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Pepsi-cola v. Ill. Human Rights Com.





Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.


Robert Buckhalter (Buckhalter) filed a charge of race discrimination before the previous Illinois Fair Employment Practices Commission (FEPA) against his former employer, Pepsi-Cola General Bottlers, Inc. (Pepsi-Cola). The charges were tried before an administrative law judge of the Illinois Human Rights Commission (IHRC), the successor agency of the FEPC. The judge found the evidence insufficient to sustain the charge and recommended a ruling in favor of Pepsi-Cola. This determination was adopted and affirmed by the IHRC. (In re Buckhalter (1982), 7 Ill. H.R.C. Rep. 96.) Buckhalter took no appeal from that decision to the Cook County circuit court.

Upon the rendition of its decision by the IHRC, Pepsi-Cola filed before the IHRC a motion to modify the Commission order. In that pleading, Pepsi-Cola sought attorney fees and costs for its defense of Buckhalter's charges before both the administrative law judge and the IHRC. The Commission denied Pepsi-Cola's motion for modification as well as its subsequent motion for rehearing of such denial.

Thereafter Pepsi-Cola filed suit in the Cook County circuit court to seek review of the IHRC's orders pursuant to the Administrative Review Act. (Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.) The circuit court denied Pepsi-Cola's request for administrative review and found that the IHRC's denial of Pepsi-Cola's motions was an exercise of appropriate discretion by the IHRC. Pepsi-Cola appeals from the trial court's ruling.

The parties raise the following questions for our review:

1. Whether the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 1-101 et seq.) invests in the IHRC the authority to modify its own previous order in order to provide for an award of attorney fees not included in the original order;

2. Whether Pepsi-Cola was entitled to attorney fees here, on the ground that Buckhalter's prosecution of his discrimination charge before the administrative law judge and the IHRC was frivolous, unreasonable, or without foundation;

3. Whether Pepsi-Cola waived its claim for attorney fees on the ground that it failed to raise the issue properly before the administrative law judge and the IHRC.

We affirm.


The salient facts of record are as follows. Buckhalter's charge of race discrimination against Pepsi-Cola, filed on August 2, 1978, alleged in substance that Pepsi-Cola's termination of Buckhalter's employment with the Company amounted to racial discrimination. Buckhalter claimed that his employment had been terminated unreasonably and without justification, and further that other employees who had been properly found to be engaged in conduct which Pepsi-Cola prohibited had not been discharged, although Buckhalter had.

Specifically, Buckhalter maintained that his discharge on the ground of possession of alcoholic beverages while on company time and property constituted disparate treatment. He alleged that Pepsi-Cola had reversed its decision to discharge a white employee charged with possession of marijuana on company time and property, and that the alleged reasons for this reversal applied equally to the circumstances surrounding his own discharge for violation of the same rule. Buckhalter thus contended that the Company acted differently in his case on the ground of race.

In addition to his challenge of Pepsi-Cola's failure to reverse his discharge, Buckhalter also maintained that his employer lacked sufficient basis to impose the penalty of discharge to begin with. It was his position that his discharge resulted from an indiscriminate imposition of discipline on black employees.

Buckhalter contended that the discharge of the white employee was reversed because there was uncertainty as to whether he had actually possessed marijuana, for which he had been discharged. Pepsi-Cola contended that no such reasonable uncertainty existed in the case of Buckhalter. It also cited union pressure to reverse the decision to discharge the white employee as an additional nondiscriminatory reason for its action. Pepsi-Cola also cited in addition its refusal to reverse the ...

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