2020 IL App (1st) 181965-U No. 1-18-1965 March 16, 2020
FIRST DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THEODORE KOLIN and MARK ) Petition for Review of the Order STEINHAGEN, ) of the Illinois Human Rights ) Commission. Petitioners-Appellants, ) ) v. ) No. 13 CA 0044 ) 13 CA 0045 TOWN OF CICERO, ILLINOIS HUMAN ) RIGHTS COMMISSION and ILLINOIS ) DEPARTMENT OF HUMAN RIGHTS, ) The Honorable ) Lester G. Bovia, Jr., Respondents-Appellees. ) Judge, Presiding.
JUSTICE WALKER delivered the judgment of the court. Presiding Justice Griffin and Justice Hyman concurred in the judgment.
ORDER
¶1 Held: We affirm the decision of the Illinois Human Rights Commission. The Commission applied the appropriate standard when it evaluated Petitioners’ claims of age discrimination, and its findings of fact were not or against the manifest weight of the evidence. The Commission’s ruling that Kolin did not establish a prima facie case of age discrimination was not clearly erroneous or against the manifest weight of the evidence. The Commission did not error in finding that Respondent articulated legitimate, non- discriminatory reasons for the adverse employment actions and that Respondent’s proffered reasons for its actions were not pretextual because the Commission’s rulings were not clearly erroneous or against the manifest weight of the evidence. No. 1-18-1965
¶2 Theodore Kolin (Kolin) and Mark Steinhagen (Steinhagen) (collectively, petitioners)
brought this action for direct administrative review of the Illinois Human Rights Commission's
decision that the Town of Cicero (respondent) did not engage in age discrimination when
Petitioners faced adverse employment actions following accusations of sexual harassment from a
fellow employee. Petitioners argued that because younger employees also accused of harassment
were not disciplined this was evidence of age discrimination and respondent’s justification for the
disparate treatment was merely pretext. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 At the time of their resignations, Kolin (age 60) and Steinhagen (age 56) were employed
by respondent as assistant fire marshals in the Cicero Fire Department (CFD). Kolin and
Steinhagen worked for CFD for 34 and 26 years, respectively. Assistant fire marshals are at-will
employees serving at the pleasure of the Town President. The Town of Cicero Board of Trustees
(Board) reappoints assistant fire marshals annually, based on the town president's
recommendation. Petitioners consistently received favorable performance reviews.
¶5 In February 2010, Isabella Del Gadillo (Del Gadillo), a receptionist at CFD headquarters,
brought allegations of sexual harassment against multiple CFD employees. She did not initially
identify the alleged perpetrators. Del Gadillo first named Kolin in May 2010. She later named
Steinhagen in October 2010. Additionally, Del Gadillo accused lieutenants Frank Rand (age 45),
Theodore Peszynski (age 46) and Chad Harvey (age 38) of harassment.
¶6 Del Gadillo alleged that Kolin asked her to meet him upstairs, presumably in some type of
living quarters, to “tuck” him into bed. She also alleged that Kolin told her to wear sexy jeans
while doing so. Steinhagen allegedly brought a women's clothing magazine to work, showed it to
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Del Gadillo, and told her that she would look good in some of the outfits depicted in the magazines.
Steinhagen also allegedly grabbed her thigh near her buttocks and kissed her on the lips without
her consent.
¶7 Rand allegedly called Del Gadillo a "rat" for making allegations against firemen and
greeted her daily with “Hi, stupid.” Peszynski allegedly sang songs at the headquarters with lyrics
containing the words “bitches” and “whores.” Finally, Harvey allegedly made references to “rats”
and to possible visits from Internal Affairs investigators.
¶8 Del Gadillo was placed on medical leave on October 18, 2010. Respondent’s medical leave
policy required Del Gadillo to provide a doctor's note releasing her back to work before she would
be permitted to return to CFD headquarters. Del Gadillo never returned from medical leave.
