Opinion
1-21-1276
09-30-2022
JERICO MATHIAS CRUZ, Petitioner, v. STATE OF ILLINOIS DEPARTMENT OF HUMAN RIGHTS, STATE OF ILLINOIS HUMAN RIGHTS COMMISSION, and CHICAGO BOARD OF EDUCATION, Respondents.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Petition for Direct Review of an Order of the Illinois Human Rights Commission Charge No. 2020 CF 1949 ALS No. 21-0116
JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment.
ORDER
ELLIS JUSTICE
¶ 1 Held: Affirmed. Commission did not abuse discretion in upholding determination of lack of substantial evidence of discrimination.
¶ 2 Petitioner, Jerico Cruz, was investigated for alleged sexual misconduct while acting as a substitute teacher at a middle school science fair. The Office of Inspector General (OIG) for the Chicago Public Schools (CPS) investigated the claims and concluded that there was no evidence of sexual misconduct, but that Cruz had violated policy regarding professionalism. Since Cruz had already resigned, the OIG did not recommend further action.
¶ 3 Cruz took umbrage with how the investigation was handled. In March 2020, he filed a charge of discrimination with the Illinois Department of Human Rights (IDHR). The charge alleged discrimination based on national origin, race, and military status-specifically, that CPS "subjected me to unequal terms and conditions of employment by not completing the investigation within 30 days per Respondent's policy into an incident in which I was accused of misconduct." He also claimed constructive discharge.
¶ 4 The IDHR dismissed the charge for lack of substantial evidence. Cruz requested a review with the Illinois Human Rights Commission (Commission), which sustained the finding. Cruz filed a direct appeal with this Court. We affirm.
¶ 5 BACKGROUND
¶ 6 Cruz was a day-to-day substitute teacher for CPS. On December 5, 2018, he was assigned to help supervise a science fair. After the science fair, the school received complaints from six parents who reported that "the students felt uncomfortable because they felt they were being followed; that [Cruz] was looking at girls' and teachers' bodies up and down, that one reported that he was 'looking at them in a dirty way,' and that when a student asked his name he barked like a dog." The next day, December 6, Cruz's teaching privileges were suspended pending investigation into this complaint.
¶ 7 In February 2019, the OIG informed Cruz that it was investigating the December complaint and scheduled an interview for later that month. Cruz received a second notice rescheduling the interview for March. After receiving these letters from the OIG, on February 19, Cruz went to the school and demanded an explanation from the assistant principal. He became aggressive and was escorted out of the school by security. He later returned to the school "with a resume, business card, and to sign into main log entrance log sheet."
¶ 8 On June 5, 2019, Cruz resigned. In July, the OIG completed its investigation. The report concluded that Cruz had made several female students at the science fair feel uncomfortable and that he had an overall strange manner. While the conduct did not rise to the level of sexual misconduct, it did violate CPS's professionalism guidelines. In light of Cruz's resignation, the OIG did not recommend further action.
¶ 9 In March 2020, Cruz filed a Charge of Discrimination with the IDHR. He raised six claims.
¶ 10 Three of them were claims of "unequal terms and conditions of employment" (UTCE), in which Cruz alleged that he suffered discrimination based on (1) his national origin (Filipino), (2) his race (Asian), and (3) his military status (U.S. Army veteran). For all of these UTCE claims, Cruz alleged that, from December 6, 2018 (the day he was suspended pending investigation) through June 5, 2019 (the day he resigned), CPS and more specifically its "director of employee engagement" subjected him to unequal terms and conditions of employment "by not completing the investigation within 30 days per [CPS] policy." Cruz alleged that CPS "treated similarly-situated individuals," who were not part of his protected class (be it national origin, race, or military status), "differently under similar circumstances."
¶ 11 Cruz also raised three claims of "constructive discharge," all of which likewise claimed discharge because of his national origin, race, and military status. For each of these claims, Cruz alleged that CPS "deliberately made my working conditions so difficult, intolerable or unpleasant, and created such a hostile, intimidating or offensive work environment," that Cruz "had no option but to resign on June 5, 2019."
¶ 12 IDHR investigated Cruz's claims. An intake investigator with IDHR interviewed Cruz. IDHR also interviewed CPS staff during its investigation. CPS staff stated that Cruz was suspended pending investigation into the student's complaints about his behavior on December 5. CPS also informed Cruz that, pursuant to CPS rules and Illinois law, the investigation was handled by the OIG-not, as Cruz alleged in his complaint, CPS's Office of Employment Engagement. In addition, the Director of Employee Engagement "stated that there is no policy which requires the OIG to complete an investigation within 30-days."
