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No. 1--97--2526

JUSTICE BURKE delivered the opinion of the court:

Petitioner Illinois J. Livingston Company (Livingston) appeals from anorder of respondent Illinois Human RightsCommission (Commission) affirming the decision of an administrative law judge (ALJ) that ithad unlawfullydiscriminated against respondent James Gisch on the basis of his age in violation of the IllinoisHuman Rights Act. 775 ILCS 5/1-101 et seq. (West 1992). On appeal, Livingston argues that thedecision of the Commission wasagainst the manifest weight of the evidence, and the damages awarded Gisch were excessivebecause Gisch failed toproperly mitigate his damages. For the reasons set forth below, we reverse.

On August 18, 1989, Livingston notified Gisch that his employmentwith Livingston would terminate on September1, 1989. Subsequent to his termination, Gisch filed a charge of discrimination with respondentIllinois Departmentof Human Rights (Department) alleging that Livingston unlawfully terminated his employmenton the basis of hisage. The Department filed a complaint against Livingston, alleging age discrimination, and athree-day hearing washeld before an administrative law judge.

The record discloses that Gisch had worked for Livingston forapproximately seven years as an electrician in thePrudential Building, a large office building in downtown Chicago with space leased out to tenantcompanies, beforeLivingston terminated him. From 1982 to 1984, Gisch worked as a construction electrician,which Gisch describedas mainly installing new equipment. From 1984 until his termination, Gisch worked as amaintenance electrician,which Gisch described as fixing equipment that needed repair. Prior to his employment byLivingston, Gischworked for Prudential in the same building for 25 years as an electrician. Before that, Gisch hadworked forLivingston in the same building for eight years. Accordingly, Gisch had worked for eitherLivingston or Prudential,in the same building, from 1949 until his termination in 1989.

Beginning in 1984, Prudential hired Rubloff & Company (Rubloff)to manage the Prudential Building. As a result,Rubloff gained control over the day-to-day operations of the building and control over whatcontractors serviced it. A contract between Livingston and Rubloff stated that Livingston was to provide electrical workfor the buildingand that either party could terminate the agreement after giving 30-days notice. At the time ofGisch's termination,Rubloff constituted approximately 60% of Livingston's business.

Livingston's foreman would receive requests for work in the PrudentialBuilding and pass those assignments on toan electrician who would then go to the tenant space where the work was needed. The normalprocedure was for theelectrician assigned to check in with the tenant's office manager, proceed to do the necessarywork, and then checkout with the tenant's office manager. The electrician would fill out a work order and present it tothe foreman, whowould sign off on the work time and materials. This work order was eventually used to prepareinvoices given toRubloff, which would pass the costs on to the tenant. All the costs associated with Livingstonemployees, includingbenefits and vacation, were passed on to Rubloff, which in turn passed the costs on to thetenants.

At a hearing before an ALJ on his discrimination charge, Gischpresented evidence of his long career, hard work,and good reputation with other workers and tenants. Gisch testified that he received thank youcards from tenantsand supervisors. Gisch had an excellent attendance record, and was never late for work. Gischalso stated he neverreceived complaints from his immediate supervisor, Paul Lussier, during his last two years withLivingston. According to Gisch, approximately one year before Livingston terminated him, Livingstonrequired him to do extrapaperwork on his jobs that no other electrician had to do, and Livingston changed a lock on thematerials shed thathe used to retrieve supplies. This necessitated Gisch tracking down the foreman and asking theforeman to open theshed since the foreman was the only one with the key. Gisch testified that he receivedcomplaints from hissuperintendent, Matthew Cashman, about his work approximately one year before he wasterminated and knew thattermination was a possible consequence if his work did not improve. Gisch further testified hedid not perceive aproblem because he was doing "the best *** [he] could."

Barton Sandvik testified on Gisch's behalf. Sandvik was employed byLivingston as a foreman from 1982 until heretired in 1984. Sandvik worked with Gisch for 27 years at the Prudential Building. Sandvikstated that, in hisopinion, Gisch was an excellent electrician. Sandvik further stated that he never had to redoGisch's work, and"[t]here's nothing that you would expect an electrician to do that he can't do or won't do." Sandvik had neverreceived complaints about Gisch's work during the last two years Sandvik worked forLivingston. According toSandvik, there were no written standards describing how long certain jobs should take, and thetime estimates wereall based on the foreman's experience. On cross-examination, Sandvik stated that although therewere no writtentime estimates, over time it became clearer how long some jobs should take. Sandvikacknowledged the need tokeep tenants happy and to accommodate tenants. Sandvik could not recall exactly when Rublofftook over controlof the Prudential Building, but estimated he only worked under Rubloff management for one ortwo months.

