Raiman v. Illinois Human Rights Comm'n

2021 IL App (2d) 190896-U

• Court: Appellate Court of Illinois
• Decided: January 4, 2021
• Docket: 2-19-0896
• Status: Unpublished

Opinion

2021 IL App (2d) 190896-U No. 2-19-0896 Order filed January 4, 2021

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

ELLEN M. RAIMAN, ) On Petition for Administrative Review from ) The Illinois Human Rights Commission. Petitioner-Appellant, ) ) v. ) No. 11-CN-4156 ) THE ILLINOIS HUMAN RIGHTS ) COMMISSION, THE DEPARTMENT ) OF HUMAN RIGHTS, NANCY OLSSON, ) Compliance Manager Home Depot, BETSY M. ) MADDEN, Chief Legal Counsel, Illinois ) Department of Human Rights, CASE ) DISPOSITION UNIT OF THE ILLINOIS ) DEPARTMENT OF HUMAN RIGHTS, ) ) Respondents-Appellees. ) ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justices Bridges and Justice Zenoff concurred in the judgment.

ORDER

¶1 Held: Petitioner did not make a prima facie case before the administrative body that her employer discriminated against her based on her mental illness when it disciplined and ultimately discharged her. Rather, the evidence showed that the employer’s actions had nondiscriminatory reasons, namely petitioner’s multiple infractions of workplace policies. Petitioner also failed to show that her employer did not reasonably accommodate her. 2021 IL App (2d) 190896-U

¶2 Petitioner, Ellen M. Raiman, appearing pro se, appeals the order of the Illinois Human

Rights Commission (the Commission) sustaining the dismissal of her charge of discrimination

filed with the Department of Human Rights (the Department). Petitioner alleges that her employer,

Home Depot, discriminated against her based on her mental illness and that the Commission erred

in sustaining the Department’s dismissal for lack of substantial evidence. Respondents, the

Commission, and the Department argue that the Commission did not abuse its discretion by

sustaining the dismissal. We affirm.

¶3 I. BACKGROUND

¶4 Petitioner worked at Home Depot from 2002 to 2010. Petitioner suffers from anxiety,

depression, and panic disorder. In September 2010, Home Depot terminated her employment on

the basis that she harassed a vendor and had previously been disciplined.

¶5 Petitioner filed a discrimination charge with the federal Equal Employment Opportunity

Commission (EEOC), alleging that Home Depot discriminated against her based on her disability.

The EEOC dismissed the charge, and petitioner sought review from the Department. She alleged

that Home Depot discriminated against her by changing her work schedule that had been in place

to accommodate her disabilities, by disciplining her, and by terminating her employment. She

alleged that similarly situated nondisabled employees were treated more favorably. The

Department initially dismissed the charge for lack of substantial evidence but then agreed that the

dismissal should be vacated for it to investigate.

¶6 In investigating the charge, the Department conducted a fact-finding conference with

petitioner and various representatives of Home Depot, and it reviewed 19 documents. The

investigation report included petitioner’s version of the events.

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¶7 The record shows that petitioner was employed as a sales associate. On November 9, 2009,

she requested a set schedule on Tuesdays, Thursdays, Fridays, and Saturdays, as a reasonable

accommodation to allow her to take care of her special needs children and to reduce her stress

level. Home Depot initially gave her a schedule of 7:00 a.m. to 5:30 p.m. on Tuesdays, Thursdays,

and Fridays, and 6:00 am. to 2:30 p.m. on Saturdays. However, in the fall of 2010, petitioner was

reassigned from the garden department, which was closing for the season, and Home Depot

indicated to her that it might be necessary to adjust her schedule due to business need but that she

would still have a set schedule and changes would be worked out with her in advance. On August

15, 2010, her store manager posted a schedule for the week of August 30, during which she was

scheduled for Tuesday, Thursday, and Friday from 6:00 a.m. to 4:30 p.m., and Saturday from 9:00

a.m. to 5:30 p.m. On August 22, he posted a schedule for the week of September 6, scheduling her

to work Tuesday from 9:00 a.m. to 7:30 p.m., Thursday from 6:00 a.m. to 4:30 p.m., Friday from

9:00 a.m. to 7:30 p.m., and Saturday from 9:00 a.m. to 5:30 p.m.

