Dowdell v. Human Rights Comm'n

2020 IL App (1st) 190598-UNo. 1-19-0598
Order filed January 10, 2020
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
KATHY DOWDELL, ) Petition for Direct
) Administrative Review of a
Petitioner-Appellant, ) Decision of the Illinois Human
) Rights Commission.
v. )
)
THE HUMAN RIGHTS COMMISSION, ) Charge No. 2015 CP 1697
THE DEPARMENT OF HUMAN RIGHTS, )
MR. RONALD TABOR, MR. NOVY, and MAZ )
MANAGEMENT, INC., )
)
Respondents-Appellees. )
JUSTICE CONNORS delivered the judgment of the court.
Presiding Justice Mikva and Justice Harris concurred in the judgment.
ORDER
¶1 Held: The decision of the Human Rights Commission sustaining the Department of
Human Rights’s dismissal of petitioner’s charge of race and sex discrimination for
lack of substantial evidence is affirmed when petitioner’s brief is insufficient to
ascertain her claims and her arguments rest on matters de hors the record and are
forfeited.
No. 1-19-0598
¶2 Petitioner Kathy Dowdell appeals pro se from a final order entered by the Human Rights
Commission (Commission) sustaining the Department of Human Rights’s (Department) dismissal
of her charge of race and sex discrimination by respondents Maz Management, Inc., Ronald Tabor,
and Mr. Novy. 1 The Commission concluded that the Department properly dismissed petitioner’s
discrimination charge for lack of substantial evidence. On appeal, petitioner asks this court to order
Maz Management, Inc. (respondent), to submit surveillance footage to “show the truth” of her
allegations and provide her with a written apology. We affirm.
¶3 In December 2014, petitioner filed a charge of discrimination with the Department
following a December 14, 2014 incident at B/P Earth Market. In the charge, petitioner alleged that
after prepaying for her gas, she went to the restroom and then looked at a display of hats. She did
not buy a hat and went to her vehicle. As she left, she was stopped by a Caucasian security officer,
Novy, who stated that the clerk, Ron, said she put something in her purse. 2 Petitioner went back
inside to let Novy look in her purse. Once inside, petitioner noticed a line of Caucasian customers
“staring” at her, and she began to feel sick. She removed items from her purse until Novy told her
to stop and said that he believed her. Petitioner then asked Ron for the manager’s and owner’s
names, but was ignored. Petitioner went to fuel her vehicle but had problems doing so. When
petitioner went inside to tell Ron that the pump was not working, a police officer approached her
and asked what happened.
¶4 Petitioner told the officer that she was “falsely accused” of putting something in her purse.
The officer asked for her identification and if he could look in her purse to prove the clerk wrong.
1
Novy’s first name is not included in the record on appeal.
2
Although petitioner does not identify him as such, we presume “Ron” is Ronald Tabor.
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No. 1-19-0598
Petitioner replied that Novy had already checked her purse, but Novy said “[n]ot really.” Petitioner
told the officer that the store security camera “would tell the truth,” and again emptied her purse
while crying. The officer said “OK!” and walked away. After petitioner fueled her vehicle, the
officer gave her his card and said he was just “doing his job.” Petitioner stated that she was the
only person singled out and that she “was targeted and accused.” Petitioner identified herself as a
“Lady of Color.”
¶5 A Department investigator investigated petitioner’s claim and on August 4, 2015, issued a
report. The report noted petitioner’s allegations, as stated above, and details the evidence presented
by both parties during the Department’s investigation.
¶6 Under petitioner’s “Evidence,” the report essentially restated the facts alleged in
petitioner’s charge as to her confrontation with Novy. The report added that petitioner said that
she had frequented respondent’s location on numerous occasions, and that the clerk, Ron, had
always been polite. Petitioner stated that Ron must have told Novy that he thought she had stolen
something.
¶7 The report also detailed that as petitioner went back inside, she saw a Frankfort police
officer and was “flabbergasted” and “insulted” that respondent had called the police. When
petitioner reentered the store, the officer, who identified himself as Officer Richards, asked her
whether there was a problem. Petitioner replied that she had been falsely accused of stealing by
Ron. Richards requested her drivers’ license, which she provided, and then stated, “Why don’t we
take a look into your purse and prove him [Ron] wrong?” Although petitioner stated that the
security guard had already searched her purse, when the officer asked him, Novy replied “Not
really.” Petitioner told the officer that Novy was being untruthful, that her purse had been searched,
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No. 1-19-0598
and that respondent’s security cameras would prove it. Petitioner began to empty her purse, but
Richards said, “Ok,” and walked away. Petitioner refilled her purse and then went outside to fuel
her vehicle. When she went inside to get her change, she met Richards and asked him for his
business card. Richards complied and stated that he was just doing his job. Petitioner stated that
incident left her embarrassed and humiliated. She was the only black person and the only woman
in the store. Petitioner further stated that Ron, Novy, and Richards were white men. Petitioner
concluded that she was treated in that manner because of her race and sex.
