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Koulegeorge v. State of Illinois Human Rights Commission

September 29, 2000

CONSTANTINE KOULEGEORGE,
PETITIONER-APPELLANT,
V.
STATE OF ILLINOIS HUMAN RIGHTS COMMISSION, ILLINOIS DEPARTMENT OF HUMAN RIGHTS AND TEMPEL STEEL COMPANY,
RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Justice Burke

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

Petitioner Constantine Koulegeorge appeals from an order of respondent Illinois Human Rights Commission (Commission) dismissing his complaint for age discrimination pursuant to section 2--102(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/2--102(A)(West 1992)), based on the termination of his employment by respondent Tempel Steel Company (Tempel). On appeal, petitioner contends: (1) that the Commission did not have the statutory authority to enter a "directed finding" *fn* dismissing his complaint; (2) he was only required to present "substantial evidence" of discrimination to defeat Tempel's motion for a directed finding; (3) and a directed finding for Tempel was not appropriate because the administrative law judge (ALJ) and the Commission applied the wrong legal standard and ignored or misconstrued certain evidence supporting the allegations of his complaint. For the reasons set forth below, we affirm.

The following facts are based on a stipulation entered into by the parties prior to the hearing before the ALJ and submitted in a "Joint Prehearing Memorandum" (prehearing memorandum). Petitioner was born on July 25, 1939, and he began working for respondent Tempel as an hourly-paid press operator in July 1968 at Tempel's motor lamination division in Chicago. Tempel's headquarters were located in Skokie. By 1970, petitioner had been promoted to dispatcher in the plant's production control department. William Schaller and Arthur Homyak were already working in the production control department when petitioner was assigned there. In 1973, petitioner was promoted to a salaried position as the production control staff assistant in the annealing department. By 1987, Schaller was the manager of the production control department, Homyak was the assistant manager, and petitioner continued to serve as the production control staff assistant. Also in 1987, Thomas Klawitter was hired by Tempel as another production control staff assistant. After he had completed his training in the various tasks performed by the production control department, Klawitter was primarily responsible for scheduling Tempel's slitting department. Petitioner was responsible for scheduling of the annealing department.

In March 1990, Tempel underwent a change of administration and began a process of corporate restructuring and review. In April 1990, following a review of the functions of the production control department, Tempel decided to eliminate both production control staff assistant positions. In 1991, Tempel employed a total of 691 people at its Chicago plant. In April 1991, Tempel laid off 79 hourly employees and 12 of the employees were over the age of 40. Tempel allowed 15 employees to transfer, 3 of whom were over the age of 40. Thomas Setlik, the project manager, had decided as part of the administrative review that began in 1990 to eliminate the two production control positions. Petitioner's position was eliminated, effective January 15, 1992, when he was 52 years old. He was informed of this decision, as directed by Setlik, by Arthur Canning, the corporate director of human resources. Schaller was the immediate supervisor of both petitioner and Klawitter at that time. Schaller was not consulted by Setlik regarding the elimination of positions by Tempel. Klawitter was 49 years old at that time. Petitioner had previously performed the duties performed by Klawitter and had also trained him in these duties.

Klawitter remained working for Tempel until August 28, 1992, because, according to Tempel, the employee who was to assume Klawitter's job duties under the reorganization, Paul Rasborschek, who was age 54 and the manager of the slitting department, was on a disability leave of absence. Setlik also claimed that Klawitter was retained because he had been performing the slitting duties in the slitter department on a day-to-day basis while petitioner had not performed them within the last five years.

Tempel gave petitioner a severance package, which was contrary to its usual policy, which included his full salary and fringe benefit continuation for six months through July 15, 1992, and professional outplacement services at Tempel's expense. He had received a 2% merit raise in January 1991 based on his last performance evaluation before his discharge.

At the hearing on petitioner's complaint, petitioner testified that beginning in 1990, he began having weekly meetings with Canning. Canning would approach him in the hallway on the day of the meetings and say to him, "Gus [petitioner], are you still here? I am surprised you are still here." These comments started to make petitioner think that "something is going to happen to me." Petitioner also stated at the hearing that Setlik told him, "Gus, you get paid top dollars, we'll see what we can do about you." Petitioner testified that these instances occurred shortly before he was terminated.

Jacinto Gabriel, who had worked as a dispatcher for Tempel, testified that he noticed from March 1990 through June 1991 that Tempel was "letting older people go" from the work force in the production control department. He also believed that petitioner was "let go" based on his age because Klawitter was younger than petitioner and had less seniority. He did not know Klawitter's exact age. Gabriel claimed that he did not have any other basis for believing that petitioner was subject to discrimination. Gabriel also believed that he was "let go" because of his age.

