Lewis v. Ill. Human Rights Comm'n

2020 IL App (1st) 191601-U

SUZIE T. LEWIS, Petitioner-Appellant, v. THE ILLINOIS HUMAN RIGHTS COMMISSION;THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS;and MANAGEMENT & TRAINING CORPORATION, Respondents-Appellees.

No. 1-19-1601

APPELLATE COURT OF ILLINOIS FIRST DISTRICT Second Division

July 28, 2020

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).

Petition for Direct Administrative Review of a Decision of the Illinois Human Rights Commission.

No. 2016 CR 3416

JUSTICE LAVIN delivered the judgment of the court.

Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment.

ORDER

¶ 1 Held: The Illinois Human Rights Commission did not abuse its discretion by sustaining the dismissal of petitioner's claims of employment discrimination and retaliation for lack of substantial evidence.

¶ 2 Petitioner Suzie T. Lewis 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 her charge of employment discrimination and unlawful retaliation by her former employer, Management & Training Corporation (Management), brought under the Illinois Human Rights Act (Act) (775 ILCS 5/1-101, et seq. (West 2016)). Petitioner alleged Management discharged her due to her sex and pregnancy. She also alleged she was discharged in retaliation for engaging in a protected activity, seeking a leave of absence due to her pregnancy. The Department dismissed her charge for lack of substantial evidence. The Commission sustained the Department's decision and petitioner appealed. We affirm.

¶ 3 Management hired petitioner on October 6, 2014. After Management terminated her employment on March 22, 2016, petitioner filed a charge of employment discrimination and retaliation with the Department. She alleged she was discharged due to discrimination based on her sex and pregnancy, and in retaliation for engaging in a protected activity. Petitioner alleged she informed Management she was pregnant and requested Family Medical and Leave Act (FMLA) benefits and, on that same day, Management discharged her.

¶ 4 Petitioner's charge was investigated by the Department. Before preparing its report, the investigator for the Department interviewed petitioner; Maria Alday, Management's student records manager; and Katina Figueroa, Management's human resources generalist.

¶ 5 Petitioner told the investigator she worked for Management first as an on-call substitute teacher and later an academic instructor. Her job responsibilities included teaching upper-level math classes for students between the ages of 16 to 25. Petitioner asserted "her overall work performance was exceptional and she exceeded [Management's] job expectations."

¶ 6 Petitioner stated that, on March 22, 2016, she informed Figueroa of her pregnancy and submitted FMLA paperwork to request time off. After contacting her insurance company,petitioner returned to human resources to tell them the claim had been approved. She informed Alday she wanted to request a medical leave. Alday signed her request and told her nothing else was needed at that time. Later that day, Alday called petitioner to human resources and "informed her she was being terminated due to breaching her 90-day probationary period and that she did not owe her a reason for the discharge." Petitioner was unaware she was on probation at the time.

¶ 7 Regarding her retaliation claim, petitioner told the investigator that, during a meeting in the summer of 2015, she engaged in a protected activity when she offered suggestions regarding class schedules. She also engaged in a protected activity on March 22, 2016, "when she requested an accommodation after requesting to take a leave of absence." Petitioner claimed that, as Management discharged her that same day, this adverse action "within such a period of time" raised an inference of retaliatory motive. At no time during her employment did petitioner report or otherwise allege any form of unlawful discrimination.

¶ 8 Alday told the investigator petitioner was hired as an on-call academic instructor and promoted to an academic instructor. Her overall work performance was good until an incident in which she used inappropriate language with students on March 22, 2016. On that day, petitioner requested a leave of absence and asked Alday to sign off on the request. She did not inform Alday of the reason for the leave. Another employee informed Alday petitioner was pregnant. Alday approved petitioner's request.

