Raintree Health Care Center v. Human Rights Com'n

• Decision Date: 25 August 1995
• Docket Number: No. 1-94-1643,1-94-1643
• Citation: 655 N.E.2d 944,275 Ill.App.3d 387
• Parties: , 211 Ill.Dec. 561, 7 NDLR P 42 RAINTREE HEALTH CARE CENTER, Petitioner, v. HUMAN RIGHTS COMMISSION, The Illinois Department of Human Rights and James W. Davis, Respondents.
• Court: United States Appellate Court of Illinois

Page 944

655 N.E.2d 944

275 Ill.App.3d 387, 211 Ill.Dec. 561,

7 NDLR P 42

RAINTREE HEALTH CARE CENTER, Petitioner, v. HUMAN RIGHTS COMMISSION, The Illinois Department of Human Rights and James W. Davis, Respondents.

No. 1-94-1643.

Appellate Court of Illinois First District, Sixth Division.

Aug. 25, 1995.

Rehearing Denied Sept. 26, 1995.

Levenfeld, Eisenberg, Janger, Glassberg, Samotny & Halper, Chicago (Judith S. Sherwin and Susan E. Tomaras, of counsel), for petitioner-appellant.

Roland W. Burris, Atty. Gen., Illinois, and Rosalyn B. Kaplan, Sol. Gen. (Alison E. O'Hara, Asst. Atty. Gen., of counsel), for respondent-appellee (Illinois Human Rights Com'n).

James W. Davis, Keefe & Dachis, Chicago (Robert H. Dachis, of counsel), for respondent-appellee.

Justice ZWICK delivered the opinion of the court:

Petitioner, Raintree Health Care Center (Raintree), challenges a final order of the Illinois Human Rights Commission (Commission) which held that Raintree had unlawfully discriminated against respondent, James Davis, by constructively discharging him from his employment based upon his having been diagnosed with the human immunodeficiency virus (HIV).

After an evidentiary hearing before an administrative law judge (ALJ) for the Illinois Department of Human Rights, the following relevant facts were established.

Raintree operates a nursing home facility in Evanston, Illinois. James Davis was hired as a kitchen helper in March 1987, but was fired in June of that year for fighting on the job. Davis was subsequently rehired as a cook in November 1987. After he was rehired, Davis had no further disciplinary incidents. The parties stipulated that Davis performed his job duties in an acceptable manner consistent with Raintree's standards.

Davis' responsibilities as a cook consisted of preparation of the evening meal, placing the food on trays, and cleaning the kitchen and storeroom areas. Davis had no contact with the residents of the facility.

On January 12, 1988, Davis informed his supervisor, Pearl Smith, that he had tested positive for the human immunodeficiency virus (HIV). Davis then met with Smith and with the facility administrator, Burton Behr, who examined the rules and regulations governing the facility but found nothing that addressed the situation of an HIV- positive employee. Behr made several telephone calls to the Illinois Department of Public Health and to the Evanston Board of Health, but he was unable to get an opinion as to whether Davis' condition made him ineligible to work in a nursing home. Behr advised Davis that Raintree needed more information from public health officials to determine whether Davis could continue his employment. Behr also told Davis to obtain a note from his doctor indicating that he was either free of communicable disease or that he was allowed to work with the HIV virus. Davis was then sent home before the end of his shift.

Thereafter, Davis obtained a note from his doctor and submitted it to Raintree. This note, which was signed by Davis' doctor, stated as follows:

"To Whom It May Concern:

Mr. James Davis HIV status does not restrict him from performing his current job as a cook in a nursing home. The HIV (Aids Virus) is NOT transmitted through the preparation or serving of food and beverages. Transmission is through blood and body fluids. Should Mr. Davis cut himself in the course of the food preparation, that food should be discarded the same as if any employee had bled into food. Should you have any further questions, please contact the nurse with the clinic, Kathy Pietschmann, R.N., M.S. at 943-6600 ext. 401.

Sincerely,

(Signed) TOM SKOUTELIS

Tom Skoutelis, M.D.

Upon receiving this note, Behr again telephoned the Illinois Department of Public Health and the Evanston Board of Health, but he never obtained an official opinion as to Davis' ability to continue his employment. Behr refused to allow Davis to return to work.

While Behr sought an official opinion regarding the impact of Davis' condition upon his employment, Davis telephoned the facility on numerous occasions and inquired when he would be permitted to return to work. Each time he called, Davis was told that Raintree had not yet received an answer from public health officials.

On or about February 1, 1988, Davis' brother, who also worked as a cook at Raintree, informed Davis that he had been fired. Davis believed what his brother told him because he had not heard from anyone at Raintree for over three weeks. Davis did not call Raintree or seek confirmation that he had been fired.

