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Anderson v. Human Rights Comm'n, No. 1-98-4712

1st District, June 5, 2000

FIRST DIVISION

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Petitioner, Martha Anderson, appeals from an order entered by the Illinois Human Rights Commission (Commission) directing a finding in favor of respondent, Cook County's Oak Forest Hospital, on petitioner's employment discrimination claim. On appeal, petitioner raises numerous alleged procedural errors, the cumulative effect of which she claims deprived her of a fair and impartial trial. She contends that the administrative law judge (ALJ) erred in the admission and exclusion of evidence throughout the hearing and that the ALJ erroneously permitted respondent's attorney to question petitioner regarding various documents not properly admitted in evidence. In addition to numerous other issues raised, petitioner also claims that the ALJ's directed finding for respondent was against the manifest weight of the evidence. For the reasons that follow, we reverse and remand.

I. FACTS

Respondent initially hired petitioner in January 1990 to work part-time as a "floating" secretary. From January 1990 through November of 1990, petitioner traveled between the various hospital departments to work as needed. On November 28, 1990, petitioner met with the respondent's billing supervisor, Chris Herzke, regarding a permanent full-time billing position with respondent. Two days after their meeting, Herzke called her to tell her that a county hiring freeze was in effect and that, as a result, she could not hire or transfer any new employees. In late January, petitioner received a call from respondent's personnel department, giving her a starting date of January 28, 1991. Petitioner started this position on January 28, 1991, and worked in the billing department until Herzke discharged her on March 20, 1991.

On September 3, 1991, petitioner filed a charge of age discrimination against respondent with the Illinois Department of Human Rights (the Department). The Department did not file a complaint with the Human Rights Commission following its investigation, so petitioner filed a complaint on her own behalf. She alleged that the hospital subjected her to unequal conditions of employment due to age and that the hospital terminated her due to her age. On October 27, 1993, respondent filed its answer, denying the allegations.

The matter was heard before an ALJ on September 10 and 11, 1997. At the hearing on the matter, petitioner proceeded pro se. The ALJ explained that the hearing would be conducted in accordance with the rules of evidence as applied in civil cases and outlined several evidentiary principles for petitioner's benefit. The ALJ explained: "Evidence must be presented and identified through the testimony of witnesses. If you have any documents that you want me to consider, they are not evidence in the case unless you move for them to be submitted into evidence and they are, in fact, admitted into evidence, so either party can object to the admission of a document on the basis of proper legal argument." The ALJ also explained some basic trial procedure for the benefit of petitioner, including the bifurcated format of the hearing. After answering several questions regarding hearing procedures, the hearing began.

After opening statements from both sides, petitioner called four witnesses. Earlene Brown, one of respondent's employees, testified that she knew petitioner from corresponding with her when Brown worked in the outpatient billing department. However, she testified on cross-examination that she did not work in the same office as petitioner. She testified on cross-examination that she had no knowledge of what transpired in the billing department where petitioner worked other than what petitioner herself had told her. She admitted to having no personal knowledge of petitioner's work product when she worked in the billing department.

Petitioner next called Marge Papp to the witness stand. Papp testified that she was 49 years old when Herzke hired her as a clerk IV in the finance department of the hospital. Although Herzke hired her in November of 1990, she did not begin work until December 31, 1990. Papp testified that she worked with petitioner temporarily, prior to petitioner's relocation to outpatient billing on the first floor. Although she did not work with petitioner after petitioner's transfer, she testified that she visited the first floor from time to time and observed petitioner stationed in the middle of the room with a chair and a typewriter. Petitioner never seemed resentful and did not complain about being assigned to do filing work. After petitioner left her employment with respondent, Herzke did not immediately replace her. Later, a woman named Judy Schnuckel replaced her. Schnuckel was 13 years younger than petitioner.

Petitioner next called Judy Schnuckel to the witness stand. Schnuckel testified that she was 48 years old in June of 1991, when Herzke hired her to do Medicare billing for respondent. After completing her training, she worked on the first floor of the hospital, from a desk with a phone. On cross-examination, Schnuckel conceded that she did not have her own desk until she completed her training. During her training, she sat in the reception area of the office at the front desk; sometimes, she used other employees' offices if they were not at work. She also sat at the typing table in the outer office.

Elaine Diericks then testified that she worked with petitioner in the outpatient billing department and observed petitioner working in the front office, using the three chairs as a desk. She testified that the treatment that petitioner received during her training was "quite different" compared to the treatment that Elaine received during her outpatient training. She stated that petitioner's replacement, Judy Schnuckel, also received better treatment during training than petitioner. According to Diericks, Schnuckel "was trained correctly" by one person, instead of two. Diericks further stated that she became upset about the treatment that petitioner received and spoke to Herzke about it, but that the situation never changed. Petitioner asked Diericks for help, so Diericks tried to help her during her lunch breaks. On cross-examination, Diericks testified that she did not have her own phone at her desk. When asked if petitioner received poor treatment at work due to her age, she responded,"Not that I am aware of."

