{ "id": 3460251, "name": "LOYOLA UNIVERSITY OF CHICAGO, Plaintiff-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Defendants-Appellees", "name_abbreviation": "Loyola University of Chicago v. Human Rights Commission", "decision_date": "1986-11-05", "docket_number": "No. 85-3690", "first_page": "8", "last_page": "23", "citations": [ { "type": "official", "cite": "149 Ill. App. 3d 8" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "443 N.E.2d 592", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "93 Ill. 2d 231", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3103175 ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0231-01" ] }, { "cite": "101 S. Ct. 1417", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "67 L. Ed. 2d 383", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "450 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6301545, 6300427, 6301259, 6300238, 6300723, 6299927, 6300989 ], "opinion_index": 0, "case_paths": [ "/us/450/0959-07", "/us/450/0959-03", "/us/450/0959-06", "/us/450/0959-02", "/us/450/0959-04", "/us/450/0959-01", "/us/450/0959-05" ] }, { "cite": "630 F.2d 1217", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 392718 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/630/1217-01" ] }, { "cite": "104 S. Ct. 2151", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "80 L. Ed. 2d 537", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "466 U.S. 950", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6317571, 6316356, 6316709, 6316518, 6317959, 6316907, 6318712, 6318222, 6317105, 6317329, 6318481, 6318968, 6317788 ], "opinion_index": 0, "case_paths": [ "/us/466/0950-07", "/us/466/0950-01", "/us/466/0950-03", "/us/466/0950-02", "/us/466/0950-09", "/us/466/0950-04", "/us/466/0950-12", "/us/466/0950-10", "/us/466/0950-05", "/us/466/0950-06", "/us/466/0950-11", "/us/466/0950-13", "/us/466/0950-08" ] }, { "cite": "714 F.2d 614", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1886576 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/714/0614-01" ] }, { "cite": "469 F. Supp. 37", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4071227 ], "opinion_index": 0, "case_paths": [ "/f-supp/469/0037-01" ] }, { "cite": "594 F. Supp. 48", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3698521 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f-supp/594/0048-01" ] }, { "cite": "566 F.2d 994", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 902007 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/566/0994-01" ] }, { "cite": "620 F.2d 155", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1372433 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f2d/620/0155-01" ] }, { "cite": "427 U.S. 273", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175990 ], "weight": 12, "opinion_index": 0, "case_paths": [ "/us/427/0273-01" ] }, { "cite": "691 F.2d 504", "category": "reporters:federal", "reporter": "F.2d", "opinion_index": 0 }, { "cite": "497 F. Supp. 583", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4168066 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/f-supp/497/0583-01" ] }, { "cite": "403 N.E.2d 1271", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 388", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5551633 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0388-01" ] }, { "cite": "133 Ill. App. 3d 19", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "450 U.S. 248", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184064 ], "weight": 12, "opinion_index": 0, "case_paths": [ "/us/450/0248-01" ] }, { "cite": "446 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 19", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3624610 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0019-01" ] }, { "cite": "478 N.E.2d 1115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530559 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0221-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 15, "opinion_index": 0, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "349 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2804641 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0967-01" ] } ], "analysis": { "cardinality": 1243, "char_count": 33481, "ocr_confidence": 0.741, "pagerank": { "raw": 3.1381242797395474e-07, "percentile": 0.8617162622222376 }, "sha256": "b18071ec36349ecd4fd4b6dbf40e48da28b4268ccf82c62129346287dc94f2e2", "simhash": "1:65dd2edd61c0aa55", "word_count": 5399 }, "last_updated": "2023-07-14T21:36:15.078878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LOYOLA UNIVERSITY OF CHICAGO, Plaintiff-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPlaintiff, Loyola University of Chicago, appeals from a trial court order affirming a decision of the Human Rights Commission which held that plaintiff discriminated against defendant Eugene Irvin, Sr., on the basis of race and the basis of retaliation for his filing a complaint with the Commission. On appeal plaintiff contends that the Commission\u2019s decision is against the manifest weight of the evidence because it disregards certain evidence, because Irvin failed to establish a prima facie case of racial discrimination and retaliation, and because plaintiff\u2019s reason for discharging Irvin was not shown to be pretextual. Plaintiff also contends that the Commission abused its discretion by awarding reinstatement, back pay, and attorney fees.