Owens v. Department of Human Rights , 403 Ill. App. 3d 899 ( 2010 )

SIXTH DIVISION
August 13, 2010
No. 1-09-0908
NICK OWENS, )
)
)
Petitioner-Appellant, ) Petition for Review of
) An Order of the Chief Legal
v. ) Counsel of the Illinois
) Department of Human
Rights.
THE DEPARTMENT OF HUMAN RIGHTS; )
MICHAEL LIEBERMAN, Chief Legal Counsel )
Designee of the Department of Human Rights; ) No. 2005 CA 2283
and EXXON MOBIL CORPORATION, )
)
Respondents-Appellees. )
JUSTICE JOSEPH GORDON delivered the opinion of the court:
On February 2, 2005, petitioner-appellant, Nick Owens, filed a charge of discrimination
with the Illinois Department of Human Rights (hereinafter, sometimes, the Department) alleging
that his employer, Exxon Mobil Corporation (hereinafter Exxon Mobil) discriminated against
him by issuing a written reprimand to him on December 13, 2004, even though he had been
performing his duties in a satisfactory manner, based on his race (African American) (count A)
and his age (55) (count B), in violation of section 2-102(A) of the Illinois Human Rights Act
(Human Rights Act) (775 ILCS 5/2-102(A) (West 2004)). On February 23, 2005, Owens filed
an amended charge adding that on February 15, 2005, despite satisfactorily performing his duties,
he received a second written reprimand because of his race (count C) and age (count D), in
violation of section 2-102(A) of the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)), and
further in retaliation for filing the subject discrimination charge (count E), in violation of section
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No. 1-09-0908
6-101(A) of the Act (775 ILCS 5/6-101(A) (West 2004)). On June 27, 2005, Owens filed a
second amended charge, adding that on or about April 12, 2005, Exxon Mobil subjected him to
unequal terms and conditions of employment when it refused to grant his request for tuition
reimbursement based upon his race (count F), his age (count G), and in retaliation for his filing
the subject charge (count H).
After conducting an initial investigation, on August 3, 2007, the Department of Human
Rights issued a notice of dismissal for lack of substantial evidence as to all eight counts of
petitioner’s charge. On January 22, 2009, however, the chief legal counsel of the Department of
Human Rights vacated the dismissal order and reversed for further investigation into all counts.
Upon further investigation, the Department of Human Rights issued a second order of dismissal,
again finding that Owens had failed to present substantial evidence in support of his charge. This
time, the chief legal counsel agreed with the findings of the Department and sustained the
decision of the Department to dismiss petitioner’s charge. Owens now appeals.
On appeal, Owens contends that the chief legal counsel of the Department of Human
Rights abused his discretion when he sustained the decision of the Department to dismiss his
discrimination charge, since he presented substantial evidence of discrimination. Owens also
contends that the substantial evidence standard as articulated under section 7A-102(D)(2) of the
Human Rights Act (775 ILCS 5/7A-102(D)(2) (West 2004)) is unconstitutionally vague. For the
reasons that follow, we affirm.
I. BACKGROUND
The undisputed facts establish that Owens has been employed by Exxon Mobil’s Cicero
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Regional Distribution Center since 1977 and that at the time of the incident he was employed as
a warehouse operator.
A. Owens’ Discrimination Charge
On February 2, 2005, Owens filed a two count charge of discrimination with the
Department. In count A, Owens alleged that on December 13, 2004, he was subjected to
discrimination by Exxon Mobil on the basis of his race (African American), in violation of
section 2-102(A) the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)). In count B,
Owens alleged that on that same date, he was subjected to discrimination by Exxon Mobil on the
basis of his age (55 years old) violation of section 2-102(A) the Human Rights Act (775 ILCS
5/2-102(A) (West 2004)). In support of both counts A and B, Owens stated that although on the
date in question he had been performing his duties in a satisfactory manner, his shift supervisor,
Melvin Koziol, issued a written reprimand to him for “excessive loading time and loading
errors.” Owens further stated that although two similarly situated younger, white employees,
Carl Pratscher, and Bryan Wright, had been cited for excessive loading time and loading errors,
they were not given written reprimands for their conduct.
On February 23, 2005, Owens filed an amended charged, reiterating his earlier claims,
but adding three more counts, C, D, and E. In count C, Owens alleged that on February 15,
2005, he was discriminated against on the basis of his race when he was issued a second written
reprimand by shift supervisor Koziol in violation of section 2-102(A) of the Human Rights Act
(775 ILCS 5/2-102(A) (West 2004)). In count D, Owens alleged that this same incident was a
result of age discrimination, and violated section 2-102(A) of the Human Rights Act (775 ILCS
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5/2-102(A) (West 2004)). Finally, in Count E, Owens alleged a claim of retaliatory
discrimination pursuant to section 6-101(A) of the Act (775 ILCS 5/6-101(A) (West 2004)),
contending that the February 15, 2005, written reprimand was issued to him in retaliation for his
filing of the subject charge.
In support of counts C through E, Owens alleged the following facts. According to the
second written reprimand, Owens had failed to perform his job duties by failing to include eight
drums of “Telura 622” when loading a customer order on January 7, 2005. Owens, however,
denied failing to perform his job duties on that date and explained that the eight drums of “Telura
622 ” “may have been added to [his] order after [he] had gotten [his] shipping notice.” Owens
averred that in the past there had been instances where subsequent changes made to a shipment
order were not reflected on the copy of the shipping notice given to a warehouse operator.
Owens further alleged that two similarly situated younger white employees, Pratscher and
Wright, had been treated differently under similar circumstances. Owens further alleged that on
February 15, 2002, he engaged in a protected activity by filing a discrimination charge with the
Department of Human Rights and that the issuing of the second written reprimand followed this
protected activity “within such a period of time so as to raise an inference of retaliatory motive.”
On March 25, 2005, Exxon Mobil filed a verified response denying the material allegations of
Owens’ charge.
On June 27, 2005, Owens filed a second amended charge, realleging counts A through E
of his earlier charges, but adding three more counts, F, G, and H. In count F, Owens alleged that
on or about April 12, 2005, Exxon Mobil subjected him to unequal terms and conditions of
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employment when it refused to grant his request for tuition reimbursement based upon his race,
in violation of section 2-102(A) of the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)).
In count G, Owens alleged that, since at the time of this request, he was 55 years old, the denial
of tuition reimbursement was also a result of age discrimination, in violation of section 2-102(A)
of the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)). Finally, in count H, Owens
alleged a claim of retaliatory discrimination pursuant to section 6-101(A) of the Act (775 ILCS
5/6-101(A) (West 2004)) claiming that Exxon Mobil refused to grant him tuition reimbursement
in retaliation for his filing of the subject discrimination charge. In support of these additional
claims, Owens alleged that although on April 12, 2005, he submitted a request for tuition
reimbursement to his shift supervisor, Koziol, since then “no action has been taken on his
request.” Owens further stated that he “believe[s]” that other similarly situated, non-African-
American employees under the age of 40, namely Wright, Gary Wantroba and others, have been
granted tuition reimbursements. On August 10, 2005, Exxon Mobil filed a verified response to
Owens’ amended charge denying the material allegations.
B. The Department’s First Investigation and Dismissal
The Department of Human Rights conducted an investigation and based on its findings,
on August 3, 2007, dismissed all counts of Owens’ charge for lack of substantial evidence. In
support of its dismissal, the Department of Human Rights attached voluminous records of its
investigation. Those records reveal that during its investigation, an investigator for the
Department of Human Rights interviewed several witnesses, including (1) the petitioner, Owens,
(2) two retired Exxon Mobil employees (Mike Sanders and Ernest Hampton); (3) one current
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Exxon Mobil employee (mechanic Jessee Thomas): (4) two members of Exxon Mobil
management at the Cicero Regional Distribution Center (shift supervisor Melvin Koziol, and
operations manager, Patrick O’Reilly); and (5) Exxon Mobil’s in-house attorney, Judith Jansen.
The investigator also reviewed voluminous documents provided by the parties, including: (1) a
letter of reprimand from Koziol to Owens dated February 15, 2005; (2) a group of loading error
investigation reports; and (3) a group of general disciplinary documents for Exxon Mobil
employees at the Cicero Regional Distribution Plant.
