Petition for Review of an Order of the Illinois Human Rights Commission No. 1990 CA 1407
The opinion of the court was delivered by: Justice Burke
Petitioner Illinois J. Livingston Company (Livingston) appeals from an order of respondent Illinois Human Rights Commission (Commission) affirming the decision of an administrative law Judge (ALJ) that it had unlawfully discriminated against respondent James Gisch on the basis of his age in violation of the Illinois Human Rights Act. 775 ILCS 5/1-101 et seq. (West 1992). On appeal, Livingston argues that the decision of the Commission was against the manifest weight of the evidence, and the damages awarded Gisch were excessive because Gisch failed to properly mitigate his damages. For the reasons set forth below, we reverse.
On August 18, 1989, Livingston notified Gisch that his employment with Livingston would terminate on September 1, 1989. Subsequent to his termination, Gisch filed a charge of discrimination with respondent Illinois Department of Human Rights (Department) alleging that Livingston unlawfully terminated his employment on the basis of his age. The Department filed a complaint against Livingston, alleging age discrimination, and a three-day hearing was held before an administrative law Judge.
The record discloses that Gisch had worked for Livingston for approximately seven years as an electrician in the Prudential Building, a large office building in downtown Chicago with space leased out to tenant companies, before Livingston terminated him. From 1982 to 1984, Gisch worked as a construction electrician, which Gisch described as mainly installing new equipment. From 1984 until his termination, Gisch worked as a maintenance electrician, which Gisch described as fixing equipment that needed repair. Prior to his employment by Livingston, Gisch worked for Prudential in the same building for 25 years as an electrician. Before that, Gisch had worked for Livingston in the same building for eight years. Accordingly, Gisch had worked for either Livingston or Prudential, in the same building, from 1949 until his termination in 1989.
Beginning in 1984, Prudential hired Rubloff & Company (Rubloff) to manage the Prudential Building. As a result, Rubloff gained control over the day-to-day operations of the building and control over what contractors serviced it. A contract between Livingston and Rubloff stated that Livingston was to provide electrical work for the building and that either party could terminate the agreement after giving 30-days notice. At the time of Gisch's termination, Rubloff constituted approximately 60% of Livingston's business.
Livingston's foreman would receive requests for work in the Prudential Building and pass those assignments on to an electrician who would then go to the tenant space where the work was needed. The normal procedure was for the electrician assigned to check in with the tenant's office manager, proceed to do the necessary work, and then check out with the tenant's office manager. The electrician would fill out a work order and present it to the foreman, who would sign off on the work time and materials. This work order was eventually used to prepare invoices given to Rubloff, which would pass the costs on to the tenant. All the costs associated with Livingston employees, including benefits and vacation, were passed on to Rubloff, which in turn passed the costs on to the tenants.
At a hearing before an ALJ on his discrimination charge, Gisch presented evidence of his long career, hard work, and good reputation with other workers and tenants. Gisch testified that he received thank you cards from tenants and supervisors. Gisch had an excellent attendance record, and was never late for work. Gisch also stated he never received complaints from his immediate supervisor, Paul Lussier, during his last two years with Livingston. According to Gisch, approximately one year before Livingston terminated him, Livingston required him to do extra paperwork on his jobs that no other electrician had to do, and Livingston changed a lock on the materials shed that he used to retrieve supplies. This necessitated Gisch tracking down the foreman and asking the foreman to open the shed since the foreman was the only one with the key. Gisch testified that he received complaints from his superintendent, Matthew Cashman, about his work approximately one year before he was terminated and knew that termination was a possible consequence if his work did not improve. Gisch further testified he did not perceive a problem because he was doing "the best *** [he] could."
Barton Sandvik testified on Gisch's behalf. Sandvik was employed by Livingston as a foreman from 1982 until he retired in 1984. Sandvik worked with Gisch for 27 years at the Prudential Building. Sandvik stated that, in his opinion, Gisch was an excellent electrician. Sandvik further stated that he never had to redo Gisch's work, and "[t]here's nothing that you would expect an electrician to do that he can't do or won't do." Sandvik had never received complaints about Gisch's work during the last two years Sandvik worked for Livingston. According to Sandvik, there were no written standards describing how long certain jobs should take, and the time estimates were all based on the foreman's experience. On cross-examination, Sandvik stated that although there were no written time estimates, over time it became clearer how long some jobs should take. Sandvik acknowledged the need to keep tenants happy and to accommodate tenants. Sandvik could not recall exactly when Rubloff took over control of the Prudential Building, but estimated he only worked under Rubloff management for one or two months.
