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11/03/89 the Human Rights v. the Human Rights

November 3, 1989




547 N.E.2d 499, 190 Ill. App. 3d 1036, 138 Ill. Dec. 332 1989.IL.1741

Petition for review of order of Human Rights Commission.


JUSTICE PINCHAM delivered the opinion of the court. COCCIA and LORENZ, JJ., concur.


Petitioner, Illinois Bell Telephone Company, appeals from a decision of the Illinois Human Rights Commission (Commission) that petitioner unlawfully discriminated against petitioner's employee, complainant Mary Amos, in discharging her because of her absenteeism occasioned by her endometriosis disease handicap, and because of petitioner's unreasonable failure to accommodate her handicap. Petitioner was ordered to reinstate complainant in her employment. We affirm.

The testimony presented at the evidentiary hearing established the following.

Prior to complainant's employment by petitioner, complainant filled out medical forms and underwent a medical examination at petitioner's demand and direction. On the medical forms, complainant stated that she suffered from severe menstrual cramps and pain which could cause her to miss work for one or two days every two months.

In March 1970, petitioner hired complainant as a central office technician, and six months later, petitioner promoted her to the position of central office frameman. Complainant remained in the central office frameman position until she was again promoted in 1974, four years later, to the position of central office maintenance woman, which title was later changed to central office technician.

Complainant's duties as a central office technician entailed testing and maintaining equipment in the toll department. The toll department was part of the central office, and complainant worked in a unit called the "n-carrier unit." As a member of the "n-carrier unit," complainant was allowed to trade off-days with other employees under a system known as the "non-schedule days" system. This system provided employees flexibility and allowed them to alter their work and off-day schedules, and permitted them to work on weekends and have two weekdays off. Other units within the toll department utilized this same flexible "non-schedule days" system in scheduling work and off-days.

In 1978, complainant was transferred to the "pre-service unit" within the toll department, and in 1979, she was transferred out of the toll department and into the "pre-service unit" of the "SSB" department. Neither of these preservice units utilized the flexible "non-schedule days" system in programming employee's duty and off-day assignments. Complainant remained in the "pre-service unit" of the SSB department until February 23, 1981, when petitioner terminated her employment because of complainant's absenteeism.

During complainant's employment with petitioner, she continuously suffered severe menstrual cramps and pain. Complainant initially saw Dr. Moragne but later switched to Dr. Chatman, because he was reputed to be a specialist in a new procedure for diagnosing the cause of menstrual cramps and pain.

On June 5, 1979, Dr. Chatman performed a laparoscopy, a diagnostic procedure, on complainant to determine the cause of her menstrual cramps or dysmenhorrea. Dr. Chatman concluded that the cause of complainant's menstrual cramps was a disease called endometriosis, which caused scar tissue to build up on her uterine lining. Dr. Chatman prescribed danocrine to aid in dissolving some of the scar tissue. After the laparoscopy and danocrine treatment, complainant's extreme menstrual cramps and pain subsided, but she still experienced severe discomfort.

On April 14, 1980, upon Dr. Chatman's recommendation, complainant underwent further diagnostic surgery to determine the effectiveness of the danocrine treatment. The results were favorable, and Dr. Chatman discontinued the danocrine treatment. Upon the return of her menstrual cycle, however, complainant again began to experience severe pain. Dr. Chatman recommended that complainant "wait and see" how her body would react to the problem.

In December 1980, Dr. Chatman recommended that complainant undergo a laparotomy, a corrective surgical procedure to remove the scar tissue and implants of the endometrium lining. Dr. Chatman scheduled the laparotomy to be performed on January 16, 1981.

In late 1980, at petitioner's request, complainant had a health review by petitioner's medical department. Shortly thereafter, complainant met with Hardin McCain, petitioner's employment manager. McCain told complainant that he had received the results of her health review conducted by petitioner's medical department, and McCain reiterated the hysterectomy recommendation of petitioner's medical department to eliminate her menstrual pains and cramps. Complainant responded that she did not want to have a hysterectomy because she did not want to preclude herself from having children in the future. McCain then told complainant that her next absence from work would result in a one-day suspension and that subsequent absences would result in a five-day suspension with intent to terminate. Complainant informed McCain of her scheduled surgery in January 1981, but McCain reiterated his warning that her absences would result in her suspension. Dr. Chatman was unable to perform the scheduled January 16, 1981, laparotomy because "the disease had progressed so much and so rapidly that it would have been dangerous to do it." Dr. Chatman told complainant that "he would have endangered some other organs" if he had performed the laparotomy. Dr. Chatman again prescribed danocrine.

