{ "id": 2521270, "name": "ILLINOIS BELL TELEPHONE COMPANY, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents", "name_abbreviation": "Illinois Bell Telephone Co. v. Human Rights Commission", "decision_date": "1989-11-03", "docket_number": "No. 1\u201487\u20142415", "first_page": "1036", "last_page": "1051", "citations": [ { "type": "official", "cite": "190 Ill. App. 3d 1036" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "442 U.S. 397", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531846 ], "weight": 3, "pin_cites": [ { "page": "410, 412" }, { "page": "990, 992" }, { "page": "2369, 2370" } ], "opinion_index": 0, "case_paths": [ "/us/442/0397-01" ] }, { "cite": "94 L. Ed. 2d 307", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 3941224, 1131252 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/338/0521-01", "/us/480/0273-01" ] }, { "cite": "480 U.S. 273", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131252 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/480/0273-01" ] }, { "cite": "623 F. Supp. 1181", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3819059 ], "year": 1988, "pin_cites": [ { "page": "1186" } ], "opinion_index": 0, "case_paths": [ "/f-supp/623/1181-01" ] }, { "cite": "504 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576202 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0695-01" ] }, { "cite": "523 N.E.2d 1155", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 979", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551482 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0979-01" ] }, { "cite": "510 N.E.2d 1226", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 1054", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3544412 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/1054-01" ] }, { "cite": "506 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3647941 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0424-01" ] }, { "cite": "478 N.E.2d 1115", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530559 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0221-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "447 N.E.2d 418", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 409", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625136 ], "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0409-01" ] }, { "cite": "496 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 395", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3571570 ], "year": 1983, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0395-01" ] }, { "cite": "432 N.E.2d 270", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5494089 ], "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0163-01" ] }, { "cite": "389 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "75 Ill. 2d 358", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990377 ], "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0358-01" ] }, { "cite": "469 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "103 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152614 ], "year": 1979, "pin_cites": [ { "page": "206-07" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0192-01" ] }, { "cite": "510 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 158", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3544395 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0158-01" ] }, { "cite": "466 N.E.2d 1050", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "1053" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 1021", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633054 ], "year": 1987, "pin_cites": [ { "page": "1023-24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/1021-01" ] }, { "cite": "518 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582311 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0530-01" ] }, { "cite": "448 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 300", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592288 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0300-01" ] }, { "cite": "377 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3349091 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0352-01" ] }, { "cite": "403 N.E.2d 83", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 793", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3222537 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0793-01" ] }, { "cite": "502 N.E.2d 17", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 234", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502837 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0234-01" ] }, { "cite": "498 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 497", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604798 ], "weight": 2, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0497-01" ] } ], "analysis": { "cardinality": 1237, "char_count": 34890, "ocr_confidence": 0.78, "pagerank": { "raw": 3.296285651478688e-07, "percentile": 0.8716199284205373 }, "sha256": "087385ba505e700cf0dd06e00748e27e58a94052bec9590d37e01ae88a88d253", "simhash": "1:5db6bd4fecd56407", "word_count": 5380 }, "last_updated": "2023-07-14T21:35:40.569733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ILLINOIS BELL TELEPHONE COMPANY, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents." ], "opinions": [ { "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nPetitioner, Illinois Bell Telephone Company, appeals from a decision of the Illinois Human Rights Commission (Commission) that petitioner unlawfully discriminated against petitioner\u2019s employee, complainant Mary Amos, in discharging her because of her absenteeism occasioned by her endometriosis disease handicap, and because of petitioner\u2019s unreasonable failure to accommodate her handicap. Petitioner was ordered to reinstate complainant in her employment. We affirm.