Michel v. The State of Illinois Human Rights Commission ( 2020 )

2020 IL App (1st) 191302-UNo. 1-19-1302
Order filed July 20, 2020
First Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
DAVID MICHEL, )
)
Appeal from the
Petitioner-Appellant, )
Illinois Human Rights
)
Commission
v. )
)
THE STATE OF ILLINOIS HUMAN RIGHTS )
Charge Nos. 16 CF 2454, 16 CF
COMMISSION, THE STATE OF ILLINOIS )
2949
DEPARTMENT OF HUMAN )
RIGHTS, and MV )
TRANSPORTATION, INC., )
)
Respondents-Appellees. )
JUSTICE HYMAN delivered the judgment of the court.
Justices Pierce and Walker concurred in the judgment.
ORDER
¶1 Held: The Illinois Human Rights Commission did not abuse its discretion in sustaining
the dismissal of petitioner’s charges against his employer of harassment based on national
origin and retaliation for filing prior discrimination charges.
¶2 David Michel, born in Haiti, filed three discrimination charges with the Illinois Department
of Human Rights alleging his employer, MV Transportation, Inc., subjected him to harassment
based on his national origin and to retaliate for earlier discrimination charges. Michel, a bus driver,
alleges he was harassed and retaliated against by dispatchers who failed to answer his radio calls
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and by his supervisor who delayed giving him a full attendance and safety bonus. The Department
dismissed the charges for lack of substantial evidence.
¶3 Michel asked the Illinois Human Rights Commission to review the dismissals and to either
consolidate his requests for review or have the same panel hear them. The Commission agreed that
the same panel would review the requests. After review, the Commission issued three separate
orders sustaining the dismissals.
¶4 Michel filed a pro se petition in this court for direct administrative review. The petitions
were timely as to two of the dismissals, so we limit our review to them. Michel contends the
Commission abused its discretion by (i) sustaining the dismissal of his claim that the dispatchers’
conduct constituted harassment or retaliation, (ii) sustaining the dismissal of his claim that he was
denied a bonus due to harassment and retaliation, (iii) failing to properly consolidate his charges,
and (iv) failing to consider MV Transportation’s credibility. We affirm the dismissals. The
Commission did not abuse its discretion in finding that Michel failed to establish a prima facie
case of harassment or retaliation. In the absence of a prima facie case of discrimination, MV
Transportation’s credibility in refuting the charges was irrelevant and need not be considered by
the Commission. Further, Michel failed to present evidence that the Commission did not abide by
its order that the three charges would be decided by the same panel.
¶5 Background
¶6 Michel began working as a coach bus driver for MV Transportation, Inc., on February 1,
2014. In January 2016, Michel filed a discrimination charge with the Equal Employment
Opportunity Commission alleging MV Transportation discriminated against him based on his
national origin. The charge was transferred to the Department of Human Rights, which dismissed
it for lack of substantial evidence. (This charge is not before the court.)
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¶7 May 2016 Discrimination Charge
¶8 In May 2016, Michel filed another charge of discrimination with the Department claiming
that from December 2015 through April 2016, MV Transportation subjected him to harassment
because of his national origin in violation of section 2-102(A) of the Illinois Human Rights Act
(775 ILCS 5/2-102(A) (West 2018) (Act)) and in retaliation for his January 2016 discrimination
charge in violation of section 6-101(A) of the Act. 775 ILCS 6-101(A) (West 2018). Michel said
he was harassed by dispatchers who ignored his calls on multiple occasions and once told him not
to call that radio. Michel believed his co-workers knew he was Haitian because of his accent and
knew that he had filed a discrimination charge in January 2016, because he heard another employee
talking about it. Michel alleged that similarly situated non-Haitian drivers were not subject to this
harassment, which he contended created a hostile and offensive work environment that interfered
with his ability to do his job. Michel also alleged his employer improperly denied him part of a
$250 safety and attendance bonus because he is Haitian and in retaliation for the January 2016
discrimination charge.
¶9 The Department investigated Michel’s charges and recommended a finding of lack of
substantial evidence. The investigator concluded that Michel failed to show that non-Haitian
employees were treated more favorably under similar circumstances, as they too complained about
dispatchers not returning their calls. (MV Transportation submitted incident reports of other
drivers complaining about dispatchers ignoring calls.) Michel also failed to show his employer
was aware of his national origin, as an operations manager said that neither she nor the dispatchers
knew that Michel was Haitian and his former supervisor said he did not know until Michel filed
his first complaint alleging national origin discrimination.
