                                                                       SIXTH DIVISION
                                                                       August 13, 2010

No. 1-09-0908

NICK OWENS,                                            )
                                                       )
                                                       )
                       Petitioner-Appellant,           )               Petition for Review of
                                                       )               An Order of the Chief Legal
v.                                                     )               Counsel of the Illinois
                                                       )               Department of Human
                                                                       Rights.
THE DEPARTMENT OF HUMAN RIGHTS;                        )
MICHAEL LIEBERMAN, Chief Legal Counsel                 )
Designee of the Department of Human Rights;            )               No. 2005 CA 2283
and EXXON MOBIL CORPORATION,                           )
                                                       )
                       Respondents-Appellees.          )

       JUSTICE JOSEPH GORDON delivered the opinion of the court:

       On February 2, 2005, petitioner-appellant, Nick Owens, filed a charge of discrimination

with the Illinois Department of Human Rights (hereinafter, sometimes, the Department) alleging

that his employer, Exxon Mobil Corporation (hereinafter Exxon Mobil) discriminated against

him by issuing a written reprimand to him on December 13, 2004, even though he had been

performing his duties in a satisfactory manner, based on his race (African American) (count A)

and his age (55) (count B), in violation of section 2-102(A) of the Illinois Human Rights Act

(Human Rights Act) (775 ILCS 5/2-102(A) (West 2004)). On February 23, 2005, Owens filed

an amended charge adding that on February 15, 2005, despite satisfactorily performing his duties,

he received a second written reprimand because of his race (count C) and age (count D), in

violation of section 2-102(A) of the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)), and

further in retaliation for filing the subject discrimination charge (count E), in violation of section


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6-101(A) of the Act (775 ILCS 5/6-101(A) (West 2004)). On June 27, 2005, Owens filed a

second amended charge, adding that on or about April 12, 2005, Exxon Mobil subjected him to

unequal terms and conditions of employment when it refused to grant his request for tuition

reimbursement based upon his race (count F), his age (count G), and in retaliation for his filing

the subject charge (count H).

       After conducting an initial investigation, on August 3, 2007, the Department of Human

Rights issued a notice of dismissal for lack of substantial evidence as to all eight counts of

petitioner’s charge. On January 22, 2009, however, the chief legal counsel of the Department of

Human Rights vacated the dismissal order and reversed for further investigation into all counts.

Upon further investigation, the Department of Human Rights issued a second order of dismissal,

again finding that Owens had failed to present substantial evidence in support of his charge. This

time, the chief legal counsel agreed with the findings of the Department and sustained the

decision of the Department to dismiss petitioner’s charge. Owens now appeals.

       On appeal, Owens contends that the chief legal counsel of the Department of Human

Rights abused his discretion when he sustained the decision of the Department to dismiss his

discrimination charge, since he presented substantial evidence of discrimination. Owens also

contends that the substantial evidence standard as articulated under section 7A-102(D)(2) of the

Human Rights Act (775 ILCS 5/7A-102(D)(2) (West 2004)) is unconstitutionally vague. For the

reasons that follow, we affirm.

                                        I. BACKGROUND

       The undisputed facts establish that Owens has been employed by Exxon Mobil’s Cicero


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Regional Distribution Center since 1977 and that at the time of the incident he was employed as

a warehouse operator.

                                A. Owens’ Discrimination Charge

       On February 2, 2005, Owens filed a two count charge of discrimination with the

Department. In count A, Owens alleged that on December 13, 2004, he was subjected to

discrimination by Exxon Mobil on the basis of his race (African American), in violation of

section 2-102(A) the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)). In count B,

Owens alleged that on that same date, he was subjected to discrimination by Exxon Mobil on the

basis of his age (55 years old) violation of section 2-102(A) the Human Rights Act (775 ILCS

5/2-102(A) (West 2004)). In support of both counts A and B, Owens stated that although on the

date in question he had been performing his duties in a satisfactory manner, his shift supervisor,

Melvin Koziol, issued a written reprimand to him for “excessive loading time and loading

errors.” Owens further stated that although two similarly situated younger, white employees,

Carl Pratscher, and Bryan Wright, had been cited for excessive loading time and loading errors,

they were not given written reprimands for their conduct.

       On February 23, 2005, Owens filed an amended charged, reiterating his earlier claims,

but adding three more counts, C, D, and E. In count C, Owens alleged that on February 15,

2005, he was discriminated against on the basis of his race when he was issued a second written

reprimand by shift supervisor Koziol in violation of section 2-102(A) of the Human Rights Act

(775 ILCS 5/2-102(A) (West 2004)). In count D, Owens alleged that this same incident was a

result of age discrimination, and violated section 2-102(A) of the Human Rights Act (775 ILCS


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No. 1-09-0908

5/2-102(A) (West 2004)). Finally, in Count E, Owens alleged a claim of retaliatory

discrimination pursuant to section 6-101(A) of the Act (775 ILCS 5/6-101(A) (West 2004)),

contending that the February 15, 2005, written reprimand was issued to him in retaliation for his

filing of the subject charge.

       In support of counts C through E, Owens alleged the following facts. According to the

second written reprimand, Owens had failed to perform his job duties by failing to include eight

drums of “Telura 622” when loading a customer order on January 7, 2005. Owens, however,

denied failing to perform his job duties on that date and explained that the eight drums of “Telura

622 ” “may have been added to [his] order after [he] had gotten [his] shipping notice.” Owens

averred that in the past there had been instances where subsequent changes made to a shipment

order were not reflected on the copy of the shipping notice given to a warehouse operator.

Owens further alleged that two similarly situated younger white employees, Pratscher and

Wright, had been treated differently under similar circumstances. Owens further alleged that on

February 15, 2002, he engaged in a protected activity by filing a discrimination charge with the

Department of Human Rights and that the issuing of the second written reprimand followed this

protected activity “within such a period of time so as to raise an inference of retaliatory motive.”

On March 25, 2005, Exxon Mobil filed a verified response denying the material allegations of

Owens’ charge.

       On June 27, 2005, Owens filed a second amended charge, realleging counts A through E

of his earlier charges, but adding three more counts, F, G, and H. In count F, Owens alleged that

on or about April 12, 2005, Exxon Mobil subjected him to unequal terms and conditions of


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No. 1-09-0908

employment when it refused to grant his request for tuition reimbursement based upon his race,

in violation of section 2-102(A) of the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)).

In count G, Owens alleged that, since at the time of this request, he was 55 years old, the denial

of tuition reimbursement was also a result of age discrimination, in violation of section 2-102(A)

of the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)). Finally, in count H, Owens

alleged a claim of retaliatory discrimination pursuant to section 6-101(A) of the Act (775 ILCS

5/6-101(A) (West 2004)) claiming that Exxon Mobil refused to grant him tuition reimbursement

in retaliation for his filing of the subject discrimination charge. In support of these additional

claims, Owens alleged that although on April 12, 2005, he submitted a request for tuition

reimbursement to his shift supervisor, Koziol, since then “no action has been taken on his

request.” Owens further stated that he “believe[s]” that other similarly situated, non-African-

American employees under the age of 40, namely Wright, Gary Wantroba and others, have been

granted tuition reimbursements. On August 10, 2005, Exxon Mobil filed a verified response to

Owens’ amended charge denying the material allegations.

                      B. The Department’s First Investigation and Dismissal

       The Department of Human Rights conducted an investigation and based on its findings,

on August 3, 2007, dismissed all counts of Owens’ charge for lack of substantial evidence. In

support of its dismissal, the Department of Human Rights attached voluminous records of its

investigation. Those records reveal that during its investigation, an investigator for the

Department of Human Rights interviewed several witnesses, including (1) the petitioner, Owens,

(2) two retired Exxon Mobil employees (Mike Sanders and Ernest Hampton); (3) one current


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No. 1-09-0908

Exxon Mobil employee (mechanic Jessee Thomas): (4) two members of Exxon Mobil

management at the Cicero Regional Distribution Center (shift supervisor Melvin Koziol, and

operations manager, Patrick O’Reilly); and (5) Exxon Mobil’s in-house attorney, Judith Jansen.

The investigator also reviewed voluminous documents provided by the parties, including: (1) a

letter of reprimand from Koziol to Owens dated February 15, 2005; (2) a group of loading error

investigation reports; and (3) a group of general disciplinary documents for Exxon Mobil

employees at the Cicero Regional Distribution Plant.