¶ 9 Later that day, several students came to Alday's office and complained that petitioner "was using profane language in the classroom." Alday requested petitioner come to human resources to receive her FMLA paperwork. While petitioner was in the human resources office, Alday went to petitioner's classroom and questioned the students about petitioner's behavior. The studentsconfirmed petitioner had used profane language. Alday asked petitioner to give a statement about the incident and give her FMLA paperwork to Figueroa. Alday told Figueroa that she found a substitute teacher to take over petitioner's classroom as she did not want petitioner in the classroom.

¶ 10 Alday told the investigator that "Human Resources along with the center Director made the decision to discharge petitioner based upon the incident with her use of inappropriate language with the students." That incident was already being investigated at the time petitioner submitted her FMLA paperwork. Petitioner's 90-day promotional probationary period had not yet ended. Alday stated that petitioner never made any complaints of discrimination prior to her discharge.

¶ 11 Figueroa told the investigator petitioner was hired as a substitute instructor on October 6, 2014, and was promoted to academic instructor on January 11, 2016. On March 22, 2016, petitioner told Figueroa she was pregnant. That day, Alday called Figueroa and informed her that petitioner had been using "profane language" in the classroom. Alday sent petitioner to Figueroa's office to make a statement. When petitioner arrived at Figueroa's office, she told Figueroa "it was best if she went on a leave of absence because she was pregnant." Figueroa gave petitioner a leave request form. Petitioner gave Figueroa a written statement about the classroom incident and left with the leave request form. An hour and a half later, petitioner returned to the office with the request signed by her manager. Alday signed petitioner's request form and "had [petitioner] add to her statement that she did not use profanity." Figueroa stated that, later that day, petitioner was called back to the office and discharged for failing to successfully complete her probationary period because she used profanity in the classroom.

¶ 12 Management provided the investigator with its Equal Opportunity/Affirmative Action Policy. The policy stated Management was committed to prohibiting discrimination on the basis of, inter alia, sex, and "no retaliation will be tolerated against any employee for reporting violations of this policy." Management also provided its Probationary Period Policy, which indicated that the staff probationary period was 180 days for all new hires and 90 days for staff who are promoted. During these probationary periods, Management's "usual disciplinary and problem solving procedures" applied and did not limit its ability to discipline or terminate employment prior to the end of the probationary period.

¶ 13 Management provided the investigator with petitioner's statement regarding the classroom incident, which indicated that the students refused to comply with petitioner's request that they put away their phones, refused to listen, and told petitioner she had a "f***** up attitude." Petitioner informed the students that she was "not going to come here and get treat like s*** when (she was) only try [sic] to help you with your math and get you to TABE of my class."

¶ 14 Management also provided its Rules of Conduct Policy, which outlines infractions that may result in immediate dismissal. Those infractions include "indecent obscene, abusive, profane, offensive, demeaning or suggestive comments, actions or behavior." Management's Employee Discipline Policy indicated that disciplinary actions, including termination, may be imposed for violation of company rules.

¶ 15 Management provided the investigator with "Notices of Caution" for several employees, Agustin J., Elayne H., Wesley P., Dawn C., and Naima N., whose employments were terminated in 2015 for various reasons, including failing to demonstrate professional behavior (Dawn C.).¹

¶ 16 In rebuttal, petitioner did not provide any further information.

¶ 17 The investigator recommended a finding of lack of substantial evidence that petitioner was discharged because of her pregnancy or sex, because she failed to identify a similarly situated non-pregnant employee who demonstrated unprofessional behavior but was not discharged. The evidence showed petitioner was discharged because, inter alia, she used profane language toward students in her classroom while still a probationary employee, an infraction which may result in immediate dismissal under Management's policy. Further, the evidence showed that between May 15, 2015, through November 18, 2015, Management terminated "at least five individuals not identified as being pregnant," including one for unprofessional behavior.

¶ 18 The investigator also recommended a finding of lack of substantial evidence that petitioner was discharged in retaliation for engaging in a protected activity, because she failed to establish a nexus between her involvement in a protected activity and her discharge. The evidence showed that, before petitioner requested an accommodation to take a leave of absence, two students had complained that she used profane language toward them and...