Zheng v. Department of Human Rights

2019 IL App (1st) 181952-U

• Court: Appellate Court of Illinois
• Decided: December 31, 2019
• Docket: 1-18-1952
• Status: Unpublished

Opinion

2019 IL App (1st) 181952-U No. 1-18-1952 Third Division December 31, 2019

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 ______________________________________________________________________________ DAJUN ZHENG, ) Petition for Direct ) Administrative Review of a Petitioner-Appellant, ) Decision of the Illinois Human ) Rights Commission. v. ) ) THE DEPARTMENT OF HUMAN RIGHTS, THE ) HUMAN RIGHTS COMMISSION, and RON OF ) No. 2009 CA 4202 JAPAN, ) ) Respondents-Appellees. )

JUSTICE COBBS delivered the judgment of the court. Justices McBride and Howse concurred in the judgment.

ORDER

¶1 Held: The Human Rights Commission did not abuse its discretion by sustaining the dismissal of petitioner’s claim of employment discrimination for lack of substantial evidence.

¶2 Petitioner Dajun Zheng appeals pro se from a final order entered by the Illinois Human

Rights Commission (Commission) sustaining the Illinois Department of Human Rights’

(Department) dismissal of his charge of employment discrimination by his former employer, Ron No. 1-18-1952

of Japan. Petitioner alleged that Ron of Japan had discriminated against him based on his age

when they failed to pay him his final wages that were paid to younger employees. The

Department dismissed his charge for lack of substantial evidence. Petitioner appealed to the

Commission and they sustained the Department’s decision. He now contends the Commission

abused its discretion in sustaining that dismissal. We affirm.

¶3 Petitioner was employed at Ron of Japan during the months of February and March 2009.

In March, Ron of Japan terminated his employment and he filed a complaint of employment

discrimination.

¶4 In his complaint, petitioner alleged that he was 54 years of age when he was terminated,

Ron of Japan failed to pay him for his final hours that he was in their employ, that his work

performance met Ron of Japan’s legitimate expectations, and younger employees were paid their

final wages upon termination. In the complaint, petitioner stated that he worked at Ron of Japan

on February 26 and 27 of 2009, and was off February 28 through March 2 due to illness. He had

a day off scheduled for March 3 and returned to work on March 4. He was off from March 5

through March 11 and worked on March 12 and March 13. On March 14, he was sent home sick

on the approval of manager Hide Taniguchi and placed on leave through March 29. Petitioner

expected to return to work on March 30, 2009. On March 29, he called Ron of Japan for his work

schedule and was told by assistant manager Frank Chen that they did not need help. Petitioner

asked to speak to Taniguchi but was told Taniguchi would get back to him. Petitioner did not

hear from Taniguchi. Petitioner was issued a final check for the pay period ending February 25,

2009, and claimed he did not receive pay for the last two days he worked in February and the

days he worked in March.

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¶5 Petitioner’s complaint was investigated by the Department and a fact finding conference

was held and attended by both parties. The record from the fact finding conference shows

petitioner began working at Ron of Japan on April 17, 2008. He was hired by Hide Taniguchi,

the manager of the restaurant. Taniguchi was 54 years of age. Petitioner worked as a chef at the

restaurant. Taniguchi stated that petitioner’s last day at the restaurant was February 27, 2009, and

petitioner was expected to return on February 28 before having an approved leave that would end

on March 14, 2009. Taniguchi wanted petitioner to work February 28 and March 14 because

those were Saturdays, the restaurant’s busiest days of the week. Petitioner did not come to work

on either of those days. Taniguchi and Chen attempted to call petitioner several times between

March 14 and March 16 to no avail and they decided to hire another chef. Petitioner was issued a

final check for February 26 and 27. Chen stated that pay periods at Ron of Japan are two weeks

long and that petitioner would have received a check for February 26 and 27, 2009. When

petitioner called the restaurant on March 29, 2009, to receive his work schedule, he learned that

he had been terminated. Petitioner was 54 years’ of age at the time of termination. Taniguchi and

Chen are in the same protected age category as petitioner. One third of Ron of Japan’s work

force fell within the protected age category of over 40 years’ of age.

