Opinion
1-22-1107
03-29-2024
THOMAS J. CARTER, Petitioner-Appellant, v. HUMAN RIGHTS COMMISSION, DEPARTMENT OF HUMAN RIGHTS, and BANK OF AMERICA, N.A., Respondents-Appellees.
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 Administrative Review of a Decision of the Human Rights Commission. Charge Nos. 2021 CP 0585 2021 CP 1139
JUSTICE ELLIS delivered the judgment of the court. Justices McBride and Cobbs concurred in the judgment.
ORDER
ELLIS, JUSTICE
¶ 1 Held: We affirm the decision of the Human Rights Commission sustaining the Department of Human Rights' order that dismissed for lack of substantial evidence petitioner's charge of discrimination in a place of public accommodation due to age. We dismiss the appeal for lack of jurisdiction as to the charge of discrimination in a place of public accommodation due to military status.
¶ 1 Petitioner Thomas J. Carter filed two separate charges against Bank of America, N.A. with the Illinois Department of Human Rights (Department), one alleging discrimination based on military status and the other based on age. The Department dismissed each claim for lack of substantial evidence. Petitioner appealed to the Human Rights Commission (Commission), which sustained each dismissal. He now appeals to this court. We affirm the Commission's order regarding the age-based claim and dismiss the appeal regarding the military-status claim for lack of jurisdiction.
¶ 2 BACKGROUND
¶ 3 Petitioner's first and second charges arise from the same set of core facts. So even though, as noted, we dismiss the appeal regarding petitioner's first charge, it is worth discussing the facts because they will impact the second charge as well.
¶ 4 I. The First Charge
¶ 2 On July 31, 2020, petitioner filed with the Department his first pro se charge, number 2021 CP 0585, alleging that Bank of America (BOA) denied him full and equal enjoyment of a place of public accommodation due to his military status as a retired veteran, and that BOA treated similarly situated customers without a military background more favorably under similar circumstances.
¶ 3 Petitioner alleged three counts concerning two incidents. As to count A, he alleged that on July 20, 2020, a teller at the BOA branch in Hanover Park, Illinois, refused to accept his military identification card as a form of identification for a bank transaction and stated that only a driver's license was acceptable identification. A supervisor reprimanded the teller, and petitioner's transaction was completed. Counts B and C concerned petitioner's interactions with personnel at the same branch on October 9, 2020. First, petitioner alleged his military identification card was again refused by a teller, who requested petitioner's driver's license to complete a transaction, whereupon petitioner reported the incident to the branch manager. Then, petitioner asked the teller to withdraw money from an account with ample funds, but the teller "intentionally" withdrew the requested amount from a different account held by petitioner, which contained insufficient funds. ¶ 4 A Department investigator prepared a final report based on documents related to the transactions and interviews of petitioner and several BOA employees. According to the report, it was undisputed that BOA was a place of public accommodation, that petitioner was entitled to receive the benefits of its facilities and services, that petitioner was a patron of BOA and had been for five years, and that BOA had completed his requested transactions.
¶ 5 According to the report, petitioner told the investigator that on July 20, 2020, he went to the branch to complete a transaction and was told by a teller that the military identification card he presented was not acceptable. Manager Victor Guerrero corrected the teller, who gave petitioner a "disgusted look" before completing the transaction. As petitioner was leaving, he gave a security guard a note for the manager, who was in a meeting. The next day, manager Magdalena Panocha called petitioner and "equated the issue to a lack of training in the new staff." The next week, petitioner showed Panocha the discrimination charge he was considering filing with the Department. Panocha made a copy of the paperwork and, a few days later, petitioner received a letter from a BOA customer service specialist apologizing for the incident and confirming that a military identification card was an acceptable form of identification.
¶ 6 BOA denied the allegations of count A. It asserted the nondiscriminatory reason the teller requested a driver's license was because she had been a new employee and was unfamiliar with the acceptable forms of identification, but she had been corrected and the transaction was completed.
