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SECOND DIVISION

July 31, 2001

No. 1-99-3283

JUSTICE GORDON delivered the opinion of the court:

Petitioner Prem Lalvani appeals from an order of respondentIllinois Human Rights Commission dismissing his employmentdiscrimination complaint against respondent Cook County Hospital(the hospital). Lalvani claimed that the hospital discriminatedagainst him because of his race and national origin, in violationof the Illinois Human Rights Act, when it failed to promote himin 1989 and again in 1990. The Commission found that there wasno discrimination on the part of the hospital.

For the reasons set forth below, we affirm the order of theCommission.

Lalvani filed a charge with the Illinois Department of HumanRights in May 1990 alleging discrimination by the hospital on thebasis of his age (56), race (Asian) and national origin (Indian). Lalvani, who was employed by the hospital as a social worker,alleged that he was discriminated against by being deniedpromotion to the position of case worker 5 in 1989 and by beingdenied promotion to the position of director of the department ofsocial work in 1990. Lalvani also alleged that beginning inSeptember 1989 he was harassed in retaliation for filing agrievance over what he termed the discriminatory promotion ofanother employee, Janice Simms, to the position of associatedirector.

In November 1990 the Department of Human Rights filed acomplaint with the Human Rights Commission elaborating upon theallegations in Lalvani's discrimination charge. According to theamended version of that complaint, whose allegations areessentially the same as those in the initial complaint, Lalvaniwas hired by the hospital in October 1966 and was working as adivisional director (in the department of social work) at thetime of the incidents at issue. In June 1989 the hospital failedto promote Lalvani to the position of Medical Social Worker V(MSW V). Instead it promoted a non-Asian, non-Indian employee,Janice Simms, an African-American, to that position. Prior toSimms' promotion, members of a hiring committee allegedly statedthat they preferred a black whose national origin was not Indianfor the MSW V position. On September 29, 1989, two days afterLalvani filed a grievance opposing Simms' promotion, the hospitalallegedly began harassing Lalvani by, inter alia, reducing thenumber of employees who worked for him, taking away his office,and denying his vacation request. The following year, thehospital failed to promote Lalvani to the position of director ofthe social work department, promoting Simms to that positioninstead. According to the amended complaint, the hospital'searlier, discriminatory failure to promote Lalvani to the MSW Vposition hindered his chances of subsequently being promoted tothe director position. The amended complaint thus alleges thatthe hospital failed to promote Lalvani because of his race andnational origin, and harassed him in retaliation for opposing adiscriminatory practice, in violation of sections 2-102(A) and 6-101(A) of the Illinois Human Rights Act (775 ILCS 5/2-101(A),5/6-101(A) (West 1993). In its answer to the amended complaint,the hospital averred that its stated reason for not promotingLalvani was that he was not as qualified as Simms.

A hearing on the amended complaint was begun before anadministrative law judge (ALJ) on July 26, 1993, but was notcompleted within the three days the parties had anticipated. TheALJ presiding over that hearing subsequently left the HumanRights Commission and was not available to hear the rest of thecase. As a result, a new hearing was held before a different ALJstarting on May 10, 1995, and concluding on May 18, 1995.

Lalvani testified for petitioner that he began working forCook County Hospital on October 24, 1966, as a case worker I inthe department of social work. He rose through the ranks, and byApril 1973 he was a divisional director in charge of medicine andsurgery services, in which position he supervised about 23 socialworkers. In 1976 he requested a transfer to ambulatory servicesand the request was granted. He remained in ambulatory services,which included the hospital's family practice clinic, anoutpatient clinic, and the emergency room, from 1976 to 1988.

Lalvani testified further that his supervisor was WilliamLove, an assistant director in the social work department. In1987 the department, whose structure changed from time to time,consisted of six divisions under the supervision of two assistantdirectors, Love and Virginia Wearring. The three divisionsreporting to Love at that time were pediatrics, obstetrics-gynecology, and ambulatory services, the latter being thedivision directed by Lalvani. In August 1987, the social workdepartment had 71 employees, 10 of whom were Asians.

