2020 IL App (1st) 191855-U
SECOND DIVISION May 12, 2020
No. 1-19-1855
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
____________________________________________________________________________
TRACEY J. ELLIS, ) Petition for Direct Administrative ) Review of a Decision of the Illinois Petitioner-Appellant, ) Human Rights Commission. ) v. ) ) No. 2018 CF 1034 ILLINOIS HUMAN RIGHTS COMMISSION, ) ILLINOIS DEPARTMENT OF HUMAN ) RIGHTS, and LAWRENCE MERCHANDISING, ) LLC, d/b/a LAWRENCE MERCHANDISING ) SERVICES, ) ) Respondents-Appellees. ) ____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Pucinski and Coghlan concurred in the judgment.
ORDER
HELD: The Illinois Human Rights Commission did not abuse its discretion by sustaining the dismissal of petitioner’s charge of unlawful employment discrimination for lack of substantial evidence. No. 1-19-1855
¶1 Petitioner-appellant Tracey J. Ellis (petitioner) appeals pro se from a final order entered
by respondent-appellee the Illinois Human Rights Commission (Commission) sustaining
respondent-appellee the Illinois Department of Human Rights’ (Department) dismissal of her
charge of unlawful employment discrimination against respondent-appellee Lawrence
Merchandising, LLC, d/b/a Lawrence Merchandising Services (LMS). Petitioner alleged that
LMS unlawfully discharged her from its employ based on her race in violation of section 5-
102(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/5-102(A) (West 2016)). The
Department dismissed her charge for lack of substantial evidence. Petitioner sought review
from the Commission, which sustained the Department’s decision. She now appeals,
contending that the Commission abused its discretion in sustaining the dismissal of her cause.
She asks that we reverse the order entered by the Commission and that we “award [her] a
settlement based on lost wages, benefits, emotional distress, plus reimbursement of filing fee,
and photocopying expenses,” for a total of “at least $30,000.” For the following reasons, we
affirm.
¶2 BACKGROUND
¶3 LMS is a visual merchandising company that provides services to retail stores, including
setting up visual displays, completing inventory, stickering products and placing inventory
on shelves. In May 2017, LMS hired petitioner as a part-time service representative. Her
immediate LMS supervisory was Field Service Coordinator Jordan Imdieke (non-black), and
his supervisor was Field Service Coordinator Supervisor Michelle Borowske (non-black).
¶4 In February 2019, petitioner filed an employment discrimination charge with the
Department alleging that LMS unlawfully discharged her because of her race, which she
described as “black.” In her petition, she averred that she was hired by LMS on a part-time
2 No. 1-19-1855
basis in early May 2017. In September 2017, she was assigned to complete her duties for
LMS at Target retail stores. Petitioner claimed that between this time, her work performance
was “excellent,” she received “positive performance reviews,” and “had no complaints about
her performance.” Petitioner stated that once she started working for LMS at Target stores,
however, incidents not of her own making began to happen. For example, she first recounted
that she was “interrupted by a non-black Target employee/security guard for no reason” with
respect to failing to notify a team leader on duty about her work. She stated that later, “she
was hassled by Target’s Security Guard and another Target employee” because she was not
wearing a required Target Guest Pass, but that this “was not her fault.” She then claimed that
on November 28, 2017, while working at a Target store in Evanston, she tried to find the
required Target Guest Pass but did not, and when she approached a Target manager, the
manager became upset and petitioner continued working without the pass. She averred that
she was then confronted by a Target security officer, who accompanied her to get a pass;
after she got the pass and went to work in a stockroom, the security guard approached her
again, this time about being in that location. Petitioner stated she continued her work,
finished her assignment and then left the store. She recounted that later in the day, she
received a call from Imdieke, who told her he had received a call from the Target’s store
manager stating petitioner had not been wearing the required pass and that Target no longer
wanted her to work at that location. She then received an email from Imdieke terminating
her employment with LMS. In her filing, petitioner claimed LMS denied her equal
employment and insisted that, while she had no knowledge if other employees were
discharged, she believed she was the only black employee treated this way and that LMS
treated similarly situated non-black employees more favorably under similar circumstances.
