{ "id": 1096660, "name": "CONSTANTINE KOULEGEORGE, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees", "name_abbreviation": "Koulegeorge v. Human Rights Commission", "decision_date": "2000-09-29", "docket_number": "No. 1-98-4364", "first_page": "1079", "last_page": "1096", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 1079" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "654 N.E.2d 613", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291558 ], "year": 1995, "pin_cites": [ { "page": "1048" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/1039-01" ] }, { "cite": "925 F. 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THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nPetitioner Constantine Koulegeorge appeals from an order of respondent Illinois Human Rights Commission (Commission) dismissing his complaint for age discrimination pursuant to section 2 \u2014 102(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/2 \u2014 102(A) (West 1992)), based on the termination of his employment by respondent Tempel Steel Company (Tempel). On appeal, petitioner contends: (1) that the Commission did not have the statutory authority to enter a \u201cdirected finding\u201d dismissing his complaint; (2) he was only required to present \u201csubstantial evidence\u201d of discrimination to defeat Tempel\u2019s motion for a directed finding; (3) and a directed finding for Tempel was not appropriate because the administrative law judge (ALJ) and the Commission applied the wrong legal standard and ignored or misconstrued certain evidence supporting the allegations of his complaint. For the reasons set forth below, we affirm.\nThe following facts are based on a stipulation entered into by the parties prior to the hearing before the ALJ and submitted in a \u201cJoint Prehearing Memorandum\u201d (prehearing memorandum). Petitioner was born on July 25, 1939, and he began working for respondent Tempel as an hourly paid press operator in July 1968 at Tempel\u2019s motor lamination division in Chicago. Tempel\u2019s headquarters were located in Skokie. By 1970, petitioner had been promoted to dispatcher in the plant\u2019s production control department. William Schaller and Arthur Homyak were already working in the production control department when petitioner was assigned there. In 1973, petitioner was promoted to a salaried position as the production control staff assistant in the annealing department. By 1987, Schaller was the manager of the production control department, Homyak was the assistant manager, and petitioner continued to serve as the production control staff assistant. Also in 1987, Thomas Klawitter was hired by Tempel as another production control staff assistant. After he had completed his training in the various tasks performed by the production control department, Klawitter was primarily responsible for scheduling Tempel\u2019s slitting department. Petitioner was responsible for scheduling of the annealing department.\nIn March 1990, Tempel underwent a change of administration and began a process of corporate restructuring and review. In April 1990, following a review of the functions of the production control department, Tempel decided to eliminate both production control staff assistant positions. In 1991, Tempel employed a total of 691 people at its Chicago plant. In April 1991, Tempel laid off 79 hourly employees and 12 of the employees were over the age of 40. Tempel allowed 15 employees to transfer, 3 of whom were over the age of 40. Thomas Setlik, the project manager, had decided as part of the administrative review that began in 1990 to eliminate the two production control positions. Petitioner\u2019s position was eliminated, effective January 15, 1992, when he was 52 years old. He was informed of this decision, as directed by Setlik, by Arthur Canning, the corporate director of human resources. Schaller was the immediate supervisor of both petitioner and Klawitter at that time. Schaller was not consulted by Setlik regarding the elimination of positions by Tempel. Klawitter was 49 years old at that time. Petitioner had previously performed the duties performed by Klawitter and had also trained him in these duties.\nKlawitter remained working for Tempel until August 28, 1992, because, according to Tempel, the employee who was to assume Klawitter\u2019s job duties under the reorganization, Paul Rasborschek, who was age 54 and the manager of the slitting department, was on a disability leave of absence. Setlik also claimed that Klawitter was retained because he had been performing the slitting duties in the slitter department on a day-to-day basis while petitioner had not performed them within the last five years.\nTempel gave petitioner a severance package, which was contrary to its usual policy, which included his full salary and fringe benefit continuation for six months through July 15, 1992, and professional outplacement services at Tempel\u2019s expense. He had received a 2% merit raise in January 1991 based on his last performance evaluation before his discharge.