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08/25/95 INTERSTATE MATERIAL CORPORATION v.

August 25, 1995

INTERSTATE MATERIAL CORPORATION, PETITIONER-APPELLANT,
v.
ILLINOIS HUMAN RIGHTS COMMISSION, DONALD BRANDY AND WILLIAM THOMAS, RESPONDENTS-APPELLEES.



ON PETITION FOR DIRECT REVIEW FROM THE ILLINOIS HUMAN RIGHTS COMMISSION.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

On June 9, 1986 and June 11, 1986 respondents, Donald Brandy and William Thomas, respectively filed charges with the Illinois Department of Human Rights alleging purposeful discrimination by Interstate Material Corporation, hereinafter referred to as "Interstate," in violation of section 2-102(A) and 6-101(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, pars. 2-102(A), 6-101(A)). They alleged that Interstate discriminated against them because of their race when it laid them off while retaining others less senior but of a different race and also alleged that Interstate retaliated against them by withholding wages due them because they reported the alleged discriminatory treatment to a union representative who was not affiliated with Interstate.

In May, 1987, when the Department of Human Rights did not complete its investigation within the statutory 300-day time period (Ill. Rev. Stat. 1987, ch. 68, par. 7-102(G)), Brandy and Thomas filed complaints with the Illinois Human Rights Commission (the Commission). At the request of the complainants, their cases were consolidated by the Commission in June, 1987. On October 4, 1989, one week before the scheduled administrative hearing, Brandy was granted leave to amend his complaint by deleting his retaliation claim; and on the day of hearing, Thomas' motion for voluntary withdrawal of his entire complaint was granted.

On June 27, 1991 the administrative law judge (ALJ) entered an interim recommended order and decision sustaining Brandy's discrimination charge and directed that he be reinstated and awarded back pay of $44,345 as well as attorneys fees and costs. The ALJ ordered that Interstate cease and desist from discriminating on the basis of race in terminating or laying off employees and recommended the denial of Interstate's motion for sanctions against Brandy and Thomas based on the late withdrawal of Brandy's retaliation charge and Thomas' entire complaint. A recommended order and decision was entered by the ALJ on September 11, 1991 incorporating the interim order and recommending that Interstate be ordered to pay Brandy $73,125.20 for attorneys' fees and $435.33 for costs. On February 8, 1993, the Human Rights Commission issued its order and decision rejecting Interstate's exceptions and affirming and adopting the recommended order and decision of the ALJ. Interstate filed a direct appeal to this court pursuant to section 8-111 of the Human RightsAct (775 ILCS 5/8-111 (West 1992)) and Supreme Court Rule 335 (134 Ill. 2d R. 335). *fn1

On appeal, Interstate contends that the Commission's finding that Interstate discriminated against Brandy on the basis of race was against the manifest weight of the evidence; that the Commission's award of back pay and attorneys' fees to Brandy was an abuse of discretion; and that the Commission's rejection of Interstate's motion for sanctions against Brandy and Thomas was an abuse of discretion. *fn2

At the hearing before the ALJ, Brandy introduced evidence to show that an employee (John Burgess, Jr.) having the same job functions but of a different race was treated more favorably; that there were problems with Burgess' work performance; that Brandy's supervisor used language and invectives reflecting racial bias; and that the reasons given by Interstate for Brandy's lay off were pretextual. Interstate contended that Brandy was laid off because of his job performance, his inability to drive a truck and a decrease in work orders.

Interstate Material Corporation is an African-American minority-owned ready-mix concrete supplier. In May, 1986, three white males and Donald Brandy and William Thomas, who are African-Americans, were hired to work for Interstate by John Weaver, a white male, who worked as a supervising consultant to Interstate. Brandy and Thomas had previously worked as concrete finishers for Ebony Construction Company, a concrete placement and finishing company that shared common owners with Interstate. Two weeks later, Weaver hired two more white employees, one of whom was Norman Burgess, Jr. Ronald Siwinski, a white male, was the plant superintendent and immediate supervisor of Brandy, Thomas and Burgess. Siwinski reported to Weaver who reported to Renee Bradford, Interstate's vice president and chief operating officer. Bradford as well as Interstate's president/owner, are African-American.