¶ 7 Panocha told the investigator that BOA had internal policies prohibiting discrimination, facilitating the resolution of complaints, and providing the types of acceptable identification. BOA presented the internal policies as exhibits.
¶ 8 Guerrero told the investigator that, on the date in question, petitioner approached him and asked whether military identification cards were acceptable identification; Guerrero assured him they were. Petitioner then informed Guerrero that a teller had refused his military identification card. Guerrero approached the teller and coached her that a military identification card was a proper form of identification, referring her to a manual available to the tellers. Guerrero completed petitioner's transaction, and they had a friendly conversation about petitioner's military service.
¶ 9 Akeel Abdelhadi, a security guard, told the investigator that he had observed petitioner's interaction with the teller on the day in question, had often observed tellers refusing to complete transactions when issues arose concerning identification, and had not observed any discriminatory actions against veterans.
¶ 10 In rebuttal, petitioner conceded that BOA completed his transaction using his military identification card as proof of identification.
¶ 11 As to count A, the investigator concluded that the evidence did not reveal that BOA had denied petitioner full and equal enjoyment of its facility due to his military status or otherwise. The investigator noted that although petitioner was inconvenienced by the teller misinforming him about the proper identification, BOA provided the service petitioner requested. The investigator therefore recommended a finding of lack of substantial evidence.
¶ 12 Regarding counts B and C, petitioner told the investigator that on October 9, 2020, a different teller, Alounny Khanthaphixay, asked petitioner for a driver's license after he presented his military identification card. (Among different spellings of the teller's last name that appear in the record, we use the one from petitioner's first charge.) Petitioner became upset and quarreled with the teller. Petitioner asked for his documentation back and approached Panocha in her office. Panocha, after acknowledging petitioner's frustration, instructed Khanthaphixay to complete the requested transaction, a transfer of $360 from one account to another. Petitioner stated that his transaction was completed.
¶ 13 About a week later, petitioner received notice of an overdraft fee. He returned to the branch and asked Panocha whether Khanthaphixay had acted "out of spite because he reported her," presumably suggesting she had deliberately withdrawn the funds from the wrong account. Panocha reversed the charges to his account and apologized for the inconvenience.
¶ 14 BOA denied the allegations of discrimination as to counts B and C. It asserted that the nondiscriminatory reasons Khanthaphixay requested petitioner's driver's license were that she was making small talk and that some transactions require two forms of identification. The nondiscriminatory reason for the overdraft fee was that petitioner's outburst had made Khanthaphixay nervous and she made an unintentional clerical error, transferring the funds from the wrong account.
¶ 15 Khanthaphixay told the investigator that she asked petitioner whether he had a driver's license after he presented his military identification card because she did not immediately know the type of transaction he sought. She never refused petitioner's military identification card. Petitioner "began to make a fuss," "became very upset and [loud]," and demanded the return of his property, which was upsetting to Khanthaphixay. She returned all f his property and waited for Panocha to assist.
¶ 16 Panocha told the investigator that she was assisting a customer when she heard "yelling and screaming" in the lobby. Upon leaving her office, she could see that Khanthaphixay was upset. Petitioner "ordered" Panocha to a sitting area, but she told him she would speak with him after finishing with the other customer. She returned shortly afterward to introduce herself to petitioner and assist him with his transaction. Panocha took petitioner to her office, where he completed a transaction slip; she brought the slip to Khanthaphixay and instructed her to complete the transaction. Panocha's and Khanthaphixay's "hands were shaking while dealing with" petitioner, as "his actions were very upsetting to them." Panocha then spoke with petitioner for another hour about military service, and he left the branch satisfied.
¶ 17 On a subsequent visit to complete a banking transaction, petitioner left her a note expressing his satisfaction with the service he received. On October 23, 2020, he returned to the branch and informed her of the overdraft fee; she reversed it and explained that the error was clerical, not intentional as he suggested. After a pleasant conversation that lasted an hour, he departed. Bank documentation confirmed the fee was credited to his account.
¶ 18 In rebuttal, petitioner denied being loud during the incident. He conceded that BOA refunded the $35 overdraft fee once it was brought to the bank's attention.