\nThe testimony presented at the evidentiary hearing established the following.\nPrior to complainant\u2019s employment by petitioner, complainant filled out medical forms and underwent a medical examination at petitioner\u2019s demand and direction. On the medical forms, complainant stated that she suffered from severe menstrual cramps and pain which could cause her to miss work for one or two days every two months.\nIn March 1970, petitioner hired complainant as a central office technician, and six months later, petitioner promoted her to the position of central office frameman. Complainant remained in the central office frameman position until she was again promoted in 1974, four years later, to the position of central office maintenance woman, which title was later changed to central office technician.\nComplainant\u2019s duties as a central office technician entailed testing and maintaining equipment in the toll department. The toll department was part of the central office, and complainant worked in a unit called the \u201cn-carrier unit.\u201d As a member of the \u201cn-carrier unit,\u201d complainant was allowed to trade off-days with other employees under a system known as the \u201cnon-schedule days\u201d system. This system provided employees flexibility and allowed them to alter their work and off-day schedules, and permitted them to work on weekends and have two weekdays off. Other units within the toll department utilized this same flexible \u201cnon-schedule days\u201d system in scheduling work and off-days.\nIn 1978, complainant was transferred to the \u201cpre-service unit\u201d within the toll department, and in 1979, she was transferred out of the toll department and into the \u201cpre-service unit\u201d of the \u201cSSB\u201d department. Neither of these preservice units utilized the flexible \u201cnon-schedule days\u201d system in programming employee\u2019s duty and off-day assignments. Complainant remained in the \u201cpre-service unit\u201d of the SSB department until February 23, 1981, when petitioner terminated her employment because of complainant\u2019s absenteeism.\nDuring complainant\u2019s employment with petitioner, she continuously suffered severe menstrual cramps and pain. Complainant initially saw Dr. Moragne but later switched to Dr. Chatman, because he was reputed to be a specialist in a new procedure for diagnosing the cause of menstrual cramps and pain.\nOn June 5, 1979, Dr. Chatman performed a laparoscopy, a diagnostic procedure, on complainant to determine the cause of her menstrual cramps or dysmenhorrea. Dr. Chatman concluded that the cause of complainant\u2019s menstrual cramps was a disease called endometriosis, which caused scar tissue to build up on her uterine lining. Dr. Chatman prescribed danocrine to aid in dissolving some of the scar tissue. After the laparoscopy and danocrine treatment, complainant\u2019s extreme menstrual cramps and pain subsided, but she still experienced severe discomfort.\nOn April 14, 1980, upon Dr. Chatman\u2019s recommendation, complainant underwent further diagnostic surgery to determine the effectiveness of the danocrine treatment. The results were favorable, and Dr. Chatman discontinued the danocrine treatment. Upon the return of her menstrual cycle, however, complainant again began to experience severe pain. Dr. Chatman recommended that complainant \u201cwait and see\u201d how her body would react to the problem.\nIn December 1980, Dr. Chatman recommended that complainant undergo a laparotomy, a corrective surgical procedure to remove the scar tissue and implants of the endometrium lining. Dr. Chatman scheduled the laparotomy to be performed on January 16,1981.\nIn late 1980, at petitioner\u2019s request, complainant had a health review by petitioner\u2019s medical department. Shortly thereafter, complainant met with Hardin McCain, petitioner\u2019s employment manager. McCain told complainant that he had received the results of her health review conducted by petitioner\u2019s medical department, and McCain reiterated the hysterectomy recommendation of petitioner\u2019s medical department to eliminate her menstrual pains and cramps. Complainant responded that she did not want to have a hysterectomy because she did not want to preclude herself from having children in the future. McCain then told complainant that her next absence from work would result in a one-day suspension and that subsequent absences would result in a five-day suspension with intent to terminate. Complainant informed McCain of her scheduled surgery in January 1981, but McCain reiterated his warning that her absences would result in her suspension. Dr. Chatman was unable to perform the scheduled January 16, 1981, laparotomy because \u201cthe disease had progressed so much and so rapidly that it would have been dangerous to do it.