{ "id": 365906, "name": "CAROLE WHIPPLE, Petitioner, v. THE DEPARTMENT OF REHABILITATION SERVICES et al., Respondents", "name_abbreviation": "Whipple v. Department of Rehabilitation Services", "decision_date": "1995-01-12", "docket_number": "No. 4\u201494\u20140240", "first_page": "554", "last_page": "559", "citations": [ { "type": "official", "cite": "269 Ill. App. 3d 554" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "523 N.E.2d 1155", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1159" }, { "page": "1158" } ], "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 979", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551482 ], "weight": 2, "pin_cites": [ { "page": "984" }, { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0979-01" ] }, { "cite": "548 N.E.2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505640 ], "pin_cites": [ { "page": "372-73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0343-01" ] }, { "cite": "569 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 169", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2533307 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0169-01" ] }, { "cite": "600 N.E.2d 79", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 334", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5188550 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0334-01" ] }, { "cite": "612 N.E.2d 964", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 751", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5110015 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0751-01" ] }, { "cite": "636 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5365306 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0367-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "596 N.E.2d 1192", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1197" }, { "page": "1197-98" } ], "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5204145 ], "weight": 3, "pin_cites": [ { "page": "772-73" }, { "page": "772-74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0764-01" ] }, { "cite": "634 N.E.2d 463", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "468-69" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 247", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850356 ], "weight": 2, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0247-01" ] }, { "cite": "545 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "688" }, { "page": "687-88" }, { "page": "687" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570132 ], "weight": 3, "pin_cites": [ { "page": "180" }, { "page": "178-79" }, { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0172-01" ] } ], "analysis": { "cardinality": 597, "char_count": 10934, "ocr_confidence": 0.773, "pagerank": { "raw": 2.1339296689189024e-07, "percentile": 0.7662049022935314 }, "sha256": "ff1f67e499f1abf9e041c4853c23619f2df1c86543111de21303133091ea6836", "simhash": "1:8ba4bc4f6f8aa6d4", "word_count": 1722 }, "last_updated": "2023-07-14T19:11:33.308788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CAROLE WHIPPLE, Petitioner, v. THE DEPARTMENT OF REHABILITATION SERVICES et al., Respondents." ], "opinions": [ { "text": "JUSTICE GREEN\ndelivered the opinion of the court:\nIn July 1991, the Illinois Department of Rehabilitation Services (DORS) discharged petitioner, Carole Whipple, after five months of employment as an office associate. Later that month, Whipple filed a handicap discrimination charge (Ill. Rev. Stat. 1991, ch. 68, par. 2 \u2014 102(A)) with the Illinois Department of Human Rights (Department), claiming DORS had discriminated against her by failing to provide reasonable accommodation and by discharging her from her employment on the basis of her hearing impairment (Ill. Rev. Stat. 1991, ch. 68, par. 1 \u2014 103(I)(1)). In August 1993, the Department dismissed Whipple\u2019s charge based on a lack of substantial evidence.\nWhipple requested review by the Human Rights Commission (Commission), which also dismissed the matter for lack of substantial evidence. (In re Whipple (January 31, 1994), Ill. HRC No. 1992SN0034.) Whipple seeks judicial review of the Commission\u2019s order pursuant to section 8 \u2014 111(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/8 \u2014 111(A) (West 1992)). She argues the Commission erred in finding a lack of substantial evidence to support the handicap discrimination charge.\nUpon review of the Department\u2019s findings, the Commission may consider any evidence submitted in addition to the Department\u2019s report and the results of any investigation. (Ill. Rev. Stat. 1991, ch. 68, par. 8 \u2014 103(B).) In this case, Whipple had the opportunity to submit new or additional evidence outside the Department record but did not do so.