Harton v. City of Chicago
Case Date: 11/12/1998
Court: 1st District Appellate
Docket No: 1-97-4138
FOURTH DIVISION FILED: 11/12/98 Nos. 1-97-4138 and 1-97-4139 (consolidated) Petitioner/Cross-Respondent, v. CITY OF CHICAGO DEPARTMENT OFPUBLIC WORKS AND DEPARTMENTOF TRANSPORTATION,Respondent/Cross-Petitioner, and STATE OF ILLINOIS DEPARTMENTOF HUMAN RIGHTS and STATE OFILLINOIS HUMAN RIGHTSCOMMISSION, Respondents/Cross-Respondents. JUSTICE HOFFMAN delivered the opinion of the court: Lorraine Harton brought an employment discrimination claimagainst her employer, the City of Chicago (the City). TheIllinois Human Rights Commission (the Commission) ordered theCity to cease and desist from future discrimination, clearHarton's employment records of reference to the discriminationsuit, and pay Harton limited attorney fees. Harton appeals theCommission's finding that she was not entitled to back pay andfrom its limited award of attorney fees. The City appeals fromthe Commission's order that it pay Harton's attorney fees. Theappeals have been consolidated. On November 16, 1990, the Department of Human Rights (theDepartment) issued a "Complaint of Civil Rights Violation" onHarton's behalf, alleging that the City discriminated against heron the basis of physical handicap when it denied her a promotionand failed to provide her with an accommodation. An initialhearing on the complaint was held on June 9 through June 12,1992, before Administrative Law Judge Michael Evans (ALJ). Theevidence presented at that hearing established the following. Harton, who is blind, began working for the City as a typist in1975. Her title changed several times over the years, but herduties remained essentially the same. They included answeringtelephones, typing messages, and answering employmentverification requests and questions regarding bid applications. Early in 1987, Harton submitted written bid applications for twopositions, principal clerk and head clerk, with the 50/50Sidewalk Program (Program) in the City's Department of PublicWorks. As Harton does not appeal the Commission's finding thatshe had not established a prima facie case of discrimination withregard to the head clerk position, this court need only considerevidence relevant to the principal clerk position. Harton was placed on a list of qualified applicants for theprincipal clerk position and was interviewed by Ronald Eisen, theProgram's engineer and supervisor. Harton testified that, whenshe inquired, Eisen informed her the job was not computerized andthat she would not be provided with a reader to assist her withjob duties. He also told her "[y]ou never get" reasonableaccommodations. Eisen testified that he described the job dutiesto Harton, who then asked if she could just answer telephones andact as a receptionist. Eisen did not contact any agencies for thevisually impaired to determine if any accommodations wereavailable which could assist Harton in performing the principalclerk's duties, nor did he attempt to secure the services of areader for her. Eisen testified that the principal clerk's main job duty was toprocess petitions for sidewalk repairs. This required the clerkto record information from the petitions onto maps and ledgers,transfer information onto petitions from "field sheets" andpostcards, and file petitions and related paperwork. Theprincipal clerk was also responsible for responding to telephoneor in-person inquiries regarding the status of petitions, whichrequired retrieving information from the files. Eisen estimatedthe principal clerk spent 80 to 90% of his time dealing withdocuments and retrieving information. Harton testified she believed she could have performed the jobwith the use of a computer capable of producing maps and graphsfor the visually impaired and of printing documents in bothbraille and print form. She testified she would be able to readprinted material with an Optacon, a device which translateswritten material into a series of raised pins on a fingerplate,and complete forms on a typewriter using overlay sheets.According to Harton, she was able to locate streets in Chicago byusing a street guide printed in braille. Following that initial hearing, the ALJ issued a RecommendedLiability Determination (RLD), in which he found that Eisen neverinvestigated the possibility of providing accommodations toHarton and that, because of her blindness, he never consideredhiring her. He found that Harton had established a prima faciecase of discrimination, in response to which the City hadarticulated a legitimate, nondiscriminatory reason for itsactions, namely that a more qualified candidate was selected. TheALJ went on to find that Harton had proven by a preponderance ofthe evidence that the City's articulated reason was pretextual. Although the ALJ found that, "for purposes of establishment of aprima facie case," Harton had established she could perform theprincipal clerk job with reasonable accommodation, he alsoexpressed "serious doubts" as to whether she could perform allaspects of the job. He concluded that an award of damages was"premature" and instructed the parties to conduct aninvestigation into the types of accommodations available. At an April 30, 1993, status date, the ALJ scheduled an"evidentiary hearing on damages" for February 22 and 23, 1994. Heinstructed the parties to limit their evidence to that ofaccommodations available at the time of the hearing. After thehearing was scheduled, Harton retired from the City. Thereafter,the City filed a motion to modify the April 30 order, seeking tochange the scope of the evidence allowed at the hearing. Bothparties agreed that evidence of accommodations available in 1994was no longer appropriate as Harton's retirement made the issueof job instatement moot. Harton argued, however, that she shouldbe awarded back pay without further hearings