With respect to counts A and B of Owens’ charge, the Department’s investigator
reported the following evidence. When interviewed, Owens stated that on December 13, 2004,
his shift supervisor Koziol issued a written warning to him for “working too slow and making
excessive errors.” Although Owens admitted that he sometimes works slower than other
employees, he explained that he does so because “he is checking to make sure he is not making
errors.” Owens further stated that he believes his work performance is the same as that of other
similarly situated warehouse operators, namely Wright (non-African-American, 23 year old),
Steven Johnson (non-African-American, 49 years old), Michael Panozzo (non-African-
American, 26 years old), Pratscher (non-African-American, 47 years old) and Daniel Hanson
(non-African- American, 44 years old). According to Owens, however, these other employees
have not received written reprimands for errors in their performance. Owens also stated that he
believes that he was discriminated against because of his age as Exxon Mobil has a policy under
which an employee may retire when he or she turns 55 and accumulates 15 years of service with
the company. Owens stated that one month after he turned 55 years old, he was issued a written
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No. 1-09-0908
warning.
According to the Department’s investigator, Owens allegations were corroborated by
statements from two retired and one current Exxon Mobil employee. Specifically, during an
interview with the Department’s investigator, retired filler1, Mike Sanders (African American, 60
years old) stated that “race discrimination was going on” at the plant. Sanders explained that
operations manager Patrick O’Reilly (non-African-American, 48 years old) “is a racist,” who
treats African American employees “unfairly” and likes to discipline them when they should not
be disciplined.
Retired forklift driver2, Ernest Hampton (African American, 68 years old) similarly told
the Department’s investigator that he believed that “race discrimination and a whole bunch of
other things [were] going on” at the plant, but he did not elaborate.
Finally, mechanic Jesse Thomas (African American, 43 years old), told the Department’s
investigator that O’Reilly was “a racist,” and that he referred to African Americans as “niggers”
and Mexican employees as “wetbacks.” Thomas also stated that O’Reilly was always
disciplining African American individuals for things they “did and did not do,” commenting
“I’m going to get that nigger.” According to Thomas, several individuals complained to
management and human resources about O’Reilly’s racial slurs. As a result, between 2001 and
2004, Exxon Mobil conducted an investigation into allegations of racial discrimination.
Although during this investigation several managers initially attested to O’Reilly’s
1
The record reveals that Sanders retired three years prior to the instant litigation.
2
The record reveals that Hampton retired from Exxon Mobil in May 1995.
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No. 1-09-0908
discrimination against African American employees, according to Thomas, after upper
management spoke to them, they were “scared off” and they refused to testify about O’Reilly’s
conduct.
On the other hand, the Department’s investigator reported that contrary to Owens’
allegations, management at Exxon Mobil’s Cicero plant denied having disciplined Owens
because of his race and/or age. First, shift supervisor Koziol (non-African-American, 54) told
the Department investigator that on December 13, 2004, he issued Owens a “written counseling”
and not a “written reprimand,” and that there is a difference between the two. Koziol explained
that he issued the “written counseling” to Owens because Exxon Mobil received several
complaints on an order that Owens loaded on August 5, 2004. Specifically, Koziol stated that
while the customer ordered 26 cases of “Mobil 1" products, 11 pails of “Mobilux EP2,” 5 pails
of “Mobil ShC 632" and 4 pails of Vacuoline, it received 25 cases of “Mobil 1” products; 12
pails of “Mobilux EP2,” 4 pails of “Mobil ShC 632,” 3 pails of Vacuoline, and 1 pail of
“something without a label.”
In addition, operations manager, Patrick O’Reilly told the Department investigator that
Owens had made several mistakes on his orders prior to being issued the December 13, 2004,
“written counseling.” O’Reilly explained Exxon Mobil’s procedure with issuing “written
counseling” to its employees. According to O’Reilly, anytime Exxon Mobil receives a customer
complaint, it investigates to determine whether the complaint is legitimate. If the company
determines that the complaint is legitimate, the employee receives a “loading error” in his or her
personnel file. Once an employee has three errors in his or her file, the employee receives a
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No. 1-09-0908
record of “counseling.”
With respect to the other similarly situated employees that Owens alleged were treated
differently from him, O’Reilly explained that: (1) Wright and Johnson had not been issued any
“counseling” or warnings because they had no loading errors; (2) Panozzo had been issued a
warning for unsafe conduct on a forklift and ordered to participate in one loading error coaching
session but had not been given “written counseling” since his file did not contain three loading
errors; (3) Pratscher received a coaching session for a loading error, but no “counseling” since he
did not commit three loading errors; and (4) Hanson received reprimands “for other things.”
The Department’s investigator further reported that Exxon Mobil’s counsel, Judith Jansen
(a non-African-American, 63 years old), confirmed that if an Exxon Mobil employee has
completed 15 years of service by the time he or she reaches the age of 55, that employee can
retire. Jansen explained, however, that this is a benefit plan and not a company policy and that,
as such, it had nothing to do with Owens’ “written counseling” record.
In addition, the Department’s investigator reported that Exxon Mobil’s disciplinary
documents disclosed that similarly situated employees had also been issued “counseling,”
reprimands, warnings and suspensions, and that they had not been treated differently than
Owens. The investigator summarized his analysis of these disciplinary documents in two charts:
(1) the first chart showing all the disciplinary actions taken against Owens and his coworkers in
the two years prior to his filing of the instant charge, and (2) the second chart summarizing all
loading error investigation reports at the plant since 1999.
CHART 1:
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Date Name Discipline Reason Age Race
08/28/03 Novakowski Counseling Failure to wear ppe 47 White
08/29/03 M Panozzo Letter of Unsafe operation of 26 White
Reprimand forklift
08/29/03 Wantroba Suspension Truck spillage 36 White
09/15/03 T Panozzo Counseling Unproductive 50 White
insubordination
12/15/03 Solis Letter of Absenteeism 25 Hispanic
Warning
02/96/04 Pollack Counseling Absenteeism 54 White
03/23/04 Whittier Counseling Loading Errors 37 African
America
n
04/13/04 Washington Suspension Dishonesty related 36 African
to absence America
n
04/22/04 Drada Counseling Unacceptable 55 White
absence
05/03/04 Bustos Letter of Product 47 Hispanic
Reprimand contamination
08/13/04 Pollack Counseling Unacceptable 54 White
absenteeism
10/21/04 Hansen Suspension Refusal to report to 45 White
work
12/07/04 Owens Counseling Loading errors 55 African
(petitioner) America
n
CHART 2:
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No. 1-09-0908
Date Name Discipline Reason Age Race
11/16/05 Hanson Coached Load error 44 White
10/28/04 M. Panozzo Coached Load Error 26 White
04/19/04 Wright Error in file Load Error 23 White
08/29/03 M. Panozzo Letter of Unsafe on forklift 44 White
reprimand
09/13/01 M. Panozzo Suspension Error loading 44 White
forklift
01/29/02 Johnson Suspension Product mix error 49 White
12/17/01 Johnson Letter of Product mix error 49 White
Reprimand
08/24/99 Sanders Suspension Unsafe work N/A White
practices
06/15/04 Pratscher Error on file Loading error 47 White
03/23/05 Pratscher Coached Not following 47 White
loading procedures
Based on the aforementioned investigation report, the Department of Human Rights
recommended that counts A and B of Owens’ charge be dismissed.
With respect to counts C, D, and E, wherein Owens alleged that on February 15, 2005,
Koziol issued him a second written reprimand based upon his age, race and in retaliation for his
filing of the instant charge, the Department’s investigator reported the following evidence.
During his interview with the Department investigator, Owens stated that Koziol issued him a
written reprimand “for his performance and for a loading error,” informing Owens that he had
failed to include a number of drums in an order. Owens averred that he could not be certain
whether he failed to include those drums in the customer order or whether the customer made
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changes to the order after he had already loaded it.
On the other hand, Koziol denied Owens’ claim that he had been issued this second
written reprimand as a result of his age or race or in retaliation for his filing the instant
discrimination charge. In fact, Koziol averred that he was not even aware that Owens had filed a
discrimination charge against Exxon Mobil. Rather, Koziol told the investigator that he issued
Owens a “written warning” for his poor performance. Koziol explained that after Owens loaded
an order for a customer on January 7, 2005, that customer contacted Exxon Mobil and indicated
that it had not received any of the eight drums it had ordered. According to Koziol, after the
warehouse supervisor counted the drums in the warehouse, he discovered that the warehouse had
eight additional drums, which verified that Owens, who was the warehouse operator that day,
had failed to ship them to the customer.
