Hoffelt v. The Illinois Department of Human Rights

FIFTH DIVISION
October 20, 2006

No. 1-05-1629

VIVIAN HOFFELT, )
)
Petitioner-Appellant, )
)
v. ) Petition for Review of the
) Order of the Illinois
THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS, ) Department of Human Rights
CHIEF LEGAL COUNSEL OF THE ILLINOIS )
DEPARTMENT OF HUMAN RIGHTS, and the CITY OF )
CHICAGO AVIATION DEPARTMENT, )
)
Respondents-Appellees. )

MODIFIED OPINION UPON DENIAL OF REHEARING

JUSTICE GALLAGHER delivered the opinion of the court:

On April 25, 2005, the Illinois Department of Human Rights (the Department), through

its chief legal counsel issued a final appealable order pursuant to the Illinois Human Rights Act.

775 ILCS 5/8-111(A) (West 2004). Petitioner, Vivian Hoffelt, now seeks review and reversal of

that order which dismissed her charges of sex discrimination and unlawful retaliation for having

complained of sexual harassment.

Petitioner began work with the City of Chicago (the City), in July 1988 as an aviation

security officer at O'Hare International Airport. Beginning in late 1999, her superior officer, Sgt.
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Christopher Disandro, allegedly began a pattern of inappropriate conduct toward her. 1 On one

occasion in late 2001, Disandro, referring to petitioner and another female officer, said, AI would

love to have one on the face and one on the crotch.@ After this statement, petitioner told

Disandro to leave her alone. Allegedly, Disandro began retaliation toward petitioner that

negatively affected her treatment on the job and caused her to fear for her personal safety. When

Disandro was suspended in August 2002 for violating the City's residency requirement, he

became furious with petitioner because he suspected that she had Adropped a dime@ on him. He

allegedly threatened that he Aknew people from the old neighborhood@ and that he could have her

Adropped@ and that he knew people who were getting released from prison soon.

On May 1, 2003, petitioner filed a six-count charge against the City, alleging that she had

been subjected to various forms of discrimination from early November 2002 until the date of

filing. Each and every count alleged that she had been harassed or discriminated against by Lt.

Zanders.

Count I alleged harassment from early November 2002 and continuing until the present

(May 1, 2003) due to her sex, female. In this count, petitioner alleged that Lt. Zanders harassed

1
Petitioner has detailed the specific acts which comprise three pages of her brief.

We need not include them here, because the City does not dispute that Hoffelt filed an

internal complaint in August 2002 about Disandro.

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her by referring to her and other females as Aincompetents,@ Abottom feeders,@ and Ainept.@ She

further alleged that he claimed male employees wrote better reports, talked to her in a demeaning

manner, and yelled at her, creating a hostile work environment.

Count II also alleged harassment from early November 2002 and continuing until the

present (May 1, 2003). Count II alleged that the harassment was in retaliation for petitioner's

opposing unlawful discrimination. In this count, petitioner alleged that she was harassed by Lt.

Zanders, who condoned Disandro's sexual harassment of her and another employee, and again

alleged that Lt. Zanders harassed her by referring to her and other females as Aincompetents,@

Abottom feeders,@ and Ainept,@ claiming that male employees wrote better reports, talking to her

in a demeaning manner, and yelling at her, creating a hostile work environment. Petitioner also

alleged that Lt. Zanders harassed her after she opposed unlawful discrimination (Disandro's

alleged sexual harassment), thereby raising an inference of retaliatory motivation.

Count III alleged unequal terms and conditions of employment, during the same time

period contained in counts I and II, due to her sex, female. She alleged that Lt. Zanders

continually gave her less desirable assignments and on several occasions had denied her holiday

and compensatory time pay, although it had been previously approved and/or she had

documentation to justify it, forcing her to submit additional information and documents before

the situation was corrected.

Count IV alleged unequal terms and conditions of employment, during the same time

period contained in counts I, II, and III and repeated the same allegations as count III. The basis

of count IV, however, was retaliatory motive for petitioner's opposing unlawful discrimination,

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namely, Disandro's alleged sexual harassment.

Counts V and VI each alleged inaccurate performance evaluation in January 2003. Count

V was based upon her sex, female. Count VI alleged retaliation for opposing unlawful

discrimination.