\nIrvin, a black male, began working as a security officer at plaintiff\u2019s medical complex in Maywood on January 28, 1980. A June 1980 job evaluation rated Irvin\u2019s work performance \u201cexcellent \u2014 consistently exceeds most performance standards,\u201d and added that he would be promotable in the future. A January 1981 job evaluation again rated his performance as excellent and stated that Irvin was promotable now. His job strengths were listed as \u201cjob knowledge, dependability, adaptability, and ability to work with others.\u201d\nOn April 1, 1981, Irvin filed a charge of race discrimination with the Department of Human Rights alleging that he was denied a promotion because of his race. On April 8, 1981, plaintiff received notice of the charge. On April 27, 1981, Susan Paraday, another employee, wrote a letter to plaintiff alleging that Irvin had made sexually suggestive comments to her. On May 12, 1981, plaintiff\u2019s personnel director held a meeting at which Irvin was asked to respond to the allegations made by Paraday. Irvin denied the charges. On May 13, 1981, Irvin filed a charge with the Department of Human Rights alleging retaliation for having filed the original failure-to-promote charge. On May 15, 1981, plaintiff fired Irvin. On May 20, 1981, Irvin amended his retaliation charge to include the termination. On November 17, 1981, the Department of Human Rights filed a report finding plaintiff had treated Irvin differently than it had treated other employees, and on March 31, 1982, the Department filed a complaint with the Human Rights Commission. On April 21 and 22, 1983, a hearing was held before an administrative law judge (ALJ). The following evidence was adduced.\nThe April 27 letter from Faraday to plaintiff stated that on April 26 at 6:30 a.m. Irvin came in to relieve Faraday, who commented that she was tired. Irvin remarked that she could rest on a table in the obstetric-gynecological department, referring to the stirrups at the ends of the table, because the \u201cstirrups are good to hold the legs apart.\u201d Faraday left the control center in disgust. The letter also referred to other instances when Irvin made suggestive remarks to Faraday, \u201cremarks that I feel have sexual meanings on his part.\u201d In March Irvin called Faraday and asked if she liked him. When she replied negatively, Irvin asked if she hated him. Faraday again replied negatively. Irvin then asked Faraday to give him a wake-up call. \u201cAlmost whenever Irvin sees me he starts a conversation and does it with almost the same kind of suggestive remarks.\u201d The letter concluded by stating that Faraday did not want to hurt Irvin, but that she wished the department director would make him stop his behavior towards her.\nAt the hearing, it was established that plaintiff has written disciplinary procedures which grade offenses on four levels. The procedures assign a specific disciplinary measure to each level of offense, depending on the severity of the offense and the number of previous offenses committed in the preceding year. Level 1 offenses require a verbal reprimand for a first offense; a first written warning for a second offense; a second written warning for a third offense; suspension of one to five days for a fourth offense; and discharge for a fifth offense. Level 2 offenses require a written warning for a first offense; suspension of three days for a second offense; and discharge for a third offense. Level 3 offenses require suspension of five days for a first offense, and discharge for a second offense. Level 4 offenses require discharge for the first offense.\nIrvin\u2019s discharge report showed that he had received three verbal warnings in the eight months prior to his termination but that none were for the same type of offense. On August 8, 1980, he was verbally warned for not following proper departmental procedure in filing a complaint with the State\u2019s Attorney on behalf of plaintiff against another employee for theft. On January 16, 1981, Irvin was verbally warned for falling asleep during a departmental meeting. On April 12, 1981, 11 days after filing his original discrimination complaint, he was verbally warned for not carrying a flashlight. The report further indicated that Irvin had been discharged for \u201cconduct which violated community standards of decency and morality; sexual harassment,\u201d which is a level 3 infraction. The discharge report did not mention Irvin\u2019s conduct during the May 12 meeting. The report was prepared by Faraday\u2019s supervisor, who had not attended the meeting. Irvin\u2019s termination notice stated that Irvin \u201chad a very disruptive influence upon operations of the security department and the department\u2019s employees.