please the court counsel my name is dawn wall and i represent the y w c a of mclean county and we are before your honor's on administratively review this is a little different than i think i usual administrative review because in this particular instance there was a local ordinance that set for that once a determination was made by hearing officer that hearing officer could make recommendations to the flemington human relations commission the commissioners would then make a decision on whether or not they adopted the findings of the hearing officer and if i disagreed with that determination then the appropriate proceedings for appellate review or application of the law found by the commission in this instance was contrary to the law which would be to novo review and then also that certain factual findings were against the manifests we did have a sense i do think it's important to note that in this instance the commissioners did not hear all of the testimony and did not weigh the credibility of the witnesses counsel in his brief for the city of bloomington  that all of the commissioners attended the hearing the counsel was not at the hearing and there were two dates of hearing one of the public library that was subsequently continued to two days later and that was held at the city of warmings and i will assert here honors that the record clearly does not indicate that all of the commissioners attended the first hearing and the same commissioners attended for this arrears parents who are what is that read i only bring that up your honor i was that even though the court is required in certain instances to give deference to the factual findings that when there are instances where the factual findings are not conclusive with re i know of no case your honor where there was a circumstance where the administrative agency in the whole did not participate in the fact finding conference for example reza here there was a hearing officer of point because the bloomington ordinance says the commission can appoint a hearing officer who hears the testimony and then make direct makes recommendations to the commission about my comments to your honor's was in the city of panel of the commission makes that decision i only point out that in this instance the commissioners did not weigh anything it was all done through the hearing officer and therefore the proposed decision and the proposed findings of the hearing officer would be once for review by this court particular factual findings that he made and also application of the law that even so i only bring that because i do believe that it impacts the upon a nail gerry but that's what the law units that we're supposed to view this is if the entire commission is supposed to have rendered this factual judgment well no i think my point was this was a hearing officer on the like an administrative law judge that has particular obligations and duties pursuant to the administrative office here it was someone who was appointed by statute and i would assert doesn't rise to the same level as an administrative hearing officer or an administrative law judge and an unemployment proceeding i still believe even if we accept that this particular hearing officer meets the criteria of administrative law judge that he did not appropriately determine the facts based on the man best way and i would also assert that he did not appropriately apply the law first for example the time period that the hearing officer looked at in twelve when the incident occurred that led the employer to make the decision to terminate this gentleman is not the time period that is significant in determining that from official case i would assert your honour's that vs taco bell case clearly indicates that the law in illinois is that the time period when the fact finder ways whether or not the claimant is meeting the reasonable expectations of an employer is immediately prior to a last event to his separation and every single individual who testified in this case said that mr tapley was separated because of the incident that happened on november sixth twenty twelve there is nothing in the record that suggests that the september twenty twelve event that they hearing officer retroactively looked at when there were issues relating to whether or not  tapley had properly reported that he was at the hospital with this child that's when erika pheromone with his supervisor and in september of two thousand and twelve she met with mr tapley and she disciplined him in writing he signed off on that he never came to the human resources department of the why don't you ca prior to november sixteenth and claimed that he had been discriminated against because of that september that the other issue of law error that the hearing officer made in this case and that the commission adopted is that the hearing officer essentially required the employer in this case to prove beyond a reasonable doubt the articulated reason for the employer's terminations of mr tapley every single individual who testified testified that mr tapley had an event with the individuals as the hearing officer notes gave their perspective of the event but i think it's extremely important in terms of wayne that testimony against whether or not the employer articulated a hillary pasha who was also a preventive education specialist who had a legal medical advocacy role for the why don't be a cia sat in her testimony that she felt that mr was her friend and that they were close friends i would assert to your honor's that her description of the events of november sixth have the most credibility because she was completely unbiased they hearing officer chose to disregard even ms pasha's description of what happened miss pasha affirms that mr tapley made derogatory statements to me in turn and also that he was acting