According to Lalvani, in early 1988 Lucille Lopez-Wark wasbrought into the social work department as an assistant director. Love subsequently left the department, and Lopez-Wark becameLalvani's supervisor. In the fall of 1988, Wearring, who by thenwas director of the social work department, resigned herposition, and Lopez-Wark was named acting director. In November1988 Lalvani filed a grievance about the appointment of Lopez-Wark to the assistant director and acting director positions,complaining that neither position had been posted and thatqualified applicants thus were denied an opportunity to bepromoted from within. Lopez-Wark responded that under CookCounty policy, positions of grade 20 and above, i.e., theassistant director and director positions, did not have to beposted. Under cross-examination, Lalvani conceded that a hearingwas held on this grievance and that the hearing officer denied iton the ground that there were no violations of hospital policiesor procedures.

Evidence which was admitted during Lalvani's directtestimony showed that in March 1989 Lopez-Wark reassigned Lalvaniand changed his duties, assigning his emergency roomresponsibilities to Wayne Cebrzynski but leaving Lalvani'soutpatient clinic duties intact. Evaluation forms which wereadmitted into evidence showed that Lopez-Wark ranked Lalvanilower than had Love, who had consistently ranked him superior innearly every category. In an evaluation dated June 9, 1989,Lopez-Wark checked "no" in answer to the question whether Lalvanipossessed management potential, explaining that "[h]e does notshow initiative & needs reminders to complete tasks."

Lalvani further testified on direct examination that aSocial Worker V (MSW V) position became available in 1989 andthat he applied for it. Lalvani indicated that a job descriptionfor the position was provided to applicants. According to thatjob description, one of the desirable work traits for the MSW Vposition was the "[a]bility to establish and maintain effectiveprofessional relationships with staff, other departments, andother institutions/facilities."

Lalvani stated that in late summer 1989 he met with thefive-member interview committee to discuss his application forthe MSW V position. A memo dated August 31, 1989, informedLalvani that he had been denied promotion to that position. According to the memo, the candidate who was chosen (Simms) had"scored highest" on an "evaluation tool" used by the interviewcommittee, and that "Ms. Lopez-Wark concurred with the committeejudgment." At about the same time, Simms was named actingdirector of the social work department, replacing Lopez-Wark, whohad resigned on August 24, 1989. In September 1989 Lalvani fileda grievance complaining that he had been harassed and "[d]enieddeserving promotion to [the] Case Worker V position." Thegrievance was denied.

Also in mid-1989 the position of director of the social workdepartment became available. Lalvani testified that he appliedfor that position after receiving a memo dated June 9, 1989,inviting applications for it. Following his interview, hereceived a memo in August 1989 indicating that all internalcandidates had been interviewed and that a national search was tobe conducted. In November 1989 Simms, who as noted had beennamed acting director, reassigned Lalvani to the emergency roomand moved his office to an area near the emergency room.

In 1990, following the denial of Lalvani's application forthe director position, he filed his charge of discrimination withthe Illinois Human Rights Commission, complaining about thehospital's failure to promote him to the MSW V and directorpositions. The commission notified the hospital of the charge ina letter dated March 6, 1990.

In mid-March 1990 Lalvani was reassigned again, this time asdivisional director of centralized services. His new position,required him, inter alia, to inspect nursing homes but did notrequire that he supervise anyone. Lalvani also indicated thathis office was moved to the clerical staff area, and he was toldto report to a Mr. Coleman, who was two or three grade levelsbelow him. Lalvani testified that as a result he was "veryhumiliated."

On cross-examination and over petitioner's objections, therespondent introduced into evidence a letter dated July 12, 1976,from Helen Jaffe, then the director of the hospital's socialservice department, notifying Lalvani that he was being"reassigned from Unit Supervisor, Surgery, to Unit Supervisor,Ambulatory Services," and that his new supervisor would beWilliam Love. According to the letter, "[t]his move is beingmade in order to alleviate the tension which has existed for somemonths between you and your immediate supervisor, as well asbetween you and a number of your supervisees."