\u201d\nThrough the testimony of Leslie Gallay, plaintiff\u2019s employee-relations manager, and Edward Pedziwiatr, plaintiff\u2019s director of security, it was established that in the year preceding Irvin\u2019s termination plaintiff had disciplined other employees for the level 3 offense of immoral and indecent conduct. On May 31, 1980, Jaime Ochoa, a nonblack, received a five-day suspension after grabbing the breast of a deaf-mute employee in a store room. Ochoa admitted to the misconduct and promised to cease such harassment. Ochoa had received a written warning for a level 2 violation 21k years prior to the sexual-harassment incident. In September 1980, Alex Surmaczynski, a nonblack, received a five-day suspension for a level 3 infraction after several female employees reported various acts of Surmaczynski. These incidents included following one woman into an elevator and asking if she loved him; following her on a different occasion and patting her on the buttocks; asking her on another day if she would go out with him; touching another woman\u2019s breast; and waiting at the bottom of stairs to watch women walk upstairs. Surmaczynski admitted his misconduct and apologized. Surmaczynski had received a written warning for a level 2 violation 18 months earlier. On March 10, 1981, Manuel Garcia, a nonblack, received only a verbal warning after several women reported that he had made lewd remarks and improper gestures, including rubbing the thigh of a nurse who was taking his blood pressure in the emergency room. Garcia admitted to the misconduct, was remorseful, and apologized. The three evaluations given Garcia prior to this incident rated his work as \u201cvery good\u201d and all three evaluations listed areas needing improvement. Garcia had received a level 3, five-day suspension 21k years earlier, and a written warning for a level 2 offense 2 years earlier.\nIt was further established that on May 5, 1980, Thomas Campagna, a security officer, was discharged for having a female employee sitting on his lap while he was on duty in the main lobby. Campagna failed to enforce visitor policy or monitor visitor passes during this time. While the original charge was classified as level 3 \u2014 \u201cimmoral and indecent conduct which violates common decency or morality\u201d \u2014 the charge was subsequently changed to level 4 \u2014 \u201cactions which could reasonably cause harm to patients, students, visitors, or employees through intentional acts of commission or omission.\u201d Campagna had received two written disciplinary warnings during the year prior to his termination. The first warning was for tardiness and the second was for action which could cause harm to a trainee officer.\nLowell Dunlap, assistant to plaintiff\u2019s vice-president for administration, testified that Irvin was fired because of the Paraday incidents, including a verbal attack on Paraday at the May 12, 1981, meeting. Dunlap stated that at that meeting, Irvin was confronted by Paraday in front of their supervisors. At one point, Irvin turned to Paraday and \u201csaid words to this effect, \u2018Your husband would be very interested in knowing about your boy friend.\u2019 \u201d Dunlap stated that the people at the meeting viewed the remark as a \u201cverbal attack\u201d which was \u201cirrelevant to the nature of the charges.\u201d Dunlap believed that discharging Irvin was the only way to guarantee that the harassment would not occur in the future. Dunlap testified further that during various conversations he had with Paraday concerning Irvin, she had been very distraught.\nPedziwiatr testified that Irvin was fired because of his performance in the department, his comment that Paraday was dating an engineer, and the sexual comment on April 26. At the May 12 meeting, Irvin \u201cmentioned something about Susan Paraday dating an engineer in the maintenance department.\u201d Pedziwiatr believed Irvin was merely trying to discredit Paraday. Pedziwiatr thought that very few people in the department liked Irvin, that his superiors had difficulty with him, that he was a trouble maker, and that his presence was counterproductive to efficiency and morale.