SI XTH DIVI SI ON August 13, 2010 No. 1-09-0908 NI CK OWENS, ) ) ) Petitioner-Appellant, ) Petition for Review of ) An Orde r of the Chief L eg al v. ) Counsel of the I llinois ) Depa

rtment of Human Rights. THE DEPARTMENT OF HUMAN RI GHTS; ) MI CHAEL

L I EBE RMAN, Chief L eg al Counsel ) Designee of

the Depa rtment of Human Rig hts; ) No. 2005 CA 2283 and EXX ON MOB I LCORPOR ATI ON, ) ) Respondents-Appe llees. ) J USTI CE J OSEPH GORDON deliver ed the opinion of the c ourt: On Fe bruar

y 2, 2005, petitioner-a

ppellant, Nick Ow ens, filed a char g e of discr imination with the I llinois Depa

rtment of Human Rig hts (here inafter , sometimes, the Depa rtment) alleg ing that his employ er, Exx on Mobil Corporation (here inafter Ex x on Mobil) discriminated ag ainst him by issuing a written repr imand to him on Decembe r 13, 2004, eve n though he had bee n perf orming his duties in a satisfactory manner , based on his ra ce ( Afric an American) (count A) and his ag e (55) (count B ), in violation of section 2-102( A) of the I llinois Human Rig hts Act (Human Rights Act) (775 I L CS 5/ 2-102(A) (West 2004)). On F ebrua ry 23, 2005, Owens f

iled

an ame nded cha

rg e addingthat on Fe bruar y 15, 2005, despite satisfac torily perf orminghis duties, he re ceive d a sec ond written re primand bec ause of his race (count C) a

nd ag e (c ount D), in violation of section 2-102(A ) of the H uman Rights Ac t (775 I L CS 5/ 2-102(A) (West 2004)), and further in retaliation for

filing the subject discrimination cha rg e (c ount E), in violation of section
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6-101(A) of the Ac t (775 I L CS 5/ 6-101(A) (West 2004)). On June 27, 2005, Owens f iled a second a mended c harg e, addingthat on or about Apr il 12, 2005, Ex x on Mobil subjected him to unequal ter

ms and conditions of employ ment when it re fused to g rant his re quest for tuition reimburse ment based upon his ra ce ( count F) , his ag e (c ount G), and in re taliation for his filing the subject c harg e (c ount H). After conductingan initial investigation, on August 3, 2007, the D epar tment of Human Rights issued a notice of dismissal for lack of substantial evidence as to all eig ht counts of petitioner’s c harg e. On January 22, 2009, howeve r, the c hief leg al counse l of the De partment of Human Rig hts vacated the dismissal order a nd reve rsed f

or fur ther investig ation into all counts. Upon furthe r investig ation, the Depa rtment of Human Rig hts issued a second or der of dismiss al, ag ain findingthat Owens ha d failed to pre sent substantial evidenc e in support of his cha rg e. This time, the chief

leg al counse l ag ree d with the finding s of the De partment a nd sustained the decision of the D epar

tment to dism iss petitioner’s cha rg e. Owe ns now appe als. On appe al, Owe ns contends that the c hief leg al counse l of the De partment of H uman Rights abuse d his discretion when he sustained the dec ision of the Depa rtment to dismis s his discrimination char g e, since he pre sented substantial evide nce of discrimination. Owens a lso contends that the substantial e vidence standard a s articulate d under se ction 7A-102(D )(2) of the Human Rig hts Act (775 I L CS 5/ 7A-102(D )(2) (West 2004)) is unconstitutionally vague. F or the

rea sons that follow, we a ffirm. I . BA CKGROUND The undisputed fa cts establish that Owe ns has bee n employ ed by Ex x on Mobil’s Cicero

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Reg ional Distribution C enter since 1977 a

nd that at the time of the inc ident he wa s employ ed as

a wa rehouse operator. A. Owe ns’ Discrimination Charg e On Fe bruar

y 2, 2005, Owens f

iled a two count c harg e of discr imination with t he Depa rtment. In count A, Owe ns alleg ed that on De cembe r 13, 2004, he w as subjecte d to discrimination by

Ex x on Mobil on the basis of his race (Afr ican Ame rica n), in violation of section 2-102( A) the Human Rights Ac t (775 I L CS 5/ 2-102(A) (West 2004)). In count B , Owens a lleg ed that on that same date, he was subjec ted to discrimination by Ex x on Mobil on the basis of his ag e (55 year s old) violation of section 2-102(A ) the Huma n Rights Act ( 775 I L CS 5/2-102(A) (West 2004)). In support of both counts A and B , Owens state d that althoug h on the date in question he ha d been pe rfor ming his duties in a satisfa ctory manner , his shift supervisor, Melvin Koziol , issued a wr itten reprimand to him for “ excessive loadingtime and loading

err ors.” Ow ens fur

ther stated that although two similarly situated y oung er, white employ ees, Carl Pratsche r, and B ry an Wrig ht, had bee n cited for excessive loadingtime and loadingerr ors, they wer e not g iven written re primands for the ir conduc t. On Fe bruar

y 23, 2005, Owens f

iled an ame nded cha

rg ed, re iteratinghis earlier claims, but addingthree more c ounts, C, D, and E. In count C, Owens a lleg ed that on F ebrua ry 15, 2005, he wa s discriminated ag ainst on the basis of his rac e whe n he wa s issued a sec ond written repr imand by

shift supervisor Koziol in viol ation of sec tion 2-102(A) of the Human Rig hts Act (775 I L CS 5/ 2-102(A) (West 2004)). In count D, Owe ns alleg ed that this same incident wa s a result of a g e discrimination, and violated se ction 2-102(A) of the Huma n Rights Act ( 775 I L CS

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5/2-102(A) (West 2004)). F inally , in Count E, Owens alleg ed a c laim of reta liatory discrimination pursuant to section 6-101( A) of the Act (775 I L CS 5/ 6-101(A) (West 2004)), contending

that the Fe bruar

y 15, 2005, written re primand wa s issued to him i n reta liation for his filing of the subject c harg e. In support of counts C throug h E, Owe ns alleg ed the f ollowing f

acts. Ac cordingto the second written repr imand, Owens ha d failed to pe rfor m his job dut ies by

failingto include eig ht drums of “Te lura 622” when loadinga customer order on J anuar

y 7, 2005. Owens, how ever , denied f ailing to pe rfor

m his job dut ies on that date a nd explained that the eig ht drums of “Te lura 622 ” “ma

y have be en adde d to [ his] order afte r [he] had gotten [his] shipping notice .” Owe ns

aver red that in the past there ha d been instanc es whe re subse quent cha ng es made to a shipment order wer e not re flec ted on the copy of the shipping notice g iven to a wa rehouse operator. Owens f urther a lleg ed that two similarly situated y oung er white employ ees, Pratscher a nd Wright, had be en tre ated diff ere ntly under similar c ircumstance s. Owens f urther a lleg ed that on Fe bruar y 15, 2002, he eng ag ed in a pr otected a ctivity by filing a discrimination char g e with the Depa rtment of Human Rig hts and that the issuing of the sec ond written re primand followed this protec ted ac tivity

“within such a pe riod of time so as to ra ise an infe renc e of r etaliatory motive.” On Marc h 25, 2005, Ex x on Mobil filed a ver ified re sponse deny ing the materia l alleg ations of Owens’ char g e. On J une 27, 2005, Owe ns filed a se cond ame nded cha rg e, re alleg ing c ounts A throug h E of his ear lier cha

rg es, but addingthree more c ounts, F, G, a nd H. In count F, O wens a lleg ed that on or about Apr il 12, 2005, Ex x on Mobil subjected him to unequal terms and c onditions of

4No. 1-09-0908

employ ment when it re fused to g rant his re quest for tuition reimburseme nt based upon his ra ce, in violation of section 2-102(A) of the Huma n Rights Act ( 775 I L CS 5/ 2-102(A) (West 2004)). In count G, Owe ns alleg ed that, since at the time of this reque st, he was 55 year s old, the denial of tuition reimbursement wa s also a re sult of ag e discrimination, in violation of section 2-102(A ) of the Huma

n Rights Act ( 775 I L CS 5/ 2-102(A) (West 2004)). F inally , in count H, Owe ns alleg ed a c laim of reta liatory discrimination pursuant to section 6-101( A) of the Act (775 I L CS 5/6-101(A) (West 2004)) cla iming that Exx on Mobil refused to g rant him tuition reimbursement in retaliation for

his filing of the subject discrimination cha rg e. In support of these a dditional claims, Owe ns alleg ed that althoug h on April 12, 2005, he submitted a re quest for tuition reimburse ment to his shift supervisor, Koziol , since then “ no action has be en take n on his reque st.” Owe ns further

stated that he “ believe[s]” that other similarly situated, non-Af

ricanAmeric an employ ees unde r the a g e of 40, na mely Wright, Ga

ry Wantroba and othe rs, have been g rante d tuition reimbursements. On August 10, 2005, Ex x on Mobil filed a ver ified re sponse to Owens’ amende d char g e deny ing the materia l alleg ations. B. The Depa

rtment’s F irst I nvestig ation and Dismissal The De partment of H uman Rights conduc ted an investig ation and base d on its findings, on August 3, 2007, dismi ssed all counts of Ow ens’ c harg e for lack of substantial evidence . I n support of its dismi ssal, the Depa rtment of Human Rig hts attache d voluminous records of its investiga tion. Those rec ords re veal that dur ing its investig ation, an investig ator for the Depa rtment of Human Rig hts interviewed se vera l witnesses, including (1) the pe titioner, Owens, (2) two r etired Exx on Mobil employ ees ( Mike Sanders a nd Ernest Ha

mpton); (3) one c urre nt

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Ex x on Mobil employ ee ( mecha nic J essee Thomas): (4) two members of Ex x on Mobil manag ement at the Cice ro Reg ional Distribution C enter (shift supervisor Me lvin Kozi ol, and opera tions manag er, Patric k O’Reilly ); and (5) Ex x on Mobil’s in-house attorney , J udith J ansen. The investig ator a lso reviewe d voluminous documents provided by the par ties, including: (1) a letter of r eprimand f

rom Koziol t o Owens dated Fe bruar y 15, 2005; (2) a group of loadingerr or investiga tion reports; and (3) a g roup of g ener al disciplinary documents for

