{ "id": 1073585, "name": "DAVID PEYTON, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents", "name_abbreviation": "Peyton v. Department of Human Rights", "decision_date": "1998-09-18", "docket_number": "No. 4-97-0207", "first_page": "1100", "last_page": "1111", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 1100" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "654 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "718" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 1014", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291560 ], "year": 1995, "pin_cites": [ { "page": "1021-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/1014-01" ] }, { "cite": "846 P.2d 448", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4440296 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/or-app/118/0160-01" ] }, { "cite": "564 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "206 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2561365 ], "year": 1988, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0283-01" ] }, { "cite": "467 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597404 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0999-01" ] }, { "cite": "431 U.S. 324", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1670 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/431/0324-01" ] }, { "cite": "478 N.E.2d 449", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 273", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529950 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0273-01" ] }, { "cite": "298 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073587 ], "year": 1998, "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0695-01" ] }, { "cite": "646 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 554", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365906 ], "year": 1995, "pin_cites": [ { "page": "556-57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0554-01" ] }, { "cite": "545 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "687-88" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570132 ], "year": 1989, "pin_cites": [ { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0172-01" ] }, { "cite": "636 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5365306 ], "year": 1994, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0367-01" ] }, { "cite": "685 N.E.2d 974", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "976" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 515", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725057 ], "year": 1997, "pin_cites": [ { "page": "519-20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0515-01" ] }, { "cite": "574 N.E.2d 747", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "751-52" } ], "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 961", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297222 ], "year": 1991, "pin_cites": [ { "page": "968-69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0961-01" ] }, { "cite": "611 N.E.2d 62", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "63-64" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 186", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5109459 ], "year": 1993, "pin_cites": [ { "page": "187-89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0186-01" ] }, { "cite": "645 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "366-70" }, { "page": "370" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 1085", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381902 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "1087-93" }, { "page": "1093" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/1085-01" ] }, { "cite": "649 N.E.2d 404", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "410-11" } ], "opinion_index": 0 }, { "cite": "165 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483568 ], "year": 1995, "pin_cites": [ { "page": "12-15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0001-01" ] }, { "cite": "298 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073587 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "1103" }, { "page": "1104" }, { "page": "1109" }, { "page": "1103" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/298/0695-01" ] } ], "analysis": { "cardinality": 961, "char_count": 23786, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.03841691156511441 }, "sha256": "d4047435da0d205cae0712d524f7c9c3ed074400e6a9bfb4ebb892bf2c9b81a5", "simhash": "1:32b231d8e714b77b", "word_count": 3787 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAVID PEYTON, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nPetitioner David Peyton brings this direct review of a decision of the chief legal counsel of the Illinois Department of Human Rights (Department) dismissing his charge of discrimination against the City of Champaign (City). 