¶8 The report further indicated that petitioner produced a copy of her Freedom of Information
Act (“FOIA”) request to the Frankfort Police Department, which indicated that she requested
information on “Case Number 59958.” Her copy of the Frankfort Police Department’s incident
report stated that an incident involving petitioner and respondent’s employee, Ron, took place at
“BP Amoco Frankfort.” The incident report includes various redactions, and contains the
following narratives:
“[Redacted] [Person A] [was] advised that a disturbance was taking place at BP in
regards to customer possibly taking merchandise. Ron [the] store employee advised that
customer may have taken [a] hat from stand, made contact with customer, she cooperated
by emptying contents of her purse. No hats found in bag. Customer irate and taking video
during duration of contact. Employee unable to check security cameras. Advised store
employee to check cameras when manager comes in to determine if any items were in fact
taken. Advised employee that a report could be filed at that time. Nothing further 0006.”
[Redacted] [Person B]: While conducting a foot patrol inside the store, I was
approached by the cashier regarding a customer that had just exited the store and the
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No. 1-19-0598
customer may have taken a hat from a merchandise rack near the exit door and put it in her
purse. I contacted the customer at her car, advised her of the situation, and asked her to
return to the store. The customer obliged and returned inside the store but was visibly upset
and began video recording on her cell phone. I contacted 316 [Officer Richards] regarding
a disturbance at the location, and stood by for his arrival. 316 arrived and handled the
situation. No further.”
¶9 Carmen Gonzales, petitioner’s roommate, stated that they had visited respondent’s location
a half-dozen times without incident. She was not with petitioner during the December 14, 2014
incident. However, when petitioner got home that evening, petitioner was “very humiliated and
distraught,” and felt that she had been the victim of racial discrimination.
¶ 10 Respondent’s president, Abdul Basit, stated that his business is a gas station/convenience
store. He values each customer and stated it is imperative that each customer be treated courteously
so that he or she returns. No customers are ever turned away based on race, gender, or any other
characteristic. Basit operates two gas station/convenience stores and spends time at each location
every day. On December 15, 2014, the manager of the Frankfort location advised him of an unusual
incident the previous day. Specifically, a Village of Frankfort employee who appeared to be a
security or law enforcement official asked a customer whether she had taken goods that she had
not paid for. The customer and the Frankfort employee discussed whether she had taken anything
while the customer filmed the incident with her cell phone, and the customer left after becoming
loud and antagonistic toward the Frankfort employee. Basit reviewed security footage and saw a
female customer arguing with a Frankfort employee while holding up her cell phone as if to record
the incident. Basit found the incident to be strange but thought little of it.
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No. 1-19-0598
¶ 11 Basit stated that often only one employee is working at the convenience store, and that the
employee is responsible for assisting customers and monitoring activities within the store. If an
employee suspects that a theft is occurring or has occurred, the employee is expected to contact
the police. Basit stated that he spoke with Ron, and contrary to petitioner’s allegations, Ron denied
calling the police. Basit denied that Novy acted at the behest of Ron and stated that Ron was the
only employee on duty.
¶ 12 In rebuttal, petitioner conceded that she had no knowledge as to whether Novy was
respondent’s employee, but that Novy was wearing a uniform similar to that of a security guard.
Although neither Novy nor Ron engaged in any insults, slurs, or ridicule against her race or sex,
she was the only black person and only female in the store when she was accused of theft.
Petitioner also conceded that she received respondent’s goods or services prior to December 14,
2014, including when Ron was working. She successfully purchased gasoline on December 14,
2014, and she knew of no other customers who were accused of stealing.
¶ 13 In its analysis, the Department found no evidence that respondent denied petitioner the full
and equal enjoyment of its facility and services because of her race or her sex. Moreover, there
was no evidence that a similarly situated, non-black or male individual was treated more favorably
than petitioner under similar circumstances. The report concluded that even accepting petitioner’s
allegation that Ron accused her of stealing and asked Novy and a police officer to investigate,
there was no evidence that Ron did so based on a racial or gender-based animus. The report further
noted that it was uncontested that petitioner was not prevented from entering the store and was not
barred from purchasing gasoline. The report concluded that it did “not stand to reason” the
respondent and its employee would serve petitioner on many occasions and then stop because of a
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No. 1-19-0598
sudden animus against black or female individuals. Even if Ron accused petitioner of stealing,
which respondent denied, the mere fact that Ron was neither black nor female was not enough to
show animus when petitioner did not allege that respondent engaged in any slur, insult, or ridicule
in which her race was referenced. Based on the foregoing, the Department recommended a finding
of lack of substantial evidence.
¶ 14 Petitioner filed a timely pro se request for review by the Commission alleging, in relevant
part, that respondent had not submitted “any relevant evidence” or footage from surveillance
cameras. In her handwritten statement in support, petitioner argued, inter alia, that the surveillance
footage would show “exactly” what she said happened and that respondent did not submit “one
piece of evidence.” Petitioner also noted inconsistencies in the investigation summary, stated that
she never filmed anything on her phone, and asserted that respondent denied that police were called
when in fact the police were called.