Complainant was suspended without pay for one day because of her absence from work on December 29, 1980, the cause of which was severe menstrual cramps and pain. On January 16, 1981, she underwent surgery and missed work for 26 days. She returned to work on February 23, 1981, only to be told that she had been suspended with intent to terminate. Petitioner terminated complainant on February 23, 1981.

Shortly after complainant was terminated by petitioner, complainant underwent surgery called presacral neurectomy, a corrective surgery to lessen the pain associated with menstrual cramps.

The record reveals that during the period that complainant was employed in those units which utilized the flexible "non-schedule days" system, complainant was absent from her employment for only five days in 1975, none in 1976 and for only four days in 1977. After being transferred in 1978 to the "pre-service" unit which did not utilize the flexible "non-scheduled days" system, however, complainant's attendance record steadily deteriorated. She was absent from work for nine days in 1978, 26 days in 1979, and 42 days in 1980. Of the 26 days complainant was absent from work in 1979, 15 were due to surgery, and the remaining 11 days she missed were due to her menstrual cramps. In 1980, of the 42 days complainant was absent from work, 20 were due to her menstrual cramps. Finally, between January 1, 1981, and February 23, 1981, the date on which petitioner terminated her, complainant was absent 27 days because of surgery.

Complainant filed her complaint against petitioner with the Illinois Department of Human Rights (Department), alleging that petitioner unlawfully discriminated against her on the basis of her sex and her handicap, to wit, endometriosis. An investigation was conducted, and on March 23, 1983, the Department filed a complaint of civil rights violation against petitioner. In its complaint, the Department alleged that petitioner discriminated against complainant because of her female sex and her endometriosis disease handicap.

The Department held an evidentiary hearing over a five-day period before administrative law Judge Sandra Y. Jones. ALJ Jones presided over the complete evidentiary hearing until its Conclusion but resigned from the Commission before writing her interim recommended order and decision. Prior to her resignation from the Commission, however, ALJ Jones prepared a report of her findings, Conclusions and her impressions of the testimony presented at the evidentiary hearing, which she submitted to Richard J. Gonzalez, the substituting administrative law Judge. ALJ Gonzalez prepared the interim recommended order and decision.

In his interim recommended order and decision, ALJ Gonzalez alluded to ALJ Jones' resignation and cited the basis of his authority to write the interim order and decision. ALJ Gonzalez based his order and decision on an examination of the record and on the written report of ALJ Jones' findings, Conclusions and impressions of the testimony.

ALJ Gonzalez found that the preponderance of the evidence sustained the complainant's complaint of handicap discrimination but he dismissed complainant's charge of sex discrimination on the ground that petitioner's articulated reason of excessive absenteeism was not a pretext for unlawful sex discrimination. ALJ Gonzalez concluded that endometriosis was a handicap within the meaning of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1-103), and with reasonable accommodation, would not affect complainant's ability to perform her job. ALJ Gonzalez specifically noted that the designation "modification of work schedules" in section 4(a) of the Commission's rules was the type of accommodation contemplated within petitioner's organization which provided a degree of flexibility to employees in their work schedules, namely the aforementioned flexible "non-schedule days" system. ALJ Gonzalez further found that complainant's particular handicap was well suited for accommodation because it involved predictable periods of disability.

ALJ Gonzalez also noted that section 4(a) of the Commission's rules "places a burden upon the employer to show that a requested accommodation could either be overly expensive or unduly disrupt the conduct of its business." ALJ Gonzalez pointed out that petitioner already had in place a mechanism, the flexible "non-schedule days" system, which could have accommodated complainant and reduced her absent days to an acceptable number, but petitioner refused to accommodate her for reasons which were directly related to her handicap.

Petitioner's express reasons for failing to accommodate complainant were that petitioner's overall staffing balance would have been upset and that complainant's transfer would have contravened a company policy that required good attendance as a condition to a transfer. The Commission found that petitioner had failed to rebut complainant's prima facie case of handicap discrimination by petitioner. ALJ Gonzalez found that because transfers were not unusual in petitioner's large organization, petitioner could have accommodated complainant by exchanging her with another employee working in a unit that utilized the "non-scheduled days" system. As to petitioner's policy requiring good attendance as a condition of transfer, ALJ Gonzalez stated:

"Whatever value such policy may have in the abstract, adherence to this policy cannot justify a failure to accommodate when the precise reason for the transfer request is to improve attendance. In a sense, the mere existence of the policy is proof of [petitioner's] refusal ...

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