\u201d Dr. Chat-man told complainant that \u201che would have endangered some other organs\u201d if he had performed the laparotomy. Dr. Chatman again prescribed danocrine.\nComplainant was suspended without pay for one day because of her absence from work on December 29, 1980, the cause of which was severe menstrual cramps and pain. On January 16, 1981, she underwent surgery and missed work for 26 days. She returned to work on February 23, 1981, only to be told that she had been suspended with intent to terminate. Petitioner terminated complainant on February 23,1981.\nShortly after complainant was terminated by petitioner, complainant underwent surgery called presacral neurectomy, a corrective surgery to lessen the pain associated with menstrual cramps.\nThe record reveals that during the period that complainant was employed in those units which utilized the flexible \u201cnon-schedule days\u201d system, complainant was absent from her employment for only five days in 1975, none in 1976 and for only four days in 1977. After being transferred in 1978 to the \u201cpre-service\u201d unit which did not utilize the flexible \u201cnon-scheduled days\u201d system, however, complainant\u2019s attendance record steadily deteriorated. She was absent from work for nine days in 1978, 26 days in 1979, and 42 days in 1980. Of the 26 days complainant was absent from work in 1979, 15 were due to surgery, and the remaining 11 days she missed were due to her menstrual cramps. In 1980, of the 42 days complainant was absent from work, 20 were due to her menstrual cramps. Finally, between January 1, 1981, and February 23, 1981, the date on which petitioner terminated her, complainant was absent 27 days because of surgery.\nComplainant filed her complaint against petitioner with the Illinois Department of Human Rights (Department), alleging that petitioner unlawfully discriminated against her on the basis of her sex and her handicap, to wit, endometriosis. An investigation was conducted, and on March 23, 1983, the Department filed a complaint of civil rights violation against petitioner. In its complaint, the Department alleged that petitioner discriminated against complainant because of her female sex and her endometriosis disease handicap.\nThe Department held an evidentiary hearing over a five-day period before administrative law judge (ALJ) Sandra Y. Jones. ALJ Jones presided over the complete evidentiary hearing until its conclusion but resigned from the Commission before writing her interim recommended order and decision. Prior to her resignation from the Commission, however, ALJ Jones prepared a report of her findings, conclusions and her impressions of the testimony presented at the evidentiary hearing, which she submitted to Richard J. Gonzalez, the substituting administrative law judge. ALJ Gonzalez prepared the interim recommended order and decision.\nIn his interim recommended order and decision, ALJ Gonzalez alluded to ALJ Jones\u2019 resignation and cited the basis of his authority to write the interim order and decision. ALJ Gonzalez based his order and decision on an examination of the record and on the written report of ALJ Jones\u2019 findings, conclusions and impressions of the testimony.\nALJ Gonzalez found that the preponderance of the evidence sustained the complainant\u2019s complaint of handicap discrimination but he dismissed complainant\u2019s charge of sex discrimination on the ground that petitioner\u2019s articulated reason of excessive absenteeism was not a pretext for unlawful sex discrimination. ALJ Gonzalez concluded that endometriosis was a handicap within the meaning of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1 \u2014 103), and with reasonable accommodation, would not affect complainant\u2019s ability to perform her job. ALJ Gonzalez specifically noted that the designation \u201cmodification of work schedules\u201d in section 4(a) of the Commission\u2019s rules was the type of accommodation contemplated within petitioner\u2019s organization which provided a degree of flexibility to employees in their work schedules, namely the aforementioned flexible \u201cnon-schedule days\u201d system. ALJ Gonzalez further found that complainant\u2019s particular handicap was well suited for accommodation because it involved predictable periods of disability.\nALJ Gonzalez also noted that section 4(a) of the Commission\u2019s rules \u201cplaces a burden upon the employer to show that a requested accommodation could either be overly expensive or unduly disrupt the conduct of its business.\u201d ALJ Gonzalez pointed out that petitioner already had in place a mechanism, the flexible \u201cnon-schedule days\u201d system, which could have accommodated complainant and reduced her absent days to an acceptable number, but petitioner refused to accommodate her for reasons which were directly related to her handicap.