\nIrvin testified that on April 26, 1981, he spoke with Paraday twice but did not make sexually suggestive remarks to her. When he arrived to relieve her, an engineer was about 30 feet away. Irvin stated further that at the May 12 meeting he was shown Paraday\u2019s letter and that was the first time he heard of the sexual-harassment charges. He denied the allegations and asked Paraday why she would do something like that. Irvin stated that he had no other direct conversation with Paraday during the meeting. At the end of the meeting, Irvin spoke to the personnel director, saying \u201cMr. Heuel, it isn\u2019t even logical that a man would say something out of the way to a female and her boy friend is right there about 25 or 30 feet away from them.\u201d Irvin testified that on May 15 he was told by his supervisor and the director that since Irvin would not resign and would not admit what he had done he was being fired. He was given no other reasons for the discharge. Irvin also stated that on other occasions he had asked Paraday to give him a wake-up call, which was a typical practice for the security personnel.\nNorbert Heuel, personnel director, testified that when Irvin was first confronted with Faraday\u2019s letter at the May 12 meeting, Irvin asked if an engineer had been present when the comment was allegedly made. Paraday stated that the engineer had not been present, and Irvin replied that he would not make those statements in front of the engineer. Heuel described Irvin as very annoyed and \u201cnot hostile, but I think he was retaliatory.\u201d Heuel testified that generally sexual-harassment charges were investigated and turned over to the EEO officer. He also stated that sexual harassment was a level 3 infraction which required suspension before discharge. During Heuel\u2019s testimony, plaintiff attempted to introduce a letter written by Irvin\u2019s estranged wife accusing him of misconduct generally related to his family life. The letter was received by plaintiff on August 9, 1982. Heuel testified that the allegations typically trigger an investigation and possibly termination. The ALJ refused to admit the letter as evidence on the grounds that it was hearsay and received after the termination.\nSusan Paraday, a security-officer dispatcher, testified that Irvin had made the comment regarding her resting on an obstetric-gynecological table on April 26, 1981. Irvin had previously made comments to her, but none had been so direct and usually she just ignored him. The previous comments included such statements as \u201cI can\u2019t believe a girl like you would be going straight home,\u201d or saying that a girl like Paraday should have lots of boyfriends. After Irvin made the comment on April 26, Paraday walked out of the room. Paraday was advised by a co-worker to report the incident to the director. Paraday also testified that at the May 12 meeting, Irvin \u201cdenied ever saying anything and just got very upset, saying that I had a lot of boyfriends *** implicating one of the engineers.\u201d Paraday could not remember exactly what Irvin said at the meeting. She believed that Irvin was \u201cjust hurt and had to get back at me.\u201d After the meeting, Paraday went to Hogan\u2019s office, crying, and told Hogan she was going to quit. She testified that she was not afraid of Irvin.\nSandra O\u2019Rourke, a security officer, testified that she and Para-day were friends and had discussed Irvin\u2019s behavior several times. O\u2019Rourke believed Irvin\u2019s misconduct was escalating and she advised Paraday to report the behavior to the director.\nJohn Hogan, associate director of security, testified that Paraday came to his office on April 27, 1981, with the letter describing the incident with Irvin. Paraday was crying and considering quitting. She said this was not the first time Irvin had made suggestive remarks.\nFollowing the hearing, the ALJ issued an interim recommended order and decision. The ALJ found that plaintiff\u2019s stated reason for dismissing Irvin was sexual harassment committed on April 26, \u201cas well as other alleged generally related incidents between the two, either mentioned in that letter or at the May 12, 1981 meeting.\u201d The ALJ found that the termination was inconsistent with plaintiff\u2019s past policies which make a 5-day suspension appropriate because Irvin\u2019s conduct \u201cwas a first offense under Respondent\u2019s disciplinary procedure.\u201d The ALJ continued that Irvin\u2019s termination was disparate from plaintiff\u2019s discipline of three nonblack employees accused of sexual harassment, as Irvin\u2019s acts were no more severe than the acts of the other three employees. The ALJ found that Campagna was not similarly situated because he was fired for failure to carry out his work duties and was not accused of sexual harassment. The ALJ also found that evidence of any comments made prior to April 26 was sketchy but that these comments did not appear to be sexual in meaning. In regard to the May 12 meeting, the ALJ found that each witness had a different version of Irvin\u2019s comments. \u201cEven when taken in the light least favorable to Complainant, I find no sexual nature to this comment. Nor would it qualify as a sexual advance, or a request for a sexual favor.