Wardlaw v. Mars Chocolate North America, LLC

2021 IL App (1st) 200562-U

• Court: Appellate Court of Illinois
• Decided: July 30, 2021
• Docket: 1-20-0562
• Status: Unpublished

Opinion

2021 IL App (1st) 200562-U

No. 1-20-0562

Order filed July 30, 2021

Fifth Division

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 FIRST DISTRICT

DEVIN WORDLAW, SR., ) Petition for Direct ) Administrative Review of a Petitioner-Appellant, ) Decision of the Illinois Human ) Rights Commission. v. ) ) Charge No. 2014 CA 3217 MARS CHOCOLATE NORTH AMERICA, LLC, THE ) ILLINOIS DEPARTMENT OF HUMAN RIGHTS. and ) THE ILLINOIS HUMAN RIGHTS COMMISSION, ) ) Respondents-Appellees. )

PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment.

ORDER

¶1 Held: We affirm the order of the Illinois Human Rights Commission dismissing a charge of discrimination because the Commission did not abuse its discretion in determining that the charge was not supported by substantial evidence.

¶2 Petitioner Devin Wordlaw, Sr. seeks review of an order of the Illinois Human Rights

Commission (Commission) sustaining the dismissal by the Illinois Department of Human Rights No. 1-20-0562

(Department) of his employment discrimination charge against Mars Chocolate North America,

LLC (Mars) pursuant to the Illinois Human Rights Act (Act) (775 ILCS 5/1-101, et seq. (West

2014)). For the following reasons, we affirm the Commission’s decision.

¶3 FACTS

¶4 On June 12, 2014, petitioner filed a pro se charge of discrimination with the Department

alleging that Mars discriminated against him on the bases of his age (45) and race (Black) when it

suspended and subsequently discharged him in March 2014 for an alleged safety violation.

Petitioner further alleged that his job performance met Mars’s expectations and similarly situated

younger and non-Black employees were not treated in the same manner under similar

circumstances.

¶5 The Department assigned an investigator to petitioner’s charge, who interviewed petitioner

and Mars employees. According to the investigator’s report, it was uncontested that Mars had a

“Lock Out/Tag Out” (LOTO) policy requiring employees to lock out machines. Violations of the

LOTO policy could result in discipline up to and including termination. Petitioner was hired as a

Team Member on April 9, 2001. Employment data established that in 2013, 23% of Mars’s

employees were Black.

¶6 In January or February 2014, Kim Latham began working as a Site Director. On March 14,

2014, Latham and “MRF Manager” Michael Martinez observed petitioner service a stretch wrap

machine without locking it out. Petitioner stated that on March 14, 2014, he and Chris Garcia were

at the stretch wrap machine and petitioner was changing the stretch wrap roll. Latham and Martinez

asked him why he did not lock down the machine, and petitioner told them that under the “work

instructions” for changing the stretch wrap, the machine did not need to be locked down. He stated

that if the machine’s door is open, it is disconnected and cannot start, and that it is “impossible” to

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close the door when changing the shrink wrap. Martinez suspended petitioner with pay, pending

an investigation. People & Organizations Manager Linda Lazlo discharged petitioner, stating that

Mars had zero tolerance for LOTO policy violations.

¶7 According to petitioner, all team members have changed the stretch wrap without locking

down the machine. Specifically, in November 2013, Dana Mitchell changed the stretch wrap

without locking down the machine and was not disciplined. However, petitioner did not know if

Mars was aware of this incident. In December 2013, Vince Abbadessa lowered the stretch wrap

ring without locking down the machine, and a retired manager told him to lock it. Abbadessa was

not disciplined.

¶8 Garcia stated he worked for a private contractor at Mars. No one from Mars talked to him

about the incident at issue. For the year that Garcia worked at Mars, he never saw anyone lock or

tag out any machine. Although there was a LOTO policy, it was not enforced and there were no

consequences for violations. Latham began to enforce the policy when she started working at Mars.

Garcia recalled only one LOTO sign on a different machine before this incident, but later, signs

were posted.