Finally, petitioner testified about her experience as an employee with respondent. Respondent initially hired petitioner in January 1990 to work as a part-time secretary. She testified that she was 61 years old when she first met with Herzke regarding a permanent full-time billing position with respondent on November 28, 1990. Two days after their meeting, Herzke called her to tell her that a county hiring freeze was in effect and that, as a result, she could not hire or transfer any new employees. Petitioner "accepted that" and waited two months to hear from Herzke about the end of the hiring freeze. In mid-January 1991, petitioner called Herzke to inquire about the status of her job. Herzke again informed her that the hiring freeze had not yet ended and that she did not know when it would end. About 10 days later, petitioner phoned the office of the Cook County board president and spoke with a woman who identified herself as the president's secretary. The woman told petitioner that, to her knowledge, there was no hiring freeze in effect and that she would "look into it" for her. Petitioner testified that several days later she received a call from respondent's personnel department, giving her a starting date of January 28, 1991.

When she reported for work, Herzke assigned her to filing on the second floor of the hospital for three straight weeks, a different assignment than what other new billing clerks were given. After completing her three weeks of filing, Herzke sent her to the outpatient billing department, where she used three chairs as a workstation, which was also different from what was provided to other billing clerks for working purposes. She worked at the three chairs for 22 days. On March 20, 1991, Herzke informed petitioner that she was discharged, effective immediately. Later, Herzke allowed petitioner to work for another two weeks for financial reasons but conditioned the additional two weeks upon petitioner's agreement not to discuss her termination with any of the other employees. When petitioner asked if she could do anything differently, Herzke informed her that the discharge was irreversible. At the end of the next two weeks, Ms. Herzke allowed petitioner to work for an additional two weeks. Her last day of work was April 19, 1991.

Petitioner further stated that she never received an evaluation while working for respondent, although later, when she returned to the premises to inspect her personnel file, she found a written evaluation signed by Herzke in her file. On her evaluation, she had received a 69, below passing, "on every phase of [her] abilities." The second time that she went to examine her personnel file, she noticed that her five letters of recommendation that had previously been included in her file were missing. She repeatedly testified to her belief that respondent discharged her due to her age, and that respondent used her poor performance evaluation as a pretextual reason for her discharge.

After the close of her testimony, petitioner rested as to liability. Respondent moved for a directed finding, which was granted. Petitioner now appeals.

II. ANALYSIS

Sections 2-102(A) and 1-103(Q) of the Illinois Human Rights Act prohibit an employer from discharging an employee on the basis of race, color, religion, national origin, ancestry, age, sex, marital status, handicap, or unfavorable military discharge. 775 ILCS 5/2-102(A), 1-103(Q) (West 1998). Direct appellate review of the Human Rights Commission's final determination is available under the Administrative Review Law (735 ILCS 5/3-113 (West 1998)). The court is empowered to review any and all questions of law or fact presented by the record. Pepsi-Cola General Bottlers, Inc. v. Illinois Human Rights Comm', 137 Ill. App. 3d 288 (1985). The reviewing court has a duty to examine the procedural methods employed at the administrative hearing to ensure that a fair and impartial procedure was used. Metz v. Illinois State Labor Relations Board, 231 Ill. App. 3d 1079 (1992). The findings of the administrative agency must be based on evidence admitted in the case, and nothing can be treated as evidence that is not admitted as such. Novosad v. Mitchell, 251 Ill. App. 3d 166, 174 (1993). Due process requires that all parties have an opportunity to cross-examine witnesses and offer rebuttal evidence. Novosad, 251 Ill. App. 3d 166. Reviewing courts may not interfere with the discretionary authority vested in an administrative body unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence. Murdy v. Edgar, 103 Ill. 2d 384, 391 (1984); Board of Education of School District U-46 v. Illinois Educational Labor Relations Board, 216 Ill. App. 3d 990, 998 (1991).

A. The Hearing Process

We first address petitioner's contention that the cumulative effect of the procedural errors committed at the hearing deprived her of a fair and impartial hearing. In support of this contention, petitioner relies chiefly upon two alleged errors: (1) that the ALJ erred in denying petitioner's motion to introduce documents; and (2) that the ALJ improperly permitted respondent to question her regarding altered documents.

We first address petitioner's contention that the ALJ erroneously prevented her from introducing various documents into evidence. Regarding the admission of evidence in administrative proceedings, the Illinois Administrative Procedure Act provides, concerning contested cases, in pertinent part:

"(a) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed. Evidence not admissible under those rules of evidence may be admitted, however, (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs." 5 ILCS 100/10-40(a) (West 1998).

In civil cases in Illinois, the basic rules of evidence require a proponent of documentary evidence to lay a foundation for the introduction of that document into evidence. Seward v. Griffin, 116 Ill. App. 3d 749, 763 (1983). Evidence must be presented to demonstrate that the document is what its proponent claims it to be. Ross v. Pfiefer, 39 Ill. App. 3d 789 (1976). Without proper authentication and identification of the document, the proponent of the evidence has not provided a proper foundation and the document cannot be admitted into evidence. Summerville v. Rodgers, 31 Ill. App. 2d 420, 430 (1961). The purpose of requiring a foundation is to prevent "inadmissible evidence from being suggested to the [trier of fact] by any means." M. Graham, Cleary & Graham's Handbook of Illinois Evidence