\nPetitioner\u2019s express reasons for failing to accommodate complainant were that petitioner\u2019s overall staffing balance would have been upset and that complainant\u2019s transfer would have contravened a company policy that required good attendance as a condition to a transfer. The Commission found that petitioner had failed to rebut complainant\u2019s prima facie case of handicap discrimination by petitioner. ALJ Gonzalez found that because transfers were not unusual in petitioner\u2019s large organization, petitioner could have accommodated complainant by exchanging her with another employee working in a unit that utilized the \u201cnon-scheduled days\u201d system. As to petitioner\u2019s policy requiring good attendance as a condition of transfer, ALJ Gonzalez stated:\n\u201cWhatever value such policy may have in the abstract, adherence to this policy cannot justify a failure to accommodate when the precise reason for the transfer request is to improve attendance. In a sense, the mere existence of the policy is proof of [petitioner\u2019s] refusal to meet its affirmative duty to reasonably accommodate its employee.\u201d\nALJ Gonzalez concluded that petitioner\u2019s failure to transfer complainant to a unit utilizing the \u201cnon-scheduled days\u201d system was an unreasonable refusal to accommodate her handicap in light of the overwhelming evidence that petitioner could have done so. ALJ Gonzalez found that petitioner unlawfully discriminated against complainant on the basis of her handicap when petitioner unreasonably refused to provide available \u201cnon-schedule days\u201d employment accommodation to complainant.\nOn July 8, 1985, petitioner filed its exceptions to ALJ Gonzalez\u2019s interim order. ALJ Gonzalez filed his recommended order and decision on September 19, 1985. On June 9, 1986, the Commission issued its order and decision. On June 30, 1986, petitioner filed an application for rehearing before the entire Commission. The Commission set oral arguments for November 19, 1986. On April 1, 1987, the Commission issued its order and decision that petitioner had unlawfully discriminated against complainant on the basis of her endometriosis disease handicap. On July 31, 1987, the petitioner appealed pursuant to section 8 \u2014 111 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 \u2014 111(A)(3)).\nPetitioner contends before us that it was error for ALJ Gonzalez to prepare a recommended order and decision when he was not the ALJ who presided over the evidentiary hearing and did not hear the witnesses or observe them testify. Petitioner argues that because ALJ Jones presided over the evidentiary hearing, the substitution of ALJ Gonzalez to prepare the recommended order and decision was erroneous. In support of its contention, petitioner relies on Quincy Country Club v. Human Rights Comm\u2019n (1986), 147 Ill. App. 3d 497, 498 N.E.2d 316. Such reliance is misplaced because Quincy is clearly distinguishable from the case at bar.\nIn the instant case, the facts were uncontroverted and the witnesses\u2019 credibility was not an issue. The fact of complainant\u2019s absenteeism occasioned by her illness, from the surgery for her menstrual cramps and pain, and endometriosis was undisputed. The issues before the ALJ were legal, namely, whether complainant\u2019s physical condition constituted a handicap cognizable under the Act, and whether because thereof petitioner unreasonably discriminated against complainant in refusing to adjust complainant\u2019s work assignment to enable her to avoid her absences. Conversely, Quincy involved sex discrimination, and the facts were totally contested and the witnesses\u2019 credibility was not only an issue, it was the issue. Moreover, the complainant in Quincy did not contend that her conduct of which her employer complained was occasioned by any handicap on her part.\nIn Quincy, a substitute administrative law judge, who did not hear the evidence or observe the witnesses, prepared the interim recommended order and decision. The substituting ALJ in Quincy as in the case at bar based his order and decision on an examination of the record and on impressions of the credibility of the witnesses written by the ALJ who presided over the evidentiary hearing but who resigned from the Commission before preparing her interim recommended order and decision. Quincy Country Club\u2019s defense against the complainant\u2019s charge of sex discrimination was that it experienced cash shortages at the bar at which complainant worked, which the complainant denied and which presented the issue of truthfulness and therefore required the hearing officer to carefully evaluate the witnesses\u2019 demeanor and credibility during the hearing. The employer and the complainant in Quincy disputed the evidence on practically every crucial element, thereby necessitating the ALJ\u2019s ability to observe the witnesses\u2019 demeanor and assess their credibility to be a paramount requirement. The court in Quincy held that where the witnesses\u2019 credibility is the determining factor, the presiding administrative law judge must participate in the decision and the substituting ALJ\u2019s interim recommended order and decision based on his examination of the record and the presiding judge\u2019s written impressions of the witnesses\u2019 credibility were invalid. Quincy, 147 Ill. App. 3d 497, 500, 498 N.E.2d 316, 318-19.