In February 1988, Davis filed a discrimination charge with the Illinois Department of Human Rights and applied for unemployment benefits. Although Raintree contested the unemployment claim by asserting that it had never terminated Davis' employment, Davis was never permitted to return to his position at the Evanston facility.

Thereafter, Davis commenced a two-year job search that culminated in his getting a job providing security at the airport. During that period, Davis' job search consisted of looking through the job advertisements in newspapers on a daily basis, visiting an employment office, going to a job fair at Truman College, and applying to various companies, including fast-food restaurants, discount stores, grocery stores, a tool and dye company, gas stations, taxi cab companies, delivery service companies, and janitorial service companies. Davis testified that he applied for five to ten positions per month. To earn money during this time, Davis performed odd jobs and ran errands for friends and family.

On January 5, 1989, the Illinois Department of Human Rights filed a complaint of civil rights violation after an investigation of Davis' discrimination charge. On February 14, 1989, Raintree filed an answer to the complaint denying that it had discriminated against Davis. In February 1989, Raintree offered Davis another position for comparable pay at a similar facility located in Highland Park, Illinois, approximately 47 miles from Davis' home. Davis refused this offer because the facility was too far away for him to commute using public transportation.

The parties appeared for a hearing before the ALJ on February 24, 1992. Upon consideration of the evidence presented, the ALJ issued a determination on October 9, 1992. In his determination, the ALJ found that Raintree had constructively discharged Davis and had discriminated against him on the basis of Davis' HIV-positive status, a physical handicap. The ALJ recommended that Davis be reinstated to his former position or to a substantially equivalent position with comparable pay and benefits and that Davis be awarded $21,167.50 in backpay and interest, plus reasonable attorney fees and costs.

On October 28, 1992, Davis filed a petition for attorney fees and costs in the amount of $42,909.98. This petition was supported by the affidavits of his counsel and by a billing worksheet. Davis also requested a multiplier in the amount of 50%. Raintree filed a motion for discovery and depositions regarding the reasonableness of the attorney fees on November 13, 1992. Davis filed an objection to that motion on December 16, 1992, and Raintree filed a reply on December 21, 1992. After a hearing on Raintree's motion, the ALJ denied the request for discovery on December 23, 1992, and allowed Davis to amend his fee petition to include time spent responding to Raintree's discovery motion. Davis reported an additional $1,212.50 in fees.

Raintree responded to Davis' petition for fees and costs on January 21, 1993. The response was supported in part by an affidavit of a computer consultant who attested that he was familiar with the computerized billing program used by Davis' counsel. Davis filed a reply on March 4, 1993, and requested an additional $2,966.25 in attorney fees and costs.

On July 8, 1993, the ALJ issued his recommended order and decision in which he denied Davis' request for a fee multiplier of 50%, and reduced the hourly rate requested for one of Davis' attorneys from $150 to $125 per hour. The ALJ also reduced the hourly rate requested for another attorney from $150 to $90 per hour. The ALJ rejected Raintree's challenges to the number of hours billed and the costs requested. Upon adjusting the hourly fees of Davis' attorneys, the ALJ awarded Davis $28,956.50 in attorney fees.

Raintree filed exceptions to the ALJ's recommendations and requested that the Commission hear oral argument on the matter. The Commission granted the request, and scheduled oral argument to be heard on October 13, 1993. On August 31, 1993, Davis filed his response to Raintree's exceptions.

On April 15, 1994, the Commission issued its order and decision. In its decision, the Commission adopted the recommended decision of the ALJ and rejected the exceptions filed by Raintree. The Commission determined that there was sufficient evidence in the record to support the ALJ's conclusion that Raintree violated the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 1994)). The Commission also affirmed the award of attorney fees and costs, and rejected Raintree's claim that Davis had failed to mitigate his damages. Raintree appeals.

The decision of an administrative agency will not be over-turned on review unless it is contrary to the manifest weight of the evidence. (Department of Mental Health & Developmental Disabilities v. Civil Service Comm'n (1981), 85 Ill.2d 547, 550, 55 Ill.Dec. 560, 426 N.E.2d 885.) A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in the light most favorable to the agency, the court determines that no rational trier of fact could have agreed with the agency's decision. (Agans v. Edgar (1986), 142 Ill.App.3d 1087, 1093-94, 97 Ill.Dec. 270, 492 N.E.2d 929.) The decision must be upheld where the record includes competent evidence to support it (Profice v. Board of Review (1985), 135 Ill.App.3d 254, 257...