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Clark v. Human Rights Com.





Appeal from the Circuit Court of Cook County; the Hon. Kenneth C. Prince, Judge, presiding. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff Joe Clark appeals from the circuit court's affirmance of related decisions of defendant Human Rights Commission, and from the money judgment computed by the court on administrative review. For the purposes of this appeal, the defendants do not contest that plaintiff was a victim of racial discrimination in his employment by defendant Western Union Telegraph Company, and that he was entitled to reinstatement and back pay pursuant to section 8-108 of the Human Rights Act. (See Ill. Rev. Stat. 1983, ch. 68, par. 8-108.) Plaintiff challenges remedial aspects of the decisions, and contends that the circuit court erred: (1) in affirming the back pay formula devised by the Human Rights Commission; (2) in accepting Western Union's computation of is back pay and in terminating his back pay entitlement before reinstatement; (3) in refusing to order his reinstatement; and (4) in striking certain paragraphs from his complaint for administrative review. We summarize the pertinent facts as follows.

Defendant Western Union Telegraph Company hired plaintiff, a black male, on February 9, 1976. Plaintiff worked as a sales representative in the general line division of Western Union's Chicago sales office until September of that year, when the company promoted him to the position of communications representative. On September 1, 1977, Western Union again promoted plaintiff, assigning him responsibility as a major account representative in the specialized systems and services division of the Chicago sales office. Then, effective January 1, 1979, plaintiff was transferred back to the general line division as a senior communication representative.

Plaintiff initiated an administrative action, claiming that Western Union discriminated against him on the basis of his race by demoting him. Western Union's defense was that plaintiff was not demoted, but merely transferred pursuant to an area-wide reorganization. The testimony of Daniel Carrington, vice-president of sales for the midwest region, became the focal point of the factual dispute. Mr. Carrington testified that Western Union anticipated a loss of revenue in its specialized systems and services (SS&S) division during 1979, and that its strategy shifted from expanding sales to maintaining customers. The company simultaneously reduced the sales force in the SS&S division and placed service-oriented employees in the position of major account representative (MAR).

Carrington compared the employees who held the MAR position in 1978, before the reorganization, to those who held the position in 1979, after reorganization. He explained that plaintiff's transfer was not a demotion because plaintiff would have greater leverage on incentive compensation and better opportunities for promotion in the general line division, and he noted that three other MARs were transferred along with plaintiff. According to Carrington, the employees who were transferred were best suited to selling products, whereas the employees who retained or acquired the MAR title were best suited to servicing customers.

In his findings and recommendations, administrative law judge (ALJ) James Gerl specifically rejected Western Union's contention that the transfer improved plaintiff's leverage on commissions and his chances for promotion. the ALJ found that the transfer on January 1, 1979, was a demotion in form and in substance. He found that Western Union failed to articulate a legitimate, nondiscriminatory reason for the demotion, or in the alternative, that the reason advanced was pretextual. ALJ Gerl stated that Carrington's testimony was not credible, and that the demotion was based on highly subjective criteria. Although white employees were transferred along with plaintiff, the ALJ noted that in 1978, plaintiff outperformed those employees as well as the ones who retained or acquired the MAR title after plaintiff's demotion. The hearing officer concluded, by the preponderance of the evidence, that Western Union discriminated against plaintiff on the basis of race.

ALJ Gerl recommended that plaintiff be awarded back pay consisting of "a sum equal to the average gross income for major account representatives in the SS&S division, or equivalent current titles, from January 1, 1979 to date," less plaintiff's actual income for the same time period. He also recommended that plaintiff be reinstated to his former position. In a decision rendered January 11, 1983, the Human Rights Commission adopted the ALJ's finding as to racial discrimination, and approved the recommended back pay formula. The Commission later awarded attorney fees.

Plaintiff filed a motion to reconsider the back-pay formula, and requested clarification of the Commission's decision in the form of a precise figure owed to him as back pay. With respect to the formula, the Commission stated:

"The Complainant is a salesman, and was demoted. We found that the Complainant could have earned additional salary if he had not been demoted. In order to figure out how much money was lost, we looked to the average gross income of people who were in the Complainant's position. The Complainant suggests that we look to his salary before he was demoted. The problem with the Complainant's suggestion is that the Complainant's salary was based in part on the amount of sales he made. Consequently, the amount of money the Complainant would have made would have depended on cyclical swings in the economy and the Respondent's business."

The Commission declined to compute a back-pay award, noting that it was not in a position to conduct hearings or find facts. The Commission strongly suggested that the parties reach an agreement concerning the amount of back pay due, but failing such an agreement, suggested that plaintiff bring a petition for enforcement.

On November 29, 1983, plaintiff filed his complaint for administrative review in the circuit court, naming the Human Rights Commission, members of the Commission, and Western Union Telegraph Company as defendants. Plaintiff challenged the Commission's back-pay formula and the award of attorney fees. The trial court granted defendants' motion to strike a number of paragraphs of plaintiff's complaint, but held that the complaint stated a cause of action for administrative review, and addressed the merits of the case. The court affirmed the Commission's decisions as to back pay and attorney fees, and ordered Western Union to submit a statement calculating back pay and attorney fees.

Concurrent with administrative review, plaintiff sought enforcement by the Human Rights Commission of its original order. The Commission, noting that the circuit court would not enforce the order in the absence of a petition pursuant to section 8-111(B) of the Human Rights Act (see Ill. Rev. Stat. 1983, ch. 68, par. 8-111(B)), ordered Western Union to comply with the Commission's order, and authorized the Department of Human Rights to proceed against Western Union in circuit court. Western Union then filed a motion to vacate, and plaintiff responded that his action for administrative review divested the Commission of its jurisdiction. The Commission treated plaintiff's response as a withdrawal of the enforcement petition, and granted the order to vacate.

Pursuant to the circuit court's order, Western Union filed a statement setting forth its calculation of plaintiff's back pay and attorney fees. Plaintiff filed objections, and the trial court held a hearing to determine the accuracy of the amount submitted by Western Union. The court found that Western Union's calculation was accurate, and entered judgment thereon. Plaintiff requested that the court enforce the remainder of the Commission's order calling for reinstatement and other relief, but the court denied the request on grounds that plaintiff was required to file a petition for enforcement under section 8-111(B) of the Human Rights Act. See Ill. Rev. Stat. 1983, ch. 68, par. 8-111(B).

Plaintiff filed a timely notice ...

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