According to the Department’s investigator, Koziol’s statement was corroborated by a
letter from Koziol to Owens dated February 15, 2005, in which Koziol informed Owens that he
was being issued a “letter of reprimand” as a “disciplinary measure” for his “failure to perform
[his] job duties.” That letter states that Owens’ lack of attention to his assigned job task resulted
in “customer services failures” and “monetary loss” to Exxon Mobil. The letter specifically
notes that Owens was being reprimanded because in filling a customer order on January 7, 2005,
he failed to put eight drums of “Telura 622" in that order. The letter also notes that Owens has
previously received a record for “counseling,” on June 25, 2004, for doing a product conversion
that converted inventory to an incorrect product name, and subsequently on January 25, 2004, for
multiple loading errors on four different customer orders. The letter further states that in the past
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year, Koziol had attempted to coach Owens on several occasions regarding his work
performance, lack of productivity, poor loading technique, loading errors and unsafe practices.
The letter further advised Owens:
“It is your responsibility to follow supervisor instruction, safe work practices and job
procedures, as well as completing assignments in a timely order. Failure to meet these
requirements will result in further disciplinary action, up to and including termination of
your employment from [Exxon Mobil.]”
Based on the foregoing investigation report, the Department of Human Rights
recommended that counts C, D, and E of Owens’ charge be dismissed.
With respect to counts F, G, and H, wherein Owens alleged that on or about April 12,
2005, he was denied equal terms and conditions of employment when Koziol failed to honor his
request for tuition reimbursement for several classes, later determined to be air conditioning,
heating and ventilation classes, he had taken at a local community college, the Department’s
investigator reported the following facts. Owens stated that after he submitted his request to
Exxon Mobil for reimbursement of his tuition on January 27, 2005, he was denied that request
without any written explanation, while, he believes, other similarly situated employees, including
Wright and Wantroba, were granted similar requests. Owens admitted that he does not know for
certain whether Wright and Wantroba were in fact reimbursed.
When questioned about this incident by the Department investigator, Koziol admitted that
Owens requested and was denied tuition reimbursement, but he stated that the reason was
nondiscriminatory. Koziol explained that Owens was denied reimbursement because his
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application did not meet Exxon Mobil’s tuition reimbursement policy, which requires that an
employee be preapproved for tuition reimbursement before taking the classes. According to
Koziol, Owens submitted a request for tuition reimbursement after already having taken the
classes.
According to the Department’s investigator, Koziol’s statements were corroborated by
the receipts for those classes submitted by Owens to Exxon Mobil, which reveal that the classes
were taken over a year before Owens filed his request for reimbursement. They were also
corroborated by Exxon Mobil’s written tuition reimbursement policy. Under that policy Exxon
Mobil promised to “reimburse employees for actual cost for registration, tuition, regular
instruction fees and required textbooks,” if the employees qualified for reimbursement. To
qualify for reimbursement, the courses taken must have been “designed to maintain or improve
the employee’s job skills and increase work related competencies or capabilities,” and must have
been taken at an “accredited university, college or vocational institution for a grade.” Most
importantly, the policy mandated that “management *** approve the employee’s application for
a specific course of study and the educational institution before each enrollment.” (Emphasis
added.)
Koziol also stated that contrary to Owens’ allegations, Wright and Wantroba were not
reimbursed tuition for classes they had taken. In fact, Koziol stated that Exxon Mobil has not
reimbursed anyone for tuition expenses at the plant in the past three years. Wright and Wantroba
corroborated Koziol’s statements. While Wright indicated that he had never requested or
received tuition reimbursement from Exxon Mobil, Wantroba stated that although he had
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requested reimbursement on one occasion, that reimbursement was not granted because the class
Wantroba took did not qualify for tuition reimbursement.
Based on the aforementioned investigation, the Department of Human Rights found that
there was insufficient evidence to permit Owens to proceed with counts F, G and H of his
discrimination charge. Accordingly, the Department recommended that Owens charge be
dismissed in its entirety.
C. The Chief Legal Counsel’s Reversal of the Department’s Dismissal
On January 22, 2008, the chief legal counsel of the Department of Human Rights entered
an order vacating the Department’s dismissal of the charge and remanding the matter to the
Department for further investigation. With respect to counts A, B, C, D, and E of the charge, the
chief legal counsel directed the Department to determine the following: (1) Exxon Mobil’s
written discipline policy; (2) the difference between a “written counseling” and a “written
warning” and/or “written reprimand”; and (3) specifically, what Exxon Mobil’s discipline policy
states are the consequences of loading errors.
With respect to counts F, G, and H, the chief legal counsel directed the Department to
determine: (1) the date Owens submitted his application for tuition reimbursement; (2) Exxon
Mobil’s criteria in determining whether courses can be reimbursed; (3) the exact dates Owens’
courses started and whether the list of those courses was submitted to Exxon Mobil prior to the
tuition reimbursement application process; and (4) the exact date when Owens’ request for
tuition reimbursement was denied.
D. The Department’s Second Investigation and Dismissal
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On July 10, 2008, the Department completed an addendum investigation report, based
upon which it again dismissed all counts of Owens’ discrimination charge. In conducting its
second investigation, the Department investigator reinterviewed Owens and Koziol, as well as
reviewed several additional documents provided by the parties, including, inter alia: (1) an
excerpt from Exxon Mobil’s plant rules; (2) a letter from Exxon Mobil to the Department of
Human Rights; (3) a group of loading error investigation reports for Owens; and (4) Owens’
tuition refund application together with a group of verification for tuition payment forms.
With respect to counts A through E, the Department’s addendum investigation report
disclosed the following evidence pertinent to the Department’s dismissal of those counts. When
reinterviewed regarding Exxon Mobil’s disciplinary policy, shift supervisor Koziol stated that
both the terms of Owens’ employment and any disciplinary actions to be taken against him are
governed by the terms of the collective bargaining agreement, as well as the Cicero plant’s
disciplinary rules.
In a letter to the Department dated February 13, 2008, Exxon Mobil explained the
contents of the collective bargaining agreement as well as the Cicero plant’s disciplinary rules.
According to the bargaining agreement, with respect to discipline, if an “employee alleges his/her
discharge was unjust,” he or she has 10 working days to file a grievance regarding the discharge.
After the employee files a grievance, the company must inform the union within three working
days of the reason for a disciplinary suspension or a discharge and if the union feels there was no
just cause for the company’s action, the case may be processed under the grievance and
arbitration procedure. In addition, according to the collective bargaining agreement, the
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company and the union agree to “abide by all valid and applicable non-discrimination laws.”
Finally, under the agreement “[t]he company retains all rights of management resulting from the
ownership of the plant or pertaining to the operation of the business, except to the extent that
such rights are limited by the provisions of this Agreement.” According to Exxon Mobil, under
the collective bargaining agreement, with respect to discipline, the agreement provides only that
if the employee believes a suspension or discharge is without “just cause,” that employee can file
a grievance, and if the grievance is not resolved, the union can request arbitration. The
agreement places no other limitations on management’s right to operate the business, which
includes the right to set standards for work performance and work place behavior and to
administer discipline where employees fail to meet standards of performance and behavior.
In this vein, according to Exxon Mobil, the Cicero Regional Distribution Center
management has issued plant disciplinary rules. Those plant rules first state that because
“personal discipline and proper standards of conduct are necessary to protect the health and
safety of all employees,” any employee “who fails to maintain at all times proper standards of
conduct or who violates any of the plant rules shall subject [himself or herself] to appropriate
disciplinary action up to and including termination of employment.” Although the plant rules
specify certain standards of conduct, such as procedures for reporting injuries or excusing
absences, and the ban on “horseplay,” sexual harassment, and the use of cell phones inside the
plant, they do not include or elaborate on the disciplinary procedure or consequences resulting
from loading errors. The plant rules do, however, end with the following statement:
“These rules are not intended to be all inclusive, the Company may establish additional
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rules, and supervisors may set up rules deemed necessary by operational requirements.
Any employee who fails to maintain, at all times, proper standards of conduct, or who
violates any of the [above] rules, may be subjected to disciplinary action, which may
include termination.”
In its letter to the Department, Exxon Mobil also responded to the chief legal counsel’s
request that Exxon Mobil explain that the difference between a “written counseling” and a
“written warning.” According to Exxon Mobil, “the difference between ‘counseling’ and
‘warning’ is a universally understood concept in labor relations,” under which the “objective of
‘counseling’ is to change an employee’s behavior,” while the “objective of ‘warning’ is
discipline.”