Larry McIntyre testified that he worked as a security officer for Tempel from 1979 to 1981 and from 1989 to 1993. He was 55 when he was terminated the second time. McIntyre claimed that the other security officers were also terminated except for the youngest who was in his mid-40's. He and the other guards began to notice a pattern terminating older workers. He noticed younger workers replacing older workers in the housekeeping and trucking departments after the new management took control. McIntyre further stated that the guards filed charges against Tempel with the Equal Employment Opportunity Commission (EEOC) which were still pending at the time of the hearing. McIntyre further stated that all of the guards who filed charges with the EEOC were terminated. Only the youngest guard, who was the only guard not to participate in the filing of charges with the EEOC, was not terminated. McIntyre also stated that Tempel claimed that it was "outsourcing" security guard jobs.

Robert Nichols, Tempel's vice president and general manager testified as an adverse witness at the hearing to the authenticity of a memorandum dated September 7, 1993, indicating that Tempel was aware the guards had gone to the EEOC before they were fired. The memorandum (petitioner's exhibit 10) was an "interoffice correspondence" based on a meeting requested by Victor Toboada, a plant protection officer, regarding "specific events taking place with the other officers." Nichols testified that he decided to terminate the guards to save money by "outsourcing" the guard positions and because of the other matters regarding inappropriate behavior by the guards listed in the memorandum as described by Toboada, such as possession of keys and access to offices, desks, and confidential information concerning pensions, salaries, and profits of the company.

Setlik testified as an adverse witness that when Tempel eliminated the position of a salaried employee, the company would give the employee severance payment rather than transfer and recall rights. He also stated that there were no other positions for petitioner to transfer to at the time his position was eliminated.

At the close of petitioner's case, Tempel moved for a directed finding. On June 11, 1998, the ALJ filed her "Recommended Order and Decision" which stated that petitioner's complaint failed to establish a prima facie case of age discrimination and that a directed finding for Tempel was appropriate. The ALJ, therefore, recommended that petitioner's charge and complaint be dismissed with prejudice. The ALJ's decision stated that petitioner's position, as well as several other positions, in the Production Control Department were eliminated as a result of a review of the functions of that department in April 1990. The decision also stated that the preponderance of the evidence adduced during petitioner's case-in-chief did not sustain the complaint. The ALJ found that petitioner's testimony, regarding the alleged comments he attributed to Setlik and Canning, was not credible. The ALJ noted that petitioner had admitted in his answers to interrogatories that no comments regarding his age had ever been made to him, and she also noted that neither of the comments were included in petitioner's charge or his complaint. The ALJ further found that even if petitioner had not fabricated the comments, they were insufficient evidence of age discrimination because he failed to show that Canning had any input into the decision to terminate him and that the parties had stipulated that Tempel had decided to eliminate the production control staff assistant positions as early as April 1990. The ALJ also stated that there were valid "monetary concerns" which may have led to petitioner's termination based on his high salary due to his number of years working for Tempel, as opposed to his age, and that Setlik's comment would have been consistent with this concern.

The ALJ further found that the testimony of Gabriel and McIntyre regarding discrimination by Tempel against defendant and the other "older people" to be speculative and not credible because they could not give specific instances or dates of discrimination. It was undisputed, according to the ALJ, that petitioner was not replaced by a similarly-situated younger individual and that any of petitioner's remaining former duties which still existed after the elimination of the position and restructuring were simply absorbed by existing personnel. The ALJ also found that Klawitter was not treated more favorably by Tempel because Tempel made the decision to eliminate Klawitter's position at the same time that it eliminated petitioner's and Klawitter was only able to remain longer with Tempel because Rasborschek, the individual who would have taken over some of Klawitter's duties, had a heart attack and respondent waited for his return before actually eliminating Klawitter's position. The ALJ stated that petitioner did not prove that he had any "bumping" rights to support his argument that he should have been allowed to "bump" Klawitter from the position he held while waiting for Rasborschek's return. The ALJ further found that the evidence indicated that Tempel had a policy of offering substantial severance to laid off workers and petitioner was not, therefore, entitled to a hourly position at the time of his discharge. The ALJ also stated that there were no other positions available at the time as the evidence showed that Tempel did not begin hiring for "some time" after petitioner's discharge.

On November 10, 1998, the Commission filed a "Notice" which stated that the Commission had "decided to decline to review the Recommended Order and Decision" of the ALJ and that it would become the "Order and Decision" of the Commission. This appeal followed.

We initially address petitioner's argument that our standard of review of the Commission's decision is de novo. Petitioner argues that because there is no authority allowing the Commission to enter a directed finding, we must rely on "the most analogous case law" involving summary decisions under the Human Rights Act. Based on this analogy, petitioner maintains that because summary decisions, like a decision for summary judgment under the Illinois ...


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