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03/23/89 Acorn Corrugated Box v. the Illinois Human Rights

March 23, 1989

ACORN CORRUGATED BOX COMPANY, PETITIONER

v.

THE ILLINOIS HUMAN RIGHTS COMMISSION ET AL., RESPONDENTS (DICK GAYLORD, CROSS-PETITIONER; THE HUMAN RIGHTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Commission et al., Cross-Respondents)

536 N.E.2d 932, 181 Ill. App. 3d 122, 129 Ill. Dec. 882 1989.IL.392

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Acorn Corrugated Box Company (Acorn) appeals directly to this court from that portion of the order of the Illinois Human Rights Commission (Commission) adopting the recommended order of the administrative law Judge finding that complainant, Dick Gaylord (Gaylord), was discharged from his employment with Acorn because of his race. Gaylord cross-appeals from that portion of the Commission's order which reversed the ALJ's finding of handicap discrimination. Following a careful examination of the nine-volume record in its entirety, we affirm that portion of the Commission's order dismissing his claim of handicap discrimination but reverse the Commission's finding of race discrimination on the ground that it was contrary to the manifest weight of the evidence.

Background

The record reveals that Acorn, a manufacturer of corrugated boxes, employed Gaylord, a black man, from July 1960 to March 10, 1982, when he was formally discharged. On March 4, 1982, Gaylord was placed on an indefinite suspension pending investigation of an incident of insubordination toward his supervisor, Michael Tallon. Later that afternoon, Gaylord submitted a grievance form in which he detailed the events leading to the suspension. On March 8, a union grievance meeting was held, and on March 10, Gaylord was given written notice of his discharge. On that same day, Gaylord filed an employment discrimination claim with the Illinois Department of Human Rights alleging that he was suspended on the bases of race, physical handicap and retaliation for having filed prior discrimination complaints against Acorn. On April 17, a labor arbitration hearing, at which Gaylord was represented by counsel and a union representative, was held on the circumstances of Gaylord's discharge. The arbitrator entered an award in Acorn's favor, finding, inter alia, that the evidence established that Gaylord's defiance of a direct order of his supervisor was "the zenith" of an insubordinate attitude which had developed during his long tenure with Acorn, and that his insubordination had "reached the stage where Acorn had every reason to discharge him." On August 15, 1982, the Illinois Department of Human Rights also dismissed Gaylord's claim against Acorn on the basis of a lack of evidence to support Gaylord's claim. However, following a request for review by Gaylord, a Commission panel reinstated his claim on March 5, 1983, and on April 27, 1984, the Commission issued a complaint charging that Acorn had discharged Gaylord on the bases of race and physical handicap in violation of his civil rights. In its answer of May 23, 1984, Acorn denied that Gaylord was discharged for the reasons alleged; rather, Acorn asserted, Gaylord was fired because of the incident of insubordination on March 4, 1982, coupled with an unsatisfactory disciplinary history.

A public hearing was held before ALJ Sandra Y. Jones on October 30, October 31 and November 13, 1984. The evidence adduced at that hearing is as follows.

Dr. Donald Misch testified that at the request of Gaylord's attorney, he examined Gaylord in late 1982 and again in late September 1984. Based on the medical history provided to him by Gaylord, the X rays taken and his own examination of Gaylord, it was his opinion that Gaylord suffered from a condition consistent with a diagnosis of emphysema, chronic bronchitis and bronchiectasis. His recommendations for the treatment and control of the condition were that Gaylord take medication and avoid activities, including smoking, which involved the inhalation of pollutants, toxins, dust and dirt. Dr. Misch acknowledged on cross-examination that Gaylord admitted to him that he smokes cigars and cigarettes.

Gaylord testified that he had been receiving disability benefits from the Veterans Administration since 1957 for a military service-connected condition diagnosed as bronchiectasis. However, he did not inform anyone at Acorn of his condition when he applied or was physically examined for employment in 1960, nor at any time prior to March 4, 1982. Gaylord had been a union steward for approximately 16 of the 22 years he was employed by Acorn.