According to Exxon Mobil, “counseling” or “coaching” an employee on his performance
is not a disciplinary action. A “counseling” may or may not be reported in the employee’s
personnel file. Often it consists merely of informal discussions between supervisor and
employee wherein “the employee is advised that certain behavior does not meet the employer’s
standards and that specified remedial actions are needed.” Since most employees respond
favorably to informal “counseling” and are fully capable of avoiding or correcting their errors,
“verbal counseling” is generally not considered discipline. However, should “verbal counseling”
prove ineffective, a formal counseling (i.e., “written counseling”) session may follow. When a
written memo detailing a “counseling” session is placed in an employee’s personnel file, it is
intended to provide the employee with “fair notice of the employer’s specific requirements,” as
well as to lend “formality to the session, thereby increasing its significance to the employee.”
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On the other hand, according to Exxon Mobil, a “letter of reprimand” or a “written
warning,” is a “disciplinary document that informs the employee that he has failed to make the
necessary improvements in performance or behavior and that if he continues to perform
unsatisfactorily he may be subject to more severe discipline, up to and including discharge.”
According to Exxon Mobil’s letter to the Department, on December 13, 2004, Owens was
given a “written reprimand” because he had accumulated three prior loading errors for poor
performance.3 In support of this contention, Exxon Mobil provided the Department with a copy
3
We note that the record is somewhat unclear as to what type of document Owens was
issued on December 13, 2004. While Owens alleged that he was given a “written reprimand,”
both shift supervisor Koziol and operations manager O’Reilly initially told the Department’s
investigator that Owens was merely issued a “written counseling.” The record also reveals that
in its initial response to the Department’s investigator Exxon Mobil explained that while Owens
was given a “written reprimand” on December 13, 2004, that reprimand was later reduced to a
“written counseling” after Owens filed a grievance with Exxon Mobil and prior to his filing of
the instant discrimination charge with the Department of Human Rights. However, during the
Department’s second investigation, in a letter to the Department, Exxon Mobil apparently
conceded that Owens was given a “written reprimand” on December 13, 2004. In that vein,
during this second investigation, shift supervisor Koziol changed his prior statement to the
Department’s investigator now admitting that Owens was in fact given a “written reprimand,”
and not a “written counseling.” Since the Department’s investigator, the chief legal counsel and
both parties on appeal seem to agree that on December 13, 2004, Owens was a “written
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of several documents related to these three loading error investigation reports, dated November
1, 2004, October 12, 2004, and December 7, 2004. Those documents revealed that Owens first
received “verbal counseling” for a loading error on June 25, 2004, as a result of his failure to add
a pallet onto his loading truck and as a result of his inability to fill the order in the requisite
amount of time. Owens next received “verbal counseling” in October, after his failure to fill a
customer order dated October 7, 2004. That order requested five cases of “Mobil Grease CM-S,”
but the customer received none. The reports further revealed that Owens received another
“verbal coaching session” in November as a result of his failure to properly load a customer
order dated October 29, 2004. Although in that order the customer requested 1,092 cases of
“Mobil 1 5W30,” it received only 936 of those cases.
As a result of these three prior loading errors, which were followed by “verbal
counseling” sessions, Owens was given a “written reprimand” on December 13, 2004, after a
customer complained regarding an order he loaded on August 5, 2004. While that customer
order requested 26 cases of “Mobil 1" products, 11 pails of “Mobilux EP2,” 5 pails of “Mobil
ShC 632” and 4 pails of Vacuoline, the customer received 25 cases of “Mobil 1” products; 12
pails of “Mobilux EP2,” 4 pails of “Mobil ShC 632,” 3 pails of Vacuoline; and 1 pail of
“something without a label.”
Based upon the aforementioned additional evidence, as well as the information gathered
during its initial investigation, the Department found that Owens had not presented substantial
reprimand,” we have no reason to deviate from this conclusion and therefore treat the “written
reprimand” as such.
20
No. 1-09-0908
evidence so as to support the allegations in counts A through E of his charge.
With respect to counts F, G, and H, wherein Owens alleged he had been denied equal
terms and conditions of employment when Exxon Mobil refused to grant him tuition
reimbursement on the basis of his race, age and in retaliation for his filing of the instant charge,
the Department’s addendum investigation report revealed the following additional evidence.
Upon being reinterviewed, Owens stated that in 2005 he submitted his paperwork requesting to
be reimbursed for air conditioning, heating and ventilation classes that he completed in 2002,
2003, and 2004.4 Owens stated that he did not request tuition reimbursement on those classes
earlier because prior to taking them he was told that he would not be reimbursed, since those
classes were not related to his job duties as a forklift driver. Owens explained, however, that he
took the classes anyway, paying for them out of pocket because in the future, he planned to bid
on a maintenance position at the plant. That position involved work with boilers.
Upon being reinterviewed, shift supervisor Koziol stated that Exxon Mobil does not keep
a record of denied requests for tuition reimbursement and does not have a record of the specific
date on which Owens requested reimbursement. Koziol reiterated that the reason for the denial
of Owens tuition reimbursement request was nondiscriminatory. According to Koziol, Owens
was denied reimbursement because the courses were not preapproved and because they did not
meet the criteria of the program, i.e., they were unrelated to his Owens’ job duties.
4
A group of verification for tuition payment forms along with an educational refund
application for approval form for Owens indicates that Owens took classes during the years 2002
through 2004, which totaled $3,352.
21
No. 1-09-0908
Based upon the foregoing, the Department dismissed counts F, G, and H of Owens’
charge. Owens subsequently filed a request for review by the chief legal counsel of the
Department.
E. The Chief Legal Counsel Affirms the Dismissal
On March 9, 2009, the chief legal counsel entered an order sustaining the dismissal of all
eight counts of Owens’ charge for lack of substantial evidence supporting claims of
discrimination. With respect to counts A and B, wherein Owens alleged that on December 13,
2004, he received a written reprimand on the basis of his race and age, the chief legal counsel
first found that such a “written reprimand” did not constitute an adverse employment action,
since Owens did and could not allege that this reprimand somehow “detrimentally affected” his
employment, such as through “loss of pay, loss of benefits, suspension, discharge etc.” Citing to
Mattern v. Eastern Kodak Co., 104 F.3d 702 (5th Cir. 1997), the chief legal counsel therefore
found that a claim of discrimination based upon the December 13, 2004, written reprimand was
not actionable under the Illinois Human Rights Act.
The chief legal counsel next found that even if this written reprimand could somehow
constitute an adverse employment action, the investigation failed to reveal substantial evidence
of a nexus between the written reprimand and Owens’ age/and or race. Rather, according to the
chief legal counsel, the Department’s investigation established that Owens had a history of
performance problems related to loading errors prior to December 13, 2004, and that he was
issued the written reprimand as a result of this history of poor performance. In addition, the chief
legal counsel noted that contrary to Owens’ allegations the Department’s investigation disclosed
22
No. 1-09-0908
that Exxon Mobil issued discipline to other employees for their poor performance. Among those
employees disciplined, the chief legal counsel noted: Hanson (white, 44), who received coaching
for loading errors; Panozzo (white, 26), who was coached and then suspended for loading errors;
Wright (white, 23), who was given a written error report in his personnel file for loading errors;
Johnson (white, 49), who was given a written warning and then suspended for product mix
errors; and Pratscher (white, 47), who was coached for not following loading procedures.
The chief legal counsel similarly found with respect to counts C, D, and E, that Owens
had failed to provide substantial evidence that he was issued the second written reprimand on
February 15, 2005, because of his race or age or in retaliation for filing the instant charge.
Rather, the Department’s investigation revealed that on or about January 7, 2005, Owens loaded
an order, the customer reported that it did not receive the complete order and Exxon Mobil
issued Owens the written reprimand for this error. Referring to its rationale with respect to
counts A and B, the chief legal counsel reiterated that the Department’s investigation disclosed
that Exxon Mobil similarly disciplined several warehouse operators not in Owens’ protected age
and/or race classes.
Finally, with respect to counts F, G, and H, the chief legal counsel found that the
investigation did not reveal substantial evidence that Exxon Mobil subjected Owens to unequal
terms and conditions of employment because of his age, race or in retaliation for filing the
subject charge when it refused to refund his tuition. Specifically, the chief counsel noted that the
tuition policy clearly states that management must approve the tuition reimbursement prior to
each enrollment in a class.
23
No. 1-09-0908
Owens now appeals, contending that the chief legal counsel’s decision to sustain the
dismissal of his charge constituted an abuse of discretion.