        With respect to counts A and B of Owens’ charge, the Department’s investigator

reported the following evidence. When interviewed, Owens stated that on December 13, 2004,

his shift supervisor Koziol issued a written warning to him for “working too slow and making

excessive errors.” Although Owens admitted that he sometimes works slower than other

employees, he explained that he does so because “he is checking to make sure he is not making

errors.” Owens further stated that he believes his work performance is the same as that of other

similarly situated warehouse operators, namely Wright (non-African-American, 23 year old),

Steven Johnson (non-African-American, 49 years old), Michael Panozzo (non-African-

American, 26 years old), Pratscher (non-African-American, 47 years old) and Daniel Hanson

(non-African- American, 44 years old). According to Owens, however, these other employees

have not received written reprimands for errors in their performance. Owens also stated that he

believes that he was discriminated against because of his age as Exxon Mobil has a policy under

which an employee may retire when he or she turns 55 and accumulates 15 years of service with

the company. Owens stated that one month after he turned 55 years old, he was issued a written


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No. 1-09-0908

warning.

       According to the Department’s investigator, Owens allegations were corroborated by

statements from two retired and one current Exxon Mobil employee. Specifically, during an

interview with the Department’s investigator, retired filler1, Mike Sanders (African American, 60

years old) stated that “race discrimination was going on” at the plant. Sanders explained that

operations manager Patrick O’Reilly (non-African-American, 48 years old) “is a racist,” who

treats African American employees “unfairly” and likes to discipline them when they should not

be disciplined.

       Retired forklift driver2, Ernest Hampton (African American, 68 years old) similarly told

the Department’s investigator that he believed that “race discrimination and a whole bunch of

other things [were] going on” at the plant, but he did not elaborate.

       Finally, mechanic Jesse Thomas (African American, 43 years old), told the Department’s

investigator that O’Reilly was “a racist,” and that he referred to African Americans as “niggers”

and Mexican employees as “wetbacks.” Thomas also stated that O’Reilly was always

disciplining African American individuals for things they “did and did not do,” commenting

“I’m going to get that nigger.” According to Thomas, several individuals complained to

management and human resources about O’Reilly’s racial slurs. As a result, between 2001 and

2004, Exxon Mobil conducted an investigation into allegations of racial discrimination.

Although during this investigation several managers initially attested to O’Reilly’s


       1
           The record reveals that Sanders retired three years prior to the instant litigation.
       2
           The record reveals that Hampton retired from Exxon Mobil in May 1995.

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No. 1-09-0908

discrimination against African American employees, according to Thomas, after upper

management spoke to them, they were “scared off” and they refused to testify about O’Reilly’s

conduct.

       On the other hand, the Department’s investigator reported that contrary to Owens’

allegations, management at Exxon Mobil’s Cicero plant denied having disciplined Owens

because of his race and/or age. First, shift supervisor Koziol (non-African-American, 54) told

the Department investigator that on December 13, 2004, he issued Owens a “written counseling”

and not a “written reprimand,” and that there is a difference between the two. Koziol explained

that he issued the “written counseling” to Owens because Exxon Mobil received several

complaints on an order that Owens loaded on August 5, 2004. Specifically, Koziol stated that

while the customer ordered 26 cases of “Mobil 1" products, 11 pails of “Mobilux EP2,” 5 pails

of “Mobil ShC 632" and 4 pails of Vacuoline, it received 25 cases of “Mobil 1” products; 12

pails of “Mobilux EP2,” 4 pails of “Mobil ShC 632,” 3 pails of Vacuoline, and 1 pail of

“something without a label.”

       In addition, operations manager, Patrick O’Reilly told the Department investigator that

Owens had made several mistakes on his orders prior to being issued the December 13, 2004,

“written counseling.” O’Reilly explained Exxon Mobil’s procedure with issuing “written

counseling” to its employees. According to O’Reilly, anytime Exxon Mobil receives a customer

complaint, it investigates to determine whether the complaint is legitimate. If the company

determines that the complaint is legitimate, the employee receives a “loading error” in his or her

personnel file. Once an employee has three errors in his or her file, the employee receives a


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No. 1-09-0908

record of “counseling.”

       With respect to the other similarly situated employees that Owens alleged were treated

differently from him, O’Reilly explained that: (1) Wright and Johnson had not been issued any

“counseling” or warnings because they had no loading errors; (2) Panozzo had been issued a

warning for unsafe conduct on a forklift and ordered to participate in one loading error coaching

session but had not been given “written counseling” since his file did not contain three loading

errors; (3) Pratscher received a coaching session for a loading error, but no “counseling” since he

did not commit three loading errors; and (4) Hanson received reprimands “for other things.”

       The Department’s investigator further reported that Exxon Mobil’s counsel, Judith Jansen

(a non-African-American, 63 years old), confirmed that if an Exxon Mobil employee has

completed 15 years of service by the time he or she reaches the age of 55, that employee can

retire. Jansen explained, however, that this is a benefit plan and not a company policy and that,

as such, it had nothing to do with Owens’ “written counseling” record.

       In addition, the Department’s investigator reported that Exxon Mobil’s disciplinary

documents disclosed that similarly situated employees had also been issued “counseling,”

reprimands, warnings and suspensions, and that they had not been treated differently than

Owens. The investigator summarized his analysis of these disciplinary documents in two charts:

(1) the first chart showing all the disciplinary actions taken against Owens and his coworkers in

the two years prior to his filing of the instant charge, and (2) the second chart summarizing all

loading error investigation reports at the plant since 1999.

CHART 1:


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No. 1-09-0908

 Date       Name           Discipline    Reason                 Age   Race
 08/28/03   Novakowski     Counseling    Failure to wear ppe    47    White
 08/29/03   M Panozzo      Letter of     Unsafe operation of    26    White
                           Reprimand     forklift
 08/29/03   Wantroba       Suspension    Truck spillage         36    White
 09/15/03   T Panozzo      Counseling    Unproductive           50    White
                                         insubordination
 12/15/03   Solis          Letter of     Absenteeism            25    Hispanic
                           Warning
 02/96/04   Pollack        Counseling    Absenteeism            54    White
 03/23/04   Whittier       Counseling    Loading Errors         37    African
                                                                      America
                                                                      n
 04/13/04   Washington     Suspension    Dishonesty related     36    African
                                         to absence                   America
                                                                      n
 04/22/04   Drada          Counseling    Unacceptable           55    White
                                         absence
 05/03/04   Bustos         Letter of     Product                47    Hispanic
                           Reprimand     contamination
 08/13/04   Pollack        Counseling    Unacceptable           54    White
                                         absenteeism
 10/21/04   Hansen         Suspension    Refusal to report to   45    White
                                         work
 12/07/04   Owens          Counseling    Loading errors         55    African
            (petitioner)                                              America
                                                                      n


CHART 2:




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No. 1-09-0908

 Date        Name                Discipline       Reason                 Age        Race
 11/16/05    Hanson              Coached          Load error             44         White
 10/28/04    M. Panozzo          Coached          Load Error             26         White
 04/19/04    Wright              Error in file    Load Error             23         White
 08/29/03    M. Panozzo          Letter of        Unsafe on forklift     44         White
                                 reprimand
 09/13/01    M. Panozzo          Suspension       Error loading          44         White
                                                  forklift
 01/29/02    Johnson             Suspension       Product mix error      49         White
 12/17/01    Johnson             Letter of        Product mix error      49         White
                                 Reprimand
 08/24/99    Sanders             Suspension       Unsafe work            N/A        White
                                                  practices
 06/15/04    Pratscher           Error on file    Loading error          47         White
 03/23/05    Pratscher           Coached          Not following          47         White
                                                  loading procedures

        Based on the aforementioned investigation report, the Department of Human Rights

recommended that counts A and B of Owens’ charge be dismissed.

        With respect to counts C, D, and E, wherein Owens alleged that on February 15, 2005,

Koziol issued him a second written reprimand based upon his age, race and in retaliation for his

filing of the instant charge, the Department’s investigator reported the following evidence.

During his interview with the Department investigator, Owens stated that Koziol issued him a

written reprimand “for his performance and for a loading error,” informing Owens that he had

failed to include a number of drums in an order. Owens averred that he could not be certain

whether he failed to include those drums in the customer order or whether the customer made


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No. 1-09-0908

changes to the order after he had already loaded it.

        On the other hand, Koziol denied Owens’ claim that he had been issued this second

written reprimand as a result of his age or race or in retaliation for his filing the instant

discrimination charge. In fact, Koziol averred that he was not even aware that Owens had filed a

discrimination charge against Exxon Mobil. Rather, Koziol told the investigator that he issued

Owens a “written warning” for his poor performance. Koziol explained that after Owens loaded

an order for a customer on January 7, 2005, that customer contacted Exxon Mobil and indicated

that it had not received any of the eight drums it had ordered. According to Koziol, after the

warehouse supervisor counted the drums in the warehouse, he discovered that the warehouse had

eight additional drums, which verified that Owens, who was the warehouse operator that day,

had failed to ship them to the customer.

