Village of Bellwood Bd. of Fire and Police Com'rs v. Human Rights Com'n, 88-2081

• Decision Date: 28 June 1989
• Docket Number: No. 88-2081,88-2081
• Citation: 184 Ill.App.3d 339,133 Ill.Dec. 810,541 N.E.2d 1248
• Parties: , 133 Ill.Dec. 810, 56 Empl. Prac. Dec. P 40,641 VILLAGE OF BELLWOOD BOARD OF FIRE AND POLICE COMMISSIONERS, Petitioner, v. HUMAN RIGHTS COMMISSION, and Craig Kincaid, Respondents.
• Court: United States Appellate Court of Illinois

Page 1248

541 N.E.2d 1248

184 Ill.App.3d 339, 133 Ill.Dec. 810,

56 Empl. Prac. Dec. P 40,641

VILLAGE OF BELLWOOD BOARD OF FIRE AND POLICE COMMISSIONERS, Petitioner, v. HUMAN RIGHTS COMMISSION, and Craig Kincaid, Respondents.

No. 88-2081.

Appellate Court of Illinois First District, Third Division.

June 28, 1989.

Staehlin, Jantorni & Sullivan, Chicago (John M. Sullivan, Susan L. Jantorni, of counsel), for petitioner.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago (Bret A. Rappaport, Asst. Atty. Gen., of counsel), for Human Rights Com'n.

Paula J. Morency and Elizabeth M. Steit, Mayor Brown and Platt, Chicago, for Craig Kincaid.

MODIFIED OPINION UPON DENIAL OF REHEARING

Justice McNAMARA ^* delivered the opinion of the court:

Petitioner, Village of Bellwood Board of Fire and Police Commissioners (Bellwood), appeals from the orders of the Illinois Department of Human Rights (Commission), finding that respondent, Craig Kincaid, proved his allegations of racial harassment and discriminatory discharge, and ordering that Bellwood pay back pay, damages, attorney fees, and costs. Bellwood initially maintains that the Commission lacked authority to review its final decision to terminate the employment of a probationary police officer. Bellwood contends that in the event the Commission's review was proper, the decision of the Board must be upheld unless it is against the manifest weight of the evidence; that the findings that Kincaid was subject to racial harassment and that his discharge was racially motivated are against the manifest weight of the evidence; that the award of $10,000 in damages for emotional suffering was erroneous; and that the Commission abused its discretion in awarding attorney fees and costs.

On May 10, 1982, Kincaid filed a charge of discrimination with the Commission against the Bellwood Board, alleging racial discrimination in his discharge as a probationary police officer. Kincaid's charge was based on the following facts. Kincaid, a black male, was hired by Bellwood in March 1981, to serve as a probationary patrolman. He completed his preliminary training and began on June 11, 1981.

The probationary period in the Bellwood Police Department is one year. During that time, probationary officers receive on-the-job training from experienced sergeants and patrolmen. Lieutenants and sergeants solicit reviews from these supervising officers and incorporate them with their own observations into periodic written evaluations. The Chief of Police reviews the evaluations. If the probationer is working satisfactorily, he will be retained automatically and will become a full-time officer at the end of the probationary year.

At the time Kincaid began his probationary period, he was the second black police officer to join the department. The first officer, Jesse Williams, was hired in 1978 and successfully completed his probationary year.

Williams testified that when he arrived on the force in 1978, many of the officers refused to speak to him. During his probationary year, he heard various officers telling racially derogatory jokes. He did not report these incidents to his superiors. Williams also testified that twice during his probationary year, he found racially derogatory materials in his mailbox at the department. The materials were entitled "Nigger Application for Employment," and made numerous racial slurs. Again, he did not report these incidents to his superiors. Chief of Police Eastham testified, however, that he was aware of the circulation of such materials.

Kincaid testified that when he arrived on the force in 1981, he was subjected to numerous racial slurs. He stated that racially derogatory materials circulated around the department on a regular basis. Offensive cartoons routinely were tacked on bulletin boards in the roll-call room. These cartoons depicted blacks in various degrading situations. One such cartoon showed a black man discovering his wife making love with a cockroach. Kincaid indicated that several white officers watched him when he encountered such cartoons and laughed at his reaction to them. Furthermore, on at least one occasion, a racially derogatory poster was displayed in the locker room. The poster, approximately 2 feet by 3 feet in size, advertised a movie entitled "Ragtime." The words "lock the nigger up" and "one less nigger off the street" had been written on the poster in large letters. New captions derogatory to blacks were added on succeeding days. Supervising officers read these captions aloud and laughed at them in Kincaid's presence. Kincaid complained about the poster to his supervisors and asked that it be removed on two separate occasions. The poster remained on display for a week or more after Kincaid's complaints.