¶ 13 On October 20, 2020, the IDHR investigative staff held a fact-finding conference, but Cruz did not attend either in person or virtually. He left voicemails with the IDHR investigator that morning, indicating he was unable to attend the hearing; on the voicemail, he "recit[ed] the information on the conference notice including date and time, WEBEX telephone number and access code" and "directed the investigator to call him on his cell later, if she had any questions." IDHR staff called Cruz's cell after the conference, but it went to voicemail; that staffer "left a detailed voicemail inviting [Cruz] to call for rebuttal, but [Cruz] did not return the call or [leave] a date and time as suggested by staff to call him for his rebuttals."
¶ 14 The IDHR investigative staff recommended that Cruz's claims be dismissed for lack of substantial evidence. Specifically, the investigator determined that the OIG conducted the investigation, not CPS, and there was no "30-day" policy for this investigation. Nor did the investigator find any evidence of "animus based on national origin, race and/or military status," in large part because Cruz "did not name similarly situated non-Philippine, non-Asian and/or non-veteran employees who were treated more favorably under similar circumstances."
¶ 15 IDHR accepted the investigator's recommendations and dismissed Cruz's charge for lack of substantial evidence.
¶ 16 Cruz filed a request for review with the Commission. In the form he filled out, Cruz was specifically directed, in all-capital letters, that he "MUST LIST AND DESCRIBE THE SPECIFIC REASONS THAT THE CHARGE SHOULD NOT HAVE BEEN DISMISSED." (Emphasis in original.) The notice provided space for including those reasons and advised Cruz that he was free to "write on the back of this form or attach additional information or documents" in support of his position. Cruz did not fill in that space below, however, nor did he attach any documentation substantiating any claim of error by IDHR.
There is some documentation in the record concerning Cruz's background. It is not clear to us whether those documents were attached to his request for review with the Commission. But even if they were, they did not speak to any alleged errors committed by IDHR. Those documents included: (1) reports from both the FBI and the Illinois State Police, indicating that Cruz had no criminal record; (2) the result of drug testing in January 2018, showing that Cruz tested negative for various illegal drugs; (3) various academic documents showing Cruz's performance and course completions in high school and college; and (4) various military records indicating Cruz's military service.
¶ 17 On September 7, 2021, the Commission entered an order sustaining the dismissal for lack of substantial evidence. In agreeing with the dismissal, the Commission specifically noted that
"The Petitioner cannot show that he was subjected to [unequal terms and conditions of employment] because CBE does not have a policy that requires an investigation into sexual misconduct or sexual harassment to be completed within 30 days. There is no such policy in CBE's Collective Bargaining Agreement or in its internal policies. The Petitioner failed to provide evidence of such policy during the [IDHR's] investigation of his charge and in his Request [for Review]."
¶ 18 Cruz timely appealed the Commission's decision.
¶ 19 ANALYSIS
¶ 20 Before this court Cruz, pro se, asks us to overturn the Commission's decision. On review, we will uphold the Commission's decision until it constituted an abuse of discretion. Spencer v. Illinois Human Rights Commission, 2021 IL App (1st) 170026, ¶ 32; Young v. Illinois Human Rights Commission, 2012 IL App (1st) 112204, ¶ 32. That is to say, we will affirm the Commission's decision unless it was "arbitrary or capricious," in that it "contravenes legislative intent, fails to consider a critical aspect of the matter, or offer[s] an explanation so implausible that it cannot be regarded as the result of an exercise of the agency's expertise." Young, 2012 IL App (1st) 112204, ¶ 33. It is otherwise not our job to reweigh the evidence or substitute our judgment for that of the Commission. Id.
¶ 21 On appeal, Cruz does not challenge the dismissal of each charge individually but, rather, breaks them up by his asserted protected class. Recall that he filed three UTCE claims, each alleging disparate treatment based on one of his three protected classes (national origin, race, and military status), as well as three claims of constructive discharge, likewise based on the three respective protected classes to which he belonged. His argument on appeal is organized based on protected classes, thus lumping a UTCE and constructive-discharge claim into each.
¶ 22 As the Commission notes, we may affirm the dismissal of a charge on any basis in the record, even if it was not the reason the Commission gave. Owens v. Department of Human Rights, 356 Ill.App.3d 46, 56 (2005). The Commission, for its part, offers a few reasons of its own, relating less to the merits and more to the actions of Cruz during the agency process and on appeal.