¶ 19 As to counts B and C, the investigator again concluded that the evidence did not reveal that petitioner had been denied full and equal enjoyment of the bank facility, on the basis of his military status or otherwise. The investigator noted that BOA reversed the overdraft fee and explained it was a clerical error. Thus, the investigator also recommended a finding of lack of substantial evidence as to counts B and C.
¶ 20 On June 16, 2021, the Department dismissed the first charge for lack of substantial evidence. On September 17, 2021, petitioner filed with the Commission his request for review of the Department's dismissal.
¶ 21 On March 8, 2022, the Commission entered a final order sustaining the Department's dismissal for lack of substantial evidence, finding that petitioner's claim that he was denied the full use and enjoyment of BOA's facilities and services failed in that the bank completed all of his transactions and reversed his overdraft fee. The Commission also noted that petitioner did not identify any customers outside of his protected class who were afforded the full use and enjoyment of the bank more than himself to permit an inference that BOA's unequal actions towards him were based on his military status.
¶ 5 Appended to the Commission's final order was an affidavit of service stating that a copy was sent to petitioner by first-class mail the same day. The order also specified his right to appeal within 35 days after the date of service of the order.
¶ 6 II. The Second Charge
¶ 22 On December 29, 2020, six months after filing the first charge and based on the same incidents described above on July 20 and October 9, petitioner filed a second pro se charge with the Department, charge number 2021 CP 1139, alleging that BOA discriminated against him in depriving him of full and equal enjoyment of a place of public accommodation due to his age (65 years old), and that BOA treated more favorably similarly situated customers who were under 40 years old or significantly younger than petitioner.
¶ 23 A Department investigator prepared a final report regarding the second charge. The information petitioner gave to the investigator on this charge was similar to that relayed to the investigator for the first charge, including that BOA ultimately completed the transactions requested on July 20, 2020, and October 9, 2020, and reversed the overdraft fee. Petitioner also stated that he was unsure whether the discrimination he felt was based on his age and did not know of a younger customer whose military identification was accepted without incident.
¶ 24 As to count A, according to the report, Guerrero told the investigator that BOA had policies prohibiting discrimination, including discrimination based on age; that BOA employees are trained regarding acceptable forms of identification and are provided a manual containing relevant policies; and that military identification cards are among the primary forms of identification accepted. On July 20, 2020, teller Jessica Rangel assisted petitioner and initially denied the transaction because she mistakenly believed a military identification card was not an approved form of identification, but she sought Guerrero's help in order to verify. Rangel completed the transaction once corrected by Guerrero, who apologized to petitioner.
¶ 25 Khanthaphixay told the investigator that she did not refuse petitioner's military ID card. She was trying to converse politely with him when she asked whether he had a driver's license, whereupon he "went off and asked for his documents back" and sought out Panocha.
¶ 26 Panocha told the investigator that on October 9, she heard "an irate customer" in the lobby and left her office. After petitioner told her that Khanthaphixay had refused his military identification, she had him complete a withdrawal form and took it to Khanthaphixay, who completed the transaction. Panocha had an hour-long discussion with petitioner about his military service. When he later approached her about the overdraft fee for the transaction completed on October 9, 2020, she immediately caused the fee to be refunded, and petitioner left a note thanking her. At no time did petitioner tell Panocha that he felt that he was treated differently due to his age.
¶ 27 The investigator recommended finding a lack of substantial evidence, as petitioner had not identified similarly-situated customers treated more favorably under similar circumstances, and there was no evidence of age-based animus. The investigator also noted that petitioner received the services requested on July 20, 2020, and October 9, 2020.
¶ 28 On January 24, 2022, the Department dismissed the second charge for lack of substantial evidence. On February 22, 2022, petitioner filed with the Commission his request for review of the Department's dismissal. On June 28, 2022, the Commission entered a final order sustaining the dismissal of the age-based discrimination charge for lack of substantial evidence.