the in turn from illinois state university that it was an inappropriate act up and she picked the attorney acted inappropriately and unprofessional she did testify your honor that she felt after everything had happened that hannah probably didn't handle it in the most professional manner but she says in her testimony that was after mr tapley had essentially told her to sit herself down and to know her place and so after that hilary pasha leave the location go to launch and hilary bennett immediately contacted nicole cures and who was one of the directors of the program who was on vacation and advised her of that this and that this particular event happened i'm not does it also seem to be a consensus that in turn is the one who instigated the confrontation and that she inserted herself into the conversation between mr tap tapley came over as the two of us were at the desk and mr tapley started talking to hillary pasha about wanting to take the shrimp out of her lunch and at that point anna said she's already told you that i believe gave this employer the legitimate right to separate this employee and i think that the hearing officer lost his way in terms of looking at the legal obligation of us standard that an employer has to meet to articulate a legitimate business reason this is not similar to warren case or the quincy case where there was some misguided assertion to the employer about why they were being separated mr tapley here was told on november sixteenth that you are being separated as a consequence of your inappropriate behavior and rude behavior with the  employer is allowed to make that personnel decision there is nothing in the record that indicates that personnel decision was made because mr tapley wasn't me well i think the implication you know the hearing officer ru case when i read it it seemed to me he was relying on some inference and secondly trying from the fact that mr tapley was never even given an opportunity to tell his side of the story he was never asked what happened they did not disappoint me in turn who was going to be based on my reading of it as equally at fault so the implication from that would be in that it was replaced by a woman that they will waiting for an opportunity to get rid of him and they seized on this without being given a chance to explain his side story but there is no evidence that they were waiting to seize on him in fact the evidence is to the contrary i'll develop evidence that when the new boss came in there he was the only one when he went in that she was negative towards she didn't even know all the other employees who might have that meeting and so she was great really nice he went in there and she challenged him about something that  says that you know in weighing these kinds of circumstantial situations about pretax we have to be careful not to put ourselves in the role of the personnel department of the employer because the employer is allowed to make personnel decisions i will agree with your honor that prior to november sixteenth nobody reached out to mr tapley to get his side of the circumstance but they did talk with  decision but they had a legitimate a legitimate basis to make the decision and this was not an instance where past supervisors had sat like you had in the warren achievement case or in the quincy case i'm going to get to this is an incident where we're going to make sure we get rid of you in the warrant achievement case actually the of then that the employer relied on happened in january of nineteen ninety the employer said that really wasn't that big of a deal relating to that sexual harassment and then many months later they tried to strap that back in this particular employer immediately investigated this event there a communication just a geisha you don't speak to all the parties involved well certainly i would have likely manage the investigation differently if they had retained counsel to do that however the case law clearly says they can rely on the oral statements of employees and supervisors that they spoke two and it's very possible that the c e o of the y decided at that point in time i've talked to the call i've talked to hillary i've talked to hannah and on that basis i believe because of his authority over the in turn and he is the one who testified that he did not answer directly to anyone that it was his belief by virtue of the way that the wire was being managed at that time that he was not directly answerable to anyone and clearly can of the end turn was directed and had to rip had to be supervised  counsel i mean as we are here now in these types of cases it's rare that we're going to have a situation where someone says to you i don't like the fact that you're a man and working here and so i'm going to do everything i can to get rid of you or me we have to look at inferences in the entire context and so it seems that you're criticizing the hearing officer for the death in my opinion that was shown but why isn't that a part of the hearing officer determination as to whether or not this was a pretext that food reason given was a pretext in looking at you know the entire big the big picture so to speak well he certainly determined based on a certain mosaic of circumstances as he describes it that it was pretax but then he ends his query there and i believe that the seven circuit cases that i've cited to your honor's clearly indicates that even when there is pre case because all of the testimony from those individuals who were decision makers in particular gene chamberlain in a cold kiersten were positive for mr tapley they wanted him to have this role in this program but i wanted to they simply did not believe that they needed to come oxy the h r person testified that prior to this event he had never made any claims of any issues with them manner in