Jakubowski v. Illinois Human Rights Comm'n

2020 IL App (5th) 190026-U

• Court: Appellate Court of Illinois
• Decided: April 13, 2020
• Docket: 5-19-0026
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 190026-U NOTICE Decision filed 04/13/20. The This order was filed under text of this decision may be NO. 5-19-0026 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

ROBERT JAKUBOWSKI, ) On Petition for Direct ) Administrative Review of Petitioner, ) an Order of the Illinois ) Human Rights Commission. v. ) ) ILLINOIS HUMAN RIGHTS COMMISSION, ) Charge No. 2012SF1530 ILLINOIS DEPARTMENT OF HUMAN ) EEOC No. 21BA20441 RIGHTS, and ILLINOIS DEPARTMENT OF ) ALS No. 13-0174 CORRECTIONS, ) ) Respondents. ) ________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justices Boie and Wharton 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’ dismissal of Robert Jakubowski’s charge of discrimination for lack of substantial evidence.

¶2 On November 11, 2011, Robert Jakubowski filed a charge of discrimination with

the Illinois Department of Human Rights (Department) pursuant to the Illinois Human

Rights Act (775 ILCS 5/1-101 et seq. (West 2010)). He alleged that his employer, the

Illinois Department of Corrections (IDOC), failed to promote him because of his race. On

January 23, 2013, the Department dismissed the charge for lack of substantial evidence 1 following its investigation into the matter. On April 26, 2013, Jakubowski sought review

with the Illinois Human Rights Commission (Commission) which sustained the

Department’s dismissal of the charge on December 14, 2018. Jakubowski then petitioned

this court for direct administrative review of the Commission’s decision pursuant to 775

ILCS 5/8-111(B) (West 2018).

¶3 Jakubowski challenges that the Commission abused its discretion in sustaining the

dismissal of his charge of discrimination. Jakubowski argues that he submitted a

prima facie case of employment discrimination for failure to promote, and that IDOC’s

justification for not promoting Jakubowski was pretextual. Jakubowski asserts that his

educational background, compared to the selected candidate’s, made him more qualified

for IDOC’s available position, and that race played a role in the decision to promote the

selected candidate. For the following reasons, we affirm the Commission’s order

dismissing Jakubowski’s charge.

¶4 BACKGROUND

¶5 Jakubowski worked as a correctional counselor at Vandalia Correctional Center

(Vandalia) from 1991 to 2011. On January 1, 2011, IDOC promoted Jakubowski to a

Clinical Services Supervisor (CSS) position at Danville Correctional Center (Danville). On

December 28, 2010, IDOC posted a job opening for a CSS position at Vandalia. Under

Jakubowski’s union contract with IDOC, Jakubowski could not transfer to an open position

at another IDOC facility. He was required to apply and interview for open positions.

¶6 The Vandalia job posting listed the minimum job requirements for the CSS position

as follows: 2 “Requires education and experience equivalent to a master’s degree in the

behavioral or social sciences; requires three years of progressively responsible

professional experience in corrections, juvenile rehabilitation, behavioral, social

sciences or a related field; requires thorough knowledge of the techniques utilized

in managing a counseling and guidance program; requires thorough knowledge of

factors relating to behavior problems and the methods of treating behavioral

problems; requires ability to supervise and coordinate a professional staff of

individuals trained in the human services field; requires ability to instruct and train

a staff in the proper procedures of implementing an effective reintegration program;

requires ability to communicate effectively both orally and in writing; requires

ability to establish and maintain satisfactory working relationship with residents,

representatives of civic, law enforcement and community agencies, institution staff

and subordinate staff.”

¶7 Two candidates applied and interviewed for the CSS position at Vandalia—

Jakubowski and Henry Teverbaugh. Jakubowski is white, and Teverbaugh is black. The

interviews were conducted by Gregory Schwartz, a shift supervisor, and Lisa Flowers, a

business administrator. Both Schwartz and Flowers are white. During the interviews,

Jakubowski and Teverbaugh were asked the same questions and were evaluated in the

following categories: knowledge and experience, education and training, leadership,

planning, and judgment.