¶8 On August 12, 2010, petitioner’s manager, Barry Zinke, issued her written counseling for

talking on her cell phone during work hours. On August 31, 2010, Zinke told petitioner that he

planned to issue her another warning for talking on her cell phone, based on a report from one of

Home Depot’s vendors that petitioner did not assist the vendor because she was talking on the

phone. Petitioner denied that she was talking on her cell phone and claimed that the incident

caused her to have a panic attack and be taken away by ambulance. Because petitioner left the

premises, no formal discipline was issued on that date.

¶9 Home Depot later received an e-mail from the vendor, stating that petitioner called him

eight times to ask why he had falsely accused her, even after he told her that he had seen her talking

on the phone and that he would not discuss the matter further. Petitioner yelled at the vendor, and

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he felt harassed. Petitioner admitted that she called two vendors to ask why they falsely accused

her of being on her cell phone, but she claimed that neither would talk to her. She also contacted

a Home Depot human resources manager and said that she had been wrongly accused of talking

on her cell phone and could obtain a cell phone bill to prove it. Petitioner also said that Zinke had

yelled at her, but witnesses reported that they saw petitioner become upset and yell but did not

witness Zinke yell.

¶ 10 On September 9, 2010, Home Depot fired petitioner based on her history of prior discipline

and for harassing the vendor, which was a major work rule violation that would normally result in

immediate discharge. Home Depot introduced evidence that, along with the August 2010

incidents, petitioner received discipline on six other occasions from August 29, 2009, through

February 6, 2010: one for poor performance, two for violation of policies, one for insubordination,

and two for attendance violations. Home Depot also introduced evidence that from August 12,

2009 through August 12, 2010, it issued written discipline to four sales associates, none of whom

had a reported disability, and that, from September 9, 2009 through September 9, 2010, four other

sales associates were discharged, none with a reported disability.

¶ 11 The investigator recommended a finding of lack of substantial evidence, and the

Department dismissed the charge. Petitioner requested a review by the Commission, arguing that

she previously worked in a higher position at Home Depot where she had better pay and more

freedom. She stated that, after Zinke became the store manager, she was demoted and improperly

disciplined. She stated that the schedule change prevented her from taking medication at the

correct time, and she believed that she was discriminated against for taking vacation time during

the holiday season and also because of her disabilities. She denied doing any of the things she was

disciplined for, and she claimed that she was on break when she made phone calls. She produced

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a bill showing that she made calls of shorter duration than the times alleged. She also produced a

doctor’s note requesting that she be allowed to talk occasionally with health care professionals

during work hours. She said that other employees lied about her actions and that the vendor was

emotionally abusing her. She stated that she called him only four times. Petitioner also took issue

with the Department’s investigation, alleging that witnesses told the investigator that Zinke treated

petitioner differently from other employees and that the Department failed to put that in its report.

The Department filed a response arguing that petitioner failed to provide any evidence that Home

Depot discriminated against her based on her disabilities.

¶ 12 The Commission sustained the dismissal. The Commission found that petitioner failed to

make a prima facie case of unlawful discrimination, specifically because she failed to show that

Home Depot’s actions were motivated by her disabilities. Instead, the evidence showed that Home

Depot had a nondiscriminatory reason for terminating her employment based on her harassment

of the vendor. The Commission also found that petitioner failed to show that Home Depot treated

similarly situated nondisabled employees more favorably. Finally, the Commission found that

petitioner did not establish that Home Depot provided no reasonable accommodation for her. She

appeals.

¶ 13 II. ANALYSIS

¶ 14 Petitioner argues that the Department did not complete a thorough investigation and that

the Commission erred in dismissing the charge. Essentially, petitioner disputes the factual findings

of the Department and the Commission. She also asks for damages.

¶ 15 Before reaching the merits, we note that petitioner’s brief is lacking in many respects. In

particular, Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018) requires an appellant’s brief

to contain argument supported by citations of the authorities and the pages of the record relied on.

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“A failure to cite relevant authority violates Rule 341 and can cause a party to forfeit consideration

of the issue.” Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23. “A brief that lacks any substantial

conformity to the pertinent supreme court rules may justifiably be stricken.” Hall v. Naper Gold

Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7.

