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10/30/87 Carver Lumber Company, v. the Human Rights

October 30, 1987





515 N.E.2d 417, 162 Ill. App. 3d 419, 113 Ill. Dec. 608 1987.IL.1618

Petition for review of order of Human Rights Commission.


JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.


On September 13, 1982, respondent, James Offutt (Offutt), filed a complaint with respondent, the Illinois Human Rights Commission (Commission), alleging that he had been laid off and not recalled by his employer, Carver Lumber Company, because he was black and because he had a physical handicap. After a hearing, the Commission filed a complaint with itself against the employer on December 23, 1983, charging the employer with refusing to recall Offutt because of a "perceived handicap, back condition" in violation of section 2-102of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1983, ch. 68, par. 2-102). Hearings were held before administrative law Judge Sandra Y. Jones, who left office before making a decision. ALJ Kenneth N. Parker, Jr., then reviewed the record and Judge Jones' notes. On July 17, 1985, Judge Parker entered an order (1) finding that discrimination based upon a perceived handicap had not been proved, and (2) recommending that the case be dismissed.

On June 2, 1986, the Commission entered a non-final order reversing the recommended order and decision of the ALJ as contrary to the manifest weight of the evidence. The Commission remanded the case to the administrative law section of the Commission (1) to determine damages and attorney fees and costs incurred by Offutt as a result of the discrimination, and (2) to recommend any other finding or determination necessary to grant complete relief. On September 7, 1986, Judge Parker entered an order recommending that Offutt be awarded (1) back pay in the sum of $70,226.04; (2) holiday pay of $3,088.65; (3) pension contributions of $5,616; and (4) attorney fees and costs of $6,448 and $314.70, respectively. The order recommended that the employer be required to take certain steps to curb subsequent discrimination. On January 9, 1987, the Commission entered an order approving those recommendations and finally disposing of the case.

The employer has appealed directly to this court. (Ill. Rev. Stat. 1985, ch. 68, par. 8-111(3).) The employer contends: (1) Federal labor law has preempted action by the Commission in this case; and (2) in any event, under the evidence it was entitled as a matter of law to a decision in its favor on the merits. The questions presented are quite complicated but we determine that by deciding the case as it did, the Commission entered into an area from which it was precluded. We reverse for that reason.

The evidence before the ALJ showed the following facts to be undisputed: (1) Offutt was employed by the employer as a driver-warehouseman on August 18, 1975; (2) Offutt, along with all other hourly paid employees in this classification, was represented for purposes of collective-bargaining by a Teamster's union which had a succession of collective-bargaining agreements between it and the employer covering, inter alia, the wages, hours, and terms and conditions of employment of hourly paid employees such as Offutt; (3) the employer operates several facilities engaged in the lumber-and-building-materials trade, and for the purposes of these proceedings, its War Memorial Drive and Pioneer Park facilities in Peoria are relevant, both of which are covered by the same collective-bargaining agreement; (4) during his employment with his employer, Offutt worked at and from both the War Memorial Drive and Pioneer Park facilities, but he was primarily stationed at the War Memorial Drive facility.

Evidence also showed the following sequence of events to have transpired. In early 1980, the employer suffered a decline in business and determined to lay off some hourly paid employees. Offutt was then among those laid off. Seniority lists were displayed in locations frequently visited by those employees, and these showed Offutt to have seniority based on an initial hiring date of August 18, 1975. The collective-bargaining agreement then in force stated in part:

"In the event of a layoff, an employee so laid off shall be given one week's notice of recall mailed to his last known address. In the event the employee fails to make himself available for work at the end of the said one week, he shall lose all seniority rights under this agreement."

In March 1980, the employer determined that conditions had improved sufficiently to call back some workers. A dispatcher for the employer then telephoned Offutt and informed him that he had been called back to work at the Pioneer Park facility. Offutt admitted that he was employed elsewhere at the time and refused to return to work at Pioneer Park at that time. Offutt also admitted that, at that time, he realized that his refusal to return to work would result in his name's being placed at the bottom of the seniority list. The dispatcher testified that upon Offutt's refusal to return to work, the dispatcher drew a circle around Offutt's name on the seniority list and placed an arrow by it pointing to the bottom of the list. Several persons who had previously had less seniority than Offutt were then recalled. In June 1980, at which time Offutt's name was at the bottom of the seniority list, he was recalled and returned to work.

Offutt then worked until January 1981, when he suffered a back injury causing him to be off work for 35 weeks, which included a medical leave from October 23, 1981, until January 4, 1982. During the period beginning in January 1981, Offutt had done some light-duty work for the employer. On January 4, 1982, Offutt's physician informed him he was physically able to return to work. Offutt was not recalled to work thereafter. In May 1982, the employer recalled several workers whose seniority began after Offutt's original hiring in 1975, but prior to March 1980.

The most disputed aspect of the evidence arose from testimony by Offutt that on May 1, 1982, he had a conversation with Richard Carver, the employer's president, concerning the employer's decision not to recall him at that time. According to Offutt, Carver stated that he knew that the decision not to recall Offutt had been made by Paul Howe, who handled matters of personnel for the employer. Offutt said that Carver indicated the decision was wrong, but he was going to abide by the decision so that Offutt would not risk reinjuring his back. Carver denied ever having told Offutt that he would not have further work because of his back condition but admitted that, at a time when Offutt was having trouble with his back, he suggested to Offutt that Offutt would be better off if he did not continue working in an area where he might reinjure his back. ...

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