Robert Marsh, who was the chief engineer in the Prudential Building until his retirement in 1989, testified that he was a stationary engineer with responsibility for temperature control, he was an employee of Rubloff at the time of his retirement, and he had worked with Gisch on and off from 1955 until Gisch's termination. According to Marsh, Gisch's work was very dependable and he never had any complaints. On cross-examination, Marsh admitted he was not an electrician, he had responsibilities for many other areas other than electrical areas, he did not have an opportunity to observe Gisch's work in tenant spaces, and Gisch's foremen would probably be in a better position to evaluate Gisch's work performance.
Leo Forque, another stationary engineer in the Prudential Building, testified he "had all the confidence in the world in [Gisch] and [Forque] knew if [Gisch] was given the job, the job would have been done right." Forque never had to have any of Gisch's work redone and Forque never had a problem with the timeliness of Gisch's productivity. On cross-examination, Forque stated he was not an electrician, and it was not his job to evaluate Gisch's work.
In its case in chief, Livingston called its vice president Robert Rathman, as a witness. Rathman testified that electricians working for Livingston worked under one of two union agreements. Under this scheme, Gisch was the least expensive electrician in the Prudential Building and as such could be seen as an asset to the company, allowing it to lower its prices to tenants. Rathman stated that Livingston's ability to work in the Prudential Building was completely based upon an agreement with Rubloff, and Rubloff or Livingston could terminate the agreement by giving a 30-day notice to the other party. At the time of Gisch's termination, the Prudential Building work constituted approximately 60% of Livingston's work volume. Rathman further stated that shortly after Rubloff took over control of the building in 1984, he had occasion to speak with Rubloff's operations manager, Bill McElligott, who complained about the length of time a job assigned to Gisch was taking. Approximately one year prior to Gisch's termination, Rathman had lunch with McElligott and Barbara DeLeon, who was the office manager for the building's largest tenant, Leo Burnett. At that time, DeLeon complained to Rathman about Gisch's work performance.
Rathman also stated he received a call from John Dwyer, another employee of Leo Burnett, shortly before Gisch was terminated. Dwyer also complained about Gisch's work. Rathman further testifed that he had general conversations on a regular basis with Gisch's immediate supervisors on their perceived problems with Gisch's work performance. Rathman would pass complaints from Rubloff on to Gisch's direct superiors and instruct them to speak with Gisch about the problems.
Rathman further stated that in May 1989, he ordered Matthew Cashman, Gisch's superintendent, to give Gisch a layoff notice. Cashman delivered the notice to Gisch, but Gisch was never laid off. After Rathman gave the notice to Gisch, he received a call from the Prudential Building's manager who apparently persuaded Rathman to allow Gisch to continue working. Thereafter, Gisch was mainly given jobs that required no tenant interaction, including at least two complex tasks Gisch worked on prior to his termination which he was assigned to because those tasks did not involve his being in client spaces.
On August 16, 1989, Rathman received a letter dated August 14, 1989, from Thomas Ponicki, who was then Rubloff's director of operations, complaining about Gisch's work and indicating that Grant Thornton, another large Prudential Building tenant, no longer wanted Gisch working in its space. According to Rathman, the Ponicki letter was "basically the final straw" in Livingston's decision to terminate Gisch. It was at this time that Rathman instructed Cashman to terminate Gisch.
Rathman also stated that he believed he had to either put up with Gisch in the Prudential Building or terminate him, and, under the union agreements, he could not move Gisch to a different building Livingston worked in. On cross-examination, Rathman stated he never took notes of meetings about Gisch or memorialized the meetings in any way. Most of the meetings were informal affairs over lunch or the phone.
Barbara DeLeon testified that at the time of Gisch's termination, she was Leo Burnett's facility's manager and responsible for setting up office space for new employees or employees "moving around." DeLeon would contact Rubloff if she needed work done, and Rubloff would then contact Livingston. DeLeon further stated she would "lay out" for the workers exactly what needed to be done, with floor plans and directions which she gave to the workers. DeLeon related a problem that arose when Gisch took two or three days for a series of jobs that were estimated to take no more than six to eight hours. DeLeon complained about the time it was taking to complete the job and one of Gisch's supervisors came to finish the job, taking only a few hours. Another incident, causing DeLeon to complain, arose when Gisch was to core a hole to run some new wire in Leo Burnett's space to hook up an airline ticket ...