¶ 15 The Department filed a response stating that the evidence indicated that petitioner was not
denied access to the store or the ability to purchase fuel. Rather, taking petitioner’s account as true,
she was stopped and questioned by a security or law enforcement official to determine whether,
based upon the clerk’s suspicion, she took a hat without paying for it. The Department further
noted that although petitioner argued that these actions were motivated by race and sex because
she was the only black woman present, she provided no evidence that respondent treated a non-
black or male customer more favorably than a black female customer. Moreover, the Department
submitted that even if petitioner could establish a prima facie case of discrimination, respondent
had a legitimate, non-discriminatory reason for its actions, that is, an interest in preventing theft.
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No. 1-19-0598
¶ 16 On February 27, 2019, the Commission issued a final order sustaining the Department’s
dismissal of petitioner’s charge due to a lack of substantial evidence. The Commission found no
evidence that petitioner was denied full enjoyment of respondent’s facilities. Although petitioner
was “troubled and offended after being accused of stealing,” she was still able to complete her
purchase. Thus, even if respondent’s actions were unreasonable, there was a lack of evidence that
the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 2014)) had been violated.
¶ 17 On appeal, petitioner asks this court to order respondent to submit surveillance footage to
“show the truth” of her allegations and provide her with a written apology.
¶ 18 As a preliminary matter, we note that our review of petitioner’s appeal is hindered by her
failure to fully comply with Supreme Court Rule 341 (eff. May 25, 2018), which “governs the
form and content of appellate briefs.” McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12. Although
petitioner is a pro se litigant, this status does not lessen her burden on appeal. “In Illinois, parties
choosing to represent themselves without a lawyer must comply with the same rules and are held
to the same standards as licensed attorneys.” Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶
78. Supreme Court Rule 341(h) provides that an appellant’s brief should contain a statement of
“the facts necessary to an understanding of the case, stated accurately and fairly without argument
or comment,” and an argument “which shall contain the contentions of the appellant and the
reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill. S. Ct.
R. 341(h)(6), (7) (eff. May 25, 2018). Pursuant to the rule, a reviewing court is entitled to have
issues clearly defined with “cohesive arguments” presented and pertinent authority cited. Obert v.
Saville, 253 Ill. App. 3d 677, 682 (1993).
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No. 1-19-0598
¶ 19 Although petitioner used in part a form approved by the Illinois Supreme Court when filing
her brief, she has failed to articulate a legal argument which would allow a meaningful review of
her claims and provides no citations to the record. An appellant is required to cite to the pages and
volumes of the record on appeal upon which she relies “so that we are able to assess whether the
facts which [the appellant] presents are accurate and a fair portrayal of the events in this case.” In
re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 58; see also Ill. S. Ct. R. 341(h)(7) (eff. May
25, 2018). Here, petitioner’s opening and reply briefs are narratives of the case from her
perspective and discuss matters outside the record. Moreover, petitioner cites no legal authority to
support her arguments on appeal. See People v. Hood, 210 Ill. App. 3d 743, 746 (1991) (“A
reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is
not simply a depository into which the appealing party may dump the burden of argument and
research.”). “Arguments that do not comply with Rule 341(h)(7) do not merit consideration on
appeal and may be rejected by this court for that reason alone.” Wells Fargo Bank, N.A. v. Sanders,
2015 IL App (1st) 141272, ¶ 43.
¶ 20 Considering the content of petitioner’s brief, it would be within our discretion to dismiss
the instant appeal. See Epstein v. Galuska, 362 Ill. App. 3d 36, 42 (2005) (“Where an appellant’s
brief fails to comply with supreme court rules, this court has the inherent authority to dismiss the
appeal.”). However, because the issues in this case are simple, petitioner made an effort to present
her appeal by use of the approved form brief, and we have the benefit of a cogent appellee’s brief,
we decline to dismiss this appeal. See Twardowski v. Holiday Hospitality Franchising, Inc., 321
Ill. App. 3d 509, 511 (2001).
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No. 1-19-0598
¶ 21 That said, the deficiencies in the record still prevent us from reaching this appeal on the
merits. Here, petitioner asks this court to order respondent to produce surveillance footage, which
she argues will support her version of events. Initially, we note that although Basit stated that he
reviewed certain surveillance footage, there was no indication that this footage was preserved.
Moreover, the record does not show that the Department investigator viewed such footage. “When
reviewing the decision of an administrative agency, we are limited to reviewing the record which
was before the agency and may not consider new or additional evidence in support of or in
opposition to any finding, order, determination or decision of the administrative agency.” North
Avenue Properties, L.L.C. v. Zoning Board of Appeals, 312 Ill. App. 3d 182, 185 (2000). Thus,
even if such footage existed, we cannot consider it, as it was not before either the Department or
the Commission.
¶ 22 Additionally, petitioner asks this court to order respondent to make a written apology.
However, she cites no authority for the proposition that this court can sua sponte order a party to
make a written apology. “Arguments unsupported by citation to legal authority are considered
forfeited on appeal.” Grant v. Dimas, 2019 IL App (1st) 180799, ¶ 34. Because petitioner cites no
authority to support her argument, it is forfeited.
¶ 23 For the foregoing reasons, we affirm the judgment of the Commission.
¶ 24 Affirmed.
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