Burnham City Hosp. v. Human Rights Com'n

• Decision Date: 13 August 1984
• Docket Number: No. 4-83-0680,4-83-0680
• Citation: 467 N.E.2d 635,126 Ill.App.3d 999,81 Ill.Dec. 764
• Parties: , 81 Ill.Dec. 764, 50 Fair Empl.Prac.Cas. (BNA) 1730 BURNHAM CITY HOSPITAL, Plaintiff-Appellee, v. HUMAN RIGHTS COMMISSION and Walter S. Clifton, Jr., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 635

467 N.E.2d 635

126 Ill.App.3d 999, 81 Ill.Dec. 764,

50 Fair Empl.Prac.Cas. (BNA) 1730

BURNHAM CITY HOSPITAL, Plaintiff-Appellee, v. HUMAN RIGHTS COMMISSION and Walter S. Clifton, Jr. Defendants-Appellants.

No. 4-83-0680.

Appellate Court of Illinois Fourth District.

Aug. 13, 1984.

Walter S. Clifton, Jr., Urbana, Neil F. Hartigan, Atty. Gen., Fredric D. Tannenbaum, Asst. Atty. Gen., Chicago, for defendants-appellants.

Stephen M. O'Byrne, Reno, O'Byrne & Kepley, Champaign, for plaintiff-appellee.

MILLS, Presiding Justice:

Discrimination?

Administrative law judge said yes.

Human Rights Commission said yes.

Circuit court said no.

We affirm.

On September 18, 1979, defendant, Walter S. Clifton, Jr., filed a complaint with the Illinois Fair Employment Practices Commission (FEPC) against plaintiff, Burnham City Hospital of Champaign (Burnham). He alleged a violation of section 3(a) of the Fair Employment Practices Act which then stated:

"It is an unfair employment practice:

(a) For any employer, because of the race * * * of an individual * * *, to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment." (Ill.Rev.Stat.1979, ch. 48, par. 853(a).)

Shortly thereafter, that Act was repealed and replaced by the Illinois Human Rights Act (Ill.Rev.Stat.1981, ch. 68, par. 1-101 et seq.) which comprehensively treats various types of discrimination and provides for a Human Rights Commission (HRC) whose function includes those previously performed by the FEPC. The legislation provided for the HRC to proceed with cases pending before the FEPC. Ill.Rev.Stat.1981, ch. 68, par. 9-102.

Prior to its termination, the FEPC filed a formal complaint against Burnham on June 10, 1980, charging it with a violation of section 3(a) of the Fair Employment Practices Act, because it refused to hire Clifton, a black male, as a pharmacy technician while hiring a less qualified white person. The case was heard on August 26 and 27, 1980, before an HRC administrative law judge who issued an opinion and recommended order on October 13, 1981. He found the charges to have been sustained. On January 8, 1982, the HRC approved the administrative law judge's report and entered the recommended order which included among its requirements that Burnham (1) make Clifton whole for lost wages he may have suffered, (2) cease and desist from such discrimination, and (3) report to the HRC within 45 days as to the steps it had taken in compliance.

Burnham appealed to the circuit court of Champaign County for administrative review. That court reversed the order of the HRC which, together with Clifton, has in turn, appealed to this court. We affirm the circuit court.

In dealing with the allocation of burdens of proof and persuasion in cases where discrimination in employment is charged, the appellate court of this state has drawn an analogy to the procedures used in cases under the Federal Civil Rights Act. (42 U.S.C. sec. 2000e (1982); see McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.) We did so in Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1976), 45 Ill.App.3d 116, 3 Ill.Dec. 764, 359 N.E.2d 174, rev'd in part on other grounds (1978), 71 Ill.2d 61, 15 Ill.Dec. 623, 373 N.E.2d 1307, as did the Fifth District in City of Cairo v. Fair Employment Practices Com. (1974), 21 Ill.App.3d 358, 315 N.E.2d 344. The First District gave full application to the Federal procedure in A.P. Green Services Division of Bigelow-Liptak Corp. v. Fair Employment Practices Com. (1974), 19 Ill.App.3d 875, 312 N.E.2d 314.