because the ALJ hadalready determined liability. The ALJ granted the City's motion and changed the scope of theevidence at the hearing to include evidence of accommodationsavailable from the date Harton applied for the principal clerkposition through the date she retired from the City. The hearingwas rescheduled for February 21 and 22, 1995. When the Cityfailed to appear on February 21, the ALJ allowed Harton topresent her evidence. The City subsequently moved to strike the testimony presented inits absence at the February 21 proceedings, explaining that itfailed to appear on that date because it had mistakenly believedthe hearing was scheduled to begin February 22. The ALJ ruledthat the evidence presented on February 21, 1995, would beallowed to stand but scheduled an additional hearing for April25, 1996, at which the City would be allowed to present itsevidence. The evidence presented by the parties at the February 21, 1995,and April 25, 1996, hearings was as follows. William Hafer, anattorney and hearing officer, and Annette Nowakowski, anattorney, testified on Harton's behalf regarding methods theyused in the workplace to accommodate their blindness. Thesemethods included: dictating for a typist; using audio and brailleresearch materials; stockpiling written material until a readerwas available; using braille paper, calculators and file labels;and using braille key sheets to fill out forms on a typewriter. Harton submitted the evidence deposition of Robert DeYoung, alsoblind, who testified regarding technological aids he had usedduring his academic and professional career. These aids includeda computer with a speech synthesizer, special software programsand a braille printer; a Versabraille machine, which storedinformation and displayed it in braille; a Kurzweil ReadingMachine, which scanned printed material and read it aloud; anOptacon; and a labeller capable of producing braille labels. Noneof these technologies had the capability of reading graphics,colors or handwritten material. The most common method by whichDeYoung accessed handwritten material in 1987 was the use of areader. After being qualified as an expert, Patricia Walker testified forHarton regarding adaptive technology available to assist thevisually impaired. This technology included: speech synthesizers,which enable a computer to read the contents of its screen aloudto its user; braille output systems, which display the contentsof the computer screen in braille; scanners capable of scanningtypewritten documents into a computer; braille embossers capableof printing computer documents in braille; and a software packagethat enables the visually impaired to create and complete forms. The City presented the testimony of Sue Melrose and DuaneChristianson, both blind, who were qualified as experts withrespect to accommodating the visually impaired in the workplace.In 1993, Melrose and Christianson each conducted job assessmentsto determine whether a person who was blind could have performedthe duties of a principal clerk in 1987. Both visited the jobsite and met with supervisors to discuss the tasks involved, butneither met with Harton when conducting their assessments. Melrose and Christianson each concluded that a person who wasblind could not have performed the duties of the principal clerkin 1987 even with accommodation, citing the large amount ofhandwriting and the maps involved. Both testified that notechnological aid existed for effectively reading handwriting.Christianson also testified that raised line maps would not makethe job accessible to a person who was blind because the mapsalso contained handwritten symbols and notes. Both witnessesconsidered and rejected the possibility that technological aids,such as speech synthesizers, scanners, Optacons, and brailleprinters, could make the job accessible to a person who wasblind. They also rejected the possibility of a reader as areasonable accommodation, concluding that, because of the vastamount of handwritten material involved, the reader's serviceswould be needed so frequently that the reader would essentiallybe performing the job. Christianson testified that he had notconsidered job restructuring because he could not conceive of away it could be done. At the conclusion of the second hearing, the ALJ issued aSupplemental Recommended Liability Determination (SRLD), in whichhe found that no practical combination of technology and jobrestructuring would have allowed a person who was blind toperform the principal clerk job in 1987. The ALJ found that theCity had discriminated against Harton when it did not attempt toaccommodate her, but that she was not entitled to back paybecause she could not have performed the job. He recommended theCity be ordered to clear Harton's employment records of referenceto the discrimination action, to cease and desist from furtherdiscrimination, and to pay Harton reasonable attorney fees. Harton then filed a petition requesting an award of $114,248.00in attorney fees and $1,170.87 in costs. The ALJ issued aRecommended Order and Decision in which he recommended the Citybe ordered to pay Harton $18,805.50 in attorney fees and$1,012.45 in costs and to provide the relief recommended in theSRLD. The Commission declined to review the Recommended Order andDecision and adopted the order as its own. When reviewing an administrative agency's decision, we must treatits factual findings and conclusions as prima facie true andcorrect. 735 ILCS 5/3-110 (West 1996). It is not our function toreweigh the evidence or substitute our judgment for that of theCommission on factual matters. Lake Point Tower, Ltd. v. HumanRights Comm'n, 291 Ill. App. 3d 897, 902, 684 N.E.2d 948 (1997).Therefore, we must affirm factual findings and conclusions unlesswe find them to be against the manifest weight of the evidence,which occurs only when the opposite conclusion is clearlyevident. 