\nAt the hearing on petitioner\u2019s complaint, petitioner testified that, beginning in 1990, he began having weekly meetings with Canning. Canning would approach him in the hallway on the day of the meetings and say to him, \u201cGus [petitioner], are you still here? I am surprised you are still here.\u201d These comments started to make petitioner think that \u201csomething [was] going to happen to [him].\u201d Petitioner also stated at the hearing that Setlik told him, \u201cGus, you get paid top dollars, we\u2019ll see what we can do about you.\u201d Petitioner testified that these instances occurred shortly before he was terminated.\nJacinto Gabriel, who had worked as a dispatcher for Tempel, testified that he noticed from March 1990 through June 1991 that Tempel was \u201cletting older people go\u201d from the work force in the production control department. He also believed that petitioner was \u201clet go\u201d based on his age because Klawitter was younger than petitioner and had less seniority. He did not know Klawitter\u2019s exact age. Gabriel claimed that he did not have any other basis for believing that petitioner was subject to discrimination. Gabriel also believed that he was \u201clet go\u201d because of his age.\nLarry McIntyre testified that he worked as a security officer for Tempel from 1979 to 1981 and from 1989 to 1993. He was 55 when he was terminated the second time. McIntyre claimed that the other security officers were also terminated except for the youngest, who was in his mid-40s. He and the other guards began to notice a pattern of terminating older workers. He noticed younger workers replacing older workers in the housekeeping and trucking departments after the new management took control. McIntyre further stated that the guards filed charges against Tempel with the Equal Employment Opportunity Commission (EEOC) which were still pending at the time of the hearing. McIntyre further stated that all of the guards who filed charges with the EEOC were terminated. Only the youngest guard, who was the only guard not to participate in the filing of charges with the EEOC, was not terminated. McIntyre also stated that Tempel claimed that it was \u201coutsourcing\u201d security guard jobs.\nRobert Nichols, Tempel\u2019s vice president and general manager, testified as an adverse witness at the hearing to the authenticity of a memorandum dated September 7, 1993, indicating that Tempel was aware the guards had gone to the EEOC before they were fired. The memorandum (petitioner\u2019s exhibit 10) was an \u201cinteroffice correspondence\u201d based on a meeting requested by Victor Toboada, a plant protection officer, regarding \u201cspecific events taking place with the other officers.\u201d Nichols testified that he decided to terminate the guards to save money by \u201coutsourcing\u201d the guard positions and because of the other matters regarding inappropriate behavior by the guards listed in the memorandum as described by Toboada, such as possession of keys and access to offices, desks, and confidential information concerning pensions, salaries, and profits of the company.\nSetlik testified as an adverse witness that when Tempel eliminated the position of a salaried employee, the company would give the employee severance payment rather than transfer and recall rights. He also stated that there were no other positions for petitioner to transfer to at the time his position was eliminated.\nAt the close of petitioner\u2019s case, Tempel moved for a directed finding. On June 11, 1998, the ALJ filed her \u201cRecommended Order and Decision,\u201d which stated that petitioner\u2019s complaint failed to establish a prima facie case of age discrimination and that a directed finding for Tempel was appropriate. The ALJ, therefore, recommended that petitioner\u2019s charge and complaint be dismissed with prejudice. The ALJ\u2019s decision stated that petitioner\u2019s position, as well as several other positions, in the production control department were eliminated as a result of a review of the functions of that department in April 1990. The decision also stated that the preponderance of the evidence adduced during petitioner\u2019s case in chief did not sustain the complaint. The ALJ found that petitioner\u2019s testimony, regarding the alleged comments he attributed to Setlik and Canning, was not credible. The ALJ noted that petitioner had admitted in his answers to interrogatories that no comments regarding his age had ever been made to him, and she also noted that neither of the comments was included in petitioner\u2019s charge or his complaint. The ALJ further found that, even if petitioner had not fabricated the comments, they were insufficient evidence of age discrimination because he failed to show that Canning had any input into the decision to terminate him and that the parties had stipulated that Tempel had decided to eliminate the production control staff assistant positions as early as April 1990. The ALJ also stated that there were valid \u201cmonetary concerns\u201d that may have led to petitioner\u2019s termination based on his high salary due to his number of years working for Tempel, as opposed to his age, and that Setlik\u2019s comment would have been consistent with this concern.