which management was interacting with him and it's my belief that the administrative supervisors determined that they had sufficient evidence given the nature of his position with the program and that the program was a situation where they were empowering women and it was perceived that his actions to him in turn were not consistent with that particular steppingstones pro they didn't manage it from a personnel standpoint like you and i would but there was not even any circumstantial evidence that the reason that led to his separation was his gender thank you counsel you have much time on  manifest way the evidence i do have to start out your honour's by saying this is a very disappointing case to not only my clients but i think to mclean county that this is gone on for four years the  with a mission statement of eliminating racism racism empowering women promoting peace justice freedom and dignity for all and we're here almost four years later when the what the right thing for the violated workplace rules she would be held the same standards as an employee would be similarly the will the definition in the bloomington ordinance of an employee certainly establishe with regard to the commission's ruling then that she was similarly situated clearly that is not against the manifest weight of the evidence with regard to whether  or has indicated that surprisingly quite frankly that there was no evidence of gender bias it's throughout it's replete throughout the record mistress champ he was the only ma in the program he was replaced by a female when miss class as justice white earlier noted when miss matt was everyone when she started as a director everyone else had a great meeting with her  female white females had a great meeting with her whereas when mr tapley met with her she accused him of not liking his job and chastised him for missing a speaking engagement which she admitted he had done she had missed one also he was apologetic but yet she chanced ice him and she also subsequently wrote a letter that went into his personnel file which he wasn't aware of about him missing  obviously her behaviors were were not professional but yet the management takes the word of three females one who was not even involved in the incident or at the incident mr herstein and no one talks to the only male black male involved in the incident determination notice from mr temple was prepared before they even met with him so there was no possibility there was no they weren't there to consider whether to terminate him they had decided to terminate him in fact the is the hearing officer noted mr chamberlain tried to even get more evidence against him in asking about whether there were schools that didn't want  to work mr tapley worked really hard for the sexual assault program he had an excellent reputation in the community and he did not deserve to be treated in fashion because he was oh mrs poland also indicated she found her interaction probably because she was working for a feminist organization the management here your honour's missed certainly miss the point of the discrimination and they continue to this day to miss the significant discriminatory treatment that mr tapley was was forced through and continues to be put through if this was a gender issue tailpiece behavior toward two female employees if it doesn't have to do with gender why would they even point out that it was two female employees clearly we h to affirm the findings of the relations commission thank you thank you mr morton thank you and may please the court now my name is greg moore doc and i represent the city of bloomington human relations commission in this matter i'd like to begin i'm not going to touch in the mcdonnell douglas framework in the beginning because there are some other issues outstanding first off several issues were raised in the notice of appeal that were not briefed and i asked that this court in those waive however since we cannot wave jurisdiction i just want to articulate that there is a thirty day provision where the hearing officer for the or that is hired for these hearings is supposed to send his decisions to the commission so the commission can render a quick judgment however in this case the hearing officer did not send his proposed order to the commission or three months this is not a jurisdictional issue that's a procedural command procedural command or it would be deemed discretionary unless one of two exceptions or met neither exception was met in this case and so i believe this this court has jurisdiction here this matter application and affirmative defense the burden is on y w c a to prove this affirmative defense they had three prongs to hit they would need to show that mr tapley actually did falsify his application that they had no knowledge of that also given and that had they had knowledge that falsification he would have been terminated they did not show any of these there's the application was not admitted into the record and the only misdemeanor that i could glean that needed to be revealed was providing or were misdemeanors for a fraud additionally there was testimony that in his interview process there was a dean and that is why don't you see a failed did not follow up or did not think that that would be an issue so they didn't prove that they didn't have knowledge of this and finally there is no testimony from the c e o to a supervisor to the human relation to their to their human h r department there's no testimony that that would have been a far so i would believe that the second affirmative defense should have been denied plethora of things went into his term a nation seems to be now we're focusing on on no november sixth i would like to focus at that time up until that day mr pappy was meeting with him and business expectations and the mcdon douglas