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¶ 10 The investigator also concluded that Michel failed to show his employer had any animus
toward him for filing the January 2016 discrimination charges. The investigator found that after
Michel filed his complaint, MV Transportation allowed him to view dispatch operations and
assigned a dispatcher to call him every hour to check in. Two weeks later, Michel asked dispatch
to stop calling him hourly, as he usually had nothing to report. The investigator also noted that
Michel initially received $100 of the $250 safety and attendance bonus because his former
supervisor thought Michel had missed a workday. Michel filed a grievance contending that the day
he missed was a scheduled day off. Michel’s former supervisor removed the absence and gave
Michel the balance of the full bonus. The Department accepted the investigator’s recommendation
and dismissed the charge.
¶ 11 June 2016 Discrimination Charge
¶ 12 On June 1, 2016, Michel filed a third charge of discrimination with the Department alleging
that from April 2016 until June 2016, MV Transportation harassed him based on his national origin
and in retaliation for filing previous discrimination charges with the Department in violation of
sections 2-102(A) and 6-101(A) of the Act (775 ILCS 5/2-102(A), 6-601(A) (West 2018)). Michel
again alleged he was harassed when dispatchers failed to answer his radio calls and listed five
instances when his calls were not returned. He asserted non-Haitian drivers’ calls were returned,
though he acknowledged hearing other drivers complain that dispatch did not return their calls.
¶ 13 The Department investigated the charge and again recommended dismissal. According to
the investigation report, Michel’s supervisor said he was unaware of Michel’s national origin. The
supervisor also said that other non-Haitian drivers complained about dispatchers not returning their
calls. He asserted the problem was due to lack of professionalism by the dispatchers but that the
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employer hired “a new team of dispatchers” that should ensure timely communication. The
Department accepted the investigator’s recommendation and dismissed the charge.
¶ 14 Commission Dismissals
¶ 15 Michel asked the Commission to review the Department’s dismissals of his January, May,
and June 2016 discrimination charges. He also filed a motion with the Commission to have his
then-pending requests for review on his three charges either consolidated or reviewed by the same
panel. The Commission granted Michel’s motion, and ordered that the charges “shall by reviewed
by the same Commission panel.”
¶ 16 The Commission issued an order on April 30, 2019, sustaining the Department’s dismissal
of Michel’s January 2016 charge for lack of substantial evidence. The Commission then issued
two orders on June 6, 2019, sustaining the Department’s dismissal of Michel’s May 2016 and June
2016 charges for lack of substantial evidence. (The June 6 orders were issued by the same three
commissioners. Two of those three commissioners also issued the April 30 order.)
¶ 17 As to the May 2016 charge, the Commission found the evidence not enough to establish a
prima facie case of harassment or retaliation. Dispatchers’ failure to answer Michel’s calls was
“not [sufficiently] severe or pervasive to constitute a term or condition of employment,” and thus
not actionable. Also, “there was no evidence that the “alleged harassment was due to the
Petitioner’s protected class or in retaliation.” As for the partial denial of the safety and attendance
bonus, the Commission likewise found insufficient evidence for a prima facie case of
discrimination or retaliation, noting that no adverse action occurred, and that Michel “did not suffer
a harm because ultimately the Employer paid him his full bonus.”
¶ 18 As to the June 2016 charge, the Commission also sustained the Department’s dismissal for
lack of sufficient evidence to establish a prima facie case of harassment. The Commission found
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that Michel’s allegations that dispatchers did not respond to his calls “job-related and trivial,” and
not actionable, because they were not sufficiently “severe or pervasive to constitute a term or
condition of employment.” Nor did Michel present substantial evidence showing the alleged
harassment to be due to his protected national origin or undertaken in retaliation for previously
filing discrimination charges, as drivers who were not Haitian and had not filed discrimination
charges also complained that dispatchers failed to answer their calls.
¶ 19 Michel filed a timely pro se petition in this court for direct administrative review of the
Commission’s June 9, 2019 final orders. He also asked the court to review the Commission’s April
30, 2019 order dismissing his January 2016 charge, even though it was filed more than 35 days
after entry of that order. See Sup. Ct. R. 335(a) (July 1, 2017). We issued an order in August 2019,
denying that request for lack of jurisdiction and limiting our review to the Commission’s two June
6, 2019 orders.
