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12/15/89 Ashwin Shah, v. the Human Rights

December 15, 1989





548 N.E.2d 695, 192 Ill. App. 3d 263, 139 Ill. Dec. 310 1989.IL.1956

Petition for review of order of Human Rights Commission.

Rehearing Denied January 17, 1990.


PRESIDING JUSTICE MURRAY delivered the opinion of the court. PINCHAM* and COCCIA, JJ., concur.


Petitioner Ashwin (Kenny) Shah appeals from an order of the Illinois Human Rights Commission (Commission) entered in a case arising out of his charges of employment discrimination against respondent Warshawsky & Company. Warshawsky discharged Shah from his job as a stock supervisor on May 7, 1984. Shah, who is an Asian Indian native, filed a charge of employment discrimination with the Department of Human Rights (Department) alleging that he had been subjected to discriminatory working conditions and harassment because of his national origin. An amended charge claimed that Shah was unlawfully discharged because of his national origin, an alleged physical handicap, and/or in retaliation for opposing the alleged discriminatory practices of Warshawsky.

The Department conducted an investigation of Shah's charges and, after a fact-finding conference, issued a report in March 1985. The Department found that there was substantial evidence to support Shah's claims that he was subjected to unequal terms and conditions of employment, e.g., required to perform union duties and being frequently paged on his breaks -- tasks not required of non-Indian supervisors. The Department dismissed Shah's unlawful discharge claims after concluding that there was insufficient evidence to support them. It was instead determined that Shah was discharged for falsifying his employment application in several aspects: his educational level; dates of prior employment, duties, and reasons for leaving; and concealment of a preexisting ankle injury.

The report also indicated that Bashir Khan, an Indian manager for Warshawsky, had recommended Shah's discharge and that non-Indian employees had been discharged for falsifying employment applications. The Department further found that Shah's retaliatory discharge claim was baseless since Warshawsky did not have notice of the alleged discrimination prior to his discharge. It additionally concluded that Shah's ankle injury did not qualify as a protected handicap under the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1-103).

Thereafter, Shah requested review by the Commission of the Department's dismissal of his discharge claims. In response, the Department reiterated all but one of its original findings and Conclusions. After receiving an affidavit by Jay Thakker, another Indian supervisor, the Department decided there was substantial evidence to support Shah's claim that he was discharged because of his national origin. After reviewing the two charges dismissed by the Department, the Commission found that more evidence was needed in order to determine whether Shah's ankle injury was a protected handicap. However, the Commission agreed the handicap claim should be dismissed because there was no substantial evidence indicating that Shah had been dismissed for this reason. The same finding was made with respect to the retaliatory discharge claim, and both claims were dismissed in October 1985. A complaint of civil rights violation was then issued on two bases: the unequal terms and conditions of employment claim and the claim of discharge based on national origin. Shah then moved to amend the complaint to include the claim of handicap discrimination, and the Commission denied the motion.

A public hearing lasting five days was held on the complaint in January 1987. The administrative law Judge issued her 37-page recommended order and decision in January 1988. After reviewing the evidence, the ALJ prepared detailed findings including the following.

Shah was hired by Warshawsky as a stock supervisor in July 1983 after being interviewed by the personnel manager, Thomas Bykowski; William Stankiewicz, stock manager; Bashir Kahn, warehouse manager; and William Bondy, operations manager. Bondy and Kahn were unfavorably impressed with Shah and told Stankiewicz to interview other applicants. Stankiewicz kept insisting that Shah was well qualified for the position and eventually prevailed. Shah was offered the position at a salary of $350 per week. Shah then filled out an employment application form. He responded negatively to the questions: "Were you ever injured?" and "Do you have any physical defects that preclude you from performing any work for which you are being considered?" In fact, in January 1980, Shah had fallen on ice and shattered the bones in portions of his right foot and leg and had had screws and a plate surgically inserted in his ankle with subsequent therapy. By signing the application, Shah certified that his statements were true. Warshawsky does not routinely verify information given on a supervisor's employment application and did not do so with Shah's application. Under Warshawsky's personnel policy, applicable to all employees, falsification of an employment application is grounds for suspension or termination, and, prior to Shah's dismissal, several union employees had been terminated for this reason.

On July 18, 1983, Shah started working for Warshawsky as a supervisor of the sixth floor and supervised six to eight union employees. Stankiewicz, who is of Polish national origin and was Shah's supervisor, reported to Khan who, like Shah, is originally from India. Khan reported to Bondy, a white American male. Other stock supervisors included Jay Thakker, of Indian origin; and other males of Polish, Puerto Rican, and black American origins. All supervisors had the same duties, e.g., assigning work to stock clerks, directing the timely movement of stock, maintaining good housekeeping and keeping aisles free of blockage, maintaining proper levels of stock for the filling of orders, and resolving stock irregularities and incomplete orders.

In the fall of 1983, Khan discovered that Shah had failed to timely process several stock transfers and that he had backdated certain transfer documents. Khan warned Shah that he would lose his job if he was again involved in falsifying documents. In October 1983, Stankiewicz reported to Khan that he was experiencing problems with Shah's work performance. Stankiewicz prepared a written "special review," noting that disciplinary action would be taken if Shah continued to circumvent Warshawsky's ...

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