Williams v. Illinois Human Rights Comm'n

2022 IL App (1st) 201299-U

• Court: Appellate Court of Illinois
• Decided: January 28, 2022
• Docket: 1-20-1299
• Status: Unpublished

Opinion

2022 IL App (1st) 201299-U

FIFTH DIVISION Order filed: January 28, 20222

No. 1-20-1299

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 ______________________________________________________________________________

HELENE TONIQUE WILLIAMS, ) Petition for Direct ) Administrative Review of a Petitioner-Appellant, ) Decision of the Illinois Human ) Rights Commission. v. ) ) ILLINOIS HUMAN RIGHTS COMMISSION; ILLINOIS ) DEPARTMENT OF HUMAN RIGHTS; and SAFETY ) SERVICE SYSTEMS, INC. d/b/a S3, INC., ) Charge No. 2020 CF 323 ) EEOC No. 21 BA 91878 Respondents-Appellees. ) ALS No. 20-0269

JUSTICE HOFFMAN delivered the judgment of the court. Justices Cunningham and Connors concurred in the judgment.

ORDER

¶1 Held: We affirm the decision of the Illinois Human Rights Commission, which sustained the Illinois Department of Human Rights’ dismissal of the petitioner’s employment discrimination charge for lack of substantial evidence.

¶2 The petitioner, Helene Tonique Williams, appeals pro se from an order of the Illinois

Human Rights Commission (Commission) sustaining the Illinois Department of Human Rights’ No. 1-20-1299

(Department) dismissal of her charge of employment discrimination by her former employer,

Safety Service Systems, Inc. d/b/a S3, Inc. (Safety Service), pursuant to the Illinois Human Rights

Act (Act) (775 ILCS 5/1-101 et seq. (West 2018). Williams alleged that she was harassed by Safety

Service based on her sexual orientation. The Department dismissed her charge for lack of

substantial evidence, and the Commission sustained the dismissal. For the following reasons, we

affirm.

¶3 On August 27, 2019, Williams filed a charge of discrimination with the Department

alleging that she was subjected to harassment by Safety Service based on her sexual orientation

(Lesbian). According to Williams, Safety Service hired her as an event security officer in June

2019, and it was aware of her sexual orientation. She alleged that, from July 27, 2019, through

August 22, 2019, she was harassed by Monique McFields, Safety Service’s human resources

representative. Williams specifically alleged that McFields “constantly criticize[d]” her during

work and called her “names” such as “retarded bitch and dyke.” She stated that similarly situated

heterosexual employees were treated more favorably. She maintained that her work performance

as a security officer met Safety Service’s expectations.

¶4 Williams’s charge was investigated by the Department. Before preparing its report, the

investigator for the Department interviewed the following people: Williams; Mary Beth Gerlach,

Safety Service’s President and Managing Partner; and McFields. The report details the evidence

presented by both parties during the Department’s investigation and is summarized below.

-2- No. 1-20-1299

¶5 Safety Service provides private security services for events, including football games at

Soldier Field. Safety Services hired Williams as an event security officer sometime in June or July

2019 and it terminated her on August 30, 2019, citing attendance issues. 1

¶6 Williams stated that her charge of harassment rested on one incident with McField that

occurred in August 2019 while she was working an event at Soldier Field. According to Williams,

she was in the uniform room preparing for her shift, and McField was also in the room. McField

asked Williams for her shirt size; she then “rolled her eyes at [Williams] and uttered ‘retarded dyke

ass bitch.’ ” Williams stated that McField was aware of her sexual orientation because of her

appearance: she dresses “tom-boyish” and wears a gay pride bracelet. Williams acknowledged that

no one witnessed this incident, and she did not report the incident to Safety Service. Williams

maintained that Safety Service’s stated reason for terminating her—attendance issues—was

pretextual because its policy allows event security personnel to “set their own schedules” and to

“call in” absent without penalty.

¶7 The investigator interviewed McField, who denied making the alleged remark to Williams

and denied that she was ever alone in the uniform room with Williams. McField also denied that

she knew Williams’s sexual orientation.

¶8 Safety Service submitted several documents to the Department as evidentiary exhibits.

Relevant here, Exhibit B is a copy of the job description for event staff, the position Williams held.

The job description indicates that employees make their own schedule by choosing in advance the

events for which they are available, but they must make themselves available to work football

1 Williams stated in her charge of discrimination that she was hired by Safety Service in “June 2019,” whereas Safety Service contends she was hired on July 17, 2019.

-3- No. 1-20-1299

games at Soldier Field. The description further states that employees must submit their schedules

bi-weekly and that “there is a 90-day probationary period where performance and attendance will

be evaluated.” Exhibit F is a copy of Safety Service’s attendance records, which indicate that

Williams arrived late on two occasions and missed her shift entirely on three occasions the last of

which occurred on August 29, 2019. Exhibit G are copies of Safety Service’s timecards for both

Williams and McField. Williams’s timecard reflects that she worked for Safety Service a total of

14 days between July 19, and August 30, 2019. McField’s timecards indicates that she worked the

same event as Williams on four occasions, including an August 3, 2019 event at Soldier Field.