II. ANALYSIS
We begin by noting the well-established principles regarding discrimination charges
brought under the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2004)). This
Act prohibits “unlawful discrimination,” i.e., discrimination against a person on the basis of,
inter alia, his or her race, color, religion, national origin, ancestry, age, sex, marital status, or
handicap. 775 ILCS 5/1-102 (West 2004). The Act specifically defines the following conduct as
a civil rights violation in the employment context:
“For any employer to refuse to hire, to segregate, or to act with respect to
recruitment, hiring, promotion, renewal of employment, selection for training or
apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of
employment on the basis of unlawful discrimination ***.” 775 ILCS 5/2-102(A) (West
2004).
The Act also defines retaliation as a civil rights violation, noting:
“It is a civil rights violation for a person, or for two or more persons to conspire,
to:
*** Retaliate against a person because he or she has opposed that which he or she
reasonably and in good faith believes to be unlawful discrimination, sexual harassment in
employment or sexual harassment in higher education, discrimination based on
24
No. 1-09-0908
citizenship status in employment, or because he or she has made a charge, filed a
complaint, testified, assisted, or participated in an investigation, proceeding, or hearing
under this Act[.]” 775 ILCS 5/6-101(A) (West 2004).
When an employee files a discrimination charge against the employer pursuant to the
Illinois Human Rights Act with the Department of Human Rights, the Department must conduct
a full investigation of the allegations set forth in the charge and provide a written report of such
an investigation. 775 ILCS 5/7A-102(C)(1), (D)(1) (West 2004). After reviewing the
investigation report, the Department must determine whether there is substantial evidence that
the alleged civil rights violation has been committed. 775 ILCS 5/7A-102(D)(2) (West 2004).
Under the Act, substantial evidence is defined as 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 somewhat less than a preponderance.” 775 ILCS 5/7A-102(D)(2) (West 2004). If the
Department of Human Rights determines that there is no substantial evidence, the charge is
dismissed. 775 ILCS 5/7A-102(D)(2)(a) (West 2004). If the charge is dismissed by the
Department of Human Rights, petitioner may seek review by filing a request for review with the
chief legal counsel of the Department. 775 ILCS 5/7A-102(D)(2)(a) (West 2004).
The chief legal counsel’s order reviewing the dismissal is a final and appealable order
(775 ILCS 5/7A-102(D)(2)(a) (West 2004)), and petitioner may seek review of the chief legal
counsel’s order in the appellate court (775 ILCS 5/8-111(A)(1) (West 2004)). The standard of
review on appeal is whether the Department’s chief legal counsel abused his discretion.
Anderson v. Chief Legal Counsel, 334 Ill. App. 3d 630, 634 (2002); see also Welch v. Hoeh, 314
25
No. 1-09-0908
Ill. App. 3d 1027, 1034 (2000) (“we may not reweigh the evidence or substitute our judgment for
that of the Department. [Citation.] Our review is limited to deciding whether the chief legal
counsel's *** decision dismissing the claim *** is ‘arbitrary and capricious or an abuse of
discretion.’ [Citation.]”). A decision is arbitrary and capricious only if it “contravenes the
legislature’s intent, fails to consider a crucial aspect of the problem, or offers an impossible
explanation contrary to agency expertise.” Allen v. Lieberman, 359 Ill. App. 3d 1170, 1177
(2005); see also Deen v. Lustig, 337 Ill. App. 3d 294, 302 (2003), quoting LaSalle National Bank
v. City Suites, Inc., 325 Ill. App. 3d 780, 786 (2001), and citing Bodine Electric of Champaign,
v. City of Champaign, 305 Ill. App. 3d 431, 435 (1999) (“[a]n abuse of discretion is found when
a decision is reached without employing conscientious judgment or when the decision is clearly
against logic”).
Turning to the merits of the cause at bar, we initially note that on appeal Owens does not
challenge the dismissal of counts E through H of his discrimination charge. Owens only argues
that the chief legal counsel abused his discretion in finding that there was no substantial evidence
to support his claims of age and race discrimination based on the December 13, 2004, and
February15, 2005, written reprimands (counts A, B, C, and D).
Since Owens does not argue that the chief legal counsel erred in finding that there was a
lack of substantial evidence to support the claim that he was issued the February 15, 2005
reprimand in retaliation for filing the subject charge (count E) or the claim that Exxon Mobil
subsequently refused to grant his tuition reimbursement request because of his race or age or in
retaliation for filing the subject charge (counts F, G, H), he has forfeited his right to challenge the
26
No. 1-09-0908
dismissal of counts E through H. See 210 Ill. 2d R. 341(h)(7) (“Points not argued [in the
opening appellant’s brief] are waived and shall not be raised in the reply brief, in oral argument,
or on petition for rehearing”); see also In re K.T., 361 Ill. App. 3d 187, 206 (2005) (holding that
arguments not raised in appellant’s brief are forfeited); see also City of Grantie City v. House of
Prayers, Inc., 333 Ill. App. 3d 452, 462 (2002) (holding that “a court of review is entitled to have
the issues clearly defined with pertinent authority cited,” and “is not simply a depository in which
an appealing party may dump the burden of argument and research”). Therefore, by reason of
such forfeiture, any contention that by the denial of tuition reimbursement Exxon Mobil
somehow subjected Owens to unequal terms and conditions of employment can play no further
part in this appeal.
Accordingly, we turn to the Department’s dismissal of counts A through D of Owens’
charge. Owens first contends that the chief legal counsel erred in sustaining the Department’s
dismissal of counts A and B of his discrimination charge, wherein he alleged that shift supervisor
Koziol issued him a written warning on December 13, 2004, on the basis of his age and race.
Owens specifically argues that the chief legal counsel erred when it found that: (1) Exxon
Mobil’s written reprimand to him issued on December 13, 2004, did not constitute a cognizable
adverse employment action and (2) that Owens failed to present substantial evidence that other
similarly situated younger and white workers were treated differently. For the reasons that
follow, we disagree.
We first note that in Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 178-79
(1989), our supreme court recognized that in evaluating charges of discriminatory practices
27
No. 1-09-0908
brought under the Illinois Human Rights Act (now see 775 ILCS 5/2-102(A) (West 2004)), the
Department of Human Rights and the Illinois appellate 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)) and the Age Discrimination in
Employment Act of 1967 (AEDA) (29 U.S.C. §621 et seq. (1982)), as articulated by the United
States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d
668, 677, 93 S. Ct. 1817, 1824 (1973).
Under this three-prong 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 plaintiff. Zaderaka, 131 Ill. 2d at 178-79. Second, to rebut the
presumption, the employer must articulate, not prove, a legitimate, nondiscriminatory reason for
its decision. Zaderaka, 131 Ill. 2d at 179. 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. Zaderaka, 131 Ill. 2d at 179. Under this test, the
ultimate burden of persuasion remains on the plaintiff throughout the proceedings. Zaderaka,
131 Ill. 2d at 179.
To establish a prima facie case of employment discrimination, the petitioner must first
show that (1) he is a member of a protected class; (2) he was meeting his employer’s legitimate
business expectations; (3) he suffered an adverse employment action; and (4) the employer
treated similarly situated employees outside the class more favorably. Owens v. Department of
28
No. 1-09-0908
Human Rights, 356 Ill. App. 3d 46, 52 (2005).
To show that he suffered an adverse employment action, an employee must establish that
the employment action was “materially adverse” and not a “ ‘ “mere inconvenience or an
alteration of job responsibilities.” ’ ” Hoffelte v. Department of Human Rights., 367 Ill. App. 3d
628, 633 (2006), quoting Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002), quoting
Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). A materially adverse employment action
is “one that significantly alters the terms and conditions of the employee’s job.” Griffin v. Potter,
356 F.3d 824, 829 (7th Cir. 2004); see also Rhodes v. Illinois Department of Transportation, 359
F.3d 498, 504 (7th Cir. 2004) (“an adverse employment action is a significant change in the
claimant’s employment status”); Johnson v. Cambridge Industries, Inc., 325 F. 3d 829, 901, 902
(7th Cir. 2003) (noting that to establish an adverse employment action an employee “must show
some quantitative or qualitative change in the terms or conditions of his employment” or some
sort of “real harm”). Adverse employment actions include things such as hiring, denial of
promotion, reassignment to a position with significantly different job responsibilities, or an
action that causes a substantial change in benefits. See Rhodes, 359 F.3d at 504; see also
Hoffelte, 367 Ill. App.3d at 633, quoting Traylor, 295 F.3d at 788 (“ ‘ “[a] materially adverse
change might be indicated by a termination of employment, a demotion evidenced by a decrease
in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices that might be unique to a particular situation” ’
[Citation]”). However, “not everything that makes an employee unhappy is an actionable
adverse action. Otherwise, minor and even trivial employment actions that ‘an *** employee did
29
No. 1-09-0908
not like would form the basis of a discrimination suit.’ ” Smart v. Ball State University, 89 F.3d
473, 441 (7th Cir. 1996), quoting Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th
Cir. 1993).