¶9 Mars’s evidence established that the Team Member role description states they are

accountable for operating equipment in a safe manner. The LOTO policy provides that all

violations must be investigated and handled as serious in nature. In October 2001, petitioner signed

a document stating that every LOTO policy breach would be fully investigated and could result in

discipline up to and including termination. The stretch wrap machine’s door had a sign instructing

employees to lock out before entry.

¶ 10 Emails between Latham, Lazlo, Martinez, and Shift Lead Ruben Chacon stated that when

Chacon met with petitioner after the incident, petitioner reported that everyone did it the way that

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he did. Chacon responded that petitioner was the one who got caught. When petitioner was showed

how to lock out the machine and told the importance of the LOTO policy, petitioner appeared

disinterested and became angry and upset.

¶ 11 Martinez stated that after witnessing petitioner fail to lock out the machine, he consulted

with Chacon, Safety Tech Cary Hendrix, and Outbound Coordinator St. Clair Haywood, and they

all agreed the machine should have been locked down. Martinez then determined it was necessary

to suspend petitioner. Martinez consulted with Mars’s national headquarters to see what they have

done in the past with LOTO policy violations and determined that petitioner would be discharged.

Although Martinez thought the machine’s work instructions should have said it needed to be

locked out, there were “visible instructions” requiring it be locked out. Martinez added that the

LOTO policy is “OSHA standards.” Martinez was not aware of anyone else violating the LOTO

policy, and other employees denied petitioner’s allegation that no one followed it.

¶ 12 The investigator’s report further noted that Team Member Jason Spera was discharged in

November 2013 for a LOTO policy violation. Team Member David Strang was suspended in

October 2011 for a safety violation resulting in damage to company property and was discharged

in May 2013 for various “railcar accidents.” Team Member Terrence Booker received a written

warning in April 2013 for a safety violation involving failing to immediately report an injury.

Team Member Bryan Kruizenga received a written warning in May 2013 for unacceptable job

performance. All four individuals, except for Booker, were non-Black. Petitioner’s replacement,

Fred Miller, was hired in May 2014.

¶ 13 The Department’s investigator recommended that all counts of petitioner’s charge be

dismissed for lack of substantial evidence. The investigator noted that it was uncontested that

petitioner did not lock out the stretch wrap machine, which violated Mars’s LOTO policy.

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Regarding petitioner’s offered comparatives, the investigator found that Mitchell was in both of

petitioner’s protected categories, while Abbadessa was in one of the protected categories (age),

but his alleged violation occurred under a different manager, and it was not shown he violated any

safety policies. Further, there was no evidence that management was aware that Garcia was in the

stretch wrap machine with petitioner. Additionally, Mars disciplined younger and/or non-black

employees for policy violations, including discharging a younger, non-Black employee, Spera, for

an LOTO policy violation. Moreover, petitioner was replaced by a Black employee, Miller. The

Department dismissed petitioner’s charge for lack of substantial evidence.

¶ 14 Petitioner filed a request for review with the Commission. In his request, he alleged that

several employees admitted they lied about following LOTO policy, that the stretch wrap machine

was not discussed at annual LOTO training, and that work instructions for the stretch wrap

machine, which he attached to the request for review, did not mention LOTO. Petitioner argued

that Strang was treated more leniently because he was not discharged after his first safety violation.

He alleged that Martinez and Chacon, both Hispanic, conspired to terminate him, and that Chacon

violated work instructions regarding confined spaces, which he also attached to his request for

review. He further alleged that Mars was quick to terminate employees eligible for the “old”

pension plan.

¶ 15 The Department filed a response to petitioner’s request for review recommending that the

Commission sustain its dismissal of petitioner’s charge. The Department noted that petitioner did

not identify the individuals he claimed lied about following LOTO policy or submit evidence that

Mars acted in bad faith. In response to his allegations that the machine at issue was not discussed

at LOTO training and that the machine’s work instructions do not mention LOTO policy, the

Department pointed out that petitioner did not dispute that the machine had a sign indicating a

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requirement to follow the LOTO policy. Regarding petitioner’s allegation that Strang was treated

more leniently, the Department pointed out that Mars terminated a non-Black team member, Spera,

for a LOTO policy violation. The Department reasoned that petitioner’s allegation that Martinez

and Chacon conspired against him amounted to speculation and conjecture that did not constitute

substantial evidence of unlawful discrimination. Petitioner also failed to submit evidence

supporting his claim regarding termination of employees on the old pension plan.

