All Purpose Nursing Service v. Illinois Human Rights Com'n

• Decision Date: 25 October 1990
• Docket Number: No. 1-88-3273,1-88-3273
• Citation: 150 Ill.Dec. 717,563 N.E.2d 844,205 Ill.App.3d 816
• Parties: , 150 Ill.Dec. 717 ALL PURPOSE NURSING SERVICE, Petitioner-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION and Bonnie Walton, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 844

563 N.E.2d 844

205 Ill.App.3d 816, 150 Ill.Dec. 717

ALL PURPOSE NURSING SERVICE, Petitioner-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION and Bonnie Walton Respondents-Appellees.

No. 1-88-3273.

Appellate Court of Illinois First District, Fourth Division.

Oct. 25, 1990.

Merle L. Royce, Marshall J. Burt, Chicago, for petitioner-appellant.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago (Karen Michels Caille, Asst. Atty. Gen., of counsel), for respondent-appellee Ill. Human Rights Com'n.

Constantine John Gekas, Harvitt & Gekas, Chicago, for respondent-appellee Bonnie Walton.

Justice JOHNSON delivered the opinion of the court:

This matter comes before the court on direct appeal from the Illinois Human Rights Commission (hereinafter the Commission), pursuant to section 8-111 of the Illinois Human Rights Act (Ill.Rev.Stat.1987, ch. 68, par. 8-111(A)(3)). Petitioner, All Purpose Nursing Service, appeals from a decision and order of the Commission that reversed the determination of the administrative law judge (hereinafter the ALJ) that petitioner discriminated against Bonnie Walton by unlawfully discharging her from its employ.

We Affirm.

BACKGROUND

Bonnie Walton, an employee of All Purpose Nursing Service, filed a Human Rights Act charge against her employer on September 17, 1981. Ms. Walton claimed that she was unlawfully discharged on September 16, 1981, because she was subpoenaed to appear as a witness against her employer in another case before the Commission known as In the Matter of Vickie Forni and Quality Care Nursing Home (hereinafter Forni). On January 18, 1983, the Commission issued a complaint alleging that All Purpose Nursing Service fired Ms. Walton because she was a witness against it in another proceeding in violation of section 6-101(A) of the Illinois Human Rights Act. Ill.Rev.Stat.1987, ch. 68, par. 6-101(A).

On November 14 and 15, 1983, a hearing was held before Administrative Law Judge Grace Dickler. The administrative record shows that Ms. Walton received favorable performance reviews. Ms. Walton was given an "excellent" evaluation in every category (attendance, attitude, cooperation, phone etiquette, and quality of work) in her March 20, 1980, review. In her evaluation of May 2, 1980, she was rated "good" in every category. Her supervisor noted that she could not give Ms. Walton a rating of "excellent" because of that supervisor's then short tenure. In addition, Ms. Walton received regular merit pay raises from May 1979 until June 1981.

Ms. Walton had a problem with tardiness earlier in her employment. This problem was remedied when her work schedule was changed. Ms. Walton's supervisor, Mary Lou Drilich, testified that Ms. Walton was tardy and absent from early August until her termination on September 16, 1981. However, the ALJ excluded the evidence offered to document Ms. Walton's tardiness and her absenteeism on the grounds of hearsay and for lack of a proper foundation for business records. In addition, Ms. Drilich had no firsthand knowledge of the alleged absenteeism and tardiness because the two women took two consecutive vacations between August 10 and September 14, 1981.

In September 1981, Ms. Walton was called to testify in the Forni case. The Forni case was a complaint filed by Vickie Forni, a former employee of Elmhurst Quality Care (now called All Purpose Nursing Service). Ms. Forni alleged that she was wrongfully discharged from her job because she was pregnant. During the summer of 1981, Charles O'Donnell, the firm's vice president, took Ms. Walton and another employee to lunch and suggested that they be loyal to All Purpose Nursing Service in the Forni matter.

On September 11, 1981, Forni's lawyer appeared at a prehearing conference in the Forni case and informed the ALJ and counsel for Quality Care/All Purpose Nursing On September 14, 1981, Mary Lou Drilich, gave Ms. Walton a handwritten memorandum of reprimand for insubordination. This reprimand was based upon two allegations: Ms. Walton's alleged failure to follow correct accounting procedures, and the alleged unauthorized switching of days off during Ms. Drilich's vacation. Charges of tardiness and absenteeism were not included in the reprimand despite the fact that Ms. Drilich later testified that these were bases for Ms. Walton's dismissal.

