2020 IL App (1st) 191855-U

SECOND DIVISION

May 12, 2020 

No. 1-19-1855 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

____________________________________________________________________________ 

TRACEY J. ELLIS, )

 ) 

 Petitioner-Appellant, ) 

 ) 

v. ) 

 ) 

ILLINOIS HUMAN RIGHTS COMMISSION, ) 

ILLINOIS DEPARTMENT OF HUMAN ) 

RIGHTS, and LAWRENCE MERCHANDISING, ) 

LLC, d/b/a LAWRENCE MERCHANDISING ) 

SERVICES, ) 

 ) 

Respondents-Appellees. )

Petition for Direct Administrative 

Review of a Decision of the Illinois 

Human Rights Commission. 

No. 2018 CF 1034 

____________________________________________________________________________

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the 

court. 

Justices Pucinski and Coghlan concurred in the judgment.

ORDER

 HELD: The Illinois Human Rights Commission did not abuse its discretion by 

sustaining the dismissal of petitioner’s charge of unlawful employment discrimination for 

lack of substantial evidence. 
No. 1-19-1855 

2 

¶ 1 Petitioner-appellant Tracey J. Ellis (petitioner) appeals pro se from a final order entered 

by respondent-appellee the Illinois Human Rights Commission (Commission) sustaining 

respondent-appellee the Illinois Department of Human Rights’ (Department) dismissal of her 

charge of unlawful employment discrimination against respondent-appellee Lawrence 

Merchandising, LLC, d/b/a Lawrence Merchandising Services (LMS). Petitioner alleged that 

LMS unlawfully discharged her from its employ based on her race in violation of section 5-

102(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/5-102(A) (West 2016)). The 

Department dismissed her charge for lack of substantial evidence. Petitioner sought review 

from the Commission, which sustained the Department’s decision. She now appeals, 

contending that the Commission abused its discretion in sustaining the dismissal of her cause. 

She asks that we reverse the order entered by the Commission and that we “award [her] a 

settlement based on lost wages, benefits, emotional distress, plus reimbursement of filing fee, 

and photocopying expenses,” for a total of “at least $30,000.” For the following reasons, we 

affirm. 

¶ 2 BACKGROUND

¶ 3 LMS is a visual merchandising company that provides services to retail stores, including 

setting up visual displays, completing inventory, stickering products and placing inventory 

on shelves. In May 2017, LMS hired petitioner as a part-time service representative. Her 

immediate LMS supervisory was Field Service Coordinator Jordan Imdieke (non-black), and 

his supervisor was Field Service Coordinator Supervisor Michelle Borowske (non-black). 

¶ 4 In February 2019, petitioner filed an employment discrimination charge with the 

Department alleging that LMS unlawfully discharged her because of her race, which she 

described as “black.” In her petition, she averred that she was hired by LMS on a part-time 
No. 1-19-1855 

3 

basis in early May 2017. In September 2017, she was assigned to complete her duties for 

LMS at Target retail stores. Petitioner claimed that between this time, her work performance 

was “excellent,” she received “positive performance reviews,” and “had no complaints about 

her performance.” Petitioner stated that once she started working for LMS at Target stores, 

however, incidents not of her own making began to happen. For example, she first recounted 

that she was “interrupted by a non-black Target employee/security guard for no reason” with 

respect to failing to notify a team leader on duty about her work. She stated that later, “she 

was hassled by Target’s Security Guard and another Target employee” because she was not 

wearing a required Target Guest Pass, but that this “was not her fault.” She then claimed that 

on November 28, 2017, while working at a Target store in Evanston, she tried to find the 

required Target Guest Pass but did not, and when she approached a Target manager, the 

manager became upset and petitioner continued working without the pass. She averred that 

she was then confronted by a Target security officer, who accompanied her to get a pass; 

after she got the pass and went to work in a stockroom, the security guard approached her 

