Appeal from the Human Rights Commission No. 1990-CN-3803 ALS No. 5127
The opinion of the court was delivered by: Justice Theis
Complainant, Peter Van Campen, filed a charge of discrimination against respondent, International Business Machines Corporation (IBM), with the Illinois Department of Human Rights and a complaint with the Illinois Human Rights Commission (Commission). In these documents, Van Campen alleged that IBM discriminated against him based on a handicap in violation of the Illinois Human Rights Act (the Act). Ill. Rev. Stat. 1989, ch. 68, par. 1-101 et seq. (recodified at 775 ILCS 5/1-101 et seq. (West 2000)). After a 17-day hearing, the administrative law judge (ALJ) found that Van Campen failed to prove a prima facie case of handicap discrimination and recommended that the Commission dismiss his complaint with prejudice. The Commission affirmed and adopted, in part, the decision of the ALJ, finding that Van Campen was not handicapped as defined in the Act. Van Campen now appeals, arguing that the Commission erred in (1) concluding that Van Campen's disability was related to his ability to perform his job and, thus, he was not handicapped under the Act; and (2) dismissing the complaint even though IBM failed to consider the possibility of reasonable accommodation. IBM cross-appeals, contending that the Commission erred in not affirming alternative bases for the ALJ's decision and that additional grounds on which this court could affirm are present in the record. For the reasons set forth below, we affirm.
The Commission made the following factual findings based on the evidentiary hearing before the ALJ and the ALJ's recommended decision. Van Campen worked for IBM from 1973 to May 1990 in various capacities. In December 1987, Van Campen was promoted to account systems engineer (SE), which involved overseeing the installation of IBM operating systems at clients' offices and trouble-shooting for clients with IBM software. Van Campen received three performance awards in 1989, two for his role as part of a team of IBM employees for a large sale to Citicorp. Since 1989, Van Campen has suffered from an immune deficiency which caused him to be more susceptible to, and ill from, minor illnesses. Additionally, Van Campen was clinically depressed, sometimes making it difficult to wake up in the morning. IBM management referred employees with medical conditions to IBM's medical department (IBM Medical), which made all determinations as to the appropriateness and nature of an accommodation.
Van Campen's supervisor in 1988 and 1989, Verlene Gardner, testified that Van Campen was required to be at work and on time during business hours and to telephone her when he would be absent or late. At IBM, the business day lasted from 8:30 a.m. to 5 p.m., with one hour for lunch. When an employee was absent, his manager was required to have another SE cover the absent employee's responsibilities. On at least two occasions, Gardner was unable to locate Van Campen during business hours. Both times, she informed Van Campen that she needed to know where he was during the workday.
In November or December of 1989, Van Campen's new supervisor, Mike Hlebasko, attempted to contact him. When he found Van Campen at home, Hlebasko told him to be at work during business hours and to inform Hlebasko if he would be working from home. Van Campen missed work twice in December 1989 and did not return Hlebasko's calls or inform him of his absence until the next day, despite warnings from Hlebasko. Van Campen was absent due to illness approximately 13 times in 1989.
On January 18, 1990, Van Campen called Dr. Foster at IBM Medical and explained that he was having difficulty arriving at work on time. Foster told him to try to reduce the amount of absences and wake up earlier in the morning. Van Campen missed work due to illness without informing Hlebasko on January 22, 1990. Foster told Hlebasko that she needed signed medical releases from Van Campen so that she could speak with his physicians. Hlebasko told Van Campen to give IBM Medical a release and informed him that a condition of his employment was adherence to IBM's attendance policy. Van Campen was absent again on January 25, 1990.
After Van Campen saw Foster on January 26, 1990, Foster sent Hlebasko a note stating that Van Campen was doing well. Hlebasko informed his supervisor, Bill Brennan, that Van Campen was consistently absent and it was affecting his job performance. In January or February, Brennan learned that Van Campen had missed meetings with Citicorp. Additionally, Van Campen failed to timely respond to work-related phone calls. At this time, Hlebasko began keeping notes of his conversations with Van Campen.
IBM's progressive discipline procedure for handling employee attendance problems called for, first, a verbal warning or counseling and, second, the issuance of a condition of employment (COE) letter, which informed the employee that his or her behavior was unacceptable and what the employee could do to remedy the situation. If the problem persisted, IBM terminated the employee.
Van Campen missed work March 1 and 2, calling to inform Hlebasko only on March 2. That day, Hlebasko learned that Van Campen failed to fill two software orders for Citicorp and later learned that Van Campen failed to order cables for another client. When Van Campen returned to work on March 3, Hlebasko reiterated that he needed to be advised if Van Campen would not be at work.
On March 13, 1990, Van Campen again missed work and did not respond to an emergency software problem at Citicorp. When Hlebasko met with Van Campen, Van Campen first informed Hlebasko of his depression and immune deficiency. Hlebasko asked Van Campen to see IBM Medical and informed him that his work was deficient. Hlebasko then imposed a requirement on Van Campen that he call Hlebasko the first thing every morning to advise him that he was at work. While Van Campen was the only employee under such an obligation, he was the only employee who was occasionally unavailable to Hlebasko during working hours.
On March 16, 1990, Van Campen was late to work, but did not call Hlebasko. On April 6, 1990, Van Campen left Hlebasko a message at noon, stating that he was working at Citicorp that day. On April 10, Van Campen phoned Hlebasko at 8 a.m. and 10 a.m., saying he would be late. Van Campen failed to call Hlebasko on April 11, but gave him a doctor's note at 2:30 p.m. Hlebasko discussed Van Campen's attendance with Brennan on April 12. Brennan advised Hlebasko to issue Van Campen a COE letter.
Van Campen met with Brennan on April 12 and explained that he suffered from depression, diarrhea, and side effects of medication. He stated he was not able to arrive at work on time and asked Brennan to get Hlebasko "off his back." Brennan informed Van Campen that he needed an orderly work schedule because employees were dependent on each other and stated that Van Campen needed to come to work on time or risk his job. Brennan further told Van Campen that his doctors should speak with IBM Medical concerning his condition and any special accommodations. When Van Campen replied that his doctors would not provide this information, Brennan stated that his doctors were costing him his job.
On April 16 or 17, 1990, Hlebasko met with Van Campen, discussed his attendance record, and issued a COE letter. The letter stated Hlebasko's concerns about Van Campen's absenteeism and tardiness and IBM Medical's opinion that he was fit for work and imposed several conditions on his employment. Van Campen was to report to work, either at One IBM Plaza or a client location, from 8:30 a.m. to 5 p.m., Monday through Friday. In the event of illness, he must contact a supervisor by 8:30 a.m. and present a doctor's note stating the date and nature of treatment. Van Campen, Hlebasko and Foster then had a conversation where Van Campen explained that his condition prevented him from ...