775 ILCS 5/8-111 (West 1996); Cisco Trucking Co., Inc.v. Human Rights Comm'n, 274 Ill. App. 3d 72, 75, 653 N.E.2d 986(1995). This court does, however, exercise independent reviewover conclusions of law and statutory construction. ChristHospital & Medical Center v. Human Rights Comm'n, 293 Ill. App.3d 105, 110, 687 N.E.2d 1090 (1997). Illinois courts have adopted a three part analysis for analyzingemployment discrimination claims brought under the Act. Zaderakav. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178-79, 545N.E.2d 684 (1989). Under this analysis, the complainant mustfirst establish a prima facie case of unlawful discrimination,after which a rebuttable presumption of discrimination arises.The employer can rebut this presumption by offering a legitimate,nondiscriminatory reason for its actions. Zaderaka, 131 Ill. 2dat 178-79. Once the employer articulates such a reason, thecomplainant is required to prove, by a preponderance of theevidence, that the reason is merely a pretext for discriminationrather than the true reason for the employer's actions. Zaderaka,131 Ill. 2d at 179. In order to establish a prima facie case of handicapdiscrimination, a complainant must prove that: (1) she ishandicapped as defined within section 1-103(I) of the Act; (2) anadverse job action was taken against her because of the handicap;and (3) her handicap is unrelated to her ability to perform thefunctions of the job in question. Lake Point Tower, 291 Ill. App.3d at 903. A handicap is defined under the Act as: Therefore, a prima facie case of handicap discrimination twicecontains the requirement that a complainant must have the abilityto perform the duties of the job in question. Harton's ability or inability to perform the duties of theprincipal clerk is central to our resolution of this case. Inthis procedurally and factually unusual case, we are faced withwhat, at first glance, appear to be contradictory factualfindings on that issue. In the RLD, the ALJ found that Harton hadestablished she could have performed the job with accommodation,and in his SRLD, he found that no available accommodation wouldhave enabled her to perform the job. The Department and the Commission (referred to hereincollectively as the State) contend that the ALJ did, in fact,make contradictory findings, the former for the purpose ofestablishing liability and the latter for the purpose ofestablishing damages. The State urges us to affirm both findingsas adopted by the Commission and the Commission's order that,while the City discriminated against Harton entitling her to somerelief, she was not entitled to back pay as she could not haveperformed the duties of the principal clerk. Harton also contends the ALJ made contradictory findings. Sheargues, however, that the supplemental hearing, which resulted inthe finding that she could not perform the job, should never havebeen conducted. That hearing, she claims, was intended only todetermine what accommodations would be ordered when she wasinstated as principal clerk and became unnecessary when sheretired and no longer sought job instatement as a remedy. Hartoncontends she was entitled to an award of back pay at that timebecause the ALJ had already determined the City's liability.Alternatively, Harton argues that the City's expert testimony atthe supplemental hearing should have been stricken and that, evenif we consider that testimony, the ALJ's finding following thathearing was against the manifest weight of the evidence. Hartonasks us to reverse the findings that she could not perform thejob and was not entitled to back pay. The City contends that the ALJ did not make a "definitivefinding" regarding Harton's ability to perform the principalclerk's duties at the conclusion of the initial hearing. Rather,it argues that the ALJ properly ordered a supplemental hearingbecause he had "serious doubts" as to that issue. The City asksus to affirm the ultimate finding that Harton could not performthe job and, based on that finding, reverse all relief granted bythe Commission. A close examination of the ALJ's findings in the RLD iswarranted. The RLD contains a lengthy discussion as to whetherHarton was handicapped within the meaning of the Act. The ALJproperly observed that, if she was not, she was not protected bythe Act and could not establish a prima facie case ofdiscrimination. He noted that Harton had presented some evidencethat she could perform the principal clerk job with accommodationand that such evidence was "unrebutted and therefore accepted."However, the ALJ also stated: "That is not to suggest that[Harton] could have performed all aspects of the principal clerkposition. There are serious doubts about that." The ALJ went onto conclude that, after Harton requested accommodation: The ALJ observed that, while back pay and job instatement wouldnormally have been appropriate remedies at that point, suchremedies were "premature" since he had a "lingering doubt" as towhether Harton could perform the job even with accommodation.Consequently, the ALJ ordered an investigation into the issue,noting that, if it was discovered Harton could have done the jobwith accommodation, she would be instated and awarded back paybut that, if it was discovered she could not have done the jobwith accommodation, "it is difficult to see how she has beendamaged." It is clear, as the City contends, that the ALJ did not make a"definitive finding" regarding Harton's ability to perform theduties of the principal clerk. He clearly contemplated thepossibility that a further investigation into the issue mightreveal Harton could not have performed those duties even withaccommodation. The finding that, "for purposes of a prima faciecase," Harton could perform the job with accommodation was notbased on a factual