\nThe ALJ further found that the testimony of Gabriel and McIntyre regarding discrimination by Tempel against defendant and the other \u201colder people\u201d to be speculative and not credible because they could not give specific instances or dates of discrimination. It was undisputed, according to the ALJ, that petitioner was not replaced by a similarly situated younger individual and that any of petitioner\u2019s remaining former duties that still existed after the elimination of the position and restructuring were simply absorbed by existing personnel. The ALJ also found that Klawitter was not treated more favorably by Tempel because Tempel made the decision to eliminate Klawitter\u2019s position at the same time that it eliminated petitioner\u2019s and Klawitter was only able to remain longer with Tempel because Rasborschek, the individual who would have taken over some of Klawitter\u2019s duties, had a heart attack and respondent waited for his return before actually eliminating Klawitter\u2019s position. The ALJ stated that petitioner did not prove that he had any \u201cbumping\u201d rights to support his argument that he should have been allowed to \u201cbump\u201d Klawitter from the position he held while waiting for Rasborschek\u2019s return. The ALJ further found that the evidence indicated that Tempel had a policy of offering substantial severance to laid off workers and petitioner was not, therefore, entitled to an hourly position at the time of his discharge. The ALJ also stated that there were no other positions available at the time as the evidence showed that Tempel did not begin hiring for \u201csome time\u201d after petitioner\u2019s discharge.\nOn November 10, 1998, the Commission filed a \u201cNotice\u201d which stated that the Commission had \u201cdecided to decline to review the Recommended Order and Decision\u201d of the ALJ and that it would become the \u201cOrder and Decision\u201d of the Commission. This appeal followed.\nWe initially address petitioner\u2019s argument that our standard of review of the Commission\u2019s decision is de novo. Petitioner argues that because there is no authority allowing the Commission to enter a directed finding, we must rely on \u201cthe most analogous case law\u201d involving summary decisions under the Human Rights Act. Based on this analogy, petitioner maintains that because summary decisions, like a decision for summary judgment under the Illinois Code of Civil Procedure, concern questions of law, our review of the Commission\u2019s order and decision should be de novo.\nTempel and the Commission argue that because a hearing was held in which testimony and evidence were presented, the decision in this case is not the equivalent of a summary decision addressing questions of law. They maintain that the findings of fact made by the ALJ on their motion for a directed finding must be sustained unless they are against the manifest weight of the evidence.\nThe findings and conclusions of an administrative agency on questions of fact are held to be prima facie true and correct. 735 ILCS 5/3 \u2014 110 (West 1994). The Commission\u2019s factual findings must be affirmed unless a reviewing court concludes that they are against the manifest weight of the evidence. Raintree Health Care Center v. Illinois Human Rights Comm\u2019n, 173 Ill. 2d 469, 479, 672 N.E.2d 1136 (1996). Determinations as to the credibility of witnesses and the weight to be given their testimony are reserved for the administrative agency, and it is not this court\u2019s function to substitute its judgment on those issues. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992).\nThe present case involved findings of fact following petitioner\u2019s presentation of evidence in an evidentiary hearing. The ALJ determined from the evidence and the credibility of the witnesses that petitioner had not established a prima facie case of discrimination by a preponderance of the evidence. The ALJ did not enter judgment on petitioner\u2019s complaint as a matter of law, and petitioner has presented no authority supporting his contention that we should apply the de novo standard of review applicable to summary decisions to the decision of the ALJ and Commission in the present case. Accordingly, the applicable standard of review is whether the factual findings made by the ALJ, and adopted by the Commission, were against the manifest weight of the evidence.\nPetitioner next contends that there is no statutory authority for the ALJ to have entered a directed finding before the \u201cclose of all proofs.\u201d He argues that although the Illinois Administrative Code permits \u201csummary decisions\u201d similar to summary judgment under the Illinois Code of Civil Procedure, there is no corresponding provision in the Administrative Code permitting the ALJ to make a directed finding. Petitioner also maintains that none of the reported cases in which the Commission has decided that it has the \u201cright\u201d to enter a directed finding has ever been reviewed by the Illinois appellate courts.