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06/28/89 Aero Testing & Balancing v. the Human Rights

June 28, 1989





541 N.E.2d 1229, 185 Ill. App. 3d 956, 133 Ill. Dec. 791

Petition for review of order of Human Rights Commission. 1989.IL.1016


JUSTICE McNAMARA* delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.


Petitioner, Aero Testing & Balancing Systems, Inc., a division of Climatemp, Inc., appeals from a decision of the Illinois Human Rights Commission (Commission) which held that Aero discriminated against its employee, Jack Pachowicz, on the basis of his handicap, multiple sclerosis. An administrative law Judge found unlawful discrimination and recommended eight months' back pay and benefits, plus $39,095 of the requested $51,404 as attorney fees and costs. The Commission, with one Dissenting member, adopted the ALJ's findings and recommendation.

Aero contends that the Commission's finding as to Pachowicz' job duties was against the manifest weight of the evidence; that the Commission's finding that Pachowicz' handicap was unrelated to his ability to perform his job was against the manifest weight of the evidence; that the attorney fees award was excessive; and that the ALJ committed prejudicial error in not permitting certain cross-examination.

In 1969, Pachowicz began working for Climatemp as a sheet metal apprentice. In 1979 or 1980, he was transferred to Aero as a testing and balancing technician, which involved performing evaluative tests and overall system balancing of commercial air conditioning systems. The physical requirements of the job include repeated climbing up a ladder, 50 to 100 times a day, to make adjustments in the system, climbing down the ladder to take and record the readings, and then climbing up the ladder again to make further adjustments. Sometimes one man stayed on the ladder making adjustments while a second man performed the other duties on the ground.

On May 10, 1982, Pachowicz was diagnosed as having multiple sclerosis, a degenerative nerve disease. In Pachowicz' case, the disease primarily affected the function of his legs, causing some stiffness and unsteadiness.

From November 1982 to February 1983 Pachowicz was laid off. He was recalled in January 1983 to do "light work" or "paperwork." On May 20, 1983, Pachowicz was terminated. On November 21, 1983, Pachowicz filed a charge of discrimination with the Illinois Department of Human Rights (Department).

On August 16, 1984, a complaint issued from the Department. In July and August 1985, an eight-day hearing was held before an ALJ. On January 20, 1986, the ALJ issued an interim recommended order and decision finding that Pachowicz was a handicapped person. The ALJ found that Pachowicz established a prima facie case of handicap discrimination and that Aero failed to articulate a legitimate, nondiscriminatory reason for Pachowicz' termination. The ALJ held that Aero had a duty to prove the reasonable accommodation of continuing to assign Pachowicz to normal duties until February 1984, when he could no longer perform such duties. Because of the substantial deterioration of Pachowicz' condition after that date, Aero had no duty to reinstate Pachowicz to his prior position, and Pachowicz failed to prove that any other reasonable accommodation existed.

On March 31, 1988, the Commission issued a decision affirming the findings of the ALJ in all respects.

Initially we dispose of Pachowicz' claim that the appeal should be dismissed because Aero failed to include the name "Climatemp, Inc.," in the heading of this cause and Aero was not named as a separate legal entity but solely as a division of Climatemp. Aero simply adopted the exact heading used by the Commission in the order from which Aero appeals. No jurisdictional problem arises here.

Since the briefs were filed in the present case, another division of this court dismissed an appeal after finding that the employer had failed to appeal the three-member panel decision of the Commission to the full Commission. Castaneda v. Illinois Human Rights Comm'n (1988), 175 Ill. App. 3d 1085, 530 N.E.2d 1005.

We disagree with the Castaneda holding. The statute directs that application for rehearing shall be viewed with disfavor and only upon a clear demonstration that a matter raises legal issues of significant impact or that three-member panel decisions are in conflict. (Ill. Rev. Stat. 1987, ch. 68, par. 8-107.) Section 8-107(1) of the Illinois Human Rights Act provides that final decisions will be issued through a panel of three members. We do not believe the exhaustion of administrative remedies requires application for rehearing before the entire Commission prior to appeal to this court. (See Jackson Park Yacht Club v. Department of Local Government Affairs (1981), 93 Ill. App. 3d 542, 417 N.E.2d 1039.) The appeal is properly before us.

Aero challenges the Commission's decision, which adopted the findings of the ALJ, as being against the manifest weight of the evidence.