\u201d\nThe ALJ concluded that Irvin had made a prima facie case of racial and retaliatory discrimination against plaintiff; that plaintiff articulated a legitimate nondiscriminatory reason for its action; that Irvin demonstrated those reasons were pretextual; and that plaintiff has discriminated against Irvin on the basis of race and in retaliation for his previous charge of a civil rights violation. The ALJ recommended that the complaint be sustained; that Irvin be reinstated and given back pay; that plaintiff pay reasonable attorney fees and costs to Irvin. Irvin filed a petition for costs and attorney fees. Plaintiff filed general exceptions to the ALJ\u2019s findings and recommended order, and objections to Irvin\u2019s petition. The ALJ issued a recommended order and decision incorporating his interim report and awarding Irvin $17,722 for attorney fees.\nOn September 19, 1984, a hearing was held before the Commission. On March 4, 1985, the Commission adopted the ALJ\u2019s recommended order and decision. On November 19, 1985, the trial court upheld the Commission\u2019s order.\nUnder the Illinois Human Rights Act (Act), the Commission\u2019s findings of fact shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1985, ch. 68, par. 8\u2014111(A)(2).) Moreover, judicial review under the Act is to be in accordance with the provisions of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3\u2014101 et seq.) (Ill. Rev. Stat. 1985, ch. 68, par. 8 \u2014 111(A)(1)). Under the Administrative Review Law, the agency\u2019s findings of fact shall be held to be prima facie true. (Ill. Rev. Stat. 1985, ch. 110, par. 3\u2014110.) The decision of the administrative agency is not to be overturned unless contrary to the manifest weight of the evidence. General Electric Co. v. Fair Employment Practices Com. (1976), 38 Ill. App. 3d 967, 349 N.E.2d 553.\nPlaintiff contends that the Commission\u2019s finding that Irvin established a prima facie case of discrimination is against the manifest weight of the evidence. In analyzing employment discrimination actions under the Illinois Human Rights Act, Illinois courts use the three-step analysis set forth in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. (See Village of Oak Lawn v. Human Rights Com. (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115; Freeman United Coal Mining Co. v. Fair Employment Practices Com. (1983), 113 Ill. App. 3d 19, 446 N.E.2d 543.) Initially, the employee has the burden of proving by a preponderance of the evidence a prima facie case of unlawful discrimination. This creates a rebuttable presumption. (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) The employer must then clearly set forth a legitimate, nondiscriminatory reason for its employment decision in order to successfully rebut the presumption of unlawful discrimination. (450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) If the employer is successful, the presumption of unlawful discrimination is no longer present in the case. (450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) The employee must then prove by a preponderance of the evidence that the legitimate reason offered by the employer was not the true reason underlying its employment decision and that it was only a pretext. This burden merges with the employee\u2019s ultimate burden of proving whether the employer unlawfully discriminated. 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089; Village of Oak Lawn v. Human Rights Com. (1985), 133 Ill. App. 3d 19, 446 N.E.2d 543.\nIrvin has alleged discrimination based on both race and retaliation. A prima facie case of discrimination based on retaliation may be established by showing a short time span between the filing of the charge and the employer\u2019s adverse action. (Alexander v. Fair Employment Practices Com. (1980), 83 Ill. App. 3d 388, 403 N.E.2d 1271.) On April 1, 1980, Irvin filed a charge that plaintiff failed to promote him on the basis of his race. On April 8 plaintiff received notice of the charge. On April 29 a fact finding conference was held. On May 12 plaintiff held a meeting regarding the sexual-harassment allegations with Irvin and many of the same persons who were involved in the conference concerning the failure-to-promote charge. On May 15 Irvin was fired. Plaintiff argues that after Faraday\u2019s alleged harassment on April 27, Irvin was not discharged until May 15 and that the time between Irvin\u2019s filing a charge and Faraday\u2019s alleging harassment was a mere coincidence which cannot create an inference of retaliation. The focus, however, is on the relationship between the filing of the failure-to-promote charge and the discipline plaintiff imposed for the sexual-harassment offense, and not on the relationship between the filed charge and Faraday\u2019s allegations. The short period of 37 days between the filed charge and plaintiff\u2019s decision to fire Irvin is sufficient to establish a prima facie case of discrimination based upon retaliation.