framework is established in the way it is so employers cannot use an instance of transgression to impose disproportionate sanctions against a suspect class in a non suspect class if that were the case then any minor infraction could could give the people within employment decisions the ability to discriminate wrongfully so the the problem mr tapley had to show and did show that he was meeting legitimate business expectations up until that time and then through that time in till he was terminated i agree that this court does not sit as a personnel to review personnel decisions however their decisions cannot be made based on impermissible stereotypes one of those stereotypes is present and in this case and the hearing officer determine that when you have a situation where there is an argument between an african american male and a white female and the african american male is described as the aggressor as intimidating and as using power control tactics the white females treated as a victim in this case and her statement is taken and that's the investigation he found that that was enough evidence to show pretax and not just show that the reason for his term a nation was made up by y w c a as has been asserted here today but that the reason it was made up in the underlying decision was based on the impermissible inference of discrimination  wrongful point discrimination and awarded damages accordingly if there are no questions no thank you  somebody counsel indicated that ms cohen did not have any discipline i would assert to your honor's that actually her supervisor was notified of this event that alan joyce state university and certainly her internship did not terminate but there was a reach out and a cold kiersten said to her i am going to have to notify your professor about this event and then there's you know what the nature of the asian was in me was it we had a problem with your in turn or were sorry your internal was harassed by a male employee no i believe nicole care since testimony was that in fact she reported the unprofessional response by ms cohen to the super of up to the professor but again she was not an employee of the white at the cia i would assert that she's not a similarly situated employee as counsel suggests because counsel said i represented that mr said that he didn't the answer to any one it's on page thirty eight of his testimony and the hearing officer found that mr tapley himself said i essentially don't answer to anyone and the interim clearly didn't answer to nicole so if she wasn't an employee what could the y have done to her and well we don't have evidence of what the i s u contract was on this in terms of they would have no notified the professor about it rise and say she's not an employee and my question is do you believe that they had to allow her to continue to work there and meet mr tapley scase they thought the situation was bad enough to fire him so do you think that they could not say to her we no longer want you to serve as an attorney or i believe they i believe they could have done that certainly your honor they were not ordered by anyone to keep her there as an interned but i do believe that nature of the offense in mr tapley hole as a prevention specialist versus an in turn and he was deemed superior to an account on the interne i do believe that that is a significant difference and that is not a distinction without a difference with respect to the second affirmative defense your honor the hearing officer finds here that mr tapley admitted that he falsified information on his employment application and the hearing officer that said page twenty nine of his decision and he also cites a case which i believe is appropriate the bush vs wal mart case to say that when there is evidence that an employee has falsified information on an employment application it can be deemed grounds for the employer to terminate their relating to having poor they terminated him they did not but the law does not require them to the law indicates that if they would have known it would they have terminated and the cold pierston and dante lats and both said that because of the drug convictions and the specific policy that was placed in the record requiring employees in the record the argument of the employee was that they happened before he was employed so he didn't have an obligation to report but then they discovered those and when he submitted sample occasion and other work that was the  that turned out no actually the finding by the hearing officer is accurate with respect to the testimony that it was an obstruction of justice conviction with a police officer that was the day and i believe that event them from hiring  didn't it didn't cause jane chamberlain to separate him when she discovered it in september of two thousand and twelve however there was testimony that if they've known about the drug convictions because of the nature of their policy  went to the employment isn't that right no that is not right that is how the hearing officer described that language but the plain language does not state that and mr tapley admitted that he had not disclosed those convictions cia and i would assert that the case law says that's an appropriate affirmative defense and here the hearing officer acknowledges that but then on the next phase just says but i'm denying what page twenty nine and thirty i believe your hon you agree that these were convictions that happened prior to that is be hired by the law yes but i also would assert your honors that he admitted in the testimony at trial that he failed to disclose those to the cia and we did not learn about it until trial we had the benefit of his deposition testimony from a federal case and he admitted those actions thank you your honor i see my time thank you thank you will take this