Also testifying for petitioner was Wayne Cebrzynski, who in1989 was the director of psychiatric social work at the hospital.In 1989 Cebrzynski was appointed to a committee whose purpose wasto interview candidates for the MSW V position and to makerecommendations to Andrea Munoz, the hospital's assistantadministrator in clinical services. Three of the committee'sfive members were African-American; a fourth, Cebrzynski, waswhite; and the fifth, Linda Coronado, was Hispanic. According toCebrzynski, at the committee's first meeting, before the start ofthe formal interview process, he and the other four panel memberswere talking informally when he heard someone comment that "weneed a black person in this position." The comment came from hisleft, but he said it did not come from Coronado, who was sittingto his left. He did not recall that anyone reacted verbally tothe comment. Lalvani was among the candidates who wereinterviewed during the committee's first meeting.

On cross-examination Cebrzynski stated that the committeemet one additional time and at that time interviewed just onecandidate, Simms. He said the committee ranked the candidatestwice, once after they had interviewed the first group of people,and again after the second meeting. The panel recommended Simmsfor the position. Cebrzynski said he ranked Lalvani higher thanSimms, whom he ranked last. Cebrzynski also stated that he didnot consider race or national origin when ranking the candidates.

Andrea Munoz, formerly the hospital's assistantadministrator in clinical services, testified for respondent thatfive candidates, including Lalvani and Simms, were interviewed bythe committee for the MSW V position. Munoz said the applicants'resumes were made available to the committee, but she did notprovide the panel with the candidates' personnel files orevaluations. Munoz said she wanted to make sure that nothing wasgiven to the committee that might lead them to draw prematureconclusions about the candidates. Instead, she wanted thecommittee to evaluate the applicants based on the "objectivetool" that the committee had developed. According to Munoz, thecommittee ranked Lalvani fifth of the five candidates, and Simmswas ranked first. Munoz felt that Simms was the best candidatefor the MSW V position.

As to the director position, which also became vacant in1989, Munoz testified that Simms was initially a member of thesearch committee which was formed to fill that position. However, Simms subsequently resigned from the committee afterdeciding to apply for the director position herself. The searchcommittee ultimately sent the names of the top three candidatesto the hospital director. Lalvani was not among the top three,but Simms was. Both the No. 1 and No. 2 candidates were fromoutside the hospital, and neither of them accepted the positionafter they were offered it. Simms was then offered the directorposition, and she accepted.

Linda Coronado, the director of volunteer services at thehospital and a member of the 1989 MSW V interview committee,testified for respondent that she did not make the comment that ablack person was needed for the position, and she did not hearanyone else make that statement. According to Coronado, race andnational origin were never mentioned during the committee'smeetings. Coronado also said the committee ranked Simms as itsfirst choice.

Lucille Lopez-Wark testified that when she became actingdirector of the social work department in the fall of 1988, herduties included supervising the department's six divisionaldirectors, two of whom were Lalvani and Simms. Lopez-Wark saidLalvani procrastinated "in a lot of his work habits." She addedthat he did have some good ideas, but that he tended "to beresistant in performing his duties." As to Lalvani'sinterpersonal skills, Lopez-Wark said that at times he wascondescending to staff and was not professional. By contrast,Lopez-Wark found Simms to be competent, professional, and aleader. She completed assignments on time. Lopez-Wark said sheagreed with the interview committee's recommendation that Simmsshould be named to the MSW V position.

Robert Coleman testified that in September 1990 he beganassisting Simms, the director of the social work department. AsSimms' assistant, Coleman supervised Lalvani, who Coleman saidwas "underperforming" and "holding back his performance." According to Coleman, Lalvani frequently read the newspaperduring work time. On cross-examination, Coleman conceded that inSeptember 1990 when he began supervising Lalvani, he, Coleman,was a grade level 16, while Lalvani was a grade level 18divisional director.