3 No. 1-19-1855
¶5 Based on her petition, the Department conducted an investigation, interviewed Imdieke,
Borowske and LMS’ Human Resources Director Sue Schmidt (non-black), and obtained the
following evidence from LMS. Schmidt stated that LMS hired petitioner as a part-time
service representative. Schmidt verified that, the next day, LMS issued to petitioner its
Representative Employee Manual, which included information regarding not only her
particular job description and responsibilities, but also LMS’ general employment policies,
including its Equal Employment Opportunities, Professionalism, Progressive Discipline,
Badge and Lanyard requirements, and Store Security mandates. Schmidt affirmed that
petitioner electronically signed a receipt for the manual upon its issuance to her,
acknowledging that she received it. There was no indication in the Department’s findings
that Schmidt ever dealt with petitioner in person or knew of her race.
¶6 Likewise, Imdieke, petitioner’s immediate LMS supervisor, stated that he communicated
with petitioner via telephone and email and had never met her in person. Contrary to
petitioner’s claims that she had consistently received positive performance reviews and no
complaints about her work until September, Imdieke noted that her “performance issues
began just a few months after she was hired,” noting she did not take criticism well and had
received employment counseling. He then described several incidents with respect to her
assignments at Target stores. On September 8, 2017, he was contacted by a Target store
manager asking him to remind petitioner that she was required to wear a visitor’s sticker
when working in the store’s backroom; Imdieke informed petitioner of this and gave her a
warning for failing to follow client store security policy, to which petitioner responded with a
series of emails identifying excuses for her violation. On November 21, 2017, Imdieke again
had to issue petitioner a warning, this time for failing to take clear photographs of her
4 No. 1-19-1855
completed services for LMS at Target, as petitioner had taken and submitted photos of
incorrect products and others’ work instead of products and work for which she was
responsible. In response, petitioner sent Imdieke several emails with excuses and
argumentative explanations, whereupon he replied that these needed to stop.
¶7 Imdieke further described the final incident that resulted in petitioner’s termination. On
November 28, 2017, while petitioner was working for LMS at the Target store in Evanston,
the store manager contacted him to report that petitioner was wandering around the
stockroom without either the required LMS badge or the Target visitor sticker. When the
manager approached her and asked if she could help her, petitioner told her she had already
spoken to whom she needed. When the manager informed petitioner that she (the manager)
was that person, an argument ensued; eventually, the manager left petitioner to complete her
services. Following this incident, the manager contacted Imdieke again the same day,
reporting that this was not the first time petitioner failed to wear the Target visitor sticker;
she told Imdieke that while she was upset with petitioner’s “insubordinate and argumentative
behavior,” she was willing to let her finish her services if she could commit to following
store policy and respecting staff. The manager also asked Imdieke to refrain from addressing
any issues with petitioner until petitioner left the store for the day for fear that petitioner
would lash out at Target employees. However, about an hour later, the store manager
contacted Imdieke a third time, this time to report that she had asked petitioner to leave the
store without finishing her services. The store manager explained to Imdieke that petitioner
continued to wander around the stockroom without the required visitor badge, even after she
was asked not to. When a Target employee told petitioner she could not enter the locked
stockroom cage without an ID, petitioner called the employee a “hillbilly” and started
5 No. 1-19-1855
banging on and slamming the cage. The manager asked petitioner to leave and banned her
from returning to that Target store. Upon this last report, Imdieke contacted his superior,
Borowske, and reported the incidents of petitioner’s “insubordinate, argumentative, and
threatening behavior;” Borowske advised that this was grounds for termination. Imdieke
contacted petitioner and gave her the opportunity to explain, whereupon petitioner “became
defensive and claimed that the Target employees were liars.” When Imdieke told petitioner
her employment was being terminated, she responded by stating she would be filing a lawsuit
against LMS for racism. Imdieke then asked petitioner why she felt he was being racist, and
petitioner replied, “ ‘I know what you look like, and I can tell from your voice that you’re an
ignorant white boy,’ ” and told him he should “ ‘go jump in a lake.’ ” Imdieke sent
petitioner an email confirming the termination of her employment with LMS.