again, this time about being in that location. Petitioner stated she continued her work, 

finished her assignment and then left the store. She recounted that later in the day, she 

received a call from Imdieke, who told her he had received a call from the Target’s store 

manager stating petitioner had not been wearing the required pass and that Target no longer 

wanted her to work at that location. She then received an email from Imdieke terminating 

her employment with LMS. In her filing, petitioner claimed LMS denied her equal 

employment and insisted that, while she had no knowledge if other employees were 

discharged, she believed she was the only black employee treated this way and that LMS 

treated similarly situated non-black employees more favorably under similar circumstances. 
No. 1-19-1855 

4 

¶ 5 Based on her petition, the Department conducted an investigation, interviewed Imdieke, 

Borowske and LMS’ Human Resources Director Sue Schmidt (non-black), and obtained the 

following evidence from LMS. Schmidt stated that LMS hired petitioner as a part-time 

service representative. Schmidt verified that, the next day, LMS issued to petitioner its 

Representative Employee Manual, which included information regarding not only her 

particular job description and responsibilities, but also LMS’ general employment policies, 

including its Equal Employment Opportunities, Professionalism, Progressive Discipline, 

Badge and Lanyard requirements, and Store Security mandates. Schmidt affirmed that 

petitioner electronically signed a receipt for the manual upon its issuance to her, 

acknowledging that she received it. There was no indication in the Department’s findings 

that Schmidt ever dealt with petitioner in person or knew of her race. 

¶ 6 Likewise, Imdieke, petitioner’s immediate LMS supervisor, stated that he communicated 

with petitioner via telephone and email and had never met her in person. Contrary to 

petitioner’s claims that she had consistently received positive performance reviews and no 

complaints about her work until September, Imdieke noted that her “performance issues 

began just a few months after she was hired,” noting she did not take criticism well and had 

received employment counseling. He then described several incidents with respect to her 

assignments at Target stores. On September 8, 2017, he was contacted by a Target store 

manager asking him to remind petitioner that she was required to wear a visitor’s sticker 

when working in the store’s backroom; Imdieke informed petitioner of this and gave her a 

warning for failing to follow client store security policy, to which petitioner responded with a 

series of emails identifying excuses for her violation. On November 21, 2017, Imdieke again 

had to issue petitioner a warning, this time for failing to take clear photographs of her 
No. 1-19-1855 

5 

completed services for LMS at Target, as petitioner had taken and submitted photos of 

incorrect products and others’ work instead of products and work for which she was 

responsible. In response, petitioner sent Imdieke several emails with excuses and 

argumentative explanations, whereupon he replied that these needed to stop. 

¶ 7 Imdieke further described the final incident that resulted in petitioner’s termination. On 

November 28, 2017, while petitioner was working for LMS at the Target store in Evanston, 

the store manager contacted him to report that petitioner was wandering around the 

stockroom without either the required LMS badge or the Target visitor sticker. When the 

manager approached her and asked if she could help her, petitioner told her she had already 

spoken to whom she needed. When the manager informed petitioner that she (the manager) 

was that person, an argument ensued; eventually, the manager left petitioner to complete her 

services. Following this incident, the manager contacted Imdieke again the same day, 

reporting that this was not the first time petitioner failed to wear the Target visitor sticker; 

she told Imdieke that while she was upset with petitioner’s “insubordinate and argumentative 

behavior,” she was willing to let her finish her services if she could commit to following 

store policy and respecting staff. The manager also asked Imdieke to refrain from addressing 

any issues with petitioner until petitioner left the store for the day for fear that petitioner 

would lash out at Target employees. However, about an hour later, the store manager 

contacted Imdieke a third time, this time to report that she had asked petitioner to leave the 

store without finishing her services. The store manager explained to Imdieke that petitioner 

continued to wander around the stockroom without the required visitor badge, even after she 

was asked not to. When a Target employee told petitioner she could not enter the locked 

stockroom cage without an ID, petitioner called the employee a “hillbilly” and started 
No. 1-19-1855 