¶ 29 The Commission concluded that petitioner failed to provide sufficient evidence that he was denied full and equal enjoyment of BOA's facilities, that others outside of his protected class were given full and equal enjoyment of those facilities, or that his age was a factor in any of the transactions at issue. The Commission thus found that petitioner failed to establish a prima facie case of age-based discrimination.
¶ 7 Appended to the Commission's final order was an affidavit of service stating that a copy was sent to petitioner by first-class mail the same day. The order also specified his right to appeal within 35 days after the date of service of the order.
¶ 8 III. Petition for Review in this Court
¶ 9 On July 28, 2022, petitioner filed his petition for direct review in this court, identifying both charge numbers in the caption and attaching the Commission's final orders for both charge numbers.
¶ 30 On appeal, petitioner challenges the Commission's final orders sustaining the Department's orders that dismissed for lack of substantial evidence his charges of discrimination based on his military status and age. Though defendant's legal theory is unclear, he complains that BOA violated its internal policies, that the Department took statements of witnesses outside his presence and without his knowledge, and that the witnesses gave false evidence.
¶ 11 The Commission, joined by BOA, argues that this court lacks jurisdiction to review the Commission's March 8, 2022, final order as to the first charge, because petitioner filed the petition for direct review more than 35 days after service of that order, and that, in any event, both charges lacked merit. Petitioner's briefs do not address this court's jurisdiction.
¶ 12 I. Jurisdiction (First Charge)
¶ 31 Under section 8-111(B)(1) of the Illinois Human Rights Act, the Commission's final order is subject to direct administrative review by this court. See 775 ILCS 5/8-111(B)(1) (West 2022) (complainant may obtain judicial review of final order of Commission by filing, within 35 days from date that copy of Commission's order was served, petition for review in appellate court). On direct review of an administrative decision, this court exercises "special statutory jurisdiction," which "is limited to the language of the act conferring it." People ex rel. Madigan v. Illinois Commerce Comm'n, 231 Ill.2d 370, 387 (2008). "A party seeking to invoke special statutory jurisdiction *** 'must strictly adhere to the prescribed procedures' in the statute." ESG Watts, Inc. v. Pollution Control Board, 191 Ill.2d 26, 30 (2000) (quoting McGaughy v. Illinois Human Rights Comm'n, 165 Ill.2d 1, 12 (1995)).
¶ 32 Indeed, jurisdiction is so essential that we must consider our jurisdiction in every case, even if a party does not raise the issue. Cigna v. Illinois Human Rights Comm 'n, 2020 IL App (1st) 190620, ¶ 15. If jurisdiction is lacking, we have no choice but to dismiss the appeal. Id.
¶ 33 Illinois Supreme Court Rule 335(a) (eff July 1, 2017) governs this court's direct review of administrative orders. Rule 335(a) requires a party seeking direct review of an order of an administrative agency to file a petition in this court within 35 days after the date the order was served on such party. McGaughy, 165 Ill.2d at 7. When, as here, the order was served by first-class mail, service is "deemed complete four days after mailing." 56 Ill. Adm. Code 5300.30(c) (eff. June 1, 1992).
¶ 34 As noted, the petition for direct review filed in this court on July 28, 2022, asks this court to reverse the Commission's decisions dated March 8, 2022 and June 28, 2022.
¶ 35 We find that the petition for our direct review was untimely filed as to the Commission's March 8, 2022, final order sustaining the dismissal of the first charge. The Commission served a copy of the final order on petitioner via first-class mail on March 8, 2022, and, by rule, service was effectuated four days later. See 56 Ill. Adm. Code 5300.30(c) (eff. June 1, 1992).
¶ 36 The fourth day following mailing, March 12, 2022, was a Saturday but is nevertheless the deemed service date. See Cigna, 2020 IL App (1st) 190620, ¶ 35 (rule providing that receipt of service "shall be deemed to occur on the fourth day after mailing" indicates "a definite date, regardless of the day of the week on which the date happens to fall"). Because the 35th day following the service date was Saturday, April 16, 2022, the petition was due on or before Monday, April 18, 2022. See 5 ILCS 70/1.11 (West 2022) ("The time within which any act provided by law is to be done shall be computed by *** including the last [day], unless the last day is Saturday or Sunday or is a holiday ***, and then it shall also be excluded.").