On October 15, 2004, the Department dismissed petitioner's charge for lack of substantial

evidence. On April 25, 2005, the chief legal counsel upheld the dismissal for lack of substantial

evidence.

STANDARD OF REVIEW

The decision of the chief legal counsel to sustain dismissal of a charge should be upheld

unless the decision was Aarbitrary, capricious, or an abuse of discretion.@ Gusciara v. Lustig, 346

Ill. App. 3d 1012, 1017, 806 N.E.2d 746, 750 (2004). Agency action is arbitrary and capricious

when the agency contravenes the legislature's intent, fails to consider a crucial aspect of the

problem, or offers an implausible explanation contrary to agency expertise. Allen v. Lieberman,

359 Ill. App. 3d 1170, 1177, 836 N.E.2d 64, 69 (2005). Substantial evidence is defined as

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

which consists of more than a mere scintilla but may be somewhat less than a preponderance.@

775 ILCS 5/7A-102(D)(2) (West 2004); see Stone v. Department of Human Rights, 299 Ill. App.

3d 306, 314, 700 N.E.2d 1105, 1111 (1998). Substantial evidence has also been said to be Asuch

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.@ Stone,

299 Ill. App. 3d at 315, 700 N.E.2d at 1111. For the following reasons, we affirm the chief legal

counsel's decision to sustain the Department's dismissal of counts I, III, and V, which were based

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on sex discrimination. However, we conclude that the chief legal counsel abused his discretion

in finding a lack of substantial evidence regarding petitioner's claims of retaliation based upon

her opposing unlawful discrimination, namely, Disandro's alleged sexual harassment.

ANALYSIS

Petitioner's claims, although somewhat intertwined, include charges of discrimination

based on her sex (i.e., her gender-based status), as well as charges of retaliation based on her

opposition to Disandro's alleged sexual harassment (i.e., her conduct). We shall first address

petitioner's sex discrimination charges.

Sex Discrimination Claim

In analyzing employment discrimination actions brought under the Human Rights Act,

the Commission and the Illinois Supreme Court have adopted the analytical framework set forth

by the United States Supreme Court in its decisions addressing claims brought under Title VII of

the Civil Rights Act of 1964 (42 U.S.C. ' 2000e et seq. (1982)). Zaderaka v. Illinois Human

Rights Comm'n, 131 Ill. 2d 172, 178, 545 N.E.2d 684, 687 (1989). A person can establish

discrimination through either the direct method that an adverse employment action was taken for

unlawful discriminatory reasons or through the indirect method pursuant to McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 36 L. Ed. 668, 93 S. Ct. 1817 (1973), adopted by the Illinois

Supreme Court in Zaderaka, 131 Ill. 2d 172, 178-79, 545 N.E.2d 684, 687.

To establish a prima facie case of discrimination in accordance with the analysis set out

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a complainant must demonstrate

that (1) she engaged in a protected activity that was known by the respondent; (2) the respondent

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subsequently took some adverse action against the complainant; and (3) there is a causal

connection between the protected activity and the disadvantageous employment action .

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Because petitioner failed to show that

the City committed a material adverse act against her, she failed to sufficiently demonstrate the

second element, and thus, failed to establish a prima facie case of sex discrimination.

Respondents assert that Anot everything that makes an employee unhappy is an actionable

adverse action.@ Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). They note that

whether petitioner proceeds by the direct or indirect method of proof, she must show a materially

adverse employment action. Rhodes v. Illinois Department of Transportation, 359 F. 3d 498, 504

(7th Cir. 2004). In other words, she must show that A 'material harm has resulted from ... the

challenged actions.' [Citations.]@ Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).