                [150 Ill.Dec. 720] Service that Ms. Forni would call four witnesses, "both past and current employees * * *."   In a September [205 Ill.App.3d 821] 14 meeting between Ms. Forni's counsel and Mr. O'Donnell, Ms. Forni's lawyer reiterated that he would call four current or former employees as witnesses
                

On September 15, 1981, Ms. Walton received a subpoena to testify in the Forni case. On the night of September 15, Ms. Walton telephoned Debby Landa, a fellow employee. Ms. Walton told Ms. Landa that she had been subpoenaed as a witness for Vickie Forni. Ms. Landa, in turn, telephoned Ms. Drilich. Debby Landa told Ms. Drilich that "Bonnie was involved with the Vickie Forni incident and that [Bonnie] may be called to testify."

On September 16, 1981, Mary Lou Drilich and Charles O'Donnell fired Bonnie Walton for "insubordination." Both Ms. Drilich and Mr. O'Donnell admitted that they knew Ms. Walton was to be a witness in the Forni case before they fired her.

In February 1985, Judge Dickler issued a "Recommended Order and Decision" in favor of All Purpose Nursing Service. Administrative Law Judge Dickler found that Ms. Walton established a prima facie case of retaliatory discharge in violation of section 6-101(A) of the Illinois Human Rights Act (Ill.Rev.Stat.1987, ch. 68, par. 6-101(A).) Judge Dickler wrote the following:

"The Complainant was terminated on September 16, 1981. On September 15, 1981, Respondent discovered that the Complainant was going to be a witness against the Respondent. The timing of this in and of itself raises a strong inference that the Complainant was terminated for impermissible motives. This is buttressed by the fact that the Complainant had received a written warning just a few days before the Complainant was terminated. This would not appear a sufficient time to give the Complainant an opportunity to rectify her behavior and her performance. It is for this reason that the Administrative Law Judge deems that the Complainant has in fact established a prima facie case of retaliation."

However, Judge Dickler concluded that All Purpose Nursing Service articulated legitimate nondiscriminatory reasons for Ms. Walton's termination and that Ms. Walton did not prove by a preponderance of the evidence that the reasons given by All Purpose Nursing Service were pretextural.

On March 8, 1985, Ms. Walton filed her exceptions to the recommended order and decision with exhibits. One of the exhibits submitted was an interim decision in the Forni case recommending that the Commission enter a default judgment against All Purpose Nursing Service for its failure to comply with discovery orders in the Forni case. Subsequently, All Purpose Nursing Service responded to Ms. Walton's exhibit and exceptions on April 11, 1985. Oral arguments were heard by a panel of the Commission on May 15, 1985.

On July 24, 1986, the Commission panel reversed Judge Dickler's recommended order and decision and remanded the case for a hearing on damages. The Commission held that the applicable standard was "[i]f the Complainant can prove it is more likely than not that a prohibited reason motivated the employer, judgment must be entered for the Complainant, even though there is no direct evidence of discrimination." Using this standard, the Commission sustained the complaint and held that Judge Dickler's ruling was "against the manifest weight of the evidence." The Commission stated:

"This is one of the strongest cases of retaliatory discharge based on circumstantial evidence it is possible to imagine. * * * We find the only clear and reasonable On August 26, 1986, All Purpose Nursing Service filed a petition for rehearing. The petition for rehearing alleged that the Commission had not reviewed Judge Dickler's findings of fact in accordance with the manifest weight of the evidence standard. All Purpose Nursing Service contended that the Commission failed to review the record as a whole, and improperly substituted its own opinions as to the credibility of the witnesses. The Commission denied this petition.

[150 Ill.Dec. 721] explanation for the actions of [All Purpose Nursing Service] is the fact that between the warning of September 14th and the discharge on September 16th[,] Ms. Walton had been given a subpoena which made it virtually certain that she would be testifying against [All Purpose Nursing Service] in the Forni matter."

The case was remanded to Administrative Law Judge Zeva Schub who issued a recommended order and decision which reinstated Ms. Walton as an employee with full seniority, and awarded $39,304.83 in back wages, costs, and attorney fees. On October 1, 1988, the Commission entered a final order affirming the relief.

Petitioner herein, All Purpose Nursing Service, has appealed to this court for review. First, petitioner contends that the Commission exceeded its statutory authority under section 8-107(E) of the Illinois Human Rights Act (Ill.Rev.Stat.1987, ch. 68, par. 8-107(E)) by reversing the decision of the ALJ against the manifest weight of the evidence. The Commission maintains that the "manifest weight of the evidence" standard was properly applied.

Second, petitioner argues that the Commission erred by taking judicial notice of a default judgment entered against petitioner in the Forni case. Petitioner contends that this action by the Commission violated (1) the Illinois Administrative Procedure Act (Ill.Rev.Stat.1987, ch. 127, par. 1001 et seq.) (hereinafter the Act), (2) the common law rule of evidence prohibiting the admission of bad acts to prove culpability on another occasion, and (3) petitioner's right to...