Igwe v. Illinois Human Rights Comm'n , 2020 IL App (4th) 190527-U ( 2020 )

NOTICE 2020 IL App (4th) 190527-UThis order was filed under Supreme
FILED
NO. 4-19-0527 June 26, 2020
Court Rule 23 and may not be cited
as precedent by any party except in
Carla Bender
the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate
under Rule 23(e)(1). Court, IL
OF ILLINOIS
FOURTH DISTRICT
DANIEL IGWE, ) Appeal from the
Petitioner-Appellant, ) Illinois Human Rights
v. ) Commission
THE STATE OF ILLINOIS HUMAN RIGHTS ) No. 17-0157.
COMMISSION, THE STATE OF ILLINOIS )
DEPARTMENT OF HUMAN RIGHTS, and APERION )
CARE BLOOMINGTON, LLC, )
Respondents-Appellees. )
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Steigmann and Justice Cavanagh concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding the Illinois Human Rights Commission did
not abuse its discretion in sustaining the dismissal of petitioner’s charges of
unlawful discrimination and retaliation against his former employer.
¶2 Petitioner, Daniel Igwe, filed a charge of unlawful discrimination and retaliation
against his former employer, Aperion Care Bloomington, LLC (Aperion). The Illinois
Department of Human Rights (Department) dismissed petitioner’s charges, and the Illinois
Human Rights Commission (Commission) sustained the Department’s dismissal. Petitioner
appeals, arguing the Commission erred in sustaining the dismissal of his charges. We affirm.
¶3 I. BACKGROUND
¶4 In May 2016, pursuant to the Illinois Human Rights Act (Act) (775 ILCS 5/1-101
et seq. (West 2014)), petitioner perfected a charge of unlawful discrimination and retaliation
against Aperion, alleging he was: (1) harassed from May 2015 to November 2015 (counts A
through E), (2) suspended on January 20, 2016 (counts F through J), (3) suspended on January
24, 2016 (counts K through O), and (4) discharged on January 27, 2016 (counts P through T),
because of his ancestry, color, race, sex, and in retaliation for opposing unlawful discrimination.
¶5 The Department prepared an “Investigation Report” on petitioner’s allegations,
which revealed the following uncontested facts. In April 2015, petitioner was hired as a staff
nurse by Arba Care Center (Arba), a long-term care facility. Aperion “bought Arba’s facility
sometime around December 2015, and [petitioner] then worked for [Aperion] as a [s]taff
[n]urse.” Aperion’s “Abuse Prevention Program Facility Procedure” requires employees accused
of abusing residents to immediately report the allegations to the administrator and to “be
removed immediately until the Administrator investigates the allegations ***.” The “Employee
Conduct Policy” prohibits “intimidation and threatening residents.” On January 20, 2016,
petitioner was suspended due to an accusation, made at approximately 1:00 a.m. and not
immediately reported to the administrator, of physical abuse by one of the residents. An
investigation into the allegation exonerated defendant; he returned to work on January 23, 2016;
and he “was re-educated on reporting abuse.” On January 24, 2016, at approximately 5 a.m., a
resident accused petitioner of stealing money; petitioner asked the resident if he (the resident)
was serious about the accusation; the accusation was not reported to the administrator until
approximately 9:00 a.m.; the subsequent investigation exonerated petitioner. On January 27,
2016, petitioner was discharged. Aperion’s explanation for the discharge was that petitioner
violated two employment policies after being “re-educated” on those policies, in that on January
24, 2016, petitioner (1) questioned the resident about the theft accusation, which could have been
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viewed as intimidating or threatening a resident, and (2) failed to immediately report the
accusation.
¶6 The Investigation Report recommended that counts A through E be dismissed for
lack of jurisdiction, as petitioner was not an “employee” of Aperion for purposes of the Act
during the relevant period. The report further recommended that the remaining counts, counts F
through T, be dismissed for lack of substantial evidence, as Aperion “had a legitimate, non-
discriminatory reason” to suspend and discharge petitioner: his failure to comply with the
“Abuse Prevention” and “Employee Conduct” policies after being “re-educated” on those
policies. The Department’s director agreed with the recommendations and dismissed the charges.
