THIRD DIVISION September 27, 2006
No. 1-04-1928, 1-04-2112, consol.
JEROME W. MITCHELL, ) Appeal from the ) Illinois Human Rights Petitioner-Appellant, ) Commission. ) v. ) ) THE DEPARTMENT OF CORRECTIONS, ) No. 1993CF1245 ) Respondent-Appellant ) ) (The Human Rights Commission, ) ) Respondent-Appellee). )
JUSTICE GREIMAN delivered the opinion of the court:
Petitioner Jerome W. Mitchell and the Illinois Department of Human Resources (the
DHR) filed a complaint with the Illinois Human Rights Commission (the Commission) pursuant
the Illinois Human Rights Act (the Act) (775 ILCS 5/1-101 et seq. (West 2002)) alleging that
Mitchell=s employers, the Illinois Department of Corrections (the Department) and Prison Health
Services (PHS), a private corporation operating out of Newcastle, Delaware, had discriminated
against him on the basis of race when they did not promote him to the position of dental director.
PHS settled with Mitchell and was dismissed as a party. After a subsequent hearing, an
administrative law judge (ALJ) filed a recommended order and decision (ROD) finding that
Mitchell had demonstrated that the Department had discriminated against him and was therefore
entitled to damages and that Mitchell was additionally entitled to attorney fees. The
Commission adopted the ROD. The Department appealed, contending that the Commission 1-04-1928, 1-04-2112 (consol.)
erred in finding that it was Mitchell=s employer and in finding that Mitchell had proven his
discrimination claim, and Mitchell appealed, contending that the Commission had erroneously
figured his attorney fees. We consolidated the parties= appeals.
On October 27, 1992, Mitchell, an African-American, filed a complaint with the DHR
alleging that the Department and PHS discriminated against him because of his race when they
did not promote him to the position of dental director on October 5, 1992, and instead hired
Robert Miller, a Caucasian. After an investigation, the DHR issued a notice finding substantial
evidence in support of Mitchell=s complaint.
On July 9, 1996, the DHR filed a complaint with the Commission on Mitchell=s behalf
alleging that the Department and PHS were employers under the Act, that they were Ajoint
employers@ of Mitchell and that their reasons for not hiring Mitchell were pretextual. The
Department answered, admitting that it was an employer within the meaning of the Act but
denying that it was Mitchell=s employer or joint employer. PHS answered the complaint but then
settled with Mitchell. PHS was subsequently dismissed as a party on Mitchell=s motion.
In a joint prehearing memorandum, Mitchell and the Department agreed that both PHS
and the Department were employers within the meaning of the Act. Under the Act, an employer
is defined as:
A(a) Any person employing 15 or more employees within Illinois during
20 or more calendar weeks within the calendar year of or preceding the alleged
violation;
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(c) The State and any political subdivision, municipal corporation or other
governmental unit or agency, without regard to the number of employees[.]@ 775
ILCS 5/2-101(B)(a), (c) (West 2002).
However, though the Department admitted to being an employer, it denied that it was
Mitchell=s employer. Mitchell and the Department further acknowledged that the Department
and PHS had contracted for PHS to provided health care services at Pontiac and Dwight
Correctional Centers, that Mitchell was hired by PHS pursuant to its contract with the
Department to provide health care services, that the Department denied that its employees had
input in the decision not to hire Mitchell as the dental director, and that PHS had admitted that
the Department had authorization to approve or disprove PHS=s hiring decisions and that PHS
was bound by the Department=s decision.
A hearing was conducted on the complaint before an ALJ in October and November
1996. During the hearing, it was ascertained that the Department had contracted with PHS to
provide medical care for its inmates. Pursuant to the contract between the Department and PHS,
PHS=s final selection of employees to provide the medical care and those employees= continued
employment were subject to approval by the Department, the Department was to perform a
background check of all employees, and the employees were required to meet the Department=s
minimum standards of performance, to comply with the Department=s rules, to undergo
Department training, and to sign in and out of work with the Department. Pauline Sohn, a
Department employee, confirmed that the Department conducts a background check on all health
care employees, provides training for those employees, and receives minutes of the dental
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department=s monthly staff meetings and that she personally reviews health care employees=
absences. Sohn denied involvement in the decision to hire Miller rather than Mitchell. Jack
Hartwig, the Pontiac assistant warden, testified that it was his duty to make sure that the dental
care unit was operating pursuant to Department rules and that inmates received a certain standard
of dental care. Hartwig denied having any involvement in the decision to hire Miller and further
testified that PHS would have made that decision. Dr. Owen Murray, the medical director of
PHS, testified that Beverly Clark, a PHS employee, had made the decision to hire Miller, but that
he and Sohn were involved in the selection process. Clark denied making the decision to hire
Miller. Miller, himself, could not remember who had hired him, but he did testify that the
announcement that he had been hired was on Department stationery but was signed by Murray.