¶ 16 In her briefs, petitioner cites only two cases, Baker v. Miller, 159 Ill. 2d 249 (1994) and

Rozsavolgvi v. City of Aurora, 2016 IL App (2d) 150493, neither of which involve a review of an

order of the Commission sustaining a dismissal for lack of substantial evidence. She also includes

a bare citation to section 1-102(A) of the Illinois Human Rights Act (775 ILCS 5/1-102(A) (West

2018)), which contains an antidiscrimination “declaration of policy.” She makes no attempt to

apply these authorities to her case and has failed to provide any authority to support her arguments.

Thus, we are free to strike petitioner’s brief and dismiss the appeal. However, striking an appellate

brief “is a harsh sanction and is appropriate only when the violations of procedural rules hinder

our review.” Hall, 2012 IL App (2d) 111151, ¶ 15. Here, the issues are apparent, and we have the

benefit of a detailed and cogent brief from respondents. Thus, we will address the merits of the

appeal. See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001).

¶ 17 The Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2018)) prohibits

discrimination against a person on the basis of disability. Id. § 1-102(A). Under the Act, upon the

filing of a discrimination charge, the Department must conduct a full investigation of the

allegations and prepare a written report. Id. § 7A-102(C)(1), (D)(1). The Department must then

review the report to determine whether there is “substantial evidence” that the alleged

discrimination has occurred. Id. § 7A-102(D)(2). “Substantial evidence,” as defined by the Act,

is “evidence which a reasonable mind accepts as sufficient to support a particular conclusion and

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which consists of more than a mere scintilla but may be somewhat less than a preponderance.” Id.

§ 7A-102(D)(2).

¶ 18 If the Department determines that there is no substantial evidence to support the allegation,

the charge is dismissed. Id. § 7A-102(D)(3). The petitioner may seek review by the Commission

of the dismissal. Id. If the Commission sustains the dismissal, the petitioner may seek review in

the appellate court. Id. § 8-111(B)(1) (West 2018); Allen v. Lieberman, 359 Ill. App. 3d 1170,

1180 (2005).

¶ 19 We review the decision of the Commission, not the Department. See Zaderaka v. Illinois

Human Rights Commission, 131 Ill. 2d 172, 180 (1989). The Commission’s findings of fact are

entitled to deference and “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 2018); see Stone

v. Department of Human Rights, 299 Ill. App. 3d 306, 314 (1998). The Commission’s decision to

sustain the dismissal of a charge will be reversed only where the decision was arbitrary and

capricious or an abuse of discretion. Owens v. Department of Human Rights, 403 Ill. App. 3d 899,

917 (2010). A decision is arbitrary and capricious if it contravenes legislative intent, fails to

consider a critical aspect of the matter, or offers an explanation so implausible that it cannot be

considered as a result of the exercise of the agency’s expertise. Young v. Illinois Human Rights

Commission, 2012 IL App (1st) 112204, ¶ 33. An abuse of discretion will be found where no

reasonable person could agree with the decision of the Commission. Id.

¶ 20 When analyzing employment discrimination cases under the Act, the petitioner has the

initial burden of proving, by a preponderance of the evidence, a prima facie case of unlawful

discrimination. Illinois Bell Telephone Co. v. Illinois Human Rights Commission, 190 Ill. App. 3d

1036, 1048 (1989). To establish a prima facie case, the petitioner “must show by a preponderance

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of the evidence that: (1) she is a member of a protected class; (2) she was performing satisfactorily;

(3) she was discharged despite the adequacy of her work; and (4) a similarly situated employee

who was not a member of the protected group was not discharged.” Owens v. Department of

Human Rights, 356 Ill. App. 3d 46, 52 (2005).

¶ 21 Once a petitioner establishes a prima facie case, “the employer must articulate, not prove,

a legitimate, nondiscriminatory basis for its action.” Id. The burden then shifts back to the

petitioner to prove by a preponderance of the evidence that the employer’s articulated reason was

not true and was a pretext for unlawful discrimination. Id. A petitioner’s failure “to present

substantial evidence of a prima facie discrimination claim or to disprove an employer’s articulated

reason for discharge warrants dismissal of the charge.” Id.