6 

banging on and slamming the cage. The manager asked petitioner to leave and banned her 

from returning to that Target store. Upon this last report, Imdieke contacted his superior, 

Borowske, and reported the incidents of petitioner’s “insubordinate, argumentative, and 

threatening behavior;” Borowske advised that this was grounds for termination. Imdieke 

contacted petitioner and gave her the opportunity to explain, whereupon petitioner “became 

defensive and claimed that the Target employees were liars.” When Imdieke told petitioner 

her employment was being terminated, she responded by stating she would be filing a lawsuit 

against LMS for racism. Imdieke then asked petitioner why she felt he was being racist, and 

petitioner replied, “ ‘I know what you look like, and I can tell from your voice that you’re an 

ignorant white boy,’ ” and told him he should “ ‘go jump in a lake.’ ” Imdieke sent 

petitioner an email confirming the termination of her employment with LMS.

¶ 8 Borowske confirmed that, as Imdieke’s supervisor, she advised him that petitioner’s 

behavior was grounds for immediate termination. Additionally, LMS provided the 

Department with copies of its email correspondence with petitioner, as well as a copy of the 

employee manual it had issued to her. LMS’ Equal Employment Opportunities Policy states 

that it affords equal employment opportunities regardless of race. Its expectations regarding 

Professionalism and Discipline state that all service representatives are to perform their 

duties in a professional and courteous manner toward store-client personnel and to 

communicate with LMS employees in a professional manner; any unprofessional 

communication or violation of these standards may lead to discipline, including termination. 

And, specifically with respect to Badge and Lanyard and Store Security expectations, the 

manual states that LMS employees must always wear an LMS badge or lanyard while in a 

store, and must learn and follow the security policies of the stores to which they are assigned. 
No. 1-19-1855 

7 

Also, LMS submitted to the Department its employee discharge documents from December 

16, 2016 to September 22, 2017. These indicated that in the year prior to petitioner’s 

discharge on November 28, 2017, LMS had discharged four service representatives, two of 

whom were non-black. 

¶ 9 Upon the close of its investigation, the Department concluded there was no evidence that 

LMS discharged petitioner because of her race. It noted that, in contrast, the evidence 

showed LMS discharged her for “insubordinate, argumentative, and threatening behavior,” 

actions consistent with LMS’ discipline policy meriting termination. It further noted that 

LMS did not treat similarly situated non-black employees more favorably than petitioner, as 

its documented evidence showed that, immediately prior to her discharge, LMS had 

discharged four other service representatives, at least two of whom were non-black. 

Accordingly, the Department recommended a finding of lack of substantial evidence and 

dismissed petitioner’s charge, as “[t]here is no evidence of a nexus between the discharge 

and [petitioner’s] race,” “[t]here is no evidence of an animus based on race,” and petitioner 

“failed to establish a prima facie case of race-based discrimination.” 

¶ 10 Petitioner filed a request for review of the Department’s decision with the Commission, 

arguing that LMS “wrongfully fired her * * * for following the proper protocol.” She 

included allegations that she indeed wore the Target visitor sticker as required, that Target 

employees (particularly “the non-white hispanic female store mgr.”) were liars, and that she 

never received any prior disciplinary action from Imdieke, as he had outlined. Yet, she then 

averred that there was never any mention of a visitor sticker policy in her employment 

materials, and she described the same incidents of prior discipline Imdieke had discussed but 

insisted these were falsehoods and merely offenses interpreted by Imdieke resulting from 
No. 1-19-1855 

8 

fault that was not her own, all amounting to “additional evidence of race discrimination.” 

She claimed that although other black and non-black employees were also fired, they were 

terminated “for unethical conduct,” while she “was the only responsible and ethical (LMS) 

black employee that [LMS] discharged.” And, she claimed that as “an ethical merchandiser,” 

Imdieke fired her using “premeditated racism” because she was close to obtaining full-time 

employee status, which would have entitled her to more pay and medical insurance. 