¶9 In late October 2010, petitioners were transferred out of the CFD headquarters and
prohibited from returning or contacting Del Gadillo. Petitioners spent their workdays with no
meaningful work. None of the other CFD employees were transferred as a result of the accusations.
Respondent explained that petitioners were transferred because they believed that Del Gadillo may
have returned if they were not present at the headquarters. Additionally, respondent believed that
the allegations against petitioners were more serious because they involved sexual and physical
harassment as opposed to verbal harassment.
¶ 10 Respondent conducted a formal investigation into all of the allegations of harassment made
by Del Gadillo. The investigation concluded in June 2011 and all allegations were found to be “not
sustained.” At the conclusion of the investigation, petitioners requested to return to CFD
headquarters, but were denied.
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¶ 11 On October 17, 2011, Del Gadillo filed a lawsuit in federal district court against respondent
and petitioners. Her complaint did not name Rand, Peszynski or Harvey as defendants. Respondent
appointed counsel for Petitioners and paid the costs of their defense.
¶ 12 In 2012, Town President Larry Dominick (President Dominick) discussed petitioners’
employment with members of the Board before the annual vote on their reappointment. Some
board members were upset by Del Gadillo's federal lawsuit. President Dominick believed that
board members would have objected to their continued employment at CFD, so he declined to
recommend their reappointment. This effectively terminated petitioners.
¶ 13 Kolin resigned on May 11, 2012. Steinhagen was told that his position was being
eliminated, so he resigned on June 1, 2012, and was eventually replaced by Dominck Buscemi, a
younger employee.
¶ 14 On December 17, 2013, the Illinois Department of Human Rights (Department) filed
separate complaints of age discrimination against respondent on behalf of petitioners with the
Illinois Human Rights Commission (Commission). The Commission later consolidated the
complaints, and both petitioners and respondent filed cross-motions for summary decisions before
Administrative Law Judge Lester G. Bovia, Jr. (ALJ). The ALJ denied both motions for summary
decision.
¶ 15 An administrative hearing was held at the Commission on October 13-15, 2015, and
January 12, 2016, before the ALJ. On February 14, 2017, the ALJ issued his Recommended Order
and Decision, dismissing the complaints and underlying charges of discrimination with prejudice.
The ALJ found that Kolin did not establish a prima facie case of age discrimination. The ALJ
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found that Steinhagen established a prima facie case of age discrimination, but respondent offered
legitimate and nondiscriminatory reasons for its actions that were not pretextual.
¶ 16 Petitioners filed a petition for review with the Commission. On August 13, 2018, the
Commission affirmed and adopted the ALJ's February 14, 2017 order. Petitioners timely filed a
petition for review pursuant to Illinois Supreme Court Rule 335.
¶ 17 ANALYSIS
¶ 18 On appeal, petitioners raise three issues for review: (1) whether the Commission erred in
finding that Kolin did not establish a prima facie case of age discrimination, (2) whether
Respondent provided legitimate, non-discriminatory reasons for Petitioners’ adverse employment
actions that were not pretextual, and (3) whether the Commission applied the correct legal standard
in evaluating the age discrimination claims. We will address each issue in turn.
¶ 19 Standard of Review
¶ 20 Petitioners argue that issues in this case involve a mixed question of fact and law, and we
should apply the clearly erroneous standard. Respondent argues that this case concerns the
Commission’s factual findings, and we should apply the manifest weight of the evidence standard.
¶ 21 When reviewing a decision of an administrative agency, there are three types of questions
a court may encounter: questions of fact, questions of law, and mixed questions of fact and law.