775 ILCS 5/8 \u2014 111(A)(1) (West 1996); 155 111. 2d R. 335. Taken with the case was petitioner\u2019s motion to amend the petition for direct review by adding Jacqueline S. Lustig, the Department\u2019s chief legal counsel, as an additional named respondent. The Department objected on the basis that the request is untimely. Because we decide that Lustig is not a necessary party, the motion to amend is denied. The issues on appeal are whether (1) the Department applied the correct standard for determining whether petitioner offered sufficient substantial evidence to justify issuance of a complaint, and (2) petitioner offered sufficient substantial evidence to justify the issuance of a complaint. We affirm.\nOn April 22, 1996, petitioner filed a charge with the Department alleging discrimination against him by the City\u2019s fire department based on sex (Department charge No. 1996SF0646). It alleged petitioner was hired on September 5, 1985, and was demoted from fire inspector on November 17, 1995, because the position was to be reopened and the qualifications for it would be changed; there were no complaints about his job performance to warrant the demotion; after two women who did not meet the original job qualifications threatened to file a grievance, his promotion was eliminated and the position was reposted to allow the women to apply; and previously, once an employee was offered and accepted a position, the position was not taken away unless the individual was found to be ineligible.\nThe City\u2019s verified response admitted petitioner was hired on September 5, 1985, but denied he was demoted. Instead, the City stated that the hiring period was extended because of a revision in the job qualification.\nOn November 18, 1996, the Department dismissed the charge for lack of substantial evidence to support the allegations. The Department\u2019s investigation report found the following uncontested facts: petitioner was hired on September 5, 1985; the fire inspector position was originally announced and posted on August 1, 1995; it was announced as a position outside the bargaining unit, a special duty assignment on a 40-hour workweek schedule; candidates were requested from within the fire-suppression division; City property maintenance inspectors Janet Maupin and Sue Salzman submitted applications, although they were not currently from the fire-suppression unit; petitioner was interviewed and acknowledged as the only candidate on September 5, 1995; Maupin and Salzman were not interviewed and questioned the fairness to women because of the fire-suppression-only requirement; Ernestine Jackson, assistant to the city manager, was concerned with the validity of the requirement and raised the issue with the city manager; and the posting was closed and then reopened to include all City employees. During the investigation, the Department interviewed witnesses, including petitioner; Chris Bezruki, director of personnel; John Corbly, the City\u2019s fire chief; Lieutenant Robert Quinlan, petitioner\u2019s supervisor; Maupin; and Salzman. The Department found petitioner failed to provide a correlation between his alleged demotion and his gender; evidence did not indicate petitioner was offered the position of fire inspector and could not have been demoted; and the fire inspector position was filled by a male applicant, indicating the City did not discriminate against petitioner because of his gender. The facts supporting these conclusions were stated in detail in the investigation report. Also attached to the report were exhibits considered by the Department.\nFollowing dismissal of the charge, petitioner sought review before the chief legal counsel of the Department. 775 ILCS 5/7A \u2014 102(D)(2)(a) (West 1996). Petitioner submitted exhibits to the memorandum in support of the request for review. The City filed a responsive memorandum.\nOn February 28, 1997, the Department\u2019s chief legal counsel sustained the dismissal for lack of substantial evidence:\n\u201cIn support of which determinations the Chief Legal Counsel states the following findings of fact and reasons:\n1. Complainant filed a discrimination charge with the Department on April 19, 1996, alleging that Respondent demoted him because of his sex, male, in violation of Section 2 \u2014 102(A) of the Illinois Human Rights Act. On November 18, 1996, the Department dismissed Complainant\u2019s charge, making a finding of lack of substantial evidence.\n2. Respondent contends that it demoted Complainant because it reevaluated the requirements for the fire inspector position and determined that some of the qualifications needed to be modified. Once the requirements were amended, Respondent considered other applicants, including Complainant, for the position.