Ex x on Mobil employ ees at the Cicero Reg ional Distribution P lant. Wit h respe ct to counts A and B of Owe ns’ cha rg e, the De partment’s inve stigator repor ted the followingevidenc e. When interview ed, Owe ns stated that on Dec ember 13, 2004, his shift supervisor Koziol i ssued a wr itten warningto him for “wor king too slow a

nd making excessive er

rors.” Although O wens a dmitted that he sometimes works slower tha n other employ ees, he explained that he does so bec ause “ he is che ckingto make sure he is not making

err ors.” Ow ens fur

ther stated that he believe s his work perf ormanc e is the same a s that of other simil arly situated war ehouse ope rators, na mely Wright (non- Afric an-A merica n, 23 y ear old), Steven J ohnson (non-Af

rica n-Amer ican, 49 year s old), Michae l Panozz o (non-Af ricanAmeric an, 26 y ear s old), Pratscher (non-Af rica n-Amer ican, 47 year s old) and Da niel Hanson (non-Af rica n- Amer ican, 44 year s old). Acc ordingto Owens, howe ver, the se other e mploy ees have not r ece ived written re primands for e rror s in their perf ormanc e. Owe ns also stated that he believes tha

t he was discr iminated ag ainst beca use of his ag e as Exx on Mobil has a policy under which an e mploy ee ma

y retire when he or she turns 55 a nd acc umulates 15 y ear s of servic e with the company . Owens state d that one month afte r he turne d 55 y ear s old, he was issued a written

6No. 1-09-0908

war ning. Acc ordingto the Depa

rtment’s investig ator, Ow ens alleg ations were corr oborate d by statements from two r etired a nd one cur

rent Exx on Mobil employ ee. Spec ifically , duringan interview w ith the Depar

tment’s investigator, retire d filler , Mike Sanders ( Afric an Amer ican, 60 1 y ear s old) stated that “r ace discrimination was g oing on” at the plant. Sander s expl ained that opera tions manag er Patric k O’Reilly (non-Af rica n-Amer ican, 48 year s old) “is a ra cist,” who trea ts Africa n Americ an employ ees “ unfairly” and likes to discipline them whe n they should not be disciplined. Retired for

klift driver , Ernest Ha

mpton (Afric an Amer ican, 68 year s old) simil arly told 2 the Depa rtment’s investig ator that he believed that “ra ce disc rimination and a whole bunch of other thing s [were] goingon” at the pla nt, but he did not elaborate. Finally , mecha

nic J esse Thoma s (Afr ican Ame rica n, 43 y ear s old), told the Depar tment’s investiga tor that O’Reilly

was “ a ra cist,” and that he re fer red to Af rica n Americ ans as “ nigg ers” and Mexican employees a s “we tbacks.” Thomas also stated that O’ Reilly was a lway s disciplining African Ame rica n individuals for things they “did and did not do,” c ommenting “I ’m g oing to g et that nig g er.” Acc ordingto Thomas, sever al individuals complained to manag ement and huma

n resour ces a

bout O’Reilly ’s ra cial slurs. As a r esult, betwee n 2001 and 2004, Ex x on Mobil conducted a n investigation into allegations of rac ial discrimination. Although during this investig ation sever al manag ers initially attested to O’Re illy ’s

The re cord r evea ls that Sanders re tired three y ear s prior to the instant litigation. 1 The re cord r evea ls that Hampton retire d from Exx on Mobil in May 1995. 2 7No. 1-09-0908

discrimination ag ainst Afric an Amer ican e mploy ees, a ccor ding to Thoma s, after upper manag ement spoke to them, they wer e “sc are d off” and they ref used to testify

about O’Reilly ’s conduct. On the other

hand, the De partment’s inve stigator repor ted that contra

ry to Owens’ alleg ations, manag ement at Exx on Mobil’s Cicero plant denie d havingdisciplined Owens beca use of his ra ce a

nd/or ag e. F irst, shift supervisor Koziol (non-Afric an-A merica n, 54) told the Depa rtment investigator that on Dec ember 13, 2004, he issued Owe ns a “written counseling ” and not a “ written re primand,” a nd that there is a diffe renc e betwe en the two. Koziol expl ained that he issued the “ written counse ling” to Owens be cause Ex x on Mobil rece ived seve ral complaints on an orde r that Owe ns loaded on August 5, 2004. Specifically , Koziol s tated that while the customer

order ed 26 ca ses of “ Mobil 1" produc ts, 11 pails of “Mobilux EP2,” 5 pails of “Mobil ShC 632" and 4 pa ils of Vacuoline, it re ceive d 25 case s of “Mobil 1” produc ts; 12 pails of “Mobilux EP2,” 4 pails of “Mobil ShC 632,” 3 pails of Vac uoline, and 1 pail of “somethingwithout a label.” In addition, operations manag er, Patric k O’Reilly told the Depar

tment investigator that Owens ha d made se vera l mist akes on his orde rs prior to beingissued the Dec ember 13, 2004, “wr itten counseling .” O’ Reilly explained Ex x on Mobil’s procedur e with issuing “ written counseling ” to its employ ees. A ccor ding to O’ Reilly , any time Ex x on Mobil rece ives a c ustomer complaint, it investigate s to determine whe ther the c omplaint is l eg itimate. I f the c ompany deter mines that the complaint is leg itimate, the employ ee r ece ives a “ loading err or” in his or he r personne l file. Once an employ ee ha s three e rror s in his or her file, the employ ee r ece ives a

8No. 1-09-0908

rec ord of “ counseling .” Wit h respe ct to the other similarly situated employ ees that Owens a lleg ed we re tre ated differ ently

from him, O’Reilly

explained that: (1) Wright a nd J ohnson had not bee n issued any “counse ling” or wa

rning s beca

use they had no loadingerr ors; (2) Panozzo had been issued a

war ning f or unsaf e conduc t on a forklift a

nd order ed to par

ticipate in one loadingerr or coa ching session but had not been g iven “wr itten counseling ” since his file did not contain three loading

err ors; (3) Pra

tscher r ece ived a c oachingsession for a loading err or, but no “c ounseling ” since he did not commit t hree loadingerr ors; and (4) Hanson re ceive d repr imands “for other thing s.” The De partment’s inve stigator furthe r re ported that Exx on Mobil’s counsel, J udith J ansen (a non- Afric an-A merica

n, 63 y ear s old), confirme d that if an Exx on Mobil employ ee ha s completed 15 year s of servic e by the time he or she rea ches the ag e of 55, that employ ee c an retire . J ansen e x plained, howe ver, that this i s a bene fit plan and not a c ompany policy and that, as such, it had nothingto do with Owens’ “ written counse ling” rec ord. In addition, the Depa

rtment’s investig ator re ported that Exx on Mobil’s disciplinary documents disclosed that similarly situated employ ees ha d also bee n issued “counse ling,” repr imands, warning s and suspensions, and that they had not bee n treated diffe rently than Owens. The investigator summarized his analy sis of these disciplinary documents in two cha

rts: (1) the f irst char t showing a ll the disciplinary actions take n ag ainst Owens a nd his coworke rs in the two year s prior to his filing of the instant charg e, and ( 2) the sec ond char t summarizi ng all loadingerr or investig ation repor ts at the plant since 1999. CHART 1:

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Date Nam e Disciplin e Reason Age Race 08/28/03 Novakowski Counseling Fa ilure to wea r ppe 47 Whit e 08/29/03 M Panozz o L etter of Reprimand Unsafe operation of

forklift 26 Whit e 08/29/03 Wantroba Suspension Truck spillag e 36 Whit e 09/15/03 T Panozz o Counseling Unproduc tive insubordination 50 Whit e 12/15/03 Solis L etter of Warning Absentee ism 25 Hispanic 02/96/04 Pollack Counseling Absentee ism 54 Whit e 03/23/04 Whit tier Counseling L oadingError s 37 Afric an Americ a n 04/13/04 Washington Suspension Dishonesty related to absenc e 36 Afric an Americ a n 04/22/04 Dra da Counseling Unac cepta ble absenc e 55 Whit e 05/03/04 Bustos L etter of Reprimand Product

contamination 47 Hispanic 08/13/04 Pollack Counseling Unac cepta ble absente eism 54 Whit e 10/21/04 Hanse n Suspension Refusal to re port to work 45 Whit e 12/07/04 Owens

(petitioner) Counseling L oadingerr ors 55 Afric an Americ a n

CHART 2:

10No. 1-09-0908

Date Nam e Disciplin e Reason Age Race 11/16/05 Hanson Coache d L oad er ror 44 Whit e 10/28/04 M. Panozz o Coache d L oad Err or 26 Whit e 04/19/04 Wright Error in file L oad Err or 23 Whit e 08/29/03 M. Panozz o L etter of repr imand Unsafe on forklift 44 Whit e 09/13/01 M. Panozz o Suspension Error loading forklift 44 Whit e 01/29/02 J ohnson Suspension Product mix err or 49 Whit e 12/17/01 J ohnson L etter of Reprimand Product mix err or 49 Whit e 08/24/99 Sanders Suspension Unsafe work prac tices N/A Whit e 06/15/04 Pratscher Error on file L oadingerr or 47 Whit e 03/23/05 Pratscher Coache d Not following loading proce dures 47 Whit e

Ba sed on the a fore mentioned investig ation repor t, the Depa

rtment of Human Rig hts

rec ommended that counts A a nd B of Owens’ char g e be dismissed. Wit h respe ct to counts C, D, and E, whe rein Ow ens alleg ed that on F ebrua ry 15, 2005, Koziol i ssued him a sec ond written re primand base d upon his ag e, ra ce a nd in retaliation for

his filing of the instant char g e, the De partment’s inve stiga tor repor ted the followingevidenc e. Duringhis interview with the De partment investig ator, Ow ens stated that Koziol issued him a written re primand “f

or his perf

ormanc e and f

or a loa ding e rror ,” informingOwens tha t he had failed to include a number of drums in an orde r. Owe ns aver red that he could not be c erta in whether he fa iled to include those drums in the customer order or whe ther the c ustomer made

11No. 1-09-0908

chang es to the orde r af

ter he had alr eady

loaded it. On the other

hand, Koziol denied Owe ns’ claim that he ha d been issued this sec ond written re primand as a

result of his ag e or r ace or in reta liation for his filing the instant discrimination char g e. In fac t, Koziol aver red that he was not e ven aw are that Owens ha d filed a discrimination char g e ag ainst Ex x on Mobil. Rather, Koziol t old the investiga tor that he issued Owens a “wr itten warning ” for

his poor perf

ormanc e. Koziol ex plained that af ter Ow ens loade d an orde r for

a customer

on J anuar

y 7, 2005, that customer c ontacted E x x on Mobil and indicated that it had not rec eived a

ny of the e ight dr

ums it had ordere d. Acc ordingto Koziol , afte r the

war ehouse supe rvisor counte d the drums in the war ehouse, he discovere d that the war ehouse ha d eight additional drums, which ver ified that Owe ns, who was the w are house oper ator that da y , had fa iled to ship them to t he customer

. Acc ordingto the Depa

rtment’s investig ator, Koziol’s statement was c orrobor ated by a letter fr om Koziol to Owens dated Fe bruar y 15, 2005, in which Koziol informed Owens that he was be ing issued a

“letter of re primand” a s a “disciplinar y measure ” for

his “failure to perfor

m [hi s] j ob duties.” That letter states that Owe ns’ lack of attention to his assigne d job task resulted in “customer se rvice s failure s” and “ monetary loss” to Ex x on Mobil. The letter spec ifically notes that Owe ns was being repr imanded bec ause in filling a customer order on J anuar

y 7, 2005, he fa iled to put eight dr

ums of “Te lura 622" in that order. T he letter also notes that Owe ns has previously

rec eived a

rec ord for

“counse ling,” on J une 25, 2004, for doing a product c onversion that conver

ted inventory

to an incorr ect pr oduct name, a nd subsequently

on J anuar

y 25, 2004, for multipl e loadingerr ors on four dif fer ent customer or ders. The letter fur ther states that in the past

