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August 25, 1995


Appeal of an Order of the Human Rights Commission. HRC No. 1988CN2190.

Rehearing Denied September 26, 1995. Petition for Leave to Appeal Allowed January 31, 1996.

The Honorable Justice Zwick delivered the opinion of the court: McNAMARA, P.j., concur. Justice Rakowski, dissenting:

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Petitioner, Raintree Health Care Center (Raintree), challenges a final order of the Illinois Human Rights Commission (Commission) which held that Raintree had unlawfully discriminated against respondent, James Davis, by constructively discharging him from his employment based upon his having been diagnosed with the human immunodeficiency virus (HIV).

After an evidentiary hearing before an administrative law judge (ALJ) for the Illinois Department of Human Rights, the following relevant facts were established.

Raintree operates a nursing home facility in Evanston, Illinois. James Davis was hired as a kitchen helper in March 1987, but was fired in June of that year for fighting on the job. Davis was subsequently rehired as a cook in November 1987. After he was rehired, Davis had no further disciplinary incidents. The parties stipulated that Davis performed his job duties in an acceptable manner consistent with Raintree's standards.

Davis' responsibilities as a cook consisted of preparation of the evening meal, placing the food on trays, and cleaning the kitchen and storeroom areas. Davis had no contact with the residents of the facility.

On January 12, 1988, Davis informed his supervisor, Pearl Smith that he had tested positive for the human immunodeficiency virus (HIV). Davis then met with Smith and with the facility administrator, Burton Behr, who examined the rules and regulations governing the facility but found nothing that addressed the situation of an HIV-positiveemployee. Behr made several telephone calls to the Illinois Department of public Health and to the Evanston Board of Health, but he was unable to get an opinion as to whether Davis' condition made him ineligible to work in a nursing home. Behr advised Davis that Raintree needed more information from public health officials to determine whether Davis could continue his employment. Behr also told Davis to obtain a note from his doctor indicating that he was either free of communicable disease or that he was allowed to work with the HIV virus. Davis was then sent home before the end of his shift.

Thereafter, Davis obtained a note from his doctor and submitted it to Raintree. This note, which was signed by Davis' doctor, stated as follows:

"To Whom It May Concern:

Mr. James Davis HIV status does not restrict him from performing his current job as a cook in a nursing home. The HIV (Aids Virus) is NOT transmitted through the preparation or serving of food and beverages. Transmission is through blood and body fluids. Should Mr. Davis cut himself in the course of the food preparation, that food should be discarded the same as if any employee had bled into food. Should you have any further questions, please contact the nurse with the clinic, Kathy Pietschmann, R.N., M.S. at 943-6600 ext. 401.



Tom Skoutelis, M.D.

Upon receiving this note, Behr again telephoned the Illinois Department of Public Health and the Evanston Board of Health, but he never obtained an official opinion as to Davis' ability to continue his employment. Behr refused to allow Davis to return to work.

While Behr sought an official opinion regarding the impact of Davis' condition upon his employment, Davis telephoned the facility on numerous occasions and inquired when he would be permitted to return to work. Each time he called, Davis was told that Raintree had not yet received an answer from public health officials.

On or about February 1, 1988, Davis' brother, who also worked as a cook at Raintree, informed Davis that he had been fired. Davis believed what his brother told him because he had not heard from anyone at Raintree for over three weeks. Davis did not call Raintree or seek confirmation that he had been fired.

In February 1988, Davis filed a discrimination charge with the Illinois Department of Human Rights and applied for unemployment benefits. Although Raintree contested the unemployment claim byasserting that it had never terminated Davis' employment, Davis was never permitted to return to his position at the Evanston facility.

Thereafter, Davis commenced a two-year job search that culminated in his getting a job providing security at the airport. During that period, Davis' job search consisted of looking through the job advertisements in newspapers on a daily basis, visiting an employment office, going to a job fair at Truman College, and applying to various companies, including fast-food restaurants, discount stores, grocery stores, a tool and dye company, gas stations, taxi cab companies, delivery service companies, and janitorial service companies. Davis testified that he applied for five to ten positions per month. To earn money during this time, Davis performed odd jobs and ran errands for friends and family.

On January 5, 1989, the Illinois Department of Human Rights filed a complaint of civil rights violation after an investigation of Davis' discrimination charge. On February 14, 1989, Raintree filed an answer to the complaint denying that it had discriminated against Davis. In February 1989, Raintree offered Davis another position for comparable pay at a similar facility located in Highland Park, Illinois, approximately 47 miles from Davis' home. Davis refused this offer because the facility was too far away for him to commute using public transportation.

The parties appeared for a hearing before the ALJ on February 24, 1992. Upon consideration of the evidence presented, the ALJ issued a determination on October 9, 1992. In his determination, the ALJ found that Raintree had constructively discharged Davis and had discriminated against him on the basis of Davis' HIV-positive status, a physical handicap. The ALJ recommended that Davis be reinstated to his former position or to a substantially equivalent position with comparable pay and benefits and that Davis be awarded $21,167.50 in backpay and interest, plus reasonable attorney fees and costs.

On October 28, 1992, Davis filed a petition for attorney fees and costs in the amount of $42,909.98. This petition was supported by the affidavits of his counsel and by a billing worksheet. Davis also requested a multiplier in the amount of 50%. Raintree filed a motion for discovery and depositions regarding the reasonableness of the attorney fees on November 13, 1992. Davis filed an objection to that motion on December 16, 1992, and Raintree filed a reply on December 21, 1992. After a hearing on Raintree's motion, the ALJ denied the request for discovery on December 23, 1992, and ...

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