¶7 Petitioner filed a request for review of the Department’s dismissal with the
Commission. The Commission sustained the dismissal of petitioner’s charges, concluding that
even if it were to assume petitioner established a prima facie case of unlawful discrimination and
retaliation, Aperion acted in accordance with its written policies in suspending and discharging
petitioner, and petitioner was unable to demonstrate that Aperion’s explanation was a pretext for
unlawful discrimination. Following the Commission’s order, petitioner appealed to this court.
See Ill. S. Ct. R. 335(a) (eff. July 1, 2017); 775 ILCS 5/8-111(B)(1) (West 2014) (“Any
[petitioner] or respondent may apply for and obtain judicial review of a final order of the
Commission entered under this Act by filing a petition for review in the Appellate Court ***.”).
¶8 This appeal followed.
¶9 II. ANALYSIS
¶ 10 On appeal, petitioner argues the Commission erred in sustaining the dismissal of
his charges. Specifically, he contends the Commission erred with respect to (1) counts A through
E because documents attached to the appendix of his appellant’s brief show he was employed by
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Aperion prior to December 2015 and (2) counts F through T because Aperion’s articulated
explanation for suspending and discharging him was a pretext for unlawful discrimination and
retaliation.
¶ 11 A. The Act and Standard of Review
¶ 12 The Act provides it is a civil rights violation for any employer “to engage in
harassment ***, or to act with respect to discharge [or] discipline *** on the basis of unlawful
discrimination ***.” 775 ILCS 5/2-102(A) (West 2014). “Unlawful discrimination” means, in
part, discrimination against a person because of that person’s race, color, ancestry, or sex (id.
§ 1-103(Q)), while “employee” includes “[a]ny individual performing services for remuneration
*** for an employer” (id. § 2-101(A)(1)(a)). It is also a civil rights violation to “[r]etaliate
against a person because he or she has opposed that which he or she reasonably and in good faith
believes to be unlawful discrimination ***.” Id. § 6-101(A). Where “a civil rights violation
allegedly has been committed, a charge *** may be filed with the Department by an aggrieved
party ***.” Id. § 7A-102(A)(1). Once a charge has been filed, “[t]he Department shall conduct
an investigation sufficient to determine whether the allegations set forth in the charge are
supported by substantial evidence ***.” Id. § 7A-102(C)(1). If not supported by substantial
evidence, the charge must be dismissed, and the petitioner must then be informed of his right to
seek review of the dismissal order before the Commission. Id. § 7A-102(D)(3). If the
Commission sustains the dismissal, the petitioner may appeal directly to this court from the
Commission’s order. Id. § 8-111(B)(1); Ill. S. Ct. R. 335(a) (eff. July 1, 2017).
¶ 13 This court reviews the Commission’s order for an abuse of discretion. Young v.
Illinois Human Rights Commission, 2012 IL App (1st) 112204, ¶ 32, 974 N.E.2d 385. “Under the
abuse of discretion standard, the court should not disturb the Commission’s decision unless it is
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arbitrary or capricious” or “where no reasonable man could agree with the position of the
[Commission].” Id. ¶ 33. “A decision is arbitrary or capricious if it contravenes legislative intent,
fails to consider a critical aspect of the matter, or offer[s] an explanation so implausible that it
cannot be regarded as the result of an exercise of the agency’s expertise.” Id.¶ 14 B. The Commission Did Not Err in
Sustaining the Dismissal of Petitioner’s Charges
¶ 15 Petitioner challenges the Commission’s order on two bases: first, petitioner argues
the documents attached to the appendix of his appellant’s brief demonstrate he was employed by
Aperion prior to December 2015; second, petitioner argues there was substantial evidence that
Aperion’s articulated explanation for suspending and discharging him was a pretext for unlawful
discrimination and retaliation.