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y ear , Koziol had attempted to coac h Owens on se vera l occa sions reg ardinghis work perf ormanc e, lac k of produc tivity , poor loadingtechnique, loa ding e rror s and unsaf e pra ctices. The letter further advised Ow ens: “It is y our re sponsibili ty

to follow supervisor instruction, saf e wor k prac tices and job proce dures, a s well as completingassig nments in a timely order . Fa ilure to meet these require ments will result in further disciplinary action, up to and includingtermination of your employ

ment from [Ex x on Mobil.] ” Ba sed on the for eg oing inve stigation report, the De partment of H uman Rights

rec ommended that counts C, D, and E of Owe ns’ cha rg e be dismissed. Wit h respe ct to counts F, G , and H, whe rein Ow ens alleg ed that on or a bout April 12, 2005, he wa s denied e qual terms and c onditions of employ ment when Koziol failed to honor his reque st for tuition reimbursement for sever al classe s, later de termined to be a ir conditioning, heating and ventilation classe s, he had ta ken at a local community

colleg e, the De partment’s investiga tor repor ted the followingfac ts. Owens stated that after he submitted his request to Ex x on Mobil for reimburse ment of his tuition on J anuar y 27, 2005, he wa s denied that re quest without any

written explanation, while, he be lieves, other similarly situated employ ees, inc luding Wright and Wantroba , wer e g rante d simil ar r equests. Owe ns admitted that he does not know f or

cer tain whether

Wright and Wantroba

wer e in fa ct re imbursed. When questioned about this incident by the Depa rtment investigator, Koziol admit ted that Owens r equeste d and wa s denied tuition reimbursement, but he stated that the re ason wa s nondiscriminatory . Koziol ex plained that Owe ns was denie d reimburse ment beca use his

13No. 1-09-0908

application did not meet Exx on Mobil’s tuit ion reimburseme nt policy , which re quires that an employ ee be prea

pproved f or tuition reimbursement bef ore taking the classes. A ccor ding to Koziol, Owens submitt ed a r equest for tuition reimbursement afte r alre ady havingtaken the classes. Acc ordingto the Depa

rtment’s investig ator, Koziol’s statements wer e cor roborated by the re ceipts for

those classe s submitt ed by Owens to Exx on Mobil, which reve al that the cla sses

wer e take n over a

y ear befor e Owe ns filed his reque st for re imbursement. They wer e also

corr oborate d by

Ex x on Mobil’s written tuition reimbursement policy . Under that policy

Ex x on Mobil promised to “reimburse e mploy ees f or ac tual cost for r eg istration, tuiti on, regular instruction fee s and re quired textbooks,” if the employ ees qua lified for r eimbursement. To qualify for r eimbursement, the c ourses take n must have bee n “desig ned to maintain or improve the employee’ s job skill s and incre ase w ork re lated compe tencies or capa biliti es,” a

nd must have been ta ken at a n “ac cre dited university , colleg e or voc ational institut ion for a grade .” Most importantly , the policy

mandated that “manag ement *** appr ove the e mploy ee’ s application for a spec ific cour se of study and the e ducational institution before eac h enrollment.” ( Emphasis added.) Koziol also st ated that c ontrary to Owens’ a lleg ations, Wright and Wantroba wer e not reimburse d tuition for classes they had take n. In fac t, Koziol stated that Exx on Mobil has not reimburse d anyone for

tuition ex penses at the plant in the past three y ear s. Wright and Wantroba

corr oborate d Koziol’s st atements. While Wright indicated that he had ne ver r equeste d or

rec eived tuition reimburseme nt from Exx on Mobil, W antroba stated that althoug h he had

14No. 1-09-0908

reque sted reimburse ment on one occ asion, that reimburse ment was not g rante d beca use the c lass Wantroba took did not qualify for tuition reimburseme nt. Ba sed on the a fore mentioned investig ation, the Depa rtment of Human Rig hts found that there was insuffic ient evidenc e to per mit Owens to proce ed with counts F , G and H of his discrimination char g e. Ac cording ly , the Depa rtment rec ommended that Owe ns char g e be dismiss ed in its entirety

.

C. The Chief L eg al Counsel’s Rever sal of the De partment’s D ismiss al On J anuar

y 22, 2008, the chief

leg al counse l of the De partment of H uman Rights ente red an orde r vac atingthe Depa rtment’s dismissal of the cha rg e and r emanding

the matter to the Depa rtment for f

urther inve stiga

tion. W ith respec t to counts A, B, C, D, a nd E of the c harg e, the chief leg al counse l directe d the Depa rtment to determine the following : (1) Exx on Mobil’s written discipline policy ; (2) the diff ere nce be tween a

“wr itten counseling ” and a “wr itten

war ning” and/or “ written re primand”; a nd (3) spe cifica lly , what Exx on Mobil’s discipline policy states ar e the c onsequenc es of loadingerr ors. Wit h respe ct to counts F, G , and H, the c hief leg al counse l directe d the Depa rtment to deter mine: (1) the date Owe ns submitt ed his application for tuition reimbursement; (2) Exx on Mobil’s criteria

in determiningwhether

course s can be reimburse d; (3) the e x act dates Owe ns’

course s started a

nd whether

the list of those course s was submitted to Ex x on Mobil prior to the tuition reimbursement application process; and ( 4) the e x act date when O wens’ r equest for tuition reimbursement was de nied.

D. The D epar

tment’s Second Investig ation and Dismissal

15No. 1-09-0908

On J uly 10, 2008, the Depa

rtment completed a

n addendum investig ation repor t, based upon which it ag ain dismissed all counts of Owe ns’ discrimination char g e. In conductingits second inve stigation, the Depar tment investigator reinter viewed O wens a

nd Koziol, as well as revie wed se vera l additional documents provided by the par ties, including, inter alia : (1) an excerpt fr om Ex x on Mobil’s plant rules; (2) a letter fr om Ex x on Mobil to t he De partment of Human Rig hts; (3) a g roup of loading err or investig ation repor

ts for Owe ns; and (4) O wens’ tuition refund applica

tion togethe r with a g roup of ve rification for tuition pay ment forms. Wit h respe ct to counts A throug h E, the De partment’s a ddendum investig ation repor t disclosed the followingevidenc e per tinent to the Depar

tment’s dismiss al of those c ounts. W hen reinter viewed r eg ardingEx x on Mobil’s disciplinary policy , shift supervisor Koziol stated that both the terms of Ow ens’ e mploy ment and any

disciplinary

actions to be take n ag ainst him are g overne d by

the terms of the collective ba rg aining ag ree ment, as we ll as the Cicero pla nt’s disciplinary

rules. In a letter to the Depa

rtment dated F ebrua

ry 13, 2008, Ex x on Mobil ex plained the contents of the c ollective bar g aining ag ree ment as we ll as the Cicero pla nt’s disciplinary

rules. Acc ordingto the barg aining ag ree ment, with respec t to discipli ne, if a n “employ ee a lleg es his/her discharg e wa s unjust,” he or she ha s 10 workingday s to file a g rieva nce r eg ardingthe dischar g e. After the employ ee f

iles a g rieva

nce, the company

must inform the union within t hree working day s of the re ason for

a disciplinary

suspension or a discha

rg e and if the union fee ls there wa s no just cause f

or the c ompany ’s ac tion, the case may be proc essed unde r the grieva nce a nd arbitra tion procedur e. In addition, acc ordingto the collective ba rg aining ag ree ment, the

16No. 1-09-0908

company and the union agree to “abide by all valid and applica

ble non-discr imination laws.” Finally , under the ag ree ment “[t] he compa ny reta ins all rights of ma

nag ement re sulting fr om the

owner ship of the plant or pe rtainingto the operation of the business, except to the extent that such rights are limited by the provisions of this Ag ree ment.” Ac cordingto Ex x on Mobil, under the collec tive barg aining ag ree ment, with respec t to discipli ne, the a g ree ment provides only that if the employee be lieves a suspe nsion or discharg e is without “just cause,” that employ ee c an file a grieva nce, a nd if the g rieva

nce is not re solved, the union ca n reque st arbitration. The agree ment place s no other limitations on m anag ement’s r ight to oper ate the busine ss, which includes the right to set standards for work pe rfor

mance and wor

k place behavior

and to administer discipline wher e employ ees f ail to meet standar ds of per formanc e and be havior. In this vein, acc ordingto Ex x on Mobil, the Cicero Reg ional Distribution C enter manag ement has issued pla nt disciplinary

rules. Those pla

nt rules first state that be cause “per sonal discipline and prope r standar ds of conduc t are nece ssary to protect the he alth and safe ty of all employ ees,” any

employ ee “ who fa ils to m aintain at all times proper standards of conduct or

who violates any

of the plant rule s shall subject [him self or he rself] to appropriate disciplinary

action up to and includingtermination of employ ment.” Althoug h the plant rules specify cer tain standards of

conduct, suc h as proce dures f or re porting injuries or excusing absenc es, and the ban on “hor seplay ,” sexual hara ssment, and the use of cell phones inside the plant, they

do not include or e laborate on the disciplinary proce dure or

conseque nces r esulting from loading

err ors. The pla

nt rules do, howeve r, end w ith the following state ment: “The se rules a

re not intende d to be all inclusive, the Company may establish additional

17No. 1-09-0908

rules, and supe rvisors may set up rules de emed ne cessa ry by operational require ments. Any employ ee who fails to maintain, at all times, proper standards of

conduct, or

who violates any

of the [above] rules, may be subjec ted to disciplinary action, which ma

y include ter

mination.” In its letter to the Depa

rtment, Exx on Mobil also responded to the c hief leg al counse l’s reque st that Ex x on Mobil ex plain that the diffe renc e betwe en a “ written counse ling” and a “wr itten warning .” Ac cordingto Ex x on Mobil, “the diffe renc e betwe en ‘c ounseling ’ and ‘wa rning ’ is a univer sally

understood conc ept in labor re lations,” under which the “obje ctive of ‘counse ling’ is to chang e an e mploy ee’ s behavior,” while the “obje ctive of ‘ war ning’ is discipline.” Acc ordingto Ex x on Mobil, “counseling ” or “ coac hing” an employ ee on his pe rfor mance is not a disciplinary

action. A “ counseling ” may or may not be re ported in the e mploy ee’ s personne l file. Often it consists mere ly of informa l discussions between supe rvisor and employ ee where in “the employee is a dvised that ce rtain beha vior does not meet the e mploy er’ s standards a

nd that specifie d reme dial actions ar e nee ded.” Since most employ ees r espond favor ably to informal “c ounseling ” and a re f ully capa ble of avoiding or

corr ecting

their er rors, “ver bal counse ling” is ge nera lly not considere d discipline. Howeve r, should “ver bal counse ling” prove ine ffe ctive, a f

ormal counse ling (

i.e. , “wr itten counseling ”) se ssion may follow. When a written memo deta iling a “ counseling ” session is place d in an employee’ s personne l file, it is intended to provide the employ ee w ith “fair notice of the e mploy er’ s specific require ments,” as well as to lend “ formality to the session, thereby

incre asingits significa

nce to the e mploy ee.”

