{ "id": 291553, "name": "CISCO TRUCKING COMPANY, INC., Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees", "name_abbreviation": "Cisco Trucking Co. v. Human Rights Commission", "decision_date": "1995-08-03", "docket_number": "No. 4\u201494\u20141032", "first_page": "72", "last_page": "77", "citations": [ { "type": "official", "cite": "274 Ill. App. 3d 72" } ], "court": { "name_abbreviation": "Ill. 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THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nComplainant, Richard Green, filed a charge of handicap discrimination with the Illinois Department of Human Rights (Department) against Ms former employer, Cisco Trucking Company, Inc. (Cisco), pursuant to section 1 \u2014 102(A) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1 \u2014 102(A)). Following a hearing, the administrative law judge (ALJ) entered a recommended order and decision in favor of complainant, and the Human Rights Commission (Commission) affirmed and adopted that decision, finding that Cisco had unlawfully discriminated against complainant when it put him on work layoff because of a perception of physical handicap. (In re Green (October 28, 1994), __Ill. Hum. Rights Comm\u2019n Rep._ (HRC No. 1988SN0570).) Cisco appeals to this court on direct administrative review pursuant to section 8 \u2014 111 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 \u2014 111) and Supreme Court Rule 335 (155 Ill. 2d R. 335), alleging (1) complainant failed to establish a prima facie case, (2) the Commission\u2019s finding of pretext was against the manifest weight of the evidence, and (3) the ALJ applied an incorrect legal standard to her factual findings. We affirm.\nComplainant was employed by Cisco from December 1981 until May 31, 1988. In May 1987, complainant injured his back in a work-related accident and was off work until the end of July, when he returned with a 50-pound weight restriction. After complainant began work loading his truck, Cisco informed him that its workers\u2019 compensation insurance carrier would not accept him with the weight restriction and he was returned to disability status. Complainant resumed therapy and a work-hardening program; in May 1988, he received a full release to return to work effective June 1, 1988. Although disputed, he testified he gave the written release to Cisco\u2019s dispatcher two weeks prior to his anticipated return. On May 31, 1988, complainant came to Cisco\u2019s facility to find out what truck he would be driving the following day. The dispatcher told him the selection would be made the next day. Shortly thereafter, Cisco\u2019s vice-president informed complainant he was laid off due to lack of work. The following week, John Boehler, another of Cisco\u2019s employees, was allowed to return to work following a month\u2019s disability leave for a scratched eye.\nThe ALJ found, and the Commission affirmed as not against the manifest weight of the evidence, that complainant had proved a prima facie case of discrimination based on a perceived handicap, the previous back Injury. While Cisco had articulated a legitimate, nondiscriminatory reason for the layoff \u2014 work shortage \u2014 its reason was found to be unbelievable and the ALJ concluded the evidence of record showed the reason given was merely a pretext for discrimination based on the perceived handicap.\nIn considering employment discrimination claims, our supreme court has adopted the three-prong test set forth in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. (Zaderaka v. Illinois Human Rights Comm\u2019n (1989), 131 Ill. 2d 172, 178-79, 545 N.E.2d 684, 687-88.) Under that test, (1) the employee must first establish a prima facie case of unlawful discrimination; (2) if the employee succeeds, a rebuttable presumption of unlawful discrimination arises and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision; and (3) if the employer carries its burden of production, the presumption falls and the employee must then prove the employer\u2019s reason was not its true reason but rather a pretext for unlawful discrimination. Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687.\nIn establishing a prima facie case of handicap discrimination under the Act, complainant was required to prove (1) that he is handicapped within the definition of section 1 \u2014 103(1) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 1 \u2014 103(1)); (2) that his handicap is unrelated to his ability to perform the functions of the job he was hired to perform; and (3) an adverse job action was taken against him related to his handicap. (Whipple v. Department of Rehabilitation Services (1995), 269 Ill. App. 3d 554, 557, 646 N.E.2d 275, 277.) Cisco makes the disingenuous claim that since Boehler was also handicapped due to his eye injury, complainant has failed to establish an element of his prima facie case because he has failed to show he was treated differently from employees who were not handicapped, i.e., no adverse actions related to his handicap were taken against him. Aside from the fact there is no evidence of record that Boehler was either handicapped or perceived to be so as the result of his eye injury or that other employees were ever involuntarily laid off, Cisco never raised this contention before the ALJ or in the exceptions filed before the Commission. Accordingly, it will not be considered on review.\nThe thrust of Cisco\u2019s argument is directed against the third prong of the McDonnell Douglas test. Cisco contends it had presented a legitimate reason for its layoff of complainant and the Commission\u2019s finding of pretext was against the manifest weight of the evidence. It points out that it presented evidence that both before and after complainant\u2019s layoff, mileage and revenues were declining and fewer drivers were required. In an apparent attempt to explain the different treatment afforded Boehler and complainant, Cisco points out that Boehler had maintained virtual daily contact during his absence and his return had been planned for, while complainant had not made any routine contact until he brought in his release. Cisco admits that complainant\u2019s lack of regular contact during his initial medical absence in July 1987 did not impede his return at that time and that it had no policy requiring employees to maintain any contact regarding their status.