Robert Marsh, who was the chief engineer in the Prudential Buildinguntil his retirement in 1989, testified that hewas a stationary engineer with responsibility for temperature control, he was an employee ofRubloff at the time ofhis retirement, and he had worked with Gisch on and off from 1955 until Gisch's termination. According to Marsh,Gisch's work was very dependable and he never had any complaints. On cross-examination,Marsh admitted he wasnot an electrician, he had responsibilities for many other areas other than electrical areas, he didnot have anopportunity to observe Gisch's work in tenant spaces, and Gisch's foremen would probably be ina better position toevaluate Gisch's work performance.

Leo Forque, another stationary engineer in the Prudential Building,testified he "had all the confidence in the worldin [Gisch] and [Forque] knew if [Gisch] was given the job, the job would have been done right." Forque never hadto have any of Gisch's work redone and Forque never had a problem with the timeliness ofGisch's productivity. Oncross-examination, Forque stated he was not an electrician, and it was not his job to evaluateGisch's work.

In its case in chief, Livingston called its vice president Robert Rathman,as a witness. Rathman testified thatelectricians working for Livingston worked under one of two union agreements. Under thisscheme, Gisch was theleast expensive electrician in the Prudential Building and as such could be seen as an asset to thecompany, allowingit to lower its prices to tenants. Rathman stated that Livingston's ability to work in the PrudentialBuilding wascompletely based upon an agreement with Rubloff, and Rubloff or Livingston could terminatethe agreement bygiving a 30-day notice to the other party. At the time of Gisch's termination, the PrudentialBuilding workconstituted approximately 60% of Livingston's work volume. Rathman further stated that shortlyafter Rubloff tookover control of the building in 1984, he had occasion to speak with Rubloff's operations manager,Bill McElligott,who complained about the length of time a job assigned to Gisch was taking. Approximately oneyear prior toGisch's termination, Rathman had lunch with McElligott and Barbara DeLeon, who was theoffice manager for thebuilding's largest tenant, Leo Burnett. At that time, DeLeon complained to Rathman aboutGisch's workperformance.

Rathman also stated he received a call from John Dwyer, anotheremployee of Leo Burnett, shortly before Gischwas terminated. Dwyer also complained about Gisch's work. Rathman further testifed that hehad generalconversations on a regular basis with Gisch's immediate supervisors on their perceived problemswith Gisch's workperformance. Rathman would pass complaints from Rubloff on to Gisch's direct superiors andinstruct them tospeak with Gisch about the problems.

Rathman further stated that in May 1989, he ordered Matthew Cashman,Gisch's superintendent, to give Gisch alayoff notice. Cashman delivered the notice to Gisch, but Gisch was never laid off. AfterRathman gave the noticeto Gisch, he received a call from the Prudential Building's manager who apparently persuadedRathman to allowGisch to continue working. Thereafter, Gisch was mainly given jobs that required no tenantinteraction, including atleast two complex tasks Gisch worked on prior to his termination which he was assigned tobecause those tasks didnot involve his being in client spaces.

On August 16, 1989, Rathman received a letter dated August 14, 1989,from Thomas Ponicki, who was thenRubloff's director of operations, complaining about Gisch's work and indicating that GrantThornton, another largePrudential Building tenant, no longer wanted Gisch working in its space. According to Rathman,the Ponicki letterwas "basically the final straw" in Livingston's decision to terminate Gisch. It was at this timethat Rathmaninstructed Cashman to terminate Gisch.

Rathman also stated that he believed he had to either put up with Gischin the Prudential Building or terminate him,and, under the union agreements, he could not move Gisch to a different building Livingstonworked in. On cross-examination, Rathman stated he never took notes of meetings about Gischor memorialized the meetings in any way. Most of the meetings were informal affairs over lunch or the phone.

Barbara DeLeon testified that at the time of Gisch's termination, she wasLeo Burnett's facility's manager andresponsible for setting up office space for new employees or employees "moving around." DeLeon would contactRubloff if she needed work done, and Rubloff would then contact Livingston. DeLeon furtherstated she would "layout" for the workers exactly what needed to be done, with floor plans and directions which shegave to the workers. DeLeon related a problem that arose when Gisch took two or three days for a series of jobs thatwere estimated totake no more than six to eight hours. DeLeon complained about the time it was taking tocomplete the job and oneof Gisch's supervisors came to finish the job, taking only a few hours. Another incident, causingDeLeon tocomplain, arose when Gisch was to core a hole to run some new wire in Leo Burnett's space tohook up an airlineticket machine. DeLeon stated that Gisch cored the hole in the wrong location and then had tofix the error, and thendo the job over. DeLeon then asked Bob Sivotka, another Livingston worker, to take over andfinish the job forGisch.

DeLeon also stated that she observed Gisch being slow in his work,talking to tenants a lot, not informing her whenhe was unable to complete a job, and just leaving the work site without telling anyone that hewas leaving. Gisch'sslowness was a concern to DeLeon because she had to get other workers into the work space, andLeo Burnett wouldbe billed for Gisch's slow work. Eventually DeLeon asked several people not to send Gisch towork in Leo Burnett'sspace.