¶8 Borowske confirmed that, as Imdieke’s supervisor, she advised him that petitioner’s
behavior was grounds for immediate termination. Additionally, LMS provided the
Department with copies of its email correspondence with petitioner, as well as a copy of the
employee manual it had issued to her. LMS’ Equal Employment Opportunities Policy states
that it affords equal employment opportunities regardless of race. Its expectations regarding
Professionalism and Discipline state that all service representatives are to perform their
duties in a professional and courteous manner toward store-client personnel and to
communicate with LMS employees in a professional manner; any unprofessional
communication or violation of these standards may lead to discipline, including termination.
And, specifically with respect to Badge and Lanyard and Store Security expectations, the
manual states that LMS employees must always wear an LMS badge or lanyard while in a
store, and must learn and follow the security policies of the stores to which they are assigned.
6 No. 1-19-1855
Also, LMS submitted to the Department its employee discharge documents from December
16, 2016 to September 22, 2017. These indicated that in the year prior to petitioner’s
discharge on November 28, 2017, LMS had discharged four service representatives, two of
whom were non-black.
¶9 Upon the close of its investigation, the Department concluded there was no evidence that
LMS discharged petitioner because of her race. It noted that, in contrast, the evidence
showed LMS discharged her for “insubordinate, argumentative, and threatening behavior,”
actions consistent with LMS’ discipline policy meriting termination. It further noted that
LMS did not treat similarly situated non-black employees more favorably than petitioner, as
its documented evidence showed that, immediately prior to her discharge, LMS had
discharged four other service representatives, at least two of whom were non-black.
Accordingly, the Department recommended a finding of lack of substantial evidence and
dismissed petitioner’s charge, as “[t]here is no evidence of a nexus between the discharge
and [petitioner’s] race,” “[t]here is no evidence of an animus based on race,” and petitioner
“failed to establish a prima facie case of race-based discrimination.”
¶ 10 Petitioner filed a request for review of the Department’s decision with the Commission,
arguing that LMS “wrongfully fired her * * * for following the proper protocol.” She
included allegations that she indeed wore the Target visitor sticker as required, that Target
employees (particularly “the non-white hispanic female store mgr.”) were liars, and that she
never received any prior disciplinary action from Imdieke, as he had outlined. Yet, she then
averred that there was never any mention of a visitor sticker policy in her employment
materials, and she described the same incidents of prior discipline Imdieke had discussed but
insisted these were falsehoods and merely offenses interpreted by Imdieke resulting from
7 No. 1-19-1855
fault that was not her own, all amounting to “additional evidence of race discrimination.”
She claimed that although other black and non-black employees were also fired, they were
terminated “for unethical conduct,” while she “was the only responsible and ethical (LMS)
black employee that [LMS] discharged.” And, she claimed that as “an ethical merchandiser,”
Imdieke fired her using “premeditated racism” because she was close to obtaining full-time
employee status, which would have entitled her to more pay and medical insurance.
¶ 11 The Department responded that its investigation showed LMS did not discharge
petitioner because of her race but, instead, that it did so because she was insubordinate. It
noted that LMS required all its service representative employees to wear an LMS
identification badge while on store premises and to follow all other security measures
required by the store to which they were assigned which, at petitioner’s Target store,
included wearing a store visitor sticker. It also noted that petitioner had been reprimanded
for previous behavioral issues, including not wearing a visitor sticker, photographing/
submitting work that was not hers, and failing to accept criticism without argument.
Petitioner then committed additional insubordinate behavior with respect to the incidents
documented on November 28, 2017, which again included failing to wear a Target visitor
sticker, being argumentative, making derogatory comments to Target staff and banging on
the locked stockroom cage door. Without evidence that LMS did not reasonably and in good
faith terminate petitioner’s employment, and without evidence that LMS did not terminate
similarly situated non-black employees with disciplinary histories comparable to hers, the
Department argued that petitioner’s charge could not stand.
¶ 12 Petitioner filed a reply, arguing that she “was wrongfully fired” by LMS “for excellent
work performance.” In addition to reasserting her claims that she “wore her Target Guest
8 No. 1-19-1855
Sticker on every assignment, plus her vendor badge” and that Imdieke fired her “despite her
strong compliance to the policy and procedures of [the] LMS Employee manual,” petitioner
insisted that LMS unlawfully discharged her “as an ethical american black female former
employee” in violation of the Act.