Because the ALJ who was present at the hearing left the Commission, the parties
stipulated to the accuracy of the transcript of the hearing and to the deposition of Murray. On
February 5, 2002, a new ALJ issued a recommended liability determination in the case finding
that Mitchell had proven a prima facie case of discrimination and that the Department had failed
to articulate a lawful nondiscriminatory reason for its hiring decision. The ALJ recommended
that the Department be held liable for back pay in the amount of $35,956.60 and for reasonable
attorney fees and costs and allowed the Department to file a motion to set off the amount paid in
settlement by PHS from the amount for which it was liable to Mitchell.
Mitchell filed an accounting of his attorney=s costs and fees and the Department filed a
motion for a setoff. Mitchell=s accounting claimed costs totaling $4,664.24 and fees totaling
$220,450.
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After hearing arguments and evidence concerning the motion and the attorney fees, the
ALJ, finding the requested costs and fees unreasonably high, issued the ROD in which he
recommended that $15,030 be set off against the gross amount of attorney fees, that the
Department be ordered to pay Mitchell=s attorney $66,621.60 in attorney fees and $2,547.39 in
costs and that the Department additionally be held liable for back pay in the amount previously
recommended. The ALJ also specifically found that because it exercised control over Mitchell,
the Department was his employer.
Thereafter, Mitchell filed motions requesting an additional $23,950 in attorney fees for
119.75 hours spent in defense of the fee petition and an additional $73,600 for 368 hours spent
on prosecuting the case solely against PHS.
The Commission declined to review the matter and, accordingly, the ROD became the
Commission=s decision on April 14, 2004. The Commission denied Mitchell=s motion for a
rehearing en banc on the issue of attorney fees and costs on June 23, 2004.
Thereafter, the Department appealed, contending that the Commission erred in finding
that Mitchell was its employee and in finding that Mitchell had proven his discrimination claim.
Mitchell also appealed, contending that the Commission erred in refusing to grant the requested
attorney fees. We consolidated the parties= appeals.
First, though the Department admits to being an employer under the Act, the Department
contends that because it did not exercise control over Mitchell other than that which was
required to safely operate the Pontiac prison and because PHS, rather than the Department, paid
Mitchell=s salary, the Commission=s finding that it was Mitchell=s employer was erroneous.
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Accordingly, the Department concludes, the Commission did not have jurisdiction to address
Mitchell=s complaint against it.
This issue concerns a mixed question of law and fact. The facts presented before the
Commission are not in dispute but the question remains whether, given these facts, the
Department was Mitchell=s employer within the meaning of the Act. AMixed questions of fact
and law are subject to reversal only when deemed >clearly erroneous.= [Citation.] A decision is
>clearly erroneous= when the reviewing court is left with the definite and firm conviction that a
mistake has been committed.@ American Federation of State, County and Municipal Employees,
Council 31 v. State Labor Relations Board, 216 Ill. 2d 569, 577-78 (2005).
The Act provides that it is a civil rights violation for any employer to refuse to promote
an employee on the basis of unlawful discrimination. 775 ILCS 5/2-102(A) (West 2002).