\n3. Evidence from the Department\u2019s investigation showed that Complainant was offered the position of fire inspector and accepted it. However, the Department\u2019s investigation also revealed that Respondent reevaluated the position shortly after it had offered the position to Complainant. The evidence showed that Respondent decided to modify the requirements for the position to be consistent with national standards. As a result, Respondent posted the revised position and accepted applications for interviews including Complainant\u2019s application. The evidence did not indicate that Respondent demoted Complainant because of his sex. Rather, Respondent modified the requirements of the position and offered it to a larger pool of applicants. Thus, the Department\u2019s investigation did not show that Respondent\u2019s actions were pretextual.\n4. In his Request for Review, Complainant does not provide any additional evidence or argument which warrants a reversal of the Department\u2019s initial finding. Complainant presents several arguments that he was offered the position which he subsequently accepted. The evidence indicates that this may be true. However, even if Complainant accepted the position, he still failed to prove that he was demoted because of his sex. Complainant argues that the fire inspector position was modified because two applicants \u2018questioned the fairness to women.\u2019 However, the Department\u2019s investigation showed that Respondent presented a legitimate, nondiscriminatory reason for modification of the position. Complainant was unable to show, and the Department\u2019s investigation failed to uncover, that Respondent\u2019s action was pretextual. In fact, the evidence showed that the fire inspector position ultimately was awarded to a male.\n5. Thus, there is insufficient evidence to support the allegation that Complainant was demoted because of his sex.\n6. This is a final Order. A final Order may be appealed to the Appellate Court by filing a petition for review by naming the Department and Respondent with the Clerk of the Appellate Court within 35 days after the date of service of this Order. The Department deems \u2018service\u2019 complete 5 days after mailing.\u201d\nAs a preliminary matter, the Department argues that the chief legal counsel must be named as a respondent in the petition for review pursuant to the \u201cagency and all other parties of record\u201d language contained in Rule 335(a) (155 Ill. 2d R. 335(a)). The Department observed that the Human Rights Act (Act) has been amended to allow (1) review of dismissals by the chief legal counsel, instead of the Human Rights Commission (Commission), and (2) direct review in the appellate court of the chief legal counsel\u2019s decision. 775 ILCS 5/7\u2014 101.1, 7A \u2014 102(D)(2)(a), 8 \u2014 111(A)(1) (West 1996). Relying on McGaughy v. Ulinois Human Rights Comm\u2019n, 165 Ill. 2d 1, 12-15, 649 N.E.2d 404, 410-11 (1995), and the cases cited therein, the Department argues that, in effect, the chief legal counsel now stands in the position of the Commission and the chief legal counsel must now be named as a respondent just as the Commission had to be in McGaughy. The Department further notes that section 3 \u2014 107(a) of the Administrative Review Law provisions contained in the Code of Civil Procedure (Code) has now been amended to prevent dismissal for failure to name as a respondent an employee, agent, or member of an administrative agency in her administrative capacity (735 ILCS 3 \u2014 107(a) (West 1996)), but that is not one of the sections of the Code that has been incorporated by reference into Rule 335 (155 Ill. 2d R. 335(i)(2)).\nWe disagree that McGaughy requires that the chief legal counsel be named a respondent. The chief legal counsel is an employee of the Department, while the Commission is a separate agency.\n\u201cFor the purpose of this Act: \u2018administrative agency\u2019 means a person, body of persons, group, officer, board, bureau, commission or department (other than a court or judge) of the State, or of any political subdivision of the State or municipal in the State corporation in the State, having power under law to make administrative decisions.\n\u2018Administrative decision\u2019 or \u2018decision\u2019 means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.\u201d 735 ILCS 5/3 \u2014 101 (West 1996.)\nSection 3 \u2014 101 is expressly incorporated into Rule 335 by reference. 155 Ill. 2d R. 335(i)(2).