\nTempel argues that it is illogical to require a respondent to present exculpatory evidence when the evidence presented by a petitioner is clearly insufficient to support the allegations of his complaint. Tempel also argues that because the Administrative Code permits an ALJ to render a summary decision without having held any hearing where there is no genuine issue of material fact, the ALJ must necessarily have the power after an evidentiary hearing to dismiss the complaint. The Commission adopts Tempel\u2019s argument and further argues that because the ALJ found that petitioner failed to establish a prima facie case of age discrimination, it was proper for her to dismiss petitioner\u2019s complaint as the remainder of the hearing was unnecessary.\nThe section of the Illinois Administrative Code (Code) applicable to the Commission states, in relevant part:\n\u201ca) Subject to the provisions of the Act and of this Part, the [ALJ] shall have full authority to govern the procedure of the hearing and to admit or exclude testimony or other evidence.\nb) The [ALJ] shall rule on all proper motions and objections by any party ***.\u201d 56 111. Adm. Code \u00a7 5300.530 (1996).\nThe Illinois Human Rights Act (Human Rights Act) provides:\n\u201c(I) Decision. (1) When all the testimony has been taken, the hearing officer shall determine whether the respondent has engaged in or is engaging in the civil rights violation with respect to the person aggrieved as charged in the complaint. A determination sustaining a complaint shall be based upon a preponderance of the evidence.\u201d 775 ILCS 5/8A \u2014 102 (West 1996).\nNeither party has cited to any authority addressing the issue of whether an ALJ or the Commission may consider and rule on a motion for a directed finding, but we note that a number of reported opinions by the Commission indicate that such motions have been considered in similar cases. See In re Castle, Ill. Hum. Rts. Comm\u2019n Rep. 1989CF1815, 1990CA3452, 1991CA3757, 1992CA0318 cons. (June 29, 1995) (sexual discrimination case). Additionally, in the recent case of Anderson v. Human Rights Comm\u2019n, 314 Ill. App. 3d 35, 731 N.E.2d 371 (2000), the petitioner appealed the Commission\u2019s dismissal of her age discrimination claim pursuant to the respondent\u2019s motion for a directed verdict. The Commission\u2019s hearing officer found that the petitioner had presented evidence to support the first three elements of her prima facie case of age discrimination, but the evidence was insufficient to support the fourth element, which required proof that a similarly situated employee who was not a member of the protected group was not discharged. Anderson, 314 Ill. App. 3d at 50. The Anderson court reversed the dismissal, finding that the petitioner\u2019s evidence was sufficient to satisfy the fourth element of her prima facie case because the employee who replaced petitioner was 13 years younger than the petitioner even though the employee\u2019s age still placed the employee in the protected group. Anderson, 314 Ill. App. 3d at 50-51. Having found that the petitioner established a prima facie case by a preponderance of the evidence, the Anderson court reversed the \u201cdirected finding\u201d and remanded for a continuation of the petitioner\u2019s hearing to allow the respondent to rebut the presumption of discrimination. Anderson, 314 Ill. App. 3d at 51.\nAlthough the authority of the hearing officer and the Commission to enter a directed finding was not directly addressed in Anderson, the holding in that case implicitly affirms that a hearing officer may enter a directed finding where the petitioner has not established a prima facie case of age discrimination by a preponderance of the evidence. We find here, therefore, that the ALJ properly considered, and possessed the authority to rule on, Tempel\u2019s motion for a directed finding. Additionally, although the Code does not specifically mention motions for directed findings in the sections applicable to hearings before the Commission, the Code does give the ALJ authority to govern the procedure of the hearing, to control the admission of testimony and other evidence, and to rule on proper motions and objections. The Code specifically provides procedures related to summary findings, but there is no indication in any of the applicable sections of the Code that procedures not specifically mentioned are prohibited. The term \u201cproper motions\u201d is not defined, and we find that a motion for a directed finding is appropriate in a hearing before the Commission, especially in light of the initial burden of proof that a petitioner must satisfy in order to shift the burden of proof to the respondent. It would be unnecessary to require a respondent to present testimony or other evidence where a petitioner has clearly failed to meet its initial burden of establishing a prima facie case, as more fully discussed below regarding the \u201cMcDonnell Douglas-Burdine standard.