Section 8-102 of the Act grants the Commission the power to hear and decide complaints filed in
conformity with the Act. 775 ILCS 5/8-102(G) (West 2002). The Act defines an employee as
A[a]ny individual performing services for remuneration within this State for an employer@ (775
ILCS 5/2-101(A)(1) (West 2002)). AThe term >jurisdiction,= although not strictly applicable to an
administrative body, may be used to designate the authority of the administrative body to act.@
Byington v. Department of Agriculture, 327 Ill. App. 3d 726, 730 (2002). In determining
whether the Commission has authority to act in a matter in which an employer denies that a
petitioner was its employee, we look both to the element of remuneration, as referred to in the
Act, and to the common-law factors for determining whether a worker is an employee. See
Wanless v. Illinois Human Rights Comm=n, 296 Ill. App. 3d 401 (1998) (appellate court affirmed
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dismissal of complaint filed under the Act for lack of jurisdiction, holding that petitioner, a
member of a bank=s board of directors, the bank=s vice president and an attorney with a firm that
represented the bank, was not an employee of the bank for purposes of the Act when he did not
receive remuneration for his position as director or vice president and when the bank paid
petitioner=s law firm , not petitioner personally, for legal services and had no control over the
means and methods of the performance of legal services on behalf of the bank). Common-law
factors to consider in examining a worker=s potential status as an employee include Athe amount
of control and supervision, the right of discharge, the method of payment, the skill required in
the work to be done, the source of tools, material or equipment, and the work schedule.@ Bob
Neal Pontiac-Toyota, Inc. v. Industrial Comm=n, 89 Ill. 2d 403, 410 (1982). Of these, control of
the manner in which work is done is considered the most important. Bob Neal, 89 Ill. 2d at 410.
When analyzing claims of discrimination under the Act, we may look to the standards
applicable to analogous federal claims. Wanless, 296 Ill. App. 3d at 404, citing Valley Mould &
Iron Co. v. Illinois Human Rights Comm=n, 133 Ill. App. 3d 273 (1985).
We find two federal cases particularly helpful in our analysis of the Department=s
contention. In the first, Zinn v. McKune, 143 F.3d 1353 (10th Cir. 1998), a nurse who was
employed by a private corporation that had contracted with the Kansas Department of
Corrections (the Kansas Department) to provide medical services to inmates filed a federal
employment discrimination claim against the Kansas Department. The federal district court
determined that the private corporation, rather than the Kansas Department, was the nurse=s
employer and therefore dismissed the nurse=s complaint.
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On appeal, the court first noted that a petitioner=s employment status is both a
jurisdictional issue and a substantive aspect of a petitioner=s claim and concluded that, in order to
survive summary dismissal, the nurse was required to show that the Kansas Department was an
employer and that she was its employee. In determining whether the nurse was an employee of
the Kansas Department, the court looked to common-law factors that are similar to those relied
upon under Illinois law, including the kind of occupation in issue, the skill required for that
occupation, which party furnishes the equipment used at the place of work, the length of time the
nurse had worked, the method of payment, the manner in which the nurse=s employment could be
terminated, whether annual leave was afforded, whether the work was an integral part of the
business of the Kansas Department, whether the nurse accumulated retirement benefits, whether
the Kansas Department payed social security taxes and the intention of the parties. The court
noted that the most important indicator of an employer-employee relationship was control.
In the case before the Zinn court, the private corporation and the Kansas Department had
entered a contract which explicitly provided that the corporation=s employees were not
employees of the Kansas Department. However, the corporation=s employees working at Kansas
Department facilities, such as the nurse, were required to comply with rules set out by the
Kansas Department, were supervised by Kansas Department employees to the extent that their
activities implicated the safety and security of prison facilities, and their records were audited by
Kansas Department employees to ensure that they met the Kansas Department=s specifications.
Additionally, Kansas Department employees were permitted to remove the corporation=s
employees from prison facilities. The Kansas Department also controlled the inventory of
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medical supplies and monitored the corporation=s employees= movements in and out of prison
facilities. The corporation=s employees= salaries and benefits were paid by the corporation, not
by the Kansas Department, and hiring and firing of the corporation=s employees was controlled
by the corporation, not by the Kansas Department.
The court found that the Kansas Department=s
Ainterest in controlling who and what goes into and out of the clinic and at what
time clearly relates to the safety and security of the prison, as does its interest in
maintaining an accurate >sharps= inventory and adequate medical supplies
throughout the prison. Similarly, [the nurse=s] performance of on-site nursing
duties using [Kansas Department] facilities and equipment serves the [Kansas
Department=s] interest in operating the correctional facility in a manner which
ensures the safety and security of employees and inmates alike. Finally, the
[Kansas Department=s] interests in controlling [the nurse=s] working hours and
access to the facility serve these same purposes.@ Zinn, 143 F.3d at 1358.