Cinkus v. Village of Stickney Municipal Officer Electoral Bd., 228 Ill. 2d 200, 210 (2008). Our
supreme court has repeatedly acknowledged the wisdom of judicial deference to an agency's
experience and expertise. AFM Messenger Service, Inc. v. Department of Employment Security,
198 Ill.2d 380, 395-96 (2001). Therefore, in examining an agency's factual findings, a reviewing
court does not substitute its judgment for that of the agency. Id. The agency’s findings of fact are 5 No. 1-18-1965
held to be prima facie true and correct. 735 ILCS 5/3-110 (West 2016). Those factual findings
should be sustained unless the reviewing court determines that they are against the manifest weight
of the evidence. Koulegeorge v. Illinois Human Rights Comm’n, 316 Ill. App. 3d 1079,1087
(2000). Factual findings are against the manifest weight of evidence where the opposite conclusion
is clearly evident. City of Belvidere v. Illinois State Labor Relations Bd., 181 Ill. 2d 191, 205
(1998).
¶ 22 In contrast, an agency's decision on a question of law is entitled to no deference and is
reviewed de novo. Cook County Sheriff’s Office v. Cook County Comm’n on Human Rights, 2016
IL App (1st) 150718, ¶ 28.
¶ 23 Finally, when there are mixed questions of fact and law, the reviewing court applies a
clearly erroneous standard of review. AFM Messenger Service, Inc., 198 Ill.2d at 392. In mixed
questions of fact and law, the historical facts are admitted or established, the rule of law is
undisputed, and the issue is whether the facts satisfy the statutory requirement. American
Federation of State, County and Mun. Employees, Council 31 v. State Labor Relations Bd., 216
Ill. 2d 569, 577 (2005). Under the clearly erroneous standard, the reviewing court will reverse
when it has a “definite and firm conviction that a mistake has been committed.”Beggs v. Board of
Education of Murphysboro County, Unit School Dist. No. 186, 2016 IL 120236, ¶ 50, (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
¶ 24 Here, Petitioners maintain that the determination of whether a prima facie case has been
established is a mixed question of fact and law. Petitioners argue that the prima facie determination
is whether a statutory requirement is being satisfied by the facts. We note that there has been some
confusion as to whether the finding of a prima facie case is a matter of fact or a question of law.
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Gafford v. General Elec. Co., 997 F.2d 150, 169 n.10 (C.A.6 1993). We find that the Commission’s
findings of fact are reviewed under the manifest weight of evidence standard. However, for the
ultimate question of whether a prima facie case is established, the clearly erroneous standard of
review applies. Heabler v. Ill. Dep’t of Fin. & Prof’l Regulation, 2013 IL App (1st) 111968, ⁋ 17
¶ 25 Kolin’s Prima Facie Case
¶ 26 To establish a prima facie case of age discrimination, petitioner must show that: (1) he was
at least 40 years old at the time of the adverse job action; (2) his job performance met his
employer’s legitimate expectations; (3) he suffered an adverse job action despite his job
performance; and (4) a similarly situated, younger employee did not face the same adverse job
action. Marinelli v. Human Rights Comm’n, 262 Ill. App. 3d 247, 253 (1994). The Commission
found that Kolin met the first three elements, but failed to show that Rand, Peszynski and Harvey
were similarly situated employees. Kolin argues the Commission’s finding is clearly erroneous
and against the manifest weight of evidence.
¶ 27 To determine whether employees were similarly situated, courts must focus on the
similarity of misconduct and the employees' work records. Loyola University of Chicago v. Human
Rights Comm'n, 149 Ill. App. 3d 8, 19 (1986). While precise equivalence is not required, the other
employee’s circumstances must be sufficiently parallel. Id. Indeed, comparators must be directly
comparable in all material respects. Barbera v. Pearson Educ, Inc., 906 F.3d 621, 629 (7th Cir.
2018).
¶ 28 Here, the Commission distinguished between the employees by rank and alleged conduct.
The Commission found that Kolin was not similarly situated with the comparators Rand,
Peszynski, and Harvey because during the relevant timeframe, the comparators had a lower rank
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than Kolin. Kolin was an assistant fire marshal and the comparators were all lieutenants. However,
Kolin contends that because lieutenant is a leadership position within the CFD, the difference in
rank between lieutenant and assistant fire marshal is insignificant.