In order to be considered materially adverse enough to constitute discrimination, an

employment action must constitute a A 'severe or pervasive' change in the daily 'conditions' of

employment * * * [Citations.]@ Washington v. Illinois Department of Revenue, 420 F.3d 658, 661

(7th Cir. 2005). As the court in Traylor explained, an adverse employment action had been

defined by that court as A 'more disruptive than a mere inconvenience or an alteration of job

responsibilities. A materially adverse change might be indicated by a termination of

employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material responsibilities, or other indices that

might be unique to a particular situation.' [Citation.] @Traylor, 295 F.3d at 788. We conclude

that petitioner did not suffer a materially adverse employment action sufficient to support her

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charges of discrimination based on sex. Counts I, III and V allege that petitioner was harassed,

subjected to unequal terms and conditions of employment, and given an inaccurate performance

evaluation, and that all of these actions were based upon her sex. Those allegations, taken as

true, do not establish a severe or pervasive change in the daily conditions of employment. Thus,

the chief legal counsel did not abuse his discretion in finding a lack of substantial evidence to

support petitioner's charges of discrimination based on sex. We conclude that the chief legal

counsel correctly upheld the Department's dismissal of counts I, III, and V.

Retaliation Claim

In order to establish a prima facie case of retaliation under the Human Rights Act,

petitioner must show that: (1) she was engaged in a protected activity; (2) her employer

committed a material adverse act against her; and (3) a causal nexus existed between the

protected activity and the adverse act. Stone v Department of Human Rights, 299 Ill. App. 3d

306, 316, 700 N.E.2d 1105, 1112 (1998); Carter Coal Co. v. Human Rights Comm'n, 261 Ill.

App. 3d 1, 633 N.E.2d 202 (1994). We conclude that petitioner has established a prima facie

case of retaliation and the chief legal counsel erred in sustaining the Department's finding of a

lack of substantial evidence. We specifically reject respondents' argument that the City did not

commit a material adverse act against her with respect to her retaliation claim. As we shall

explain below, in light of White, with respect to petitioner's retaliation claims, she sufficiently

demonstrated the second element, that the City committed a material adverse act against her.

In determining whether an employer's alleged retaliation constituted an actionable

adverse act, the Illinois Human Rights Commission has considered analogous federal cases

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arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C. '2000e et seq.(1982)). See,

e.g., In re Papa, Ill. Hum. Rts. Comm'n Rep. 1997SF0146 (June 9, 2000). The United States

Supreme Court had noted, with respect to Title VII's anti-discrimination provision requirements,

that a broad array of actions may constitute an adverse employment action including such

employer acts as Ahiring, firing, failing to promote, reassignment with significantly different

responsibilities, or some other action causing a significant change in benefits.@ Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 141 L. Ed. 2d 633, 653, 118 S. Ct. 2257, 2268-69

(1998). More recently, however, the United States Supreme Court discussed the degree of

material adversity that must be alleged in a Title VII retaliation claim. Burlington Northern &

Santa Fe Ry. Co. v. White, ___ U.S. ___, 165 L. Ed. 2d 345, 126 S. Ct. 2405 (2006). As the

White court noted, Ellerth did not even mention Title VII's antiretaliation provision (White, ___

U.S. at ___, 165 L. Ed. 2d at ___ , 126 S. Ct. at 2413), and declined to extend Elleth's holding.

The White Court distinguished Title VII's antidiscrimination provision from its antiretaliation

provision. See also Washington v. Illinois Department of Revenue, 420 F.3d 658, 660 (7th Cir.

2005) (noting that A[Title VII's antiretaliation provision] is 'broader' than [its antidiscrimination

provision] in the sense that retaliation may take so many forms, while [the antidiscrimination

provision] is limited to discrimination 'with respect to [the worker's] compensation, terms,

conditions, or privileges of employment' @ ).

The White Court acknowledged that Athe anti-retaliation provision protects an individual

not from all retaliation, but from retaliation that produces an injury or harm.@ White, ___U.S. at

___, 165 L. Ed. 2d at ___, 126 S. Ct. at 2414. The White opinion then characterized Ahow

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harmful an act of retaliatory discrimination must be in order to fall within [Title VII's

antiretaliation] provision's scope.@ White, ___U.S. at ___, 165 L. Ed. 2d at ___, 126 S. Ct. at

2411.

In describing the level of seriousness to which the retaliation must rise in order to be

actionable, the White Court noted the courts of appeals had used differing language and agreed

with the formulation set forth by the Seventh Circuit and the District of Columbia. See

Washington v. Illinois Department of Revenue, 420 F.3d 658, 662 (7th Cir. 2005); Rochon v.

