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Lara-Girjikian v. Mexicana Airlines

September 01, 1999

GILDA LARA-GIRJIKIAN, PETITIONER-APPELLANT,
v.
MEXICANA AIRLINES AND THE HUMAN RIGHTS COMMISSION, RESPONDENTS-APPELLEES.



Charge No. 1995 CF 1718

The opinion of the court was delivered by: Presiding Justice Cahill

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

The Illinois Human Rights Commission dismissed petitioner's complaint for lack of jurisdiction. Petitioner appeals. We have jurisdiction under Supreme Court Rule 335 (155 Ill. 2d R. 335) and section 8-111 of the Illinois Human Rights Act (775 ILCS 5/8-111 (West 1996)). We affirm.

Petitioner was employed by Mexicana Airlines as a full-time station sales representative. Station sales representatives are subject to a collective bargaining agreement between the union and Mexicana.

Petitioner's station sales representative duties included passenger service, ticket counter, ramp, control, operations and gate agent. Petitioner also had cashier duties. The control and operations agent positions were desk duties. The other positions were not. All full-time station sales representatives must work mandatory overtime as set out in the collective bargaining agreement, depending on Mexicana's needs. Overtime is needed if flights are delayed or baggage is lost. Overtime duty is determined by order of reverse seniority.

Petitioner was injured in April 1991, when a baggage cart rolled over her right foot. She sought medical attention in November 1992, after noticing a lump on her foot. Surgery on her injured foot followed in January 1994. She was off work until May 2, 1994. Her doctor then released her for work, under the restriction that petitioner not work overtime in June. This restriction was later extended to include July.

Mexicana excused petitioner from mandatory overtime in June, but refused to do so for July. The collective bargaining agreement directs that overtime assignments be made in reverse order of seniority. Mexicana claims that petitioner's inability to work overtime created a burden on other personnel who had to work overtime even though they had more seniority than petitioner. Mexicana also claims that complying with this restriction during the summer travel season compromised airline operations as a whole. Mexicana placed petitioner on medically inactive status in July 1994. The union then filed a grievance under the collective bargaining agreement on petitioner's behalf, contesting her placement on medically inactive status. The record shows that this grievance remains pending.

In October 1994, petitioner notified Mexicana that she would need an additional three months exemption from overtime. Mexicana then offered petitioner a permanent part-time sales representative job. Mexicana claims that this job accommodated petitioner's inability to work overtime because petitioner would only work 20 hours per week, with a possibility of working up to 20 hours overtime.

The part-time position was to begin on October 30, 1994. Petitioner was to tell Mexicana which shift she wanted to work. Petitioner did not respond. Mexicana then notified petitioner that she was to report for work at 6 a.m. on October 30, 1994, to work the 6 to 10 a.m. shift. Petitioner never reported for work.

Mexicana notified petitioner on November 4, 1994, that disciplinary action would be taken against her for three unjustified absences from work. Petitioner contends that Mexicana knew she did not accept the part-time position and that she would not be reporting for work. Petitioner states that her former lawyer spoke to a Mexicana secretary on October 29, 1994. Her lawyer told the secretary that petitioner would not report for work on October 30. Petitioner claims that her attorney also sent a letter on October 30, 1994. Mexicana disputes this, claiming there is no record of the conversation, and further, the secretary the attorney allegedly spoke to did not work on October 29, 1994. Mexicana states that the collective bargaining agreement sets out how employees are to notify Mexicana that they cannot report for work. Mexicana claims that petitioner did not follow this procedure.

A disciplinary hearing was held on December 12, 1994. Mexicana discharged petitioner on December 30, 1994. The union filed a grievance regarding petitioner's discharge in January 1995. This grievance also remains pending.

Petitioner filed a discrimination charge with the Illinois Department of Human Rights on January 5, 1995. She alleged that Mexicana's refusal to accommodate her physical handicap and later discharge violated the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 1996)) (the Act). She alleged that her physical handicap resulted from her foot surgery. Petitioner alleges Mexicana refused to give her an accommodation--an exemption from overtime duty until she was fully healed.

Petitioner filed her own complaint with the Human Rights Commission (the Commission) on November 22, 1995. Mexicana answered, stating that petitioner's discharge was consistent with the terms of the collective bargaining agreement. Mexicana also argued that petitioner's inability to work overtime made her unqualified to perform the essential functions of her job as a station sales representative.

The parties filed a joint hearing memorandum on March 24, 1997, in which both conceded that the terms and conditions of petitioner's employment are governed by the collective bargaining agreement. The parties also conceded that the station sales representative job description and ...


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