¶ 11 The Department responded that its investigation showed LMS did not discharge 

petitioner because of her race but, instead, that it did so because she was insubordinate. It 

noted that LMS required all its service representative employees to wear an LMS 

identification badge while on store premises and to follow all other security measures 

required by the store to which they were assigned which, at petitioner’s Target store, 

included wearing a store visitor sticker. It also noted that petitioner had been reprimanded 

for previous behavioral issues, including not wearing a visitor sticker, photographing/ 

submitting work that was not hers, and failing to accept criticism without argument. 

Petitioner then committed additional insubordinate behavior with respect to the incidents 

documented on November 28, 2017, which again included failing to wear a Target visitor 

sticker, being argumentative, making derogatory comments to Target staff and banging on 

the locked stockroom cage door. Without evidence that LMS did not reasonably and in good 

faith terminate petitioner’s employment, and without evidence that LMS did not terminate 

similarly situated non-black employees with disciplinary histories comparable to hers, the 

Department argued that petitioner’s charge could not stand. 

¶ 12 Petitioner filed a reply, arguing that she “was wrongfully fired” by LMS “for excellent 

work performance.” In addition to reasserting her claims that she “wore her Target Guest 
No. 1-19-1855 

9 

Sticker on every assignment, plus her vendor badge” and that Imdieke fired her “despite her 

strong compliance to the policy and procedures of [the] LMS Employee manual,” petitioner 

insisted that LMS unlawfully discharged her “as an ethical american black female former 

employee” in violation of the Act. 

¶ 13 After discussing the required elements for an employment discrimination charge and the 

evidence presented herein, the Commission issued its final administrative decision finding 

that the Department properly dismissed petitioner’s claim for lack of substantial evidence. 

The Commission noted that petitioner was unable to identify a similarly situated coworker 

whose race is non-black, whose disciplinary history was comparable to hers, and who was 

not discharged. Thus, she presented no evidence that LMS treated similarly situated nonblack employees more favorably than her. Additionally, the Commission noted that 

petitioner failed to present any evidence that LMS made any derogatory comments regarding 

her race or otherwise implemented a pretext when terminating her employment. Rather, as 

the evidence showed petitioner was terminated because of insubordination, there was “no 

nexus between [her] discharge and her race.” Accordingly, the Commission concluded that 

petitioner did not present any substantial evidence to show that the Department’s dismissal of 

the charge was not in accordance with the Act.

¶ 14 ANALYSIS

¶ 15 As a threshold matter, we note that compliance with Illinois Supreme Court Rule (Rule) 

341(h) (eff. May 25, 2018) is mandatory, and a party's status as a pro se litigant does not 

relieve her of her noncompliance with appellate practice rules. See Voris v. Voris, 2011 IL 

App (1st) 103814, ¶ 8 (compliance with rules governing briefs on appeal is compulsory 

regardless of a party's status); accord Ryan v. Katz, 234 Ill. App. 3d 536, 537 (1992); see also 
No. 1-19-1855 

10 

In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57 (our supreme court rules, 

including Rule 341, are not merely advisory suggestions; rather, they are required to be 

followed). Consequently, where an appellant's brief contains numerous Rule 341 violations 

and, in particular, impedes our review of the case at hand because of them, it is our right to 

strike that brief and dismiss the appeal. See In re Marriage of Petrik, 2012 IL App (2d) 

110495, ¶ 38 (citing Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23 (failure to follow Rule 

341 may result in forfeiture of consideration of issues on appeal)); see also Marriage of 

Petrik, 2012 IL App (2d) 110495, ¶ 38 (quoting Kic, 2011 IL App (1st) 100622, ¶ 23 

(quoting Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719 (1986)) 

(ultimately, we are “ ‘ “not a depository in which the appellant may dump the burden of 

argument and research” ’ ” for her cause on appeal). 