        According to the Department’s investigator, Koziol’s statement was corroborated by a

letter from Koziol to Owens dated February 15, 2005, in which Koziol informed Owens that he

was being issued a “letter of reprimand” as a “disciplinary measure” for his “failure to perform

[his] job duties.” That letter states that Owens’ lack of attention to his assigned job task resulted

in “customer services failures” and “monetary loss” to Exxon Mobil. The letter specifically

notes that Owens was being reprimanded because in filling a customer order on January 7, 2005,

he failed to put eight drums of “Telura 622" in that order. The letter also notes that Owens has

previously received a record for “counseling,” on June 25, 2004, for doing a product conversion

that converted inventory to an incorrect product name, and subsequently on January 25, 2004, for

multiple loading errors on four different customer orders. The letter further states that in the past


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No. 1-09-0908

year, Koziol had attempted to coach Owens on several occasions regarding his work

performance, lack of productivity, poor loading technique, loading errors and unsafe practices.

The letter further advised Owens:

       “It is your responsibility to follow supervisor instruction, safe work practices and job

       procedures, as well as completing assignments in a timely order. Failure to meet these

       requirements will result in further disciplinary action, up to and including termination of

       your employment from [Exxon Mobil.]”

       Based on the foregoing investigation report, the Department of Human Rights

recommended that counts C, D, and E of Owens’ charge be dismissed.

       With respect to counts F, G, and H, wherein Owens alleged that on or about April 12,

2005, he was denied equal terms and conditions of employment when Koziol failed to honor his

request for tuition reimbursement for several classes, later determined to be air conditioning,

heating and ventilation classes, he had taken at a local community college, the Department’s

investigator reported the following facts. Owens stated that after he submitted his request to

Exxon Mobil for reimbursement of his tuition on January 27, 2005, he was denied that request

without any written explanation, while, he believes, other similarly situated employees, including

Wright and Wantroba, were granted similar requests. Owens admitted that he does not know for

certain whether Wright and Wantroba were in fact reimbursed.

       When questioned about this incident by the Department investigator, Koziol admitted that

Owens requested and was denied tuition reimbursement, but he stated that the reason was

nondiscriminatory. Koziol explained that Owens was denied reimbursement because his


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No. 1-09-0908

application did not meet Exxon Mobil’s tuition reimbursement policy, which requires that an

employee be preapproved for tuition reimbursement before taking the classes. According to

Koziol, Owens submitted a request for tuition reimbursement after already having taken the

classes.

          According to the Department’s investigator, Koziol’s statements were corroborated by

the receipts for those classes submitted by Owens to Exxon Mobil, which reveal that the classes

were taken over a year before Owens filed his request for reimbursement. They were also

corroborated by Exxon Mobil’s written tuition reimbursement policy. Under that policy Exxon

Mobil promised to “reimburse employees for actual cost for registration, tuition, regular

instruction fees and required textbooks,” if the employees qualified for reimbursement. To

qualify for reimbursement, the courses taken must have been “designed to maintain or improve

the employee’s job skills and increase work related competencies or capabilities,” and must have

been taken at an “accredited university, college or vocational institution for a grade.” Most

importantly, the policy mandated that “management *** approve the employee’s application for

a specific course of study and the educational institution before each enrollment.” (Emphasis

added.)

          Koziol also stated that contrary to Owens’ allegations, Wright and Wantroba were not

reimbursed tuition for classes they had taken. In fact, Koziol stated that Exxon Mobil has not

reimbursed anyone for tuition expenses at the plant in the past three years. Wright and Wantroba

corroborated Koziol’s statements. While Wright indicated that he had never requested or

received tuition reimbursement from Exxon Mobil, Wantroba stated that although he had


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No. 1-09-0908

requested reimbursement on one occasion, that reimbursement was not granted because the class

Wantroba took did not qualify for tuition reimbursement.

        Based on the aforementioned investigation, the Department of Human Rights found that

there was insufficient evidence to permit Owens to proceed with counts F, G and H of his

discrimination charge. Accordingly, the Department recommended that Owens charge be

dismissed in its entirety.

             C. The Chief Legal Counsel’s Reversal of the Department’s Dismissal

        On January 22, 2008, the chief legal counsel of the Department of Human Rights entered

an order vacating the Department’s dismissal of the charge and remanding the matter to the

Department for further investigation. With respect to counts A, B, C, D, and E of the charge, the

chief legal counsel directed the Department to determine the following: (1) Exxon Mobil’s

written discipline policy; (2) the difference between a “written counseling” and a “written

warning” and/or “written reprimand”; and (3) specifically, what Exxon Mobil’s discipline policy

states are the consequences of loading errors.

        With respect to counts F, G, and H, the chief legal counsel directed the Department to

determine: (1) the date Owens submitted his application for tuition reimbursement; (2) Exxon

Mobil’s criteria in determining whether courses can be reimbursed; (3) the exact dates Owens’

courses started and whether the list of those courses was submitted to Exxon Mobil prior to the

tuition reimbursement application process; and (4) the exact date when Owens’ request for

tuition reimbursement was denied.

                     D. The Department’s Second Investigation and Dismissal


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No. 1-09-0908

       On July 10, 2008, the Department completed an addendum investigation report, based

upon which it again dismissed all counts of Owens’ discrimination charge. In conducting its

second investigation, the Department investigator reinterviewed Owens and Koziol, as well as

reviewed several additional documents provided by the parties, including, inter alia: (1) an

excerpt from Exxon Mobil’s plant rules; (2) a letter from Exxon Mobil to the Department of

Human Rights; (3) a group of loading error investigation reports for Owens; and (4) Owens’

tuition refund application together with a group of verification for tuition payment forms.

       With respect to counts A through E, the Department’s addendum investigation report

disclosed the following evidence pertinent to the Department’s dismissal of those counts. When

reinterviewed regarding Exxon Mobil’s disciplinary policy, shift supervisor Koziol stated that

both the terms of Owens’ employment and any disciplinary actions to be taken against him are

governed by the terms of the collective bargaining agreement, as well as the Cicero plant’s

disciplinary rules.

       In a letter to the Department dated February 13, 2008, Exxon Mobil explained the

contents of the collective bargaining agreement as well as the Cicero plant’s disciplinary rules.

According to the bargaining agreement, with respect to discipline, if an “employee alleges his/her

discharge was unjust,” he or she has 10 working days to file a grievance regarding the discharge.

After the employee files a grievance, the company must inform the union within three working

days of the reason for a disciplinary suspension or a discharge and if the union feels there was no

just cause for the company’s action, the case may be processed under the grievance and

arbitration procedure. In addition, according to the collective bargaining agreement, the


                                                16
No. 1-09-0908

company and the union agree to “abide by all valid and applicable non-discrimination laws.”

Finally, under the agreement “[t]he company retains all rights of management resulting from the

ownership of the plant or pertaining to the operation of the business, except to the extent that

such rights are limited by the provisions of this Agreement.” According to Exxon Mobil, under

the collective bargaining agreement, with respect to discipline, the agreement provides only that

if the employee believes a suspension or discharge is without “just cause,” that employee can file

a grievance, and if the grievance is not resolved, the union can request arbitration. The

agreement places no other limitations on management’s right to operate the business, which

includes the right to set standards for work performance and work place behavior and to

administer discipline where employees fail to meet standards of performance and behavior.

       In this vein, according to Exxon Mobil, the Cicero Regional Distribution Center

management has issued plant disciplinary rules. Those plant rules first state that because

“personal discipline and proper standards of conduct are necessary to protect the health and

safety of all employees,” any employee “who fails to maintain at all times proper standards of

conduct or who violates any of the plant rules shall subject [himself or herself] to appropriate

disciplinary action up to and including termination of employment.” Although the plant rules

specify certain standards of conduct, such as procedures for reporting injuries or excusing

absences, and the ban on “horseplay,” sexual harassment, and the use of cell phones inside the

plant, they do not include or elaborate on the disciplinary procedure or consequences resulting

from loading errors. The plant rules do, however, end with the following statement:

       “These rules are not intended to be all inclusive, the Company may establish additional


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No. 1-09-0908

       rules, and supervisors may set up rules deemed necessary by operational requirements.

       Any employee who fails to maintain, at all times, proper standards of conduct, or who

       violates any of the [above] rules, may be subjected to disciplinary action, which may

       include termination.”

       In its letter to the Department, Exxon Mobil also responded to the chief legal counsel’s

request that Exxon Mobil explain that the difference between a “written counseling” and a

“written warning.” According to Exxon Mobil, “the difference between ‘counseling’ and

‘warning’ is a universally understood concept in labor relations,” under which the “objective of

‘counseling’ is to change an employee’s behavior,” while the “objective of ‘warning’ is

discipline.”

