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Irick v. Human Rights Comm'n, No. 4-98-0993

4th District, 3 March 2000

JUSTICE COOK delivered the opinion of the court:

Petitioner, Gene A. Irick, filed a complaint with the Illinois Department of Human Rights alleging that respondent, Christie Clinic (Clinic), had fired him because of his age and sex. The Clinic responded that Irick had been fired because he sexually harassed a student intern. An administrative law judge (ALJ) conducted a public hearing in February 1993. In November 1998, the Illinois Human Rights Commission (Commission) dismissed the complaint with prejudice. Irick appeals. We conclude the Commission's decision is contrary to the manifest weight of the evidence, and we reverse and remand.

I. FACTS

The ALJ found the following facts.

Petitioner, Gene Irick, born in 1942, was employed as an X-ray technician by respondent Clinic from April 1, 1967, until his termination on June 18, 1990. Irick worked in the radiology department at the Clinic. Irick's immediate supervisor was Katherine McCarthy.

McCarthy became radiology department administrative coordinator in 1986. The Clinic, through Kenneth Blount, administrative director of the radiology department, in consultation with McCarthy, developed a policy soon after 1986 whereby female X-ray technicians were allowed to perform "male-type" procedures, but male technicians were not allowed to perform "female-type" procedures, such as mammograms.

In 1986, after McCarthy became department administrative coordinator, she had several conversations with Julie Christians, an X-ray technician who worked at the Clinic. McCarthy told Christians that she would "get rid of" Irick if it was the last thing she did, and explained to Christians that Irick was "worthless" at least in part because he could not do mammograms. McCarthy made statements to Christians, such as, it had been so long since Irick had been to school that he did things differently than they did. At the time of Irick's discharge he was the only male X-ray technician of the nine employed by the Clinic and was the only one over the age of 40.

Irick testified that he had not received a job performance evaluation and raise by April 1, 1990, his anniversary date. He asked McCarthy about this in June 1990, and she said that just the younger technicians would get raises. Irick asked the Clinic's personnel director, Melodie Garland, about the situation, and she said she would contact Irick later. On June 18, Garland told Irick to come to her office. When Irick arrived, Richard Knierim, the Clinic's resource development manager, was present, along with Blount and Garland. Knierim told Irick that, as of that moment, Irick's employment at the Clinic was terminated.

At the time of his termination, Irick was not given any facts concerning the allegations against him and was not given an opportunity to respond to the allegations. The reason given for the termination was "inappropriate behavior during his working hours at Christie Clinic."

It developed that on March 26, 1990, Dr. Thomas Wagner, the director of radiologic technology at Parkland College, wrote McCarthy that a Parkland student had made a complaint about Irick. On January 29, 1990, Kathy Smith, a clinical instructor at Parkland, told Wagner that a student had told her that Irick had approached her, touched her on the leg, and made comments of a sexually suggestive nature. The student did not indicate that the incident was serious, but she had been upset by it. Wagner checked with other Parkland students and discerned that while several "such incidents of a verbal nature" had previously occurred, "they felt that it was in jest."

Wagner met with McCarthy and Smith to discuss the matter on February 6, 1990. Wagner told McCarthy he did not consider this to constitute a "serious matter," but did recommend McCarthy meet with Irick to insure that no such incidents reoccurred in the future.

Knierim placed Garland in charge of an investigation into the Parkland complaint and instructed her to meet with Parkland officials. Garland had previously met with McCarthy and Smith, and on June 7, 1990, met with McCarthy and Sue Martina, the complaining student. At that time, Martina signed the following statement:

"This is a statement by Susan Martina, made at 2:00 p.m. on June 7, 1990, presented to Katherine McCarthy, Radiology Administrative Coordinator.

[']While standing in front of the counter in the processing area, Mr. Irick said to me, ["]Don't move, I need to get into this drawer.["] Before I could move out of the way, Mr. Irick reached between my legs and opened the drawer. While opening the drawer he brushed the inside of my thigh with his hand and chuckled.[']

At the time of this presentation, Susan related to Katherine McCarthy that there had been other times when Mr. Irick had adjusted her clothing and made inappropriate remarks, but she could not recall the specific dates."

The Clinic was never informed what the "inappropriate remarks" were or what clothing adjustments had been made. Knierim, who had the final word on whether Irick was to be discharged, never spoke with Martina and was not aware of any further information from Martina other than the June 7, 1990, statement. Garland spoke only to McCarthy, who did not consult with anyone in her department about the matter.

It had been the practice in the radiology department to engage in behavior that included the exchange of sexual jokes and utilization of coarse language, all frequently done in the presence of Parkland interns. It was also the practice in the radiology department, among X-ray technicians and Parkland interns, in the course of performing their duties in the congested processing area, to make incidental physical contact with others, including reaching around and through the appendages of fellow workers. McCarthy testified she had never observed any of that, although she was aware that sometimes sexual jokes were made and foul language was utilized in the department. McCarthy had herself participated in sexual jokes and foul language in the past, but she did not apprise Garland of that fact.

Martina's complaint was never discussed with Irick before his termination, and Irick did not learn the name of his accuser until several days after he had been discharged. McCarthy, however, was consulted by Garland, Blount, and Knierim before the decision to terminate was made.

Shortly after discharging Irick, the Clinic hired two female X-ray technicians. The parties stipulated that Irick "made no efforts to mitigate damages, because he did not believe he would be able to do so with this on his record."