Accordingly, it has repeatedly been held that oral and written reprimands alone do not
alter an employee’s terms or conditions of employment to such an extent so as to constitute an
adverse employment action for purposes of establishing a prima facie case of employment
discrimination. See, e.g., Lloyd v. Swifty Transportation , Inc., 552 F.3d 594, 602 (7th Cir.
2009) (“written reprimands without any changes in the terms and conditions of *** employment
are not adverse employment actions”); see also Atanus v. Perry, 520 F.3d 662, 675 (7th Cir.
2008) (holding that “letter or instruction” which admonished the employee that she was not
following guidelines did not rise to the level of adverse employment action where the employee
did not show any job consequences such as termination, demotion, or change in responsibilities);
see also Oest v. Illinois Department of Corrections, 240 F.3d 605, 613 (7th Cir. 2001) (holding
that oral and written reprimands received under progressive discipline system did not constitute
adverse employment action where they did not implicate any tangible job consequences); Grube
v. Lau Industries, Inc., 257 F.3d 723, 729 (7th Cir. 2001) (“unfair reprimands or negative
performance evaluations, unaccompanied by some tangible job consequence, do not constitute
adverse employment actions”); Krause v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001)
(same); Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir. 1998) (holding that “two counseling
statements” which admonished the employee to improve did not constitute adverse employment
action since employee failed to point to any immediate consequences of the reprimands, such as
30
No. 1-09-0908
change in an eligibility for promotion, denial of advantageous increase in responsibilities or
similar benefits); cf., Coolidge v. Consolidated City of Indianapolis, 505 F.3d 731, 735 (7th Cir.
2007) (explaining that two reprimands followed by termination constituted an employment
action).
In the present case, Owens nowhere alleged and the Department’s investigation nowhere
revealed any evidence suggesting that the December 13, 2004, “written reprimand” had any
significant effect on the terms or conditions of his employment, so as to constitute an adverse
employment action. In its letter to the Department, Exxon Mobil explained that a written
reprimand is a disciplinary document that merely tells an employee that he has failed to make the
necessary improvements in performance or behavior and that if he continues to perform
unsatisfactorily he may be subject to more severe discipline, up to and including discharge.
Consistent with this assertion, the December 13, 2004, written reprimand served only to warn
Owens about his unsatisfactory work performance. In this respect, in his own discrimination
charge, Owens asserted only that he was issued the reprimand for “working too slowly and for
making excessive errors.” Shift supervisor Koziol similarly stated that he issued the written
reprimand to Owens because of his poor performance. Accordingly, there was no evidence that
the written reprimand had any significant effect on the terms and conditions of Owens’ job, such
as the amount of his pay, his benefits or his work responsibilities. Therefore, Owens failed in his
burden to establish that the written reprimand constituted an adverse employment action. See,
e.g., Lloyd, 552 F.3d at 602 (holding that a loading driver who received two written reprimands
for loading gas from the wrong supplier failed to establish a prima facie case of employment
31
No. 1-09-0908
discrimination since “written reprimands without any changes in the terms and conditions of his
employment are not adverse employment actions”); see also Atanus, 520 F.3d at 675 (holding
that employee had failed to establish that a “letter or instruction” which admonished her that she
was not following company guidelines constituted an adverse employment action where the
employee did not show that the letter was followed by any significant consequences to her
employment, such as termination, demotion, or change in responsibilities): see also Sweeney,
149 F.3d at 556-57 (holding that employee failed to establish that “two counseling statements”
which admonished him to improve constituted an adverse employment action since employee
failed to point to any immediate consequences of the reprimands, such as change in an eligibility
for promotion, denial of advantageous increase in responsibilities or similar benefits).
Owens nevertheless argues on appeal that in finding that the written reprimand did not
constitute an adverse employment action, the chief legal counsel erroneously relied on Mattern v.
Eastern Kodak Co., 104 F.3d 702 (5th Cir. 1997). Owens argues that while in Mattern, the Fifth
Circuit held that only “ultimate employment decisions” are actionable adverse acts, the United
States Supreme Court invalidated that ruling in Burlington Northern & Santa Fe R.y. Co. v.
White, 548 U.S. 53, 165 L. Ed. 2d 345, 126 S. Ct. 2405 (2006). Owens, however,
misunderstands both the chief legal counsel’s decision as well as the decision in Burlington
Northern.
First, contrary to Owens’ assertion, the chief legal counsel did not cite Mattern for the
proposition that only “ultimate employment decisions” are to be considered actionable adverse
acts for purposes of discrimination claims. Rather, the chief legal counsel relied on Mattern for
32
No. 1-09-0908
the principle that to constitute an adverse employment action, the employer’s action must have
somehow “detrimentally affected” the employee. The chief legal counsel then found that the
Department’s investigation disclosed no evidence that the December 13, 2004, written reprimand
somehow detrimentally affected Owens, such as by way of “loss of pay, loss of benefits,
suspension, discharge, etc.” Based on the aforementioned, the chief legal counsel found that
Owens had failed to present a prima facie case of an actionable adverse employment action.
Moreover, Owens’ citation to Burlington Northern is entirely misplaced. In that case, the
United States Supreme Court held that claims of retaliation are not limited to actions that affect
the employee’s terms and conditions of employment. Burlington Northern, 548 U.S. at 63-67,
165 L. Ed. 2d at 357-59, 126 S. Ct. at 2412-15. In doing so, however, the Supreme Court
expressly distinguished claims of substantive employment discrimination, such as the one here,
from claims of retaliation, explaining that substantive discrimination claims are limited to
actions that affect the employee’s terms and conditions of employment. Burlington Northern,
548 U.S. at 64-67, 165 L. Ed. 2d at 357-59, 126 S. Ct. at 2412-15. As the Court in Burlington
Northern explained:
“The antidiscrimination provision seeks a workplace where individuals are not
discriminated against because of their racial, ethnic, religious, or gender-based status.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-801, [36 L. Ed.2d 668, 93 S.
Ct. 18117] (1973). The antiretaliation provision seeks to secure that primary objective by
preventing an employer from interfering (through retaliation) with an employee’s efforts
to secure or advance enforcement of the Act’s basic guarantees. The substantive
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No. 1-09-0908
provision seeks to prevent injury to individuals based on who they are, i.e., their status.
The antiretaliation provision seeks to prevent harm to individuals based on what they do,
i.e., their conduct.
To secure the first objective, Congress did not need to prohibit anything other
than employment-related discrimination. The substantive provision’s basic objective of
‘equality of employment opportunities’ and the elimination of practices that tend to bring
about ‘stratified job environments,’ [citation] would be achieved were all
employment-related discrimination miraculously eliminated.
But one cannot secure the second objective by focusing only upon employer
actions and harm that concern employment and the workplace. Were all such actions and
harms eliminated, the antiretaliation provision’s objective would not be achieved. An
employer can effectively retaliate against an employee by taking actions not directly
related to his employment or by causing him harm outside the workplace.” (Emphasis
omitted.) Burlington Northern, 548 U.S. at 63, 165 L. Ed. 2d at 356-57, 126 S. Ct. at
2412.
Accordingly, Owens’ citation to Burlington Northern in support of his substantive discrimination
claim is without merit.
In any event, even if we were to hold that the December 13, 2004, written reprimand was
an adverse employment action, a review of the record below reveals that contrary to Owens’
contention, the chief legal counsel did not abuse his discretion in finding that this reprimand was
34
No. 1-09-0908
not related to Owens race or age.
In that respect, we note that the record below reveals that Exxon Mobil issued Owens the
written reprimand in accordance with Exxon Mobil’s disciplinary policies because Owens had
accumulated a history of loading errors. The Department’s investigation report revealed that
Exxon Mobil’s plant rules provide that an employee who fails to maintain proper standards of
conduct or who violates any of the plant rules will be subject to appropriate discipline up to and
including termination. The rules further state that supervisors may establish additional rules
deemed necessary by operational requirements.