¶ 29 The Commission also found the alleged conduct by Kolin and his comparators differed in
severity. The allegations against the comparators were essentially of using rude and disrespectful
language. Rand and Harvey allegedly called Del Gadillo a “rat.” Rand also allegedly greeted her
daily with “Hi, stupid.” Peszynski allegedly sang songs with profane language. In contrast, Kolin
was accused of sexual harassment. Kolin allegedly told Del Gadillo to wear sexy jeans and “tuck”
him into bed. Unlike his comparators, Kolin was also named in a federal lawsuit for his alleged
harassment. The allegations against Kolin were more serious and distinguishable from his
comparators’. The Commission found that Rand, Peszynski and Harvey were not similarly situated
employees, and the Commission’s finding was not against the manifest weight of the evidence.
¶ 30 Since Kolin could not prove that similarly situated, younger employees received favorable
treatment, the Commission ruled he failed to establish a prima facie case of age discrimination.
We find that Commission’s ruling was not clearly erroneous.
¶ 31 Respondent’s Reasons for Adverse Actions
¶ 32 Steinhagen contends that the Commission erred in finding that Respondent articulated
legitimate, nondiscriminatory reasons for its actions that were not pretextual.
¶ 33 The Commission found that Steinhagen established a prima facie case of age
discrimination. Steinhagen made the same arguments as Kolin concerning Rand, Peszynski, and
Harvey being similarly situated, and the Commission again rejected these arguments. The rank of
Rand, Peszynski, and Harvey was lower than Steinhagen’s, and the allegations against them were
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less severe. However, unlike Kolin, Steinhagen established that Respondent replaced him with a
younger employee following his resignation. This replacement was enough to satisfy element four
and establish a prima face case of age discrimination.
¶ 34 Once a prima facie case is established, a rebuttable presumption arises that the employer
unlawfully discriminated against the petitioner. Zaderaka, 131 Ill. 2d at 179. To rebut this
presumption, the employer must articulate, though not prove, a legitimate and nondiscriminatory
reason for its action. Id. If an employer articulates a legitimate and nondiscriminatory reason, the
petitioner must prove, by a preponderance of the evidence, that the employer's reason was untrue
and merely a pretext for discrimination. Id.
¶ 35 Here, Respondent asserted that it transferred Steinhagen from CFD headquarters to create
a work environment in which Del Gadillo could feel comfortable, safe, and free of sexual
harassment. Additionally, Respondent asserted that Steinhagen was not reappointed to his position
because he was named in Del Gadillo’s federal sexual harassment lawsuit. Due to this lawsuit,
President Dominick did not nominate Steinhagen for reappointment because of possible resistance
from the Board. The Commission found these reasons were legitimate and nondiscriminatory, and
we find that the Commission did not error because its decision was not clearly erroneous or against
the manifest weight of the evidence.
¶ 36 Steinhagen argues that the Respondent’s reasons were pretextual. To prove pretext, a
petitioner must show that the employer's reason was false, and that discrimination was the real
reason for the action. Sola v. Human Rights Comm'n, 316 Ill. App. 3d 528, 537 (2000). A petitioner
must present “sufficient evidence to permit a finding that the employer's proffered reasons masked
intentional discrimination rather than some other legitimate, though not necessarily commendable,
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motive.” Christ Hospital and Medical Center v. Illinois Human Rights Comm'n, 293 Ill. App. 3d
105, 111 (1997). Specifically, a petitioner has to show: “(1) that the articulated reason has no basis
in fact; (2) that the articulated reason did not actually motivate the employer's decision; or (3) that
the articulated reason was insufficient to motivate the employer's decision.” Sola, 316 Ill. App. 3d
at 537.
