Russ Berrie and Co., Inc. v. Human Rights Com'n

• Decision Date: 30 January 1992
• Docket Number: No. 2-91-0258,2-91-0258
• Citation: 224 Ill.App.3d 874,586 N.E.2d 1301
• Parties: , 167 Ill.Dec. 29 RUSS BERRIE AND COMPANY, INC., Appellant, v. The HUMAN RIGHTS COMMISSION et al., Appellees.
• Court: United States Appellate Court of Illinois

Page 1301

586 N.E.2d 1301

224 Ill.App.3d 874, 167 Ill.Dec. 29

RUSS BERRIE AND COMPANY, INC., Appellant, v. The HUMAN RIGHTS COMMISSION et al., Appellees.

No. 2-91-0258.

Appellate Court of Illinois,

Second District.

Jan. 30, 1992.

Rehearing Denied March 11, 1992.

Seyfarth, Shaw, Fairweather & Geraldson, Mark A. Casciari, Patricia J. Hruby, Richard M. Lyon, Chicago, for Russ Berrie & Co., Inc.

Potter & Schaffner, Mark S. Schaffner (argued and on the brief), Chicago, for Louis Carr, Jr.

Office of the General Counsel, Kent Sezer, Gen. Counsel, Ill. Human Rights Com'n, Roland W. Burris, Atty. Gen., Alison E. O'Hara (argued), Asst. Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago, for Illinois HRC.

Justice INGLIS delivered the opinion of the court:

Petitioner, Russ Berrie and Company, Inc. (Berrie), appeals from an order of respondent, the Illinois Human Rights Commission (Commission), entered on October 2, 1990. The appeal is pursuant to section 8-111 of the Illinois Human Rights Act (Act) (Ill.Rev.Stat.1989, ch. 68, par. 8-111(A)(1)). The Commission affirmed the decision of the administrative law judge (ALJ) finding that Berrie racially discriminated against respondent, Louis Carr, Jr. (Carr), in denying him employment. The petitioner raises three issues on appeal: (1) whether the Commission's finding was contrary to law and against the manifest weight of the evidence; (2) whether the Commission erroneously failed to consider evidence related to Carr's credibility and qualifications; and (3) whether the remedy of "instatement" by the Commission was an abuse of discretion. We reverse.

In July 1983, Carr, a black male, responded to a newspaper advertisement placed by Berrie. The advertisement offered a career opportunity in the sales field. Berrie sells a variety of gift items to retail stores, which in turn sell them to consumers. The Berrie distribution center in question is located in Itasca, Illinois. Carr sent in a cover letter and resume in response to the advertisement.

Each person who responded to the advertisement was interviewed at a hotel in Schaumburg, Illinois. Over 100 applicants were interviewed by various company representatives. Carr was interviewed by Sandy Presser, a regional sales manager for Berrie. Carr discussed his education and work experience, hobbies and the like. Ms. Presser told Carr he was the type of person Berrie was looking for. After all the interviews were completed, Sarah Sekulski, the director of sales, was given the resumes of applicants invited for second interviews. Carr was one of the invited applicants.

About two weeks later, Carr was called in for a second interview at the Itasca office. Ms. Sekulski was the interviewer. The Commission found that Sekulski asked Carr whether he felt inferior to white people and whether he would be comfortable selling to them. Sekulski denies asking those questions at the interview. After a second interview, the next step in the hiring process was a day in the field. Sekulski did not recommend Carr for a day in the field because she did not find him credible. He stated on his resume that he had a 90% closing ratio as an insurance salesman. Sekulski also thought that he lacked the proper attitude for the position. Sekulski did not inform Carr of this decision. He eventually contacted another Berrie official who told him the position had been filled.

In approximately December 1983, Carr saw another newspaper advertisement by Berrie seeking sales help. He responded again by sending a cover letter and resume. Again, he received an invitation initially to interview at a hotel, which was attended by approximately 150 to 175 applicants. Carr was scheduled to interview with a clerical employee, but when he mentioned that he had previously interviewed with Berrie, he was sent to Ms. Sekulski. Sekulski referred him to Randy Gendreau, a regional sales manager, for an independent opinion on Carr's qualifications. Gendreau conducted the interview and noticed the 90% closing ratio figure on Carr's resume. Gendreau found Carr unfit to continue the interviewing process.

Carr filed a complaint on October 25, 1985, alleging racial discrimination on the part of Berrie. Hearings were conducted in July and August 1986. On July 1, 1987, the ALJ recommended that Carr be instated in the position of sales representative with Berrie because of discrimination on the part of Sarah Sekulski. Randy Gendreau was found to have acted in a nondiscriminatory manner. Berrie was to pay lost wages of $21,379.28, and pay Carr's attorney fees and costs, which amounted to $25,115.61. Berrie was also to cease and desist from racial discrimination in its hiring practices. On October 2, 1990, the Commission entered an order affirming the recommendations of the ALJ.