\nAs previously stated, the credibility of the witnesses in the case at bar was not a controverted factor. Unlike in Quincy, ALJ Gonzalez relied on uncontroverted employment and medical records and on the undisputed testimony of the witnesses to reach a decision. Petitioner\u2019s defense in the case at bar was based on the construction and interpretation of the statutes involved and the application of the Commission\u2019s rules and regulations, rather than on the credibility of the witnesses. In the case at bar, petitioner did not contest complainant\u2019s truthfulness when petitioner asserted that complainant was terminated because she was excessively absent from work because of her illness. Accordingly, substituting ALJ Gonzalez properly relied on presiding ALJ Jones\u2019 impressions of the witnesses and on his own examination of the record in preparing his recommended order and decision. Quincy is inapplicable to this case.\nAdditionally and more importantly, complainant contends that petitioner waived the issue of the substitution of ALJ Gonzalez for ALJ Jones when petitioner failed to raise the issue at any time during the administrative proceedings below. Complainant\u2019s position is well founded and valid. It is fundamental that issues not raised during an administrative proceeding are waived and will not be considered for the first time on appeal. (Heeren Co. v. Human Rights Comm\u2019n (1987), 150 Ill. App. 3d 234, 502 N.E.2d 17; Village of Cary v. Pollution Con trol Board (1980), 82 Ill. App. 3d 793, 403 N.E.2d 83; Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, 377 N.E.2d 1297.) Petitioner had ample opportunity during the administrative proceedings to raise the ALJ substitution issue but neglected to do so. Petitioner knew in advance that ALJ Gonzalez was substituting for ALJ Jones, and petitioner could have raised the issue in petitioner\u2019s July 8, 1985, exceptions to the ALJ\u2019s interim order; in petitioner\u2019s June 30, 1986, petition for rehearing before the Commission; and during petitioner\u2019s November 19, 1986, oral argument before the Commission, but petitioner failed to do so. Accordingly, petitioner cannot raise the issue for the first time on appeal and has waived it.\nPetitioner concedes that it failed to raise the ALJ substitution issue during the administrative proceedings but argues that the Commission acted without jurisdictional authority when it adopted the order and decision of ALJ Gonzalez, who did not preside over the evidentiary hearing, and therefore, petitioner urges, the issue can be raised for the first time on appeal. We disagree. Section 8 \u2014 106(I)(1) states:\n\u201cWhen all the testimony has been taken, the hearing officer [ALJ] shall determine whether the respondent has engaged in or is engaging in [a] civil rights violation ***.\u201d (Ill. Rev. Stat. 1987, ch. 68, par. 8-106(I)(l).)\nIn addition, sections 8 \u2014 107(E)(1) and (E)(2) statfe:\n\u201c(1) Following the filing of the findings and recommended order of the hearing officer [ALJ] *** the Commission *** shall review the record *** [and]\n(2) *** shall adopt the hearing officer [ALJ\u2019s] findings of fact if they are not contrary to the manifest weight of the evidence.\u201d (Ill. Rev. Stat. 1987, ch. 68, pars. 8 \u2014 107(E)(1), (E)(2).)\nThus, the Commission\u2019s function is to review the recommendations and findings of the ALJ hearing officer and adopt the factual findings if they are not against the manifest weight of the evidence. We have found no decided case directly on point, but we believe that the Commission\u2019s authority to review an ALJ hearing officer\u2019s findings and recommendations is not dependent on which particular ALJ prepares the recommendation order. We are of the opinion that the Commission\u2019s authority to review is neither invoked nor revoked because a substitute ALJ prepared the interim order and decision.\nPetitioner next contends that endometriosis disease is not a handicap within the meaning of the Act and argues that the Commission therefore erroneously applied the Act to endometriosis. Factual findings by an administrative agency are prima facie correct and may not be set aside unless they are against the manifest weight of the evidence. (Clark Oil & Refining Corp. v. Golden (1983), 114 Ill. App. 3d 300, 448 N.E.2d 958.) A reviewing court, however, is not bound to give the same deference to an administrative agency\u2019s conclusions of law and statutory construction as would be given factual findings, on which a reviewing court must exercise independent review and judgment. (Carson Pirie Scott & Co. v. Department of Employment Security (1987), 164 Ill. App. 3d 530, 518 N.E.2d 161; Flex v. Department of Labor, Board of Review (1984), 125 Ill. App. 3d 1021, 1023-24, 466 N.E.2d 1050, 1053.) Moreover, an administrative agency\u2019s statutory interpretations are not binding on a reviewing court and will be overturned if found to be erroneous. Moore v. Board of Trustees of the Sanitary District Employees\u2019 & Trustees\u2019 Annuity & Benefit Fund, (1987), 157 Ill. App. 3d 158, 510 N.E.2d 87.