\u201d\nPetitioner next contends that even if the ALJ had the authority to consider and enter a directed finding, the ALJ erred by applying the wrong standard of proof. Petitioner argues that the Human Rights Act only requires that he establish a prima facie case by presenting \u201csubstantial evidence\u201d of discrimination rather than by a \u201cpreponderance of the evidence\u201d standard applied by the ALJ. He further argues that his evidence satisfied the \u201csubstantial evidence\u201d standard because he presented more than a scintilla of evidence of age discrimination. Tempel and the Commission contend that section 8A \u2014 102 of the Human Rights Act, applicable to hearings before the Commission, provides that petitioner has the burden of presenting evidence to sustain the allegations of the complaint by a preponderance of the evidence and that the ALJ, therefore, applied the correct standard.\nAs stated above, and as Tempel and the Commission correctly argue, section 8A \u2014 102 of the Human Rights Act requires that \u201c[a] determination sustaining a complaint shall be based upon a preponderance of the evidence.\u201d 775 ILCS 5/8A \u2014 102(1)(1) (West 1996). See Anderson, 314 111. App. 3d at 50-51 (stating that a petitioner is required to establish a prima facie case of age discrimination by a preponderance of the evidence). The ALJ clearly applied the correct standard in considering the evidence presented by petitioner. As indicated by Tempel and the Commission, the statute and authority petitioner cites in support of his argument apply to reports created by the Department of Human Rights after it has investigated a charge of discrimination. More specifically, after a charge of discrimination has been filed, the director of the Department of Human Rights (Department) is required to determine from the Department\u2019s report whether there is \u201csubstantial evidence\u201d that a civil rights violation has been committed before taking further action on the charge. This \u201csubstantial evidence\u201d has no bearing on the standard applied at the subsequent public hearing before the Commission and, therefore, we find that the ALJ applied the appropriate standard under the statute.\nPetitioner next contends that a directed verdict for Tempel was not appropriate because the ALJ applied the wrong \u201clegal standard.\u201d Petitioner argues that the \u201cMcDonnell Douglas-Burdine\u201d standard is no longer followed and that employees may prove their cases with circumstantial evidence as outlined in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994). Petitioner also argues that the evidence of \u201csystemic disparate treatment\u201d by Tempel that he presented at the hearing was sufficient to prove the age discrimination against himself and that both the ALJ and Commission ignored the \u201csystemic evidence of discrimination.\u201d Some of the \u201csystemic evidence\u201d that petitioner claims he produced at the hearing includes:\n\u201c\u2014 that as early as 1991, Tempel started targeting older workers for termination and unfavorable treatment\n\u2014 that in 1991, shortly after new management came onto the scene, there were two dispatchers working in the production control department, one age 49, the other age 34 and the 49-year-old (Gabriel) was transferred to a heavy labor job he was not qualified for and couldn\u2019t do, while the 34-year-old was allowed to remain in his position\n\u2014 that the security guards started noticing at the same time that a lot of the older workers were being let go or being fired, so much so, that all but one of them became fearful of their jobs and went to the EEOC to inquire as to their rights\u201d\nPetitioner further argues this evidence was sufficient to defeat Tempers motion for a directed verdict even though some of the evidence was in the form of \u201csubjective belief evidence\u201d and \u201clay witness opinion testimony.\u201d He claims that the comments made by Canning and Setlik were also \u201cprobative\u201d of the discrimination against himself and ignored by the ALJ and Commission. Petitioner further contends that even though the comments made by Setlik and Canning did not specifically refer to his age, as he admitted in his interrogatory answers, the comments were \u201crelevant and probative in light of all the other evidence produced in this case.\u201d Lastly, petitioner claims that the ALJ and Commission failed to \u201cproperly apply the case law in the RIF [reduction-in-force] area\u201d and failed to focus on the appropriate factors.\nTemple and the Commission contend that the stipulations entered into by the parties and contained in the prehearing memorandum and the undisputed evidence presented at the hearing support the decision of the ALJ that petitioner failed to establish his claims by a preponderance of the evidence. They also argue that the ALJ properly found that the testimony of Gabriel and McIntyre was speculative and did not support petitioner\u2019s claims of discriminatory treatment of others or petitioner by Tempel. Tempel and the Commission further argue that Setlik\u2019s and Canning\u2019s statements to petitioner did not constitute evidence of discrimination as the statements were not related to his age, and the ALJ correctly viewed petitioner\u2019s testimony regarding these statements suspiciously based upon petitioner\u2019s admission in an interrogatory answer that he could not recall comments made to him regarding his age while employed by Tempel. Tempel and the Commission also argue, assuming arguendo, that petitioner\u2019s evidence was sufficient to establish a prima facie case by a preponderance of the evidence, petitioner could not overcome Tempel\u2019s legitimate reasons for his termination as stated at the hearing.