¶ 16 On February 22, 2019, the Commission issued an order sustaining the Department’s

dismissal. The Commission found that petitioner had not established a prima facie case of age or

race discrimination because he failed to perform his work satisfactorily when he ignored the LOTO

policy and had not provided, nor had the investigation revealed, any evidence that Mars treated

similarly situated, younger and/or non-black team members more favorably. Further, Mars

articulated a nondiscriminatory reason for its actions, i.e., the LOTO policy violation, and

petitioner failed to offer evidence of pretext. On March 26, 2020, petitioner filed a petition for

direct administrative review in this court. In his brief, the Attorney General advises that the

Commission originally sent its decision to an incorrect address for Wordlaw. The postal service

returned it as undeliverable. The Commission did not send it to the correct address until February

28, 2020, so this petition for review is timely. See 775 ILCS 5/8-111(B)(1) (West 2020) (“Any

complainant or respondent may apply for and obtain judicial review of a final order of the

Commission entered under this Act by filing a petition for review in the Appellate Court within

35 days from the date that a copy of the decision sought to be reviewed was served upon the party

affected by the decision.”).

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¶ 17 ANALYSIS

¶ 18 In his pro se brief, petitioner maintains that the relevant work instructions did not require

the stretch wrap machine to be locked out. He asserts that he presented evidence of two non-Black

employees who violated LOTO policy and were allowed to return to work following three-day

suspensions. He further asserts he has new evidence that in September 2016, four other non-Black

employees violated LOTO policy and were allowed to return to work following three-day

suspensions.

¶ 19 As a threshold matter, we address deficiencies in petitioner’s brief. Compliance

with Illinois Supreme Court Rule (Rule) 341(h) (eff. Oct. 1, 2020) is mandatory, even for pro

se litigants. See Voris v. Voris, 2011 IL App (1st) 103814, ¶ 8 (compliance with rules governing

briefs on appeal is compulsory regardless of a party’s pro se status). If an appellant’s brief fails to

comply with the applicable rules of appellate procedure, we may strike that brief and dismiss the

petition for review. McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12.

¶ 20 Petitioner’s brief does not comply with Rule 341(h) in several important respects. For

example, his brief does not contain citations to any legal authority (see Rule 341(h)(1)); a viable

statement of jurisdiction (see Rule 341(h)(4)), or citations to the record (see Rule 341(h)(7)).

Nevertheless, it is clear from his brief that he challenges the Commission’s final order, and we

have the benefit of the respondents’ cogent briefs. As the issues are evident and the merits of the

appeal can be readily ascertained from the short record on appeal, we proceed to the merits of the

appeal. See North Community Bank v. 17011 South Park Ave., LLC, 2015 IL App (1st) 133672, ¶

14 (reviewing the merits of an appeal despite the appellant’s violations of Rule 341(h)).

¶ 21 The Act provides that it is a violation “[f]or any employer to refuse to hire, to segregate, or

to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training

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or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment

on the basis of unlawful discrimination or citizenship status.” 775 ILCS 5/2-102(A) (West Supp.

2013). “Unlawful discrimination” includes discrimination against a person because of his age or

race. 775 ILCS 5/1-103(Q) (West 2012).

¶ 22 A case under the Act is commenced by an aggrieved party filing a written charge with the

Department. 775 ILCS 5/7A-102(A)(1) (West 2012). The Department investigates a charge to

determine whether there is substantial evidence of the alleged violation. 775 ILCS 5/7A-102(C)(4),

(D)(2) (West 2012). “Substantial evidence is evidence which a reasonable mind accepts as

sufficient to support a particular conclusion and which consists of more than a mere scintilla but

may be somewhat less than a preponderance.” 775 ILCS 5/7A-102(D)(2) (West 2012). If there is

no substantial evidence of a violation, the Department dismisses the charge. 775 ILCS 5/7A-

102(D)(3) (West 2012). The charging party may then commence an action in the circuit court or,

as petitioner did here, file a request for review of the dismissal with the Commission. 775 ILCS

5/7A-102(D)(3) (West 2012). Judicial review of the Commission’s final order is heard directly in

this court. 775 ILCS 5/8-111(B)(1) (West 2020).