\nA prima facie case of discrimination based on race may be established by showing that similarly situated employees of a different race were treated more favorably, and what constitutes that prima facie case will vary according to the specific claim. (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) We are not concerned with the harshness of the discipline imposed in itself but instead are only concerned with whether the discipline was harsher than that imposed on comparable persons of other races. (Mosley v. General Motors Corp. (E. D. Mo. 1980), 497 F. Supp. 583, aff\u2019d (8th Cir. 1982), 691 F.2d 504.) An employer cannot impose different standards of discipline on different races. (McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574.) In the year prior to Irvin\u2019s termination, three other employees were charged with sexual harassment, yet plaintiff either imposed no discipline or only briefly suspended those employees, while it fired Irvin for the same level 3 offense. Thus, Irvin established a prima facie case by proving that he is a member of a protected class who was disciplined in a harsher manner than comparably situated persons of a different race. (See Mosley v. General Motors Corp. (E. D. Mo. 1980), 497 F. Supp. 583.) We also agree with the Commission that plaintiff has successfully articulated a legitimate, reasonable explanation for its disciplinary action.\nPlaintiff\u2019s successful rebuttal of the presumption of discrimination permits the presumption to drop from the case. At this point, Irvin may show that plaintiff\u2019s stated reasons for discharging him are pretextual. One method of showing pretext is to demonstrate that employees involved in misconduct of comparable seriousness were retained, while the complainant was discharged. (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817; Donaldson v. Taylor Products Division of Tecumseh Products Co. (7th Cir. 1980), 620 F.2d 155.) An employer may justifiably discipline disruptive employees, but only if the disciplinary criterion is applied alike to all races. (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) An employer cannot retain guilty employees of one color, while firing guilty employees of another color. (McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574.) Disciplining employees in a different manner is probative of discrimination only if the other employees were situated similarly to complainant. (Donaldson v. Taylor Products Division of Tecumseh Products Co. (7th Cir. 1980), 620 F.2d 155; Corley v. Jackson Police Department (5th Cir. 1978), 566 F.2d 994.) To determine whether the employees were situated similarly, courts focus on the similarity of the misconduct and the employees\u2019 work records. (Gill v. Westinghouse Electric Corp. (N. D. Ill. 1984), 594 F. Supp. 48; Williams v. Yazoo Valley-Minter City Oil Mill, Inc. (N. D. Miss. 1978), 469 F. Supp. 37.) \u201cPrecise equivalence,\u201d however, is not required. (McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574. The other employees\u2019 circumstances need only be sufficiently parallel to permit an inference of comparability. 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574.\nIn the present case, we find Irvin has established that the three employees he uses as comparatives were similarly situated. Initially we note that the Commission apparently erred in stating that Irvin\u2019s discharge report \u201cshows no warnings of any sort were given to Complainant in the twelve month period prior to the discharge.\u201d The report is somewhat confusing in that it does show that no previous warnings were given for offenses of the same nature. Irvin was verbally reprimanded, however, for three offenses of a different nature than the one at issue here. We do not, however, find the earlier warnings to be dispositive in distinguishing the other three employees' situations, and thus the error did not prejudice plaintiff.