¶ 37 For pretext, Steinhagen argues that Respondent was not concerned with Del Gadillo’s
welfare because it waited eight months to transfer Petitioners from the headquarters. While it is
true that Del Gadillo first made allegations of harassment against CFD employees in February
2010, she did not initially identify the alleged perpetrators. Del Gadillo did not name Kolin until
May 2010. When she finally named Steinhagen in October 2010, he was transferred, along with
Kolin, out of CFD headquarters. Steinhagen then argues that Respondent should have transferred
all the accused harassers. However, as previously stated, the allegations against Petitioners were
more serious than those against Rand, Peszynski and Harvey.
¶ 38 Steinhagen next argues that Respondent should have allowed Petitioners to return to CFD
headquarters at the conclusion of the investigation. In June 2011, Respondent concluded its
investigation of alleged harassment and all allegations were deemed “not sustained.” However,
“not sustained” means there was insufficient evidence to prove or disprove the allegations.
Respondent believed that Del Gadillo was credible but lacked the evidence to prove her
allegations. The determination of “not sustained” is not the same as finding that the allegation is
false. See Cox v. Murphy, 2016 WL 4009978 at 30. Additionally, Respondent asserted that Del
Gadillo could have returned from medical leave at any time, and Respondent did not want the
difficulty of transferring Petitioners upon her return. The Commission found that Respondent was
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concerned with bringing Del Gadillo back to a safe and comfortable workplace. We find that the
Commission did not error because its decision was not clearly erroneous or against the manifest
weight of the evidence.
¶ 39 Steinhagen then argues that Respondent offered contradictory reasons for its failure to
reappoint him. He argues that he was initially told that his position would be eliminated, but was
later informed that he was not reappointed. Inconsistencies given by an employer as to the reason
for termination may tend to establish that the reason was pretextual. Southern Illinois Clinic, Ltd.
v. Human Rights Comm'n, 274 Ill. App. 3d 840, 850 (1995). However, the reason for Steinhagen
not being reappointed was not an inconsistency. Respondent provided evidence that while Buscemi
retained Steinhagen’s job title, his responsibilities were different following a CFD reorganization.
Buscemi’s job was essentially a different position.
¶ 40 Prior to Del Gadillo’s allegations, Steinhagen never alleged any instances of age
discrimination by Respondent. In fact, he enjoyed a long and distinguished career at the CFD,
experiencing multiple promotions. His most recent promotion occurred in January 2010 when he
was first appointed Assistant Fire Marshal at the age of 54. In October 2010, after Steinhagen was
informed of the allegations, he offered President Dominick his resignation. President Dominick,
however, refused to accept the resignation and encouraged Steinhagen to fight the allegations. In
2011, at age 55, Steinhagen was reappointed Assistant Fire Marshal. Later that year, Del Gadillo
filed her federal lawsuit naming Steinhagen among the defendants. In 2012, President Dominick
did not nominate Steinhagen for reappointment because some board members were opposed due
to the federal lawsuit. Despite these facts, Steinhagen contends that the only obvious explanation
for his lack of reappointment was age discrimination, but the evidence does not suggest intentional
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discrimination. If Respondent had a discriminatory intent, Steinhagen would not have been
appointed as Assistant Fire Marshal at age 54 and then reappointed at 55. Likewise, it strains
credulity for President Dominick to refuse his resignation if the goal was to get rid of him. Here,
Steinhagen is arguing that Respondent suddenly became discriminatory (between 2011 and early
2012) and that the federal lawsuit (filed in late 2011) played no role in the decision to not reappoint.
The Commission’s decision finding the Respondent’s reason was legitimate and not pretextual
was not clearly erroneous and not against the manifest weight of the evidence.
¶ 41 Legal Standard for Discrimination
¶ 42 Finally, Petitioners contend that the Commission applied a legal standard that conflicts
with Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) and reversal is required.
Specifically, Petitioners argue that because the Commission applied the “direct” and “indirect”
methods of showing discrimination, the Commission failed to evaluate the evidence as a whole
and resolve the question of, “whether the evidence would permit a reasonable fact finder to
conclude that the [Petitioners’] age caused their discharge and other adverse employment actions.”
Id at 765.