¶ 23 For one, the Commission claims that Cruz's appellate brief did not directly argue the hostile-workplace aspect of a constructive-discharge claim, thereby forfeiting any claim of error regarding those charges. For another, the Commission claims that Cruz cannot complain of the findings of fact made by IDHR, given that he did not attend the factfinding hearing that IDHR staff conducted, much less offer any proof-or rebuttal of the State's proof-at that hearing. See 775 ILCS 5/7A-102(C)(4) (West 2020) (complainant's "failure to attend the conference without good cause shall result in dismissal or default.").
¶ 24 Valid points, each of them, but we resolve this appeal in favor of the Commission for several other reasons.
¶ 25 First, Cruz did not raise any claims of error to the Commission when requesting that it reject IDHR's findings. He did not emphasize any particular evidence or any flaw in IDHR's reasoning; as noted above, though he was advised on the request-for-review form that he "MUST LIST AND DESCRIBE THE SPECIFIC REASONS THAT THE CHARGE SHOULD NOT HAVE BEEN DISMISSED" (emphasis in original), he left that portion blank.
¶ 26 Arguably, that constitutes a forfeiture. But even if that omission were not fatal to this appeal, Cruz is hard-pressed to complain that the Commission adopted IDHR's dismissal, when he gave the Commission no reason to do anything else. Likewise, we are at a loss as to how we could find that the Commission acted arbitrarily or capriciously in rejecting Cruz's request for review when he did not support that request with any substantive argument whatsoever.
¶ 27 Second, Cruz's entire argument, reiterated over his three points of error (to correspond to his three protected-class statuses based on national origin, race, and military status) is that the Commission "erred for failure to investigate material facts and prima facie evidence based on" Cruz's protected status. He is not claiming the Commission judged the proof incorrectly or failed to give proper weight to this evidence or that; he is claiming that the Commission did not properly investigate the claims. But it is not the Commission's job to investigate; that job belongs to IDHR. The Commission's function is to make a final adjudication of a claim after investigation and either dismissal or prosecution by IDHR. See Folbert v. Department of Human Rights, 303 Ill.App.3d 13, 21 (1999) (noting "essential distinction" between IDHR and Commission; IDHR is "investigative agency," whereas Commission is "adjudicative agency").
¶ 28 Third, even if we overlooked that last point and considered the sufficiency of the proof, Cruz's argument-without citation to a single case-does not relate to a claim of disparate treatment or racial animus of any kind. His entire claim of proof regarding CPS's alleged animus toward him based on national origin, race, or military status is that he belonged to those protected classes, but the people disciplining and investigating him did not. Take, for example, his claim of discrimination based on national origin. The entire substance of his argument is that his national origin is the Philippines, but that the individuals involved in his suspension and subsequent investigation were not from the Philippines.
¶ 29 That does not amount to proof of discrimination. To prove that he was a victim of discrimination based on his status in a protected class, Cruz must show either direct evidence (say, proof of a racial slur or a written or oral admission) or indirect evidence. To prove it indirectly, Cruz must establish, among other things, that similarly situated individuals who are not in the same protected class received more favorable treatment than Cruz under similar circumstances. Spencer, 2021 IL App (1st) 170026, ¶ 34.
¶ 30 Indeed, Cruz himself recognized as much, making that very allegation in each of his six charges, as we noted above. In each claim, he alleged that CPS "treated similarly-situated individuals," who were not part of his protected class, "differently under similar circumstances." But he did not prove or even attempt to prove that allegation. As IDHR noted, Cruz did not identify a single person of a non-protected class who received more favorable treatment than he under similar circumstances. And the fact that the CPS staff or OIG investigators did not share his protected-class status does not come close, by itself, to proving discrimination.
¶ 31 Finally, but not insignificantly, Cruz's claim of adverse treatment, which formed the backbone of each claim in his charge, was what he considered to be the improper delay in the investigation; he claims that CPS violated a policy requiring that investigations be completed within 30 days. The extended delay in his investigation, according to Cruz, constituted both disparate treatment and conduct so adverse as to create a hostile work environment that compelled him to resign. The problem, however, is that Cruz never proved that any such 30-day policy existed. The OIG report found no such policy; IDHR found no such policy from any source; and Cruz offered no evidence whatsoever of this policy. In short, the record provides us no evidence that this policy exists, and it formed the crux of Cruz's entire case.
¶ 32 For all these reasons, we could not possibly find that the Commission acted in an arbitrary or capricious manner in upholding IDHR's dismissal for lack of substantial evidence.
¶ 33 CONCLUSION
¶ 34 The final decision of the Commission is affirmed.
¶ 35 Affirmed.