According to Brandy, when he was hired, Weaver told him he did not know what Brandy would be doing, but that he would be working in the yard. Siwinski put Brandy and Thomas to work as "troubleshooters" in the "pit." They ran gravel and sand up into the plant by a conveyor belt and cleaned the trucks and yard of concrete when necessary. After the first week, Brandy was trained to run the conveyor belt. When Burgess began work at Interstate, Brandy was in charge of the "pit;" and Siwinski assigned Burgess to assist Brandy. Siwinski often gave Burgess direct instructions as to what he was to do. Two days after Burgess was hired, he was put in charge of the conveyor belt and "pit."

With respect to Burgess' work performance, Brandy testified that on one occasion, while he was working with Burgess, Burgess opened a chute after Brandy had already opened one. Siwinski had put Burgess in charge of the conveyor belt although Brandy did not know this at that time. According to Brandy, when a chute is opened, rawmaterial falls onto the conveyor belt and is sent up for mixing in the cement production process. On the day in question, the weight from the additional materials caused the conveyor belt to separate in two parts, and work ceased until the belt was repaired. It took one day to shovel and clean up the sand that had fallen on the ground and in the tunnel.

Brandy also testified that on May 28, 1986, four days after Burgess had been hired, the pit crew, consisting of Burgess, Brandy and Thomas, was assigned to put some gravel into a new pit for a City of Chicago cement order. Brandy and Thomas told Burgess that there was contaminated material in the pit and that it should not be used for that order. Burgess disregarded their warning and told them to run the gravel into the pit. Shortly thereafter, a City of Chicago inspector saw the contamination and caused the pit to be shut down.

Henry Little, a former mechanic at Interstate, testified that, in June or July, 1989, Burgess overloaded an end loader with gravel causing a hose in the engine of the vehicle to break. The vehicle could not be used until the hose was replaced. Little testified that Burgess was verbally reprimanded by Weaver.

After the contamination incident, Siwinski told Brandy and Thomas not to come back to work for a day or two because the plant would be shut down until the contaminated material was cleaned up. Burgess was not laid off. Brandy and Thomas were never called back to work at Interstate.

In further support of his racial discrimination claim Brandy presented evidence of racial bias on the part of Siwinski. Three witnesses, Henry Little; Clifford Braxton, a former mechanic at Interstate who was supervised by Siwinski; and Michael Thomas, who worked in various capacities under Weaver and Siwinski from October, 1986 to August, 1989, a time period after which Brandy had been laid off, testified that on many occasions they heard Siwinski refer to African-American employees as "you people" while referring to the white employees by name. In addition to hearing Siwinski use the phrase "you people," Braxton also testified that in March, 1989 he overheard Siwinski refer to African-American employees as "niggers," stating "those niggers in the plant don't know nothing. They are dumb. *** What I am, going to do is I am going to fire all of them and hire me a new crew."

During Interstate's case, Siwinski testified that Brandy was hired as a driver-trainee and that he had informed Brandy that Brandy would be taught how to drive a ready-mix truck and would perform other functions within the company. Siwinski stated that Brandy's inability to drive a ready-mix truck at the time he was hired did notpresent a problem because Siwinski had taught others how to drive while on the job and intended to teach Brandy as well.

With respect to Brandy's work performance, Siwinski testified that on "several occasions" he saw Brandy and Thomas leaning on their shovels and that a couple of times he "approached them" and told them "there's no time to lean on shovels." He said that on one occasion he walked over to Brandy and Thomas and that "they never even made an effort to even seem like they were going to do anything." When asked how many occasions he observed this type of conduct, Siwinski stated "at least two or three times" although, on cross-examination, he stated the number was "exactly four times *** three, four times."

Siwinski also stated that he attempted to teach Brandy how to drive a ready-mix truck. He considered Brandy to be a "washout" because Brandy could not shift gears. Siwinski stated that he discussed Brandy's driving ability with Weaver about three times and that he discussed Brandy's work habits with Weaver about three or four ...


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