Sherman v. Human Rights Com'n

• Decision Date: 06 December 1990
• Docket Number: No. 4-89-0979,4-89-0979
• Citation: 151 Ill.Dec. 226,564 N.E.2d 203,206 Ill.App.3d 374
• Parties: , 151 Ill.Dec. 226 Tanja SHERMAN, Petitioner, v. The HUMAN RIGHTS COMMISSION, et al., Respondents.
• Court: United States Appellate Court of Illinois

Page 203

564 N.E.2d 203

206 Ill.App.3d 374, 151 Ill.Dec. 226

Tanja SHERMAN, Petitioner, v. The HUMAN RIGHTS COMMISSION, et al., Respondents.

No. 4-89-0979.

Appellate Court of Illinois,

Fourth District.

Dec. 6, 1990.

Leahy Law Offices, Springfield, Mary Lee Leahy, Cheryl Redfield Jansen, of counsel, for petitioner.

Samuel C. Patton, Springfield, for Quincy Country Club.

Neil F. Hartigan, Atty. Gen., Chicago, Robert J. Ruiz, Sol. Gen., Tanya Solov, Asst. Atty. Gen., for respondents.

Justice McCULLOUGH delivered the opinion of the court:

Petitioner Tanja Sherman filed a charge of sex discrimination and sexual harassment against her employer, Quincy Country Club (Club) with the Department of Human Rights (Department). Following the first administrative hearing, the Illinois Human Rights Commission (Commission) adopted the findings of the administrative law judge (ALJ) and issued a decision in favor of petitioner. (In re Tanja Sherman (1983), X Ill.Hum.Rights Comm'n Rep. 381.) On administrative review, this court reversed the Commission because the findings of the ALJ were based on credibility determinations made by a prior ALJ who resigned before a recommended decision was issued. (Quincy Country Club v. Human Rights Comm'n (1986), 147 Ill.App.3d 497, 101 Ill.Dec. 134, 498 N.E.2d 316.) Following a second administrative hearing, another ALJ issued a recommended decision for petitioner. The Commission reversed the ALJ, finding his decision was contrary to the manifest weight of the evidence and dismissed petitioner's complaint with prejudice. (In re Tanja Sherman (June 2, 1989), Ill.Hum.Rights Comm'n Rep. (HRC No. 1982SN0437).) Petitioner argues the ALJ's decision was supported by the manifest weight of the evidence and the Commission erred in reversing the ALJ's recommended decision. We affirm the Commission.

PETITIONER'S CASE IN CHIEF

In early November 1981, petitioner interviewed for a job as a bartender at the Club after hearing about a job opening from Terry Bolt, head bartender or bar manager at the Club. Bolt and petitioner had worked together previously for another employer. According to petitioner, she was interviewed by Bolt and the Club's manager, Jerry Carnivale. Petitioner testified Bolt told her about her job duties and hours, and that he would alternate working every other Sunday in place of petitioner. Petitioner was hired on November 12, 1981, to work in the Carnoustie Room at the Club. Petitioner stated she reported to Bolt, who scheduled petitioner to work Wednesday through Saturday from 11 a.m. to 4 p.m. and every other Sunday. Bolt also (1) told petitioner which party she worked on; and (2) determined which bartender stayed late for the parties. Petitioner stated Bolt told her if she was good, he would give her a raise.

Shortly after she began working for the Club, petitioner became involved in a sexual relationship with Bolt outside of work. In March 1982, petitioner stated she told Bolt she wanted to break off the relationship. Bolt became upset and, according to petitioner, told her he did not want to see anyone else. Petitioner testified Bolt told her if he could not work with her and be with her after work "he would either quit or go crazy, he didn't know which." Petitioner stated she finally terminated the relationship with Bolt on April 6, 1982. However, Bolt continued to ask petitioner out on a daily basis.

Petitioner testified that after April 6, 1982, her job duties and the conditions of her employment changed. Petitioner stated Bolt (1) required her to carry heavy boxes of liquor and glasses up the stairs from the storeroom to the dining-room area; (2) sent her home early from parties when before April 6, 1982, she was the last one to leave; (3) spoke to her in a rude Petitioner began working at the Brass Tap for additional income in April 1982, while working at the Club. Bolt told petitioner not to tell Carnivale about the second job because Carnivale did not like his employees having a second job. After petitioner told Carnivale about the second job, Carnivale told petitioner it was no problem as long as the Club remained petitioner's priority.