¶8 The education and training category required “knowledge, skill, and mental

development equivalent to the completion of a master’s degree in the behavioral or social 3 sciences.” This category was broken down into two parts for the candidates to answer:

“[d]escribe your [e]ducational credentials[ ]” and “[d]escribe how the education and

training you possess will help you perform the responsibilities of the job.” Jakubowski and

Teverbaugh explained their educational credentials and were both scored at three out of

four points.

¶9 Jakubowski stated that he has an undergraduate degree in Administration of Justice

and the “equivalent” of two master’s degrees in human development counseling and

counseling psychology. He also indicated that he had completed the requirements for a

doctorate in psychology except for the publication of a dissertation. He added that he had

1800 hours of practicum experience and 2000 hours in an internship.

¶ 10 Teverbaugh reported that he has a bachelor’s degree in criminal justice and had been

employed by IDOC since 1988. He had been involved in correctional programs for his

entire career either as a correctional counselor or correctional casework supervisor. At the

time of the interview, Teverbaugh was working to obtain his CADC 1 license. He also

indicated that he was a state hostage negotiator and a chairperson on the Adjustment

Committee. Teverbaugh added that, as part of his duties, he oversaw day-to-day activities

such as “grievances, transfers, substance abuse, [and] good time revocation.”

¶ 11 Both Jakubowski and Teverbaugh were scored at two out of four points for

describing how their education and training would help them perform the responsibilities

1 CADC is the acronym for Certified Alcohol and Drug Counselor. Per the IDOC’s website, the Addiction Recovery Management Services Unit of IDOC facilitates CADC training. https://www2.illinois.gov/idoc/programs/Pages/AddictionRecoveryServices.aspx. (last visited Apr. 7, 2020). 4 of a CSS. This resulted in a total score of 2.5 points in the education and training category

for both Jakubowski and Teverbaugh.

¶ 12 While Jakubowski and Teverbaugh received the same score in education and

training, Teverbaugh scored 0.1 points higher in the knowledge and experience category

and 0.15 points higher in the leadership category. For the overall interview, Teverbaugh

received a total score of 2.917, and Jakubowski received a total score of 2.667. IDOC

promoted Teverbaugh and provided justification for its decision on an “Employment

Decision Form.” The form indicated that IDOC believed Teverbaugh was the most

qualified candidate for the CSS position.

¶ 13 Jakubowski subsequently filed a charge of discrimination with the Department

alleging that IDOC did not promote him because he is white. Jakubowski contended that

he was “well qualified” for the CSS position, and that IDOC promoted Teverbaugh: “a less

qualified Black applicant.” The Department investigated Jakubowski’s charge and

interviewed Jakubowski, Schwartz, Flowers, and Leslie McCarty, IDOC’s affirmative

action officer. The Department also reviewed Jakubowski’s charge, IDOC’s response to

the charge, a list of CSS’s in IDOC, Jakubowski and Teverbaugh’s interview packets, and

provisions of IDOC’s interview guidelines and personnel rules.

¶ 14 Jakubowski reported that he believed IDOC picked Teverbaugh because IDOC

“seeks to promote minority people, which then knocks out others.” Jakubowski felt that he

was the most qualified for the job. After reviewing his and Teverbaugh’s interview scores,

Jakubowski told the Department that IDOC “understated” his education. Jakubowski

5 asserted that he should have received more points than Teverbaugh because Jakubowski

has more formal education.

¶ 15 Schwartz and Flowers informed the Department that they were not instructed to pick

Teverbaugh for the position. Schwartz and Flowers explained that Jakubowski and

Teverbaugh were asked the same questions and scored in the same categories with

Teverbaugh outscoring Jakubowski in knowledge and experience and leadership.

According to Schwartz, Jakubowski and Teverbaugh received the same score in the

education subcategory because “Teverbaugh had over 20 years’ experience besides a

degree.”

