ISS Intern. Service System, Inc. v. Illinois Human Rights Com'n

• Decision Date: 24 May 1995
• Docket Number: 1-92-3759,Nos. 1-92-2641,s. 1-92-2641
• Citation: 651 N.E.2d 592,272 Ill.App.3d 969,209 Ill.Dec. 414
• Parties: , 209 Ill.Dec. 414 ISS INTERNATIONAL SERVICE SYSTEM, INC., Appellant, v. The ILLINOIS HUMAN RIGHTS COMMISSION, Helena Rys, and Tadeusz Palka, Appellees.
• Court: United States Appellate Court of Illinois

Page 592

651 N.E.2d 592

272 Ill.App.3d 969, 209 Ill.Dec. 414

ISS INTERNATIONAL SERVICE SYSTEM, INC., Appellant, v. The ILLINOIS HUMAN RIGHTS COMMISSION, Helena Rys, and Tadeusz Palka, Appellees.

Nos. 1-92-2641, 1-92-3759.

Appellate Court of Illinois First District, Third Division.

May 24, 1995.

Rehearing Denied June 30, 1995.

Mayer, Brown and Platt, Marcia Goodman, Angela K. Dorn, Intra L. Krumins, and Allen R. Slutsky, Chicago, for petitioner ISS.

Arnold and Kadjan, L. Steven Platt, Steven F. McDowell, Chicago, for respondents Helena Rys and Tadeusz Palka.

Roland Burris, Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., John A. Morrissey, of counsel), Chicago, for appellee Ill. Human Rights Com'n.

Justice CERDA delivered the opinion of the court:

ISS International Service System, Inc. (ISS), appeals from the decision by the Illinois Human Rights Commission (Commission) in favor of complainants, Helena Rys and Tadeusz Palka. ISS argues that: (1) the Commission did not have subject matter jurisdiction over Palka's retaliation claim; (2) the Commission erred in finding that Palka was discriminatorily discharged; (3) the administrative law judge (ALJ) had no basis for awarding damages to Rys for her sexual harassment claim; and (4) the Commission erred in modifying the damage awards to provide additional back pay.

Rys filed a complaint with the Illinois Department of Human Rights (Department) that alleged that Dan Lehman, an ISS manager, sexually harassed her and that she was fired from her ISS job.

Palka filed a complaint with the Department that alleged harassment based on his Polish national origin and that he was fired from his ISS job. Palka also alleged that he was asked to influence Rys to drop her sexual harassment charges and that he was retaliated against for opposing the sexual harassment.

The Department determined after investigation that there was no substantial evidence supporting Palka's charges, and the charges were dismissed. The Commission vacated the dismissal of Palka's charge of harassment based on Polish national origin. The Commission upheld the dismissal of the charge of retaliation for opposing a discriminatory practice. The Department filed a complaint alleging that ISS discriminated against Palka because of his Polish national origin and that ISS subjected Palka to harassment in violation of section 2-102(A) of the Illinois Human Rights Act (the Act). 775 ILCS 5/2-102(A) (Michie 1993).

Palka moved the Commission for leave to file an amended complaint, which included an allegation that he was retaliated against for having reported Rys' sexual harassment to superiors and for having provided information regarding the sexual harassment to the Department.

On January 4, 1988, an ALJ granted Palka's motion to amend the complaint "with recognition" that the amended complaint was brought under the retaliation provisions of the Act.

The Commission consolidated Palka's and Rys' cases.

In a prehearing memorandum to the Commission, the following relevant facts were stipulated. ISS was a building maintenance company. Complainants were American citizens of Polish national origin. Palka had the responsibility of staffing a cleaning crew at a building in Schaumburg, Illinois. Palka reported directly to Lehman, and Lehman's supervisor was vice president Robert E. Cosgrove. Cosgrove and Lehman had discussions about the Schaumburg contract being unprofitable due to overstaffing. Upon Cosgrove's suggestion, Lehman ordered Palka to fire two full-time cleaners and to reduce the hours of the remaining workers. Palka refused to comply with Lehman's order. After Lehman got the union's approval for the reduction of staff and hours, Lehman repeated his order to Palka, who refused unless the order was put in writing. Lehman later gave Palka a written direction. But it was Lehman who confronted the cleaning crew with the changes.

The following was also stipulated. On October 12, 1984, the building manager informed Lehman that a security guard had reported to her that someone signed in an ISS cleaner who never arrived for work that date. Lehman went to the building and confronted Rys, who allegedly admitted to Lehman that she falsified the payroll sheet. Lehman accused Palka of complicity in the sign-in scheme, and Palka was suspended pending an investigation on October 17, 1984. Palka was fired on November 9, 1984.