In March 1982, his job was to drive a battery-operated forklift called a corrugated jeep on the third shift, which began at 11 p.m. and ended at 7 a.m. His primary responsibility was to move loads of corrugated material within the plant. Sometime in February 1982, Edward Monaco, a fellow employee, asked Gaylord if he was planning to quit his job. Monaco explained that Michael Tallon, the third-shift superintendent, had asked him (Monaco) if he would be interested in Gaylord's job.

Shortly after he reported for work on the night of March 3, 1982, Tallon informed him that the corrugator, the machine which produces the boxes, would be shut down at about 3 a.m., following which there was to be a general plant cleanup. Tallon gave him the option of leaving the plant early without penalty but Gaylord declined, stating that he preferred to stay to complete his work. In accordance with Tallon's instructions, he took his lunch break at 3 a.m. and then began his usual cleanup tasks. Shortly after 4 a.m., Tallon drove his scooter to where Gaylord was working, stopped and said that he had another job for Gaylord to do. Before stating what that job was, Tallon was paged over the plant loudspeaker and left to answer a telephone call. A short time later, Tallon returned with Robert Kalnes, the third-shift maintenance supervisor, and told Gaylord to come to his office. Once inside, Tallon repeated that he had another job for him to do but, again, failed to explain what it was. In response to Gaylord's direct question, Tallon said that he wanted Gaylord to work in the battery area, a section of the factory where the jeep batteries are stored and serviced. Gaylord explained to Tallon that he was not refusing a job but he could not work in that area because it contained sulfuric acid fumes and dust which aggravated his bronchial condition. He also requested that a safety man be called in to hear what he had to say, but Tallon refused the request, saying that a safety man "wasn't necessary" and that he "wasn't interested [in Gaylord's health problems]." Gaylord then requested permission to go home since he wasn't "being allowed to complete his work as agreed." Tallon denied such permission, repeating that he wanted Gaylord to work in the battery area. Gaylord reiterated both his explanation that he could not work there because of his health problem and his request that a safety man be called in to the meeting. Tallon said "forget it" and told Gaylord that he was suspended until further notice and that he (Tallon) and Kalnes would escort Gaylord to the plant time clock to ensure that Gaylord followed his directive to promptly punch his time card and leave the plant. When he arrived at the time clock, Tallon was there with Gaylord's time card in hand. As soon as Gaylord punched the card, Tallon took it from him, held it up, smiled and said, "I have what I want."

At approximately 5:30 a.m. Gaylord went home and prepared a grievance form, which he delivered to the union hall the following day. In his 16 years as a union steward he had drafted many grievance forms. Since the purpose of the form is merely to initiate the grievance procedure, he did not detail all the events of, or leading to, the meeting with Tallon and Kalnes. He did, however, tell Wardell Harris, a union representative, what had occurred and that he had declined to work in the battery area because such work posed a hazard to his health.

Gaylord further testified that Steve Crenshaw, the plant "miscellaneous man" or "general helper," was the person generally responsible for checking and servicing the batteries and for cleaning the battery area. Although Gaylord took his jeep into the battery area at the beginning of each shift to have it checked and, if necessary, serviced, he always waited outside the area while the work was being completed. He had not objected when, on previous occasions, Tallon had instructed him to clean areas other than the battery area. Having learned a few weeks earlier that Tallon had asked if Monaco was interested in Gaylord's job, he testified that he felt it was particularly important to agree to perform whatever non-hazardous duties were assigned to him.

On March 8, 1982, Gaylord, Kalnes, Raymond Jachim, the personnel manager and safety director, and J.C. Rogers, a fellow employee and the union shop chairman, met to discuss his grievance. After he (Gaylord) explained what had occurred on the night of March 4, Jachim asked whether he had informed Tallon that he had proof of his bronchial condition. He attempted to tell Jachim that he had a document from the Veterans Administration verifying the condition but Jachim then said that he wasn't interested in what Gaylord had to say about his health. Although he presented a document he received when he was discharged from a military hospital in 1956, it was ignored.