¶ 22 Here, the Commission correctly found that petitioner failed to establish that her disabilities

motivated Home Depot’s actions. Home Depot produced evidence that it discharged petitioner for

harassing a vendor and for several prior disciplinary incidents, including speaking on a cell phone

during work. Petitioner’s claim that Zinke treated her differently because of her disabilities is

based on speculation, not evidence. While petitioner denied using her phone during working

hours, others provided evidence to the contrary. Petitioner claimed that she had a doctor’s note

stating that she should be allowed to speak occasionally to healthcare professionals during work

hours, but there was no evidence that she informed Home Depot of this note or requested an

accommodation along these lines. Petitioner takes issue with several factual findings, arguing that

her fellow employees lied about her phone use and that Zinke procured their false statements. She

also asserts that Home Depot’s other disciplinary actions lacked validity, but the record rebuts her

claim. On the whole, her accusations are either speculative, unsupported by evidence, or disputed

in the record.

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¶ 23 In any case, the record is clear that the ultimate impetus for petitioner’s termination was

her harassing the vendor. Petitioner admitted that she called the vendor, but she disputed the

number of times that she called. Regardless, her act of harassing the vendor was a major work-

rule violation warranting termination for a first offense; it was clearly a non-discriminatory basis

for her termination.

¶ 24 Further, even if Home Depot was in error when it disciplined and ultimately discharged

petitioner, there is a lack of evidence that it did so in bad faith based on her disabilities. “A good-

faith belief for an employment decision is sufficient to rebut an intentional discrimination charge.”

Shah v. Illinois Human Rights Commission, 192 Ill. App. 3d 263, 273-74 (1989). See also Sola v.

Illinois Human Rights Commission, 316 Ill. App. 3d 528, 544-45 (2000) (court will not substitute

its business judgment for that of the employer).

¶ 25 Moreover, petitioner failed to provide evidence of non-disabled employees who violated

store policy yet were treated differently, while Home Depot showed that it disciplined non-

disabled employees.

¶ 26 The Commission also properly found that petitioner did not prove that Home Depot failed

to accommodate her. “Employers *** must make reasonable accommodation of the known

physical or mental limitations of otherwise qualified disabled applicants or employees, unless the

employer or labor organization can demonstrate that accommodation would be prohibitively

expensive or would unduly disrupt the ordinary conduct of business.” 56 Ill. Adm. Code

2500.40(a) (2009). The employee “bears the burden of asserting the duty to accommodate;

showing that an accommodation was, in fact, requested; and demonstrating that accommodation

was necessary for adequate performance.” Owens, 356 Ill. App. 3d at 53. In some circumstances,

a modification can be an appropriate accommodation for a disabled employee. Illinois Bell

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Telephone Co., 190 Ill. App. 3d at 1051. But the duty to accommodate only extends to

accommodating a disabled employee in the employee’s present position and does not require

employers to transfer a handicapped employee to a different shift. Fitzpatrick v. Human Rights

Commission, 267 Ill. App. 3d 386, 392 (1994).

¶ 27 The Commission found, and the record shows, that petitioner did not prove that she needed

to work specific hours, but instead that she requested a set schedule. Home Depot agreed to a set

schedule, noting that it might be necessary to adjust the schedule due to business need but that

changes would be worked out with her in advance. When petitioner’s hours changed due to the

garden center closing for the season, her days remained the same and she was given two weeks’

notice of the change. Petitioner did not provide evidence that the notice was insufficient to

accommodate her or that her hours were changed as a pretext for discrimination based on her

disabilities. Petitioner stated that the change affected the times that she took medication, but she

has not shown that she could not take the medication while working or that she asked for an

accommodation for that purpose.

¶ 28 Finally, petitioner argues that the Department’s investigation was inadequate. However,

the record shows that the Department conducted a complete investigation that included a fact-

finding conference with petitioner. Accordingly, that contention lacks merit.

¶ 29 III. CONCLUSION

¶ 30 The decision of the Commission sustaining the Department’s dismissal for lack of

substantial evidence was not an abuse of discretion. Accordingly, we affirm.

¶ 31 Affirmed.

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