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Barnes v. Barbosa

OPINION FILED MAY 23, 1986.

FLETCHER BARNES, PLAINTIFF-APPELLANT,

v.

MANUEL BARBOSA, CHAIRPERSON OF THE HUMAN RIGHTS COMMISSION, ET AL., DEFENDANTS-APPELLEES.



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

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff, Fletcher Barnes, a Chicago Transit Authority (CTA) bus driver, appeals from an order of the circuit court of Cook County affirming a determination by the Human Rights Commission that there was no substantial evidence that the CTA discriminated against the plaintiff because of a mental handicap.

We reverse and remand.

We first summarize the procedural history of this case. Plaintiff, who allegedly has developed a carbon monoxide phobia, requested that the CTA place him in its 605 program. That program places disabled employees in an unsalaried administrative holding classification until they can be transferred to a job they can perform. When the CTA denied this request plaintiff filed a discrimination charge against the CTA with the Department of Human Rights. The Department dismissed the charge on the recommendation of its investigator, finding no substantial evidence to sustain the charge. Plaintiff then sought a review of this finding by the Human Rights Commission. In a two to one decision a panel of the Commission affirmed the Department's dismissal. Plaintiff then filed a complaint for administrative review with the circuit court of Cook County. That court affirmed the Commission's decision, expressly adopting the Commission's findings as the court's findings of fact. This appeal ensued.

The Department's investigator did not conduct a fact-finding conference, although authorized to do so by section 7-102(C)(3) of the Illinois Human Rights Act. (Ill. Rev. Stat. 1985, ch. 68, par. 7-102(C)(3).) His report was based on interviews with the plaintiff and a CTA attorney, along with documentary evidence. We summarize the pertinent facts available to that investigator.

Plaintiff was hired as a bus driver by the CTA in 1967. On November 15, 1979, he was overcome by carbon monoxide fumes while operating a bus. He was treated for carbon monoxide poisoning at Mt. Sinai Hospital the following day. On January 10, 1980, plaintiff received a neurological exam from a Dr. Shenker, who found him normal and fit to work. Plaintiff had been receiving disability benefits from the CTA since the poisoning incident but these were discontinued on February 7, 1980, apparently because of Dr. Shenker's examination. Plaintiff subsequently filed for workmen's compensation benefits.

On February 13, 1980, plaintiff was seen by another neurologist, Dr. Goetz, for back pain and leg numbness. He recommended continued bed rest and also referred plaintiff to a psychiatrist, Dr. David Brueckner. Dr. Brueckner reported to the CTA (which had requested plaintiff explain his absence from duty) in a letter dated April 22, 1980, that since Dr. Goetz' March 12, 1980, referral he had seen plaintiff four times in "April [sic], 1980 (18, 20, 25, 26) * * * [and] twice weekly since then." Thus Dr. Brueckner apparently saw the plaintiff at least eight times. He reported:

"My psychiatric impression is that Mr. Barnes is suffering from a carbon monoxide phobic reaction which prevents him from working on or around buses.

If you are in need of any further information, please feel free to contact me."

At a subsequent hearing before an Industrial Commission arbitrator Dr. Brueckner reiterated that it was his determination that plaintiff was not capable of functioning in or around a bus because he feared carbon monoxide poisoning and death.

In a May 12, 1980, letter to the CTA's insurance carrier Dr. Alex Arieff reported on his May 5, 1980, examination of the plaintiff. The plaintiff reported to Dr. Arieff that he had been discharged from military service in 1967 in part "for anxiety state." He had been seen as an outpatient by a Veteran's Administration psychiatrist. Plaintiff informed Dr. Arieff that on November 15, 1978, while driving a bus he became dizzy and nauseated and felt faint. Two passengers also became nauseated. He was taken home and then, when his symptoms persisted, was taken to Mt. Sinai Hospital where he was told he had carbon monoxide poisoning. A family doctor prescribed oxygen therapy for him as an outpatient at Walther Memorial Hospital.

Plaintiff told Dr. Arieff he was unable to sleep and had been placed on tranquilizers. He also stated that he was afraid of contact with a bus because of possible carbon monoxide poisoning, but he did want to work at another job.

In his letter Dr. Arieff extensively reported the results of his physical examination. He then concluded:

"* * * I find no objective evidence of any organic disease of the central or peripheral nervous system, or any evidence of outward anxiety, except by history. As far as I am concerned he could work but I do not feel that he wants to go back to bus driving. He states that in driving a bus, it is policy to keep the buses running in the garage, which would cause problems. I think this is a continuation of his previous problem of anxiety and now he has a reason, blaming it on carbon monoxide poisoning. If he ...


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