The Federal cases on employment discrimination have proceeded on theories of (1) disparate treatment which requires proof of a discriminating motive by the employer (United States Postal Service Board of Governors v. Aikens (1983), 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403), and (2) disparate impact, which involves employment practices which, without justified business necessity, fall more heavily on minority groups. (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396; Griggs v. Duke Power Co. (1971), 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158.) In the case before us, the HRC found discrimination to have been proved under both theories.

By the terms of section 8-107(E)(2) of the Illinois Human Rights Act (Ill.Rev.Stat.1981, ch. 68, par. 8-107(E)(2)), the HRC is required to adopt the findings of fact of the administrative law judge unless they are contrary to the manifest weight of the evidence. That occurs when a contrary result is clearly evident. (Clark Oil & Refining Corp. v. Golden (1983), 114 Ill.App.3d 300, 70 Ill.Dec. 80, 448 N.E.2d 958.) Similarly, when tested on administrative review, a decision of the FEPC could not be overturned by a reviewing court on the basis of the sufficiency of the proof, unless that decision was contrary to the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill.2d 60, 55 Ill.Dec. 552, 426 N.E.2d 877.) This is the standard for most cases of administrative review and would logically be applied to review of decisions of the HRC. We apply that standard here.

I.

Under the disparate treatment theory, proof of discriminatory motive is critical, although it may be inferred in some situations from differences in treatment. (International Brotherhood of Teamsters, 431 U.S. 324, 335, 97 S.Ct. 1843, 1855, n. 15, 52 L.Ed.2d 396, 415.) The method applied in such cases was described in A.P. Green Services Division:

"The allocation of the burden of proof in an action challenging employment discrimination was well established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973). The Supreme Court in referring to the prima facie case that must be initially put forward by the complainant stated:

'This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.' (Footnote omitted.)

Once this is done the burden shifts to the employer and it is incumbent upon him to rebut the prima facie case by some legitimate, nondiscriminatory reason for the complainant's rejection. If the employer discharges his burden of proof and meets the prima facie case of discrimination, the burden of proof then shifts back to the complainant and he must establish that the articulated reason for rejection is pretext. (McDonnell Douglas Corp., supra.)" (19 Ill.App.3d 875, 880-81, 312 N.E.2d 314, 318.)

The footnote in McDonnell Douglas Corp. stated:

"The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, n. 13, 36 L.Ed.2d 668, 677-78.

The "bursting bubble" theory of presumption is operative in civil cases in this state. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill.2d 452, 69 Ill.Dec. 960, 448 N.E.2d 872.) In passing upon discrimination cases under Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. sec. 2000e et seq. (1982)), the United States Supreme Court more recently has given similar treatment to the rule of McDonnell Douglas Corp. in Aikens. There, the court held that when the complainant makes a prima facie case, and the employer articulates a legitimate reason for its action, the presumption arising from the prima facie case is destroyed. The complainant then has the burden of proving the employer intentionally discriminated against him. He may do this directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer, or indirectly through proof that the employer's proffered explanation is not to be believed. (See Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207.) In other words, the trier of fact must decide which party's explanation of the employer's motivation it believes. Aikens, 460 U.S. 711, ----, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 411.

The evidence before the administrative law judge clearly showed that Clifton was a member of a minority group, was qualified for the position of pharmacist's technician, had applied to Burnham for such a job, and was rejected. The undisputed evidence also showed Clifton (1) graduated from high school and attended the University of Illinois until 1972 when he joined the Army, (2) graduated from the Army's medical field services school in January 1973 and was assigned to the pharmacy at Fort Gordon, Georgia, (3) was assigned by the Army to a four-month pharmacy technician course from which he graduated in the top 5% of his class, (4) served as a pharmacy technician until his discharge from the army in August 1975, (5) then attended the University of Illinois where he received a bachelor's degree in economics in 1977 and a degree from the College of Law in 1980, and (6) while attending college, held several jobs, some of which were during the summer.

During the period from 1975 until the hearing, Harold Wolf was Burnham's director of pharmaceutical services. Clifton testified he met with Wolf in November 1975 to discuss his qualifications as a pharmacy technician and to give Wolf a copy of his resume. Clifton spoke to Wolf again in March 1976 and in March or May of 1977. Both times Clifton inquired about the possibility of being hired as a pharmacy technician. Wolf recalled having some...