by Amanda Weiss, ’07
Frank Roy Lemery worked for Balmoral Racing Club from August of 1998 until July of 2001 as a laborer. During that time, he mowed lawns, shoveled dirt and snow, and cleaned out horse stalls. In a position that had a high turnover rate, Lemery was one those who had worked the longest. Late in 2001, Lemery injured his back while working at Balmoral and his doctor prescribed light duty. Balmoral sent him home instead. In response, on January 16,2001,Lemery filed a discrimination charge with the Department of Human Rights against Balmoral.
When Balmoral’s controller, Michael Belmonte, learned of the charge, he was livid. He called Lemery into his office and railed at him, slamming the charge onto the desk in front of him. Belmonte considered the charge an attack on the company.
Eight days before the fact-finding conference in the Department, Lemery slipped on some mud and hurt his back while weeding at Balmoral. As he was leaning against a truck in pain, Balmoral’s general manager, Keith Larsen, drove up and asked him why he wasn’t working and when his break was. A little while later Mel Stelter, the grounds and building supervisor, found Lemery and brought him to Larsen’s office.
Once the three men and Belmonte were gathered in the office, Larsen began to question Lemery about what happened that morning. He cursed, shouted, and accused Lemery of faking his injury. When Lemery responded that he had not faked his injury, Larsen called him a liar. At Lemery’s response that Larsen would not like to be called a liar, Larsen fired him for "gross insubordination."
The Employment Discrimination Project represented Lemery in the Illinois Department of Human Rights, where the department issued a finding of substantial evidence following its investigation. Pursuant to its finding, the department then filed a complaint on behalf of Lemery with the Illinois Human Rights Commission.
The Employment Discrimination Project then represented Lemery in a hearing before an administrative law judge in the Human Rights Commission. Following the hearing the judge issued a recommended liability determination finding that Lemery established by a preponderance of the evidence that he was subjected to retaliatory discharge and recommending that he be reinstated to his employment with Balmoral and awarded back pay. Additionally, the Project was awarded attorney's fees for our work on the case. The Employment Discrimination Project, on behalf of Lemery, was able to show that Balmoral’s given reason for firing Lemery was pretextual and that Lemery was in fact fired in retaliation for filing a discrimination claim against Balmoral, a protected activity. The project cited numerous instances of employee behavior far more egregious than that of which Lemery was accused where the employee was let off with a warning or a brief suspension. For example, one employee received no discipline after being charged with assault for aiming a BB gun at fellow employee. Another was given a five-day suspension for drinking on the grounds during lunch. Yet another was given only a verbal warning and single-day suspension for crashing a front-end loader into a parked car.
Fortunately, Lemery was a very credible witness. The administrative law judge accepted his version of what transpired in Larsen's office, as well as his earlier encounter with Belmonte. This led her to conclude that there was a causal relationship between his filing a discrimination suit and Balmoral’s decision to fire him, and ultimately to find unlawful retaliation.
