dissenting:
The Commission’s decision should be reversed.
The majority cites certain findings of the ALJ as supported by the evidence. Those findings as cited include, Moore and Mallory’s work relationship was strained; Moore disapproved of Mallory’s treatment of Blunt; Moore spoke to Mallory about the Blunt problem on several occasions; Moore and Mallory held significantly different views of the role of a supervisor, which led to additional conflict; Moore believed a supervisor should demonstrate leadership by working alongside his staff; Mallory believed a supervisor should make work assignments, monitor the progress, and help when necessary. Pursuant to McDonnell Douglas, once the plaintiff has established a prima facie case of unlawful discrimination, the rebuttable presumption arises that the employer unlawfully discriminated against the plaintiff. The employer then must articulate and not prove a legitimate nondiscriminatory reason for its decision. As the majority points out, the School District specified insubordination and threats of violence as the reasons for Mallory’s discharge. The ALJ concluded that the School District met its burden of articulating a legitimate nondiscriminatory reason for discharging Mallory. The presumption of discrimination was destroyed. Mallory was discharged for insubordination and also for threats which were conveyed to Moore. There is no comparison in this record with respect to any other workers at the Baldwin School who had similar charges made against them where action was not taken.
The Commission’s decision should be reversed for two reasons. One, the ALJ found the School District articulated two reasons for Mallory’s termination, insubordination in his treatment of Blunt and threats made by Mallory to Moore. As the majority points out, the ALJ found Mallory’s only offense was insubordination. The ALJ then determined the threat reason, disputed by credible evidence of Mallory, was not justified. Insubordination as shown by the undisputed facts in this record is sufficient cause for termination of Mallory. Thus, Mallory did not show unequal treatment in comparing his circumstances with those of Oberdalhoff and Hively. Mallory was a supervisor of custodians. Oberdalhoff and Hively were custodians.
INSUBORDINATION
The ALJ found:
Mallory supervised custodians.
Mallory would occasionally lose his temper with Blunt because of Blunt’s work performance.
The loss of temper would frequently involve the use of “profanity and the raising of his voice.”
Blunt would “often react to the verbal beratement by ‘freezing’ and was unable to respond.”
At several points during the course of the “1983-84 school year Moore talked with Mallory about his treatment of Blunt and ordered Mallory to treat Blunt more gently, not use profanity or yell at him.”
Later, a confrontation between Mallory and Blunt occurred August 20, 1984, involving “a loud voice and some profanity.” Moore was informed by his secretary, went to the scene, took Mallory to his office, and reminded Mallory of the prior order to treat Blunt gently.
Moore informed Gott of the confrontation. Gott expressed a willingness to recommend termination. Moore “demurred and explained he felt the situation did not warrant termination and that he would work it out with Mallory.”
The School District did have cause to terminate Mallory in the insubordination, as articulated, and found by the ALJ. Nothing in the record indicates the Blunt problems were not real, legitimate, and properly handled by Moore. When one reads the record, Blunt may very well be the injured party.
Mallory failed to prove by a preponderance of the evidence that the legitimate reason (insubordination) offered by the School District was not a true reason for termination.
If either insubordination or threats stand as a legitimate reason, Mallory’s claim must fail. That the issue of threats ignited the termination does not require a different result. Regardless of the merits of threats, the other cause for discharge, mistreatment of Blunt, stands uncontradicted. The ALJ gives credence to no threats and, on that basis, finds “pretext has been shown in that the reason for the discharge is not worthy of belief.”
As stated in Bur dine, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 67 L. Ed. 2d at 215, 101 S. Ct. at 1093.
COMPARATORS
Oberdalhoff and Hively were custodians. Mallory was a supervisor of custodians.
The ALJ made a comparison in deciding unequal treatment. Mallory had issued a letter to Oberdalhoff with respect to Oberdalhoff’s insubordination. Mallory was terminated for insubordination and Oberdalhoff was not terminated.
It is Mallory’s responsibility to prove that “similarly” situated employees were not treated equally. As stated in Acorn, “[disciplining employees in different manners is probative of discrimination only if the employees are ‘similarly situated,’ which requires a showing of similar misconduct and similar work records.” Acorn, 181 Ill. App. 3d at 142, 536 N.E.2d at 944.
The record shows Mallory was abusive in his language and treatment of Blunt. His conduct was called to his attention. He was directed to treat Blunt more gently because of Blunt’s disability. His abusive treatment of Blunt did not end. There is no evidence of employees refusing to follow Moore’s orders. There is also no evidence of similar conduct by supervisors. As stated heretofore, the failure of the School District in disciplining Mallory might well have placed the School District in violation of Blunt’s rights. There is no showing by Mallory of unequal treatment of similarly situated employees. Mallory did not sustain his burden.
The decision of the Human Rights Commission should be reversed.