\nSince an administrative agency is a creature of statute, any power or authority claimed by the agency must find its source within the provisions of the statute by which it is created. Granite City Division of National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 171, 613 N.E.2d 719 (1993). Our supreme court has stated that, in analyzing employment discrimination cases under the Human Rights Act, Illinois has adopted the \u201canalytical framework\u201d set forth by the United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000e et seq. (1982)) and the Age Discrimination in Employment Act (29 U.S.C. \u00a7 621 et seq. (1982)). Zaderaka v. Illinois Human Rights Comm\u2019n, 131 Ill. 2d 172, 178, 545 N.E.2d 684 (1989).\nThe Seventh Circuit Court of Appeals has recognized that intentional discrimination can be shown by one of two methods: (1) direct evidence or (2) indirect evidence. The analytical framework for proof of intentional discrimination through indirect evidence established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and adopted by the Illinois Supreme Court in Zaderaka, involves a three-part analysis. First, the plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against the employee. The employer must articulate, but not prove, a legitimate, nondiscriminatory reason for its decision to rebut the presumption. The petitioner must then prove by a preponderance of the evidence that the employer\u2019s articulated reason was merely a pretext for unlawful discrimination. Zaderaka, 131 Ill. App. 3d at 179. A prima facie case for unlawful age discrimination is established by showing by a preponderance of the evidence that: (1) the complainant is a member of a protected class (age 40 or over); (2) the complainant was doing the job well enough to meet his employer\u2019s legitimate expectations; (3) he was discharged or demoted; and (4) similarly situated younger employees were treated materially better. Illinois J. Livingston Co. v. Human Rights Comm\u2019n, 302 Ill. App. 3d 141, 152-53, 794 N.E.2d 797 (1998).\nIntentional discrimination may also be shown by direct evidence pursuant to Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994). Under this approach, a petitioner may establish his case with either direct or circumstantial evidence. Troupe, 20 F.3d at 735-36. The Troupe court recognized three types of circumstantial evidence that a petitioner could utilize to satisfy his burden of proof: (1) evidence of \u201csuspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn\u201d; (2) evidence \u201cwhether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic *** on which an employer is forbidden to base a difference in treatment received systematically better treatment\u201d; and (3) evidence \u201cthe [petitioner] was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer\u2019s stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination.\u201d Troupe, 20 F.3d at 736.\nWe initially disagree with petitioner\u2019s argument that the Commission erred in applying the \u201cMcDonnell Douglas-Burdine\u201d standard because the \u201cstandard no longer applies in light of St. Mary\u2019s Honor Center v. Hicks, 509 U.S. 502, 513, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2749 (1993).\u201d Petitioner does not explain in his appellate brief how the holding in Hicks made the standard established in McDonnell Douglas no longer applicable to age discrimination cases. Our review of Hicks does not reveal that the McDonnell Douglas standard was overturned or amended by the Supreme Court in that case. In fact, recent Illinois decisions have continued to apply McDonnell Douglas in age discrimination cases. See Illinois J. Livingston Co., 302 Ill. App. 3d at 152.\nApplying the McDonnell standard to the facts here, contrary to petitioner\u2019s argument, we find that the ALJ\u2019s decision, adopted by the Commission, was not against the manifest weight of the evidence. The ALJ heard testimony from petitioner, his former coworkers Gabriel and McIntyre, and Setlik as an adverse witness. The record supports the ALJ\u2019s finding that petitioner did not establish a prima facie case of age discrimination by a preponderance of the evidence. Although petitioner testified that the comments of Canning and Setlik made him suspicious of Tempel\u2019s motives in eliminating his position, neither comment, as admitted by petitioner in his answers to discovery, made a specific reference to his age. The stipulations and testimony demonstrated that Tempel, in reviewing the procedures of some of its departments, began a process of eliminating a number of positions and jobs in 1991. The stipulated statistics showed that the majority of hourly employees laid