The court further found that the contract language between the Kansas Department and the
private corporation demonstrated that the parties intended the Kansas Department to retain
control over its facilities and to that end, and to a limited extent, over the corporation=s
employees assigned to those facilities. However, because its relationship with the nurse was
defined by the contract, to the extent that it was authorized to control aspects of the nurse=s work,
the Kansas Department was merely exercising its contractual rights. The court, therefore,
affirmed the district court=s dismissal of the complaint, finding that the nurse had not presented
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sufficient evidence that the Kansas Department exercised the requisite degree of control over the
nurse=s professional nursing services and that the measures imposed to ensure security and
safety, while they required the nurse to fulfill certain conditions, did not rise to the level of
control necessary for a finding that the Kansas Department was, in fact, the nurse=s employer.
More recently, the Seventh Circuit Court of Appeals reached the same conclusion as the
Tenth Circuit in the very similar case of Hojnacki v. Klein-Acosta, 285 F.3d 544 (7th Cir. 2002).
In Hojnacki, a doctor who had been employed by a private corporation that had contracted with
the Department to provide medical services to inmates filed a complaint in federal court alleging
that her due process rights were violated when, as a state employee, she was defamed when she
was discharged from her employment, preventing her from obtaining other government
employment. To state this claim, the doctor was required to prove that she was an employee of
the Department. The federal district court found that the doctor was not a Department employee
and summarily dismissed her complaint.
On appeal, the Hojnacki court noted that, in determining whether the doctor was a
Department employee, it would look to several common-law factors including the degree of
control the Department exercised over the doctor=s work, the nature and skill required to do the
doctor=s job, which party had responsibility for the cost of operation, provision of supplies and
maintenance of the workplace, whether the Department paid the doctor=s salary and provided her
benefits and the duration of the doctor=s employment.
The court first noted that the contract between the Department and the private
corporation provided that the doctor was not a Department employee. Nonetheless, weighing in
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favor of a finding that the doctor was a Department employee was the fact that she had worked at
the Department for three years, during which time the private healthcare provider had changed.
Each time a new provider signed on to provide health care services to the Department, the doctor
signed a contract with the new provider. However, the facts that the doctor did not receive
medical training from the Department and that the private corporation, not the Department, paid
the doctor=s wages and provided the doctor=s benefits weighed in favor of a finding that the
doctor was not a Department employee. The fact that the Department and the private
corporation shared the responsibility of supplying and maintaining the medical equipment was
inconclusive.
Concerning the most significant factor of control, the court noted that he Department set
the doctor=s working and on-call hours. The Department additionally required the doctor to
complete a training program, to participate in a committee dedicated to assuring that the inmates
received quality care and to insuring safety and to submit to a monthly review of all mortality
cases. The Department also specified what information should be included on admission and
discharge forms, how often to examine the inmates, what questions should be asked of the
inmates and what behavior should be observed. Nonetheless, the court found that these
procedural requirements Amerely specify [the doctor=s] duties as medical director; they do not
control the manner in which she is to perform those duties.@ Hojnacki, 285 F.3d at 551. The
court found that A >one can Acontrol@ the conduct of another contracting party by setting out in
detail his obligations; this is nothing more than the freedom of contract. This sort of one-time
Acontrol@ is significantly different than the discretionary control an employer daily exercises over
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its employees= conduct.= @ Hojnacki, 285 F.3d at 551, quoting Equal Employment Opportunity
Comm=n v. North Knox School Corp., 154 F.3d 744, 748 (7th Cir. 1998). Accordingly, the court
found that the factor of control weighed in favor of a finding that the doctor was not the
Department=s employee. Because the other factors largely balanced one another out, the court
found that the doctor was not the Department=s employee and affirmed the summary dismissal of
her complaint.
Although our research has not revealed an Illinois case addressing the exact issue of the
employment status of a prison health care worker in the context of an employment
discrimination claim, our supreme court=s recent decision in American Federation also influences
our decision in this case. In American Federation, before the Illinois State Labor Relations
Board, the union, which represented health care workers, sought to demonstrate that the private
corporation which had contracted to provide medical services to the Department and the
Department itself were joint employers of the health care workers. The Board found that the
Department was not a joint employer because it exercised little meaningful control over the
workers while the private corporation controlled the essential terms and conditions of their
employment directly and substantially. The appellate court reversed, finding that the
Department exercised sufficient control over the workers to be considered their joint employer,
and the union appealed to the supreme court.