The following was also stipulated. Palka's salary was $10.625 an hour, and Rys' salary was $6 an hour. Each complainant had another full-time job while working nights for ISS. Neither found a replacement for their ISS job.

Palka testified to the following at the hearing. He was a supervisor who oversaw the work of the night shift employees. He spoke to the employees about the proposed cuts, and they responded that they were not going to be able to do the job with fewer workers. He spoke to Lehman a few days later about making the cuts. Lehman warned him to follow his instructions concerning "those Polacks." Lehman instructed him to fire two people right away. Later, Lehman and Mr. Osmanski, who was a daytime supervisor, told him that they fired "those Polacks." When he asked Lehman why he was not called about the firing, Lehman responded that he was fired.

Robert Byrne, an ISS vice president, later told Palka that Lehman had not received approval for Palka's dismissal. Palka later met with Searles, who was Byrne's assistant from Detroit. Searles was concerned over the charges filed by Rys. Searles thought if Palka spoke to Rys, then she would drop the charges. Searles said that if Palka resolved the problem with Rys, then Palka would still have a job. Searles also said that if he did not want to get involved, then Searles was going to have to fire him. He was fired.

Lehman often referred to Polish people as "Polacks". Lehman once told him to tell Polish workers, who were on break in the hallway, to move to the washrooms. In another conversation, Lehman told him to put two Mexican persons on eight-hour shifts and the "Polacks" on seven-hour shifts. Lehman stated that he did not care for those "DP's."

Rys testified to the following. On two occasions, Lehman asked her out for dates. After her second refusal, he put his hands around her throat and threatened her.

Rys once heard Lehman say that Adolf Hitler did not finish his job because he did not kill all the Polish and Jewish people. Lehman also said that he should shove those people into the ovens. Lehman once saw women having lunch and asked her what were "all those dumb Polacks" doing in the hallway. When Lehman fired the crew, Rys complained that Palka should be present. Lehman then said that he would fire "that dumb Polack, too."

While Rys worked for respondent, she also had a 40-hour job working at a factory. The factory closed in the fall of 1986. She was not working at the time of the hearing. She could not find work. She wanted to work two 40-hour week jobs. She was a Wright College student. In her free time, she worked in her house sewing dresses.

Daniel L. Lehman testified to the following. He never asked Rys to date him. He never called Palka derogatory names. Palka's national origin had nothing to do with the suspension. Workers complained about Palka. Hours were logged for persons when they did not work.

Jeffrey Searles testified to the following. He was regional manager for ISS in the Chicago area. He spent several days interviewing Palka, Lehman, and other people to investigate Lehman's charges about Palka. A decision about Palka's future at ISS depended on the results of his investigation. Palka asked him if it would help his cause if he would talk to Rys about dropping the charges. He replied that it would be up to Palka and that it would possibly be a positive influence. He also decided that Palka had been insubordinate to Lehman and others. He determined that the office staff in Chicago was not able to get along with Palka. Palka's national origin had nothing to do with his termination.

Henry L. Osmanski testified to the following at the hearing. He was the branch manager of the Pittsburgh branch. Lehman was his immediate supervisor. He had never heard Lehman use the word Polack. No worker ever complained to him about Lehman's conduct.

Slawomir Czaja testified to the following at the hearing. He was a former employee of ISS. In a 1983 conversation, Lehman called Palka a Polish pig. Lehman also said that Palka backed up Polish people. In a 1984 conversation, Lehman said that it was a pity that Hitler did not live long enough to "clean out" the Poles.

Alvarao Martinez testified to the following at the hearing. He was a former ISS janitor. On the day he was fired, Lehman stated that the crew was not doing the job and that Polish people were "no good." One-half of the crew was Polish. Lehman used an offensive word in referring to Polish people. Lehman once said that Hitler did not finish "the job" with Polish people.

The Commission filed an interim recommended order and decision, which made the following findings relevant on appeal. Complainants presented direct evidence that their national origin was a significant or substantial factor in ISS' decision to terminate them in violation of section 2-102(A) of the Act. (775 ILCS 5/2-102(A) (Michie 1993).) ISS did not present a preponderance of evidence to rebut the direct evidence of discrimination based on national origin. Lehman's conduct constituted unlawful harassment based on national origin and unlawful sexual harassment. The ALJ did not find credible Lehman's testimony that he did not make the derogatory remarks. The derogatory statements were evidence that a prohibited consideration was a factor in the decision to discharge both complainants. The testimony of Searles that there was no national origin discrimination was also not credible.

The Commission further found the following. Complainants tried to obtain replacement jobs. Therefore, they...