Exhibit I is a copy of Williams’s termination notice, which reflects that Safety Service discharged

her on August 30, 2019, citing her attendance issues as the cause of her termination.

¶9 The report also contains a “Staff Note,” which reflects that the Department investigators

interviewed Williams on November 20, 2019, at which time she agreed to a “Fact-Finding

Conference” scheduled for January 7, 2020. On November 27, 2019, the Department mailed to

Williams a notice advising her of the January 7, 2020 Fact-Finding Conference. Williams did not

attend the January 7, 2020 Fact-Finding Conference. The Department sent Williams a follow up

letter on January 8, 2020, requesting an explanation for her absence and advising her that failure

to contact the Department within 30 days would result in the dismissal of her charge for failure to

proceed with the investigation. As of July 14, 2020, the date the report was completed, Williams

had not provided a legitimate reason for her failure to attend the January 7, 2020 Fact-Finding

Conference.

¶ 10 At the conclusion of the Department’s investigation, the investigator recommended a

finding of lack of substantial evidence. In reaching this conclusion, the investigator noted that

-4- No. 1-20-1299

Williams’s allegation of harassment rested on one incident where McField called her a derogatory

name. According to the investigator, even if such an incident occurred, the incident would “fall

short of establishing harassment that was severe and pervasive so as to alter the conditions of

[Williams’s] environment and create a hostile or abusive working environment” because of “the

infrequency of the interactions” between Williams and McField. The investigator went on to state

that, at most, this was “an isolated incident that does not establish a discriminatory pattern toward

[Williams’s] protected category.” Lastly, the investigator cited to the uncontested evidence that,

in 14 days of work, Williams arrived late twice and missed three shifts entirely.

¶ 11 On July 29, 2020, the Department dismissed Williams’s discrimination charge for lack of

substantial evidence. On August 4, 2020, Williams filed a request for review of the Department’s

decision with the Commission. On the form requesting review, Williams left blank the area where

she was instructed to list and describe the specific reasons that the charge should not have been

dismissed.

¶ 12 The Department filed a response, contending that Williams failed to present substantial

evidence to establish a prima facie case of harassment. It pointed out that Williams only cited one

instance of harassment: McField allegedly calling her a “dyke.” The Department stated that this

singular incident “is neither sufficiently severe, nor pervasive, and does not support actionable

harassment ***.” The Department also noted that Safety Service’s evidence established that

Williams was a probationary employee and she repeatedly arrived late for shifts or failed to work

shifts.

¶ 13 On October 30, 2020, the Commission issued its final administrative decision, sustaining

the Department’s dismissal of the charge for lack of substantial evidence. The Commission found

-5- No. 1-20-1299

that Williams’s evidence failed to establish that the alleged harassment was sufficiently severe or

pervasive to alter the conditions of her employment and create an abusive working environment.

It noted that, according to Williams, her encounter with McField was a “onetime isolated incident.”

As such, it did not rise to the level of actionable harassment. On December 7, 2020, Williams filed

her petition for direct review of the Commission’s decision in this court.

¶ 14 As an initial matter, we note Williams’s pro se appellate brief does not comply with Illinois

Supreme Court Rule 341(h) (eff. May 25, 2018), which governs the content of appellate briefs.

For example, Williams’s brief does not contain any “Points and Authorities” statement, outlining

the points argued and authorities citied in the Argument (see Rule 341(h)(1)), no statement of

jurisdiction (see Rule 341(h)(4)), and no argument supported by citations to the record or to legal

authority (see Rule 341(h)(7)). Instead, Williams’s brief consists of a single paragraph, nine

sentences in total, that is equal parts factual recitation and argument. We may strike a brief and

dismiss the appeal for failure to comply with the supreme court rules. Marzano v. Dept. of Emp’t.

Sec., 339 Ill. App. 3d 858, 861 (2003). However, we have the benefit of a cogent brief from the

Commission and the Department, as well as Safety Service, and so choose to reach the merits of

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

¶ 14 (reviewing merits of the appeal despite appellant’s numerous violations of Supreme Court

Rule 341(h)).

¶ 15 As previously mentioned, Williams’s appellate brief consists of only one paragraph.

Notably, nowhere in this paragraph does Williams claim that the Commission erred in sustaining

the dismissal of her charge of discrimination because she stated a prima facie case of harassment.

In fact, it appears that Williams has abandoned her one and only claim of harassment. Instead, she

-6- No. 1-20-1299

argues that Safety Service violated her “rights” when it fired her for attendance issues because its

own policies and her membership in a union protected her ability to set her own schedule. This is,

of course, not a civil rights issue, and therefore, it is outside the purview of the Act. See generally

775 ILCS 5/1-101 et seq. (West 2018)). Moreover, it goes without saying that this issue was not

raised below. Consequently, we will not address this argument. Lopez v. Dart, 2018 IL App (1st)

170733, ¶ 39 (“[I]ssues or defenses not raised before an administrative agency will not be

considered for the first time on administrative review.”) Rather, we will review whether the

Commissions erred in sustaining the dismissal of her charge of discrimination for a lack of

substantial evidence.