¶ 16 In the instant cause, petitioner’s brief does not comply with Rule 341(h) in several 

important respects. That is, save for a general citation to the Act, petitioner’s brief does not 

contain any “Points and Authorities” statement outlining the points argued and authorities 

cited in the Argument (see Rule 341(h)(1)); it does not contain a viable statement of 

jurisdiction (see Rule 341(h)(4)); and, while she does provide scant citation to a few pages of

the record, petitioner provides essentially no argument, let alone any citation to legal 

authority for such (see Rule 341(h)(7)), and, upon closer examination, she cites documents 

that are not part of the administrative record (see Kensington’s Wine Auctioneers and 

Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 14 (2009) (attachments not 

contained in certified record on appeal cannot be cited by parties nor considered by 

reviewing court). Thus, it is within our prerogative to strike her brief and dismiss this appeal 

based on her failure to comply with the applicable rules of appellate procedure. See 
No. 1-19-1855 

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Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 80; accord Marriage of Petrik, 2012 IL 

App (2d) 110495, ¶ 38 (the reviewing court has every right to strike a plaintiff's appellate 

brief and dismiss her cause when Rule 341 is violated so as to impede review). However, we 

note that, because we have the benefit here of cogent briefs from respondents Commission 

and LMS, we choose, in our discretion, to reach the merits of the appeal. See North 

Community Bank v. 17011 South Park Ave., LLC, 2015 IL App (1st) 133672, ¶ 14 (reviewing 

merits of the appeal despite appellant’s numerous violations of Supreme Court Rule 341(h)). 

¶ 17 Under the Act, “[i]t is a civil rights violation * * * for any employer to * * * discharge” 

any person “on the basis of unlawful discrimination.” 775 ILCS 5/2-102(A) (West 2016). 

“Unlawful discrimination” is defined in part as discrimination against a person because of 

her race or skin color. 775 ILCS 5/1-103(Q) (West 2016). 

¶ 18 Where a petitioner brings a charge under the Act, the Department shall conduct an 

investigation to determine whether the allegations are supported by substantial evidence. See 

775 ILCS 5/7A-101, 5/7A-102(A)-(D) (West 2016). “Substantial evidence is evidence 

which a reasonable mind accepts as sufficient to support a particular conclusion and which 

consists of more than a mere scintilla” of proof. 775 ILCS 5/7A-102(D)(2) (West 2016). If 

the Department determines there is no substantial evidence supporting the charge, it shall 

dismiss the charge. See 775 ILCS 5/7A-102(D)(3) (West 2016). The petitioner may then 

either commence a civil action in circuit court or, as petitioner did here, file a request for 

review of the dismissal with the Commission. 775 ILCS 5/7A-102(D)(3) (West 2016). 

¶ 19 A final order of the Commission may be judicially reviewed by our Court under the 

abuse of discretion standard of review. See 775 ILCS 5/8-111(B)(1) (West 2016); Young v. 

Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 32. Under this standard, we 
No. 1-19-1855 

12 

will not disturb the Commission’s decision unless it is arbitrary or capricious. See Young, 

2012 IL App (1st) 112204, ¶ 33. A decision is arbitrary or capricious if it contravenes the 

legislature’s intent, fails to consider a crucial aspect of the problem, or offers an impossible 

explanation contrary to agency expertise. See Owens v. Dep’t of Human Rights, 403 Ill. App. 

3d 899, 917 (2010). 