¶ 23 We review the Commission’s final order sustaining the dismissal of a discrimination

charge for lack of substantial evidence for abuse of discretion. Young v. Illinois. Human Rights

Comm’n, 2012 IL App (1st) 112204, ¶¶ 32-33. Under this standard, we reverse the Commission’s

decision only if it was arbitrary and capricious in that it contravenes legislative intent, fails to

consider a crucial aspect of the matter, or offers an impossible explanation contrary to the

Commission’s expertise. Id.

¶ 24 A petitioner may prove discrimination by either presenting direct evidence that race was a

determining factor in the employment decision or, as petitioner did here, by using the indirect

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method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Lalvani v.

Illinois Human Rights Comm’n, 324 Ill. App. 3d 774, 790 (2001). Under this method, a petitioner

must first make a prima facie case of unlawful discrimination by showing through a preponderance

of the evidence that he (1) was a member of a protected class, (2) met his employer’s legitimate

business expectations, (3) suffered an adverse employment action, and (4) the employer treated

others similarly situated outside his protected class more favorably. Young, 2012 IL App (1st)

112204, ¶ 34. A prima facie case creates a rebuttable presumption that the employer unlawfully

discriminated against the petitioner. Id. ¶ 36. To rebut the presumption, the employer must

articulate (not prove), a legitimate, nondiscriminatory reason for its actions. Id. The petitioner then

has an opportunity to prove by a preponderance of the evidence that the articulated reason was

untrue and merely pretext for unlawful discrimination. Id. The ultimate burden always remains on

the petitioner. Id.

¶ 25 In this case, petitioner has failed to make aprima facie case of employment discrimination

based on his age or race because he failed to meet the second or fourth prongs in the McDonnell

Douglas test. Specifically, the Commission’s finding that petitioner failed to show that he met his

employer’s legitimate business expectations was proper , because the uncontroverted evidence

established he admittedly failed to lock out the stretch wrap machine while servicing it, which

violated Mars’s LOTO policy. Petitioner was aware of the LOTO policy and, in October 2001,

had signed a document stating that every LOTO policy breach would be fully investigated and

could result in discipline up to and including termination. Although petitioner contends that he was

following work instructions that did not require locking out the machine, he does not deny that the

machine had a sign on it noting the need to abide by the LOTO policy.

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¶ 26 Additionally, the Commission’s determination that petitioner did not establish that Mars

treated similarly situated, younger and/or non-Black team members more favorably was consistent

with the evidence. Contrary to petitioner’s claims, the record shows that Mars disciplined younger

and/or non-Black employees for policy violations, including discharging a younger, non-Black

employee, Spera, for a LOTO policy violation. In its ruling, the Commission differentiated each

of petitioner’s offered comparative employees, and identified those who did not fall into protected

classes and who were discharged for a LOTO policy violation. Petitioner’s brief merely references

unidentified employees who allegedly violated LOTO policy, without being terminated. Thus,

petitioner’s employment discrimination claim fails outright.

¶ 27 Moreover, even if petitioner were able to establish a prima facie case of employment

discrimination, he failed to offer evidence that Mars’s articulated nondiscriminatory reason for its

actions was a pretext for age or race discrimination. Mars reported that it suspended petitioner after

Latham and Martinez observed him servicing the stretch wrap machine without locking it out, as

required by Mars’s LOTO policy. This constituted a safety violation, which was punishable by

discipline up to and including termination. As mentioned above, petitioner was aware of this policy

and had signed off on it. Accordingly, the Commission did not abuse its discretion in sustaining

the dismissal of his discrimination charge for lack of substantial evidence on this basis. Although

petitioner claims Mars’s expressed reason for his termination was pretextual, he failed to present

any evidence in support of that assertion.

¶ 28 CONCLUSION

¶ 29 Therefore, we conclude that the Commission did not abuse its discretion in sustaining the

Department’s dismissal of the discrimination charge for lack of substantial evidence.

¶ 30 Affirmed.

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