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Wilhelm v. Human Rights Commission

July 31, 2001

JEROME WILHELM, PETITIONER-APPELLANT
v.
THE HUMAN RIGHTS COMMISSION AND R.B. HAYWARD AND COMPANY, RESPONDENTS-APPELLEES



The opinion of the court was delivered by: Justice Cahill

UNPUBLISHED

Petition for Review of an Order of the Illinois Human Rights Commission Charge No. 1991CN2301

Complainant, Jerome Wilhelm, filed a complaint with the Illinois Human Rights Commission (Commission). He alleged that respondent, R.B. Hayward and Company (Hayward), discriminated against him based on a handicap and a perceived handicap, in violation of section 2-102(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/2-102 et seq. (West 1998)). Wilhelm alleged that Hayward discriminated against him when Hayward refused to transfer him from a drafting position to the position of foreman and later laid him off from his drafting position.

The evidence at the hearing showed that Wilhelm was hired by Hayward as a sheet metal duct installer in 1951. He was later promoted to foreman. While working as a foreman at the Amoco Building in Chicago in 1989, Wilhelm injured his neck and shoulder helping a co-worker hoist a fan into a ceiling duct. He was off work for four months. His injury made it difficult to tilt his head back or raise his hands above his head. In February 1990 Hayward asked Wilhelm to perform light duty work as a draftsman because he could not perform installation work in the field. Wilhelm was paid a foreman's wage, including contributions to his union. During this period he also filled in for foremen at several sites and went to construction sites to do estimating, measuring and listing work.

The record shows that another employee, Tony Nuccio, also performed drafting work for Hayward. He was paid approximately $8 per hour and was not as proficient at drafting as Wilhelm. In the fall of 1990, Nuccio was "loaned" to another sheet metal duct installation company because Hayward did not have enough work to keep him busy. When the project at the other company was completed in January 1991, Nuccio returned to Hayward, just after Wilhelm was told there was no more drafting work available and laid off. Nuccio remained at Hayward until April 1991, when he also was laid off. The record shows that from January until April 1991, Nuccio performed mostly errands and odd jobs in the office rather than drafting work.

Hayward company policy required a doctor's unrestricted release before allowing an injured or ill employee to return to work as a sheet metal worker. Bob Kuechenberg, owner of Hayward, testified that Hayward did not consider a variation of the policy for Wilhelm.

Wilhelm testified that Kuechenberg offered him the position of foreman at Harris Bank on January 14, 1991. The foreman at Harris Bank at that time, Dan Flora, was retiring. Don Malzahn, the general manager, was present and asked Wilhelm to "sign this statement stating that [he] was 100-percent healed" before he could take the job. Wilhelm did not read the statement, but relied on Malzahn's description of its contents. Malzahn told Wilhelm that if he did not sign the statement so that he could return to work as a foreman or mechanic, he would be laid off at the end of that week because there was no more drafting work. Wilhelm told both Kuechenberg and Malzahn that he knew he could do the job at Harris Bank, but that he would seek his doctor's opinion. Wilhelm testified that he knew he could do the job at Harris Bank without "bothering" his neck. He was familiar with the Harris Bank job because he had been a substitute foreman there several times and had also worked as a foreman at a nearby site and consulted frequently with the Harris Bank foreman. Wilhelm did not sign the statement or provide an unrestricted release from his doctor.

On cross-examination, Wilhelm admitted that in January 1991 he sent a fax to his workers' compensation attorney that stated:

"Herewith please find a copy of insurance company doctor's report. Also please be aware that R.B. Hayward general manager Don Malzahn has informed me that as of Friday I will be unemployed unless my doctor signs a full release. He also says that the insurance company will not pay me workmen's comp." (Emphasis added.)

Wilhelm testified that he "may have just written it wrong, worded it wrong," but that Malzahn told him he, not his doctor, had to sign a statement.

Wilhelm further testified that he had been a "non-working" foreman at the LaSalle Bank building for 10 years. "Non-working" meant that his role was primarily supervisory and that he did not have to perform the manual labor involved in sheet metal duct installation. When he filled in as foreman during 1990 while he was restricted to light duty, he was a non-working foreman. In his experience, it was more common to be a non-working foreman than a working foreman. A non-working foreman's responsibilities included: keeping timecards; supervising and instructing workers; providing proper drawings; measuring and listing ductwork; ordering ductwork; ensuring proper equipment and tools were on site; drafting; surveying; estimating; and dealing with the architects, engineers and customers. In Wilhelm's experience, the Harris Bank job was as a non-working foreman and did not require heavy lifting above the head for long periods of time. Wilhelm also looked at the timecards of Dennis Carsello, who was hired in January 1991 as the foreman at Harris Bank. Wilhelm testified that, based on the descriptions on the timecards, he would have been able to perform all the same work.

Terry Smith, who worked as an account executive for Hayward from April 1990 to July 1991, testified that he managed the Harris Bank account during that time. He visited the site on average once a week and spent about two hours with the foreman. He never saw either Dan Flora or Dennis Carsello, foremen at Harris Bank, working with construction tools or physically installing ductwork.

Smith further testified that he discussed with Wilhelm that Maynard White, superintendent, was going to recommend Wilhelm for the foreman position at Harris Bank. White told Smith that the job did not require physical labor. At a meeting in Kuechenberg's office, Kuechenberg, Malzahn, Smith, and White agreed that Wilhelm would be a good choice for the Harris Bank position. Malzahn told them not to tell Wilhelm because he had to discuss some details with Kuechenberg. Later Smith learned that Wilhelm would be laid off because he refused to sign a release based on his doctor's advice. Dennis Carsello was selected for the job at Harris Bank. In Smith's opinion, Wilhelm was physically able to handle the Harris Bank position.

Don Wirkus, a former vice president of Hayward, testified that there was no distinction between a "working" and "non-working" foreman. He testified that, depending on how the job at a particular site evolved, a foreman may not work with tools for a period of time, but then may be required to work with tools. Whether the foreman ...


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