¶ 20 Analysis
¶ 21 Standard of Review
¶ 22 The Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 2018)) prohibits
discrimination against a person on the basis of national origin. Id. § 1-102(A). Under the Act, once
a charge of discrimination is filed, the Department must conduct a full investigation of the
allegations and prepare a written report. 775 ILCS 5/7A-102(C)(1), (D)(1) (West 2018), Owens v.
Department of Human Rights, 403 Ill. App. 3d 899, 917 (2010). The Department then reviews the
report to determine whether “substantial evidence” exists that the alleged discrimination has
occurred. 775 ILCS 5/7A-102(D)(2) (West 2018); Owens, 403 Ill. App. 3d at 917. “Substantial
evidence,” as defined by the Act, is “evidence which a reasonable mind accepts as sufficient to
support a particular conclusion and which consists of more than a mere scintilla but may be
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somewhat less than a preponderance.” 775 ILCS 5/7A-102(D)(2) (West 2018); see Owens, 403
Ill. App. 3d at 917. If the Department determines that no substantial evidence supports the
allegation, the charge is dismissed. 775 ILCS 5/7A-102(D)(3) (West 2018); Owens, 403 Ill. App.
3d at 917. The complainant may then seek the dismissal’s review by the Commission. 775 ILCS
5/7A-102(D)(2)(a) (West 2018). If the Commission sustains the dismissal, the complainant may
seek review of the Commission’s order in this court. 775 ILCS 5/8-111(B)(1) (West 2018); Allen
v. Lieberman, 359 Ill. App. 3d 1170, 1180 (2005).
¶ 23 This court reviews the decision of the Commission, not the Department. See Zaderaka v.
Illinois Human Rights Comm’n, 131 Ill. 2d 172, 180 (1989). The Commission’s findings of fact
are entitled to deference and “shall be sustained unless the court determines that such findings are
contrary to the manifest weight of the evidence.” 775 ILCS 5/8-111(B)(2) (West 2018); see Stone
v. Department of Human Rights, 299 Ill. App. 3d 306, 314 (1998). The Commission’s decision to
sustain the dismissal of a charge will be reversed only where the decision was arbitrary and
capricious or an abuse of discretion. Owens, 403 Ill. App. 3d at 917. An arbitrary and capricious
decision contravenes legislative intent, fails to consider a critical aspect of the matter, or offers an
explanation so implausible that it cannot be considered as a result of the exercise of the agency’s
expertise. Young v. Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 33. An abuse of
discretion will be found where no reasonable person could agree with the decision of the
Commission. Id.¶ 24 In evaluating charges of discriminatory practices brought under the Act (775 ILCS 5/1-101
et seq. (West 2018)), the Department of Human Rights and the courts have adopted the three-part
test employed by the federal courts in actions for employment discrimination brought under title
VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (1982)), as articulated by the United
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States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Zaderaka,
131 Ill.2d at 178-79. Under this test, the petitioner must first establish by a preponderance of the
evidence a prima facie case of unlawful discrimination. Zaderaka, 131 Ill.2d at 179-80. If a prima
facie case is established, a rebuttable presumption arises that the employer unlawfully
discriminated against the petitioner. Id. at 178-79. To rebut the presumption, the employer must
articulate, not prove, a legitimate, nondiscriminatory reason for its decision. Id. at 179. If the
employer articulates a legitimate reason, the petitioner must prove, again by a preponderance of
the evidence, that the employer’s reason was untrue and was a pretext for discrimination. Id. Under
this test, the ultimate burden of persuasion remains on the petitioner throughout the proceeding.
Id.¶ 25 To establish a prima facie case of employment discrimination, the petitioner must show (i)
he or she is a member of a protected class; (ii) he or she was meeting the employer’s legitimate
business expectations; (iii) he or she suffered an adverse employment action; and (iv) the employer
treated similarly situated employees outside the class more favorably. Owens v. Department of
Human Rights, 356 Ill. App. 3d 46, 52 (2005).
¶ 26 Harassment
¶ 27 Michel contends the Commission erred in finding he failed to establish a prima facie case
of harassment based on his national origin when dispatchers failed to answer his calls.
¶ 28 A civil rights violation arises when an employer “engage[s] in harassment *** on the basis
of unlawful discrimination or citizenship status. An employer is responsible for harassment by the
employer’s nonmanagerial and nonsupervisory employees only if the employer becomes aware of
the conduct and fails to take reasonable corrective measures.” 775 ILCS 5/2-102(A) (West 2018).