\nBoth the ALJ and the Commission found Cisco had articulated a legitimate, nondiscriminatory reason for complainant\u2019s layoff, i.e., a lack of work. Under the McDonnell Douglas test, complainant was then required to prove by a preponderance of the evidence that the articulated reason was not Cisco\u2019s true reason, but was instead a pretext for unlawful discrimination. (Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.) The ALJ found Cisco\u2019s witnesses incredible and its explanation for returning Boehler to work following complainant\u2019s layoff a pretext in view of the fact that (1) routes and trucks were assigned a day in advance with total mileage equalized between all drivers; (2) the two management witnesses gave conflicting views on when complainant exhibited his release, which of them had laid off complainant, and whether complainant would be returned to work; (3) Boehler was reported to have notified Cisco daily of his return date even though there would be no reason for an employee to reiterate information already provided; and (4) rather than follow past practice in requesting involuntary layoffs when mileage was down, Cisco\u2019s vice-president told complainant he was laid off as soon as he returned from disability status. The Commission found the factual findings of the ALJ and her conclusion that complainant had shown Cisco\u2019s proffered explanations were a pretext for unlawful discrimination not against the manifest weight of the evidence.\nA reviewing court will not upset credibility determinations made by the trier of fact and will sustain the decision of the Commission unless its factual findings are against the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 68, par. 8 \u2014 111(A)(2); Zaderaka, 131 Ill. 2d at 180, 545 N.E.2d at 688.) A finding is against the manifest weight of the evidence only if, in reviewing the entire record, a conclusion opposite that reached by the Commission is clearly evident. (Burnham City Hospital v. Human Rights Comm\u2019n (1984), 126 Ill. App. 3d 999, 1002-03, 467 N.E.2d 635, 637.) The Commission\u2019s disbelief of Cisco\u2019s witnesses and finding of pretext in its proffered reasons was not against the manifest weight of the evidence.\nAs it did before the Commission, Cisco contends the ALJ applied the wrong legal standard in finding that complainant had met his burden of persuading the trier of fact Cisco had unlawfully discriminated against him. Cisco claims that the ALJ based her finding of unlawful discrimination solely on her disbelief of Cisco\u2019s witnesses, a conclusion, standing alone, found to be insufficient in St. Mary\u2019s Honor Center v. Hicks (1993), 509 U.S. 502, 524, 125 L. Ed. 2d 407, 427, 113 S. Ct. 2742, 2756, for cases brought under provisions of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000e et seq. (1988)), commonly referred to as title VII.\nIn a later case applying the third prong of the McDonnell Douglas test, the United States Supreme Court had indicated that once the employer had articulated nondiscriminatory reasons for its action, the complainant could succeed in demonstrating intentional discrimination \"either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer\u2019s proffered explanation is unworthy of credence.\u201d (Emphasis added.) (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 256, 67 L. Ed. 2d 207, 217, 101 S. Ct. 1089, 1095.) The emphasized language in Burdine has been accepted by this court in Davis v. Human Rights Comm\u2019n (1993), 246 Ill. App. 3d 420, 422-23, 615 N.E.2d 1376, 1378, as well as by the Fifth District Appellate Court in Vidal v. Human Rights Comm\u2019n (1991), 223 Ill. App. 3d 467, 470, 585 N.E.2d 133, 135. The effect of this language was to render a finding of falsity in the employer\u2019s explanation sufficient in and of itself to compel a decision for the complainant. The court in Si. Mary\u2019s rejected that language as constituting inaccurate dictum inconsistent with the complainant\u2019s retention of the ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against him. It held that complainant must show not only that the employer\u2019s articulated reasons were incredible or a pretext, but also produce sufficient evidence to allow the trier of fact to make an additional finding, which may be inferred from the record, that those reasons were a pretext for unlawful discrimination. St. Mary\u2019s, 509 U.S. at 514-24, 125 L. Ed. 2d at 421-27, 113 S. Ct. at 2751-56.\nWe see logic in St. Mary\u2019s clarification of the shifting burdens of production and the static burden of persuasion requisite to sustain a case of unlawful discrimination. This analysis is consistent with the bursting-bubble theory of proof adopted in Illinois. (See Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 462, 448 N.E.2d 872, 877.) To the extent our analysis in Davis relied on the inaccurate dictum in Burdine, it is expressly rejected.\nIn this instance, we note that the Commission found the ALJ\u2019s findings consistent with the evidentiary standard expressed in St. Mary\u2019s \u2014 the ALJ based her finding of pretext for discrimination based on handicap not just on her disbelief of the reasons for complainant\u2019s layoff put forth by Cisco\u2019s witnesses, but on the record as a whole. The ALJ supported this finding with the fact that Boehler (who had no perceived handicap) was allowed to return from a medical leave less than a week after complainant was told there was no work.\nThe Commission affirmed and adopted the ALJ\u2019s findings as not contrary to the manifest weight of the evidence. (See Ill. Rev. Stat. 1987, ch. 68, par. 8 \u2014 111(A)(2).) We, similarly, conclude the Commission\u2019s decision was not against the manifest weight of the evidence. Therefore, the Commission\u2019s decision is affirmed.\nAffirmed.\nCOOK and GREEN, JJ., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "John L. Gilbert (argued) and Debra J. Meadows, both of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, of Edwardsville, for petitioner.", "James M. Drake (argued), of Springfield, for respondent Richard Green.", "James E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Jacqueline M. Zydeck, Assistant Attorney General (argued), of counsel), for respondent Human Rights Commission." ], "corrections": "", "head_matter": "CISCO TRUCKING COMPANY, INC., Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.\nFourth District\nNo. 4\u201494\u20141032\nArgued July 11, 1995.\nOpinion filed August 3, 1995.\nJohn L. Gilbert (argued) and Debra J. Meadows, both of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, of Edwardsville, for petitioner.\nJames M. Drake (argued), of Springfield, for respondent Richard Green.\nJames E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Jacqueline M. Zydeck, Assistant Attorney General (argued), of counsel), for respondent Human Rights Commission." }, "file_name": "0072-01", "first_page_order": 90, "last_page_order": 95 }