\nAfter a full evidentiary hearing before the Commission\u2019s ruling, a reviewing court should sustain the Commission\u2019s findings of fact as prima facie true and correct unless they are against the manifest weight of the evidence. (Zaderaka v. Human Rights Comm\u2019n (1989), 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688.) However, when considering whether there is substantial evidence to support a charge, the Commission is not to resolve questions of fact (Marinetti v. Human Rights Comm\u2019n (1994), 262 Ill. App. 3d 247, 253, 634 N.E.2d 463, 468-69); rather, its function is to determine whether substantial evidence exists to warrant further proceedings on the charge. (See Ill. Rev. Stat. 1991, ch. 68, pars. 7A \u2014 102(D)(2) through (F); Parham v. Macomb Unit School District No. 185 (1992), 231 Ill. App. 3d 764, 772-73, 596 N.E.2d 1192, 1197.) When the Commission dismisses a discrimination charge based on the Department\u2019s investigative report, its decision will not be disturbed absent an abuse of discretion. Parham, 231 Ill. App. 3d at 772-74, 596 N.E.2d at 1197-98.\nThe United States Supreme Court has set out a three-part analysis in considering employment discrimination claims. (McDonell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) The Supreme Court of Illinois adopted this approach in analyzing employment discrimination claims brought under the Act in the context of dismissal of a Department-issued complaint after a full evidentiary hearing. (Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687-88.) The first prong of that analysis is whether a prima facie case of discrimination has been made. (Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687.) In reviewing Commission decisions dismissing a charge after only an investigation by the Department, some decisions of the appellate court of Illinois have considered only the first prong. (See Parham, 231 Ill. App. 3d 764, 596 N.E.2d 1192; Marinetti, 262 Ill. App. 3d 247, 634 N.E.2d 463.) The second prong concerns articulation by the employer of a legitimate nondiscriminatory reason for its decision, and the third prong, if reached, requires the complainant to prove that the employer\u2019s reason was pretext and unlawful discrimination existed. Some appellate court decisions concerning Commission decisions dismissing charges after only departmental investigations have not been limited to consideration of the first prong. See Motley v. Human Rights Comm\u2019n (1994), 263 Ill. App. 3d 367, 636 N.E.2d 100; McGaughy v. Human Rights Comm\u2019n (1993), 243 Ill. App. 3d 751, 612 N.E.2d 964; Peck v. Department of Human Rights (1992), 234 Ill. App. 3d 334, 600 N.E.2d 79; Luckett v. Human Rights Comm\u2019n (1989), 210 Ill. App. 3d 169, 569 N.E.2d 6.\nWe conclude that a decision of the Commission dismissing a charge after only investigation by the Department must be based upon the insufficiency of a prima facie case, as was done in Parham and Marinetti. Going into the second or third prongs of the rule in McDonnell Douglas and Zaderaka would inherently bring into play a balancing of evidence. Examination of the first prong is sufficient here to justify the Commission\u2019s order of dismissal.\nIn establishing a prima facie case of handicap discrimination under the Act, the rule has been stated that an employee must prove (1) she is handicapped within the definition of the Act; (2) her handicap is unrelated to her ability to perform the functions of the job she was hired to perform; and (3) an adverse job action was taken against her related to her handicap. (Habinka v. Human Rights Comm\u2019n (1989), 192 Ill. App. 3d 343, 372-73, 548 N.E.2d 702, 720.) At the investigative stage, as here, however, an employee would only have to tender sufficient evidence to warrant the Director of the Department to conclude substantial evidence exists on each of the elements in support of the charge. Ill. Rev. Stat. 1991, ch. 68, par. 7A\u2014103(D)(2).\nAn additional element has been interjected here by Whipple\u2019s contention that DORS should have made accommodation for her alleged hearing handicap. In Milan v. Human Rights Comm\u2019n (1988), 169 Ill. App. 3d 979, 984, 523 N.E.2d 1155, 1159, the court explained that the above-described elements of a prima facie case of handicapped discrimination \"include a requirement of accommodation of an employee\u2019s handicap by the employer, but the employee bears the burden to assert the duty and to show that the accommodation was requested and necessary for adequate job performance.\u201d\nThe Milan opinion did not say how the accommodation issue fits into the three-prong test for showing a prima facie case of handicap discrimination. In line with the reasoning of Milan, in this case we would expand the second prong of that test to state as follows:\nHer handicap is unrelated to her ability to perform the functions of the job she was hired to perform or, if the handicap is related to that ability to perform, after her request, the employer has failed to make a reasonable accommodation which was necessary for her performance.