\nPlaintiff\u2019s cumulative system of discipline is not without flexibility, and does not mandate mathematically precise application. For example, when plaintiff believes the employee\u2019s misconduct is not corrected by the suggested disciplinary action, or when the offense requires immediate discharge in the eyes of plaintiff, the progressive disciplinary scheme need not be followed. As another example of the lack of precision plaintiff uses in applying its disciplinary scheme, we note that plaintiff considers such mitigating factors as an employee\u2019s willingness to apologize, and such aggravating factors as an employee\u2019s refusal to admit wrongdoing. The flexibility inherent in plaintiff\u2019s disciplinary scheme is also seen in its decision not to discipline Garcia for committing the level 3 infraction of sexual harassment. Plaintiff characterizes this as an occasional instance of leniency. Now, however, plaintiff attempts to rely, with mathematical precision, on the distinction between Irvin\u2019s work record showing three prior violations, and the other employees\u2019 work records showing no prior violations within the previous 12 months. A closer look at the employees\u2019 misconduct and work records reveals the pretextual nature of this argument.\nGarcia fondled one nurse\u2019s thigh and made lewd remarks to several other women. Garcia was not disciplined. Ochoa grabbed the breast of a deaf-mute employee. Ochoa was suspended for five days. Surmaczynski repeatedly harassed one woman by following her, touching her intimately, and making sexual comments. He touched another woman\u2019s breast, and watched other women walk upstairs. Surmacynski was suspended for five days. Irvin commented to Paraday that she could rest on a gynecological table which would hold her legs spread apart. He was fired. The type of misconduct involved in the first three cases involved physically touching the women and thus was more serious than Irvin\u2019s conduct, yet he received a much harsher punishment. Plaintiff\u2019s characterization of Irvin\u2019s conduct as a \u201cpremeditated\u201d and \u201csystematic campaign of harassment against a single individual\u201d is without support in the record. Plaintiff\u2019s characterization of the other three employees\u2019 conduct as \u201cisolated incidents\u201d in which they \u201cimpulsively misbehaved\u201d is also not supported by the record. Nothing in the record indicates the April 26 comment by Irvin was premeditated.\nWe now look at plaintiff\u2019s explanation that Irvin\u2019s work record within the 12 months prior to the sexual-harassment charge was worse than the other three employees\u2019 records. Irvin received three prior warnings. The first warning was a level 1 verbal warning for not following proper procedure in filing a complaint with the State\u2019s Attorney\u2019s office. The second warning was a level 1 verbal warning for falling asleep at a meeting. The record shows that Irvin had given a written explanation that he came off work from an all-night shift, was taking allergy medication, and went to the meeting. After watching seven training films, he fell asleep. The third warning was a level 1 verbal warning for failure to wear his flashlight. Irvin\u2019s written explanation was that he was not working in any areas outside where he would need a flashlight, and the flashlight worn in the correct position was painful due to an old bullet wound. He was told to wear the flashlight in a different position on his belt, and he evidently complied. We also note that this warning occurred only four days after plaintiff received notice of the original discrimination charge. These offenses cannot be equated with a charge of sexual harassment, and plaintiff did not treat them as progressive offenses. Instead of giving written warnings for the second and third level 1 offenses, plaintiff simply gave Irvin another verbal warning after each offense. The Commission was justified in finding that plaintiff\u2019s reasoning in attempting to distinguish the work histories of the other three employees was pretextual.\nFinally, in way of an explanation, plaintiff argues that Irvin refused to apologize to Faraday, while the other three comparative employees all apologized. Absence of apology is not sufficient to justify the overwhelming difference in the types of discipline imposed on the four employees.\nIn regard to the comment Irvin made at the May 12 meeting concerning an engineer being Faraday\u2019s boyfriend, the Commission was also justified in finding that this was not sexual harassment. Plaintiff\u2019s employees each had a different version of the comment. Dunlap thought it was an irrelevant verbal attack; Pedziwiatr only recalled that Irvin \u201cmentioned something about Susan Faraday dating an engineer\u201d; and Heuel remembered Irvin stating that he would not make sexual comments to Faraday in the presence of the engineer. Irvin testified that he told Heuel that he would not \u201csay something out of the way to a female [when] her boyfriend is right there.\u201d Faraday testified that Irvin had implicated one of the engineers as being her boyfriend. She felt he was \u201cjust hurt and had to get back at me.