{ "id": 3483085, "name": "KENNETH S. KIRBY, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee", "name_abbreviation": "Kirby v. Illinois Central Gulf Railroad", "decision_date": "1983-09-27", "docket_number": "No. 4-83-0177", "first_page": "1070", "last_page": "1074", "citations": [ { "type": "official", "cite": "117 Ill. App. 3d 1070" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "415 N.E.2d 1341", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5536739 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0668-01" ] }, { "cite": "385 N.E.2d 39", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "43" }, { "page": "43" }, { "page": "43" } ], "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 512", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3315776 ], "weight": 4, "pin_cites": [ { "page": "516" }, { "page": "516-17" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0512-01" ] }, { "cite": "432 N.E.2d 270", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "271" }, { "page": "273" }, { "page": "274" }, { "page": "274" } ], "opinion_index": 0 }, { "cite": "89 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5494089 ], "weight": 5, "pin_cites": [ { "page": "165" }, { "page": "169" }, { "page": "170" }, { "page": "170-71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0163-01" ] } ], "analysis": { "cardinality": 515, "char_count": 10486, "ocr_confidence": 0.748, "pagerank": { "raw": 6.679677357637078e-08, "percentile": 0.4064277492626018 }, "sha256": "9051ba70765a1fa51943892ab49225de595367855f79f72e6a09d3a9d5470a6d", "simhash": "1:8f17e702b6d7b46e", "word_count": 1729 }, "last_updated": "2023-07-14T15:08:51.886955+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KENNETH S. KIRBY, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE MILLER\ndelivered the opinion of the court:\nOn June 18, 1982, Kenneth S. Kirby filed a two-count complaint against the Illinois Central Gulf Railroad Company based upon the railroad\u2019s alleged unlawful refusal to hire him. Count I of the complaint was brought under the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1979, ch. 38, par. 65 \u2014 21 et seq.) (EOHA). Count II alleged breach of contract. The trial court dismissed both counts with prejudice. Kirby appeals the order of dismissal only as to count I.\nThe complaint alleges that plaintiff applies for a position of employment as carman apprentice with the railroad, in December 1979. Kirby passed an aptitude test administered by the railroad and in January 1980 Illinois Central informed him that he was hired for the position. On March 10, 1980, following notification of plaintiff\u2019s hiring, the railroad advised Kirby that he was disqualified from employment, because the physical examination had revealed a back condition, spina bifida of L-5.\nCount I of the complaint purports to allege a cause of action under the EOHA, in that the \u201cdefendant has perceived a condition of spina bifida of L-5 on the part of plaintiff as imposing a severe barrier upon the ability of plaintiff to perform work.\u201d The allegations of count I further state that \u201cthe condition of plaintiff\u2019s back imposes no barrier upon his ability to perform work, including heavy lifting or stressful work.\u201d On January 27, 1983, the trial court dismissed the complaint with prejudice. The trial judge found that count I of the complaint failed to state a cause of action under the EOHA, because it did not allege a handicap within the meaning of the Act.\nOn appeal, Kirby contends that the trial court erred in dismissing count I of the complaint, because it is not necessary to allege the existence of a handicap in order to state a valid cause of action under the Act. He asserts that, in lieu of such an allegation, it is sufficient to allege the mere perception of a handicap by a prospective employer. The railroad responds that in order to state a cause of action under the EOHA, a plaintiff must allege the actual existence of a handicap, as opposed to the mere perception of a handicap. We agree with the defendant, as the trial court did, and affirm the dismissal of the complaint.\nAlthough the EOHA was repealed and replaced with the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 \u2014 101 et seq.) subsequent to the conduct in question here, there is no dispute that the former act controls. (See Lyons v. Heritage House Restaurants, Inc. (1982), 89 Ill. 2d 163, 165, 432 N.E.2d 270, 271.) Section 3 of the EOHA provides in part:\n\u201cIt is an unlawful employment practice for an employer:\n(1) to refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions or privileges of employment, otherwise lawful, because of such individual\u2019s physical or mental handicap, unless it can be shown that the particular handicap prevents the performance of the employment involved ***.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 65 \u2014 23.)\nA \u201cphysical or mental handicap\u201d is defined by the terms of the Act in part as \u201ca handicap unrelated to one\u2019s ability to perform jobs or positions available to him for hire or promotion ***.\u201d Ill. Rev. Stat. 1979, ch. 38, par. 65 \u2014 22.\nThe first physical disability case arising under the Act was Advocates for the Handicapped v. Sears, Roebuck & Co. (1978), 67 Ill. App. 3d 512, 385 N.E.2d 39. In Advocates the complaint alleged that the plaintiff suffered a kidney impairment which did not affect his ability to perform tasks other than heavy lifting. The plaintiff applied for a job with Sears and was told that, pending medical certification, there would be a position for him with the company. He did not receive the required medical certification, however, and he was not offered employment, allegedly on grounds that Sears deemed the plaintiff an uninsurable risk under the company\u2019s self-insurance program. The trial court dismissed the complaint brought under the EOHA in part on grounds that the plaintiff was not handicapped in the meaning of the. Act.\nOn review, the appellate court noted that the statutory definition of \u201cphysical handicap\u201d is circular. The plaintiff argued that for any physical condition to reach the level of a handicap protected by the Act, an employer need only act upon that condition and deny the individual employment. The appellate court rejected this suggestion in favor of \u201ca more objective criteria.