Peck v. Department of Human Rights

• Decision Date: 10 September 1992
• Docket Number: No. 2-91-1134,2-91-1134
• Citation: 600 N.E.2d 79,234 Ill.App.3d 334
• Parties: , 175 Ill.Dec. 456, 3 NDLR P 100 James L. PECK, Petitioner-Appellant, v. The DEPARTMENT OF HUMAN RIGHTS et al., Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 79

600 N.E.2d 79

234 Ill.App.3d 334, 175 Ill.Dec. 456,

3 NDLR P 100

James L. PECK, Petitioner-Appellant, v. The DEPARTMENT OF HUMAN RIGHTS et al., Respondents-Appellees.

No. 2-91-1134.

Appellate Court of Illinois,

Second District.

Sept. 10, 1992.

Rehearing Denied Oct. 14, 1992.

James L. Peck, pro se. Office of Gen. Counsel, Ill. Human Rights Com'n, Roland W. Burris, Atty. Gen., Tanya Solov, Asst. Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago, for Ill. Dept. of Human Rights.

Wallace L. Heil, Howard R. Veal, Sr., Randall Raynolds, TAD Technical Services Corp., pro se.

Justice WOODWARD delivered the opinion of the court:

Petitioner, James L. Peck, pro se, petitions this court for review of the order of the Human Rights Commission dismissing his complaint against respondent TAD Technical Services Corporation for lack of substantial evidence. Petitioner's brief lists a number of issues which can be summarized as contentions that the commission erred in finding a lack of substantial evidence to support his complaints of handicap discrimination and retaliation.

Petitioner is an electronic technician, who is very sensitive to cigarette smoke. Respondent TAD Technical Services Corporation (TAD) is a temporary-service agency supplying workers to clients for a variety of temporary assignments. From January 1976 to February 1985 petitioner worked for TAD on an assignment at Rauland-Zenith. While at Zenith, petitioner had problems with a pipe smoker. Petitioner complained to TAD's branch manager, Robert Vogt, who brought him an air cleaner.

On January 13, 1986, petitioner began an assignment at Rockwell International. It is disputed whether Vogt informed Rockwell of petitioner's problems with smoke. In any event, on his first day on the job, petitioner became embroiled in a dispute regarding other employees' smoking. Because of problems arising from this incident, Rockwell terminated petitioner on January 14.

Petitioner filed a complaint against Rockwell with the Department of Human Rights alleging that Rockwell terminated him because of his physical handicap, an allergy to cigarette smoke. The Department dismissed the complaint for lack of substantial evidence, and that determination was upheld by the Human Rights Commission on review. On direct review to this court, we affirmed the dismissal. Peck v. Department of Human Rights (1988), 168 Ill.App.3d 1162, 132 Ill.Dec. 363, 539 N.E.2d 926 (unpublished order under Supreme Court Rule 23).

After Rockwell terminated petitioner, TAD did not refer him for any more temporary positions. On March 23, 1987, petitioner filed a complaint against TAD with the Department of Human Rights. Petitioner alleged that TAD refused to give him further assignments based on his allergy to cigarette smoke, which petitioner contends is a physical handicap. Petitioner further alleged that TAD retaliated against him for filing the previous human rights complaint against TAD's client, Rockwell. The Department conducted a preliminary investigation, including a fact-finding conference. The investigator recommended dismissal of the complaint for lack of substantial evidence. Petitioner filed a request for review with the Human Rights Commission, which sustained the dismissal. Petitioner then filed a request for direct review with this court pursuant to section 8-111 of the Human Rights Act and Supreme Court Rule 335 (Ill.Rev.Stat.1989, ch. 68, par. 8-111; 134 Ill.2d R. 335).

Plaintiff's brief lists eight issues, namely:

"Whether the matter raises legal issues of significant impact or the three-member panel decisions are in conflict.

Whether the Plaintiff presented sufficient evidence to establish a prima facie case of handicap discrimination.