“Harassment” means unwelcome conduct on the basis of an individual’s actual or perceived ***
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national origin *** that has the purpose or effect of substantially interfering with the individual’s
work performance or creating an intimidating, hostile, or offensive working environment. *** 775
5/2-101(E-1) (West 2018).
¶ 29 For a claim of harassment to be actionable, the aggrieved employee must present evidence
that the employer’s behavior attained a severity or pervasiveness enough to alter the conditions of
the employee’s employment and create a hostile and abusive work environment. Cook County
Sheriff’s Office v. Cook County Comm’n on Human Rights, 2016 IL App (1st) 150718, ¶ 32. The
employee also must show that he or she subjectively perceived the employer’s behavior as hostile
or abusive. Id. In determining whether these elements have been met, several factors should be
considered, including: “ ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’ ” Id. (quoting Harris, 510 U.S. at 22-23). “[T]he
‘mere utterance of an *** epithet which engenders offensive feelings’ is insufficient to constitute
harassment.” Id. (quoting Harris, 510 U.S. at 21-22).
¶ 30 Michel alleged he was harassed by dispatchers who failed to respond to his radio calls. The
record supports Michel’s allegations that on numerous occasions, dispatchers failed to answer his
calls or delayed in responding to him. Michel was not alone. Non-Haitian drivers made similar
complaints about dispatchers. Michel supplied no evidence showing that dispatchers’ non-
responsiveness had a connection to his national origin. An operations manager for MV
Transportation said that neither she nor the dispatchers knew Michel was Haitian. Nor did Michel
present evidence showing that when he did communicate with dispatchers or other employees,
they said or did anything threatening, humiliating, or offensive to him based on his national origin.
His exchanges with dispatchers did not involve anything other than passenger or vehicle matters.
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¶ 31 Moreover, Michel failed to present evidence showing the alleged harassing conduct
reached a severity or pervasiveness that altered the conditions of his employment and created a
hostile or abusive working environment. The Department investigated multiple incidents between
December 2015 and June 2016, when Michel deemed the dispatcher response unsatisfactory. Even
if, as Michel alleges, dispatchers failed to respond to his calls on numerous occasions, this cannot
be deemed pervasive harassing conduct.
¶ 32 MV Transportation acknowledged a problem with its dispatch system, because dispatchers
lacked professionalism or left radios untended. They said they took steps to fix it. Though no doubt
frustrating to Michel, the conduct was not exclusive to him nor did it prevent him from continuing
to do his job. Thus, the Commission’s determination that Michel failed to establish a prima facie
case of harassment based on national origin was not against the manifest weight of the evidence
and it did not abuse its discretion in affirming the Department’s dismissals.
¶ 33 Retaliation
¶ 34 We likewise conclude the Commission did not abuse its discretion by finding Michel failed
to establish a prima facie case of retaliation. A violation arises when the employer “[r]etaliate[s]
against a person *** because he or she has made a charge, filed a complaint, testified, assisted, or
participated in an investigation, proceeding, or hearing under [the] Act.” 775 ILCS 5/6-101(A)
(West 2018). A prima facie case of retaliation is established by showing that (i) the petitioner
engaged in a protected activity, (ii) the employer committed an adverse act against the petitioner,
and (iii) a causal connection existed between the protected activity and the adverse act. Stone, 299
Ill. App. 3d at 315 (citing McDonnell Douglas Corp., 411 U.S. at 802.
¶ 35 The evidence did not support a prima facie case of retaliation. Michel failed to establish
his employer engaged in an adverse act against him. As noted, Michel was not the only employee
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to complain about dispatchers not answering calls. Rather than specific to Michel, the problem
appears systemic. Further, Michel failed to present evidence showing dispatchers ignored his calls
because he had filed a discrimination charge. Absent evidence that the dispatchers conduct
amounted to a materially adverse action or was motivated by retaliatory animus, the Commission
did not abuse its discretion in finding that Michel failed to present a prima facie case. We affirm
the Commission’s decisions sustaining the dismissals of his retaliation claims.
¶ 36 Bonus
¶ 37 Michel contends the Commission abused its discretion in finding he failed to present a
prima facie case of national origin discrimination and retaliation when MV Transportation denied
him a full safety and attendance bonus.