18No. 1-09-0908

On the other

hand, ac cordingto Ex x on Mobil, a “letter of repr imand” or a

“wr itten

war ning,” is a “disciplinary

document that informs the e mploy ee that he has fa iled to make the

nece ssary improvements in perf

ormanc e or be havior a

nd that if he c ontinues to perfor m unsatisfac torily

he may be subjec t to more sever e discipline, up to and includingdischarg e.” Acc ordingto Ex x on Mobil’s letter to the Depa rtment, on Dec ember

13, 2004, Owens w as g iven a “ written re primand” be cause he had a ccumulate d three prior loadingerr ors for poor perf ormanc e. In support of this contention, Ex x on Mobil provided the Depa rtment with a copy 3

We note that the re cord is somewha t unclear as to what ty

pe of doc ument Owens w as 3 issued on Dec ember

13, 2004. Whil e Owe ns alleg ed that he w as g iven a “ written re primand,” both shift supervisor Koziol and operations manag er O ’Reilly initially told the Depar

tment’s investigator that Owe ns was mer ely issued a “written counseling .” The rec ord also re veals that in its i nitial response to the De partment’s inve stigator Exx on Mobil ex plained that while Ow ens was g iven a “ written re primand” on D ece mber 13, 2004, that re primand wa s later r educe d to a “wr itten counseling ” af

ter Ow ens filed a

g rieva nce w ith Ex x on Mobil and prior to his filing of the instant discrimination charg e with the De partment of H uman Rights. Howe ver, dur ing the Depa rtment’s sec ond investigation, in a letter to the De partment, Exx on Mobil appare ntly

conce ded that Owe ns was g iven a “ written re primand” on D ece mber 13, 2004. In that vein, duringthis second investig ation, shift supervisor Koziol chang ed his prior stateme nt to the Depa rtment’s investig ator now a dmitti ng that Owens w as in fac t give n a “written repr imand,” and not a “ written counse ling.” Since the De partment’s inve stigator, the chie f leg al counse l and both parties on appe al see m to ag ree that on Dec ember 13, 2004, Owens w as a “ written 19No. 1-09-0908

of seve ral doc uments relate d to these three loading err or investig ation repor ts, dated Nove mber 1, 2004, October

12, 2004, and De cembe r 7, 2004. Those doc uments reve aled that Ow ens first

rec eived “ verba l counseling ” for a loadingerr or on June 25, 2004, as a re sult of his failure to add a pallet onto his loadingtruck a nd as a r esult of his inability to fill the order in the r equisite amount of time. Owe ns next rec eived “ verba l counseling ” in Octobe r, af ter his fa ilure to fill a customer or der dated Octobe r 7, 2004. That or der r equeste d five c ases of “Mobil Grea se CM-S,” but the customer r ece ived none. The repor ts further r evea led that Owe ns rec eived a nother “ver bal coa chingsession” in Novembe r as a result of his fa ilure to proper ly load a c ustomer order dated Oc tober 29, 2004. Althoug h in that order the customer r equeste d 1,092 case s of “Mobil 1 5W30,” it receive d only 936 of those ca ses. As a re sult of these three prior loadingerr ors, which we re f ollowed by

“ver bal counseling ” sessions, Owe ns was g iven a “ written re primand” on D ece mber 13, 2004, a fter a customer c omplained re g ardingan orde r he loa ded on August 5, 2004. W hile that customer order reque sted 26 ca ses of “ Mobil 1" produc ts, 11 pails of “Mobilux EP2,” 5 pails of “Mobil ShC 632” and 4 pails of Va cuoline, the c ustomer re ceive d 25 case s of “Mobil 1” produc ts; 12 pails of “Mobilux EP2,” 4 pails of “Mobil ShC 632,” 3 pails of Vac uoline; and 1 pail of “somethingwithout a label.” Ba sed upon the a fore mentioned additional evidenc e, as w ell as the infor mation ga there d duringits ini tial investigation, the Depar tment found that Owe ns had not prese nted substantial

repr imand,” we have no r eason to de viate fr om this conclusion and there fore treat the “wr itten repr imand” as suc h. 20No. 1-09-0908

evidenc e so as to support the a lleg ations in counts A throug h E of his cha rg e. Wit h respe ct to counts F, G , and H, whe rein Ow ens alleg ed he ha d been de nied equa l terms and c onditions of employ ment when Exx on Mobil refused to g rant him tuition reimburse ment on the basis of his ra ce, a g e and in r etaliation for his filingof the instant cha rg e, the Depa rtment’s adde ndum investigation report re veale d the followingadditional evidenc e. Upon being

reinter viewed, O wens stated that in 2005 he submitt ed his pape rwork r equestingto be re imbursed for a ir conditioning, he ating and ventilation classe s that he complete d in 2002, 2003, and 2004. Owens state d that he did not reque st tuit ion reimburseme nt on those classes 4

ear lier bec ause pr ior to taking them he wa s told that he would not be reimburse d, since those classes w ere not relate d to his job dut ies as a f orklift driver. O wens e x plained, howe ver, that he took the classes a

ny way , paying f

or them out of pocke t beca use in the future , he planne d to bid on a maintena

nce position at the plant. That positi on involved work with boilers. Upon being

reinter viewed, shift supe rvisor Koziol stated that Ex x on Mobil does not keep

a re cord of

denied r equests for

tuition reimbursement and doe s not have a rec ord of the spe cific date on whic h Owens r equeste d reimburse ment. Koziol reiterated that the rea son for the de nial of Owe ns tuiti on reimburse ment reque st was nondiscriminatory . Acc ordingto Koziol , Owens was de nied re imbursement bec ause the course s were not prea pproved a nd beca use they did not meet the c riteria of

the prog ram, i.e. , they

wer e unre lated to his Owens’ job duties. A g roup of ve rification for tuition pay ment forms alongwith an educ ational re fund 4 application for

approva l form for O wens indicates that Owe ns took classes duringthe year s 2002 throug h 2004, which totaled $3,352. 21No. 1-09-0908

Ba sed upon the for eg oing, the Depa rtment dismissed counts F, G, a nd H of Ow ens’ char g e. Owe ns subsequently filed a r equest for

revie w by

the chief leg al counse l of the Depa rtment. E. The Chief L eg al Counsel Affir ms the Dismissal On Marc h 9, 2009, the chief leg al counse l entere d an orde r sustaining the dismissal of all eight counts of Owe ns’ cha rg e for lack of substantial evidence supporting c laims of discrimination. Wi th respec t to counts A and B , wher ein Owe ns alleg ed that on De cembe r 13, 2004, he re ceive d a wr itten reprimand on the basis of his rac e and a g e, the c hief leg al counse l first found that such a

“wr itten reprimand” did not constitut e an a dverse employ ment action, since Ow ens did and c ould not alleg e that this repr imand somehow “de trimentally aff ecte d” his employ ment, such as through “loss of pay , loss of benef its, suspension, dis char g e etc .” Citing to Mattern v. Ea stern Kodak Co., 104 F.3d 702 (5th Cir. 1997), the c hief leg al counse l theref ore found that a c laim of discrimination based upon the D ece mber 13, 2004, wr itten reprimand w as not actionable unde r the I llinois Human Rig hts Act. The c hief leg al counse l nextfound that eve n if this written repr imand could somehow constitute an adve rse e mploy ment action, the investig ation failed to re veal substantial evide nce of a ne x us betwee n the written re primand and O wens’ a g e/and or rac e. Rather , acc ordingto the chief leg al counse l, the Depa

rtment’s investig ation established that Owe ns had a history of perf ormanc e proble ms related to loadingerr ors prior to De cembe r 13, 2004, and that he was issued the written re primand as a result of this history

of poor pe rfor

mance . In addition, the chief leg al counse l noted that contra ry to Owens’ a lleg ations the Depa rtment’s investig ation disclosed

22No. 1-09-0908

that Ex x on Mobil iss ued discipline to other e mploy ees f or their poor

perf ormanc e. Amongthose employ ees disciplined, the c hief leg al counse l noted: Hanson (white, 44) , who re ceive d coac hing for loading

err ors; Panozz o (white, 26), w ho was c oache d and then suspende d for loading err ors; Wright (white, 23) , who was g iven a wr itten error repor t in his personnel file for

loadingerr ors; J ohnson (white, 49), who was g iven a wr itten warning and then suspende d for pr oduct mix

err ors; and Pratsche r (white, 47) , who was c oache d for not followingloading proce dures. The c hief leg al counse l simi larly found with respe ct to counts C, D, and E, that Ow ens had fa iled to provide substantial evidenc e that he w as issued the sec ond written re primand on Fe bruar y 15, 2005, beca

use of his ra ce or

ag e or in re taliation for filingthe instant char g e. Rather, the D epar

tment’s investigation revea led that on or a bout J anuar

y 7, 2005, Owens loa ded an orde r, the c ustomer re ported that it did not rece ive the complete order and Exx on Mobil issued Owens the written re primand for this error. Re fer

ringto its rationale with respe ct to counts A and B , the chief leg al counse l reiterated that the De partment’s inve stigation disclosed that Ex x on Mobil sim ilarly disciplined sever al war ehouse ope rators not in Owe ns’ protec ted ag e and/or ra ce c lasses. Finally , with respec t to counts F, G, a nd H, the chie f leg al counse l found that the investiga tion did not reveal substantial evide nce that Ex x on Mobil subjected Owe ns to unequal terms and c onditions of employ ment beca

use of his ag e, ra ce or

in retaliation for

filing the subject cha

rg e whe n it refuse d to refund his tuition. Specifically , the chief counsel noted tha

t the tuition pol icy

clea rly states that manag ement must approve the tuition reimbursement prior to

eac h enrollment in a c lass.

23No. 1-09-0908

Owens now

appea ls, contendingthat the chief leg al counse l’s decision to sustain the dismiss al of his cha

rg e constituted an a

buse of discr etion.

