APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT: Rehearing denied June 11, 1974.
The appeal in this case arises from the Circuit Court of Cook County's affirmance of a decision of the Illinois Fair Employment Practices Commission. The defendants-appellees, Waters and King, who are black bricklayers, filed charges against the plaintiff alleging that it had committed an unfair employment practice by refusing to hire them because of their race. The complainants alleged that after they were denied employment white bricklayers were hired by the plaintiff. On May 17, 1972, a hearing was held before the Fair Employment Practices Commission (hereinafter F.E.P.C.) hearing examiner, Garland W. Watt, and in a recommended order he found in favor of Waters and King. The hearing examiner found that A.P. Green gave preferential hiring treatment to white bricklayers in violation of the Fair Employment Practices Act. (Ill. Rev. Stat. 1971, ch. 48, par. 853(a).) The hearing examiner also awarded Waters and King compensatory damages.
A.P. Green filed a petition for review and reversal of recommended order and decision or for an opportunity to present additional evidence and the matter was argued before the full F.E.P.C. On October 25, 1972, the Commission issued its order which affirmed the decision of the hearing examiner. A complaint for administrative review was filed by A.P. Green on November 21, 1972, and on February 5, 1973, after oral argument, the trial court sustained the order and decision of the F.E.P.C. on a finding that there was substantial evidence to support it.
The plaintiff appealed and raises three issues for review. The plaintiff contends the trial court erred in finding that there was substantial evidence to uphold the order and decision of the F.E.P.C.; that the order of the F.E.P.C. is not based on a preponderance of the evidence; and that the Commission lacks the authority to make an award of compensatory damages. We do not agree with these contentions.
A.P. Green is a mason contractor and performs the construction, maintenance and repair of industrial heat enclosure systems. The plaintiff hires bricklayers for each of its jobs and all of the hiring is done at its office in Lansing, Illinois. There is no standard form for each applicant to fill out but rather an applicant leaves his name, phone number and address with someone at the Lansing office. A hiring list of applicants is maintained but no record is kept of the date of each application nor is the list left in chronological order. It was the plaintiff's policy to do all hiring from this list but bricklayers were hired whose names did not appear on it. There was no hiring done at the job site.
The plaintiff commenced work on a project referred to as the Clark Oil job on April 14, 1971. On April 19, 1971, Waters and Donald Samuels went to the plaintiff's office in Lansing to apply for work on the Clark Oil job. Waters testified before the hearing examiner that he talked to a Mr. Peterson at the plaintiff's office and Peterson said the Clark Oil job had not started. Waters testified that he told Peterson that he wanted to leave his name and phone number. Waters did so but did not fill out any type of application form. On April 22, 1971, Waters and King went to the Clark Oil job site and talked to the foreman, Mr. Pfisterer, about obtaining employment. The defendants were told to go to the Lansing office to apply. Waters and King returned to the Lansing office and spoke with Peterson and their names were taken by a girl in the office. Waters stated he was never called by the plaintiff for employment at the Clark Oil job.
Mr. King's testimony was substantially similar to and corroborated that of Waters. King also stated that he was never called by the plaintiff for employment at the Clark Oil job. It should be noted that both Waters and King were qualified bricklayers and had experience in all types of brick work.
The next witness called on behalf of Waters and King was Stanford Smith who was the director of field activities for the F.E.P.C. and who investigated this case. Smith investigated the complaints of Waters and King in the second week of July, 1971. He had a meeting with the legal counsel for the plaintiff and with Pfisterer, Peterson and Corrado. Smith stated he examined the hiring list of the plaintiff and observed the names of Waters and King on it. *fn1 According to Smith, Peterson stated at that time the plaintiff had 66 bricklayers working for it and one was black. Smith testified that after the defendants applied, seven bricklayers were hired and they were white. He did state one black bricklayer was hired for the Clark Oil job and his name was Pearson. This information was obtained through a conversation with Mr. Corrado, the general field superintendent for the plaintiff. The attorney for Waters and King asked Smith: "During the course of your conversation with Mr. Corrado, did you learn of any bricklayers or instances involving the hiring of bricklayers where those bricklayers had not applied prior to Waters and King." Smith replied: "No not really." The explanation Smith received as to why there was only one black on the plaintiff's hiring list was that its office was too far out and located where blacks did not come to secure employment. *fn2
The next witness called on behalf of Waters and King was Willie G. Pearson, a black bricklayer, who stated he was hired for the Clark Oil job on April 13, 1971, and that he began working at the job site on April 26. Mr. Pearson testified that Corrado called him and asked him if he was busy and if he wanted to work at Clark Oil. Pearson told Corrado he did want to go to work at Clark Oil. The hearing examiner asked Pearson if any blacks applied for jobs after he began working at Clark Oil. Pearson replied that three blacks came to the job site. He identified them as Waters, King and John Gibson. The hearing examiner asked: "Do you recall whether or not any persons were employed on the Clark Oil site as bricklayers after these three Blacks applied?" Mr. Pearson replied: "Yes. To my knowledge there were four." It was also established that none of them were black.
James Corrado testified for A.P. Green and stated that he was the general field superintendent and that part of his duties was to secure manpower for the various jobs the company performed. He stated that applicants either appear in person or telephone and that for the Clark Oil job he secured approximately seven bricklayers plus a bricklayer superintendent. Corrado testified that after Waters and King applied, a foreman and two bricklayers were hired but that these men had been promised employment prior to the application of Waters and King. Corrado stated that between 1 week and 4 weeks before the Clark Oil job commenced he made promises of employment to each of these men. As to one of the bricklayers, Corrado stated he mentioned to him that he was doing the Clark Oil job and gave him an approximate starting date. The testimony of Corrado was not corroborated by any of the white bricklayers. In response to a question of the hearing examiner, Corrado testified that the hiring procedure of A.P. Green was "a little bit on the unorganized side." He also stated a great deal was left to his discretion.
Corrado testified that 70 percent of the jobs A.P. Green did, required only one bricklayer and that another 20 to 25 percent only required two bricklayers. Therefore, 90 percent of the jobs A.P. Green did required one or two bricklayers but Pearson, the only black regularly employed by A.P. Green, was sent to only one of these jobs. Corrado stated that he was not directed either orally or in writing to give preference to white bricklayers over black bricklayers. He denied that Waters and King were not employed because they were black.
• 1, 2 The Illinois Fair Employment Practices Act requires that an unfair employment practice be proved by a preponderance of the evidence. (Ill. Rev. Stat. 1971, ch. 48, par. 858(f).) The Supreme Court of Illinois in Fenyes v. State Employees' Retirement System, 17 Ill.2d 106, 111-112, 160 N.E.2d 810, 813 (1959), delineated the function of a reviewing court in a case arising under the Administrative Review Act. The court stated:
"Under the Administrative Review Act, the findings of the administrative agency on questions of fact are prima facie correct. They may be reviewed to determine if they are supported by the evidence, but they can be set aside only if against the manifest weight of the evidence. Kellogg Switchboard and Supply Corp. v. Department of Revenue, 14 Ill.2d 434; Logan v. Civil Service Com. 3 Ill.2d 81; Drezner v. Civil Service Com. 398 Ill. 219.
The judicial function of the reviewing court in such case is comparable to that presented where such court is called upon to determine an issue at law as to whether there is competent evidence to support the judgment of the lower court, and when there is evidence to support the findings of the administrative agency, its decision will be ...