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Harton v. Chicago Department of Public Works

November 12, 1998

LORRAINE HARTON, PETITIONER/CROSS-RESPONDENT,
v.
CITY OF CHICAGO DEPARTMENT OF PUBLIC WORKS AND DEPARTMENT OF TRANSPORTATION, RESPONDENT/CROSS-PETITIONER, AND STATE OF ILLINOIS DEPARTMENT OF HUMAN RIGHTS AND STATE OF ILLINOIS HUMAN RIGHTS COMMISSION, RESPONDENTS/CROSS-RESPONDENTS.



The opinion of the court was delivered by: Justice Hoffman

Petition for Review of an Order of the Illinois Human Rights Commission

Lorraine Harton brought an employment discrimination claim against her employer, the City of Chicago (the City). The Illinois Human Rights Commission (the Commission) ordered the City to cease and desist from future discrimination, clear Harton's employment records of reference to the discrimination suit, and pay Harton limited attorney fees. Harton appeals the Commission's finding that she was not entitled to back pay and from its limited award of attorney fees. The City appeals from the Commission's order that it pay Harton's attorney fees. The appeals have been consolidated.

On November 16, 1990, the Department of Human Rights (the Department) issued a "Complaint of Civil Rights Violation" on Harton's behalf, alleging that the City discriminated against her on the basis of physical handicap when it denied her a promotion and failed to provide her with an accommodation. An initial hearing on the complaint was held on June 9 through June 12, 1992, before Administrative Law Judge Michael Evans (ALJ). The evidence presented at that hearing established the following.

Harton, who is blind, began working for the City as a typist in 1975. Her title changed several times over the years, but her duties remained essentially the same. They included answering telephones, typing messages, and answering employment verification requests and questions regarding bid applications.

Early in 1987, Harton submitted written bid applications for two positions, principal clerk and head clerk, with the 50/50 Sidewalk Program (Program) in the City's Department of Public Works. As Harton does not appeal the Commission's finding that she had not established a prima facie case of discrimination with regard to the head clerk position, this court need only consider evidence relevant to the principal clerk position.

Harton was placed on a list of qualified applicants for the principal clerk position and was interviewed by Ronald Eisen, the Program's engineer and supervisor. Harton testified that, when she inquired, Eisen informed her the job was not computerized and that she would not be provided with a reader to assist her with job duties. He also told her "[y]ou never get" reasonable accommodations. Eisen testified that he described the job duties to Harton, who then asked if she could just answer telephones and act as a receptionist. Eisen did not contact any agencies for the visually impaired to determine if any accommodations were available which could assist Harton in performing the principal clerk's duties, nor did he attempt to secure the services of a reader for her.

Eisen testified that the principal clerk's main job duty was to process petitions for sidewalk repairs. This required the clerk to record information from the petitions onto maps and ledgers, transfer information onto petitions from "field sheets" and postcards, and file petitions and related paperwork. The principal clerk was also responsible for responding to telephone or in-person inquiries regarding the status of petitions, which required retrieving information from the files. Eisen estimated the principal clerk spent 80 to 90% of his time dealing with documents and retrieving information.

Harton testified she believed she could have performed the job with the use of a computer capable of producing maps and graphs for the visually impaired and of printing documents in both braille and print form. She testified she would be able to read printed material with an Optacon, a device which translates written material into a series of raised pins on a fingerplate, and complete forms on a typewriter using overlay sheets. According to Harton, she was able to locate streets in Chicago by using a street guide printed in braille.

Following that initial hearing, the ALJ issued a Recommended Liability Determination (RLD), in which he found that Eisen never investigated the possibility of providing accommodations to Harton and that, because of her blindness, he never considered hiring her. He found that Harton had established a prima facie case of discrimination, in response to which the City had articulated a legitimate, nondiscriminatory reason for its actions, namely that a more qualified candidate was selected. The ALJ went on to find that Harton had proven by a preponderance of the evidence that the City's articulated reason was pretextual.

Although the ALJ found that, "for purposes of establishment of a prima facie case," Harton had established she could perform the principal clerk job with reasonable accommodation, he also expressed "serious doubts" as to whether she could perform all aspects of the job. He concluded that an award of damages was "premature" and instructed the parties to conduct an investigation into the types of accommodations available.

At an April 30, 1993, status date, the ALJ scheduled an "evidentiary hearing on damages" for February 22 and 23, 1994. He instructed the parties to limit their evidence to that of accommodations available at the time of the hearing. After the hearing was scheduled, Harton retired from the City. Thereafter, the City filed a motion to modify the April 30 order, seeking to change the scope of the evidence allowed at the hearing. Both parties agreed that evidence of accommodations available in 1994 was no longer appropriate as Harton's retirement made the issue of job instatement moot. Harton argued, however, that she should be awarded back pay without further hearings because the ALJ had already determined liability.

The ALJ granted the City's motion and changed the scope of the evidence at the hearing to include evidence of accommodations available from the date Harton applied for the principal clerk position through the date she retired from the City. The hearing was rescheduled for February 21 and 22, 1995. When the City failed to appear on February 21, the ALJ allowed Harton to present her evidence.

The City subsequently moved to strike the testimony presented in its absence at the February 21 proceedings, explaining that it failed to appear on that date because it had mistakenly believed the hearing was scheduled to begin February 22. The ALJ ruled that the evidence presented on February 21, 1995, would be allowed to stand but scheduled an additional hearing for April 25, 1996, at which the City would be allowed to present its evidence.

The evidence presented by the parties at the February 21, 1995, and April 25, 1996, hearings was as follows. William Hafer, an attorney and hearing officer, and Annette Nowakowski, an attorney, testified on Harton's behalf regarding methods they used in the workplace to accommodate their blindness. These methods included: dictating for a typist; using audio and braille research materials; stockpiling written material until a reader was available; ...


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