¶6 During the fact finding conference petitioner’s time cards for March of 2009 were

produced. The time cards showed petitioner worked from 3:31 p.m. to 5:55 p.m., on March 4,

2009, but it was unknown why petitioner “clocked in” for that day since a typical work shift is

longer than an hour and a half. Petitioner did not work any other days in March of 2009.

Petitioner’s work schedule and time cards show he worked on February 26 and 27, 2009. Chen

stated petitioner’s final check was for $77.70, the difference between petitioner’s check stub

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dated February 25, 2009, and the final payment sent to him on March 11, 2009, after deductions.

Petitioner claimed he did not receive the check for $77.70.

¶7 At the conclusion of the fact finding conference, the Department found that petitioner

failed to establish a prima facie case for discrimination since he failed to identify a similarly

situated younger employee who was or was not issued a final check after termination. Petitioner

failed to present evidence that Ron of Japan refused to pay him his last wages based on

discriminatory animus. Thus, there was a finding of lack of substantial evidence because

petitioner was issued a check for his last days of work and there was no harm and no evidence of

age discrimination.

¶8 Petitioner filed a request for review with the Commission. He argued that the

Department’s investigation was unfair and lacked relevant substantial evidence. He also alleged

the Department ignored his requests to have Ron of Japan provide bank records to prove they

issued a final check to him. He maintained that the Department’s decision should be reversed.

¶9 The Department responded to petitioner’s request for review reiterating their

investigative report. Petitioner filed a reply alleging that the bank records of Ron of Japan were

necessary to verify his claim that he was not issued a final check and that the Department

ignored his requests for the bank records.

¶ 10 On August 10, 2018, the Commission, having reviewed petitioner’s request and the

Department’s response, concluded that the Department properly dismissed all counts of

petitioner’s claim for lack of substantial evidence. The Commission found there was no evidence

that respondent had treated similarly situated employees outside of petitioner’s protected class

more favorably under similar circumstances. The Commission further found that petitioner’s

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argument was speculative and, as such, did not constitute evidence of discrimination. The

Commission sustained the Department’s dismissal of petitioner’s claim.

¶ 11 On September 12, 2018, petitioner filed a petition for administrative review with this

court.

¶ 12 We initially note we have jurisdiction to review the final order of the Commission since

petitioner filed a timely petition for review pursuant to Illinois Supreme Court Rule 335 (eff. July

1, 2017). See Kreutzer v. Illinois Commerce Commission, 303 Ill. App. 3d 791, 796 (2010). Rule

335 provides that “the petition for review shall be filed in the Appellate Court within 35 days

from the date that the order or decision sought to be reviewed was served upon the party affected

by any order or decision of the administrative agency and shall specify the parties seeking review

and shall designate the respondent and the order or part thereof to be reviewed.” Ill. S. Ct. R. 335

(eff. July. 1, 2017).

¶ 13 As a threshold matter, we address respondent’s argument to disregard new evidence that

was submitted in petitioner’s pro se opening brief. Respondent alleges petitioner has included

evidence that was not before the Commission—namely information regarding an employee, who

was not in petitioner’s protected class, that left respondent’s employ and received payment for

her last wages. Additionally, petitioner includes an explanation as to why his time card from

March 4, 2009, only shows that he clocked in for an hour and a half of work.

¶ 14 We initially note that on December 28, 2018, petitioner filed a motion to supplement the

record with: (1) the verified answer to the charge of discrimination and statement of position by

Ron of Japan; (2) copies of petitioner’s time cards from the pay period of February 26 through

March 11, 2009; (3) the meeting notes of the November 15, 2010 fact finding conference; and

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(4) the notice of dismissal issued by the Department on July 14, 2011. On January 18, 2019, this

court denied petitioner’s motion to file a supplemental record.

