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07/01/88 Fred Zaderaka, v. the Human Rights

July 1, 1988

FRED ZADERAKA, PETITIONER-APPELLANT

v.

THE HUMAN RIGHTS COMMISSION ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

525 N.E.2d 1201, 171 Ill. App. 3d 626, 121 Ill. Dec. 894 1988.IL.1057

Petition for review of order of Illinois Human Rights Commission.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, J., concurs. JUSTICE BARRY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

Fred Zaderaka appeals from an order of the Illinois Human Rights Commission which affirmed the recommended order and decision of the administrative law Judge and dismissed his complaint against Freeman United Coal Mining Company with prejudice. The administrative law Judge found that Zaderaka failed to prove his claim of age discrimination by a preponderance of the evidence. We reverse and remand for further proceedings.

On November 16, 1981, 60-year-old Fred Zaderaka filed an application for employment as a welder with Freeman United Coal Mining Company (Freeman) at its new mine in Industry, Illinois. Of the 52 available hourly positions, only four were welder's positions. Freeman received approximately 2,500 applications for the 52 positions. Although Zaderaka had extensive employment experience as a welder and had previously been employed as a welder at another of Freeman's mines, he was not offered a welder's position at the Industry mine. The four individuals who were hired as welders at the new mine were younger than Zaderaka. Zaderaka filed a charge of discrimination against Freeman pursuant to the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.), alleging he was not hired because of his age. The Illinois Department of Human Rights filed a complaint charging age discrimination, and a public hearing on the complaint was held before an administrative law Judge .

At the hearing, Warren Hattendorf, Freeman's director of employee relations, testified that in early December he began reviewing the employment applications. He first separated the applications into four groups: company personnel, skilled, unskilled, and female and minorities. Hattendorf then reviewed the applications for unskilled positions in greater detail and transferred the applications of certain individuals to the skilled group because the applicants had employment experience which qualified them for skilled positions. At this point in the process, there were 500 applicants for 41 skilled positions. Approximately half of these applicants were then eliminated because of their prior work experience. Hattendorf stated that he sorted the remaining applications into categories corresponding to the specific position to be filled. He testified that there was a large number of applicants for certain positions, such as welder and tractor operator, and that he eliminated from consideration applicants for such positions who were employed in full-time, permanent positions and making a decent wage. He indicated Freeman attempted to hire unemployed individuals at the mine because there were many skilled workers in general, and miners in particular, who were unemployed. Through reference checking, Hattendorf reduced the number of applicants for skilled jobs to 60 or 70. These candidates were interviewed by members of Freeman's management; applicants for welding and mechanics positions were also given tests to assess their ability. The applicants who were not eliminated during the interview or testing stages were offered employment with Freeman.

Hattendorf testified that Zaderaka was eliminated at the "second cut" and was not offered employment at the Industry mine because his application showed he was employed at Caterpillar Tractor Company and making a decent, liveable wage. Twenty-two-year-old Brad Batterton was hired as a welder at the Industry mine. Batterton's application reveals that when he submitted his application, he was employed as a welder by one of the contractors constructing the Industry mine and that he was making $3.10 per hour more than was Zaderaka. Batterton had less than two years of welding experience and the experience was not in mining. Hattendorf testified that he was hired because members of Freeman's management had observed his work and because he would be laid off when the contractor's work was completed and the mine opened. The three other individuals hired as welders were unemployed when they submitted their applications.

In cases involving charges of discrimination filed pursuant to the Illinois Human Rights Act, the complainant must first establish by a preponderance of the evidence a prima facie case of discrimination. The respondent then assumes the burden of articulating a legitimate and nondiscriminatory reason for its actions. Once a legitimate, nondiscriminatory reason is advanced, the complainant then has the burden of proving that the reason advanced is a pretext for discrimination. This three-step analysis was espoused by the Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, and is routinely applied by Illinois courts and administrative agencies considering discrimination charges. The ALJ found that Zaderaka met the initial burden by showing that he was in the protected age group (40 to 69 years), applied for an open position for which he was qualified, and was not hired while younger persons with similar and lesser qualifications were hired. The ALJ also determined that Freeman articulated a legitimate, nondiscriminatory reason for not hiring Zaderaka, the reason being that Freeman excluded employed applicants from consideration for positions with a large number of applicants. Finally, the ALJ found that the reason articulated by Freeman was not pretext and that Zaderaka failed to prove his case by a preponderance of the evidence. A Human Rights Commission (Commission) panel agreed with the ALJ and dismissed Zaderaka's complaint with prejudice. Zaderaka then applied for judicial review of the Commission's order. Ill. Rev. Stat. 1985, ch. 68, par. 8-111.

At issue on appeal is the Commission's decision on the finding of pretext, for Zaderaka contends that the reason articulated by Freeman for its hiring decision was a pretext for age discrimination. The Commission's Conclusion as to whether pretext has been proven is a finding of fact which may not be overturned unless it is against the manifest weight of the evidence. (Board of Education v. Human Rights Comm'n (1985), 135 Ill. App. 3d 206.) Based on a thorough review of the record, we have determined that Freeman's articulated reason for not hiring Zaderaka was pretextual and that the Commission's finding of no pretext is against the manifest weight of the evidence.

Freeman's representative repeatedly stated that Zaderaka was not hired solely because when he applied for the job, he was already employed and earning a decent wage. That Freeman hired 22-year-old Brad Batterton, a less experienced welder who was employed and earning a higher wage than Zaderaka when he applied for a welding position, makes it obvious that Freeman's explanation for its hiring decision is unworthy of belief. Freeman's assertion that it did not exclude Batterton from consideration because he was soon-to-be-unemployed is also unpersuasive for, as Hattendorf testified, many applicants for the welding positions who had previous mining experience were unemployed when they submitted their applications, so there was no need to carve out an exception in order to reach Batterton. In the abstract, Freeman's articulated decision to exclude employed applicants and hire the unemployed where possible is understandable and has the appearance of legitimacy. In reality, however, the alleged selection criterion was not applied to all equally, and as a result, Zaderaka was apparently excluded from consideration because of his employment and Batterton was not. Ultimately, 22-year-old Batterton was hired, though by Freeman's articulated reason, he, too, ought to have been excluded from consideration. Accordingly, the evidence strongly supports Zaderaka's contention that Freeman's articulated reason for its employment decision is unworthy of belief and a pretext for discrimination and that the Commission's decision is against the manifest weight of the evidence. We note, furthermore, that viewing the circumstances and evidence as a whole, it is reasonable to assume that during the screening stage Freeman did not actually eliminate applicants because they were employed and making a decent wage, but that this criterion was concocted after the fact in an attempt to justify the challenged hiring decisions.

Although Zaderaka did not present evidence regarding Freeman's hiring decisions in other job classifications, in our review of the record, we noted the following. When explaining that an applicant's employed status excluded him from consideration, Hattendorf testified that employment was an eliminating factor only for positions which had an abundance of applications, "such as tractor operators and welders." Freeman's exhibit listing the individuals hired at the Industry mine and their employment status at the time of application shows that of the five tractor operators hired, only one was unemployed. This evidence provides further support for our Conclusion that Freeman's stated reason for not hiring Zaderaka was unworthy of belief and a pretext for discrimination.

The record, considered as a whole, provides ample support for a finding of pretext. The Commission's findings and decision are therefore against the manifest weight of the evidence. We reverse and remand for a ...


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