Gonzales, 438 F.3d 1211, 1217-18 (D.C. Cir. 2006). The Court decided that a retaliation

plaintiff must show Aa reasonable employee would have found the challenged action materially

adverse, which in this context means it well might have dissuaded a reasonable worker from

making or supporting a charge 2 of discrimination.@ White, ___U.S. at ___, 165 L. Ed. 2d at ___,

126 S. Ct. at 2415; see also Washington v. Illinois Department of Revenue, 420 F.3d 658, 662

(7th Cir. 2005) (same).

As the White Court explained, the reason it addressed materiality of the adverse

employment action was to separate Asignificant from trivial harms,@ such as petty slights or

minor annoyances. White, ___U.S. at ___, 165 L. Ed. 2d at ___, 126 S. Ct. at 2415. The Court

referred to a reasonable employee's reactions because the provision's standard for judging harm

must be an objective standard. White, ___U.S. at ___, 165 L. Ed. 2d at ___, 126 S. Ct. at 2415.

An objective standard was noted to be judicially administrable in that A[i]t avoids the

2
In White, similar to the instant case, no Aformal charge@ had been previously

filed, but there was an internal complaint.

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uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's

unusual subjective feelings.@ White, ___U.S. at ___, 165 L. Ed. 2d at ___, 126 S. Ct. at 2415.

As noted, this was the standard previously applied by the Seventh Circuit in Washington.

The Washington court, noting that a change in hours normally would not be material, decided

that where an employee had sought and been approved for flex-time in order to care for her son

who had Down's syndrome, the removal of her flex-time schedule, by way of abolishing her

position and requiring her to start a newly created position, could potentially constitute a

material change to her working conditions that was actionable under the antiretaliation provision

of Title VII. Washington, 420 F.3d at 662. See also Balderrama v. Kraft Foods North America,

Inc., 307 F. Supp. 2d 1012, 1014 (N.D. Ill. 2004) (In the retaliation setting, the standard for

determining whether an employer's act constitutes an adverse employment action has been

determined to be less demanding.)

With respect to the materiality requirement, the Washington court opined that potentially

Aan act that would be immaterial in some situations is material in others.@ Washington, 420 F.3d

at 661. The court gave the following example:

ASuppose an employer knows that a particular worker has a nervous

condition or hearing problem that makes him miserable when exposed to music

for extended periods. Many people find music soothing and welcome its addition

to the workplace. But if an employer sought to retaliate for a charge of

discrimination by exploiting this vulnerability, moving him from a quiet office to

one where Muzak plays constantly, that could be a material change if not, indeed,

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a constructive discharge ***.@ Washington, 420 F.3d at 662.

The White Court also declared that Athe significance of any given act of retaliation will often

depend upon the particular circumstances.@ White, ___U.S. at ___, 165 L. Ed. 2d at ___, 126 S.

Ct. at 2415. The White Court gave the following example: AA schedule change in an employee's

work schedule may make little difference to many workers, but may matter enormously to a

young mother with school age children.@ White, ___U.S. at ___, 165 L. Ed. 2d at ___, 126 S. Ct.

at 2415.

In support of her claims of retaliation for opposing Disandro's alleged sexual harassment,

petitioner has alleged that she suffered a harm in that she was harassed by Lt. Zanders, who

condoned Disandro's sexual harassment of her and another employee, and who referred to her,

and other females, as Aincompetent,@ Abottom feeders,@ and Ainept,@ talked to her in a demeaning

manner, and yelled at her, creating a hostile environment.

In further support of her retaliation claims, she claims that she was assigned more often

to a post considered to be a less desirable assignment. This assignment was even acknowledged

by three witnesses, i.e., three other officers, to be Aa punishment post.@ There was evidence from

Officers Weidel, Velasquez and Dancy. All three attested to the fact that those post assignments,

which consist exclusively of sitting at an entrance gate and Aswiping in@ vehicles, as opposed to

patrol duties throughout the airport grounds, are commonly known by officers as punishment

assignments. Respondents downplay the significance of petitioner's claim that she was assigned

to posts 1 and 2 - posts described by three witnesses as Apunishment posts@ - more often than

men and more often than anyone who did not complain about sexual harassment.