¶ 15 Illinois Supreme Court Rule 335(d) provides that “[T]he entire record before the

administrative agency shall be the record on review unless the agency and the petitioner stipulate

to omit portions.” Ill. S. Ct. R. 335(d) (eff. July 1, 2017). We have held “[I]n the review of the

administrative decision, the court may only consider questions of law and fact presented in the

record. 735 ILCS 5/3-110 (West 2010). No new additional evidence in support or opposition of

the administration’s decision may be properly heard. 735 ILCS 5/3-110 (West 2010).” Young v.

Illinois Human Rights Commission, 2012 IL App (1st) 112204, ¶ 50. Therefore, petitioner’s

arguments regarding the employee, who was not in petitioner’s protected class, and petitioner’s

explanation regarding his time card are not properly before this court. Id. Accordingly, we will

not consider these arguments in reaching our decision.

¶ 16 That said, petitioner claims that the Commission abused its discretion by sustaining the

Department’s dismissal of his charge for lack of substantial evidence. He asks that we reverse the

Commission’s finding.

¶ 17 A reviewing court will not overturn the Commission’s decision to sustain the dismissal of

a charge of employment discrimination unless the decision was arbitrary and capricious or an

abuse of discretion. Owens v. Department of Human Rights, 403 Ill. App. 3d 899, 917 (2010).

An arbitrary and capricious decision is one which contravenes the intent of the legislature, fails

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

agency expertise. Budzileni v. Department of Human Rights, 392 Ill. App. 3d 422, 442 (2009).

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¶ 18 Under the Illinois Human Rights Act (Act), the Department must determine whether

there is substantial evidence that a civil rights violation has occurred, and dismiss the charge if

there is not. 775 ILCS 5/7A-102(D)-(3) (West 2014). Substantial evidence is evidence which a

reasonable mind would find sufficient to support a particular conclusion, and consists of more

than a mere scintilla of evidence but may be somewhat less than a preponderance. 775 ILCS

5/7A-102(D)(2) (West 2014). However, 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).

¶ 19 In Zaderaka v. Illinois Human Rights Commission, 131 Ill. 2d 172, 178-79 (1989), the

supreme court followed the approach set out by the United States Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973) to analyze a claim of employment discrimination

under the Act. Under that approach, petitioner must first establish a prima facia case of unlawful

discrimination. To do that he must show that (1) he is a member of a protected class, (2) he met

the employer’s legitimate business expectations, (3) he suffered an adverse employment action,

and (4) the employer treated similarly situated employees outside the class more favorably.

Owens, 403 Ill. App. 3d at 919.

¶ 20 Here, the Department found a lack of substantial evidence because petitioner was issued a

check for his last day of employment and there was no evidence of age discrimination. The

Commission upon review of the Department’s findings concluded that there was no evidence

that Ron of Japan had treated similarly situated employees outside of petitioner’s protected class

more favorably under similar circumstances. The Commission also found petitioner’s argument

to be speculative and sustained the Department’s findings.

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¶ 21 We find no abuse of discretion or any arbitrariness and capriciousness by the

Commission in sustaining the Department’s dismissal of petitioner’s charges of employment

discrimination based on age. As mentioned, to establish a prima facie case of employment

discrimination, petitioner must show: (1) that he is a member of a protected class; (2) he was

meeting his employer’s legitimate business expectations; (3) that he suffered an adverse

employment action; and (4) that the employer treated similarly situated employees outside the

class more favorably. Owens v. Department of Human Rights, 403 Ill. App. 3d 899, 919 (2010).

Here, even assuming that petitioner met Ron of Japan’s legitimate business expectations, the

evidence adduced at the fact finding conference shows at most that petitioner was a member of a

protected class and suffered an adverse employment action. However, petitioner did not present

any evidence that Ron of Japan treated similarly situated employees outside his protected class

more favorably. As such, he failed to establish a prima face case of employment discrimination.

Under these circumstances, petitioner’s argument amounts to little more than speculation and

conjecture that does not amount to substantial evidence of discrimination. Willis, 307 Ill. App. 3d

at 326. Therefore, the Commission did not abuse its discretion or act arbitrarily and capriciously

in sustaining the Department’s dismissal of the charge.

¶ 22 For the forgoing reasons, we affirm the Commission.

¶ 23 Affirmed.

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