¶ 13 After discussing the required elements for an employment discrimination charge and the
evidence presented herein, the Commission issued its final administrative decision finding
that the Department properly dismissed petitioner’s claim for lack of substantial evidence.
The Commission noted that petitioner was unable to identify a similarly situated coworker
whose race is non-black, whose disciplinary history was comparable to hers, and who was
not discharged. Thus, she presented no evidence that LMS treated similarly situated non-
black employees more favorably than her. Additionally, the Commission noted that
petitioner failed to present any evidence that LMS made any derogatory comments regarding
her race or otherwise implemented a pretext when terminating her employment. Rather, as
the evidence showed petitioner was terminated because of insubordination, there was “no
nexus between [her] discharge and her race.” Accordingly, the Commission concluded that
petitioner did not present any substantial evidence to show that the Department’s dismissal of
the charge was not in accordance with the Act.
¶ 14 ANALYSIS
¶ 15 As a threshold matter, we note that compliance with Illinois Supreme Court Rule (Rule)
341(h) (eff. May 25, 2018) is mandatory, and a party's status as a pro se litigant does not
relieve her of her noncompliance with appellate practice rules. See Voris v. Voris, 2011 IL
App (1st) 103814, ¶ 8 (compliance with rules governing briefs on appeal is compulsory
regardless of a party's status); accord Ryan v. Katz, 234 Ill. App. 3d 536, 537 (1992); see also
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In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57 (our supreme court rules,
including Rule 341, are not merely advisory suggestions; rather, they are required to be
followed). Consequently, where an appellant's brief contains numerous Rule 341 violations
and, in particular, impedes our review of the case at hand because of them, it is our right to
strike that brief and dismiss the appeal. See In re Marriage of Petrik, 2012 IL App (2d)
110495, ¶ 38 (citing Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23 (failure to follow Rule
341 may result in forfeiture of consideration of issues on appeal)); see also Marriage of
Petrik, 2012 IL App (2d) 110495, ¶ 38 (quoting Kic, 2011 IL App (1st) 100622, ¶ 23
(quoting Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719 (1986))
(ultimately, we are “ ‘ “not a depository in which the appellant may dump the burden of
argument and research” ’ ” for her cause on appeal).
¶ 16 In the instant cause, petitioner’s brief does not comply with Rule 341(h) in several
important respects. That is, save for a general citation to the Act, petitioner’s brief does not
contain any “Points and Authorities” statement outlining the points argued and authorities
cited in the Argument (see Rule 341(h)(1)); it does not contain a viable statement of
jurisdiction (see Rule 341(h)(4)); and, while she does provide scant citation to a few pages of
the record, petitioner provides essentially no argument, let alone any citation to legal
authority for such (see Rule 341(h)(7)), and, upon closer examination, she cites documents
that are not part of the administrative record (see Kensington’s Wine Auctioneers and
Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 14 (2009) (attachments not
contained in certified record on appeal cannot be cited by parties nor considered by
reviewing court). Thus, it is within our prerogative to strike her brief and dismiss this appeal
based on her failure to comply with the applicable rules of appellate procedure. See
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Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 80; accord Marriage of Petrik, 2012 IL
App (2d) 110495, ¶ 38 (the reviewing court has every right to strike a plaintiff's appellate
brief and dismiss her cause when Rule 341 is violated so as to impede review). However, we
note that, because we have the benefit here of cogent briefs from respondents Commission
and LMS, we choose, in our discretion, to reach the merits of the appeal. See North
Community Bank v. 17011 South Park Ave., LLC, 2015 IL App (1st) 133672, ¶ 14 (reviewing
merits of the appeal despite appellant’s numerous violations of Supreme Court Rule 341(h)).
¶ 17 Under the Act, “[i]t is a civil rights violation * * * for any employer to * * * discharge”
any person “on the basis of unlawful discrimination.” 775 ILCS 5/2-102(A) (West 2016).
“Unlawful discrimination” is defined in part as discrimination against a person because of
her race or skin color. 775 ILCS 5/1-103(Q) (West 2016).