I I . ANALYSI S We beg in by

noting the w ell-established pr inciples reg ardingdiscrimination char g es brought under the I llinois Human Rig hts Act (Ac t) (775 I L CS 5/ 1-101 et seq . (West 2004)). This Act prohibits “unlawf

ul discrimination,” i.e. , discrimination ag ainst a per son on the basis of, inter alia, his or her r ace , color, re ligion, national or igin, a ncestry , ag e, sex, marital status, or handica p. 775 I L CS 5/ 1-102 (West 2004). The Act spec ifically define s the following conduct a s a civil rights violation i n the employ ment context: “F or any employ er to re fuse to hire , to seg reg ate, or to act with re spect to

rec ruitment, hiring, pr omotion, renewa l of employ ment, selec tion for trainingor appre nticeship, dischar g e, discipline, tenure or terms, privileg es or c onditions of employ ment on the basis of unlaw ful discrimination ***.” 775 I L CS 5/ 2-102(A) (West 2004). The Ac t also defines r etaliation as a civil rig hts violation, not ing: “It is a civil rights violation for a person, or

for two or

more pe rsons to conspire, to: *** Retaliate a g ainst a per son beca use he or she has oppose d that which he or she

rea sonably

and in g ood faith believe s to be unlawful discr imination, sex ual har assment in employ ment or sexual hara ssment in higher education, discrimination based on

24No. 1-09-0908

citizenship st atus in employ ment, or bec ause he or she ha s made a char g e, filed a complaint, testified, assisted, or pa rticipated in a

n investiga

tion, procee ding, or

hear ing under this Act[.]” 775 I L CS 5/ 6-101(A) (West 2004). When an employee f

iles a discrimination cha

rg e ag ainst the employ er pur suant to the I llinois Human Rig hts Act with the Depa rtment of Human Rig hts, the Depa rtment must conduct a full investig ation of the a lleg ations set forth in the cha rg e and pr ovide a wr itten report of such an investig ation. 775 I L CS 5/ 7A-102(C)( 1), (D) (1) ( West 2004). After r eviewingthe investiga tion report, the De partment must deter mine whether

there is substantial evidence that the alleg ed civil rig hts violation has been committed. 775 I L CS 5/ 7A-102(D )(2) (West 2004). Under the Act, substantial evide nce is de fined a s evidenc e “which a r easona ble mind acc epts as sufficie nt to support a particula r conc lusion and which consists of more tha n a mer e scintilla but may be somewhat less than a pre pondera nce.” 775 I L CS 5/ 7A-102(D )(2) (West 2004). I f the Depa rtment of Human Rig hts determines that ther e is no substantial evidenc e, the c harg e is dismiss ed. 775 I L CS 5/ 7A-102(D )(2) (a) (West 2004). I f the c harg e is dismissed by the Depa rtment of Human Rig hts, petitioner may seek r eview by

filing a reque st for re view with the chief leg al counse l of the De partment. 775 I L CS 5/ 7A-102(D )(2) (a) (West 2004). The c hief leg al counse l’s order revie wing the dismissal is a final and appe alable or der (775 I L CS 5/ 7A-102(D )(2) (a) (West 2004)), and pe titioner may seek r eview of

the chief leg al counsel’s or der in the a

ppellate c ourt (775 I L CS 5/ 8-111(A) (1) ( West 2004)). The standa rd of revie w on appe al is whether the Depa rtment’s chie f leg al counse l abused his discre tion. Ander son v. Chief L eg al Counsel, 334 I ll. App. 3d 630, 634 (2002); see also Welch v. Hoeh, 314

25No. 1-09-0908

I ll. App. 3d 1027, 1034 (2000) (“ we may not rewe igh the evidenc e or substitute our judg ment for that of the De partment. [Cit ation.] Our reviewis lim ited to decidingwhether the chief leg al counsel' s *** decision dismissi ngthe claim *** is ‘ar bitrary and ca pricious or a

n abuse of discretion.’ [Citation.] ”). Adecision is arbitra ry and ca pricious only

if it “contravenes the leg islature’s intent, fa ils to consider a c rucia l aspec t of the problem, or offe rs an impossible explanation contrary

to ag ency

expertise.” Allen v. L ieber man, 359 I ll. App. 3d 1170, 1177 (2005); see also Dee n v. L ustig, 337 I ll. App. 3d 294, 302 (2003), quoting L aSalle National Ba nk v. City Suites, I nc., 325 I ll. App. 3d 780, 786 (2001), and c iting B odine Elec tric of Champa ign, v. City of Champaig n, 305 I ll. App. 3d 431, 435 (1999) (“ [a] n abuse of discretion is found whe n a dec ision is reache d without employ ing c onscientious judgme nt or when the decision is clea rly ag ainst logic ”). Turningto the merits of the c ause at bar, we initially note that on appe al Owe ns does not challeng e the dismissal of counts E throug h H of his discrimination char g e. Owe ns only argues that the chief

leg al counse l abused his discre tion in finding that there was no substantial evide nce to support his claims of ag e and r ace discrimination based on the D ece mber 13, 2004, a nd Fe bruar y 15, 2005, written re primands (c ounts A, B, C, and D ). Since Owe ns does not arg ue that the c hief leg al counse l erre d in finding that there w as a lack of substantial evidence to support the claim that he wa s issued the Fe bruar y 15, 2005 repr imand in retaliation for filing the subject cha

rg e (c ount E) or the c laim that Ex x on Mobil subsequently

ref used to g rant his tuition reimbursement re quest bec ause of his race or ag e or in reta liation for filing the subject c harg e (c ounts F, G, H) , he has f orfe ited his right to cha lleng e the 26No. 1-09-0908

dismiss al of c ounts E throug h H. See 210 I ll. 2d R. 341(h)(7) (“ Points not argued [in the openingappellant’ s brief] are waived a nd shall not be raise d in the reply brief, in or al ar g ument, or on petition for re hear ing” ); see a lso I n re K .T., 361 I ll. App. 3d 187, 206 (2005) (holdingthat arg uments not raised in appe llant’s brief a re f orfe ited); see a lso Cit y

of Gra ntie City v. House of Prayers, Inc., 333 I ll. App. 3d 452, 462 (2002) (holdingthat “a c ourt of re view is entitled to have the issues clea

rly define d with pertinent authority cited,” a nd “is not simply

a depository

in which an appe aling party

may dump the burden of

argument and re sear ch”) . There fore , by rea son of such for feiture , any

contention that by

the denial of

tuition reimbursement Exx on Mobil somehow subjecte d Owens to une qual terms and c onditions of employ ment can pla

y no further part in this appea l. Acc ording ly , we turn to the D epar tment’s dismiss al of c ounts A throug h D of Ow ens’ char g e. Owe ns first contends that the c hief leg al counse l erre d in sustaining the De partment’s dismiss al of c ounts A and B of his discrimination char g e, whe rein he alleg ed that shift supervisor Koziol i ssued him a written wa rningon Dec ember

13, 2004, on the basis of his ag e and r ace . Owens spe cifica lly

argues that the c hief leg al counse l erre d when it found that: (1) Ex x on Mobil’s written repr imand to him is sued on De cembe r 13, 2004, did not constitute a cog nizable adver se employ

ment action and ( 2) that Owe ns failed to pre sent substantial evidenc e that other simil arly situated y oung er a

nd white worke rs wer e tre ated diff ere ntly . For

the re asons that follow, we disagree . We first note that in Z ader aka v. I llinois Human Rig hts Comm ’n, 131 I ll. 2d 172, 178-79 (1989), our

supreme c ourt rec og nized that in evaluating char g es of discr iminatory prac tices 27No. 1-09-0908

brought under the I llinois Human Rig hts Act (now se e 775 I L CS 5/ 2-102(A) (West 2004)), the Depa rtment of Human Rig hts and the I llinois appellate courts have adopted the thr ee- part test employ ed by

the fe dera l courts in actions for employ ment discrimination broug ht under title VI I of the Civil Ri g hts Act of 1964 (42 U .S.C. §2000e et seq . (1982)) and the Ag e Discr imination in Employ ment Act of 1967 ( AEDA) (29 U.S.C. §621 et seq. (1982)) , as ar ticulated by

the United States Supreme Court in McDonne ll Dougla s Corp. v. Gree n, 411 U.S. 792, 802, 36 L . Ed. 2d 668, 677, 93 S. Ct . 1817, 1824 (1973). Under this three-pr ong test, the petitioner must first establish by a pre pondera

nce of the evidenc e a prima facie case of unlawf ul discrimination. Za dera ka, 131 I ll. 2d at 179-80. I f a prima faciecase is established, a re buttable pre sumption arises that the employ er unla wfully discriminated ag ainst the plaintiff. Z ader aka, 131 I ll. 2d at 178-79. Second, to re but the presumption, the employer must ar ticulate, not prove , a leg itimate, nondiscriminatory rea son for its decision. Z ader aka, 131 I ll. 2d at 179. Third, if the employ er a rticulates suc h a re ason, the plaintiff must prove, ag ain by a pre pondera

nce of the evidenc e, that the e mploy er’ s rea son was untrue a nd was a prete x t for discrimination. Z ader aka, 131 I ll. 2d at 179. Under this test, the ultimate burden of pe rsuasion re mains on the plaintiff throug hout the proce eding s. Z ader aka, 131 I ll. 2d at 179. To establish a prima facie case of employ ment discrimination, the petitioner must first show that (1) he is a member of a prote cted c lass; (2) he w as mee ting his employ er’ s leg itimate business expectations; (3) he suff ere d an adve rse e mploy

ment action; and ( 4) the e mploy er trea ted similarly

situated employ ees outside the c lass more fa vorably . Owens v. D epar tment of 28No. 1-09-0908

Human Rig hts, 356 I ll. App. 3d 46, 52 (2005). To show that he suff

ere d an adve rse e mploy

ment action, an e mploy ee must establish that the employ

ment action wa s “mater ially adver se” a

nd not a “ ‘ “mer e inconve nience or an altera tion of job responsibiliti es.” ’ ” Hof felte v. D epar

tment of Human Rig hts., 367 I ll. App. 3d 628, 633 (2006), quotingTray lor v. Br own, 295 F.3d 783, 788 ( 7th Cir. 2002), quoting Rabinovitz v. Pena, 89 F .3d 482, 488 (7th Cir. 1996). A mater ially adver se employ

ment action is “one that significantly

alters the te rms and conditions of the e mploy ee’ s job.” Griff in v. Pott er, 356 F.3d 824, 829 ( 7th Cir. 2004); see also Rhodes v. I llinois Depa rtment of Tra

nsportation, 359 F.3d 498, 504 ( 7th Cir. 2004) (“a n adver se employ

ment action is a sig nificant c hang e in the claimant’s e mploy

ment status”); Johns on v. Cambridg e Industries, Inc., 325 F . 3d 829, 901, 902 (7 Cir. 2003) (noting that to establish an adve rse e mploy ment action an e mploy ee “ must show t h some quantitative or qua litative chang e in the ter ms or conditions of his employ ment” or some sort of “r eal ha

rm”). A dverse employ

ment actions include thing s such as hiring , denial of promotion, reassignment to a position with si g nificantly differ ent job responsibilities, or an action that ca

uses a substantial cha

ng e in bene fits. See Rhodes, 359 F.3d at 504; see also Hoffe lte, 367 I ll. App.3d at 633, quoting Tr aylor, 295 F.3d at 788 (“ ‘ “ [a] materia lly adver se chang e mig ht be indicated by a ter mination of employ

ment, a demotion evidenc ed by a dec rea se in wag e or sa lary , a less distinguished title, a material loss of bene fits, significa ntly diminis hed materia l responsibiliti es, or other indices that mig ht be unique to a pa rticular situation” ’ [C itation] ”). H oweve r, “not e very thing that make s an employ ee unha ppy is an ac tionable adver se ac tion. Otherwise, minor a nd even tr ivial employ