¶ 43 Whether the Commission applied the correct legal standard is a question of law that is
reviewed de novo. Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 327 Ill. App. 3d 768,
775 (2002). The Illinois Supreme Court has adopted the framework set forth in United States
Supreme Court cases addressing issues under Title VII of the Civil Rights Act of 1964 and the
Age Discrimination in Employment Act. Zaderaka, 131 Ill. 2d at 178. Petitioners may prove
discrimination in one of two ways: they may meet their burden by presenting direct evidence that
age factored into the employment decision, or they may use the indirect method to prove
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discrimination. Lalvani v. Illinois Human Rights Comm’n, 324 Illl. App. 3d 774, 790 (2001). The
indirect method provides that once the Petitioners establish a prima facie case of unlawful
discrimination, the burden of production shifts to the Respondent to articulate a legitimate,
nondiscriminatory reason the employment action. Zaderaka, 131 Ill. 2d 172, 178-179 (1989). See
also, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
¶ 44 Direct evidence of age discrimination would be evidence that an employer made specific
comments about an employee’s age before an adverse employment action. Illinois J. Livingston
Co. v. Illinois Human Rights Comm’n, 302 Ill. App.3 d 141, 152 (1998). Such evidence is usually
unavailable, so courts allow petitioners to use indirect evidence to sustain a case of intentional
discrimination. Sola, 316 Ill. App. 3d at 536. Illinois courts utilize the test in McDonell Douglas
to determine a prima facie case that creates the presumption of discrimination. Id.
¶ 45 In Ortiz, an employee claimed that his employer terminated him because of his Mexican
ancestry. Id. at 761. He offered both direct and indirect evidence of discrimination, but the federal
district court granted summary judgment to the employer. Id. at 763. The federal district court held
that the employee failed to create a “convincing mosaic” under either the direct or indirect method.
Id. On appeal, the U.S. Court of Appeal for the 7th Circuit held that the federal district court erred
because it failed to “aggregate the possibilities to find an overall likelihood of discrimination.” Id.
Additionally, the 7th Circuit held that “convincing mosaic” is not a legal standard. Id at 765. The
proper legal standard is “whether the evidence would permit a reasonable factfinder to conclude
that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or
other adverse employment action.” Id. at 765. Ortiz holds that “[e]vidence must be considered as
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a whole, rather than asking whether any particular piece of evidence proves the case by itself – or
whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.” Id.
¶ 46 Petitioners contend that because the Commission mentioned “direct” and “indirect”
evidence in its opinion, the Commission violated the holding in Ortiz. We find Ortiz does not hold
that courts can never identify evidence as either direct or indirect, but instead Ortiz holds that
courts must view all evidence, both direct and indirect. In fact, the Ortiz court specifically held
that its decision did not affect the McDonnell Douglas burden-shifting framework, which is
employed with the indirect method. Id. at 766.
¶ 47 Here, Petitioners provided no instances of direct evidence of discrimination. The
Commission acknowledged the lack of direct evidence and then applied the McDonnell Douglas
test to the indirect evidence. Ortiz states, “all evidence belongs in a single pile and must be
evaluated as a whole.” Id. Here, the indirect evidence was the only evidence provided, and that
evidence was the single pile. Simply mentioning that there is no direct evidence of age
discrimination does not violate Ortiz. Hence, we find that the Commission applied the correct
legal standard to Petitioners’ claims.
¶ 48 CONCLUSION
¶ 49 The Commission applied the appropriate standard when it evaluated Petitioners’ claims of
age discrimination, and its finding that Kolin failed to establish a prima facie case of age
discrimination was not clearly erroneous or against the manifest weight of the evidence. The
Commission did not error in finding that Respondent articulated legitimate, non-discriminatory
reasons for the adverse employment actions and that Respondent’s proffered reasons for its actions
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were not pretextual because the Commission’s rulings were not clearly erroneous or against the
manifest weight of the evidence.
¶ 50 Affirmed.