On February 11, 1993, the ALJ recommended that Irick's complaint of sex discrimination and of age discrimination be sustained, that the Clinic pay Irick $127,047.40, representing back-pay and front-pay damages, and that the incident be deleted from Irick's personnel records. On October 22, 1993, another ALJ recommended that the Clinic pay Irick's attorney fees of $13,045.50 and costs of $692.88.

Five years later, on November 10, 1998, the Commission rejected the recommended order and decision and dismissed the complaint with prejudice. Only one commissioner signed the decision, noting that it was in accordance with votes cast by the other two commissioners prior to their resignation from the Commission.

The Commission, five years removed from the hearing, recognized that it was not its role to reweigh evidence or make determinations of witness credibility, but that this responsibility was left solely to the ALJ, who had the ability to observe witness demeanor and conduct during the course of the public hearing. The Commission will not disturb the factual findings of a judge unless they are against the manifest weight of the evidence. 775 ILCS 5/8A-103(E)(2) (West 1996).

The Commission found that Irick established a prima facie case of sex and age discrimination, but that the Clinic had articulated a legitimate, nondiscriminatory reason for its action and that Irick accordingly had the burden of showing that the articulated reason was a pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 677-79, 93 S. Ct. 1817, 1824-25 (1973); Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 179, 545 N.E.2d 684, 687 (1989); St Mary's Honor Center v. Hicks, 509 U.S. 502, 506-08, 125 L. Ed. 2d 407, 416, 113 S. Ct. 2742, 2747-48 (1993).

The Commission held "there is simply no evidence in this case which indicates that the respondent discharged the complainant for anything other than sexual harassment." The ALJ had found the allegation of sexual harassment was not made in good faith, based on the fact no one ever discussed the allegations with Irick, Irick was never given an opportunity to respond, and the vagueness of the intern's statement. The Commission held the brevity of the student's statements did not "automatically" cast doubt on their veracity. The Commission noted that the question before it was not whether the student intern was in fact harassed, but whether Knierim had a good-faith belief that Irick engaged in inappropriate sexual behavior with her. In response to the failure to discuss the allegations with Irick, the Commission noted that it had previously held that the word of the victim of sexual harassment is sufficient, if the victim is believable, and that there is no need for corroborating witnesses to establish sexual harassment. The Commission recognized that the failure to allow Irick to respond "is in some sense, unfair," but "there is a big difference between unfair and discriminatory."

The Commission noted that the Clinic conducted a two- month investigation after receiving the results of Parkland's investigation and that it was not the role of the Commission to substitute its business judgment for that of the Clinic. It was reasonable that the Clinic reacted quickly because of fear of liability for sexual harassment and to maintain good relations with Parkland College.

The Commission rejected the ALJ's finding of McCarthy's discriminatory animus toward Irick because the finding was based on only one statement and did not take into consideration the high performance ratings McCarthy continually gave Irick. Although McCarthy was contacted by Garland in the course of the investigation, McCarthy was not the person vested with responsibility to make the decision to terminate Irick. No evidence showed that Garland or Knierim, the persons vested with responsibility, displayed any discriminatory animus whatsoever with regard to Irick.

The Commission distinguished Warren Achievement Center, Inc. v. Human Rights Comm'n, 216 Ill. App. 3d 604, 575 N.E.2d 929 (1991), because in Warren the complainant demonstrated that the decision maker was biased against him, and that, combined with the lack of investigation, made the reason for discharge unworthy of belief. In Warren, the complainant was discharged only three hours after the decision maker learned of the harassment allegations, and virtually no investigation took place. Here the Clinic's investigation spanned nearly two months. "Maybe the investigation was not as fair as it could have been, but there is no evidence that it was not carried out in good faith." Accordingly, the Commission found the decision of the ALJ to be clearly against the manifest weight of the evidence.

II. ANALYSIS

A. Standard of Review

In Davis v. Human Rights Comm'n, 246 Ill. App. 3d 420, 423, 615 N.E.2d 1376, 1378 (1993), overruled in other part in Cisco Trucking Co. v. Human Rights Comm'n, 274 Ill. App. 3d 72, 76, 653 N.E.2d 986, 990 (1995), quoting Ill. Rev. Stat. 1991, ch. 68, par. 8A-103(E)(2), this court discussed what we said was an "unusual provision" with regard to the standard of review, section 8A-103(E)(2) of the Human Rights Act (Act), which directs that the "'Commission shall adopt the hearing officer's findings of fact if they are not contrary to the manifest weight of the evidence.'" Cf. 735 ILCS 5/3-110 (West 1996); Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992) (general rule in administrative review is that agency findings are entitled to deference, even when they differ from those of the hearing officer, and the agency has not had the opportunity to observe the witnesses). We concluded that section 8A-103(E)(2) was of no great significance to us, because "[i]n any proceeding brought for judicial review, the Commission's findings of fact shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence." (Emphasis added.) Ill. Rev. Stat. 1991, ch. 68, par. 8-111(A)(2). Accordingly, we concluded that where the findings of the ALJ and the Commission differed, we would give deference to the findings of the Commission.

The difficulty with the Davis approach is illustrated by the present case. The Commission here did not make findings of fact that differed from those made by the ALJ; rather, the Commission determined that the ALJ's recommended decision was contrary to the manifest weight of the evidence. We should not assume, when the Commission simply rejects the ALJ's recommended decision, that the Commission has thereby made findings of fact that would support its decision. Effective July 18, 1996, the legislature apparently overturned our interpretation in Davis by changing section 8-111(A)(2) to require deference to "findings of fact made at the administrative level," in place of "the Commission's findings of fact." Pub. Act 89-520,