ment actions that ‘a

n *** employ ee did 29No. 1-09-0908

not like would form the basis of a discrimination suit.’ ” Smart v. Ba ll St ate Unive rsity , 89 F.3d 473, 441 (7th Cir. 1996), quoting Williams v. Bristol-Mey ers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1993). Acc ording ly , it has repe atedly been he ld that oral and written repr imands alone do not alter a n employ ee’ s terms or conditions of employ ment to such an e x tent so as to constitute an adver se employ

ment action for

purposes of e stablishing a prima facie case of employ ment discrimination. See, e.g. , L loy d v. Swifty Transpor tation , I nc., 552 F .3d 594, 602 (7th Cir. 2009) (“ written re primands without any chang es in the terms a

nd conditions of *** employ ment

are not adver se employ

ment actions”) ; see a lso Atanus v. Perry , 520 F.3d 662, 675 ( 7th Cir. 2008) (holdingthat “letter or instruction” whic h admonished the e mploy ee that she was not followingg uidelines did not rise to the level of a dverse employ ment action whe re the employ ee did not show any

job conseque nces suc h as termination, demotion, or c hang e in re sponsibili ties);

see a lso Oest v. I llinois Depa rtment of Corre ctions, 240 F.3d 605, 613 (7th Cir. 2001) ( holding that oral a nd written re primands re ceive d under pr og ressive discipline sy stem did not constitut e adver se employ

ment action whe re the y

did not impl icate a

ny tang ible job conseque nces) ; Grube v. L au Industries, Inc., 257 F .3d 723, 729 (7th Cir. 2001) (“ unfair r eprimands or neg ative perf ormanc e eva luations, unacc ompanied by some tang ible job conseque nce, do not c onstitut e adver se employ

ment actions”) ; Krause v. City of L a Crosse, 246 F .3d 995, 1000 (7th Cir. 2001) (same) ; Sweeney

v. West, 149 F.3d 550, 556-57 (7th Cir. 1998) ( holding that “ two counseling statements” whic h admonished the e mploy ee to improve did not constitut e adve rse e mploy ment action since employ ee f

ailed to point to any

immediate conse quence s of the re primands, such a s 30No. 1-09-0908

chang e in an e ligibility

for pr omotion, denial of adva ntag eous incre ase in re sponsibili ties or simil ar be nefits); cf. , Coolidge v. Consolidated City of Indianapolis, 505 F.3d 731, 735 ( 7th Cir. 2007) (e x plaining that two reprimands f ollowed by

termination constituted an employ ment action). In the pre sent ca se, Owe ns nowhere alleg ed and the Depa rtment’s investig ation nowher e

reve aled a

ny evidenc e sug g esting that the Dec ember 13, 2004, “wr itten reprimand” had any signific ant ef

fec t on the terms or c onditions of his employ ment, so as to constitute an adve rse employ ment action. In its letter to the Depa rtment, Exx on Mobil ex plained that a written repr imand is a disciplinary document that mer ely

tells an employ ee that he has fa iled to make the

nece ssary improvements in perf

ormanc e or be havior a

nd that if he c ontinues to perfor m unsatisfac torily

he may be subjec t to more sever e discipline, up to and includingdischarg e. Consist ent with this assertion, the Dec ember 13, 2004, written re primand ser ved only to warn Owens a bout his unsatisfactory

work pe rfor

mance . In this respec t, in his own discrimination char g e, Owe ns asserte d only that he wa s issued the repr imand for “ workingtoo slowly and for makingexcessive er

rors.” Shift supervisor Koziol si milarly stated that he issued the written repr imand to Owens be cause of his poor per formanc e. Ac cording ly , there was no e vidence that the written re primand had a ny signific ant ef

fec t on the terms and c onditions of Owens’ job, such as the a mount of his pay , his benefits or his work r esponsibiliti es. Ther efor e, Owe ns failed in his burden to e stablish that the written repr imand constituted an adve rse e mploy ment action. See, e.g. , L loyd, 552 F.3d at 602 (holding that a loadingdriver who rec eived two wr itten reprimands for loading

g as fr om the wrongsupplier fa iled to establish a prima facie case of employ ment 31No. 1-09-0908

discrimination since “written repr imands without any chang es in the terms a

nd conditions of his employ ment are not adver se employ ment actions”) ; see a lso Atanus, 520 F.3d at 675 (holding that employ ee ha d failed to e stablish that a “letter or instruction” whic h admonished her that she was not followingcompany g uidelines constituted an adve rse e mploy ment action whe re the employ ee did not show that the le tter wa s followed by any signific ant conse quence s to her employ ment, such as ter

mination, demotion, or chang e in re sponsibili ties): see a lso Sweeney , 149 F.3d a

t 556-57 (holding that employ ee f ailed to establish that “two c ounseling statements” which admonished him to improve constituted an a dverse employ ment action since employ ee failed to point to any

immediate conse quence s of the re primands, such a s chang e in an e ligibility for pr omotion, denial of adva ntag eous incre ase in re sponsibili ties or similar benef its). Owens ne verthe less argues on appe al that in finding that the written re primand did not constitute an adve rse e mploy ment action, the c hief leg al counse l errone ously relied on Mattern v. Easter n Kodak Co., 104 F .3d 702 (5th Cir. 1997). Owe ns argues that while in Matter n, the Fif th Circuit held that only

“ultimate employ

ment decisions” a

re a ctionable a dverse acts, the United States Supreme Court invalidated that r uling in B urling ton Northern & Santa Fe R.y . Co. v. Whit e, 548 U.S. 53, 165 L . Ed. 2d 345, 126 S. Ct. 2405 (2006). Owens, howe ver, misunderstands both the chief leg al counse l’s decision as we ll as the dec ision in Burling ton Norther n. First, contr ary

to Owens’ a ssertion, the chie f leg al counse l did not cite Mattern for the proposition that only

“ultimate employ

ment decisions” a

re to be considere d actionable adver se acts for purposes of disc rimination claims. Rather, the c hief leg al counse l relied on Matter n for 32No. 1-09-0908

the principle tha

t to constitut e an a dverse employ ment action, the e mploy er’ s action must have somehow “de trimentally

aff ecte d” the e mploy ee. T he chie f leg al counse l then found that the Depa rtment’s investig ation disclosed no evidenc e that the De cembe r 13, 2004, written r eprimand somehow detrimenta lly

aff ecte d Owens, suc h as by

way of “loss of pa

y , loss of benef

its, suspension, discharg e, etc .” B ased on the afor ementioned, the c hief leg al counse l found that Owens ha d failed to pre sent a prima facie case of an a ctionable a dverse employ ment action. Moreove r, Owe ns’ citation to Bur lington Nor thern is entire ly

misplaced. In that case , the United States Supreme Court held that c laims of reta liation are not limited to actions that aff ect the employee’ s terms and c onditions of employ ment. Bur lington Nor

thern , 548 U.S. at 63-67, 165 L . Ed. 2d at 357-59, 126 S. Ct. at 2412-15. In doing so, how ever , the Supreme Court expressly distinguished cla ims of substantive employ ment discrimination, such as the one here , from cla ims of retaliation, explaining that substantive discr imination claims are limit ed to actions that af

fec t the employ ee’ s terms and c onditions of employ ment. Bur lington Nor

thern , 548 U.S. at 64-67, 165 L . Ed. 2d at 357-59, 126 S. Ct. at 2412-15. As the Court in Bur lington Norther n explained: “The antidiscrimination provision seeks a wor kplace wher e individuals are not discriminated ag ainst beca use of their

rac ial, ethnic, re ligious, or g ender -base d status. See McD onnell Doug las Corp. v. Gre en, 411 U.S. 792, 800-801, [36 L . Ed.2d 668, 93 S. Ct. 18117] (1973). The antireta liation provision seeks to secure that primary objective by preve nting a

n employ er f

rom interfe ring(throug h reta liation) with an employ ee’ s eff orts to secure or adva

nce e nforc ement of the Act’s ba sic g uara ntees. The substantive 33No. 1-09-0908

provision seeks to pre vent injury to individuals based on who they are , i.e. , their status. The a ntiretaliation provision seeks to pre vent har m to indivi duals based on what they do, i.e. , their conduc t. To secur e the f

irst objective, Cong ress did not nee d to prohibit any thing other than employ

ment-re lated discrimination. The substantive pr ovision’s basic objective of ‘equa lity of employ

ment opportunities’ and the e limination of practice s that tend to bring about ‘stra

tified job environments,’ [citation] would be achieve d wer e all employ ment-re lated discrimination mirac ulously eliminated. But one cannot se cure the sec ond objective by focusingonly

upon employ er actions and ha

rm that conc ern e mploy

ment and the wor

kplace . Were a ll such actions and harms eliminated, the a

ntiretaliation provision’s objective w ould not be achie ved. An employ er c an ef

fec tively reta liate ag ainst an employ ee by takingactions not direc tly rela ted to his employ

ment or by

causinghim harm outside the workpla ce.” (Emphasis omitted.) Bur lington Nor

thern, 548 U.S. at 63, 165 L . Ed. 2d at 356-57, 126 S. Ct. at 2412. Acc ording ly , Owens’ citation to Burling ton Northern in support of his substantive discrimination claim is without merit. In any event, e ven if we wer e to hold that the Dec ember 13, 2004, written re primand wa s an adve rse e mploy

ment action, a r eview of

the re cord be low reve als that contra ry to Owens’ contention, the chie f leg al counse l did not abuse his discretion in finding that this reprimand wa s

34No. 1-09-0908

not relate d to Owens ra ce or ag e. In that respe ct, we note that the re cord be low reve als that Exx on Mobil iss ued Owe ns the written re primand in ac corda nce w ith Ex x on Mobil’s disciplinary policies bec ause O wens ha d

acc umulated a history

of loadingerr ors. The D epar tment’s investiga

tion report re veale d that Ex x on Mobil’s plant rules provide that a n employ ee who fails to maintain proper standards of conduct or

who violates any

of the plant rule s will be subject to appropr iate discipline up to and including te rmination. The rule s further state that super

visors may

establish additional rules deeme d nece ssary

by operational require ments. The De partment’s inve stigation further r evea led that prior to the De cembe r 13, 2004, Owens ha d acc umulated a history of per formanc e proble ms related to loading . The Depa rtment’s investig ation disclosed that Exx on Mobil rece ived and investig ated se vera l complaints on order s loaded by Owens be g inning in June 2004. Specifically the investig ation

reve aled that Ow ens first re ceive d “ver bal counse ling” for a

loading err or on June 25, 2004, as a result of his fa ilure to add a pallet onto his loading truc k and as a result of his inability

to fill the order in the requisite amount of time. Ow ens next rece ived a “ verba l counseling ” session in October 2004, afte r his failure to fill a customer orde r date d October 7, 2004. That orde r reque sted five c ases of