¶ 37 Petitioner filed his petition with this court on July 28, 2022, well beyond the 35-day jurisdictional window. See 775 ILCS 5/8-111(B)(1) (West 2022); Ill. S.Ct. R. 335(a) (eff. July 1, 2017). This court thus lacks jurisdiction to address the merits of petitioner's contentions as to the first charge, alleging he was denied full and equal enjoyment of a place of public accommodation based on his military status. See Moren v. Illinois Department of Human Rights, 338 Ill.App.3d 906, 908 (2003) ("The 35-day time limit is jurisdictional and a complaint must be dismissed for lack subject matter jurisdiction if a petition for review is not timely filed.").
¶ 38 As for the second charge, the petition seeking direct review of the Commission's final order entered on June 28, 2022, was timely filed within 35 days of July 28, 2022. See Ill. S.Ct. R. 335(a) (eff. July 1, 2017). We thus have jurisdiction to address the merits of petitioner's challenge to the dismissal of his second, age-based charge.
¶ 13 II. The Merits (Second Charge)
¶ 39 As the Commission and BOA argue, petitioner's pro se brief deviates in many respects from Illinois Supreme Court Rule 341(h) (eff. Oct. 1, 2020), which governs the standards for appellate briefs. Petitioner's brief fails to demonstrate this court's jurisdiction. See Ill. S.Ct. R. 341(h)(4) (eff. Oct. 1, 2020). The brief contains no citations to the record and no case law. See Ill. S.Ct. R. 341(h)(6) (eff. Oct. 1, 2020). To the extent petitioner makes an argument, it consists of conclusory references to "Illinois State Law," the "Federal Rules [of] Civil Procedure," and "procedural due process" without explanation of the applicability of those bodies of law or the constitutional doctrine; he references "false sworn statements" without explaining what, exactly, rendered them false. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
¶ 40 Illinois Supreme Court rules have the force of law and must be followed. In re Denzel W., 237 Ill.2d 285, 294 (2010). We cannot excuse pro se litigants from compliance with these rules. Gillard v. Northwestern Memorial Hospital, 2019 IL App (1st) 182348, ¶ 45; see Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 528 (2001) ("Pro se litigants are presumed to have full knowledge of applicable court rules and procedures."). We would be within our rights to strike the brief and dismiss the appeal. See Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 77.
¶ 41 But given that the record is not voluminous and the Commission's brief coherently addresses the law and facts, we will address the merits of this appeal. See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill.App.3d 509, 511 (2001); Lipsey v. Illinois Human Rights Comm'n, 157 Ill.App.3d 1054, 1064 (1987) (considering merits of appeal though appellant's brief was "somewhat deficient").
¶ 42 The Act provides that it is "a civil rights violation for any person on the basis of unlawful discrimination to *** [d]eny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any public place of accommodation." 775 ILCS 5/5-102(A) (West 2020). "Unlawful discrimination" includes discrimination against a person on the basis of, inter alia, age of at least 40 years. Id. § 1-103(A). The Act further authorizes an "aggrieved party" to file a charge with the Department, which must then investigate to determine whether substantial evidence supports the claimant's allegations. Id. § 7A-102(A)(1), (C).
¶ 43 If, after an investigation, the Department finds a lack of substantial evidence to support the allegation, the charge is dismissed. Id. § 7A-102(D)(3). The Act defines "substantial evidence" as "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" of proof. Id. § 7A-102(D)(2). A charge of discrimination based on mere speculation is not substantial evidence. Folbert v. Department of Human Rights, 303 Ill.App.3d 13, 25 (1999).