finding that she could actually do the job. Itwas based on a legal misconception that Harton was excused fromestablishing that she could perform the job, at least at thatstage, because the City had prevented her from establishing thatfact by denying her the opportunity to attempt the job. Ourconclusion that the ALJ made no definitive factual finding issupported by the SRLD, where the ALJ stated that the RLDcontained "no finding with regard to [Harton]'s ability toperform the job of principal clerk" because "the evidencepresented at the original public hearing was insufficient tosupport a finding on that issue." On a related note, we must address Harton's argument that the ALJabused his discretion by ordering the supplemental hearing on theissue of accommodations. Harton's argument is premised on theassumption that the ALJ had already determined the issue ofliability. By allowing the City to present additional evidenceregarding her ability to perform the job duties, she argues, theALJ essentially granted the City a new trial. As we have justconcluded, though, the ALJ made no definitive finding regardingHarton's ability to perform the job at the conclusion of theinitial hearing. The ALJ was clearly dissatisfied with the proofpresented by both parties on a key issue and ordered that theparties gather and present additional evidence. Neither the Act nor the regulations specifically authorize an ALJto order such a supplemental hearing. Section 8A-103(D) of theAct, however, authorizes the Commission, on its own motion or atthe written request of a party, to remand a case to an ALJ forrehearing or additional evidence. 775 ILCS 5/8A-103(D) (West1996). Because the Commission had the authority to remand thecase for the taking of additional evidence if it so chose, it waswithin the Commission's discretion to consider the additionalevidence in this case. Therefore, we find no error here. Nor dowe believe the ALJ erred by allowing the City to present itsevidence even though it failed to appear on the original date forthe supplemental hearing. We next consider Harton's argument that the testimony of theCity's expert witnesses should have been stricken. The ALJ ruledthat the parties could only present evidence at the supplementalhearing going to the issue of whether Harton could perform thoseduties of the principal clerk which had been established at theinitial hearing. The parties were not to present any evidence ofadditional duties. When conducting their job assessments, Melroseand Christianson considered several documents which the City hadunsuccessfully attempted to introduce into evidence at theinitial hearing as documents the principal clerk was responsiblefor processing. This fact, however, does not require that thetestimony of the witnesses be stricken as both witnessestestified that their opinions regarding Harton's ability toperform the job would not have changed if they eliminated thedocuments in question from their consideration. Harton similarly contests the finding that the principal clerkwas required to read handwriting and maps quickly in order torespond to telephone inquiries. She contends there was noevidence at the initial hearing that such inquiries had to beresponded to quickly and that expert testimony to that effectamounted to evidence of new duties. We do not believe theexpert's testimony that such duties, which had been establishedat the initial hearing, needed to be performed quicklyconstituted impermissible evidence of new duties. We next consider Harton's argument that the finding that nocombination of accommodations and job restructuring would haveenabled a person who was blind to perform the duties of aprincipal clerk in 1987 was against the manifest weight of theevidence. The City presented the testimony of two experts in the field ofaccommodating the visually impaired in the workplace. Each expertconducted an assessment of the principal clerk position as itexisted in 1987 and determined that the position could not havebeen made accessible to a person who was blind. While Harton'switnesses testified regarding possible methods of accommodation,none of the witnesses had evaluated the principal clerk positionor offered any opinion as to whether Harton could perform it.Consequently, the ALJ's finding, in the SRLD, that a person whowas blind could not perform the duties of the principal clerk wasnot against the manifest weight of the evidence. Harton makes numerous claims that the testimony of the City'switnesses is entitled to little weight because it is unsupportedby facts and "filled with conclusions." She claims that Melroseconsidered only technological accommodating devices and thatneither expert considered combining methods of accommodation. Ourreview of the witness' testimony proves these claims to beinaccurate. Harton's argument that neither expert considered thepossibility of job restructuring is also unsupported by therecord. Christianson testified that he did not considerrestructuring the job because he could not conceive of anyeffective way to do it. Harton also contends the finding that a reader was not areasonable accommodation was against the manifest weight of theevidence. She quotes a portion of the SRLD in which the ALJstated "it would be easier" for the reader to perform the jobduties. Harton correctly argues that an employer cannot refuse tohire a person who is handicapped on the basis that it would beeasier to hire a person who is not handicapped. The ALJ, however,concluded a reader was not a viable option because of thefrequency with which his services would be needed. The JointRules of the Department of Human Rights and the Human RightsCommission (Joint Rules) provide that no employer is required tohire two full-time employees to perform one job. 56 Ill. Adm.Code |
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