Diana Grant, another member of the MSW V interviewcommittee, testified for respondent that in 1989 she was anattending physician in the hospital's family practice department. Grant described the committee's interview with Simms as "a goodinterview," adding that Simms "was very comfortable withherself." As to Lalvani's interview, Grant's recollection wasthat he "articulated that he deserved and was supposed to havethe job."

According to Grant, after the interviews were conducted, thecommittee met and used the evaluation tool they had created todiscuss the impressions they had gotten from the interviews. Theevaluation tool, a copy of which was admitted into evidence,listed nine categories in which a candidate could be ranked on ascale from 60 to 100. For example, one of the categories was"Interpersonal & Communication Skills," and another was"Understanding of Patient Needs at CCH." For each of thesecategories, the committee totaled the five separate scores thateach candidate had been given by the five interviewers, and anaverage was determined. The averages were totaled for eachcandidate, and the committee then ranked the candidates in orderfrom 1 to 5. Grant said Simms was ranked No. 1.

Simms testified for respondent that while serving on thesearch committee for the director position, she attended two ofthe committee's meetings and then resigned after being asked bythe hospital director to apply for the position herself. Shethen applied for it.

On March 3, 1997, the ALJ who conducted the hearing issued arecommended liability determination finding that Lalvani hadestablished through direct evidence that the hospitaldiscriminated against him on the basis of race as to theassistant director (MSW V) position, but that the hospital hadproved by a preponderance of the evidence that Lalvani would nothave been promoted even if the prohibited factor of race had notbeen considered. The ALJ thus recommended that the allegation ofrace discrimination as to the assistant director position besustained, that all other allegations be dismissed, that a cease-and-desist order be issued, and that Lalvani be awarded attorneyfees and costs. In a recommended order and decision dated April29, 1997, the ALJ incorporated his previous recommended liabilitydetermination, recommending further that the hospital be orderedto pay Lalvani $4,120 in attorney fees and $3,041.25 in costs.

In an order and decision dated January 30, 1998, the HumanRights Commission rejected the ALJ's recommended order anddecision, remanding the case for a determination as to whether aworking majority of the MSW V interview committee had consideredrace in its decision not to promote Lalvani. Construing theIllinois Human Rights Act (775 ILCS 5/2-102(A) (West 1993)), theCommission concluded that "[f]or a decision to be based upon aprohibited factor in a committee context, a working majority ofthe committee must rely on the prohibited factor." According tothe Commission, it is not enough that one committee member out offive relies on a prohibited factor in making an employmentdecision. In such a situation, where each member has an equalvote, it is inaccurate to say that the committee as a wholeconsidered a prohibited factor. "If the majority does notconsider a prohibited factor in coming to a decision, then thatdecision is not discriminatory."

The ALJ subsequently issued a supplemental recommended orderand decision finding that there was no evidence that a workingmajority of the MSW V interview committee considered Lalvani'srace in deciding not to promote him. Thus the ALJ recommendedthat the entire complaint and underlying charge be dismissed withprejudice. In August 1999 the Commission affirmed that ruling,ordering that Lalvani's complaint be dismissed with prejudice. The instant appeal followed.

Lalvani argues on appeal that the Commission erred inholding that a decision of a hiring committee does not violatethe Human Rights Act unless a working majority of the committeerelies on a prohibited factor. Lalvani argues further that thediscriminatory comment of one member of the 1989 MSW V committeeconstituted direct evidence of discrimination, and that theCommission therefore erred in failing to shift the burden ofproof to the hospital. Thus Lalvani contends that the hospitalshould have been required to plead and prove with objectiveevidence that it would have reached the same decision as toLalvani's promotion even without the consideration of race.

Lalvani's main argument as to the "working majority" issueis that this concept does not apply in the instant case where theinterview committee's decision was made not by majority vote butby averaging the scores given to each candidate by the fivecommittee members. According to Lalvani, one biased committeemember could have a disproportionate impact on the panel'sdecision by intentionally ranking certain candidates very low andothers very high. In such a situation, Lalvani argues, it isnot necessary that a single biased committee member influence amajority of the committee in order to affect the outcome. HenceLalvani contends that the Commission erred by requiring in thisinstance that a working majority of the committee consider aprohibited factor. The hospital argues that the reasoningunderlying the Commission's "working majority" holding isconsistent with the interpretation of similar federal statutes,as well as with the causation requirement set forth in the HumanRights Act, and that Lalvani's argument that one biased committeemember could numerically skew the outcome is "purely speculative"and without support in the record. For the reasons discussedbelow, we agree with the hospital.