¶ 44 On direct review of a final order of the Commission under the Act, this court is "empowered to review any and all questions of law or fact presented by the record." Anderson v. Human Rights Comm'n, 314 Ill.App.3d 35, 41 (2000). When, as here, the Commission has sustained the Department's dismissal for lack of substantial evidence, this court will reverse the Commission's order only if the decision was "arbitrary or capricious" or an abuse of discretion. Spencer v. Illinois Human Rights Comm 'n, 2021 IL App (1st) 170026, ¶ 32. A decision is arbitrary or capricious if 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 v. Illinois Human Rights Comm 'n, 2012 IL App (1st) 112204, ¶ 33. A decision constitutes an abuse of discretion if no reasonable person would agree with the Commission's decision. Spencer, 2021 IL App (1st) 170026, ¶ 32.
¶ 45 In the absence of direct evidence, claims of discrimination under the Act are evaluated under the three-part test articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Zaderaka v. Illinois Human Rights Comm 'n, 131 Ill.2d 172, 178-79 (1989) (adopting McDonnell Douglas standard). To establish a charge under this test, the petitioner must establish aprima facie case of unlawful discrimination by a preponderance of the evidence; if he succeeds, a rebuttable presumption of discrimination arises. Id. The burden then shifts to the respondent to rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. Id. at 179. Once the respondent has done so, the burden shifts back to the petitioner to prove by a preponderance of the evidence that the respondent's proffered reason was false and pretextual. Id. The petitioner's failure to present substantial evidence of aprima facie claim of discrimination in violation of the Act, or to disprove the respondent's articulated nondiscriminatory reason for its actions, warrants dismissal of the charge. Owens v. Department of Human Rights, 356 Ill.App.3d 46, 52 (2005).
¶ 46 Aprima facie case of discrimination in a place of public accommodation is established upon a showing, by a preponderance of the evidence, that the petitioner (1) is a member of a protected class, (2) attempted to exercise the right to full benefits and enjoyment of a place of public accommodation, (3) was denied those benefits and enjoyment of a place of public accommodation, and (4) was treated less favorably than similarly situated persons outside the protected class. McCoy v. Homestead Studio Suites Hotels, 390 F.Supp.2d 577, 583-85 (S.D. Tex. 2005)); see also Zaderaka, 131 Ill.2d at 178-79 (claims under Act are evaluated in accordance with federal decisions addressing federal antidiscrimination laws).
¶ 47 There is no dispute that the BOA branch is a place of public accommodation under the Act, or that petitioner is a member of a protected class based on his age. It is likewise uncontested that the BOA tellers who served petitioner on the dates at issue either initially refused his military identification card or requested a second form of identification, and that he incurred an overdraft fee because the teller completing the later transaction withdrew funds from the wrong account.
¶ 48 But petitioner acknowledged that BOA ultimately completed the transactions on the dates requested and reversed the overdraft fee. The Commission explicitly found that petitioner received the services requested on July 20, 2020, and October 9, 2020. Our review of this record supports the Commission's findings that petitioner was not denied services. See Mallett v. Human Rights Comm'n, 2021 IL App (1st) 192397-U, ¶¶ 17-19 (finding thatprimafacie case of discrimination was not established where services sought were rendered following initial delay); McCaleb v. Pizza Hut of America, Inc., 28 F.Supp.2d 1043, 1048 (N.D. Ill. 1998)) (collecting cases in which federal courts ruled that brief delay in services did not constitute unlawful denial of services).
¶ 49 Nor did petitioner provide sufficient evidence (or any evidence at all) that his age was a factor in the transactions on those dates. He did not present any evidence that BOA treated similarly situated, younger persons more favorably than him, and he admitted that he was aware of no such evidence. See Young, 2012 IL App (1st) 112204, ¶¶ 47-48 (petitioner must present evidence of similarly situated person in comparable circumstances to establishprimafacie case).
¶ 50 Accordingly, petitioner failed to establish a prima facie case that he was denied full and equal enjoyment of a place of public accommodation due to his age. The Commission thus did not abuse its discretion in sustaining the Department's dismissal of the second charge asserting agebased discrimination.
¶ 14 CONCLUSION
¶ 51 We dismiss for lack of jurisdiction the appeal seeking review of the Commission's final order of March 8, 2022. We affirm the Commission's final order of June 28, 2022.
¶ 52 Appeal dismissed in part; affirmed in part.