\u201d No matter which version is accepted, the remark by Irvin was intemperate, but it did not constitute an incident of sexual harassment.\nIn regard to the employee Campagna, we do not believe the Commission\u2019s finding that he is not similarly situated to be against the manifest weight of the evidence. Campagna had a prior suspension, while Irvin did not. Campagna was found guilty of a level 5 offense, which requires immediate termination, while Irvin was not so charged. The situations are not comparable.\nPlaintiff also reasons that Irvin was fired because, e.g., he had a \u201cdisruptive influence upon operations,\u201d gave his supervisors a difficult time, was a trouble maker, and was counterproductive to efficiency and morale. We find these reasons pretextual in the face of the excellent ratings and job-performance reviews that Irvin received during the entire period that he worked for plaintiff. His most recent evaluation stated that his strengths were \u201cjob knowledge, dependability, adaptability, and ability to work with others.\u201d Nothing was listed in the area designated for skills needing improvement.\nWith regard to the letter from Irvin\u2019s estranged wife, we agree with the Commission that it was inadmissible hearsay. It was also inadmissible because it was received subsequent to the termination and thus was irrelevant to plaintiff\u2019s reasons for discharging Irvin.\nFor these reasons, we hold that the Commission\u2019s decision that plaintiff discriminated on the basis of race and retaliation is not against the manifest weight of the evidence.\nPlaintiff next contends that the Commission erred in granting reinstatement and back pay to Irvin. The purpose of a back-pay award is to make the employee whole, and any ambiguities in determining the amount to be awarded should be resolved against the employer. (Rasimas v. Michigan Department of Mental Health (6th Cir. 1983), 714 F.2d 614, cert. denied (1984), 466 U.S. 950, 80 L. Ed. 2d 537, 104 S. Ct. 2151.) We see no abuse of discretion in awarding back pay here.\nIf an employee proves he was discharged because of race, the burden is on the employer to demonstrate that he may not now resume his old job. (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) We do not question that an employer has the right to make a business judgment and we do not ask whether that judgment is sound. (Kephart v. Institute of Gas Technology (7th Cir. 1980), 630 F.2d 1217, cert. denied (1981), 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1417.) However, we have determined that plaintiff has discriminated against Irvin, and we see no evidence that his reinstatement will deter plaintiff from preventing sexual harassment. This is especially true because plaintiff allowed the three comparative employees to continue in its employ. The Commission was justified in holding that discharge was not necessary to fulfill plaintiff\u2019s duty to take reasonably corrective measures to prevent a recurrence of the sexual harassment. We cannot say that the order of the Commission reinstating Irvin was an abuse of discretion.\nPlaintiff finally contends that the Commission erred in its award of attorney fees. Section 8\u2014108(G) of the Illinois Human Rights Act authorizes the Commission to award reasonable attorney fees upon finding a civil rights violation. (Ill. Rev. Stat. 1985, ch. 68, par. 8\u2014108(G).) A reviewing court will not vacate an award of attorney fees absent a showing of abuse of discretion in making the award. (Lurie v. Canadian Javelin Ltd. (1982), 93 Ill. 2d 231, 443 N.E.2d 592.) The Commission found that plaintiff had failed to file any specific objections and thus awarded the fees recommended by the administrative law judge. We find no abuse of discretion in this holding.\nFor the foregoing reasons, the judgment of the circuit court of Cook County upholding the decision of the Illinois Human Rights Commission is affirmed.\nJudgment affirmed.\nMcGILLICUDDY and WHITE, JJ., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Steven H. Hoeft and Stephen D. Erf, both of McDermott, Will & Emery, of Chicago (William Oswald and Leon S. Conlon, of counsel), for appellant.", "Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Imelda R. Terrazino, Assistant Attorney General, of Chicago, of counsel), for appellees." ], "corrections": "", "head_matter": "LOYOLA UNIVERSITY OF CHICAGO, Plaintiff-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 85\u20143690\nOpinion filed November 5, 1986.\nSteven H. Hoeft and Stephen D. Erf, both of McDermott, Will & Emery, of Chicago (William Oswald and Leon S. Conlon, of counsel), for appellant.\nNeil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Imelda R. Terrazino, Assistant Attorney General, of Chicago, of counsel), for appellees." }, "file_name": "0008-01", "first_page_order": 30, "last_page_order": 45 }