Kincaid additionally testified that the white officers with whom he was supposed to train refused to speak to him, and that a number of these officers freely engaged in jokes and slurs derogatory to blacks. One sergeant in particular was especially active in the use of these comments. This officer periodically interrupted other sergeants or lieutenants who were conducting roll-call to insert racially derogatory jokes.

Kincaid intimated that the racial slurs pervaded his working environment. One of the officers with whom he frequently rode, and who was supposed to be training him, made the statement that "all blacks look alike" and that he would "like to bash their heads in."

Kincaid complained to his supervising officers about the racially derogatory jokes, comments, cartoons and poster. One supervising officer told Kincaid that he had been afraid that something like this would happen and that he would have preferred to hire a Mexican rather than another black. This officer, however, took no action to stop the harassment.

In the fall of 1981, Sergeant Howard had the opportunity to evaluate Kincaid. Howard's evaluation of Kincaid was very favorable. He indicated that at that time it was his belief that Kincaid would make a very good police officer. Howard testified however, that Kincaid's attitude and performance deteriorated in the period subsequent to that evaluation. Other officers also had the opportunity to evaluate Kincaid in the fall of 1981. The majority of these evaluations reflected that the reviewing officers believed that Kincaid had an attitude problem; that he displayed a lack of enthusiasm for his job; that he was unable to learn how to accomplish various tasks such as filling out police reports and performing desk duty when called upon to do so; and that he displayed racial prejudice in that he favored blacks over whites. The testimony of various of these officers corroborated what they had stated in the evaluations.

Upon receipt of these evaluations, Kincaid protested to Chief Eastham that these evaluations were not accurate. Kincaid indicated that he believed he was the victim of racial discrimination. Eastham responded that Kincaid had to lodge these complaints with the evaluating officers.

Kincaid testified that he attempted to determine the reasons for the untrue evaluations. When confronted, Sergeant Mangano told him that he would just have to "take it." Sergeant DeBaro refused to speak to him at all. Kincaid again appealed to Eastham regarding the evaluations. Eastham indicated that he had read the evaluations and warned Kincaid that he needed to improve the evaluations or he would not become a permanent member of the department. Eastham did not discuss what aspects of Kincaid's performance needed improvement. In the past, when white probationary officers were perceived to be in trouble, they received citations, warnings, suspensions, and counseling prior to a termination decision being rendered.

Eastham testified on behalf of Bellwood. He stated that in October or November of 1981, he had the opportunity to review Kincaid's evaluations. He stated that when Kincaid approached him to discuss the evaluations, he told Kincaid that pursuant to department procedures, Kincaid first would have to speak to the evaluating officers. Eastham testified that this was the regular procedure to be followed for lodging complaints even when the complaint is about the evaluating officer.

Eastham testified that he next had the opportunity to review Kincaid's evaluations in December 1981. At that time, Eastham told Kincaid the evaluations were poor and that if Kincaid did not improve his performance in the next three months, he would recommend termination. Eastham stated that as of December 1981, he had not received any complaints from Kincaid regarding unfair treatment, nor had he heard about any complaints of racial discrimination from the sergeants or lieutenants. Furthermore, Eastham stated that although he rarely went into either the roll-call room or the locker room, on those occasions when he did, he did not see any cartoons or posters.

On March 17, 1982, Eastham recommended to the Bellwood Board that Kincaid's employment be terminated prior to the end of his probationary year. The Board informed Kincaid that his employment was terminated effective March 19, 1982. Subsequently, the Board recalled Robert Johnston, a white male, from layoff status. Eastham testified that prior to Johnston's layoff, he had received very poor evaluations, and likely would have been terminated.

After a hearing, the Administrative Law Judge (ALJ) found in favor of Kincaid. Bellwood filed a statement of exceptions and request for oral argument before the Commission. The Commission, with minor alterations, adopted the order and decision of the ALJ.

Bellwood first contends that the Commission has no legal authority to review its final decision to terminate the employment of a probationary police officer. Bellwood claims that Kincaid's proper recourse was review under the Administrative Review Act. (Ill.Rev.Stat.1981, ch. 110, par. 3-101 et seq.) Kincaid counters that Bellwood has waived its right to raise this...