Whether the Plaintiff presented sufficient evidence to establish a prima facie case of retaliation.

Whether the Plaintiff placed restrictions on assignments.

Whether the Plaintiff failed to comply with company policy.

Whether the Defendant was suffering a decrease in the economy.

Whether the Defendant aided and abeted [sic] Rockwell in its case.

Whether the Department of Human Rights properly investigated the matters of this case."

The first, seventh and eighth issues are not supported by any citation of relevant authority in violation of Supreme Court Rule 341(e)(7) (134 Ill.2d R. 341(e)(7)) and are therefore waived. (McDuffee v. Industrial Comm'n (1991), 222 Ill.App.3d 105, 111, 164 Ill.Dec. 682, 583 N.E.2d 598.) The fourth, fifth and sixth issues relate to TAD's assertions of legitimate reasons for not rehiring respondent. Thus, all the issues which petitioner has properly preserved for review can be summarized as whether the Commission's decision that substantial evidence was lacking to support petitioner's charges of handicap discrimination and retaliation was against the manifest weight of the evidence.

In analyzing employment discrimination actions under the Human Rights Act, Illinois courts have used the three-part analysis set out in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. (Zaderaka v. Illinois Human Rights Comm'n (1989), 131 Ill.2d 172, 178, 137 Ill.Dec. 31, 545 N.E.2d 684.) First, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If he does so, a rebuttable presumption arises that the employer unlawfully discriminated. To rebut the presumption, the employer must articulate, not prove, a legitimate, nondiscriminatory reason for its decision. If the employer carries its burden of production, the presumption of discrimination falls, and the plaintiff must then prove by a preponderance of the evidence that the employer's articulated reason was not the true reason, but was instead a pretext for unlawful discrimination. Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259-60, 101 S.Ct. 1089, 1097, 67 L.Ed.2d 207, 219; Zaderaka, 131 Ill.2d at 178-79, 137 Ill.Dec. 31, 545 N.E.2d 684.

In reviewing the Commission's decision to dismiss a complaint for lack of substantial evidence, the court determines whether the Commission's action was arbitrary and capricious, or an abuse of discretion. (Castillo v. Human Rights Comm'n (1987), 159 Ill.App.3d 158, 162-63, 111 Ill.Dec. 168, 512 N.E.2d 72; Sanders v. United Parcel Service (1986), 142 Ill.App.3d 362, 365, 96 Ill.Dec. 854, 491 N.E.2d 1314.) It is within the special province of the Commission to review and weigh conflicting evidence, whether at the preliminary investigation level or at a later stage. Sanders, 142 Ill.App.3d at 365, 96 Ill.Dec. 854, 491 N.E.2d 1314.

The Commission's order dismissing the complaint contains the following findings of fact:

"2. The evidence demonstrates that Respondent denied Complainant job placement because Complainant failed to comply with company policy, i.e. failed to keep Respondent apprised of his whereabouts and availability and also because Respondent was suffering due to a decrease in the economy.

3. That Complainant did not establish the elements of a prima facie case of handicap discrimination.

4. That Respondent did not retaliate against Complainant."

Neither the Department nor the Commission conducted a formal evidentiary hearing. The Department collected evidence through pleadings filed by the parties, investigatory interviews and an informal fact-finding conference. Petitioner advanced his contention that he had been denied placement because of his handicap and in retaliation for filing the complaint against Rockwell. TAD elucidated a number of responses.

First, although Vogt was aware generally of petitioner's distaste for cigarette smoke, petitioner had never provided any medical evidence of the nature or extent of his condition. Vogt stated that the word "handicap" never arose in conjunction with petitioner's condition until the fact-finding conference.

Second, economic conditions had sharply reduced the demand for electronic technicians during the relevant period. Vogt asserted that this condition was exacerbated by petitioner's restrictions upon the jobs he would accept. Petitioner allegedly required...