¶ 20 We review the final order of the Commission, not the Department’s decision. See 

Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 180 (1989). The Commission’s 

findings of fact “shall be sustained unless the court determines that such findings are contrary 

to the manifest weight of the evidence.” 775 ILCS 5/8-111(B)(2) (West 2016). This 

deference to the Commission’s findings of fact is particularly true of the credibility 

determinations it makes. See Zaderaka, 131 Ill. 2d at 180; accord Folbert v. Dep’t of Human 

Rights, 303 Ill. App. 3d 13, 25 (1999). A reviewing court may not reweigh the evidence or 

substitute its judgment for that of the Commission, and abuse of discretion will be found only 

where no reasonable person could agree with the decision rendered. See Young, 2012 IL 

App (1st) 112204, ¶ 33. 

¶ 21 In analyzing claims of employment discrimination brought under the Act, we are guided 

by federal case law relating to analogous federal anti-discrimination statutes, namely, the 

Civil Rights Act of 1964, which in relevant part protects against employment discrimination 

on the ground of race or color (42 U.S.C. § 2000e, et seq.). See Zaderaka, 131 Ill. 2d at 178 

(analyzing an employment discrimination action using federal case law addressing claims 

under Title VII of the Civil Rights Act of 1964); accord Owens, 403 Ill. App. 3d at 918. 

¶ 22 Because petitioner in the instant cause has provided no direct evidence of discrimination, 

we must analyze her claim using the three-part test set forth in McDonnell Douglas Corp. v. 
No. 1-19-1855 

13 

Green, 411 U.S. 792 (1973). See Zaderaka, 131 Ill. 2d at 178-79 (our state courts have 

adopted this analytical framework as set forth by the United States Supreme Court decisions 

addressing such claims); Young, 2012 IL App (1st) 112204, ¶ 34; accord Owens, 403 Ill. 

App. 3d at 918-19. Under this test, first, petitioner has the burden to establish a prima facie

case of unlawful discrimination by a preponderance of the evidence. See Young, 2012 IL 

App (1st) 112204, ¶ 34; see, e.g., Zaderaka, 131 Ill. 2d at 178-79. If she meets this burden, a 

rebuttable presumption of unlawful discrimination arises. See Young, 2012 IL App (1st) 

112204, ¶ 36; see, e.g., Zaderaka, 131 Ill. 2d at 179. Second, to rebut this presumption, 

respondent LMS must articulate a legitimate, nondiscriminatory reason for its decision. See 

Young, 2012 IL App (1st) 112204, ¶ 36; see, e.g., Zaderaka, 131 Ill. 2d at 179 (respondent 

need only articulate such a reason and is not required to prove it). Third, if LMS does so, the 

presumption of unlawful discrimination falls and the burden shifts back to petitioner to prove 

by a preponderance of the evidence that LMS’ articulated reason was untrue and merely a 

pretext for discrimination. See Young, 2012 IL App (1st) 112204, ¶ 34; see, e.g., Zaderaka, 

131 Ill. 2d at 179. Under this test, the ultimate burden remains with petitioner at all times. 

See Zaderaka, 131 Ill. 2d at 179; accord Owens, 403 Ill. App. 3d at 919. 

¶ 23 With respect to the first part of the McDonnell test, to establish a prima facie case for 

employment discrimination, petitioner here must show: (1) she is a member of a protected 

class; (2) she was meeting LMS’ legitimate business expectations; (3) she suffered an 

adverse employment action; and (4) LMS treated similarly situated employees outside the 

class more favorably. See Owens, 403 Ill. App. 3d at 919. Because petitioner’s principle 

claim is that she was subject to disparate punishment, the second and fourth elements for a 

prima facie case of employment discrimination merge. See Caskey v. Colgate-Palmolive 
No. 1-19-1855 

14 

Co., 535 F.3d 585, 592 (7th Cir. 2008); accord Lucas v. Chicago Transit Authority, 367 F.3d 

714, 728 (7th Cir. 2004). Accordingly, an analysis of LMS’ expectations “falls by the 

wayside” and, instead, the focus turns more prominently to whether petitioner can establish 

that she received dissimilar--and more harsh--punishment than that received by a similarly 

situated employee who was outside her protected class. Caskey, 353 F.3d at 592; accord 

Lucas, 367 F.3d at 728. “A similarly situated employee need not be ‘identical,’ but 

[petitioner] must show that the other employee ‘dealt with the same supervisor, [was] subject 

to the same standards, and had engaged in similar conduct without such differentiating or 

mitigating circumstances as would distinguish [her] conduct or [LMS’] treatment of [her].’ ” 

Caskey, 535 F.3d at 592 (quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 

2008)). 