It is undisputed that the Commission arrived at its "workingmajority" conclusion by interpreting section 2-102 of the HumanRights Act, which provides in pertinent part that it is a civilrights violation "[f]or any employer to refuse to hire, tosegregate, or to act with respect to recruitment, hiring,promotion, renewal of employment, selection for training orapprenticeship, discharge, discipline, tenure or terms,privileges or conditions of employment on the basis of unlawfuldiscrimination or citizenship status." 775 ILCS 5/2-102(A) (West1993). The specific language construed by the Commission statesthat "[i]t is a civil rights violation *** [f]or any employer to*** act with respect to *** promotion *** on the basis ofunlawful discrimination or citizenship status." (Emphasisadded.) 775 ILCS 5/2-102(A) (West 1993). The Commission focusedon the causation portion of this provision in concluding that itcannot be said that a committee acted on the basis ofdiscrimination unless it is shown that a working majority of thecommittee relied upon a prohibited factor in making its decision. The Commission reasoned that a working majority must be shown tohave relied n the discriminatory factor, since the committeecould operate only through its working majority. In this regardwe note, as shall be more fully discussed below, that while areviewing court is not bound by an administrative agency'sinterpretation of a statute, substantial deference is accordedsuch an interpretation made by the agency charged withadministration and enforcement of the statute. Bonaguro v.County Officers Electoral Board, 158 Ill. 2d 391, 398, 634 N.E.2d712, 715 (1994); Abrahamson v. Illinois Department ofProfessional Regulation, 153 Ill. 2d 76, 97-98, 606 N.E.2d 1111,1121 (1992).

The speculative nature of Lalvani's argument can be seen byexamining the example he uses to illustrate it. According toLalvani, given the evaluation tool in which applicants were ratedon a scale of 60 to 100 in nine categories, if one biasedcommittee member gave Lalvani the minimum score of 540 (i.e., 60in each of the nine categories), even if the other four membersgave him a perfect score (900), his average, obtained by dividingthe total by five, would be what Lalvani terms "a middling 828." Lalvani then assumes that "unbiased interviewers are not likelyto give perfect scores," and concludes that if four unbiasedinterviewers rated Lalvani 95 rather than 100 in each of the ninecategories, and the biased committee member rated him 60, hisaverage score would be 792. Meanwhile, if the same biasedcommittee member rated Simms 100 in each category, and if thefour unbiased members all gave her 86 in each category, heraverage would be 799, higher than Lalvani's corresponding 792.

This example rests on a number of assumptions, none of whichis supported by the evidence. Since the individual rating sheetsare not included in the record on appeal, we have no way ofknowing what scores each interviewer gave each candidate. Whatwe do know from the evidence is that at least one of thecommittee members might have rated Simms considerably lower than86. Cebrzynski testified that he rated Simms last of the fivecandidates. Moreover, if we alter the numbers in Lalvani'sexample, even slightly, the outcome changes dramatically. If,for example, the four unbiased interviewers all gave Simms 85 ineach category rather than 86, then her average score would be792, the same as Lalvani's score in the example. If they gaveher 84, her average score would be 785. Of course, this is basedon the assumption that all of the unbiased interviewers wouldhave given Simms the same ranking in all categories. Lalvanidoes not address the probable result if, as is more likely, theindividual committee members' ratings of the candidates variedfrom member to member, and from category to category. Thus thespeculative framework upon which Lalvani bases his example isexceedingly fragile and tenuous. We note additionally thatLalvani cites to no authority to support his argument here.

The Commission's "working majority" holding finds support inBarbano v. Madison County, 922 F.2d 139, 142 (2^nd Cir. 1990), aTitle VII (42 U.S.C.