\nIn determining whether endometriosis is a handicap within the meaning of the Act, we must look to the purpose for which the Act was enacted and read the Act as a whole, mindful of all relevant parts such that each word, clause and section is given a reasonable meaning. (People v. Jordan (1984), 103 Ill. 2d 192, 206-07, 469 N.E.2d 569, 576.) Where a statute is clear, however, we may not depart from its clear language. Harvey Firemen\u2019s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363, 389 N.E.2d 151, 153.\nThe pertinent provision of the Act, section 1 \u2014 103(1), defines a handicap as:\n\u201c[A] determinable physical or .mental characteristic of a person including, but not limited to, a determinable physical characteristic which necessitates the person\u2019s use of a guide, hearing or a support dog, the history of such characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder and which characteristic:\n(1) *** is unrelated to the person\u2019s ability to perform the duties of a particular job or position.\u201d (Ill. Rev. Stat. 1987, ch. 68, par. 1 \u2014 103(I)(1).)\nThus, the plain language of section 1 \u2014 103(1) provides that an individual may be protected by the Act when he or she has a determinable physical characteristic which results from a disease and which is unrelated to his or her ability to perform a particular job or function, or when his or her condition is perceived as a handicap.\nThe supreme court construed handicap to include at least those individuals whose condition in fact hindered them from engaging in major life activities, and a major life activity encompasses employment. (Lyons v. Heritage Restaurants, Inc. (1982), 89 Ill. 2d 163, 170, 432 N.E.2d 270.) The Commission\u2019s rule on handicap discrimination in employment, section 2500.20(b), provides guidance on what may be considered a \u201cdeterminable physical or mental characteristic.\u201d The Commission\u2019s rule states as follows:\n\u201c(1) The definition is not confined to only those physical and mental conditions which are grave or extreme in nature. However, it is interpreted as excluding:\n(A) conditions which are transitory and insubstantial, and\n(B) conditions which are not significantly debilitating or disfiguring.\n(2) To be covered, a condition must be \u2018determinable\u2019 by recognized *** diagnostic techniques.\u201d (56 Ill. Adm. Code 2500.20(b) (1985).)\nIn applying the foregoing principles to the case at bar, it is clear that the Commission correctly construed the provisions of section 1\u2014 103(1) as applying to endometriosis. In the case at bar, complainant underwent a laparoscopy, and the disease of endometriosis was determined to be the source of her dysmenhorrea. In applying its rules on handicap discrimination, the Commission concluded that complainant was in fact handicapped. Administrative agencies are afforded substantial discretion by a reviewing court in construing and applying their own rules, and a reviewing court should interfere only where the agency\u2019s interpretation is plainly erroneous or inconsistent with long-settled constructions. Neff v. Miller (1986), 146 Ill. App. 3d 395, 402, 496 N.E.2d 1073, citing Phillips v. Hall (1983), 113 Ill. App. 3d 409, 421, 447 N.E.2d 418.\nPetitioner argues that the Commission\u2019s decision that complainant\u2019s condition constituted a handicap conflicts with a prior Commission decision that dysmenhorrea was not a handicap. (Handzik & Electromotive Division of General Motors Division (1986), 6 Ill. HRC Rep. 176.) We disagree. Handzik is distinguishable from the case at bar.\nIn Handzik, the Commission simply ruled that Karla Handzik\u2019s dysmenhorrea did not constitute a handicap within the meaning of the Act because she failed to establish that her dysmenhorrea was caused by either a disease, a congenital condition of birth or a functional disorder. In the case at bar, however, the undisputed evidence presented to the Commission was that complainant\u2019s painful menstruation, dysmenhorrea, was caused by the disease, endometriosis. Thus, unlike in Handzik, the complainant in the case at bar fell within the protection of the Act when she established that her physical impairment resulted from the disease endometriosis. Accordingly, in this case the Commission was correct in concluding that complainant\u2019s endometriosis constituted a handicap within the meaning of the Act. We are mindful of the plight of the large number of women who are afflicted by severe menstrual pain, and we recognize that all such conditions are not necessarily physical handicaps, but must be determined from the facts of each case. We are also aware of the intent of the legislature to protect only those who are handicapped within the meaning of the Act.