The findings and Conclusions of the Commission on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1983, ch. 110, par. 3-110.) A reviewing court must sustain the Commission's findings of fact unless they are against the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 68, par. 8-111(2).) If the issues are merely ones of conflicting testimony or the credibility of witnesses, the Commission's findings will be upheld. Kenall Manufacturing Co. v. Human Rights Comm'n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805.

Discrimination actions are analyzed under the three-step analysis announced in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. (See Village of Oak Lawn v. Illinois Human Rights Comm'n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.) First, the employee must prove by a preponderance of the evidence a prima facie case of unlawful discrimination, which thereby creates a rebuttable presumption of discrimination. The employer then bears the burden of articulating a legitimate, non-discriminatory reason for the adverse employment decision; and the employee must then prove that the reason offered is only a pretext. Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089; McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.

Where the facts of a particular case, however, render the formula awkward or inapplicable, it should be discarded. (Board of Trustees v. Human Rights Comm'n (1985), 138 Ill. App. 3d 71, 485 N.E.2d 33.) All parties here agree that the true dispositive question is whether Pachowicz proved his physical condition was unrelated to his ability to perform his job.

The evidence supported the ALJ's finding that, while Aero's "announced reason for the termination was ambiguous and difficult to identify," when stripped of the abstractions, the testimony "amounted to an admission that [Pachowicz'] 'MS' was the actual reason." Aero has stated both that the termination was due to "no work," and that it was due to Pachowicz' inability to perform his job as a result of his handicap. No one else was laid off in May 1983, but two men changed to different positions. Ronald Metz, a manager at Aero and Pachowicz' supervisor, first testified that business was bad at the end of 1982. "If there's no work, you don't work." However, Metz then testified that there was no work left that Aero believed Pachowicz was physically able to perform. He admitted that there was work for Pachowicz if he were able.

Aero, however, maintains that notwithstanding this admission, Pachowicz failed to prove his handicap was unrelated to the job duties, in which case the articulated reason could be reasonable and legitimate.

A prima facie case of unlawful discrimination requires a showing that the employee is handicapped within the meaning of section 1-103of the Illinois Human Rights Act. (Ill. Rev. Stat. 1983, ch. 68, par. 1-103.) The employee must be a member of a protected group. (Ill. Rev. Stat. 1983, ch. 68, par. 1-103.) Aero does not challenge the Commission's finding that the diagnosis of multiple sclerosis placed Pachowicz within such a group.

This is not enough, however. The statutory definition of "handicap" requires a showing that the employee is qualified in that his handicap is unrelated to his ability to perform his job. Ill. Rev. Stat. 1983, ch. 68, par. 1-103; Kenall Manufacturing Co. v. Human Rights Comm'n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805; Sanders v. United Parcel Service (1986), 142 Ill. App. 3d 362, 491 N.E.2d 1314.

The most significant testimony on this issue was offered by Pachowicz' treating physician, Dr. Jordon L. Topel, a neurologist. He opined that as of the final layoff date of May 1983, Pachowicz was physically capable of performing his job duties, including "doing walking, standing, sitting, writing and at times climbing ladders." No accommodations were needed from his employer. Dr. Topel never instructed Pachowicz to discontinue or curtail his employment activities. He certainly would have done so if he believed it was necessary for safety reasons.

Dr. Topel regularly discussed work duties with his patients. If there were any major questions, he would speak with the employer in order to dispel misconceptions about the disease. Dr. Topel discussed job duties with Pachowicz and "the major problem . . . was mainly standing for periods on the ladder, unsteadiness of that." Pachowicz reported that "he frequently worked with another man" and the "other person would do a lot of the climbing up the ladder." Other than that, there were no other limitations in regard to his work.

Dr. Topel's testimony was supported by his medical examinations and notes throughout the relevant period, indicating that the symptoms varied little and the main problem was some lower leg stiffness. A February 1984 hospital discharge summary reciting the two-year history of the disease and a January 1985 rehabilitation evaluation clinic report corroborated that the symptoms remained minimal and varied little until early 1984.

On November 16, 1982, Dr. Topel noted that Pachowicz' legs would become stiff, not when he was standing on ladders, but when he sat. At the end of 1982 or beginning of 1983, Dr. Topel "thought that his walking was getting somewhat worse" because the stiffness was ...

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