¶ 18 Where a petitioner brings a charge under the Act, the Department shall conduct an
investigation to determine whether the allegations are supported by substantial evidence. See
775 ILCS 5/7A-101, 5/7A-102(A)-(D) (West 2016). “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” of proof. 775 ILCS 5/7A-102(D)(2) (West 2016). If
the Department determines there is no substantial evidence supporting the charge, it shall
dismiss the charge. See 775 ILCS 5/7A-102(D)(3) (West 2016). The petitioner may then
either commence a civil action in circuit court or, as petitioner did here, file a request for
review of the dismissal with the Commission. 775 ILCS 5/7A-102(D)(3) (West 2016).
¶ 19 A final order of the Commission may be judicially reviewed by our Court under the
abuse of discretion standard of review. See 775 ILCS 5/8-111(B)(1) (West 2016); Young v.
Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 32. Under this standard, we
11 No. 1-19-1855
will not disturb the Commission’s decision unless it is arbitrary or capricious. See Young,
2012 IL App (1st) 112204, ¶ 33. A decision is arbitrary or capricious if it contravenes the
legislature’s intent, fails to consider a crucial aspect of the problem, or offers an impossible
explanation contrary to agency expertise. See Owens v. Dep’t of Human Rights, 403 Ill. App.
3d 899, 917 (2010).
¶ 20 We review the final order of the Commission, not the Department’s decision. See
Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 180 (1989). The Commission’s
findings of fact “shall be sustained unless the court determines that such findings are contrary
to the manifest weight of the evidence.” 775 ILCS 5/8-111(B)(2) (West 2016). This
deference to the Commission’s findings of fact is particularly true of the credibility
determinations it makes. See Zaderaka, 131 Ill. 2d at 180; accord Folbert v. Dep’t of Human
Rights, 303 Ill. App. 3d 13, 25 (1999). A reviewing court may not reweigh the evidence or
substitute its judgment for that of the Commission, and abuse of discretion will be found only
where no reasonable person could agree with the decision rendered. See Young, 2012 IL
App (1st) 112204, ¶ 33.
¶ 21 In analyzing claims of employment discrimination brought under the Act, we are guided
by federal case law relating to analogous federal anti-discrimination statutes, namely, the
Civil Rights Act of 1964, which in relevant part protects against employment discrimination
on the ground of race or color (42 U.S.C. § 2000e, et seq.). See Zaderaka, 131 Ill. 2d at 178
(analyzing an employment discrimination action using federal case law addressing claims
under Title VII of the Civil Rights Act of 1964); accord Owens, 403 Ill. App. 3d at 918.
¶ 22 Because petitioner in the instant cause has provided no direct evidence of discrimination,
we must analyze her claim using the three-part test set forth in McDonnell Douglas Corp. v.
12 No. 1-19-1855
Green, 411 U.S. 792 (1973). See Zaderaka, 131 Ill. 2d at 178-79 (our state courts have
adopted this analytical framework as set forth by the United States Supreme Court decisions
addressing such claims); Young, 2012 IL App (1st) 112204, ¶ 34; accord Owens, 403 Ill.
App. 3d at 918-19. Under this test, first, petitioner has the burden to establish a prima facie
case of unlawful discrimination by a preponderance of the evidence. See Young, 2012 IL
App (1st) 112204, ¶ 34; see, e.g., Zaderaka, 131 Ill. 2d at 178-79. If she meets this burden, a
rebuttable presumption of unlawful discrimination arises. See Young, 2012 IL App (1st)
112204, ¶ 36; see, e.g., Zaderaka, 131 Ill. 2d at 179. Second, to rebut this presumption,
respondent LMS must articulate a legitimate, nondiscriminatory reason for its decision. See
Young, 2012 IL App (1st) 112204, ¶ 36; see, e.g., Zaderaka, 131 Ill. 2d at 179 (respondent
need only articulate such a reason and is not required to prove it). Third, if LMS does so, the
presumption of unlawful discrimination falls and the burden shifts back to petitioner to prove
by a preponderance of the evidence that LMS’ articulated reason was untrue and merely a
pretext for discrimination. See Young, 2012 IL App (1st) 112204, ¶ 34; see, e.g., Zaderaka,
131 Ill. 2d at 179. Under this test, the ultimate burden remains with petitioner at all times.
See Zaderaka, 131 Ill. 2d at 179; accord Owens, 403 Ill. App. 3d at 919.