\nIn Mazurek Pharmacy v. Department of Public Aid, 268 Ill. App. 3d 1085, 1087-93, 645 N.E.2d 365, 366-70 (1994), the court adopted the analysis of this court in Pontiac Lodge No. 294 v. Department of Revenue, 243 Ill. App. 3d 186, 187-89, 611 N.E.2d 62, 63-64 (1993), and distinguished Zientara v. Lottery Control Board, 214 Ill. App. 3d 961, 968-69, 574 N.E.2d 747, 751-52 (1991), on which the Department relies. In Mazurek and Pontiac Lodge, the courts found that the Directors were agents of the Departments, relying on section 4 of the Civil Administration Code of Illinois (now 20 ILCS 5/4 (West 1996)). In Mazurek, Zientara was distinguished because in Zientara there was a three-tier appeal process for resolving disputes and the Department\u2019s rule expressly stated that any party adversely affected by a final decision or order of the \u201cDirector\u201d may obtain judicial review. Mazurek, 268 Ill. App. 3d at 1093, 645 N.E.2d at 370.\nThe Department is charged with duties and powers to \u201cissue, receive, investigate, conciliate, settle, and dismiss charges filed in conformity with\u201d the Act. 775 ILCS 5/7 \u2014 101(B) (West 1996). As it relates to the duties and powers of the chief legal counsel, section 7 \u2014 101.1 of the Act provides:\n\u201c(A) Jurisdiction. The Chief Legal Counsel of the Department shall have jurisdiction to hear and determine requests for review of (1) decisions of the Director to dismiss a charge; (2) notices of default issued by the Director; and (3) dismissals for refusal to accept a settlement offer. Any final order entered by the Chief Legal Counsel under this Section is appealable in accordance with paragraph (A)(1) of Section 8 \u2014 111.\n(B) Review. When a request for review is properly filed, the Chief Legal Counsel of the Department may consider the Director\u2019s report, any argument and supplemental evidence timely submitted, and the results of any additional investigation conducted by the Director in response to the request. In his or her discretion, the Chief Legal Counsel of the Department may designate a staff attorney to conduct an investigation into the factual basis of the matter at issue.\u201d 775 ILCS 5/7 \u2014 101.1(A), (B) (West 1996).\nThe chief legal counsel is no less an employee of the Department than is the Director. Neither is a \u201cpartly] of record\u201d; Rule 335(a) expressly distinguishes between the \u201cagency and all other parties of record.\u201d 155 Ill. 2d R. 335(a). As long as the Department is named a respondent, it is unnecessary to name the chief legal counsel of the Department as a respondent.\nThe next issue is whether the Department applied the correct standard for determining whether the charge lacked substantial evidentiary support. The Act authorizes the dismissal of a charge based on a determination of no substantial evidence. 775 ILCS 5/7A\u2014 102(D)(2)(a) (West 1996). The Director of the Department reviews the investigative report to determine if there is enough evidence to justify the filing of the complaint.\n\u201c(1) Each charge shall be the subject of a report to the Director. The report shall be a confidential document subject to review by the Director, authorized Department employees, the parties, and, where indicated by this Act, members of the Commission or their designated hearing officers.\n(2) Upon review of the report, the Director shall determine whether there is substantial evidence that the alleged civil rights violation has been committed. The determination of substantial evidence is limited to determining the need for further consideration of the charge pursuant to this Act and includes, but is not limited to, findings of fact and conclusions, as well as the reasons for the determinations on all material issues and questions of credibility. Substantial evidence is evidence which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance.\u201d 775 ILCS 5/7A \u2014 102(D)(1), (D)(2) (West 1996).\nIn the past, when a decision of the Commission was being reviewed, the dismissal of the charge would be set aside only if the action was arbitrary or capricious or amounted to an abuse of discretion. Alcequeire v. Human Rights Comm\u2019n, 292 Ill. App. 3d 515, 519-20, 685 N.E.2d 974, 976 (1997); Motley v. Human Rights Comm\u2019n, 263 Ill. App. 3d 367, 371, 636 N.E.2d 100, 102 (1994). The parties do not suggest a different standard of review even though this appeal is from the decision of the chief legal counsel of the Department.\nIn analyzing employment discrimination actions brought under the Act, a three-part analysis is utilized.\n\u201cFirst, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If aprima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against plaintiff. Second, to rebut the presumption, the employer must articulate, not prove [citation], a legitimate, nondiscriminatory reason for its decision.