off were under the age of 40 and that, of the smaller group of employees who were allowed to transfer to different positions, many of these employees were over the age of 40. Although petitioner was not offered a new position, the testimony petitioner presented showed that Tempel had a policy of giving former salaried employees such as petitioner severance packages rather than transferring them or giving them recall rights. The evidence also showed that Klawitter, who had held a position similar to petitioner\u2019s, was allowed to continue working for Texnpel for several more months to allow another worker, who was to assume the responsibilities of the job, time to recover from a heart attack. Moreover, any preference this might have proved was not significant evidence because Klawitter was also over 40 and only three years younger than petitioner. Klawitter\u2019s position was also eliminated at the same time as petitioner\u2019s and his employment eventually terminated as well. Petitioner\u2019s and Klawitter\u2019s job responsibilities were assumed by other workers.\nThe ALJ also considered the testimony of Gabriel and McIntyre regarding other alleged acts of age discrimination against truck drivers, security officers, and other employees by Tempel. The ALJ, however, found this testimony to be speculative because Gabriel and McIntyre could not provide specific facts to support their opinions. The determination of the credibility of witnesses and the weight to be given their testimony are reserved for the administrative agency and it is not this court\u2019s function to substitute its judgment on these issues. Based on the evidence presented by petitioner, we find that the ALJ\u2019s and Commission\u2019s decision that petitioner\u2019s evidence did not establish a prima facie case of discrimination by a preponderance of the evidence was not against the manifest weight of the evidence.\nWe next address petitioner\u2019s contention that he presented sufficient evidence of direct discrimination through circumstantial evidence as discussed in Troupe. As we noted above, petitioner has argued that the hearing officer and Commission \u201cmisconstrued [his] evidence of systemic age discrimination,\u201d citing numerous examples in his brief. Petitioner also claims that the \u201cstatistical evidence,\u201d which we have also referred to above, also supports his argument that Tempel\u2019s actions resulted in \u201cdisparate treatment\u201d of older workers.\nIllinois has adopted the \u201canalytical framework\u201d set forth by the United States Supreme Court in decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). Zaderaka, 131 Ill. 2d at 178. \u201cIn a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer\u2019s decision.\u201d Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 123 L. Ed. 2d 338, 346, 113 S. Ct. 1701, 1706 (1993). \u201cWhen the employer\u2019s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears.\u201d (Emphasis omitted.) Hazen Paper, 507 U.S. at 611, 123 L. Ed. 2d at 347, 113, S. Ct. at 1706.\nBased on the evidence presented at petitioner\u2019s hearing, as we stated above, there was evidence in the record to support the hearing officer\u2019s and the Commission\u2019s decision that age was not a motivating factor in the termination of petitioner or the other employees at Tempel. Tempel had recently come under new management and the new managers initiated a reorganization of the company. Temple did not replace petitioner with a younger employee; Temple decided to completely eliminate petitioner\u2019s position and a comparable position held by Klawitter. There was also evidence presented that other employees, such as the security guards, were terminated in an effort to \u201cout source\u201d those positions and because the security officers had been involved in inappropriate behavior such as possessing unauthorized access to company records. Additionally, the statistics presented by petitioner here were insufficient to show through circumstantial evidence that Tempel\u2019s motivation in terminating petitioner was related to his age. The record supported the hearing officer\u2019s decision that petitioner failed to present evidence of a younger employee, similarly situated to petitioner, who received better treatment.\nWe also reject petitioner\u2019s argument that the hearing officer and Commission ignored or misconstrued the testimony of the witnesses, including his own. Petitioner\u2019s arguments are merely a request for us to reweigh the evidence he presented and evaluate the credibility of the witnesses. This function, however, is within the province of the ALJ and the Commission. The record indicates that the ALJ made findings of fact based on the stipulations and testimony presented and judged the credibility of the witnesses. The hearing officer did not give great weight to the testimony of the other witnesses presented by petitioner, describing disparate treatment of older employees at Tempel, because the testimony was not based on specific factual instances. Based on this record, we find therefore that the ALJ\u2019s and Commission\u2019s decisions were not against the manifest weight of the evidence.