[151 Ill.Dec. 229] manner and made snide remarks; (4) repeatedly told her she did not know what she was doing; and (5) refused to allow petitioner to take every other Sunday off. Petitioner testified the other bartenders at the Club were males and their duties did not change after April 6, 1982. Petitioner was not reprimanded for her work prior to April 6, nor made aware of any complaints about her work or conduct. Bolt was not involved in a relationship with any other bartenders at the Club while petitioner was employed there.

The last day petitioner was scheduled to work was Sunday, May 2, 1982. On that day, petitioner's 15-month-old daughter fell down a flight of stairs at home. According to petitioner, she called Bolt at the Club on May 2, told him about the accident, and said she did not think she could come in to work. She asked Bolt to tell Carnivale. Carnivale called petitioner back a few minutes later and told her "to get her butt to work." Petitioner told Carnivale she would arrive to work in about 10 minutes. Petitioner stated she was getting ready to take her daughter to the baby-sitter when the Club's hostess, Michelle Gilland, called to tell her Carnivale did not want her to come in that day but the next day, Monday, at 9 a.m. Petitioner did not work on May 2 and came into the Club on Monday, but Carnivale was not there. After leaving a message for Carnivale that she had come in, petitioner left. Petitioner stated Carnivale called her on Tuesday, May 4, 1982, and stated he thought petitioner would be happier at the Brass Tap, "it was more her type of place." Carnivale fired petitioner. Petitioner testified she never received any notice or complaint about her job performance while other employees had received such notices on occasion.

On cross-examination, petitioner stated that while Carnivale was the only person who could hire and fire employees, Bolt told petitioner the day she was to start work. Petitioner admitted she was absent from work six times from November 1981 to May 1982 and tardy 24 times. Petitioner stated Bolt was the one who told her she could leave before the end of her shift. Petitioner stated Carnivale was never around but he would "pop in" every once in a while on his way to the golf course. Petitioner stated she never left her job at the Club early to go to her second job at the Brass Tap. Petitioner also stated (1) no one told her to tie up her hair at work but she tied it up every day voluntarily; (2) she never had any complaints about improperly stocking the bar; (3) she did not read while working; and (4) if she had to leave early, Bolt would cover for her.

Regarding her termination, petitioner stated on cross-examination that on May 2 Carnivale did not tell her that she would be terminated if she did not come in. Petitioner stated when she was fired on May 4, 1982, Carnivale stated her services were no longer needed and he did not mention anything else. Petitioner stated Carnivale was the one who scheduled the work hours for employees and the only duties Bolt performed other than tending bar were the ordering of liquor and preparation of the bar inventory.

On redirect, petitioner stated a male bartender was fired and rehired within one month while she worked at the Club. Petitioner also testified she was given a cash box with a combination lock to use when working. Petitioner stated she picked up the cash box daily from the office when her shift started at 11 a.m. She was told to count the money in the box to see that it matched the receipt she signed. Often the amount of money was less than $50 as reflected on the receipt. After bringing the discrepancy to the attention of the office staff, the discrepancy was either corrected or left alone. If there was more than $50 in the box, the office staff would Carnivale testified as an adverse witness for petitioner. Carnivale had been the manager of the Club since October 1980. According to Carnivale, Bolt was in charge of ordering supplies and liquor. Carnivale testified he did not know when he hired petitioner that she had worked with Bolt previously. Carnivale was impeached with statements to the contrary he made at the first administrative hearing. Carnivale admitted he had nothing in his records to indicate petitioner's work was not satisfactory. Carnivale brought a problem to an employee's attention if he considered it was serious. He did not recall giving blue slips to tardy employees. He recalled that Randy Riggs, a bartender at the Club, was consistently tardy and he talked to him about his tardiness. Carnivale admitted firing Riggs in November 1981 and rehiring him in January 1982. Carnivale admitted Riggs continued to be tardy after being rehired but also stated Riggs was excellent at his job.

[151 Ill.Dec. 230] correct the error. Petitioner stated four other bartenders knew the combination to her box and everyone had access to it when she was working. Petitioner stated Bolt told her to leave her cash box under the counter at the bar at the end of her shift and the night bartender would turn the box in at the end of the evening. According to petitioner, Carnivale did not tell her she had to return the cash box to the office at the end of her shift.

Rhonda Young testified for petitioner that she was employed as a bartender in the Carnoustie Room at the Club in the fall of 1981. Young stated Bolt was the manager and he called her at home one day after he changed the schedule and asked her to come into work. After Young replied she did not want to come into work, Bolt stated if Young did not come into work she would not have a job, "she did not need to go back." Young stated she did not go back and she was fired.

Linda Cosgrove was employed as a waitress for the Club from November 1981 to April 1983. Cosgrove testified...