“Mobil Grea se CM-S,” but the customer r ece ived none. Ow ens re ceive d another verba l coac hing se ssion in November 2004 a s a re sult of his failure to prope rly load a customer or der dated Octobe r 29, 2004. Althoug h in that order, the customer r equeste d 1,092

case s of “Mobil 1 5W30,” it rece ived only 936 of those ca ses. Followingthese thre e loading

err ors, Owe ns was issued the wr itten reprimand on D ece mber 13, 2004, a fter a n investigation 35No. 1-09-0908

into a customer’ s complaint reg ardingan orde r date d August 5, 2004, revea led that Owe ns had failed to prope rly

load that orde r. While that customer or der r equeste d 26 case s of “Mobil 1" products, 11 pails of “ Mobilux EP2,” 5 pails of “Mobil ShC 632" and 4 pa ils of Vacuoline, the customer r ece ived 25 ca ses of “ Mobil 1” products, 12 pails of “ Mobilux EP2,” 4 pails of “Mobil ShC 632,” 3 pails of Vac uoline, and 1 pail of “ something w ithout a label.” Ac cording ly , the Dec ember

13, 2004, written re primand wa s intended to war n Owens that he had f

ailed to make the nec essar

y improvements in his perfor mance and that if he continued to per form unsatisfac torily

he could be subject to more se vere discipline. Moreove r, the De partment’s inve stigation disclosed no evidence at all that similarly situated employees outside Ow ens’ pr otected c lass wer e not similarly disciplined for similar conduct. I

n fac t, Ex x on Mobil’s disciplinary rec ords for the employ ees at the Cicero plant

reve aled that Exx on Mobil iss ued wr itten reprimands, “ counseling ,” and e ven suspensions to young er, white employ ees in the pla nt for their poor

work pe rfor

mance . For

example, on Aug ust 29, 2003, Panozz o (white, 26 y ear s old) rec eived a letter of r eprimand f

or oper ating a for

klift truck in an unsa fe ma

nner on c ompany

proper ty . Simi larly , on August 29, 2003, W antroba (white, 36) w as suspende d for truc k spillage , and on August 28, 2003, Novakowksi (white, 47)

rec eived “ counseling ” for failure to wear

proper attire a t the plant. More importantly , Ex x on Mobil’s loading e rror investigation reports disclosed that other employ ees w ere disciplined for their poor perf ormanc e in loadingorder s. For e x ample, those repor ts showed that in 2004 and 2005 both Hanse n (white, 44 y ear s old) and Panozzo (white, 26 y ear s old) wer e “c oache d” for loading err ors. Simil arly , in 2004 both W rig ht (white, 23 y ear s

36No. 1-09-0908

old) and Pratsc her ( white, 47 y ear s old) wer e g iven er rors in their pe rsonnel files f or loading

err ors. I n 2005, Pratscher

was subseque ntly

coac hed for

not following loa ding pr ocedur es. In addition, the repor

ts revea ls that both P anozzo and J ohnson (white, 49 y ear s old) rec eived letter s of re primand in 2003 and 2001, re spectively , the first for unsafe use of a

forklift and the latter for a produc t mix err or in loading . Both Panozzo and J ohnson were also suspended f or poor perf ormanc e (Johnson in 2002 for a produc t mix err or, and Panozzo in 2001 for an er ror loading the forklift). A ccor dingly , Owens c annot contend tha t other, young er a

nd white employ ees

esca ped discipline at the pla

nt. Owens ne verthe less argues that he pr esente d sufficie nt evidence of ra ce- and ag e-ba sed discrimination beca

use the re ports from Exx on Mobil revea l that while young er white employ ees

wer e disciplined, unlike him, they wer e not g iven letters of

repr imand for loadingerr ors. Owe ns specific ally

points out t hat Pratsche r, Ha nson and Panozz o only

rec eived c oachingfor their loadingerr ors, and Wrig ht only had an e rror

repor ted in his file for a

loading err or. F or the

rea sons that follow, we find this argument without merit. We first note that when inter viewed by

the Depa rtment’s investig ator, ope rations manag er O ’Reilly

explained that an employ ee w ould rec eive a “wr itten counseling ” followe d by a “written reprimand” or written war ning only afte r he or

she ac cumulated more than three loadingerr ors. In that respe ct O’Reilly stated that, contra

ry to Owens’ c ontention, Wright was only g iven a loadingerr or in his file, instead of a “counse ling” or a w arning , beca use prior to that he had ma de no loading

err ors. O’Reilly

also explained that Pratscher and Panozzo had not been counsele d or g iven written wa rning s with respec t to loading e rror s since neither had committed 37No. 1-09-0908

three such er

rors. More importantly , Owens himself f ails to alleg e that anyone of the afor ementioned employ ees w as in fac t simi larly situated to him. As ex plained above , the re cord de monstrates that Owens ha d a history

of loadingerr ors and ha d rec eived “ verba l counseling ” and “ coac hing” for these err ors bef

ore his De cembe r 13, 2004, “written reprimand.” Howe ver, in a rguing that the other e mploy ees did not re ceive “wr itten reprimands,” Owens doe s not show or eve n alleg e that they had a similar history

conce rningloading err ors. Acc ording ly , under the rec ord below, it is appar ent that the chie f leg al counse l did not abuse his discretion in finding that there w as a la ck of substantial e vidence showing that Ex x on Mobil iss ued Owe ns the Dec ember 13, 2004, repr imand on the basis of his ag e or his ra ce. Owens ne x t contends that the c hief leg al counse l erre d in sustaining the De partment’s dismiss al of c ounts C and D of his discrimination char g e bec ause the re w as substantial evidenc e that shift supervisor Koziol issued him a second “written reprimand” on F ebrua ry 15, 2005, on the basis of his ag e and r ace . We disag ree . We initi ally

note that for those same re asons alre ady articulated above in the context of the Dec ember

13, 2004, “wr itten reprimand,” Owens ha s failed to show that the F ebrua ry 15, 2004, “wr itten reprimand” standing alone suff iciently aff ecte d the terms and c onditions of his employ ment so as to constitute an adve rse e mploy ment action. As with the De cembe r 13, 2004, repr imand, here ag ain, Owe ns prese nted no evidenc e to show that the sec ond written re primand had any signific ant ef

fec t on the terms and c onditions of his employ ment, such as his pay ,

38No. 1-09-0908

benef its or work re sponsibili ty . See, e.g. , L loy d, 552 F.3d at 602; Atanus, 520 F.3d at 675; Sweene y , 149 F.3d at 556-57. More ove rriding ly , even if the sec ond “wr itten reprimand” constituted an adve rse employ ment action, a r eview of

the re cord be low reve als that the chie f leg al counse l did not abuse his discre tion in finding that there was no e vidence that the dec ision to i ssue the re primand was not re lated to Owe ns’ ra ce or ag e. In fac t, the Depa

rtment’s investig ation reve aled that Owens w as issued the F ebrua ry 15, 2005, repr imand afte r committing a loading err or on January 7, 2005, by

failingto load any

of the e ight dr

ums of “Te lura 622” reque sted by the customer a

nd

as a r esult of havingcommitted numerous loadingerr ors in the past. The c ustomer orde r date d J anuar y 7, 2005, showed that the c ustomer did in fac t order e ight dr ums of “Te lura 622.” Shift supervisor Koziol told the Depar tment investigator that afte r re ceivingand investig ating the customer’ s complaint, the war ehouse supe rvisor found that its inventory was ove r by

eig ht drums and that Owe ns was the wa rehouse operator in char g e of loa ding that order. Mor e importantly , Owens himself ne ver de nied makingthe er ror, but simply

stated that he did not know whe ther he failed to include the drum in the orde r, explaining that the c ustomer could have chang ed the order afte r he loa ded it. In addition, the Depa

rtment’s investig ation reve aled no e vidence that simil arly situated employ ees outside of

Owens’ protec ted class we re not similarly disciplined for similar conduc t. As alre ady

articulated above , Ex x on Mobil iss ued “written repr imands,” “c ounseling ,” and suspensions to numerous other e mploy ees f or poor wor

k perf ormanc e. Ac cording ly , for a ll of the af oreme ntioned rea sons, we find no a buse of discr etion in the chief leg al counse l’s dismiss al 39No. 1-09-0908

of counts C and D of

Owens’ discrimination char g e. On appe al, Owe ns next contends that the substantial evidenc e standa rd as a rticulated unde r sec tion 7A-102(D) (2) of the I llinois Human Rig hts Act (775 I L CS 5/ 7A-102(D )(2) (West 2004)) violates the r equire ments of due proce ss beca

use it is unconstitut ionally vague. Althoug h not clear ly explained in his brief, Owens a ppear s to arg

ue that the statute is unconstitutional on its face as we ll as applied to him beca use under the Act’ s definition of “substantial evide nce,” a petitioner doe s not know what level of pr oof is nece ssary to sustain a char g e of discrimination, and beca use it g ives the chie f leg al counse l unbridled discre tion. For the r easons that f ollow, we disag ree . At the outset, we note that Owens ha s waived his rig ht to raise this issue on appea l by failingto raise it in the administrative proc eeding s below. In that respe ct, we note that “[i] n g ener al, issues or def

enses not plac ed bef

ore the administrative ag ency will not be considere d for the first time on administrative re view.” T exaco-Cities Service Pipeline Co. v. McGa w, 182 I ll. 2d 262, 278-79 (1998) . Our supre me cour t has held that this ge nera l waiver principle a

pplies to constitutional challeng es to a statute not ra ised befor e an a dminist rative a g ency , unless the issue beingraised f

or the fir st tim e on appe al is a fa cial cha lleng e to the statute. See Texaco-Cites Service Pipeline Co., 182 I ll. 2d at 278-79, Carpe tland U.S.A., Inc. v. I llinois Depa rtment of Employ ment Security , 201 I ll. 2d 351, 396-97 (2002); cf ., Arvia v. Ma diga

n, 209 I ll. 2d 520, 527-28 (2004) (“A

principal re ason under lying this cour t’s pref ere nce that liti g ants asser t a constitutional challeng e bef ore the ag ency -notwithstanding the ag ency ’s inability to rule on the matter–is that it allows opposing pa rties a f ull opportunity

to present e vidence to refute the constitutional challeng e. Such an e videntiary rec ord is indispensable bec ause a dminist rative 40No. 1-09-0908

revie w is confined to the r ecor d cre ated be fore the ag ency . [C itation.] A fa cial cha lleng e to a statute, howeve r, pre sents an entire ly leg al question that does not re quire fa ct-findingby the ag ency or application of the ag ency ’s par ticular e x pertise” ). Wit h respe ct to a vagueness c halleng e to a statute, our supreme c ourt has made clea r that a petitioner w ill have standingto challeng e the c onstitut ionality of a statute on its fa ce only if the challeng ed languag e implicates fir st amendment rig hts. See People v. Ji han, 127 I ll. 2d 379, 385-86 (1989) ; see a lso People v. Ry an, 117 I ll. 2d 28, 34, (1987), quoting United States v. Mazurie, 419 U.S. 544, 550, 42 L . Ed. 2d 706, 713, 95 S. Ct. 710, 714 (1975). Since here , Owens doe s not alleg e nor c ould he that the “substantial e vidence ” standa rd as a rticulated in section 7A-102 of

the I llinois Human Rig hts Act (775 I L CS 5/ 7A-102(D )(2) (West 2004)) implicates any

first amendme nt conce rns, he doe s not have standingto argue that the Ac t is fac ially unconstitutional. S ee, e.g. , J ihan, 127 I ll. 2d at 386 (holding that beca use no first amendment issue wa s involved with respec t to the constituti onality of the now r epea led medica l prac tice ac t provisions making it a c rime to prac tice midwifer y without a license, de fenda nt did not have standing

to argue that the statute mig ht be vague as a pplied to someone else)

