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05/06/88 Randall Milan, v. the Human Rights

May 6, 1988





523 N.E.2d 1155, 169 Ill. App. 3d 979, 120 Ill. Dec. 244 1988.IL.695

Petition for review of order of Human Rights Commission.


JUSTICE MURRAY delivered the opinion of the court. SULLIVAN and PINCHAM, JJ., concur.


This matter comes before the court on direct appeal from the Human Rights Commission pursuant to section 8-111 of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 8-111(3)). Appellant Randall Milan appeals from a decision and order of the Illinois Human Rights Commission (Commission) that reversed the administrative law Judge's (ALJ's) determination that the City of Evanston (city) had discriminated against Milan on the basis of his physical handicap. The following facts are pertinent to this review.

Milan, a deaf-mute, worked as a custodian for the city's water department for approximately 16 years. It is undisputed that his handicap did not affect his work. He communicates by signing, gesturing, some lipreading, and by writing notes, the coherence of which is significantly limited. After taking his vacation in early November 1982, Milan requested 10 days of vacation time around Thanksgiving. Telling Milan that he had only 12 hours of vacation time left, his supervisor of six years, Richard Figurelli, allowed Milan to leave work at midday on Tuesday, November 23, to visit his daughter and grandchild in Lynch, Kentucky. Several times, Figurelli expressly informed Milan by written notes that he must return to work on Monday, November 29 or risk losing his job.

Milan had $400 or $500 with him when he left for Kentucky. He subsequently stopped in Indiana to pay a car repair bill incurred in early November, arriving in Lynch on November 23. Before leaving Lynch for the return trip on Sunday, November 28, Milan borrowed $60 from a friend, Zelph Wallen, for trip expenses. He also asked Wallen to call his employers and tell them that Milan would be late returning to work due to money problems. A city employee did receive a message from Wallen on the 28th but was told that Milan's return would be delayed due to bad weather. After this call, other city employees were instructed not to accept any collect telephone calls. Milan arrived in Lexington, Kentucky, on the evening of the 28th and was stranded there until December 11 due to car breakdown and money problems.

Milan eventually sought help from the Salvation Army in Lexington. Laurel Martin of the Salvation Army called Figurelli on December 1, telling him of Milan's money and car problems and requested the city to send Milan's paycheck to him in care of the Salvation Army. The city sent the check by registered mail the next day and Milan received it on December 8. Martin refused to make several other calls to the city as requested by Milan because of the expense. The record also reveals that Milan sent five postcards from Lexington to the city's water department, at least one of which was received before Milan's return to Evanston. None of the cards mentioned his difficulties.

Milan's car was temporarily repaired on December 2 and immediately developed other problems. During the time the second repairs were being made at a different service station, a secretary in a nearby office building attempted several times to call the city on Milan's behalf but the city refused to accept the collect calls. Figurelli denies any incoming collect calls on those days and stated that he would have taken them since he was anticipating communication from Milan regarding his absence. Also, at this time, Milan had located a meeting place for deaf persons. On Saturday evening, December 11, Milan attended a basketball game in Lexington and left for Evanston immediately afterwards. He arrived in Evanston Sunday, December 12, and was fired when he returned to work on Monday.

The reason given for Milan's discharge was that he had violated the city's work abandonment rule. That rule provides that a person is considered to have abandoned his job after an unexcused absence of three consecutive days without contact with his supervisor and provides for automatic termination. After his termination, Milan met with the city's personnel director and tried to explain his situation in a series of notes. Milan stated in the notes that he was aware of the work rules. This meeting resulted in no change regarding Milan's automatic termination. He then filed a grievance action with his union which resulted in his discharge being upheld.

After a hearing on Milan's complaint before the Human Rights Commission, the ALJ determined that Milan had demonstrated a prima facie case of discrimination since the city was aware of his communication limitations and also knew that he was stranded with car and money problems. The ALJ also found that, in light of this knowledge, the city failed to reasonably accommodate Milan's handicap in applying its automatic abandonment rule. Since the city's defense that it applied a valid rule in a consistent manner did not show a reasonable accommodation, the ALJ concluded that it did not meet its burden of articulating a legitimate, nondiscriminatory reason for Milan's discharge.

The Human Rights Commission rejected the ALJ's legal Conclusions and accepted the factual findings to the extent they were not inconsistent with the Commission's decision. The Commission found that the ALJ's focus on the "relatedness" between Milan's handicap and his discharge exceeded the parameters of the Human Rights Act, and that attention should have been directed as to whether the city's rule had a disparate impact on members of a particular protected group. Such a discrimination claim must be based on the effect of the call-in policy on a specific class ; a claim based on difficulties one employee had with the rule is insufficient to show discrimination. The Commission additionally determined that Milan's problems were the result of his own actions because he took his trip in an old car subject to breakdown and because he took insufficient funds to complete his trip. Based on these facts, the Commission concluded that Milan failed to establish a prima facie case of discrimination and further noted that discipline for violation of work rules is permissible even though the violation occurred because of a handicap. (See Sarna, and South Suburban Hospital (1984), 13 Ill. HRC Rep. 171.) Accommodation is only required if the employee cannot do the job in issue without some help, and Milan's predicament was, for the most part, unrelated to his handicap.

The Commission further found that, even if there were a "relation," Milan did not show the necessity of accommodation regarding the call-in policy because of the postcards sent to his employer. The postcard messages were consistent with those of a vacationer. Thus, Milan did not avail himself of the opportunity to inform his employer of his difficulties. Moreover, Milan did not initiate the request for accommodation, as is generally required pursuant to Commission rules. (56 Ill. Adm. Code 2500.40(c) (1985).) The Commission concluded that Milan showed no proof that he was subjected to intentional discrimination under the disparate treatment theory; neither was discrimination under the disparate impact theory shown. And, ...

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