APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
516 N.E.2d 825, 162 Ill. App. 3d 806, 114 Ill. Dec. 670 1987.IL.1713
Petition for review of order of Human Rights Commission.
JUSTICE WELCH delivered the opinion of the court. HARRISON, J., concurs. PRESIDING JUSTICE KARNS, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH
This is a direct appeal from an order of the Illinois Human Rights Commission affirming the finding of an administrative law Judge in favor of Tony Mason and against Southeastern Illinois Electric Cooperative based on a finding that SIEC unlawfully discharged Mason on the basis of his race. SIEC appealed to this court.
The evidence before the administrative law Judge was as follows: SIEC employed Mason for over six years on SIEC line crews. The hazards of the work required trust and cooperation among the line crew members. The terms of a collective bargaining agreement between SIEC and Local 702 of the International Brotherhood of Electrical Workers (the union) controlled assignment of work. Mason was a member of the union. Plaintiff first worked with the SIEC line crew based at SIEC's Benton headquarters, then with the line crew based at Eldorado and finally with the line crew based at Marion. The other members of the Marion line crew were Don Fisher and foreman Terry Moore. Roy Wise was their supervisor. Wise hired Mason, and Wise had authority to fire. Moore did not. Mason was the only nonwhite employee of SIEC at all times during his employment.
Mason testified on his first day with the Marion crew he was shocked at the sight of Fisher and Moore wearing white paper hoods and carrying crosses imitative of the Ku Klux Klan. Plaintiff testified he did not complain because he was afraid of losing his job. According to Mason, Fisher kiddingly mentioned the matter to Wise the next time Wise was present, and the crosses stayed on the premises for a "long" time. Mason testified the foreman of the Benton crew told him he was hired because the company needed a minority employee to apply for a loan, and "that's when I got my nickname as their 'million dollar nigger.'" Mason testified he did not like the nickname but no one was disciplined over it and he did not complain. According to Mason, on one occasion Wise took him aside and told him the other employees wouldn't joke with him if they did not like him. Asked whether Wise's comment made him feel better, Mason testified: "No, to me it was just covering up."
In late 1982, while Mason was recuperating from back surgery following an on-the-job injury, he began an affair with Moore's wife. Moore discovered the relationship. Moore's wife phoned Fisher, told him Moore was very upset and explained why, and warned that Moore carried a gun. Fisher relayed the message to Wise. The following day, January 25, 1983, Wise confronted Moore, who admitted his knowledge of the affair. At Wise's suggestion the three men discussed the situation in Wise's automobile. Mason described what happened there as follows: Moore, "very disturbed," said, "It's down the road for you, boy, you can no longer work here, your little secret love affair with my wife is all over." Wise said, "Let's handle this like men now, let's try to solve this." Mason admitted the affair. Wise said, "We definitely have a problem here, I see no way of you continuing to work on this crew, we have a problem that cannot be solved." There was no Discussion of Mason's transferring to another crew; Mason, thinking he was fired, said he would leave. He denied using the word "quit." Moore told Wise he carried a gun and thought Mason did, too; Mason said he had no gun; Moore said he would "put the gun up." Moore said he would not work that day; Wise told him to take as many days off as he liked. Before Moore left the vehicle, the three agreed to tell the rest of the men Mason's previous back injury made him unable to work and that Mason thought it best to leave.
Mason testified that while he was with the Marion crew he saw one SIEC serviceman with a woman not his wife on more than one occasion on company time. According to Mason, there were occasions when the serviceman said he could not perform certain services because he had to see "Red," and on one occasion when the serviceman missed a safety meeting, an employee stated in Wise's presence that the serviceman was with "Red."
Wise testified he became aware of the hood-and-cross incident "quite some time afterward" and knew employees called Mason the "million dollar nigger." According to Wise, Moore was on sick leave for about 10 days after January 25, 1983. Wise testified he once asked Mason if the "joking" bothered him, and that Mason never complained to him about racially motivated mistreatment. Wise testified he told "the other employees" in a general way that he did not like racial innuendo. Wise testified that on January 25, 1983, in his car, he did not hear Moore say, "Boy, you will have to leave, it's down the road for you." Wise testified he said, "Fellas, we have a very serious situation here, and for the safety of the crew and for everyone involved, something needs to be resolved," and Mason replied, "Well, I'll just leave and you won't have to worry about me anymore." Wise testified he then asked Mason, "Is that what you wish to do, Tony?" and Mason replied, "That's what I'll have to do."
Mason filed a charge of racial discrimination with the Illinois Department of Human Rights on June 14, 1983. On July 22 Mason filed a complaint in the Federal district court for the Southern District of Illinois against SIEC and the union.
Among the findings and Conclusions of the administrative law Judge in his November 22, 1985, recommended order in the instant case were the following: He believed Mason's account of what happened in Wise's vehicle rather than Wise's; Wise brought Mason and Moore together on January 25, 1983, knowing Moore had a gun; Mason "understandably" believed Wise's failure to contradict Moore's statements and Wise's subsequent statements indicated Mason was fired; either Moore or Mason had to leave the crew, and the decision it would be Mason was in some degree based on race; this Conclusion was supported by the incidents of racism on the job, which Wise tolerated and did not question Mason about until long afterward; and SIEC's asserted reasons for firing Mason were pretexts: Wise discharged Mason even though Moore was more dangerous under the circumstances, indicating Wise did not discharge Mason for safety reasons; and Wise did not ...