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Respondents are incorrect about the significance of Lt. Zanders' assignment decisions, in

the retaliation setting. As the Commission has explained:

AIn every workplace there are job duties which are considered undesirable. If an

employer, with impunity, could assign employees who protest unlawful

discrimination to undesirable tasks, very few individuals would protest against

unlawful discrimination. Just as some people might prefer to work the overnight

shift, it is likely that a few sergeants would prefer to work behind a desk instead

of on patrol. Nevertheless, where assignments are generally seen as undesirable,

the employer should not be able to use the fact that a few people might enjoy the

assignment to avoid liability for having retaliated against an employee.@ In re

Papa, Ill. Hum. Rts. Comm'n Rep.1997SF0146, slip op. at 9 ( (June 9, 2000).

Additionally, petitioner alleged that her compensatory time off requests were denied

where they had been granted before and, finally, that she was given a lowered performance

rating. With respect to charges of retaliation, the Illinois Human Rights Commission has

recognized actionable adverse employment actions based upon claims of undesirable job

assignments and lateral transfers and this court has agreed. See In re Papa, Ill. Hum. Rts.

Comm'n Rep. 1997SF0146 (June 9, 2000); All Purpose Nursing Service v. Illinois Human

Rights Comm'n, 205 Ill. App. 3d 816, 828, 563 N.E.2d 844 (1990). We conclude that petitioner

has met her burden of showing substantial evidence of an adverse employment action under her

retaliation claim. She has sufficiently alleged employment actions that Awell might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.@ White,

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___U.S. at ___, 165 L. Ed. 2d at ___, 126 S. Ct. at 2415.

In the hearing before the Department, it concluded that there were certain uncontested

facts. Based upon the uncontested evidence, petitioner has also established the other two

elements of a prima facie case for retaliation. She has established the first element, namely, that

she was engaged in a protected activity. It was uncontested that petitioner filed an internal

complaint about Disandro's harassment in August 2002 with Lt. LeRoy Pestka and Juan

Rodriguez, personnel department officer.

Petitioner has also demonstrated that a causal nexus existed between the protected

activity and the adverse act. In the hearing before the Department, it was uncontested that Lt.

Zanders was aware of petitioner's complaint against Disandro. As noted earlier, when Disandro

was suspended in August 2002 for violating the City's residency requirement, he became furious

with petitioner because he suspected that she had Adropped a dime@ on him. He allegedly

threatened that he Aknew people from the old neighborhood@ and that he could have her

Adropped,@ and that he knew people who were getting released from prison soon. It was

uncontested during the Department's hearing that, during this time, petitioner indicated that

Disandro retaliated against her for opposing his sexual advances and she was advised to file a

police report against Disandro and to file a formal complaint with the City's sexual harassment

office. The Department found that it was uncontested that, in September 2002, Disandro was

terminated from his employment. Petitioner disputes this fact and asserts that Disandro

remained on administrative leave and that he continued to show up at the workplace and was

assisted by Lt. Zanders in gaining unauthorized access to the restricted area of the workplace.

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Petitioner contends that Lt. Zanders openly expressed his hostility toward her based upon his

comments in reaction to her complaints about Disandro's conduct, bluntly telling her AI do not

care what you've got.@ In addition to these acts, Lt. Zanders allegedly engaged in all of the other

acts in petitioner's charge that constituted the material adverse employment actions, in retaliation

for her opposing the harassment by Disandro.

Moreover, temporal proximity between a protected activity and an adverse action has

been considered. A prima facie case of retaliatory discharge can be established by showing a

short time span between the filing of a discrimination charge and the employer's adverse action.

See, e.g, Maye v. Human Rights Com'n, 224 Ill. App. 3d 353, 362, 586 N.E.2d 550, 556

(1991)(and cases cited therein). Because petitioner established a prima facie case of retaliation,

she created a rebuttable presumption of unlawful retaliation by the City. Petitioner, however,

contends that, in making the threshold determination of a lack of evidence, the Department

strayed radically from its proper role within the Illinois statutory scheme under the Illinois

Human Rights Act (775 ILCS 5/1-101 et seq. (West 2002)) and functioned more like an

adjudicative body than an investigative body. We conclude that the chief legal counsel's

decision to uphold the Department's dismissal of counts II, IV, and VI must be reversed and this

cause remanded for further investigation.