       According to Exxon Mobil, “counseling” or “coaching” an employee on his performance

is not a disciplinary action. A “counseling” may or may not be reported in the employee’s

personnel file. Often it consists merely of informal discussions between supervisor and

employee wherein “the employee is advised that certain behavior does not meet the employer’s

standards and that specified remedial actions are needed.” Since most employees respond

favorably to informal “counseling” and are fully capable of avoiding or correcting their errors,

“verbal counseling” is generally not considered discipline. However, should “verbal counseling”

prove ineffective, a formal counseling (i.e., “written counseling”) session may follow. When a

written memo detailing a “counseling” session is placed in an employee’s personnel file, it is

intended to provide the employee with “fair notice of the employer’s specific requirements,” as

well as to lend “formality to the session, thereby increasing its significance to the employee.”


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No. 1-09-0908

       On the other hand, according to Exxon Mobil, a “letter of reprimand” or a “written

warning,” is a “disciplinary document that informs the employee that he has failed to make the

necessary improvements in performance or behavior and that if he continues to perform

unsatisfactorily he may be subject to more severe discipline, up to and including discharge.”

       According to Exxon Mobil’s letter to the Department, on December 13, 2004, Owens was

given a “written reprimand” because he had accumulated three prior loading errors for poor

performance.3 In support of this contention, Exxon Mobil provided the Department with a copy


       3
           We note that the record is somewhat unclear as to what type of document Owens was

issued on December 13, 2004. While Owens alleged that he was given a “written reprimand,”

both shift supervisor Koziol and operations manager O’Reilly initially told the Department’s

investigator that Owens was merely issued a “written counseling.” The record also reveals that

in its initial response to the Department’s investigator Exxon Mobil explained that while Owens

was given a “written reprimand” on December 13, 2004, that reprimand was later reduced to a

“written counseling” after Owens filed a grievance with Exxon Mobil and prior to his filing of

the instant discrimination charge with the Department of Human Rights. However, during the

Department’s second investigation, in a letter to the Department, Exxon Mobil apparently

conceded that Owens was given a “written reprimand” on December 13, 2004. In that vein,

during this second investigation, shift supervisor Koziol changed his prior statement to the

Department’s investigator now admitting that Owens was in fact given a “written reprimand,”

and not a “written counseling.” Since the Department’s investigator, the chief legal counsel and

both parties on appeal seem to agree that on December 13, 2004, Owens was a “written

                                                19
No. 1-09-0908

of several documents related to these three loading error investigation reports, dated November

1, 2004, October 12, 2004, and December 7, 2004. Those documents revealed that Owens first

received “verbal counseling” for a loading error on June 25, 2004, as a result of his failure to add

a pallet onto his loading truck and as a result of his inability to fill the order in the requisite

amount of time. Owens next received “verbal counseling” in October, after his failure to fill a

customer order dated October 7, 2004. That order requested five cases of “Mobil Grease CM-S,”

but the customer received none. The reports further revealed that Owens received another

“verbal coaching session” in November as a result of his failure to properly load a customer

order dated October 29, 2004. Although in that order the customer requested 1,092 cases of

“Mobil 1 5W30,” it received only 936 of those cases.

        As a result of these three prior loading errors, which were followed by “verbal

counseling” sessions, Owens was given a “written reprimand” on December 13, 2004, after a

customer complained regarding an order he loaded on August 5, 2004. While that customer

order requested 26 cases of “Mobil 1" products, 11 pails of “Mobilux EP2,” 5 pails of “Mobil

ShC 632” and 4 pails of Vacuoline, the customer received 25 cases of “Mobil 1” products; 12

pails of “Mobilux EP2,” 4 pails of “Mobil ShC 632,” 3 pails of Vacuoline; and 1 pail of

“something without a label.”

        Based upon the aforementioned additional evidence, as well as the information gathered

during its initial investigation, the Department found that Owens had not presented substantial


reprimand,” we have no reason to deviate from this conclusion and therefore treat the “written

reprimand” as such.

                                                   20
No. 1-09-0908

evidence so as to support the allegations in counts A through E of his charge.

       With respect to counts F, G, and H, wherein Owens alleged he had been denied equal

terms and conditions of employment when Exxon Mobil refused to grant him tuition

reimbursement on the basis of his race, age and in retaliation for his filing of the instant charge,

the Department’s addendum investigation report revealed the following additional evidence.

Upon being reinterviewed, Owens stated that in 2005 he submitted his paperwork requesting to

be reimbursed for air conditioning, heating and ventilation classes that he completed in 2002,

2003, and 2004.4 Owens stated that he did not request tuition reimbursement on those classes

earlier because prior to taking them he was told that he would not be reimbursed, since those

classes were not related to his job duties as a forklift driver. Owens explained, however, that he

took the classes anyway, paying for them out of pocket because in the future, he planned to bid

on a maintenance position at the plant. That position involved work with boilers.

       Upon being reinterviewed, shift supervisor Koziol stated that Exxon Mobil does not keep

a record of denied requests for tuition reimbursement and does not have a record of the specific

date on which Owens requested reimbursement. Koziol reiterated that the reason for the denial

of Owens tuition reimbursement request was nondiscriminatory. According to Koziol, Owens

was denied reimbursement because the courses were not preapproved and because they did not

meet the criteria of the program, i.e., they were unrelated to his Owens’ job duties.


       4
           A group of verification for tuition payment forms along with an educational refund

application for approval form for Owens indicates that Owens took classes during the years 2002

through 2004, which totaled $3,352.

                                                 21
No. 1-09-0908

       Based upon the foregoing, the Department dismissed counts F, G, and H of Owens’

charge. Owens subsequently filed a request for review by the chief legal counsel of the

Department.

                       E. The Chief Legal Counsel Affirms the Dismissal

       On March 9, 2009, the chief legal counsel entered an order sustaining the dismissal of all

eight counts of Owens’ charge for lack of substantial evidence supporting claims of

discrimination. With respect to counts A and B, wherein Owens alleged that on December 13,

2004, he received a written reprimand on the basis of his race and age, the chief legal counsel

first found that such a “written reprimand” did not constitute an adverse employment action,

since Owens did and could not allege that this reprimand somehow “detrimentally affected” his

employment, such as through “loss of pay, loss of benefits, suspension, discharge etc.” Citing to

Mattern v. Eastern Kodak Co., 104 F.3d 702 (5th Cir. 1997), the chief legal counsel therefore

found that a claim of discrimination based upon the December 13, 2004, written reprimand was

not actionable under the Illinois Human Rights Act.

       The chief legal counsel next found that even if this written reprimand could somehow

constitute an adverse employment action, the investigation failed to reveal substantial evidence

of a nexus between the written reprimand and Owens’ age/and or race. Rather, according to the

chief legal counsel, the Department’s investigation established that Owens had a history of

performance problems related to loading errors prior to December 13, 2004, and that he was

issued the written reprimand as a result of this history of poor performance. In addition, the chief

legal counsel noted that contrary to Owens’ allegations the Department’s investigation disclosed


                                                22
No. 1-09-0908

that Exxon Mobil issued discipline to other employees for their poor performance. Among those

employees disciplined, the chief legal counsel noted: Hanson (white, 44), who received coaching

for loading errors; Panozzo (white, 26), who was coached and then suspended for loading errors;

Wright (white, 23), who was given a written error report in his personnel file for loading errors;

Johnson (white, 49), who was given a written warning and then suspended for product mix

errors; and Pratscher (white, 47), who was coached for not following loading procedures.

       The chief legal counsel similarly found with respect to counts C, D, and E, that Owens

had failed to provide substantial evidence that he was issued the second written reprimand on

February 15, 2005, because of his race or age or in retaliation for filing the instant charge.

Rather, the Department’s investigation revealed that on or about January 7, 2005, Owens loaded

an order, the customer reported that it did not receive the complete order and Exxon Mobil

issued Owens the written reprimand for this error. Referring to its rationale with respect to

counts A and B, the chief legal counsel reiterated that the Department’s investigation disclosed

that Exxon Mobil similarly disciplined several warehouse operators not in Owens’ protected age

and/or race classes.

       Finally, with respect to counts F, G, and H, the chief legal counsel found that the

investigation did not reveal substantial evidence that Exxon Mobil subjected Owens to unequal

terms and conditions of employment because of his age, race or in retaliation for filing the

subject charge when it refused to refund his tuition. Specifically, the chief counsel noted that the

tuition policy clearly states that management must approve the tuition reimbursement prior to

each enrollment in a class.


                                                 23
No. 1-09-0908

        Owens now appeals, contending that the chief legal counsel’s decision to sustain the

dismissal of his charge constituted an abuse of discretion.