\nFinally, if the employer carries its burden of production, the presumption of unlawful discrimination falls and plaintiff must then prove by a preponderance of the evidence that the employer\u2019s articulated reason was not its true reason, but was instead a pretext for unlawful discrimination. This merges with plaintiff\u2019s ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against plaintiff. [Citation.] This ultimate burden remains at all times with plaintiff. [Citation.] In the case at bar, brought under the disp\u00e1rate-treatment theory, rather than the disparate-impact theory [citation], the ultimate factual inquiry is whether defendant employer intentionally discriminated against plaintiff.\u201d Zaderaka v. Illinois Human Rights Comm\u2019n, 131 Ill. 2d 172, 178-79, 545 N.E.2d 684, 687-88 (1989).\nIt is petitioner\u2019s contention that the Department may not reach the second and third prongs of the analysis at the stage of the proceeding involving dismissal of the charge, relying on Whipple v. Department of Rehabilitation Services, 269 Ill. App. 3d 554, 556-57, 646 N.E.2d 275, 277 (1995). After reconsidering the Whipple decision, we have concluded it no longer correctly states the law. Webb v. Lustig, 298 Ill. App. 3d 695, 702 (1998).\nHere, the investigation report, before discussing other evidence, stated simply:\n\u201cA. Prima facie case\n1. Complainant is male.\n2. Complainant was performing satisfactorily.\n3. Complainant was demoted.\u201d\nThe conclusions of both the Department\u2019s report and the chief legal counsel\u2019s decision suggest that the second and third parts of the analysis were properly considered.\nIt is a civil rights violation for an employer to refuse to promote on the basis of unlawful discrimination. 775 ILCS 5/2 \u2014 102(A) (West 1996). A municipal corporation is an employer subject to the Act. 775 ILCS 5/2 \u2014 101(B)(1)(c) (West 1996).\n\u201cEmployment discrimination may be established by showing disparate treatment and disparate impact. (Valley Mould & Iron Co. v. Illinois Human Rights Comm\u2019n (1985), 133 Ill. App. 3d 273, 478 N.E.2d 449.) The former theory requires proof that the employer simply treated some people less favorably than others because of their race, color, religion, sex, or national origin. The latter theory involves proof of employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 415 n.15, 97 S. Ct. 1843,1854-55 n.15.) Proof of discriminatory motive is required under the disparate treatment theory but not the disparate impact theory and may be inferred in some cases from the mere fact of differences in treatment. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843; Burnham City Hospital v. Human Rights Comm\u2019n (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635.\nPrima facie proof of discrimination *** based upon disparate treatment, can be established upon a showing by the complainant that (1) he was within the protected class; (2) he was performing according to his employer\u2019s legitimate expectations; (3) he was terminated or demoted; and (4) others not in the protected class were treated more favorably. (Clyde v. Human Rights Comm\u2019n (1990), 206 Ill. App. 3d 283, 292, 564 N.E.2d 265, citing Oxman v. WLS-TV (7th Cir. 1988), 846 P.2d 448.)\u201d Interstate Material Corp. v. Human Rights Comm\u2019n, 274 Ill. App. 3d 1014, 1021-22, 654 N.E.2d 713, 718 (1995).\n\u201c \u2018Sex\u2019 means the status of being male or female.\u201d 775 ILCS 5/1\u2014 103(0) (West 1996).\nIn this case, petitioner would testify he was offered and accepted the fire inspector position and that he would start in that position by September 8, 1995. Two women complained about the fairness to women of the qualifications for the job because of the fire-suppression-only requirement. There is no evidence that petitioner was demoted or denied the fire inspector position as a result of the threats of these women. The union also objected because it was a special duty assignment, a nonunion position. The letter of Corbly, which petitioner submitted to the chief legal counsel, stated that the special duty assignment was terminated and there would be a new posting. Petitioner was given an equal opportunity to get the job after the reposting, and he did not get it. Instead, another man was hired for the job. Bezruki\u2019s answers to interrogatories indicate that there were 29 applicants for this position after the reposting, and it would appear based on the names listed that there were only four women applicants, none of whom were hired for the job. The fact that petitioner was removed from the fire inspector position and the job was reposted to create a hiring practice that was clearly free from charges of sexual discrimination does not mean the position was eliminated because of his sex. The Department and chief legal counsel could find that there was no substantial evidence that petitioner was demoted or denied promotion because of his sex. The dismissal of the charge is not arbitrary, capricious, or an abuse of discretion. If petitioner has a cause of action, it is for breach of contract.