The opinion of the court was delivered by: Justice Burke
Petition for Review of an Order and Decision of the Illinois Human Rights Commission.
Petitioner Robert Sola (Sola) appeals from a summary decision of defendant Illinois Human Rights Commission (the Commission) dismissing his complaint against respondent International Business Machines Corporation (IBM), alleging that IBM discriminated against him on the basis of age when it designated him as "surplus" and permanently laid him off*fn1 in violation of the Illinois Human Rights Act (the Act) (775 ILCS 5/1--102 et seq. (West 1998)). This matter is before this court on direct appeal pursuant to Supreme Court Rule 335 (155 Ill. 2d R. 335), and section 3--113 of the Administrative Review Law (735 ILCS 5/3--113 (West 1998)). On appeal, Sola contends that the summary decision was improper because the Commission utilized the wrong legal standard in assessing whether he adduced sufficient evidence to create a triable issue of fact, the Commission ignored, minimized, or confused evidence, the Commission erred in holding no case law supported his position that IBM failed to adhere to seniority-based reduction in force policies, and the Commission misapplied reduction in force case law.
For the reasons set forth below, we affirm.
The relevant facts in this case are taken from Sola's affidavit and the affidavits of IBM's other employees, unless otherwise indicated. We initially note that Sola's affidavit contains no facts regarding his work history or any activities or events that occurred during his employment with IBM. The affidavit relates only to the various exhibits he offered, which are disjointed, unorganized and, at times, unclear as to their source. Thus, the basic facts of Sola's employment history and his ultimate resignation are taken mainly from the employee affidavits supplied by IBM, including those of Kimberly Kupczyk, Keith Heideman, and Sharon Whitlock.
Sola first began working for IBM on June 14, 1965, as an associate systems engineer. Thereafter he held a variety of positions, including senior store systems engineer and customer support representative.
According to Heideman, Sola's second-line manager, in the winter of 1993, IBM established the Area Configuration Team (the ACT Team or Team) based on services needed for four business groups: product marketing, software marketing, availability services, and customer service organization. The Team was designed to handle the software and hardware configurations for these four groups. At the time the Team was formed, IBM believed it needed 8 to 12 individuals with skills in large systems (ES/9000), mid-range systems (AS/400), work stations, and networking systems. In early 1994, Sola was recommended for the Team based on his AS/400 skills and administrative experience. Sola was designated a "generalist" and became the staff information center analyst on the Team. This was the last position he held with IBM. Whitlock was assigned as the Team leader and was responsible for the day-to-day operational management of the Team. Kupczyk was Sola's first-line manager and was responsible for personnel issues and his career development. In her role as Team leader, Whitlock reported to Kupczyk frequently on the performance and progress of various Team members. The other Team members were: Steven Fischer, Andrea Adamson, Jeff Laniewski, Margaret Lindenberger, Kevin McInerney, Paul Rawlins, and Zoe Miron. [NONPUBLISHABLE MATERIAL REMOVED UNDER SUPREME COURT RULE 23]
All three individuals averred that in the late summer of 1994, IBM determined that the Team's skills were not in accord with customer demands: 80% of the demand was for large system configurations. At this time, only two Team members possessed large system configuration skills. Thus, management determined that more staff was needed for large systems and less in the other areas. Based on this, it was determined that approximately three Team members had to be eliminated.
At about the same time and independent of the above determination, IBM announced its "Employee Transition Plan" (the IETP), a reduction in force plan based on IBM's necessity to become more competitive and efficient. The plan would reduce the overall number of employees while retaining the critical skills necessary for IBM to service its customers. An IBM memorandum, dated September 8, 1994, stated that IBM would be eliminating 3,000 positions across the country, or 7% of its force. According to the memorandum, a majority of the positions to be eliminated would be support staff. Under the plan, each general manager was required to designate certain employees as "surplus," based on the manager's sole discretion. One method of implementation of the plan involved staff reduction. In this respect, management analyzed the various units of the business to see where employees could be eliminated without significantly impacting upon IBM's service level. Once it was decided how many employees would be laid off in any given unit, managers of that unit identified the skills to fulfill the unit's mission. Once the skills were identified, each employee in the unit was assessed and those with the weakest skills were designated surplus.
The ACT Team was one area targeted by the reduction in force plan. According to Kupczyk, IBM assessed the Team's overall productivity and business needs, and it determined that three members had to be eliminated. Whitlock averred she was responsible for identifying the necessary skills to fulfill the Team's mission--those skills critical to the success of the Team. She identified the following skills: AS/400 configuration skills; effective use of hardware/software tools and administrative systems supporting the configuration process; high level of productivity and accuracy; effective multiplexing (handling multiple tasks concurrently); good communication skills; teamwork; customer relation skills; an understanding of the ES (mainframe computer) hardware/software platform; good business judgment; organizational skills; and creativity to improve the configuration process.