\nWe briefly note that petitioner\u2019s reliance on Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461 (5th Cir. 1989), in support of his argument that beliefs and opinions based on the perception of a witness are admissible, is misplaced. In Hansard, the Fifth Circuit Court of Appeals determined that an employee of the defendant employer could testify regarding his opinion that the plaintiff was terminated as part of a \u201cyouth movement\u201d by the defendant because the employee\u2019s testimony was based on his experience with the company rather than hearsay. Hansard, 865 F.2d at 1465. In the present case, however, no issue was raised by the parties here regarding the admissibility of statements or testimony as in Hansard. Moreover, the ALJ did admit the testimony and opinions of petitioner\u2019s former coworkers, Gabriel and McIntyre. The ALJ, in fact, allowed McIntyre to testify after denying Tempel\u2019s motion in limine seeking to exclude his testimony. The ALJ simply did not give great weight to this testimony because it was speculative and unsupported by other facts.\nPetitioner\u2019s reliance on Hybert v. Hearst Corp., 900 F.2d 1050 (7th Cir. 1990), is also misplaced. In Hybert, the court affirmed the district court\u2019s admission of statements made by an employee supervisor to the effect that people in their 60s \u201care going to be replaced.\u201d Hybert, 900 F.2d at 1050. The Hybert court found that the statements were an admission by an agent, the supervisor, of the employer and not hearsay and, therefore, admissible at trial. Hybert, 900 F.2d at 1053. Again, in the present case, the testimony of petitioner\u2019s witnesses was admitted and no issues were raised regarding the exclusion of certain statements or evidence.\nSimilarly, petitioner\u2019s claim that the hearing officer and Commission ignored evidence of \u201cageist stereotypes\u201d engaged in by Tempel managers is not supported by the record. Petitioner relies on the comments of Setlik and Canning to support this argument. As we noted, however, these comments were not age related, and we find that they do not support petitioner\u2019s claims that they also raise an inference of age discrimination. See Huff v. TJARCO, Inc., 925 F. Supp. 550, 555-56 (N.D. 111. 1996).\nLastly, we briefly address petitioner\u2019s claim that even if the reduction in force performed by Tempel was \u201clegitimate,\u201d Tempel may still be \u201cchallenged on its failure to provide [petitioner] an opportunity to consider or be considered for other positions within the company.\u201d The record here contains evidence that salaried employees, such as petitioner, were typically not given the opportunity to transfer to another position and were instead given a severance package and benefits. Petitioner failed to present any evidence that Tempel\u2019s failure to offer him an opportunity to transfer was the result of age discrimination. The ALJ\u2019s and Commission\u2019s decision, therefore, was not against the manifest weight of the evidence.\nFor the reasons stated, we affirm the decision of the Commission.\nAffirmed.\nHALL, PJ., and WOLFSON, J.\u201e concur.\nWe initially note that although the parties, the administrative law judge, and the Commission refer to the hearing officer\u2019s \u201cRecommended Order and Decision\u201d and the Commission\u2019s \u201cOrder and Decision\u201d as a \u201cdirected finding\u201d or a \u201cdirected verdict,\u201d these terms are not accurate as a matter of procedure where, as in this case, there is no jury for the hearing officer or Commission to \u201cdirect.\u201d See Williams v. Chicago Osteopathic Health Systems, 274 Ill. App. 3d 1039, 1048, 654 N.E.2d 613 (1995). However, while we use the terms \u201cdirected verdict\u201d and \u201cdirected finding\u201d in this opinion to refer to the agency\u2019s decision because they are used throughout the record and in the parties\u2019 appellate briefs, we do not apply the standard of review applicable to a directed finding but, rather, the standard applicable to decisions by an administrative agency, as set forth in this opinion.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Arnold & Kadjan, of Chicago (L. Steven Platt, of counsel), for appellant.", "Bates, Heckler, Bulger & Tilson, of Chicago (J. Stuart Garbutt, of counsel), for appellee Tempel Steel Company.", "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Karen J. Dimond, Assistant Attorney General, of counsel), for other appellees." ], "corrections": "", "head_matter": "CONSTANTINE KOULEGEORGE, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.\nFirst District (3rd Division)\nNo. 1-98-4364\nOpinion filed September 29, 2000.\nArnold & Kadjan, of Chicago (L. Steven Platt, of counsel), for appellant.\nBates, Heckler, Bulger & Tilson, of Chicago (J. Stuart Garbutt, of counsel), for appellee Tempel Steel Company.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Karen J. Dimond, Assistant Attorney General, of counsel), for other appellees." }, "file_name": "1079-01", "first_page_order": 1099, "last_page_order": 1116 }