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August 29, 1997


Administrative Review of the Human Rights Commission. No. 1987SF0157.

Honorable Rita B. Garman, J., Honorable John T. McCullough, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Complainant James Allen, Jr. (Allen), filed a charge of racial discrimination with the Illinois Department of Human Rights (Department), alleging that respondent Aero Services International, Inc. (Aero Services), had unlawfully terminated his employment. The Department filed a complaint on Allen's behalf with respondent Human Rights Commission (Commission). Ultimately, the Commission affirmed the decision of an administrative law judge (ALJ) finding that. Aero Services' stated reasons for discharging Allen were pretextual and not worthy of belief. Allen was awarded a total of $37,650.80 in damages, attorney fees, and costs. In re Allen, Ill. Hum. Rts. Comm'n Rep. 1987SF0157 (June 26, 1996). Aero Services now appeals this decision. For the reasons that follow, we vacate the Commission's decision and remand with directions.

Allen filed a charge of discrimination, alleging he was discharged on August 17, 1986. His supervisor, Bob Wills, was a white man. Allen alleged that Aero Services stated the reason for discharging him was that he had taken too many days off work. He believed he had been discriminated against because he is black, citing the following: (1) in July 1986, he was having headaches and discovered he needed glasses; (2) he asked Wills for a medical leave of absence from July 14 through July 18, 1986, at which time he anticipated receiving his glasses; (3) he did not have the glasses by then because Weisser Optical (Weisser) sent them to the wrong address; (4) when he did not receive the glasses on July 18, 1986, he telephoned Wills and said he would report to work as soon as he received his glasses, although he did not give a specific date; (5) Wills said this was okay; (6) on July 27, 1986, Darwin Helms, the white vice president of operations for Aero Services, telephoned him and told him not to report to work because he had not picked up his glasses on July 24, 1986; (7) his performance was always satisfactory, but the three white employees he supervised resented taking instructions from him; and (8) white employees Scott Newlin, "Typus," and "Daren" had been allowed to take time off to go to other jobs.

On October 24, 1988, the Department filed a complaint alleging a civil rights violation, alleging in pertinent part that (1) at the time of the incidents Allen complained about, Aero Services was an "employer" as defined in section 2-101(B)(1)(a) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 2-101(B)(1)(a)) and was subject to the provisions of the Act; (2) Allen was working as a part-time assistant supervisor of freight loaders prior to his discharge; (3) Allen was discharged on August 11, 1986, for the stated reason of poor job performance; (4) this reason was pretextual; and (5) Allen's job performance was not substandard and Aero Services did not discharge similarly situated non-black coworkers with job performance records analogous to Allen's.

Aero Services filed an answer to the complaint that was organized into separate defenses. In one of the defenses, Aero Services alleged it is not an "employer" as defined in section 2-101(B)(1)(a) of the Act and, therefore, the Commission does not have jurisdiction over it. Another of the defenses contained answers to the specific allegations of the complaint. Among those answers was a denial of the allegation that Aero Services was an "employer" within the meaning of the Act and a statement that Aero Services discharged Allen for failure to return from a leave of absence and for poor attendance. Allen filed a reply to the first four defenses, denying all of them.

In a prehearing memorandum, the parties stipulated to the following facts: (1) Allen is an adult, black male and falls within a class protected by the Act; (2) Allen was hired by Aero Services on October 19, 1985; (3) Allen was working as an assistant supervisor of freight loaders when his employment was terminated; and (4) on August 11, 1986, Aero Services discharged Allen from his employment. Contested issues of law were identified as (1) whether Aero Services is an employer within the meaning of the Act; (2) whether Aero Services discriminated against Allen on the basis of race when it fired him; and (3) the admissibility of certain documents and testimony.

A hearing was held before ALJ Perry Miller on January 25, 1990. A former coworker of Allen's, Storm Boles, testified on Allen's behalf that Allen was his supervisor at one point. He and Allen worked well together and there were never any misunderstandings between them. He never complained to Aero Services about Allen. He never heard of anyone else who had problems with Allen.

Allen testified that when he first went to work for Aero Services, he was a part-time loader. Aero Services handled freight for United Parcel Service (UPS) at the Decatur airport. Later, he became a full-time employee and worked two three-hour shifts. When he first began work, his supervisor was Jerry Kitchens. Kitchens reported to Harry Becker, who was located in Milwaukee, Wisconsin; Becker reported to Darwin Helms. Helms offered Allen the supervisor's job after Kitchens did not show up for work one day and did not call to say he would not be at work. Before Allen could accept the supervisor's job, Aero Services began interviewing others for the job. Aero Services hired Wills; Helms told Allen that Wills had more of a background in working with people. Allen threatened to quit. Helms persuaded him to stay on and told him he would receive a raise that would make his salary more equivalent to Wills' salary. Allen was made assistant supervisor in March 1986 and received a $1-per-hour raise. As far as Allen knows, no disciplinary action was taken against Kitchens. In fact, this was the second time Kitchens had not shown up for work and, after the second time, Kitchens told Allen that Aero Services offered him a job in Milwaukee.

Allen testified that before going on leave on July 15, 1986, he talked to Wills about it. Allen had been having headaches and taking a lot of aspirin. He asked Wills if he could take some time off until he got glasses, which his physician had told him he needed. Wills said that would be fine, as Aero Services had hired some extra workers. When Allen's glasses did not come in on July 18, 1986, he called Wills and told him this. He talked to Wills again on July 21 or 22, 1986, and Wills told him he would need a statement that Allen's glasses were still on order. He obtained a statement from Weisser and gave it to Wills. On or about July 24, 1986, Wills called him and told him not to report back to work. Between July 24 and 31, 1986, Wills called him again and said not to report to work, that Helms wanted to talk to him. Allen found out Weisser had sent the notification that his glasses were in to the wrong address. He obtained another statement from Weisser stating that the card was sent to the wrong address. Allen told Helms all this when he arrived in Decatur. Helms told him two workers said Allen had threatened them, which Allen denied. He told Helms there had been a few incidents with Chuck Portwood, another employee, in April 1986 when Portwood was doing something wrong and Allen tried to correct him. Helms called Allen about a week later and told him if he allowed Allen to come back to work, some of the workers said they would quit.

Allen stated that about four other employees, all of whom are white, were allowed time off from work for various reasons, such as to register for college, get married, or go to another job. While Allen worked for Aero Services, the only other black employee, Michelle Coleman, was fired.

On cross-examination, Allen testified that he does not know what Aero Services' policies are with respect to leaves of absence. He admitted his physician did not tell him he could not work without glasses. He does not know of any other employee who requested a medical leave of absence. Allen does not believe any disciplinary action was taken with respect to these other employees who were given time off. Allen rested his case after his testimony.

Harry Becker testified that he worked for Aero Services from March 1985 to July 1989. He was operations manager for the Milwaukee division, which included the Decatur, Illinois, operation. Aero Services had work sites in Milwaukee, Wisconsin, South Bend, Indiana, and Decatur, Illinois. The Decatur operation began in August 1985 and had 8 or 10 employees. He trained the employees himself. He supervised Kitchens directly and was responsible for disciplining Kitchens, although he never did ...

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