Heideman and Kupczyk met to determine which three members would be eliminated based on a comparative assessment of the skills of each Team member. Each of the seven members were assessed in accordance with the criteria and Sola (56), Fischer (45), and McInerney (43) were designated as surplus. Those members who were not surplused were Adamson (36), Laniewski (31), Rawlins (52), and Lindenberger (45).*fn2 Sola, Fischer, and McInerney were assessed as comparatively weaker than those members who were retained. According to Kupczyk, Sola's overall productivity was the lowest in the group. As Sola's day-to-day supervisor, Whitlock agreed with Kupczyk's and Heideman's assessment of Sola's skills as comparatively weaker than those of the rest of the Team in the areas of technical configuration skills, communication skills, and customer relationship skills. Further, his overall productivity was the lowest in the group. All three averred they were unaware of Sola's age while working with him and that age had nothing to do with the assessment of his skills or designating him as surplus.
On September 24, 1994, Kupczyk advised Sola he had been designated as surplus and that he would be permanently laid off as of November 30, 1994. In response to his designation as surplus, Sola retired as of November 30, 1994, five days prior to reaching age 57.
On October 3, 1994, Sola filed a charge of discrimination with the Department, alleging he had been discriminated against based on his age. Thereafter, Sola filed a verified complaint with the Department pursuant to the Act. 775 ILCS 5/1--102 et seq. Following discovery, IBM filed a motion for summary decision pursuant to the Illinois Administrative Code (the Code) (56 Ill. Adm. Code §5300.735(b) (2000)), alleging that Sola could not demonstrate discrimination because he could not establish a prima facie case, IBM could set forth a legitimate, nondiscriminatory reason for Sola's lay off, and Sola could not demonstrate that its reason was pretextual. In support of its motion, IBM attached the affidavits of Kupczyk, Heideman, and Whitlock, discussed above.
In response, Sola argued that various memoranda, "emails," newspaper articles, and other documents precluded summary decision. In support of his response, Sola attached voluminous documents, including the documents identified above, as well as "summaries" of evidence, various IBM documents, and the affidavits of Fang-Pai Chen and Kevin McInerney. [NONPUBLISHABLE MATERIAL REMOVED UNDER SUPREME COURT RULE 23]
The administrative law judge (ALJ) subsequently rendered his "Recommended Order and Decision." He determined that Sola had made a prima facie case of age discrimination and, further, that IBM had set forth a legitimate, nondiscriminatory reason for its decision to surplus Sola, i.e., Sola's skills were less necessary to the Team than those members who were retained. The ALJ concluded, however, that Sola failed to demonstrate a genuine issue of material fact on the question of whether IBM's articulated reason for designating him as surplus was pretextual and, accordingly, recommended granting IBM's motion for summary decision. Sola sought review of the ALJ's decision before the Commission.
The Commission adopted and affirmed the ALJ's decision. The Commission rejected Sola's argument that the ALJ utilized an improper test in determining whether Sola had demonstrated a genuine issue of material fact, but agreed with the ALJ that Sola had made a prima facie case of age discrimination and that IBM had set forth a legitimate, nondiscriminatory reason for surplusing Sola. [NONPUBLISHABLE MATERIAL REMOVED UNDER SUPREME COURT RULE 23]
On appeal, the parties initially disagree on the standard of review. Sola and the Commission contend that the standard is de novo, relying on Tate v. American General Life & Accident Insurance Co., 274 Ill. App. 3d 769, 655 N.E.2d 18 (1995). IBM, on the other hand, contends that the standard of review is against the manifest weight of the evidence pursuant to section 8--111(A)(2) of the Act (775 ILCS 5/8--111(A)(2) (West 1998)), and relies on Cano v. Village of Dolton, 250 Ill. App. 3d 130, 620 N.E. 2d 1200 (1993).
Pursuant to the Code, an ALJ shall render summary decisions "without delay if the pleadings and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving Party is entitled to a Recommended Order as a matter of law." 56 Ill. Adm. Code §5300.735(b) (2000). This court has previously held that a "summary decision is the administrative agency procedural analogue to the motion for summary judgment in the Code of Civil Procedure." Cano, 250 Ill. App. 3d at 138. Thus, "[b]ecause of the similarities of the two, it would seem appropriate to employ the case law which has grown out of the summary judgment motion practice when reviewing the propriety of such an order on direct review." Cano, 250 Ill. App. 3d at 138. Although summary judgments are reviewed ...