On March 10, 1982, he received the letter from Jachim informing him of his immediate discharge. On March 17, another meeting was held at Acorn's personnel office. In addition to those present at the March 8 meeting were union representative Wardell Harris and Michael Tallon. Gaylord asked that Kalnes not be permitted to "testify" against him because Kalnes had once been heard referring to a black supervisor as a "nigger."

On cross-examination Gaylord stated that the sole reason he refused to follow Tallon's order was to protect his health. He acknowledged, however, that in the two-page grievance he prepared a few hours after the incident, he did not mention that he had a bronchial condition or other health problem or that he told Tallon that health considerations prevented him from performing the job Tallon assigned to him. He also admitted that when he was asked at the arbitration hearing whether he told Tallon that he had a bronchial problem that his response was, "No -- well, the foreman stated that he was not interested as far as my health was concerned . . .." He also stated that the first time he presented verification of his medical condition was at the meeting of March 8, 1982.

Michael Tallon testified that he had worked for another container company for 23 years before being hired as a foreman at Acorn in 1979. The plant is not fully operational on the third shift and is manned by approximately 14 employees, including Robert Kalnes, supervisor of the three-or four-man maintenance crew. The main function of the third shift is operation of the corrugator. Although "the miscellaneous man," Steve Crenshaw, was the person usually responsible for servicing the jeep batteries and for general cleanup duties on the third shift, there were occasions when workers from the corrugator department were assigned various maintenance and cleaning tasks.

When he arrived at work on the night of March 3, 1982, the second-shift superintendent instructed him to shut down the corrugator for cleaning at 3 a.m. and then conduct a general plant cleanup. He advised the employees of the agenda and stated that because of the lack of work, anyone who wished to leave could do so without incurring attendance "penalty points." He determined which areas required cleaning by driving around the plant on his scooter. Cleaning of the battery area was normally left for the third shift. Steve Crenshaw was present at work that night. In the course of his inspection, Tallon noted that the conveyor area on the west end of the plant near the press department and shipping room was in need of cleaning. Approximately mid-way through the shift, he began to assign specific cleaning tasks to all of the employees present. At approximately 4 a.m. Gaylord was operating his electric forklift to move empty skids from out of the aisles in the baling area. Tallon drove his scooter to where Gaylord was working and told him that he wanted him to sweep and clean the area from the small flexo machine to the shipping room. Gaylord responded loudly that he wanted to finish stacking the skids. Tallon replied that additional stacking was not necessary and that he wanted Gaylord to do what was asked of him. At that point, Tallon received a call on the loudspeaker regarding cars parked in an area scheduled for snow plowing and, after telling Gaylord that he would "get back to [him]," he left. When he encountered Bob Kalnes near the factory exit he asked him to sit in on a meeting he planned to have with Gaylord in the superintendent's office. Tallon then returned to the baling area and told Gaylord that he wanted to speak with him in the office. As the three men were entering the office, Gaylord loudly said, "I don't need you to lead me into the office like a schoolboy." After everyone was seated, Tallon began to explain to Gaylord what he expected Gaylord to do but Gaylord would not allow him to speak. Gaylord alternately stood and sat and moved his arms about and repeatedly stated that he wanted to finish "his job." Each time Tallon began to speak, Gaylord spoke louder. Gaylord argued that the skids should be moved as a safety measure and asked that a safety man be brought in to the meeting. Tallon responded that he had inspected the area and determined that there was no safety problem because no skids were in the aisles. After repeated attempts to reason with Gaylord, Tallon gave him a direct order to sweep the area he had described earlier. At that point, Gaylord stood up and faced the wall with his back to Tallon. Tallon then told Gaylord that he had no choice but to suspend him. At no time did he ever direct Gaylord to sweep, clean or perform any duties in the battery area, which had been cleaned earlier in the shift; nor did Gaylord say anything about a physical condition or handicap which would be aggravated by his performance of the assigned work.

As he and Kalnes were getting on their scooters after the meeting, Gaylord turned and said, "I don't need you to follow me." Tallon denied that he was and proceeded in the opposite direction to the time clock as Gaylord returned to the plant. When Gaylord arrived at the time clock, he told Tallon not to touch his time card. Tallon explained that he was responsible for ensuring that Gaylord followed his directive to ...


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