Because we are remanding this matter, it is important to note that we disagree with

respondents' position that the Department correctly refused to consider Disandro's alleged sexual

harassment of petitioner because her Acharge@ did not allege sexual harassment and that,

therefore, this court has no jurisdiction to consider the acts of sexual harassment committed by

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Disandro. We agree with petitioner that pursuant to the Morgan doctrine, the entire pattern of

harassment should have been considered. See National RR Passenger Corp. v. Morgan, 536 U.S.

101, 153 L. Ed. 2d 106, 122 S. Ct. 2061 (2002). Petitioner's complaint clearly alleged that Lt.

Zanders' harassment was in retaliation for her prior opposition to the alleged sexual harassment

by Disandro.

Petitioner also notes that she has direct evidence of Lt. Zanders' openly announced sexual

bias based upon his comments that women are Abottom feeders,@ Ainept,@ and Aincompetent,@ and

his view that women, as a class, cannot write police reports as well as men, as a class. As noted

earlier, petitioner further contends that Lt. Zanders openly expressed his hostility toward her

based upon his comments in reaction to her complaints about Disandro's conduct, bluntly telling

her AI do not care what you've got.@

In Morgan, the Court explained that a A hostile work environment@ results from the

Acumulative effect of individual acts.@ Morgan, 536 U.S. at 115, 153 L. Ed. 2d at 123, 122 S. Ct.

at 2073. Thus, these acts Acollectively constitute one >unlawful employment practice.= @ Morgan,

536 U.S. at 117, 153 L. Ed. 2d at 124, 122 S. Ct. at 2074, quoting 42 U.S.C. ' 2000e-5(e)(1)

(1994). The Morgan Court held that even acts that occurred outside the statute of limitations

period could be considered. Morgan, 536 U.S. at 117, 153 L. Ed. 2d at 125, 122 S. Ct. at 2075.

Although the Morgan case involved a statute of limitations defense, the reasoning applies

here. All of the incidents comprising a hostile work environment are part of one unlawful

employment practice, and the City may be liable for all acts that are part of this single claim. As

this court recognized in Gusciara v. Lustig, 346 Ill. App. 3d 1012, 806 N.E.2d 746 (2004),

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however, the Morgan Court qualified its holding by Aspecifying that an act that occurs within the

prescribed period will not enable an employee to recover for acts occurring outside the period if

the later act 'had no relation to the [earlier] acts' or if, 'for some other reason, such as certain

intervening action 3 by the employer,' the more recent act was 'no longer part of the same hostile

environment claim.' @Gusciara v. Lustig, 346 Ill. App. 3d at 1019, 806 N.E.2d at 751, quoting

Morgan, 536 U.S. at 118, 153 L. Ed. 2d at 125, 122 S. Ct. at 2075.

Petitioner has alleged that the claims were related. In counts II, IV and VI of her six-

count discrimination charge, petitioner alleged that the harassing conduct of Lt. Zanders was in

retaliation for her opposition to unlawful discrimination by complaining to Lt. Zanders and

others at the City about Disandro's sexual harassment; sexual harassment which petitioner further

alleged was condoned by Lt. Zanders. Thus, similar to Morgan and Gusciara, the instant case

involves one unlawful employment practice and Lt. Zanders' actions, if proved, constitute a part

of the same hostile work environment as the alleged prior sexual harassment allegations against

Disandro, as well as Disandro's alleged threatening conduct since his return, all of which

arguably result in an intimidating, hostile, or offensive working environment. (see 775 ILCS

5/2-101(E) (West 2004)).

For the foregoing reasons, we affirm the chief legal counsel's decision affirming the

3
Although there was intervening action by the City when Disandro was

suspended for violating residency requirements, there was no intervening action on the

part of the City with respect to petitioner's hostile environment claim, which constitutes

one unlawful employment practice.

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Department's dismissal of petitioner's charges of sex discrimination in counts I, III, and V. We

conclude, however, that there was substantial evidence presented of retaliation against petitioner

for opposing Disandro's sexual harassment. Thus, the chief legal counsel abused his discretion

in upholding the Department's dismissal of counts II, IV, and VI and those counts are reinstated.

We remand this cause to the Department for further appropriate proceedings on the charges.

Affirmed in part and reversed in part; cause remanded.

O'MARA FROSSARD and NEVILLE, JJ., concur.

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