                                            II. ANALYSIS

        We begin by noting the well-established principles regarding discrimination charges

brought under the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2004)). This

Act prohibits “unlawful discrimination,” i.e., discrimination against a person on the basis of,

inter alia, his or her race, color, religion, national origin, ancestry, age, sex, marital status, or

handicap. 775 ILCS 5/1-102 (West 2004). The Act specifically defines the following conduct as

a civil rights violation in the employment context:

                 “For any employer to refuse to hire, to segregate, or to act with respect to

        recruitment, hiring, promotion, renewal of employment, selection for training or

        apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of

        employment on the basis of unlawful discrimination ***.” 775 ILCS 5/2-102(A) (West

        2004).

The Act also defines retaliation as a civil rights violation, noting:

                 “It is a civil rights violation for a person, or for two or more persons to conspire,

        to:

                 *** Retaliate against a person because he or she has opposed that which he or she

        reasonably and in good faith believes to be unlawful discrimination, sexual harassment in

        employment or sexual harassment in higher education, discrimination based on


                                                   24
No. 1-09-0908

       citizenship status in employment, or because he or she has made a charge, filed a

       complaint, testified, assisted, or participated in an investigation, proceeding, or hearing

       under this Act[.]” 775 ILCS 5/6-101(A) (West 2004).

       When an employee files a discrimination charge against the employer pursuant to the

Illinois Human Rights Act with the Department of Human Rights, the Department must conduct

a full investigation of the allegations set forth in the charge and provide a written report of such

an investigation. 775 ILCS 5/7A-102(C)(1), (D)(1) (West 2004). After reviewing the

investigation report, the Department must determine whether there is substantial evidence that

the alleged civil rights violation has been committed. 775 ILCS 5/7A-102(D)(2) (West 2004).

Under the Act, substantial evidence is defined as evidence “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). If the

Department of Human Rights determines that there is no substantial evidence, the charge is

dismissed. 775 ILCS 5/7A-102(D)(2)(a) (West 2004). If the charge is dismissed by the

Department of Human Rights, petitioner may seek review by filing a request for review with the

chief legal counsel of the Department. 775 ILCS 5/7A-102(D)(2)(a) (West 2004).

       The chief legal counsel’s order reviewing the dismissal is a final and appealable order

(775 ILCS 5/7A-102(D)(2)(a) (West 2004)), and petitioner may seek review of the chief legal

counsel’s order in the appellate court (775 ILCS 5/8-111(A)(1) (West 2004)). The standard of

review on appeal is whether the Department’s chief legal counsel abused his discretion.

Anderson v. Chief Legal Counsel, 334 Ill. App. 3d 630, 634 (2002); see also Welch v. Hoeh, 314


                                                 25
No. 1-09-0908

Ill. App. 3d 1027, 1034 (2000) (“we may not reweigh the evidence or substitute our judgment for

that of the Department. [Citation.] Our review is limited to deciding whether the chief legal

counsel's *** decision dismissing the claim *** is ‘arbitrary and capricious or an abuse of

discretion.’ [Citation.]”). A decision is arbitrary and capricious only 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.” Allen v. Lieberman, 359 Ill. App. 3d 1170, 1177

(2005); see also Deen v. Lustig, 337 Ill. App. 3d 294, 302 (2003), quoting LaSalle National Bank

v. City Suites, Inc., 325 Ill. App. 3d 780, 786 (2001), and citing Bodine Electric of Champaign,

v. City of Champaign, 305 Ill. App. 3d 431, 435 (1999) (“[a]n abuse of discretion is found when

a decision is reached without employing conscientious judgment or when the decision is clearly

against logic”).

       Turning to the merits of the cause at bar, we initially note that on appeal Owens does not

challenge the dismissal of counts E through H of his discrimination charge. Owens only argues

that the chief legal counsel abused his discretion in finding that there was no substantial evidence

to support his claims of age and race discrimination based on the December 13, 2004, and

February15, 2005, written reprimands (counts A, B, C, and D).

       Since Owens does not argue that the chief legal counsel erred in finding that there was a

lack of substantial evidence to support the claim that he was issued the February 15, 2005

reprimand in retaliation for filing the subject charge (count E) or the claim that Exxon Mobil

subsequently refused to grant his tuition reimbursement request because of his race or age or in

retaliation for filing the subject charge (counts F, G, H), he has forfeited his right to challenge the

                                                  26
No. 1-09-0908

dismissal of counts E through H. See 210 Ill. 2d R. 341(h)(7) (“Points not argued [in the

opening appellant’s brief] are waived and shall not be raised in the reply brief, in oral argument,

or on petition for rehearing”); see also In re K.T., 361 Ill. App. 3d 187, 206 (2005) (holding that

arguments not raised in appellant’s brief are forfeited); see also City of Grantie City v. House of

Prayers, Inc., 333 Ill. App. 3d 452, 462 (2002) (holding that “a court of review is entitled to have

the issues clearly defined with pertinent authority cited,” and “is not simply a depository in which

an appealing party may dump the burden of argument and research”). Therefore, by reason of

such forfeiture, any contention that by the denial of tuition reimbursement Exxon Mobil

somehow subjected Owens to unequal terms and conditions of employment can play no further

part in this appeal.

        Accordingly, we turn to the Department’s dismissal of counts A through D of Owens’

charge. Owens first contends that the chief legal counsel erred in sustaining the Department’s

dismissal of counts A and B of his discrimination charge, wherein he alleged that shift supervisor

Koziol issued him a written warning on December 13, 2004, on the basis of his age and race.

Owens specifically argues that the chief legal counsel erred when it found that: (1) Exxon

Mobil’s written reprimand to him issued on December 13, 2004, did not constitute a cognizable

adverse employment action and (2) that Owens failed to present substantial evidence that other

similarly situated younger and white workers were treated differently. For the reasons that

follow, we disagree.

        We first note that in Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 178-79

(1989), our supreme court recognized that in evaluating charges of discriminatory practices

                                                 27
No. 1-09-0908

brought under the Illinois Human Rights Act (now see 775 ILCS 5/2-102(A) (West 2004)), the

Department of Human Rights and the Illinois appellate courts have adopted the three-part test

employed by the federal courts in actions for employment discrimination brought under title VII

of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1982)) and the Age Discrimination in

Employment Act of 1967 (AEDA) (29 U.S.C. §621 et seq. (1982)), as articulated by the United

States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d

668, 677, 93 S. Ct. 1817, 1824 (1973).

        Under this three-prong test, the petitioner must first establish by a preponderance of the

evidence a prima facie case of unlawful discrimination. Zaderaka, 131 Ill. 2d at 179-80. If a

prima facie case is established, a rebuttable presumption arises that the employer unlawfully

discriminated against the plaintiff. Zaderaka, 131 Ill. 2d at 178-79. Second, to rebut the

presumption, the employer must articulate, not prove, a legitimate, nondiscriminatory reason for

its decision. Zaderaka, 131 Ill. 2d at 179. Third, if the employer articulates such a reason, the

plaintiff must prove, again by a preponderance of the evidence, that the employer’s reason was

untrue and was a pretext for discrimination. Zaderaka, 131 Ill. 2d at 179. Under this test, the

ultimate burden of persuasion remains on the plaintiff throughout the proceedings. Zaderaka,

131 Ill. 2d at 179.

        To establish a prima facie case of employment discrimination, the petitioner must first

show that (1) he is a member of a protected class; (2) he was meeting his employer’s legitimate

business expectations; (3) he suffered an adverse employment action; and (4) the employer

treated similarly situated employees outside the class more favorably. Owens v. Department of

                                                 28
No. 1-09-0908

Human Rights, 356 Ill. App. 3d 46, 52 (2005).

       To show that he suffered an adverse employment action, an employee must establish that

the employment action was “materially adverse” and not a “ ‘ “mere inconvenience or an

alteration of job responsibilities.” ’ ” Hoffelte v. Department of Human Rights., 367 Ill. App. 3d

628, 633 (2006), quoting Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002), quoting

Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). A materially adverse employment action

is “one that significantly alters the terms and conditions of the employee’s job.” Griffin v. Potter,

356 F.3d 824, 829 (7th Cir. 2004); see also Rhodes v. Illinois Department of Transportation, 359

F.3d 498, 504 (7th Cir. 2004) (“an adverse employment action is a significant change in the

claimant’s employment status”); Johnson v. Cambridge Industries, Inc., 325 F. 3d 829, 901, 902

(7th Cir. 2003) (noting that to establish an adverse employment action an employee “must show

some quantitative or qualitative change in the terms or conditions of his employment” or some

sort of “real harm”). Adverse employment actions include things such as hiring, denial of

promotion, reassignment to a position with significantly different job responsibilities, or an

action that causes a substantial change in benefits. See Rhodes, 359 F.3d at 504; see also

Hoffelte, 367 Ill. App.3d at 633, quoting Traylor, 295 F.3d at 788 (“ ‘ “[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]”). However, “not everything that makes an employee unhappy is an actionable

adverse action. Otherwise, minor and even trivial employment actions that ‘an *** employee did


                                                  29
No. 1-09-0908

not like would form the basis of a discrimination suit.’ ” Smart v. Ball State University, 89 F.3d

473, 441 (7th Cir. 1996), quoting Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th

Cir. 1993).