\nThe Act provides for the protection of handicapped individuals from unlawful discrimination in employment. Section 2 \u2014 102(A) expressly states:\n\u201cIt is a civil rights violation:\n*** For any employer *** to act with respect to recruitment, *** selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination.\u201d Ill. Rev. Stat. 1987, ch. 68, par. 2-102(A).\nSection 1 \u2014 103(Q) defines the words \u201cunlawful discrimination\u201d as including discrimination against a person because of his handicap. (Ill. Rev. Stat. 1987, ch. 68, par. 1 \u2014 103(Q).) \u201cHandicap\u201d is defined in section 1 \u2014 103(1) of the Act.\nIllinois courts have adopted the three-step analysis enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, in analyzing employment discrimination cases under the Act. (See Village of Oak Lawn v. Illinois Human Rights Comm\u2019n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.) The complainant has the initial burden of proving by a preponderance of the evidence a prima facie case of unlawful discrimination. Once a complainant has met this burden, the employer may rebut it by articulating some legitimate, nondiscriminatory reason for its employment decision. If the employer meets this burden, the complainant must prove by a preponderance of the evidence that the employer\u2019s proffered reason was not a legitimate reason, but merely a pretext for the unlawful discrimination. Caterpillar, Inc. v. Human Rights Comm\u2019n (1987), 154 Ill. App. 3d 424, 506 N.E.2d 1029; Lipsey v. Human Rights Comm\u2019n (1987), 157 Ill. App. 3d 1054, 510 N.E.2d 1226; Villaqe of Oak Lawn v. Human Riqhts Comm\u2019n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.\nUnder the Act, a prima facie case of discrimination based upon a physical handicap is shown by establishing that the employee is handicapped, that an adverse job action related to the handicap was taken against the employee, and that the handicap is unrelated to the employee\u2019s ability to perform the job. Milan v. Human Rights Comm\u2019n (1988), 169 Ill. App. 3d 979, 523 N.E.2d 1155; Kenall Manufacturing Co. v. Human Rights Comm\u2019n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805.\nApplying these criteria to the case at bar, the complainant presented sufficient evidence to establish a prima facie case of discrimination based upon a physical handicap. The Commission was correct in construing the Act as applying to the complainant\u2019s endometriosis. There was sufficient evidence to support the Commission\u2019s findings that complainant\u2019s handicap was unrelated to her ability to perform her job.\nBased on the corroborated testimony of complainant\u2019s supervisors, coupled with complainant\u2019s performance and employment history, the Commission found that not only did complainant possess the requisite skills to perform her job functions but petitioner was so satisfied with her work that it promoted her from the clerical to the office technician position. Clearly, petitioner would not have promoted complainant if she was unable to perform the duties of her promoted position.\nComplainant may also be afforded protection under the Act upon a showing that her condition was perceived of by her employer as a handicap. There is sufficient evidence to support the Commission\u2019s finding that complainant satisfied this requirement. Hardin McCain, petitioner\u2019s manager, summed up petitioner\u2019s perception of complainant\u2019s condition in its responses to the following questions:\n\u201cQ. Well, now wait a minute, Mr. McCain, Mary returned to work on February 23rd, isn\u2019t that right, of 1981?\nA. According to that, yes.\nQ. And you met with Mary on February 23rd of 1981, isn\u2019t that right?\nA. This is the date she was suspended with intent to dismiss?\nQ. Correct.\nA. Yes, I recall now.\nQ. Why did you not give her a three day suspension at that time?\nA. Because when I had called the medical department and asked them about her results, they said [t]he surgery that she had was not the type that was going to rpevent [sic] her from having her old problem again, and that was as far as it could be told, there had been no change in her physical being.\nQ. Why did you skip a step Mr. McCain?\nA. Because it was the end of the line, if you are not going to improve, if there is nothing that had to be done, correctively, for her to improve, it was no need to keep her there.\u201d\nThus, petitioner\u2019s employee admitted in these foregoing responses that complainant was discharged because petitioner perceived no change in her physical condition after surgery. The Commission was therefore correct in finding that the decision to terminate complainant was based on petitioner\u2019s perception of complainant\u2019s physical handicap, endometriosis.\nNext, petitioner contends that the Commission\u2019s finding that complainant could have been accommodated by transferring her to another position was erroneous as a matter of law and against the manifest weight of the evidence. Petitioner also argues that an employer has no duty to accommodate a handicapped employee by way of a reassignment or transfer to another position. Petitioner further argues that complainant\u2019s numerous extended absences could not have been reduced even if she was placed in a unit that utilized the flexible \u201cnon-schedule days\u201d system. We disagree with these contentions.