¶ 16 The Department concluded that IDOC followed its policy for interviewing

candidates for the CSS position. The investigation also revealed that 22 of the 24 CSS

positions in IDOC were held by white individuals. The Department noted that there was

no evidence of race being mentioned during the interviews or of anyone using “anti-white

slurs” against Jakubowski. The Department found that there was a lack of substantial

evidence and dismissed Jakubowski’s charge of discrimination.

¶ 17 Jakubowski filed a request to review the Department’s dismissal of his charge with

the Commission. Jakubowski asserted that IDOC “underrepresented” his education and

experience and “over emphasized” Teverbaugh’s education and training. Jakubowski

argued that he should have received a score of four out of four in education and Teverbaugh

should have received a score of two out of four in education. Jakubowski submitted that,

with this “correction” in scoring, he would have outscored Teverbaugh overall. Jakubowski

claimed that the scoring in education evidenced that he was denied the CSS position at 6 Vandalia based on race. The Department responded that Jakubowski did not submit, and

the Department’s investigation did not reveal, any evidence that IDOC discriminated

against Jakubowski based on race or promoted a less qualified individual of a different

race.

¶ 18 In its written order sustaining the Department’s dismissal of Jakubowski’s charge,

the Commission explained it was improper for the Commission to substitute its judgment

for IDOC’s business judgment. The Commission reasoned that IDOC was “entitled to

make employment decisions based on its reasonable belief of the facts surrounding the

situation.” The Commission noted in its order that the evidence did not show IDOC

discriminated against Jakubowski. Jakubowski also did not show that other white

individuals were overlooked for promotions or that IDOC treated similarly situated, non-

white employees more favorably under similar circumstances.

¶ 19 The Commission sustained the Department’s dismissal of Jakubowski’s charge for

lack of substantial evidence. Jakubowski then brought this petition for direct administrative

review in this court.

¶ 20 ANALYSIS

¶ 21 The appellate court reviews the Commission’s final order sustaining the dismissal

of a discrimination charge for lack of substantial evidence under an abuse of discretion

standard. Young v. Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶¶ 32-33.

Under this standard, we will not disturb the Commission’s decision unless it is arbitrary

and capricious. Young, 2012 IL App (1st) 112204, ¶ 33. A decision is arbitrary and

capricious if it contravenes the legislature’s intent, fails to consider a crucial aspect of the 7 problem, or offers an impossible explanation contrary to agency expertise. Young, 2012 IL

App (1st) 112204, ¶ 33. An abuse of discretion will be found where no reasonable person

could agree with the Commission’s decision. Young, 2012 IL App (1st) 112204, ¶ 33. The

appellate court may not, however, reweigh the evidence or substitute its judgment for that

of the Commission. Young, 2012 IL App (1st) 112204, ¶ 33.

¶ 22 In cases brought under the Human Rights Act, a complainant may prove

employment discrimination through either direct or circumstantial evidence, or by the

indirect method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Sola v. Illinois Human Rights Comm’n, 316 Ill. App. 3d 528, 536-38 (1st Dist. 2000).

Jakubowski does not argue, and the record does not show, that there was direct or

circumstantial evidence of discrimination.

¶ 23 Under the indirect method of proof, Illinois courts utilize a three-part analysis in

evaluating employment discrimination actions brought under the Human Rights Act.

Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 178 (1989) (adopting analysis

set forth in McDonnell Douglas Corp., 411 U.S. at 802). First, the burden is on the

complainant to establish a prima facie case of employment discrimination. Zaderaka, 131

Ill. 2d at 178-79. If the complainant establishes a prima facie case, a rebuttable presumption

arises that the employer unlawfully discriminated against the complainant. Zaderaka, 131

Ill. 2d at 179. The employer must then articulate a legitimate, nondiscriminatory reason for

its decision. Zaderaka, 131 Ill. 2d at 179. If the employer articulates a legitimate,

nondiscriminatory reason, the burden shifts back to the complainant to prove that the

employer’s reason was a pretext for unlawful discrimination. Zaderaka, 131 Ill. 2d at 179. 8 ¶ 24 To establish a prima facie case of discrimination, in situations involving the denial

of a promotion, the complainant must show: (1) complainant was a member of a protected

class; (2) complainant was qualified and applied for a promotion; (3) complainant was

rejected; and (4) other equally or less qualified individuals, who were not class members,

were promoted or the benefit remained open. Board of Regents for Regency Universities v.