\nIn this case, the Commission could conclude that Whipple failed to present substantial evidence concerning at least the last two elements of her prima facie case. The Commission, upon review of the Department\u2019s dismissal of Whipple\u2019s charge, stated:\n\"In Complainant\u2019s Request for Review, Complainant realleges that she has a physical handicap, hearing impairment. However, during the investigation of Complainant\u2019s charge, Complainant acknowledged that she made errors while working for Respondent and that Respondent attempted to accommodate her handicap by providing four different headsets and several transcribers. Moreover, Complainant does not address Respondent\u2019s contentions that many of Complainant\u2019s errors were due to Complainant\u2019s failure to check the spelling of words, that Complainant admitted that many errors were due to Complainant\u2019s attempting to work too fast, and that Complainant made many format errors.\u201d Whipple, slip order at 1-2.\nWhipple did not tender substantial evidence that her handicap is unrelated to her ability to perform the functions of an office associate whose primary task is to transcribe dictation. The evidence showed Whipple had a moderately advanced sensory neural hearing loss with a discrimination score of 100% in her right ear and 88% in her left ear. Clearly, partial hearing loss is related to the ability to understand and copy dictation.\nIn regard to DORS\u2019s duty to accommodate for Whipple\u2019s alleged handicap, the Commission noted Whipple acknowledged that DORS attempted to accommodate her by providing four different headsets and several transcribers. On June 3, 1991, one month prior to Whipple\u2019s scheduled certification, Whipple requested an amplification device for her transcription machine. She stated the device would cost $75. However, a DORS supervisor, who called the dictaphone company the day of complainant\u2019s request, stated she was told it could be designed only after a lengthy process and at an unknown cost. Whipple offered no substantiation of her theory that the device would only cost $75 and no evidence that the device would solve her hearing problem. Considering the burden which was placed on Whipple to establish a breach of duty to accommodate (Milan, 169 Ill. App. 3d at 984, 523 N.E.2d at 1158), the Commission did not abuse its discretion in determining that Whipple\u2019s evidence in regard to accommodation was not of any substance.\nMost important, as pointed out by the Commission, the showing was very weak that Whipple\u2019s discharge was related to her handicap. The evidence overwhelmingly indicated that her performance was substandard because of her failure to check spelling, working too rapidly, and making format errors rather than her hearing impairment. She admitted working too rapidly, was warned of her poor performance, and received four different headsets and transcribers, yet continued to perform below DORS standards and expectations. DORS submitted samples of Whipple\u2019s work illuminating transcription errors, such as misspelled and omitted words and punctuation, changed punctuation regardless of how a matter was dictated, typing incorrect information in designated variables, and format errors. Moreover, when furnished a headset which directed the sound to her right unimpaired ear, her error rate continued to be high.\nAn employer can successfully rebut a discrimination charge by showing the handicapped employee was unqualified even with accommodation. (56 Ill. Adm. Code \u00a7 2500.40(d) (1992-93).) The evidence presented overwhelmingly indicated that Whipple\u2019s work would be unsatisfactory even if a device to accommodate her hearing disability was obtained.\nWe hold that the Commission\u2019s determination that substantial evidence was lacking on key elements of Whipple\u2019s claim was not an abuse of discretion. The order of the Commission is affirmed.\nAffirmed.\nKNECHT, P.J., and McCULLOUGH, J., concur.", "type": "majority", "author": "JUSTICE GREEN" } ], "attorneys": [ "James P. Baker (argued), of Law Offices of James P. Baker, of Springfield, for petitioner.", "Roland W. Burris, Attorney General, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General (argued), of counsel), for respondents." ], "corrections": "", "head_matter": "CAROLE WHIPPLE, Petitioner, v. THE DEPARTMENT OF REHABILITATION SERVICES et al., Respondents.\nFourth District\nNo. 4\u201494\u20140240\nArgued December 13, 1994.\nOpinion filed January 12, 1995.\nJames P. Baker (argued), of Law Offices of James P. Baker, of Springfield, for petitioner.\nRoland W. Burris, Attorney General, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General (argued), of counsel), for respondents." }, "file_name": "0554-01", "first_page_order": 574, "last_page_order": 579 }