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08/28/97 LAKE POINT TOWER v. ILLINOIS HUMAN RIGHTS

August 28, 1997

LAKE POINT TOWER, LTD., PETITIONER-APPELLANT,
v.
ILLINOIS HUMAN RIGHTS COMMISSION, ILLINOIS DEPARTMENT OF HUMAN RIGHTS, AND DOROTHY JOHNSON, RESPONDENTS-APPELLEES.



PETITION FOR REVIEW OF ORDER OF THE ILLINOIS HUMAN RIGHTS COMMISSION. CHARGE NO. 1988CN1275. ALS NO. 4564.

As Corrected September 19, 1997. Released for Publication October 9, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

The Illinois Human Rights Act provides that adverse employment actions cannot be taken against any person due to his or her physical handicap if the handicap is unrelated to the person's ability to perform job duties. In this case, Dorothy Johnson suffered from a form of cancer. Her employer, Lake Point Tower, Ltd., knew it. She was fired.

We must answer two questions: First, is cancer a physical handicap within the meaning of the Illinois Human Rights Act? Second, if it is, did Lake Point Tower, Ltd., violate the Act when it fired Dorothy Johnson?

We find the Illinois Human Rights Commission correctly decided cancer is a physical handicap and that Lake Point Tower was guilty of unlawful employment discrimination.

FACTS

Dorothy Johnson (Johnson) filed a charge of discrimination with the Illinois Department of Human Rights (DHR), claiming that she had been terminated by Lake Point Tower, Ltd. (Lake Point) because she had cancer. This, she said, was a violation of the Illinois Human Rights Act. 775 ILCS 5/1-101 et seq. (West 1992). The DHR made a finding of substantial evidence for the claim and filed a complaint on Johnson's behalf with the Illinois Human Rights Commission. A public hearing was held before an Administrative Law Judge (ALJ) on May 12, 1994.

At the hearing, Johnson testified she began employment with Lake Point in June 1983, as a part-time Health Spa attendant. A year later, in June 1984, Johnson was promoted to a full-time position as Health Spa manager. She was put in charge of payroll, billing, and staffing. She supervised between five and eight employees. Her salary was $8 per hour.

In addition to her managerial position, Johnson and another employee shared the responsibility of cleaning the Spa. This additional job paid $900/month. She received half of this amount, or $450/month for her share.

In June 1986, Johnson was diagnosed with non-Hodgkins lymphoma, a form of cancer. Johnson immediately informed her supervisor, Herb Salberg, who had the title of "Spa Consultant." Johnson underwent an operation to have some lymph nodes removed. While she was recuperating at home, she received phone calls from Spa members and other Lake Point employees, as well as a "Get Well" card signed by over 100 persons. The card included $500 that had been collected for her. It was common knowledge around Lake Point that Johnson had cancer.

Johnson's doctor, Dr. Winter, gave an evidence deposition and prepared a written summary of Johnson's medical history. These documents were entered into evidence and showed that Johnson was relatively asymptomatic in 1986 and 1987. Her cancer was diagnosed as "indolent," meaning slow growing or slowly progressing. Though Johnson sometimes complained of swollen glands, fatigue, malaise, and some pain or discomfort, her health was generally good. Johnson remained able to swim, work out, and perform all of the duties of her employment. In fact, Johnson's ability to perform her duties was not contested, but was stipulated by the parties.

In September 1987, based on a performance review by her supervisor, Herb Salberg, Johnson received a salary increase. Shortly after, in late September or early October, Johnson advised Salberg that chemotherapy was being suggested by her doctors and she was considering the possibility of undergoing this treatment.

On October 1, 1987, Thomas Rottman was promoted from leasing agent to General Operations Manager for Lake Point. He became Salberg's supervisor. On October 9, 1987, Johnson was notified that she was being terminated. Johnson testified that Salberg came to her apartment to give her the news of her termination. Though she repeatedly asked Salberg the reason for her termination, he would not tell her. He did tell her, however, that he told Rottman about her cancer.

The day after Johnson was terminated, Mike Flynn, another employee at Lake Point, came to Johnson's apartment. He needed help completing the billing accounts and payroll for Lake Point. Johnson agreed to help. Johnson said that Flynn told her she had been terminated because she had cancer.

Thomas Rottman, the general manager for Lake Point, testified that he gave Salberg the order to fire Johnson, but claimed he had no input into the decision. That decision, he said, was made by one of the owners, Evangeline Gouletas. Rottman also claimed he did not know about Johnson's cancer until after her termination. He denied her cancer was the reason for her termination.

Rottman admitted, however, that Johnson's personnel file contained no written reprimands or warning letters. He could not say why she was terminated. Though he was told there were some complaints about the running of the Spa, he never received any direct complaints about Johnson's performance.

Evangeline Gouletas, who co-owned Lake Point along with her brother, testified that she used the Health Spa in 1987 and found Johnson to be somewhat rude and unfriendly. She claimed, however, that she had almost no input into the day-to-day decision-making for Lake Point and denied that she had been the one to decide that Johnson was to be terminated. She said she did not know the reason for Johnson's termination, but claimed it was not because of her cancer. Gouletas also denied she was aware of Johnson's illness before her termination.

The ALJ issued a decision in favor of Johnson and recommended that she be awarded damages, attorney fees, and costs. The ALJ found Johnson proved that Lake Point had discriminated against her because of her physical handicap of cancer. Damages, fees, and costs were recommended as follows: $51,894.09 for back pay; $2,613 as reimbursement for health insurance premiums Johnson paid; $15,816.25 for attorney fees; and $320.65 for costs.

Lake Point filed exceptions to the ALJ's decision with the Commission. Johnson responded. Both parties had an opportunity to present oral argument to the Commission. Thereafter, a final order was issued by the Commission, affirming the ALJ's decision. The Commission concluded it was not against the manifest weight of the evidence for the ALJ to have found that Johnson made a prima facie case of discrimination. Lake Point's failure to provide any reason for Johnson's termination, said the Commission, entitled Johnson to prevail as a matter of law. The Commission adopted all of the ALJ's recommendations with regard to damages, fees, and costs.

Lake Point petitioned this court for review pursuant to ...


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