       Accordingly, it has repeatedly been held that oral and written reprimands alone do not

alter an employee’s terms or conditions of employment to such an extent so as to constitute an

adverse employment action for purposes of establishing a prima facie case of employment

discrimination. See, e.g., Lloyd v. Swifty Transportation , Inc., 552 F.3d 594, 602 (7th Cir.

2009) (“written reprimands without any changes in the terms and conditions of *** employment

are not adverse employment actions”); see also Atanus v. Perry, 520 F.3d 662, 675 (7th Cir.

2008) (holding that “letter or instruction” which admonished the employee that she was not

following guidelines did not rise to the level of adverse employment action where the employee

did not show any job consequences such as termination, demotion, or change in responsibilities);

see also Oest v. Illinois Department of Corrections, 240 F.3d 605, 613 (7th Cir. 2001) (holding

that oral and written reprimands received under progressive discipline system did not constitute

adverse employment action where they did not implicate any tangible job consequences); Grube

v. Lau Industries, Inc., 257 F.3d 723, 729 (7th Cir. 2001) (“unfair reprimands or negative

performance evaluations, unaccompanied by some tangible job consequence, do not constitute

adverse employment actions”); Krause v. City of La 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” which admonished the employee to improve did not constitute adverse employment

action since employee failed to point to any immediate consequences of the reprimands, such as


                                                30
No. 1-09-0908

change in an eligibility for promotion, denial of advantageous increase in responsibilities or

similar benefits); cf., Coolidge v. Consolidated City of Indianapolis, 505 F.3d 731, 735 (7th Cir.

2007) (explaining that two reprimands followed by termination constituted an employment

action).

       In the present case, Owens nowhere alleged and the Department’s investigation nowhere

revealed any evidence suggesting that the December 13, 2004, “written reprimand” had any

significant effect on the terms or conditions of his employment, so as to constitute an adverse

employment action. In its letter to the Department, Exxon Mobil explained that a written

reprimand is a disciplinary document that merely tells an employee that he has failed to make the

necessary improvements in performance or behavior and that if he continues to perform

unsatisfactorily he may be subject to more severe discipline, up to and including discharge.

Consistent with this assertion, the December 13, 2004, written reprimand served only to warn

Owens about his unsatisfactory work performance. In this respect, in his own discrimination

charge, Owens asserted only that he was issued the reprimand for “working too slowly and for

making excessive errors.” Shift supervisor Koziol similarly stated that he issued the written

reprimand to Owens because of his poor performance. Accordingly, there was no evidence that

the written reprimand had any significant effect on the terms and conditions of Owens’ job, such

as the amount of his pay, his benefits or his work responsibilities. Therefore, Owens failed in his

burden to establish that the written reprimand constituted an adverse employment action. See,

e.g., Lloyd, 552 F.3d at 602 (holding that a loading driver who received two written reprimands

for loading gas from the wrong supplier failed to establish a prima facie case of employment


                                                31
No. 1-09-0908

discrimination since “written reprimands without any changes in the terms and conditions of his

employment are not adverse employment actions”); see also Atanus, 520 F.3d at 675 (holding

that employee had failed to establish that a “letter or instruction” which admonished her that she

was not following company guidelines constituted an adverse employment action where the

employee did not show that the letter was followed by any significant consequences to her

employment, such as termination, demotion, or change in responsibilities): see also Sweeney,

149 F.3d at 556-57 (holding that employee failed to establish that “two counseling statements”

which admonished him to improve constituted an adverse employment action since employee

failed to point to any immediate consequences of the reprimands, such as change in an eligibility

for promotion, denial of advantageous increase in responsibilities or similar benefits).

       Owens nevertheless argues on appeal that in finding that the written reprimand did not

constitute an adverse employment action, the chief legal counsel erroneously relied on Mattern v.

Eastern Kodak Co., 104 F.3d 702 (5th Cir. 1997). Owens argues that while in Mattern, the Fifth

Circuit held that only “ultimate employment decisions” are actionable adverse acts, the United

States Supreme Court invalidated that ruling in Burlington Northern & Santa Fe R.y. Co. v.

White, 548 U.S. 53, 165 L. Ed. 2d 345, 126 S. Ct. 2405 (2006). Owens, however,

misunderstands both the chief legal counsel’s decision as well as the decision in Burlington

Northern.

       First, contrary to Owens’ assertion, the chief legal counsel did not cite Mattern for the

proposition that only “ultimate employment decisions” are to be considered actionable adverse

acts for purposes of discrimination claims. Rather, the chief legal counsel relied on Mattern for

                                                32
No. 1-09-0908

the principle that to constitute an adverse employment action, the employer’s action must have

somehow “detrimentally affected” the employee. The chief legal counsel then found that the

Department’s investigation disclosed no evidence that the December 13, 2004, written reprimand

somehow detrimentally affected Owens, such as by way of “loss of pay, loss of benefits,

suspension, discharge, etc.” Based on the aforementioned, the chief legal counsel found that

Owens had failed to present a prima facie case of an actionable adverse employment action.

       Moreover, Owens’ citation to Burlington Northern is entirely misplaced. In that case, the

United States Supreme Court held that claims of retaliation are not limited to actions that affect

the employee’s terms and conditions of employment. Burlington Northern, 548 U.S. at 63-67,

165 L. Ed. 2d at 357-59, 126 S. Ct. at 2412-15. In doing so, however, the Supreme Court

expressly distinguished claims of substantive employment discrimination, such as the one here,

from claims of retaliation, explaining that substantive discrimination claims are limited to

actions that affect the employee’s terms and conditions of employment. Burlington Northern,

548 U.S. at 64-67, 165 L. Ed. 2d at 357-59, 126 S. Ct. at 2412-15. As the Court in Burlington

Northern explained:

       “The antidiscrimination provision seeks a workplace where individuals are not

       discriminated against because of their racial, ethnic, religious, or gender-based status.

       See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-801, [36 L. Ed.2d 668, 93 S.

       Ct. 18117] (1973). The antiretaliation provision seeks to secure that primary objective by

       preventing an employer from interfering (through retaliation) with an employee’s efforts

       to secure or advance enforcement of the Act’s basic guarantees. The substantive

                                                33
No. 1-09-0908

       provision seeks to prevent injury to individuals based on who they are, i.e., their status.

       The antiretaliation provision seeks to prevent harm to individuals based on what they do,

       i.e., their conduct.

                To secure the first objective, Congress did not need to prohibit anything other

       than employment-related discrimination. The substantive provision’s basic objective of

       ‘equality of employment opportunities’ and the elimination of practices that tend to bring

       about ‘stratified job environments,’ [citation] would be achieved were all

       employment-related discrimination miraculously eliminated.

                But one cannot secure the second objective by focusing only upon employer

       actions and harm that concern employment and the workplace. Were all such actions and

       harms eliminated, the antiretaliation provision’s objective would not be achieved. An

       employer can effectively retaliate against an employee by taking actions not directly

       related to his employment or by causing him harm outside the workplace.” (Emphasis

       omitted.) Burlington Northern, 548 U.S. at 63, 165 L. Ed. 2d at 356-57, 126 S. Ct. at

       2412.

Accordingly, Owens’ citation to Burlington Northern in support of his substantive discrimination

claim is without merit.

       In any event, even if we were to hold that the December 13, 2004, written reprimand was

an adverse employment action, a review of the record below reveals that contrary to Owens’

contention, the chief legal counsel did not abuse his discretion in finding that this reprimand was



                                                 34
No. 1-09-0908

not related to Owens race or age.

        In that respect, we note that the record below reveals that Exxon Mobil issued Owens the

written reprimand in accordance with Exxon Mobil’s disciplinary policies because Owens had

accumulated a history of loading errors. The Department’s investigation report revealed that

Exxon Mobil’s plant rules provide that an employee who fails to maintain proper standards of

conduct or who violates any of the plant rules will be subject to appropriate discipline up to and

including termination. The rules further state that supervisors may establish additional rules

deemed necessary by operational requirements.