¶ 24 We hold that the Commission did not abuse its discretion in finding petitioner failed to 

establish a prima facie case of employment discrimination based on her race. The parties do 

not dispute that petitioner is a member of a protected class (due to her race) or that she 

suffered an adverse employment action (termination). However, petitioner failed to present 

any evidence with respect to the remaining (merged) element required to establish a prima 

facie case, namely, that she identify a similarly situated employee outside her protected class 

who was treated differently, and more favorably, than she was. 

¶ 25 First, the evidence presented in this cause clearly shows, contrary to petitioner’s 

insistence, that her employment was terminated because of a pattern of unprofessional, 

insubordinate and threatening behavior--behavior that began shortly after she was hired by 

LMS and culminated on November 28, 2017. LMS gave, and petitioner acknowledged 

receipt of, an employment manual that detailed LMS’ policies regarding both the position for 
No. 1-19-1855 

15 

which she was hired and general requirements with respect to security, professionalism and 

discipline. These included mandates that she wear the appropriate identification at all times 

of both LMS and the Target store to which she was assigned, that she act toward and address 

LMS staff and Target employees in a professional and courteous manner, and that 

termination of employment could result if she did not comply with these policies. 

¶ 26 The Department’s investigation showed that, contrary to her characterization of 

“excellent performance” on her assignments and compliance with all the manual’s 

requirements, LMS issued petitioner several warnings about her work in the months between 

her hire and her termination. She was cited multiple times for not wearing the appropriate 

security identification while in LMS client stores. She was also counseled for taking unclear 

and inaccurate photographs of her work, some of which did not belong to her. When

disciplined for these incidents, she responded with a flurry of emails to her supervisor 

Imdieke, always attempting to explain away her fault, shifting blame to other employees, and 

otherwise being argumentative, which Imdieke warned her needed to stop. Finally, the 

incidents of November 28, 2017, saw petitioner twice use derogatory language, including at 

least one instance considerable of a racial epithet (when she called Imdieke “an ignorant 

white boy”), become physically threatening (when she slammed and banged on a locked 

stockroom cage door because she was not permitted access), and blatantly disobey and argue 

with a Target manager, who was LMS’ client, until she was officially banned from that store. 

¶ 27 Again, petitioner’s main claim here is that she was subject to disparate punishment, i.e., 

that similarly situated employees outside her protected class were treated more favorably by 

LMS--in her words, while other black and non-black employees were also fired, they were 

terminated “for unethical conduct,” while she “was the only responsible and ethical (LMS) 
No. 1-19-1855 

16 

black employee that [LMS] discharged.” Her claim, however, cannot stand. She presented 

absolutely no evidence of what she proposes. That is, no evidence was ever submitted 

demonstrating that other employees of any race who also failed to comply with LMS policies 

concerning security and/or professionalism and who became argumentative and threatening 

towards others were allowed to remain employed by LMS. In fact, and directly to the 

contrary, LMS submitted during the investigation here its employee discharge documents 

from December 2016 to September 2017. These showed that in the year immediately prior to 

petitioner’s termination, LMS discharged four employees, two of whom were not black, i.e., 

outside petitioner’s protected class. This clearly refutes any argument petitioner could 

attempt to make that LMS treated similarly situated employees outside of her protected class 

engaged in similar conduct more favorably by receiving less severe treatment. See Young, 

2012 IL App (1st) 112204, ¶¶ 47-48 (prima facie discrimination claim requires evidence that 

similarly situated person in comparable circumstances received more favorable treatment). 