¶ 23 With respect to the first part of the McDonnell test, to establish a prima facie case for
employment discrimination, petitioner here must show: (1) she is a member of a protected
class; (2) she was meeting LMS’ legitimate business expectations; (3) she suffered an
adverse employment action; and (4) LMS treated similarly situated employees outside the
class more favorably. See Owens, 403 Ill. App. 3d at 919. Because petitioner’s principle
claim is that she was subject to disparate punishment, the second and fourth elements for a
prima facie case of employment discrimination merge. See Caskey v. Colgate-Palmolive
13 No. 1-19-1855
Co., 535 F.3d 585, 592 (7th Cir. 2008); accord Lucas v. Chicago Transit Authority, 367 F.3d
714, 728 (7th Cir. 2004). Accordingly, an analysis of LMS’ expectations “falls by the
wayside” and, instead, the focus turns more prominently to whether petitioner can establish
that she received dissimilar--and more harsh--punishment than that received by a similarly
situated employee who was outside her protected class. Caskey, 353 F.3d at 592; accord
Lucas, 367 F.3d at 728. “A similarly situated employee need not be ‘identical,’ but
[petitioner] must show that the other employee ‘dealt with the same supervisor, [was] subject
to the same standards, and had engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish [her] conduct or [LMS’] treatment of [her].’ ”
Caskey, 535 F.3d at 592 (quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir.
2008)).
¶ 24 We hold that the Commission did not abuse its discretion in finding petitioner failed to
establish a prima facie case of employment discrimination based on her race. The parties do
not dispute that petitioner is a member of a protected class (due to her race) or that she
suffered an adverse employment action (termination). However, petitioner failed to present
any evidence with respect to the remaining (merged) element required to establish a prima
facie case, namely, that she identify a similarly situated employee outside her protected class
who was treated differently, and more favorably, than she was.
¶ 25 First, the evidence presented in this cause clearly shows, contrary to petitioner’s
insistence, that her employment was terminated because of a pattern of unprofessional,
insubordinate and threatening behavior--behavior that began shortly after she was hired by
LMS and culminated on November 28, 2017. LMS gave, and petitioner acknowledged
receipt of, an employment manual that detailed LMS’ policies regarding both the position for
14 No. 1-19-1855
which she was hired and general requirements with respect to security, professionalism and
discipline. These included mandates that she wear the appropriate identification at all times
of both LMS and the Target store to which she was assigned, that she act toward and address
LMS staff and Target employees in a professional and courteous manner, and that
termination of employment could result if she did not comply with these policies.
¶ 26 The Department’s investigation showed that, contrary to her characterization of
“excellent performance” on her assignments and compliance with all the manual’s
requirements, LMS issued petitioner several warnings about her work in the months between
her hire and her termination. She was cited multiple times for not wearing the appropriate
security identification while in LMS client stores. She was also counseled for taking unclear
and inaccurate photographs of her work, some of which did not belong to her. When
disciplined for these incidents, she responded with a flurry of emails to her supervisor
Imdieke, always attempting to explain away her fault, shifting blame to other employees, and
otherwise being argumentative, which Imdieke warned her needed to stop. Finally, the
incidents of November 28, 2017, saw petitioner twice use derogatory language, including at
least one instance considerable of a racial epithet (when she called Imdieke “an ignorant
white boy”), become physically threatening (when she slammed and banged on a locked
stockroom cage door because she was not permitted access), and blatantly disobey and argue
with a Target manager, who was LMS’ client, until she was officially banned from that store.
¶ 27 Again, petitioner’s main claim here is that she was subject to disparate punishment, i.e.,
that similarly situated employees outside her protected class were treated more favorably by
LMS--in her words, while other black and non-black employees were also fired, they were
terminated “for unethical conduct,” while she “was the only responsible and ethical (LMS)
15 No. 1-19-1855
black employee that [LMS] discharged.” Her claim, however, cannot stand. She presented
absolutely no evidence of what she proposes. That is, no evidence was ever submitted
demonstrating that other employees of any race who also failed to comply with LMS policies
concerning security and/or professionalism and who became argumentative and threatening
towards others were allowed to remain employed by LMS. In fact, and directly to the
contrary, LMS submitted during the investigation here its employee discharge documents
from December 2016 to September 2017. These showed that in the year immediately prior to
petitioner’s termination, LMS discharged four employees, two of whom were not black, i.e.,
outside petitioner’s protected class. This clearly refutes any argument petitioner could
attempt to make that LMS treated similarly situated employees outside of her protected class
engaged in similar conduct more favorably by receiving less severe treatment. See Young,
2012 IL App (1st) 112204, ¶¶ 47-48 (prima facie discrimination claim requires evidence that
similarly situated person in comparable circumstances received more favorable treatment).
