumstances and causes of petitioner’s discharge, which resulted in a finding of a lack of

substantial evidence of discharge based on her race. The Department interviewed petitioner, her

former supervisors (Baker and Aguirre), her coworker (Hurley), and a human resources

7 representative (Sonley). The Department also obtained documentary evidence relevant to

petitioner’s discharge, including: (1) corrective actions on June 10, 2013, December 12, 2013, and

January 10, 2014; (2) her response to the January 10, 2014, corrective action; (3) her job

description; and (4) Sprint’s dispute resolution and Open Door Review policies. This evidence

showed that Sprint discharged petitioner for performance issues consistent with its progressive

discipline policy. That “petitioner does not concur with the result of that investigation is an

insufficient basis for claiming the investigation itself was deficient.” Parham, 231 Ill. App. 3d at

771.

¶ 28 Nevertheless, petitioner claims that the Department should have made more attempts to

contact additional witnesses including Alwein, Sutton, and Morelos to ascertain if they had any

first-hand knowledge of whether she was discharged due to her race. As petitioner concedes, the

Department did in fact attempt to contact these witnesses. The unwillingness of these witnesses to

provide statements does not render the investigation insufficient.

¶ 29 In reaching this conclusion, we reject petitioner’s claim that the Department should have

compelled the uncooperative witnesses to speak with the Department by requesting subpoenas.

Initially, we note that it is petitioner’s burden to present substantial evidence supporting her charge

of discrimination. See Zaderaka, 131 Ill. 2d at 178-79. While the Act authorizes the Department

to request the issuance of subpoenas (775 ILCS 5/7A-102(C)(2) West 2018), it is not required to

do so. Chicago Transit Authority v. Illinois Department of Human Rights, 169 Ill. App. 3d 749,

755 (1988). Furthermore, the Department’s failure to interview all potential witnesses identified

by the petitioner does not render the Department’s investigation inadequate. See Kalush v. Illinois

Department of Human Rights Chief Legal Counsel, 298 Ill. App. 3d 980, 990 (1998); Parham, 231

Ill. App. 3d at 770.

8 ¶ 30 Petitioner also contends that the Department’s Report contained vague, conclusory, or

hearsay statements that no other account executive had performance issues like petitioner.

Petitioner further claims that the Department should have asked Hurley more questions about her

interactions with Aguirre. The Department’s Report is a summary of the evidence it obtained, not

a detailed recitation of all information gathered during the course of its interviews. Also, the Report

detailed how petitioner had a history of disciplinary action. By contrast, the other individuals did

not receive corrective action because any incidents of expired signage in their stores were isolated.

In other words, none of the other employees had the same chronic performance issues that

petitioner demonstrated.

¶ 31 Finally, we reject petitioner’s claim that the Department’s Report contained impermissible

credibility findings. According to petitioner, because the Department’s Report omitted her

“extensive and fairly comprehensive statements regarding her job performance and the

circumstances of her termination,” the Department must have found that she lacked credibility. As

noted, if petitioner believed that the Department failed to fairly present her statements in the

Report, she could have submitted additional evidence along with her request for the Commission’s

review. See 775 ILCS 5/8-103(B) (West 2018).

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, we affirm the decision of the Illinois Human Rights

Commission.

¶ 34 Decision affirmed.