From all this, it is obvious that petitioner failed to meet her burden of establishing a prima 

facie case of employment discrimination based on her race by a preponderance of the 

evidence, and the Commission properly dismissed her cause. 

¶ 28 Even if it could somehow be concluded that petitioner did meet her burden of 

establishing a prima facie case (which it cannot), and, thus, a rebuttable presumption of 

unlawful discrimination can be said to have arisen here (which it did not), we note for the 

record that LMS articulated a legitimate, nondiscriminatory reason for its actions. As we 

have already described, LMS provided petitioner with an employee manual outlining 

mandates with respect to security and professionalism for which she was responsible and 

detailing the consequences of failing to follow them. And, as we have already discussed at 
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17 

length, petitioner acknowledged receipt of the manual, proceeded to violate those mandates 

in several and repeated ways and, consequently, was terminated. It should also be noted that 

neither LMS’ Human Resources Director Schmidt who issued the manual to petitioner, nor 

supervisor Imdieke who fired her, ever knew petitioner’s race, as the evidence showed they 

only dealt with her via email and telephone calls. 

¶ 29 Continuing along these hypothetical lines, assuming petitioner established a prima facie 

case, and with LMS then having articulated a reason for its actions, any presumption of 

unlawful discrimination would fall here and the burden would shift back to petition to prove, 

by a preponderance of the evidence, that LMS’ reason was a pretext for discrimination. Just 

as with the other required elements of her cause, this, she cannot do. She provides absolutely 

no evidence of a pretext for discrimination here by LMS against her, other than her wild 

speculation and her claims that certain employees lied. See Folbert, 303 Ill. App. 3d at 25 

(“[a] petitioner’s discrimination charge consisting of mere speculation and conjecture does 

not constitute substantial evidence”); Roedl v. Midco Int’l, 296 Ill. App. 3d 213, 219 (1998) 

(a petitioner’s insistence that certain witnesses “were not worthy of belief” by Department 

does not constitute substantial evidence of pretext); see also Karazanos v. Navistar Int’l 

Trans. Corp., 948 F.2d 332, 337-38 (7th Cir. 1991) (a petitioner’s perception of herself as an 

employee is irrelevant, as focus is on perception of the employer with respect to the 

employee’s work, and a petitioner’s assertions blaming others for her work-related 

shortcomings, alone, does not create issue of pretext). Again, neither Schmidt nor Imdieke 

ever met petitioner in person, and the investigation concluded that they were entirely 

unaware of her race. Even if they knew of her race, and even if LMS set out to treat 

petitioner less favorably than other employees because of her race or, as she insists, terminate 
No. 1-19-1855 

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her right before she obtained full-time status (and, thus, more pay and medical benefits), it is 

wholly unlikely that they would have given her the multiple opportunities to remediate her 

behavior they did in the months before finally terminating her, as well as affording her the 

chance to explain what happened at the Target store following the incidents on November 28, 

2017. See Young, 2012 IL App (1st) 112204, ¶ 48 (“[u]nder the Act, the unfairness or 

unreasonableness of an employer’s conduct is irrelevant, so long as it was not motivated by 

an employee’s protected characteristic”). 

¶ 30 Ultimately, the Commission’s dismissal of petitioner’s charge of employment 

discrimination for lack of substantial evidence was proper. Petitioner failed to meet the 

required elements of a prima facie case and, even if such a case could be made, LMS 

provided a non-pretextual reason for her termination from its employ that petitioner cannot 

show, nor has shown, was untrue. Having failed to present any substantial evidence to 

satisfy any of the burdens required of her, the Commission properly dismissed her charge. 

¶ 31 CONCLUSION

¶ 32 Accordingly, for the foregoing reasons, we affirm the Commission’s order sustaining the 

Department’s dismissal of petitioner’s charge for lack of substantial evidence.

¶ 33 Affirmed.