From all this, it is obvious that petitioner failed to meet her burden of establishing a prima
facie case of employment discrimination based on her race by a preponderance of the
evidence, and the Commission properly dismissed her cause.
¶ 28 Even if it could somehow be concluded that petitioner did meet her burden of
establishing a prima facie case (which it cannot), and, thus, a rebuttable presumption of
unlawful discrimination can be said to have arisen here (which it did not), we note for the
record that LMS articulated a legitimate, nondiscriminatory reason for its actions. As we
have already described, LMS provided petitioner with an employee manual outlining
mandates with respect to security and professionalism for which she was responsible and
detailing the consequences of failing to follow them. And, as we have already discussed at
16 No. 1-19-1855
length, petitioner acknowledged receipt of the manual, proceeded to violate those mandates
in several and repeated ways and, consequently, was terminated. It should also be noted that
neither LMS’ Human Resources Director Schmidt who issued the manual to petitioner, nor
supervisor Imdieke who fired her, ever knew petitioner’s race, as the evidence showed they
only dealt with her via email and telephone calls.
¶ 29 Continuing along these hypothetical lines, assuming petitioner established a prima facie
case, and with LMS then having articulated a reason for its actions, any presumption of
unlawful discrimination would fall here and the burden would shift back to petition to prove,
by a preponderance of the evidence, that LMS’ reason was a pretext for discrimination. Just
as with the other required elements of her cause, this, she cannot do. She provides absolutely
no evidence of a pretext for discrimination here by LMS against her, other than her wild
speculation and her claims that certain employees lied. See Folbert, 303 Ill. App. 3d at 25
(“[a] petitioner’s discrimination charge consisting of mere speculation and conjecture does
not constitute substantial evidence”); Roedl v. Midco Int’l, 296 Ill. App. 3d 213, 219 (1998)
(a petitioner’s insistence that certain witnesses “were not worthy of belief” by Department
does not constitute substantial evidence of pretext); see also Karazanos v. Navistar Int’l
Trans. Corp., 948 F.2d 332, 337-38 (7th Cir. 1991) (a petitioner’s perception of herself as an
employee is irrelevant, as focus is on perception of the employer with respect to the
employee’s work, and a petitioner’s assertions blaming others for her work-related
shortcomings, alone, does not create issue of pretext). Again, neither Schmidt nor Imdieke
ever met petitioner in person, and the investigation concluded that they were entirely
unaware of her race. Even if they knew of her race, and even if LMS set out to treat
petitioner less favorably than other employees because of her race or, as she insists, terminate
17 No. 1-19-1855
her right before she obtained full-time status (and, thus, more pay and medical benefits), it is
wholly unlikely that they would have given her the multiple opportunities to remediate her
behavior they did in the months before finally terminating her, as well as affording her the
chance to explain what happened at the Target store following the incidents on November 28,
2017. See Young, 2012 IL App (1st) 112204, ¶ 48 (“[u]nder the Act, the unfairness or
unreasonableness of an employer’s conduct is irrelevant, so long as it was not motivated by
an employee’s protected characteristic”).
¶ 30 Ultimately, the Commission’s dismissal of petitioner’s charge of employment
discrimination for lack of substantial evidence was proper. Petitioner failed to meet the
required elements of a prima facie case and, even if such a case could be made, LMS
provided a non-pretextual reason for her termination from its employ that petitioner cannot
show, nor has shown, was untrue. Having failed to present any substantial evidence to
satisfy any of the burdens required of her, the Commission properly dismissed her charge.
¶ 31 CONCLUSION
¶ 32 Accordingly, for the foregoing reasons, we affirm the Commission’s order sustaining the
Department’s dismissal of petitioner’s charge for lack of substantial evidence.
¶ 33 Affirmed.