¶ 16 The Act is the “exclusive source for redress of civil rights violations” (Village of Maywood

Board of Fire & Police Commissioners v. Department of Human Rights, 296 Ill. App. 3d 570, 581

(1998)) and prohibits unlawful discrimination against a person on the basis of, inter alia, sexual

orientation (775 ILCS 5/1-102(A) (West 2018)).

¶ 17 Where a petitioner brings a charge under the Act, the Department shall conduct an

investigation to determine whether the allegations are supported by substantial evidence. See 775

ILCS 5/7A-101, 5/7A-102(A)-(D) (West 2018). “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” of proof. 775 ILCS 5/7A-102(D)(2) (West 2018). Mere speculation and

conjecture do not constitute substantial evidence of discrimination. Willis v. Illinois Department

of Human Rights, 307 Ill. App. 3d 317, 326 (1999). If the Department determines there is no

substantial evidence supporting the charge, it shall dismiss the charge. See 775 ILCS 5/7A-

102(D)(3) (West 2018). The petitioner may then either commence a civil action in circuit court or,

-7- No. 1-20-1299

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

5/7A-102(D)(3) (West 2018).

¶ 18 A final order of the Commission may be judicially reviewed by this court under the abuse

of discretion standard of review. See 775 ILCS 5/8-111(B)(1) (West 2018); Young v. Illinois

Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 32. Under this standard, we will not disturb

the Commission’s decision unless it is arbitrary or capricious. See Young, 2012 IL App (1st)

112204, ¶ 33. A decision is arbitrary or capricious if it contravenes the legislature’s intent, fails to

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

expertise. See Owens v. Dep’t of Human Rights, 403 Ill. App. 3d 899, 917 (2010).

¶ 19 When analyzing employment discrimination charges brought under the Act, we follow the

framework set forth in federal caselaw relating to federal anti-discrimination statutes, including,

as relevant here, Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000 et seq.

(1982)). See Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 178 (1989) (stating that

claims under the Act are to be evaluated in accordance with federal decisions interpreting federal

anti-discrimination laws). Thus, Illinois courts look to the decisions of the United States Supreme

Court and the United States Court of Appeals for the Seventh Circuit in interpreting the Act.

See Zoepfel-Thuline v. Black Hawk College, 2019 IL App (3d) 180524, ¶ 26.

¶ 20 Here, Williams claims that she suffered harassment due to her sexual orientation and this

harassment created a hostile work environment. Specifically, she alleged that McField called her

a “dyke,” which is a derogatory term for a lesbian.

¶ 21 The Act defines harassment as “any unwelcome conduct on the basis of an individual's

actual or perceived [sexual orientation] that has the purpose or effect of substantially interfering

-8- No. 1-20-1299

with the individual's work performance or creating an intimidating, hostile, or offensive working

environment.” 775 ILCS 5/2-101(E-1) (West 2018). An actionable claim for harassment or hostile

work environment contains the following four elements: (1) the employee was subject to

unwelcome harassment; (2) the harassment was based on a reason forbidden by anti-discrimination

laws; (3) the harassment was so severe or pervasive that it altered the conditions of employment

and created a hostile or abusive working environment; and (4) there is a basis for employer

liability. Smith v. Illinois Department of Transportation, 936 F. 3d 554, 560 (7th Cir. 2019).

¶ 22 In determining the severity of the harassment, which is often the most crucial element, we

follow the two-part test set out in the Title VII case of Harris v. Forklift Systems, Inc., 510 U.S.

17 (1993). See Cook County Sheriff’s Office v. Cook County Commission on Human Rights, 2016

IL App (1st) 150718, ¶ 32. Under that test, a petitioner must present evidence that the employer

engaged in behavior (1) that was severe or pervasive enough to create a work environment that a

reasonable person would find to be “hostile or abusive”; and (2) that the employee subjectively

perceived to be hostile or abusive. Harris, 510 U.S. at 21-22. In making this determination, the

court should consider “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Id. at 22-23. Further, to trigger the protective

measures of anti-discrimination laws, an employee must be faced with a “steady barrage” of

offensive comments and “more than a few isolated incidents of harassment[.]” Village of Bellwood

Bd. of Fire and Police Commissioners v. Human Rights Commission, 184 Ill. App. 3d 339, 350

(1989).

-9- No. 1-20-1299

¶ 23 After review, we conclude that Williams failed to provide substantial evidence to establish

a prima facie case of harassment based on sexual orientation. By Williams’s own admission, her

charge of harassment rested on only one occurrence: McField calling her a “dyke,” which she

found insulting and offensive. Even if we accept as true that McField made that remark, this

solitary instance of an offensive comment is a far cry from the “steady barrage” required to state a

claim of harassment under the Act. See Village of Bellwood, 184 Ill. App. 3d at 350. Therefore,

the Commission did not abuse its discretion in finding a lack of substantial evidence of harassment.

¶ 24 For these reasons, we affirm the decision of the Illinois Human Rights Commission.

¶ 25 Affirmed.

- 10 -