The Department’s investigation further revealed that prior to the December 13, 2004,
Owens had accumulated a history of performance problems related to loading. The
Department’s investigation disclosed that Exxon Mobil received and investigated several
complaints on orders loaded by Owens beginning in June 2004. Specifically the investigation
revealed that Owens first received “verbal counseling” for a loading error on June 25, 2004, as a
result of his failure to add a pallet onto his loading truck and as a result of his inability to fill the
order in the requisite amount of time. Owens next received a “verbal counseling” session in
October 2004, after his failure to fill a customer order dated October 7, 2004. That order
requested five cases of “Mobil Grease CM-S,” but the customer received none. Owens received
another verbal coaching session in November 2004 as a result of his failure to properly load a
customer order dated October 29, 2004. Although in that order, the customer requested 1,092
cases of “Mobil 1 5W30,” it received only 936 of those cases. Following these three loading
errors, Owens was issued the written reprimand on December 13, 2004, after an investigation
35
No. 1-09-0908
into a customer’s complaint regarding an order dated August 5, 2004, revealed that Owens had
failed to properly load that order. While that customer order requested 26 cases of “Mobil 1"
products, 11 pails of “Mobilux EP2,” 5 pails of “Mobil ShC 632" and 4 pails of Vacuoline, the
customer received 25 cases of “Mobil 1” products, 12 pails of “Mobilux EP2,” 4 pails of “Mobil
ShC 632,” 3 pails of Vacuoline, and 1 pail of “something without a label.” Accordingly, the
December 13, 2004, written reprimand was intended to warn Owens that he had failed to make
the necessary improvements in his performance and that if he continued to perform
unsatisfactorily he could be subject to more severe discipline.
Moreover, the Department’s investigation disclosed no evidence at all that similarly
situated employees outside Owens’ protected class were not similarly disciplined for similar
conduct. In fact, Exxon Mobil’s disciplinary records for the employees at the Cicero plant
revealed that Exxon Mobil issued written reprimands, “counseling,” and even suspensions to
younger, white employees in the plant for their poor work performance. For example, on August
29, 2003, Panozzo (white, 26 years old) received a letter of reprimand for operating a forklift
truck in an unsafe manner on company property. Similarly, on August 29, 2003, Wantroba
(white, 36) was suspended for truck spillage, and on August 28, 2003, Novakowksi (white, 47)
received “counseling” for failure to wear proper attire at the plant.
More importantly, Exxon Mobil’s loading error investigation reports disclosed that other
employees were disciplined for their poor performance in loading orders. For example, those
reports showed that in 2004 and 2005 both Hansen (white, 44 years old) and Panozzo (white, 26
years old) were “coached” for loading errors. Similarly, in 2004 both Wright (white, 23 years
36
No. 1-09-0908
old) and Pratscher (white, 47 years old) were given errors in their personnel files for loading
errors. In 2005, Pratscher was subsequently coached for not following loading procedures. In
addition, the reports reveals that both Panozzo and Johnson (white, 49 years old) received letters
of reprimand in 2003 and 2001, respectively, the first for unsafe use of a forklift and the latter for
a product mix error in loading. Both Panozzo and Johnson were also suspended for poor
performance (Johnson in 2002 for a product mix error, and Panozzo in 2001 for an error loading
the forklift). Accordingly, Owens cannot contend that other, younger and white employees
escaped discipline at the plant.
Owens nevertheless argues that he presented sufficient evidence of race- and age-based
discrimination because the reports from Exxon Mobil reveal that while younger white employees
were disciplined, unlike him, they were not given letters of reprimand for loading errors. Owens
specifically points out that Pratscher, Hanson and Panozzo only received coaching for their
loading errors, and Wright only had an error reported in his file for a loading error. For the
reasons that follow, we find this argument without merit.
We first note that when interviewed by the Department’s investigator, operations
manager O’Reilly explained that an employee would receive a “written counseling” followed by
a “written reprimand” or written warning only after he or she accumulated more than three
loading errors. In that respect O’Reilly stated that, contrary to Owens’ contention, Wright was
only given a loading error in his file, instead of a “counseling” or a warning, because prior to that
he had made no loading errors. O’Reilly also explained that Pratscher and Panozzo had not been
counseled or given written warnings with respect to loading errors since neither had committed
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No. 1-09-0908
three such errors.
More importantly, Owens himself fails to allege that anyone of the aforementioned
employees was in fact similarly situated to him. As explained above, the record demonstrates
that Owens had a history of loading errors and had received “verbal counseling” and “coaching”
for these errors before his December 13, 2004, “written reprimand.” However, in arguing that
the other employees did not receive “written reprimands,” Owens does not show or even allege
that they had a similar history concerning loading errors.
Accordingly, under the record below, it is apparent that the chief legal counsel did not
abuse his discretion in finding that there was a lack of substantial evidence showing that Exxon
Mobil issued Owens the December 13, 2004, reprimand on the basis of his age or his race.
Owens next contends that the chief legal counsel erred in sustaining the Department’s
dismissal of counts C and D of his discrimination charge because there was substantial evidence
that shift supervisor Koziol issued him a second “written reprimand” on February 15, 2005, on
the basis of his age and race. We disagree.
We initially note that for those same reasons already articulated above in the context of
the December 13, 2004, “written reprimand,” Owens has failed to show that the February 15,
2004, “written reprimand” standing alone sufficiently affected the terms and conditions of his
employment so as to constitute an adverse employment action. As with the December 13, 2004,
reprimand, here again, Owens presented no evidence to show that the second written reprimand
had any significant effect on the terms and conditions of his employment, such as his pay,
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No. 1-09-0908
benefits or work responsibility. See, e.g., Lloyd, 552 F.3d at 602; Atanus, 520 F.3d at 675;
Sweeney, 149 F.3d at 556-57.
More overridingly, even if the second “written reprimand” constituted an adverse
employment action, a review of the record below reveals that the chief legal counsel did not
abuse his discretion in finding that there was no evidence that the decision to issue the reprimand
was not related to Owens’ race or age. In fact, the Department’s investigation revealed that
Owens was issued the February 15, 2005, reprimand after committing a loading error on January
7, 2005, by failing to load any of the eight drums of “Telura 622” requested by the customer and
as a result of having committed numerous loading errors in the past. The customer order dated
January 7, 2005, showed that the customer did in fact order eight drums of “Telura 622.” Shift
supervisor Koziol told the Department investigator that after receiving and investigating the
customer’s complaint, the warehouse supervisor found that its inventory was over by eight drums
and that Owens was the warehouse operator in charge of loading that order. More importantly,
Owens himself never denied making the error, but simply stated that he did not know whether he
failed to include the drum in the order, explaining that the customer could have changed the
order after he loaded it.
In addition, the Department’s investigation revealed no evidence that similarly situated
employees outside of Owens’ protected class were not similarly disciplined for similar conduct.
As already articulated above, Exxon Mobil issued “written reprimands,” “counseling,” and
suspensions to numerous other employees for poor work performance. Accordingly, for all of
the aforementioned reasons, we find no abuse of discretion in the chief legal counsel’s dismissal
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No. 1-09-0908
of counts C and D of Owens’ discrimination charge. On appeal, Owens next contends that
the substantial evidence standard as articulated under section 7A-102(D)(2) of the Illinois
Human Rights Act (775 ILCS 5/7A-102(D)(2) (West 2004)) violates the requirements of due
process because it is unconstitutionally vague. Although not clearly explained in his brief,
Owens appears to argue that the statute is unconstitutional on its face as well as applied to him
because under the Act’s definition of “substantial evidence,” a petitioner does not know what
level of proof is necessary to sustain a charge of discrimination, and because it gives the chief
legal counsel unbridled discretion. For the reasons that follow, we disagree.
At the outset, we note that Owens has waived his right to raise this issue on appeal by
failing to raise it in the administrative proceedings below. In that respect, we note that “[i]n
general, issues or defenses not placed before the administrative agency will not be considered for
the first time on administrative review.” Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill.
2d 262, 278-79 (1998). Our supreme court has held that this general waiver principle applies to
constitutional challenges to a statute not raised before an administrative agency, unless the issue
being raised for the first time on appeal is a facial challenge to the statute. See Texaco-Cites
Service Pipeline Co., 182 Ill. 2d at 278-79, Carpetland U.S.A., Inc. v. Illinois Department of
Employment Security, 201 Ill. 2d 351, 396-97 (2002); cf., Arvia v. Madigan, 209 Ill. 2d 520,
527-28 (2004) (“A principal reason underlying this court’s preference that litigants assert a
constitutional challenge before the agency-notwithstanding the agency’s inability to rule on the
matter–is that it allows opposing parties a full opportunity to present evidence to refute the
constitutional challenge. Such an evidentiary record is indispensable because administrative
40
No. 1-09-0908
review is confined to the record created before the agency. [Citation.] A facial challenge to a
statute, however, presents an entirely legal question that does not require fact-finding by the
agency or application of the agency’s particular expertise”).