\nThe decision of the chief legal counsel of the Department is affirmed.\nAffirmed.\nGREEN, J., concurs.", "type": "majority", "author": "JUSTICE McCULLOUGH" }, { "text": "JUSTICE COOK,\ndissenting:\nWhatever one\u2019s views of affirmative action in the filling of new positions, it seems clear that affirmative action cannot justify taking existing jobs, for example, from whites so that they may be given to African-Americans, taking existing jobs from women so that they may be given to men, or vice versa. Would we tolerate a situation where all male employees of the City were discharged, so that females could have the opportunity to show their qualifications for those jobs, even if those male employees \u201cwere given an equal opportunity\u201d to get their jobs back? The majority says that the fact that petitioner was removed from his position and the job was reposted \u201cto create a hiring practice that was clearly free from charges of sexual discrimination does not mean the position was eliminated because of his sex.\u201d 298 111. App. 3d at 1109. The majority seems to be saying that reverse discrimination, or discrimination with a good motive, cannot be discrimination. I do not understand why that is so. Two wrongs do not make a right.\nThe Department found the \u201cevidence did not indicate petitioner was offered the position of fire inspector.\u201d 298 Ill. App. 3d at 1103. The Department was clearly wrong, according to the chief legal counsel: \u201cEvidence from the Department\u2019s investigation showed that [cjomplainant was offered the position of fire inspector and accepted it.\u201d 298 Ill. App. 3d at 1104. The chief legal counsel went on, however, to say that the City reevaluated the position, modified it to be consistent with (unnamed) national standards, and that the evidence did not indicate that petitioner was demoted because of his sex. The majority states that \u201c[tjhere is no evidence that petitioner was demoted or denied the fire inspector position as a result of the threats of these women,\u201d and seems to suggest that the union may have been the reason for whatever happened to petitioner. 298 Ill. App. 3d at 1109.\nThe majority elsewhere, however, tells us that the facts are uncontested and sets out the following chronology: (1) Maupin and Salzman submitted applications; (2) petitioner was interviewed and acknowledged as the only candidate; (3) Maupin and Salzman, who were not interviewed, questioned the fairness of the position to women because of the fire-suppression-only requirement; (4) Ernestine Jackson, the assistant to the mayor in charge of EEOC matters, raised the issue with the city manager; and (5) \u201cthe posting was closed and then reopened to include all City employees.\u201d 298 Ill. App. 3d at 1103. These uncontested facts are not simply some evidence, they are overwhelming evidence. It is clear what happened in this case.\nThe questions in this case are whether petitioner was demoted (did he have the position and then later not have it), whether that demotion was made on account of his sex, and whether demotion on account of sex was justified in the circumstances of this case. It was improper for the Department to refuse to consider the issue of justification by pretending there was no evidence petitioner had accepted the position or that his sex had nothing to do with the job being taken away from him.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Ralph H. Loewenstein (argued), of Loewenstein, Hagen, Oehlert & Smith, EC., of Springfield, for petitioner.", "Frederick C. Stavins, City Attorney, and Trisha A. Crowley (argued), Assistant City Attorney, both of Champaign, for respondent City of Champaign.", "James E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Paul Racette (argued), Assistant Attorney General, of counsel), for respondent Department of Human Rights." ], "corrections": "", "head_matter": "DAVID PEYTON, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents.\nFourth District\nNo. 4\u201497\u20140207\nArgued February 18, 1998.\nOpinion filed September 18, 1998.\nCOOK, J., dissenting.\nRalph H. Loewenstein (argued), of Loewenstein, Hagen, Oehlert & Smith, EC., of Springfield, for petitioner.\nFrederick C. Stavins, City Attorney, and Trisha A. Crowley (argued), Assistant City Attorney, both of Champaign, for respondent City of Champaign.\nJames E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Paul Racette (argued), Assistant Attorney General, of counsel), for respondent Department of Human Rights." }, "file_name": "1100-01", "first_page_order": 1120, "last_page_order": 1131 }