¶ 38 As noted, to establish a violation based on an employer’s unlawful discrimination or
retaliation, the employee must show he or she suffered an adverse act. Owens, 403 Ill. App. 3d at
919; Stone, 299 Ill. App. 3d at 315. Michel was not subject to an adverse act because, contrary to
his contention, he was not denied the bonus. Rather, the bonus was delayed as his employer
investigated whether he had missed a day of work that would have reduced the amount. When his
supervisor determined that Michel had not missed a day, he received the full amount. The
Commission did not abuse its discretion. See Young, 2012 IL App (1st) 112204, ¶ 39 (Commission
did not abuse discretion in finding no adverse action where alleged denial of overtime hours not
result in financial loss to employee). No evidence supports a finding that part of Michel’s bonus
was delayed due to his Haitian nationality, or animosity for filing a discrimination claim.
¶ 39 Credibility
¶ 40 Michel next argues the Commission erred by failing to consider MV Transportation’s
credibility. Specifically, he asserts that in his requests for review, he identified multiple
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contradictions and false or unsupported statements by MV Transportation managers that support
a finding that their testimony is “taint[ed]” and “unqualified [as] rebut[tal].” Michel contends that
despite identifying falsehoods that cast doubt on MV Transportation’s credibility, the Commission
did not address credibility in either of its June 6 orders.
¶ 41 As noted, under the three-part test used in evaluating charges of discriminatory practices
brought under the Act, the petitioner must first establish, by a preponderance of the evidence, a
prima facie case of unlawful discrimination. Zaderaka, 131 Ill.2d at 179-80. Only then must the
employer articulate a legitimate, nondiscriminatory reason for its actions. Id. at 179. The
Commission found that Michel failed to establish a prima facie case of harassment because, even
accepting all of his allegations as true, the dispatchers’ failure to answer his calls was not so severe
or pervasive as to constitute a term or condition of his employment. Further, Michel was not denied
his safety and attendance bonus, so he was unable to show any adverse action by his employer.
Accordingly, Michel was unable to establish a prima facie case of harassment or retaliation. MV
Transportation’s credibility in refuting the allegations was irrelevant and the Commission did not
commit reversible error by not addressing it.
¶ 42 Consolidation of Charges
¶ 43 Michel contends the Commission ignored its own order to consolidate his three charges.
Specifically, he notes that the Commission issued three separate orders—one on April 30, 2019
and two on June 6, 2019—which do not reference each other and were not decided by the same
three commissioners. He contends that because the Commission ignored its own order, the June 6,
2019 orders are “tainted by prejudice” and asks us to vacate them and remand so that the
Commission can consolidate the charges.
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¶ 44 We note that Michel mischaracterizes the Commission’s March 13 order. The Commission
did not agree to consolidate his charges, but agreed they would be reviewed by the same panel.
That the three orders were separately issued and do not reference each other is of no import.
¶ 45 Further, Michel presents no evidence showing his charges were not reviewed by the same
panel. The Commission has two panels—Panel A and Panel B. Each has three commissioners.
https://www2.illinois.gov/sites/ihrc/about/Meetings/Pages/default.aspx (visited July 1, 2020). The
panel members can change when a commissioner leaves the Commission, but the panel—whether
Panel A or Panel B—remains the same. The two June 9, 2019 orders were decided by the same
three panel members. The April 30, 2019 order was decided by two of the three same panel
members that decided the June 9, 2019 orders. That one panel member changed between April and
June is not evidence that a different panel, whether Panel A or Panel B, reviewed the charge.
¶ 46 Moreover, without a showing to the contrary, we presume state administrators “ ‘are
assumed to be [individuals] of conscience and intellectual discipline, capable of judging a
particular controversy fairly on the basis of its own circumstances.’ ” Arvia v. Madigan, 209 Ill.
2d 520, 541 (2004) (quoting United States v. Morgan, 313 U.S. 409, 421 (1941) (“we will not
presume, as plaintiff does, that the Secretary of State’s hearing officers are necessarily biased”)).
As noted, the ultimate burden of persuasion remains on Michel, the petitioner, throughout the
proceeding. Zaderaka, 131 Ill.2d at 179. Absent evidence that the Commission ignored its order
to have the same panel decided all three charges or was otherwise biased, we find no basis for
vacating the June 6, 2019 orders affirming the dismissals of his charges.
¶ 47 Affirmed.
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