. Acc ording ly , since Ow ens has no standingto make a f acia l challeng e to the statute, a nd since he has fa iled to argue bef

ore the Depa

rtment that the statute is vague as a pplied to him, he has waived his right altoge ther to addr ess the vagueness issue on a ppeal. See Texaco-Cities Service Pipeline Co., 182 I ll. 2d at 278-79; Carpetland U .S.A., I nc., 201 I ll. 2d at 396-97. Neve rtheless, e ven if we wer e to consider the merits of Ow ens’ va g ueness c ontention, for the re asons that follow, we would find that the statute is not unconstitutionally vague, either

on 41No. 1-09-0908

its face or as a

pplied to Owens. It is well established that there is a strongpresumption that a statute is constitutional and that the par

ty challeng ing its validity

will bear the burden of

clea rly establishing tha

t the statute is unconstitutional. P eople v. Shar pe, 216 I ll. 2d 481, 486-87 (2005); see also Morg an v. Depa rtment of F inancial & Professional Regulation, 374 I ll. App. 3d 275, 292 (2007). A vag ueness c halleng e is a due proce ss challeng e foc using on the specific ity of the languag e of a

statute. East St. L ouis Fede ration of Te ache rs v. East St. L ouis School District, 178 I ll. 2d 399, 424-26 (1997). A statute is unc onstitut ionally vague and violate s due proc ess if it fails to give a

person of ordinary intelligenc e fa ir notice that his contemplate d conduct is forbidden by

the statute or if the re is an a bsence of standar ds restrictingthe discre tion of g overnme ntal authorities who apply the law. Ea st St . L ouis Fede ration of Te ache rs, 178 I ll. 2d at 424-26. The te rms of a statute c annot be “ ‘so ill-defined that their meaningmay be dete rmined at whim rathe r than by

objective c riteria.’ ” Ea st St . L ouis Fede ration of Te ache rs, 178 I ll. 2d at 425-26, quotingPeople v. B urpo, 164 I ll. 2d 261, 266 (1995); see a lso Morg an, 374 I ll. App. 3d at 292-93. Rather , the statute’s ter ms must be ex plicit enoug h to serve a s a guide to those who must comply

with it. East St . L ouis Fede ration of Te ache rs, 178 I ll. 2d at 425; see also Morg an, 374 I ll. App. 3d at 292-93. Howe ver, mathematical c erta inty in the languag e is not require d. East St. L ouis Fede ration of Te ache rs, 178 I ll. 2d at 424-25; see a lso Morg an, 374 I ll. App. 3d at 292-93. More over, a

statute will not be considere d unconstitutionally vague “ ‘ mere ly

beca use one could imag ine hy

pothetical situations in which the meaningof some ter ms might be c alled into question.’ ” Morg an, 374 I ll. App. 3d at 292, quoting Ma un v. Depa

rtment of Profe ssional 42No. 1-09-0908

Regulation, 299 I ll. App. 3d 388, 397 (1998). In the pre sent ca se, the Ac t specifica lly define s “substantial evidenc e” a nd Owens ha s failed to show that this definition was not suffic iently prec ise to g uide the par

ties or the ag ency . As alre ady

noted above , the Act de fines “substantial e vidence ” as “ evidenc e which a rea sonable mind acce pts as sufficie nt to support a particula r conc lusion and which consists of more tha n a

mere scintilla but may be som ewhat less than a preponderance .” (Empha sis added.) 775 I L CS 5/7A-102(D) (2) ( West 2004). Contrary to Owens’ a ssertion that the phra se “ma y be somewhat less than a pr eponder ance ” does not pe rmit a party filing a discrimination char g e to know whether his or her c laim must be supported by more than a

preponde ranc e of the evidenc e or le ss than a pr eponder ance of the e vidence , the term “ may” has c lear ly been de fined a s connoting only permission. See Cook County Boa rd of Revie w v. Property

Tax Appeal B oard, 334 I ll. App. 3d 56, 59 (2002) ( “use of

the word ‘ may ’ is construed a s permissive, not mandatory”); see also New Americ an Webster Dic tionary (1972) ( defining“may” as “ have the ability to” or “ have permission to” or “be fre e to;” noting that the term is used to indicate probability and possibility). Moreove r, those I llinois case s that have a ddresse d the substantial evidenc e standa rd have made clea r that substantial evidenc e does not re quire more than a pr eponder ance of evide nce. See , e.g. , Stone v. Depar

tment of Human Rig hts, 299 I ll. App. 3d 306, 314-15 (1998) ( “Substantial evidenc e mea

ns more than a

mere scintilla but less than a preponde ranc e of the evidenc e. [C itations.] Substantial evidence is such rele vant evidenc e as a rea sonable mind might a cce pt as adequa te to support a conc lusion”); see a lso Sanders v. United Parc el Service , 142 I ll. App. 3d 362, 364 (1986) ( noting that the substantial e vidence standard “ was de liberate ly left vague to 43No. 1-09-0908

permit the [Depar

tment of Human Rig hts] some deg ree of discre tion in ascerta ining a nd evalua ting the f acts” ). Ac cording ly , we f ind that the substantial evidence standard is not unconstitutionally

vague. Fur thermore , Owens ha s specific ally failed to show that the substantial e vidence standard is vague as a

pplied to him. Vag ueness is an e lastic conc ept, and just bec ause a term is vague to one per son, does not nece ssarily mean that it will be vag

ue to another . See City

of Chicag o v. Pooh Bah Ente rprises, I

nc., 224 I ll. 2d 390, 441-42 (2006). Ac cording ly , wher e a pa rty raises a vagueness c halleng e by

arguing that a statute is vague as a pplied, a re viewingcourt must “eva luate a statute in the context of the specific circ umstances in which it wa s applied to the litigant who c ontests its validi ty .” Pooh Ba h Enterpr ises., 224 I ll. 2d at 442; see also People v. Ry an, 117 I ll. 2d 28, 34 (1987), quoting United States v. Mazurie, 419 U.S. 544, 550, 42 L . Ed. 2d 706, 713, 95 S. Ct . 710, 714 (1975) ( “ ‘[v]ague ness cha lleng es to statutes which do not involve First Amendme nt free doms must be ex amined in the lig ht of the fa cts of the c ase at hand’ ” ). In the pre sent ca se, we have a lrea dy held that the mer e issuance of two written repr imands did not constitut e an a dverse employ ment action. The sparsity of evide nce of

fer ed by Owens to support the e x istence of an adve rse e mploy

ment action is there fore outside the confine s of the “substantial e vidence standard” so that the term, eve n if otherwise unclea r, would at least ha ve suff icient clar ity

to denote an a

mount of evidenc e in excess of that whic h was provided by

Owens. A ccor dingly , under the se circ umstances Ow ens ca nnot complain that the Act is vag

ue as a pplied to him. S ee Par

ker v. L evy , 417 U.S. 733, 756, 41 L . Ed. 2d 439, 458, 94 S. Ct . 2547, 2562 (1974) ( “[o] ne to whose c onduct a statute c lear ly applies may

not succe ssfully 44No. 1-09-0908

challeng e it for va g ueness” ); see a lso Pooh Bah Enter prises, 224 I ll. 2d at 442. I I I . CONCL USI ON For the fore g oing r easons, the or der of chief leg al counse l of the De partment of H uman Rights dismissi ng Owens’ char g e is aff irmed. Affir med. CAHI L L , P.J ., and McB RI DE, J., concur.

__ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ REPORTER OF DECI SIONS - ILLINOIS APPELLATE COURT

(Fron t Sheet to be Atta ch ed to Each Case )

__ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ P lease use th e f

ollo w ing f orm NI CK OWENS Petitioner-Appellant,

v.

THE DEPARTMENT OF HUMAN RI GHTS, MI CHAEL L I EBE RMAN, Chief L eg al Counsel Desig nee of

the Depa rtment of Human Rig hts, and EXXONMOBI LCORP., Def endants-A

ppellees.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ N o s . 1

- 0 9

- 0 9 0 8 D o c k e t N o . A p p e l l a t e C o u r t o f I l l i n o i s C O U R T F i r s t D i s t r i c t , S I X T H D i v i s i o n

O p i n i o n F i l e d A u g u s t 1 3 , 2 0 1 0 ( G i v e m o n t h , d a y a n d y e a r )

45No. 1-09-0908

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J U S T I C E J O S E P H G O R D O N D E L I V E R E D T H E O P I N I O N O F T H E C O U R T :

J U S T I C E S P R E S I D I N G J U S T I C E C A H I L L , A N D J U S T I C E M c B R I D E c o n c u r .

L o w e r C o u r t a n d T r i a l J u d g e ( s ) i n f o r m i n d i c a t e d i n m a r g i n : A P P E A L f

r o m t h e C i r c u i t C o u r t o f C o o k P e t i t i o n f o r R e v i e w o f a n O r d e r o f t h e C h i e f L e g a l C o u n s e l o f t h e D e p a r t m e n t o f C o u n t y ; t h e H o n

_ _ _ H u m a n R i g h t s J u d g e P r e s i d i n g .

__ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __

Ind icate if

attorn ey represents APP ELL A

NT S o r A P P ELL EES and inclu de atto rney 's of cou nsel. Ind icate the w ord FOR A P P ELL A

NT S NONE if no t represented. John Doe, o f

Chi cag o
For AP P ELL EES, : FOR P ETIT IONER-A P P ELL A NT : Ro bert A. And erson, And erson Law Of f ice, 10 33 6 S ou th We stern Av e., Ch icag o, IL 60 64 3, (77 3) 2 33 -53 85

Sm ith and Sm ith of Chicago, FOR DEFE NDA NT S-APP ELL EES: f

or t he STA TE: L isa Madigan, Attorn ey G eneral, Mich ael A . Sco dro , So licitor G eneral and Janon E. Fabian o, A ssistant Attorney G eneral, 10 0 W. Rand olp h S t. 1 2 Flo or, Chicago IL 606 01 , (3 12 ) t h 81 4-3 31 2; f

or E X X ON MOBIL CORP. : Jan M ichelsen, Ogletree Dea kins Nash Smoak

& Stew art, P .C. 1 11 Mo nu m ent Circle, Su ite 46 00 , In dian apol is, IN 4 62 04 ; (3 17 ) 91 6-1 30 0

__ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ A dd attorn ey s f

or t hird

party app ellants and /or appellees.

46