\u201d (67 Ill. App. 3d 512, 516, 385 N.E.2d 39, 43.) In concluding that the plaintiff\u2019s kidney ailment was not a handicap under the Act, the appellate court set forth the following standard:\n\u201cWe believe *** that in enacting .this legislation, the General Assembly had in mind a class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions.\n*** [T]he question of whether a person is handicapped turns upon whether the character of the disability is one which is generally perceived as one which severely limits the individual in performing work-related functions.\u201d (67 Ill. App. 3d 512, 516-17, 385 N.E.2d 39, 43.)\nThe Advocates court affirmed the dismissal of the complaint on the basis that the physical condition in issue was not of the nature which fell within the commonly understood meaning of the term \u201cphysical handicap.\u201d\nThe Illinois Supreme Court construed the same provisions of the Act in Lyons v. Heritage House Restaurants, Inc. (1982), 89 Ill. 2d 163, 432 N.E.2d 270. In Lyons, the plaintiff alleged that she had been discharged or suspended from employment after being diagnosed as having cancer of the uterus. The complaint stated that this physical condition had no effect on the plaintiff\u2019s ability to perform the tasks of her employment. The complaint, brought under the EOHA, was dismissed by the trial court on grounds that the physical condition alleged did not constitute a handicap within the meaning of the Act.\nOn review in this court, the order of dismissal in Lyons was reversed. Following examination of similar State and Federal legislation, this court concluded that the physical condition alleged could be equated with a physical handicap and as such could form the basis for a cause of action under the EOHA. Lyons v. Heritage House Enterprises (1981), 92 Ill. App. 3d 668, 415 N.E.2d 1341.\nThe supreme court granted leave to appeal and reversed the decision of the appellate court. In seeking to develop an acceptable definition of \u201cphysical handicap\u201d the supreme court initially observed:\n\u201cNot all abnormal physical conditions are handicaps. Some impose no limitations at all on everyday activity such as the lack of tonsils or an appendix, acne or dandruff; others are so temporary in effect that they cannot be considered a substantial limitation on activity, such as colds, flu or mumps. These cannot be called handicaps.\u201d (89 Ill. 2d 163, 169, 432 N.E.2d 270, 273.)\nExpressly adopting the first branch of the standard stated in Advocates, the supreme court held that the courts should in each case apply the following definition: \u201cthe class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions.\u201d \u201cMajor life function,\u201d in turn, would include employment and the performance of manual tasks. 89 Ill. 2d 163, 170, 432 N.E.2d 270, 274.\nBased on this standard, the supreme court affirmed the dismissal of the complaint in Lyons. The court briefly summarized the result in the last two sentences of that opinion:\n\u201cThe plaintiff has not alleged that her cancer has substantially hindered her in any of these [major life] activities or any other activities or that her employer perceived her condition as causing such a hindrance. In our judgment, she is not handicapped within the meaning of the Illinois Constitution or the Equal Opportunities for the Handicapped Act.\u201d (Emphasis added.) 89 Ill. 2d 163, 170-71, 432 N.E.2d 270, 274.\nIn the case at bar, the controversy hinges on the parties\u2019 conflicting interpretations of the language quoted above. Plaintiff focuses upon the italicized language and has pleaded that defendant perceived his back condition as imposing a severe barrier to his ability to work. Kirby did not allege that he suffered a handicap, but specifically averred that his physical condition imposed no barrier to his employment performance. He argues that the allegation that the railroad perceived his back condition to be a handicap was sufficient to state a cause of action under the EOHA, as interpreted by the supreme court in Lyons. Defendant maintains that Lyons does not permit such pleading. The railroad insists that an allegation of the existence of a handicap is required to state a cause of action under the Act.\nWe hold that pleading the existence of a handicap is a threshold requirement for stating a cause of action under the EOHA. Secondly, it is necessary' to allege that the complained-of discriminatory employment practice occurred because of the perception of the handicap. The statute plainly requires the pleading of both elements. (Ill. Rev. Stat. 1979, ch. 38, par. 65 \u2014 23.) Plaintiff\u2019s theory that only the perception of a handicap need be alleged was previously rejected by the appellate court in Advocates for the Handicapped v. Sears, Roebuck & Co. (1978), 67 Ill. App. 3d 512, 516, 385 N.E.2d 39, 43. Moreover, both Advocates and the supreme court\u2019s opinion in Lyons reflect that the allegation of the existence of a handicap is a necessary element of the cause of action.\nIn the case at bar, plaintiff concedes that he did not plead the existence of a handicap. To the contrary, his position is that he does not suffer a handicap. The EOHA does not provide a remedy to persons who are not in fact handicapped. The complaint under consideration did not state a cause of action under the Act. We affirm the order of dismissal.\nAffirmed.\nMILLS and GREEN, JJ., concur.", "type": "majority", "author": "JUSTICE MILLER" } ], "attorneys": [ "Glenn A. Stanko, of Reno, O\u2019Byrne & Kepley, of Champaign, for appellant.", "Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Janet A. Flaccus, of counsel), for appellee." ], "corrections": "", "head_matter": "KENNETH S. KIRBY, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.\nFourth District\nNo. 4-83-0177\nOpinion filed September 27, 1983.\nGlenn A. Stanko, of Reno, O\u2019Byrne & Kepley, of Champaign, for appellant.\nPhebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Janet A. Flaccus, of counsel), for appellee." }, "file_name": "1070-01", "first_page_order": 1092, "last_page_order": 1096 }