        The Department’s investigation further revealed that prior to the December 13, 2004,

Owens had accumulated a history of performance problems related to loading. The

Department’s investigation disclosed that Exxon Mobil received and investigated several

complaints on orders loaded by Owens beginning in June 2004. Specifically the investigation

revealed that Owens first received “verbal counseling” for a loading error on June 25, 2004, as a

result of his failure to add a pallet onto his loading truck and as a result of his inability to fill the

order in the requisite amount of time. Owens next received a “verbal counseling” session in

October 2004, after his failure to fill a customer order dated October 7, 2004. That order

requested five cases of “Mobil Grease CM-S,” but the customer received none. Owens received

another verbal coaching session in November 2004 as a result of his failure to properly load a

customer order dated October 29, 2004. Although in that order, the customer requested 1,092

cases of “Mobil 1 5W30,” it received only 936 of those cases. Following these three loading

errors, Owens was issued the written reprimand on December 13, 2004, after an investigation

                                                   35
No. 1-09-0908

into a customer’s complaint regarding an order dated August 5, 2004, revealed that Owens had

failed to properly load that order. While that customer order requested 26 cases of “Mobil 1"

products, 11 pails of “Mobilux EP2,” 5 pails of “Mobil ShC 632" and 4 pails of Vacuoline, the

customer received 25 cases of “Mobil 1” products, 12 pails of “Mobilux EP2,” 4 pails of “Mobil

ShC 632,” 3 pails of Vacuoline, and 1 pail of “something without a label.” Accordingly, the

December 13, 2004, written reprimand was intended to warn Owens that he had failed to make

the necessary improvements in his performance and that if he continued to perform

unsatisfactorily he could be subject to more severe discipline.

       Moreover, the Department’s investigation disclosed no evidence at all that similarly

situated employees outside Owens’ protected class were not similarly disciplined for similar

conduct. In fact, Exxon Mobil’s disciplinary records for the employees at the Cicero plant

revealed that Exxon Mobil issued written reprimands, “counseling,” and even suspensions to

younger, white employees in the plant for their poor work performance. For example, on August

29, 2003, Panozzo (white, 26 years old) received a letter of reprimand for operating a forklift

truck in an unsafe manner on company property. Similarly, on August 29, 2003, Wantroba

(white, 36) was suspended for truck spillage, and on August 28, 2003, Novakowksi (white, 47)

received “counseling” for failure to wear proper attire at the plant.

       More importantly, Exxon Mobil’s loading error investigation reports disclosed that other

employees were disciplined for their poor performance in loading orders. For example, those

reports showed that in 2004 and 2005 both Hansen (white, 44 years old) and Panozzo (white, 26

years old) were “coached” for loading errors. Similarly, in 2004 both Wright (white, 23 years

                                                 36
No. 1-09-0908

old) and Pratscher (white, 47 years old) were given errors in their personnel files for loading

errors. In 2005, Pratscher was subsequently coached for not following loading procedures. In

addition, the reports reveals that both Panozzo and Johnson (white, 49 years old) received letters

of reprimand in 2003 and 2001, respectively, the first for unsafe use of a forklift and the latter for

a product mix error in loading. Both Panozzo and Johnson were also suspended for poor

performance (Johnson in 2002 for a product mix error, and Panozzo in 2001 for an error loading

the forklift). Accordingly, Owens cannot contend that other, younger and white employees

escaped discipline at the plant.

       Owens nevertheless argues that he presented sufficient evidence of race- and age-based

discrimination because the reports from Exxon Mobil reveal that while younger white employees

were disciplined, unlike him, they were not given letters of reprimand for loading errors. Owens

specifically points out that Pratscher, Hanson and Panozzo only received coaching for their

loading errors, and Wright only had an error reported in his file for a loading error. For the

reasons that follow, we find this argument without merit.

       We first note that when interviewed by the Department’s investigator, operations

manager O’Reilly explained that an employee would receive a “written counseling” followed by

a “written reprimand” or written warning only after he or she accumulated more than three

loading errors. In that respect O’Reilly stated that, contrary to Owens’ contention, Wright was

only given a loading error in his file, instead of a “counseling” or a warning, because prior to that

he had made no loading errors. O’Reilly also explained that Pratscher and Panozzo had not been

counseled or given written warnings with respect to loading errors since neither had committed

                                                 37
No. 1-09-0908

three such errors.

       More importantly, Owens himself fails to allege that anyone of the aforementioned

employees was in fact similarly situated to him. As explained above, the record demonstrates

that Owens had a history of loading errors and had received “verbal counseling” and “coaching”

for these errors before his December 13, 2004, “written reprimand.” However, in arguing that

the other employees did not receive “written reprimands,” Owens does not show or even allege

that they had a similar history concerning loading errors.

       Accordingly, under the record below, it is apparent that the chief legal counsel did not

abuse his discretion in finding that there was a lack of substantial evidence showing that Exxon

Mobil issued Owens the December 13, 2004, reprimand on the basis of his age or his race.

       Owens next contends that the chief legal counsel erred in sustaining the Department’s

dismissal of counts C and D of his discrimination charge because there was substantial evidence

that shift supervisor Koziol issued him a second “written reprimand” on February 15, 2005, on

the basis of his age and race. We disagree.

       We initially note that for those same reasons already articulated above in the context of

the December 13, 2004, “written reprimand,” Owens has failed to show that the February 15,

2004, “written reprimand” standing alone sufficiently affected the terms and conditions of his

employment so as to constitute an adverse employment action. As with the December 13, 2004,

reprimand, here again, Owens presented no evidence to show that the second written reprimand

had any significant effect on the terms and conditions of his employment, such as his pay,



                                                38
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benefits or work responsibility. See, e.g., Lloyd, 552 F.3d at 602; Atanus, 520 F.3d at 675;

Sweeney, 149 F.3d at 556-57.

        More overridingly, even if the second “written reprimand” constituted an adverse

employment action, a review of the record below reveals that the chief legal counsel did not

abuse his discretion in finding that there was no evidence that the decision to issue the reprimand

was not related to Owens’ race or age. In fact, the Department’s investigation revealed that

Owens was issued the February 15, 2005, reprimand after committing a loading error on January

7, 2005, by failing to load any of the eight drums of “Telura 622” requested by the customer and

as a result of having committed numerous loading errors in the past. The customer order dated

January 7, 2005, showed that the customer did in fact order eight drums of “Telura 622.” Shift

supervisor Koziol told the Department investigator that after receiving and investigating the

customer’s complaint, the warehouse supervisor found that its inventory was over by eight drums

and that Owens was the warehouse operator in charge of loading that order. More importantly,

Owens himself never denied making the error, but simply stated that he did not know whether he

failed to include the drum in the order, explaining that the customer could have changed the

order after he loaded it.

        In addition, the Department’s investigation revealed no evidence that similarly situated

employees outside of Owens’ protected class were not similarly disciplined for similar conduct.

As already articulated above, Exxon Mobil issued “written reprimands,” “counseling,” and

suspensions to numerous other employees for poor work performance. Accordingly, for all of

the aforementioned reasons, we find no abuse of discretion in the chief legal counsel’s dismissal

                                                39
No. 1-09-0908

of counts C and D of Owens’ discrimination charge.            On appeal, Owens next contends that

the substantial evidence standard as articulated under section 7A-102(D)(2) of the Illinois

Human Rights Act (775 ILCS 5/7A-102(D)(2) (West 2004)) violates the requirements of due

process because it is unconstitutionally vague. Although not clearly explained in his brief,

Owens appears to argue that the statute is unconstitutional on its face as well as applied to him

because under the Act’s definition of “substantial evidence,” a petitioner does not know what

level of proof is necessary to sustain a charge of discrimination, and because it gives the chief

legal counsel unbridled discretion. For the reasons that follow, we disagree.

       At the outset, we note that Owens has waived his right to raise this issue on appeal by

failing to raise it in the administrative proceedings below. In that respect, we note that “[i]n

general, issues or defenses not placed before the administrative agency will not be considered for

the first time on administrative review.” Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill.

2d 262, 278-79 (1998). Our supreme court has held that this general waiver principle applies to

constitutional challenges to a statute not raised before an administrative agency, unless the issue

being raised for the first time on appeal is a facial challenge to the statute. See Texaco-Cites

Service Pipeline Co., 182 Ill. 2d at 278-79, Carpetland U.S.A., Inc. v. Illinois Department of

Employment Security, 201 Ill. 2d 351, 396-97 (2002); cf., Arvia v. Madigan, 209 Ill. 2d 520,

527-28 (2004) (“A principal reason underlying this court’s preference that litigants assert a

constitutional challenge before the agency-notwithstanding the agency’s inability to rule on the

matter–is that it allows opposing parties a full opportunity to present evidence to refute the

constitutional challenge. Such an evidentiary record is indispensable because administrative


                                                 40
No. 1-09-0908

review is confined to the record created before the agency. [Citation.] A facial challenge to a

statute, however, presents an entirely legal question that does not require fact-finding by the

agency or application of the agency’s particular expertise”).