¶ 16 1. The Dismissal of Counts A Through E
for Lack of Jurisdiction
¶ 17 Petitioner argues the Commission erred in sustaining the dismissal of counts A
through E based on a finding of lack of jurisdiction because certain documents—in particular,
paystubs—attached to the appendix of his appellant’s brief demonstrate he received
remuneration from Aperion prior to December 2015 and, therefore, was an “employee” of
Aperion for purposes of the Act. However, we are prohibited from considering these documents
because they were not before the Commission and are not part of the record on appeal. See, e.g.,
In re Estate of Matthews, 409 Ill. App. 3d 780, 783, 948 N.E.2d 187, 191 (2011) (“[I]t is well
established that the record on appeal cannot be supplemented by attaching documents to the
appendix of a brief.”); 735 ILCS 5/3-110 (West 2018) (“No new or additional evidence in
support of or in opposition to any finding, order, determination[,] or decision of the
administrative agency shall be heard by the court.”). Thus, as this is the only argument petitioner
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raises on appeal with respect to the Commission’s finding that it lacked jurisdiction, we find the
Commission did not abuse its discretion.
¶ 18 2. The Dismissal of Counts F Through T
for Lack of Substantial Evidence
¶ 19 Petitioner also argues the Commission erred in sustaining the dismissal of counts
F through T because the investigation uncovered substantial evidence that Aperion’s explanation
for suspending and discharging him was a pretext for unlawful discrimination and retaliation.
¶ 20 An allegation of unlawful discrimination under the Act is analyzed using the
three-part test articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Owens v. Department of Human Rights, 403 Ill. App. 3d 899, 918, 936 N.E.2d 623,
639 (2010). Under this test:
“the petitioner must first establish by a preponderance of the evidence a
prima facie case of unlawful discrimination. [Citation.] If a prima facie case is
established, a rebuttable presumption arises that the employer unlawfully
discriminated against the [petitioner]. [Citation.] Second, to rebut the
presumption, the employer must articulate, not prove, a legitimate,
nondiscriminatory reason for its decision. [Citation.] Third, if the employer
articulates such a reason, the plaintiff must prove, again by a preponderance of the
evidence, that the employer’s reason was untrue and was a pretext for
discrimination. [Citation.]” Id. at 918-19.
“To prove pretext, the [petitioner] must show that the employer’s reason was false and that
discrimination was the real reason for the action.” Sola v. Illinois Human Rights Commission,
316 Ill. App. 3d 528, 537, 736 N.E.2d 1150, 1158 (2000). To succeed, a petitioner “must show:
(1) the articulated reason has no basis in fact; (2) the articulated reason did not actually motivate
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the employer’s decision; or (3) the articulated reason was insufficient to motivate the employer’s
decision.” Id. “[T]he ultimate burden of persuasion remains on the [petitioner] throughout the
proceedings.” Owens, 403 Ill. App. 3d at 919.
¶ 21 Here, in sustaining the Department’s dismissal of the charges, the Commission
concluded as follows:
“Assuming that [p]etitioner presented a prima facie case as to any [c]ount,
[Aperion] asserts that it followed its written policy for handling accusations
against staff by facility residents: employees are required to immediately report
any such accusation to [Aperion’s] administrator, and the accused employee
would be suspended pending investigation (and if exonerated, paid for the time
away from work). *** Petitioner has not shown that these decisions were
pretextual.”
We find the Commission did not abuse its discretion in concluding petitioner failed to show
Aperion’s articulated explanation for suspending and discharging him was a pretext for unlawful
discrimination.
¶ 22 According to the Department’s Investigation Report, Aperion’s “Abuse
Prevention Program Facility Procedure” requires employees to immediately report any allegation
of abuse or misappropriation of resident property to the administrator. Petitioner also signed
Aperion’s “Abuse Prevention Policy,” which states, in relevant part, “Every employee must
understand that he or she may be discharged from employment if he or she does not report any
incident of suspected or actual resident abuse.” It is uncontested petitioner did not immediately
report the allegation of abuse made against him on January 20, 2016, nor did he immediately
report the allegation of theft made against him on January 24, 2016, even after he had been “re-
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educated” on Aperion’s abuse prevention policies following the former allegation. It is also
undisputed that petitioner questioned the resident who made the allegation of theft instead of
immediately removing himself from the resident’s presence. Based on these facts and Aperion’s
written policies, it is apparent that Aperion’s articulated explanation for suspending and
discharging petitioner was based in fact, and petitioner fails to point to anything in the record
that would support a finding of pretext by a preponderance of the evidence, let alone anything
that would require this court to find the Commission’s conclusion was arbitrary or unreasonable.
Accordingly, we find the Commission did not abuse its discretion.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the Commission’s order.
¶ 25 Affirmed.
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