The supreme court observed that the test for determining the existence of joint employers
is whether two employers exert significant control over the same employees such that they share
those matters governing essential terms and conditions of employment. Factors to consider in
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making such a determination include the employer=s role in hiring and firing, in promoting and
demoting, in setting wages and hours, in disciplining the workers and in providing actual day-to-
day supervision and direction. Again, in this context, the essential element in the analysis is A
>whether a putative joint employer=s control over employment matters is direct and immediate.= @
American Federation, 216 Ill. 2d at 580, quoting Airbourne Freight Co., 338 N.L.R.B. 597, 597
n.1 (2002).
In the case before the supreme court, the evidence showed that the Department had no
involvement in the hiring and firing of the health care workers and that the worker=s wages were
paid by the private corporations. However, the Department conducted background investigations
of all workers. While performance evaluations of workers were initially completed by the
private corporations, they were subsequently forwarded to the Department and the Department
was permitted to make additions to those evaluations. Similarly, time-off requests were initially
made to the private corporations; however, the requests were forwarded to the Department,
which was permitted to make a recommendation at to whether the requests should be granted.
Though the Department did not have authority to fire a worker, the wardens of each Department
facility were permitted to issue stop orders denying health care workers from entering the
facilities.
The court found that the elements of control exercised by the Department did not raise it
to the level of joint employer. Favorably citing Hojnacki, the supreme court observed that in
exercising control over the workers, the Department was simply exercising the rights it had been
granted by virtue of its contracts with the private corporations. Moreover, much of the control
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the Department exercised over the workers was simply for safety and security purposes and the
Department=s enforcement of its prison rules did not make it the workers= employer.
The facts of this case are essentially the same as those of Zinn, Hojnacki and American
Federation. As in Zinn and Hojnacki, the contract between the Department and PHS states:
ANeither [PHS] nor any person employed by [PHS] to perform services under this
agreement shall be deemed to be an agent or employee of the [Department].
Further, neither [PHS] nor any employees of [PHS] shall be entitled to participate
in any programs designed to benefit employees of the State of Illinois,
Department of Corrections.@
Nonetheless, as in the cases discussed above, the Department required that Mitchell complete
Department training, comply with rules dictating how examinations were to be administered and
regarding the inventory of medical equipment and medication, undergo a background
investigation, sign in and out of the Department=s facility and meet minimum standards in
providing dental care to the inmates. Additionally, Mitchell=s absences were reported to the
Department and his hours were set by the Department. Department staff members received
minutes from staff meetings in which Mitchell participated and the Department provided the
space and equipment in which Mitchell worked. The evidence presented at the hearing left
unclear the Department and PHS=s relative roles in the interviewing process of new employees
and employees applying for promotion and in the hiring decision process. Additionally, PHS
paid Mitchell=s salary and provided his benefits.
Though the facts that the Department provided the equipment for Mitchell=s work and
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dictated his schedule weigh in favor of a finding that Department was Mitchell=s employer, the
important element of control weighs in favor of a finding that the Department was not Mitchell=s
employer. In regulating Mitchell=s hours, absences and ingress and egress from its facility, as
well as his minimum level of performance, the Department was merely exercising his contractual
right to regulate those conditions. Furthermore, in requiring Mitchell to follow certain rules and
procedures in his treatment of the inmates, the Department was specifying his duties, as was its
contractual right to do, but was not controlling the manner in which he performed those duties.
Also significant is the fact that, in large part, the control exerted over Mitchell by the
Department stemmed from its unique position as an administrator of correctional facilities and
was to ensure the safety and security of the inmates, the facility and the workers therein.
Accordingly, consistent with the reasoning and holdings of Zinn, Hojnacki, and American
Federation, we find that the relevant factors clearly indicate that the Department was not
Mitchell=s employer for purposes of the Act. Therefore, the Commission=s contrary finding was
clearly erroneous and reversal is warranted.
Because we reverse the Commission=s finding in its entirety, we need not address the
additional contentions of error raised by the Department and Mitchell.
Finally, the Commission=s motion that we strike Mitchell=s reply brief because its length
exceeded that allowed by the Supreme Court Rules (see Official Reports Advance Sheet No. 21
(October 17, 2001), R. 341(a), eff. October 1, 2001), which was taken with the case, is granted.
However, we think it important to note that, as Mitchell=s reply brief solely concerned the issue
of attorney fees, our decision to strike it has no affect on our decision in this appeal.
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For the above-stated reasons, we reverse the judgment of the Commission.
Reversed.
THEIS, P.J., and KARNEZIS, J, concur.
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