       With respect to a vagueness challenge to a statute, our supreme court has made clear that

a petitioner will have standing to challenge the constitutionality of a statute on its face only if the

challenged language implicates first amendment rights. See People v. Jihan, 127 Ill. 2d 379,

385-86 (1989); see also People v. Ryan, 117 Ill. 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 does not allege nor could he that the “substantial evidence” standard as articulated in

section 7A-102 of the Illinois Human Rights Act (775 ILCS 5/7A-102(D)(2) (West 2004))

implicates any first amendment concerns, he does not have standing to argue that the Act is

facially unconstitutional. See, e.g., Jihan, 127 Ill. 2d at 386 (holding that because no first

amendment issue was involved with respect to the constitutionality of the now repealed medical

practice act provisions making it a crime to practice midwifery without a license, defendant did

not have standing to argue that the statute might be vague as applied to someone else).

Accordingly, since Owens has no standing to make a facial challenge to the statute, and since he

has failed to argue before the Department that the statute is vague as applied to him, he has

waived his right altogether to address the vagueness issue on appeal. See Texaco-Cities Service

Pipeline Co., 182 Ill. 2d at 278-79; Carpetland U.S.A., Inc., 201 Ill. 2d at 396-97.

       Nevertheless, even if we were to consider the merits of Owens’ vagueness contention, for

the reasons that follow, we would find that the statute is not unconstitutionally vague, either on

                                                  41
No. 1-09-0908

its face or as applied to Owens.

        It is well established that there is a strong presumption that a statute is constitutional and

that the party challenging its validity will bear the burden of clearly establishing that the statute is

unconstitutional. People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005); see also Morgan v.

Department of Financial & Professional Regulation, 374 Ill. App. 3d 275, 292 (2007).

        A vagueness challenge is a due process challenge focusing on the specificity of the

language of a statute. East St. Louis Federation of Teachers v. East St. Louis School District,

178 Ill. 2d 399, 424-26 (1997). A statute is unconstitutionally vague and violates due process if

it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is

forbidden by the statute or if there is an absence of standards restricting the discretion of

governmental authorities who apply the law. East St. Louis Federation of Teachers, 178 Ill. 2d at

424-26. The terms of a statute cannot be “ ‘so ill-defined that their meaning may be determined

at whim rather than by objective criteria.’ ” East St. Louis Federation of Teachers, 178 Ill. 2d at

425-26, quoting People v. Burpo, 164 Ill. 2d 261, 266 (1995); see also Morgan, 374 Ill. App. 3d

at 292-93. Rather, the statute’s terms must be explicit enough to serve as a guide to those who

must comply with it. East St. Louis Federation of Teachers, 178 Ill. 2d at 425; see also Morgan,

374 Ill. App. 3d at 292-93. However, mathematical certainty in the language is not required.

East St. Louis Federation of Teachers, 178 Ill. 2d at 424-25; see also Morgan, 374 Ill. App. 3d at

292-93. Moreover, a statute will not be considered unconstitutionally vague “ ‘merely because

one could imagine hypothetical situations in which the meaning of some terms might be called

into question.’ ” Morgan, 374 Ill. App. 3d at 292, quoting Maun v. Department of Professional

                                                  42
No. 1-09-0908

Regulation, 299 Ill. App. 3d 388, 397 (1998).

       In the present case, the Act specifically defines “substantial evidence” and Owens has

failed to show that this definition was not sufficiently precise to guide the parties or the agency.

As already noted above, the Act defines “substantial evidence” as “evidence 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.” (Emphasis added.) 775 ILCS

5/7A-102(D)(2) (West 2004). Contrary to Owens’ assertion that the phrase “may be somewhat

less than a preponderance” does not permit a party filing a discrimination charge to know

whether his or her claim must be supported by more than a preponderance of the evidence or less

than a preponderance of the evidence, the term “may” has clearly been defined as connoting only

permission. See Cook County Board of Review v. Property Tax Appeal Board, 334 Ill. App. 3d

56, 59 (2002) (“use of the word ‘may’ is construed as permissive, not mandatory”); see also New

American Webster Dictionary (1972) (defining “may” as “have the ability to” or “have

permission to” or “be free to;” noting that the term is used to indicate probability and possibility).

Moreover, those Illinois cases that have addressed the substantial evidence standard have made

clear that substantial evidence does not require more than a preponderance of evidence. See, e.g.,

Stone v. Department of Human Rights, 299 Ill. App. 3d 306, 314-15 (1998) (“Substantial

evidence means more than a mere scintilla but less than a preponderance of the evidence.

[Citations.] Substantial evidence is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion”); see also Sanders v. United Parcel Service, 142 Ill. App. 3d

362, 364 (1986) (noting that the substantial evidence standard “was deliberately left vague to


                                                 43
No. 1-09-0908

permit the [Department of Human Rights] some degree of discretion in ascertaining and

evaluating the facts”). Accordingly, we find that the substantial evidence standard is not

unconstitutionally vague.

       Furthermore, Owens has specifically failed to show that the substantial evidence standard

is vague as applied to him. Vagueness is an elastic concept, and just because a term is vague to

one person, does not necessarily mean that it will be vague to another. See City of Chicago v.

Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 441-42 (2006). Accordingly, where a party raises a

vagueness challenge by arguing that a statute is vague as applied, a reviewing court must

“evaluate a statute in the context of the specific circumstances in which it was applied to the

litigant who contests its validity.” Pooh Bah Enterprises., 224 Ill. 2d at 442; see also People v.

Ryan, 117 Ill. 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]agueness challenges to statutes which do not

involve First Amendment freedoms must be examined in the light of the facts of the case at

hand’ ”). In the present case, we have already held that the mere issuance of two written

reprimands did not constitute an adverse employment action. The sparsity of evidence offered by

Owens to support the existence of an adverse employment action is therefore outside the

confines of the “substantial evidence standard” so that the term, even if otherwise unclear, would

at least have sufficient clarity to denote an amount of evidence in excess of that which was

provided by Owens. Accordingly, under these circumstances Owens cannot complain that the

Act is vague as applied to him. See Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 458, 94

S. Ct. 2547, 2562 (1974) (“[o]ne to whose conduct a statute clearly applies may not successfully

                                                 44
              No. 1-09-0908

              challenge it for vagueness”); see also Pooh Bah Enterprises, 224 Ill. 2d at 442.

                                                           III. CONCLUSION

                           For the foregoing reasons, the order of chief legal counsel of the Department of Human

              Rights dismissing Owens’ charge is affirmed.

                           Affirmed.

                           CAHILL, P.J., and McBRIDE, J., concur.

__________________________________________________________________________________________________________________________
                                       REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                                  (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following

                   form        NICK OWENS


                                                              Petitioner-Appellant,


                               v.



                               THE DEPARTMENT OF HUMAN RIGHTS, MICHAEL LIEBERMAN, Chief Legal
                               Counsel Designee of the Department of Human Rights, and EXXON MOBIL CORP.,


                                                              Defendants-Appellees.



______________________________________________________________________________________________________________
                                                     Nos. 1-09-0908
 Docket No.
                                                     Appellate Court of Illinois
 COURT                                               First District, SIXTH Division


 Opinion
 Filed                                                 August 13, 2010
                                                     (Give month, day and year)


                                                                   45
               No. 1-09-0908

______________________________________________________________________________________________________________
                             JUSTICE JOSEPH GORDON DELIVERED THE OPINION OF THE COURT:


JUSTICES                                              PRESIDING JUSTICE CAHILL, AND JUSTICE McBRIDE concur.




                               Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook                                 Petition for Review of an Order of the Chief Legal Counsel of the Department of
County; the Hon___                                    Human Rights
Judge Presiding.
__________________________________________________________________________________________________________________________




                           Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word FOR
APPELLANTS                                                      NONE if not represented.
John Doe, of Chicago


For APPELLEES, :           FOR PETITIONER-APPELLANT: Robert A. Anderson, Anderson Law Office, 10336 South Western Ave., Chicago, IL
                           60643, (773) 233-5385


Smith and Smith of
Chicago,                   FOR DEFENDANTS-APPELLEES: for the STATE: Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor
                           General and Janon E. Fabiano, Assistant Attorney General, 100 W. Randolph St. 12th Floor, Chicago IL 60601, (312)
                           814-3312; for EXXON MOBIL CORP.: Jan Michelsen, Ogletree Deakins Nash Smoak & Stewart, P.C. 111 Monument
                           Circle, Suite 4600, Indianapolis, IN 46204; (317) 916-1300
               _____________________________________________________________________________________________________________


Add attorneys for third-
party appellants and/or
appellees.




                                                                     46