\nAn employer\u2019s duty to accommodate handicapped workers attaches when the employee asserts or claims that he or she would have performed the essentials of the job if afforded reasonable accommodation. (Carty v. Carlin (D.C. Md. 1985), 623 F. Supp. 1181, 1186.) Moreover, the Commission\u2019s rule places the burden on the employee to assert the duty and to show that the accommodation was requested and necessary for adequate job performance. Milan v. Human Rights Comm\u2019n (1988), 169 Ill. App. 3d 979, 523 N.E.2d 1155.\nThere is ample evidence in the record that complainant satisfied this burden. The record reveals that in 1974, complainant worked in the \u201cn-carrier unit\u201d of the toll department, which was part of the central office. The \u201cn-carrier unit\u201d utilized the flexible \u201cnon-scheduled days\u201d system. Complainant was subsequently transferred to another unit within the same toll department that did not utilize the \u201cnonscheduled days\u201d system. The duties of both the \u201cn-carrier\u201d and the \u201cpre-service\u201d units were not significantly different or particularly unfamiliar to the complainant since she had worked in both units. Placing her in a unit that utilized the flexible \u201cnon-scheduled days\u201d system would have provided complainant with the means of scheduling around the predictable days when she would be disabled.\nThe Commission found that complainant maintained a satisfactory attendance record while she was a member of the unit that utilized the flexible \u201cnon-schedule days\u201d system. Complainant\u2019s attendance deteriorated once she was placed in a unit that did not utilize the flexible \u201cnon-scheduled days\u201d system. Her deteriorating attendance was in large part due to petitioner\u2019s refusal to transfer her into a unit that utilized the flexible days system. Petitioner failed to implement the required reasonable accommodation which would have permitted complainant to rectify her attendance problem and overcome her handicap.\nThe Supreme Court in School Board v. Arline (1987), 480 U.S. 273, 287 n.17, 94 L. Ed. 2d 307, 321 n.17, 107 S. Ct. 1123, 1131 n.17, quoting Southeastern Community College v. Davis (1979), 442 U.S. 397, 410, 412, 60 L. Ed. 2d 980, 990, 992, 99 S. Ct. 2361, 2369, 2370, formulated a standard for determining when an accommodation by an employer is unreasonable, when it stated that an accommodation is unreasonable \u201cif it either imposes \u2018undue financial and administrative burdens\u2019 *** or requires \u2018a fundamental alteration in the nature of the program.\u2019 \u201d These criteria have been interpreted by the Commission\u2019s rules as placing a burden upon an employer to show that a requested accommodation would either be overly expensive or would unduly disrupt the conduct of its business.\nThere is ample evidence to support the Commission\u2019s findings that placing complainant in one of the toll department units that utilized the \u201cnon-schedule days\u201d system would not have been overly expensive or unduly disrupt petitioner\u2019s business. The mechanism for accommodating complainant\u2019s handicap was already in place. The Commission stated:\n\u201cThis case is unusual in that rarely can a [c]omplainant so demonstratively show that the sought accommodation would alleviate any problem caused by the handicap. Because [cjomplainant previously worked under the \u2018non-scheduled days\u2019 system within the \u2018carrier\u2019 unit, she could show beyond any doubt that it was an effective accommodation for her handicap, eliminating the need for any speculation on the part of the trier of fact.\u201d\nFor the foregoing reasons, the Commission\u2019s decision that petitioner unlawfully discriminated against complainant when it unreasonably failed to provide available accommodations to her handicap, endometriosis, was not against the manifest weight of the evidence.\nAccordingly, the Commission\u2019s decision and order is affirmed.\nAffirmed.\nCOCCIA and LORENZ, JJ., concur.", "type": "majority", "author": "JUSTICE PINCHAM" } ], "attorneys": [ "Francine Soliunas and Paul K. Whitsitt, both of Illinois Bell Telephone Company, of Chicago, for petitioner.", "Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.", "Stanley L. Hill & Associates, of Chicago, for respondent Mary Amos." ], "corrections": "", "head_matter": "ILLINOIS BELL TELEPHONE COMPANY, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.\nFirst District (5th Division)\nNo. 1\u201487\u20142415\nOpinion filed November 3, 1989.\nFrancine Soliunas and Paul K. Whitsitt, both of Illinois Bell Telephone Company, of Chicago, for petitioner.\nNeil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.\nStanley L. Hill & Associates, of Chicago, for respondent Mary Amos." }, "file_name": "1036-01", "first_page_order": 1058, "last_page_order": 1073 }