With respect to a vagueness challenge to a statute, our supreme court has made clear that
a petitioner will have standing to challenge the constitutionality of a statute on its face only if the
challenged language implicates first amendment rights. See People v. Jihan, 127 Ill. 2d 379,
385-86 (1989); see also People v. Ryan, 117 Ill. 2d 28, 34, (1987), quoting United States v.
Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713, 95 S. Ct. 710, 714 (1975). Since here,
Owens does not allege nor could he that the “substantial evidence” standard as articulated in
section 7A-102 of the Illinois Human Rights Act (775 ILCS 5/7A-102(D)(2) (West 2004))
implicates any first amendment concerns, he does not have standing to argue that the Act is
facially unconstitutional. See, e.g., Jihan, 127 Ill. 2d at 386 (holding that because no first
amendment issue was involved with respect to the constitutionality of the now repealed medical
practice act provisions making it a crime to practice midwifery without a license, defendant did
not have standing to argue that the statute might be vague as applied to someone else).
Accordingly, since Owens has no standing to make a facial challenge to the statute, and since he
has failed to argue before the Department that the statute is vague as applied to him, he has
waived his right altogether to address the vagueness issue on appeal. See Texaco-Cities Service
Pipeline Co., 182 Ill. 2d at 278-79; Carpetland U.S.A., Inc., 201 Ill. 2d at 396-97.
Nevertheless, even if we were to consider the merits of Owens’ vagueness contention, for
the reasons that follow, we would find that the statute is not unconstitutionally vague, either on
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its face or as applied to Owens.
It is well established that there is a strong presumption that a statute is constitutional and
that the party challenging its validity will bear the burden of clearly establishing that the statute is
unconstitutional. People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005); see also Morgan v.
Department of Financial & Professional Regulation, 374 Ill. App. 3d 275, 292 (2007).
A vagueness challenge is a due process challenge focusing on the specificity of the
language of a statute. East St. Louis Federation of Teachers v. East St. Louis School District,
178 Ill. 2d 399, 424-26 (1997). A statute is unconstitutionally vague and violates due process if
it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute or if there is an absence of standards restricting the discretion of
governmental authorities who apply the law. East St. Louis Federation of Teachers, 178 Ill. 2d at
424-26. The terms of a statute cannot be “ ‘so ill-defined that their meaning may be determined
at whim rather than by objective criteria.’ ” East St. Louis Federation of Teachers, 178 Ill. 2d at
425-26, quoting People v. Burpo, 164 Ill. 2d 261, 266 (1995); see also Morgan, 374 Ill. App. 3d
at 292-93. Rather, the statute’s terms must be explicit enough to serve as a guide to those who
must comply with it. East St. Louis Federation of Teachers, 178 Ill. 2d at 425; see also Morgan,
374 Ill. App. 3d at 292-93. However, mathematical certainty in the language is not required.
East St. Louis Federation of Teachers, 178 Ill. 2d at 424-25; see also Morgan, 374 Ill. App. 3d at
292-93. Moreover, a statute will not be considered unconstitutionally vague “ ‘merely because
one could imagine hypothetical situations in which the meaning of some terms might be called
into question.’ ” Morgan, 374 Ill. App. 3d at 292, quoting Maun v. Department of Professional
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No. 1-09-0908
Regulation, 299 Ill. App. 3d 388, 397 (1998).
In the present case, the Act specifically defines “substantial evidence” and Owens has
failed to show that this definition was not sufficiently precise to guide the parties or the agency.
As already noted above, the Act defines “substantial evidence” as “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 somewhat less than a preponderance.” (Emphasis added.) 775 ILCS
5/7A-102(D)(2) (West 2004). Contrary to Owens’ assertion that the phrase “may be somewhat
less than a preponderance” does not permit a party filing a discrimination charge to know
whether his or her claim must be supported by more than a preponderance of the evidence or less
than a preponderance of the evidence, the term “may” has clearly been defined as connoting only
permission. See Cook County Board of Review v. Property Tax Appeal Board, 334 Ill. App. 3d
56, 59 (2002) (“use of the word ‘may’ is construed as permissive, not mandatory”); see also New
American Webster Dictionary (1972) (defining “may” as “have the ability to” or “have
permission to” or “be free to;” noting that the term is used to indicate probability and possibility).
Moreover, those Illinois cases that have addressed the substantial evidence standard have made
clear that substantial evidence does not require more than a preponderance of evidence. See, e.g.,
Stone v. Department of Human Rights, 299 Ill. App. 3d 306, 314-15 (1998) (“Substantial
evidence means more than a mere scintilla but less than a preponderance of the evidence.
[Citations.] Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”); see also Sanders v. United Parcel Service, 142 Ill. App. 3d
362, 364 (1986) (noting that the substantial evidence standard “was deliberately left vague to
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No. 1-09-0908
permit the [Department of Human Rights] some degree of discretion in ascertaining and
evaluating the facts”). Accordingly, we find that the substantial evidence standard is not
unconstitutionally vague.
Furthermore, Owens has specifically failed to show that the substantial evidence standard
is vague as applied to him. Vagueness is an elastic concept, and just because a term is vague to
one person, does not necessarily mean that it will be vague to another. See City of Chicago v.
Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 441-42 (2006). Accordingly, where a party raises a
vagueness challenge by arguing that a statute is vague as applied, a reviewing court must
“evaluate a statute in the context of the specific circumstances in which it was applied to the
litigant who contests its validity.” Pooh Bah Enterprises., 224 Ill. 2d at 442; see also People v.
Ryan, 117 Ill. 2d 28, 34 (1987), quoting United States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed.
2d 706, 713, 95 S. Ct. 710, 714 (1975) (“ ‘[v]agueness challenges to statutes which do not
involve First Amendment freedoms must be examined in the light of the facts of the case at
hand’ ”). In the present case, we have already held that the mere issuance of two written
reprimands did not constitute an adverse employment action. The sparsity of evidence offered by
Owens to support the existence of an adverse employment action is therefore outside the
confines of the “substantial evidence standard” so that the term, even if otherwise unclear, would
at least have sufficient clarity to denote an amount of evidence in excess of that which was
provided by Owens. Accordingly, under these circumstances Owens cannot complain that the
Act is vague as applied to him. See Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 458, 94
S. Ct. 2547, 2562 (1974) (“[o]ne to whose conduct a statute clearly applies may not successfully
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No. 1-09-0908
challenge it for vagueness”); see also Pooh Bah Enterprises, 224 Ill. 2d at 442.
III. CONCLUSION
For the foregoing reasons, the order of chief legal counsel of the Department of Human
Rights dismissing Owens’ charge is affirmed.
Affirmed.
CAHILL, P.J., and McBRIDE, J., concur.
__________________________________________________________________________________________________________________________
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form NICK OWENS
Petitioner-Appellant,
v.
THE DEPARTMENT OF HUMAN RIGHTS, MICHAEL LIEBERMAN, Chief Legal
Counsel Designee of the Department of Human Rights, and EXXON MOBIL CORP.,
Defendants-Appellees.
______________________________________________________________________________________________________________
Nos. 1-09-0908
Docket No.
Appellate Court of Illinois
COURT First District, SIXTH Division
Opinion
Filed August 13, 2010
(Give month, day and year)
45
No. 1-09-0908
______________________________________________________________________________________________________________
JUSTICE JOSEPH GORDON DELIVERED THE OPINION OF THE COURT:
JUSTICES PRESIDING JUSTICE CAHILL, AND JUSTICE McBRIDE concur.
Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook Petition for Review of an Order of the Chief Legal Counsel of the Department of
County; the Hon___ Human Rights
Judge Presiding.
__________________________________________________________________________________________________________________________
Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word FOR
APPELLANTS NONE if not represented.
John Doe, of Chicago
For APPELLEES, : FOR PETITIONER-APPELLANT: Robert A. Anderson, Anderson Law Office, 10336 South Western Ave., Chicago, IL
60643, (773) 233-5385
Smith and Smith of
Chicago, FOR DEFENDANTS-APPELLEES: for the STATE: Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor
General and Janon E. Fabiano, Assistant Attorney General, 100 W. Randolph St. 12th Floor, Chicago IL 60601, (312)
814-3312; for EXXON MOBIL CORP.: Jan Michelsen, Ogletree Deakins Nash Smoak & Stewart, P.C. 111 Monument
Circle, Suite 4600, Indianapolis, IN 46204; (317) 916-1300
_____________________________________________________________________________________________________________
Add attorneys for third-
party appellants and/or
appellees.
46