Berrie's petition for rehearing, pursuant to section 8A-103(F) of the Act (Ill.Rev.Stat.1989, ch. 68, par. 8A-103(F)), was denied on February 1, 1991. Petitioner filed a timely appeal on March 5, 1991.

Petitioner first contends that the Commission's finding of racial discrimination was contrary to law and against the manifest weight of the evidence. The Commission's findings of fact will be sustained unless the findings are against the manifest weight of the evidence. (Ill.Rev.Stat.1989, ch. 68, par. 8-111(A)(2); Zaderaka v. Illinois Human Rights Comm'n (1989), 131 Ill.2d 172, 180, 137 Ill.Dec. 31, 545 N.E.2d 684.) A judgment is against the manifest weight of the evidence when an opposite conclusion is clearly evident from the record. (Evert v. Board of Trustees of the Fire Fighters' Pension Fund (1989), 180 Ill.App.3d 656, 660, 129 Ill.Dec. 459, 536 N.E.2d 143.) The weight given to testimony and the credibility of the witnesses is within the function of the agency. Jackson v. Board of Review of the Department of Labor (1985), 105 Ill.2d 501, 513, 86 Ill.Dec. 500, 475 N.E.2d 879.

Our supreme court adopted a three-step process used by the United States Supreme Court to analyze employment discrimination actions. (Zaderaka, 131 Ill.2d at 178, 137 Ill.Dec. 31, 545 N.E.2d 684, citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817.) First, the complainant must establish a prima facie case of unlawful discrimination. If a prima facie case is established, there is a rebuttable presumption that the employer unlawfully discriminated against complainant. The burden of production then shifts to the employer to show a nondiscriminatory reason for the decision. If the employer carries the burden and rebuts the presumption, the complainant must prove by a preponderance of the evidence that the employer's articulated reason was a pretext for unlawful discrimination. (Zaderaka, 131 Ill.2d at 178-79, 137 Ill.Dec. 31, 545 N.E.2d 684.) Throughout these stages, the burden of persuasion remains on the complainant. Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 256, 67 L.Ed.2d 207, 217, 101 S.Ct. 1089, 1095.

Petitioner did not dispute the finding that Carr met the burden of proving a prima facie case, creating the rebuttable presumption that Berrie unlawfully discriminated against Carr. Respondents cite the ALJ's finding that Carr need only meet the minimum objective qualifications for the position to prove a prima facie case of discrimination. (See Burrus v. United Telephone Co. of Kansas, Inc. (10th Cir.1982), 683 F.2d 339, 342.) According to the Commission, the only objective qualifications for a sales position at Berrie were that a resume be submitted and that the applicant have reliable transportation.

The presumption of unlawful discrimination was found to be rebutted by the Commission. Sekulski's reasons for not recommending Carr were that he made a misrepresentation on his resume and that he did not possess an attitude that Berrie deemed appropriate for sales. The Commission's conclusion that these reasons were nondiscriminatory is not contested by respondents.

The burden then shifted to Carr to prove that Berrie's reasons for not hiring him, the 90% closing ratio and his attitude, were a pretext for unlawful discrimination. Carr alleges that Sekulski asked him whether he felt inferior to white people or would have difficulty selling to them. The Commission made a finding of fact that Sekulski asked this question. Carr further argues that a memorandum Sekulski wrote concerning the interview with Carr demonstrates that Sekulski did not rely on the 90% closing figure when denying him employment. Finally, Carr argues that discrimination was evident based on the number of black people hired by Berrie at the two interviews attended by Carr, as well as the percentage of black people employed by Berrie at the time. For the reasons expressed below, we hold that the Commission's finding that the 90% closing ratio was a pretext to unlawful discrimination was against the manifest weight of the evidence.

The Commission's conclusion that Sekulski asked Carr whether he felt inferior to white people or would have difficulty selling to them is not supported by the record. The ALJ found that Carr should be believed over Sekulski because a previous applicant testified that Sekulski had asked her whether she would be comfortable selling to people of different nationalities. In fact, the record on appeal does not reflect this testimony. The Commission specifically found that this question was not asked by Sekulski in a previous interview. But, the Commission found that this factual error was "minor" and upheld the ALJ's finding that Sekulski had asked Carr the improper racial questions. The error made by the ALJ was not minor. Without the corroborating testimony supporting Carr's assertion of improper questioning, there is little evidence to support the Commission's finding that Sekulski asked Carr whether he felt inferior to white people or would have difficulty selling to white people.

The memorandum Sekulski wrote in January 1984 concerning Carr's interview...