Human Rights Comm’n, 196 Ill. App. 3d 187, 196 (4th Dist. 1990); McDonnell Douglas

Corp., 411 U.S. at 802.

¶ 25 In reviewing the Department’s dismissal of Jakubowski’s charge for lack of

substantial evidence, the Commission found that Jakubowski failed to establish a

prima facie case of discrimination. We agree. Specifically, Jakubowski failed to prove that

IDOC promoted an equally or less qualified candidate who was not white.

¶ 26 Jakubowski submitted that his educational background made him more, or at least

equally, qualified to Teverbaugh for the CSS position. Education and training, however,

was not the only category in which Jakubowski and Teverbaugh were scored. They were

also asked the same questions and evaluated in knowledge and experience, leadership,

planning, and judgment. Jakubowski did not dispute the scores in any of these other

categories, and Teverbaugh outscored Jakubowski in both knowledge and experience and

leadership.

¶ 27 As for the education and training category, Jakubowski and Teverbaugh both

received the same score. Jakubowski believes that his formal education elevates him above

Teverbaugh when considering educational credentials, but formal education was not the

sole consideration in this category. IDOC’s original job posting stated that the CSS position 9 required “education and experience equivalent to a master’s degree in the behavioral or

social sciences.” (Emphasis added.) The candidate evaluation form used to score

Jakubowski and Teverbaugh indicated that the category required “knowledge, skill, and

mental development equivalent to the completion of a master’s degree in the behavioral or

social sciences.” (Emphasis added.)

¶ 28 The evidence showed that Teverbaugh, in addition to his bachelor’s degree in

criminal justice, had over 20 years of experience in correctional counseling programming.

If IDOC valued Teverbaugh’s real world experience the same as Jakubowski’s formal

education, that determination is for IDOC to make. Reviewing courts do not substitute their

judgment for the business judgment of an employer. See Sola, 316 Ill. App. 3d at 544-45;

see also Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 765 (7th Cir. 2001) (“What

the qualifications for a position are *** is a business decision, one courts should not

interfere with. [Citation.] We do not tell employers what the requirements for a job must

be.”).

¶ 29 Jakubowski’s formal education does not in and of itself make him more, or at least

equally, qualified to Teverbaugh. Apparently, IDOC valued experience that, in IDOC’s

opinion, equated to a master’s degree. This court will not disturb IDOC’s business

judgment. After scoring all categories from the interviews, Teverbaugh received 0.25

points more than Jakubowski making Teverbaugh the more qualified candidate for the CSS

position under IDOC’s evaluation. Therefore, Jakubowski cannot prove that IDOC

promoted an equally or less qualified individual who was not white.

10 ¶ 30 This court need not reach the issue of pretext because Jakubowski has not

established a prima facie case of discrimination. See City of Belleville v. Human Rights

Comm’n, 167 Ill. App. 3d 834, 851 (5th Dist. 1988) (not reaching issue of pretext where

the employer failed to articulate a legitimate non-discriminatory reason for its action); In re

C.R.M., 372 Ill. App. 3d 730 (1st Dist. 2007) (affirming Chief Legal Counsel’s decision to

dismiss charge of discrimination without considering issue of pretext where the petitioner

failed to establish a prima facie case).

¶ 31 For the foregoing reasons, we affirm the Commission’s order sustaining the

Department’s dismissal of Jakubowski’s charge of discrimination.

¶ 32 Affirmed.