John Holthaus, Grant Thornton's director of administration in 1989,testified he was responsible for the internaloperations of the office, including the maintenance and upkeep of the office. Holthaus stated thatthe normalprocedure for Livingston electricians when working in Grant Thornton's space was for them toreport to him upontheir arrival and departure so that Holthaus would know when to request other workmen. Gischfailed to reportupon his leaving on several occasions. On one particular occasion in the summer of 1989, Gischwas sent up towork on computer terminals, which the company needed working right away. According toHolthaus, Gisch leftwork at 3 p.m. without finishing the job, and left the terminal inoperable. Gisch's failure tofinish the project causedinconvenience to Grant Thornton and caused it to miss some deadlines. A second instanceoccurred when some"major re-wiring" was needed for a computer system. Livingston estimated the job would take"a day maybe a dayand a half." After three days, Gisch had not completed the job, and Livingston sent anotherelectrician to finish thejob in one-half a day. Holthaus complained to the building office and McElligott, and wasassured Gisch would notbe sent to Grant Thornton's space unless no other electricians were available.

Holthaus further testified that after the second incident, he made it clearto Rubloff that he did not want Gisch in thespace "no matter what." According to Holthaus, as a result of Gisch's failure to timely completetasks, GrantThornton suffered an indeterminable monetary loss and unnecessary disruption of the office. Holthaus also statedhe recalled times when Gisch would leave a work area at 3 p.m. and leave wires dangling out of aceiling or pulledout of a floor.

William McElligott, the Prudential Building's chief engineer, testifiedhe had been at the Prudential Building sinceRubloff took it over in 1984. At the time of Gisch's termination, McElligott was operationsmanager andresponsible for most of the maintenance and construction work in the building, includingelectrical. McElligott wasemployed by Rubloff to oversee the contractors at the building. McElligott stated that at no timedid he ever receivea complaint about the quality of Gisch's work, but he did receive complaints from tenants,particularly Leo Burnettand Grant Thornton, about how long it took Gisch to complete tasks. McElligott took thesecomplaints seriouslybecause it was his job to ensure the tenants were satisfied. On several occasions McElligottspoke with BobRathman about complaints McElligott received about Gisch. McElligott recalled that the firstcomplaints aboutGisch occurred in late 1985 or early 1986. Tenants would complain about the cost of the workbeing done, and thatthey did not feel the invoices Rubloff sent them reflected the amount of work actually done forthe time billed.

McElligott further stated that occasionally, because of tenantcomplaints, either Rubloff would absorb some of theextra cost, or would refuse to pay the high bill and require Livingston to absorb it. Due tocomplaints about Gisch,Leo Burnett asked that Gisch not be sent to its space any longer. McElligott also stated that hewas aware thatLivingston terminated Gisch and believed it was due to the tenant complaints and the fact thatthe demand forelectricians was down. On cross-examination, McElligott attributed the reduction in tenantoccupied space, byroughly 50 percent, contributed to Gisch's termination.

Paul Lussier, a foreman for Livingston and Gisch's former supervisor,testified that in August 1984 he beganworking as a journeyman at the Prudential Building. In August 1986, Lussier became a foremanin the PrudentialBuilding and was responsible for electrical installations. He supervised between four to sixelectricians, includingGisch. He was also responsible for estimating the time needed for jobs in client spaces beforeassigning anelectrician to the job. Lussier had occasion between 1986 to 1989 to counsel Gisch ondeficiencies in Gisch's work.Specifically, Lussier had a problem with how long it took Gisch to perform jobs. On oneoccasion in 1987, DeLeonneeded an electrician for some work in Leo Burnett's space and specifically requested thatLussier not send Gisch.

In August 1988, Lussier again counselled Gisch after receiving acomplaint from John Dwyer, an employee of LeoBurnett. Dwyer complained that the installation of a pop machine, that Lussier himself hadestimated to be an 8 to13-hour job, was not progressing. Lussier had begun the work earlier in the day and was familiarwith what neededto be done. The job ended up taking Gisch 23 hours to complete. Lussier related this incident tohis superiors, andeventually Lussier went with Cashman, Livingston's superintendent and project manager, andother Livingstonsupervisors to review the work. This complaint caused Cashman to issue a memorandum toGisch which Lussierhad discussed with Cashman. The memorandum indicated that Cashman and Lussier had aseries of conversationsabout Gisch's performance in the past, and that if Gisch's productivity didn't improve,"appropriate action" would betaken. The memorandum also indicated that Gisch's performance would be monitored. Lussierfurther testified thathe was instructed by Cashman to monitor Gisch, failed to see any improvement in Gisch's work,and he againcounselled Gisch in April 1989 after another complaint. As a result of this complaint, Holthausrequested that Gischnot be sent to Grant Thornton's space any longer.

In addition to Grant Thornton, Lussier received requests from LeoBurnett not to send Gisch to its space. Lussiercommented that in 1987 he had a conversation with McElligott, who stated his displeasure withGisch's performanceand, if it continued, Rubloff might not allow Livingston workers in some tenant areas anylonger.

In 1988, Lussier became aware of the extra paperwork Cashmanrequired Gisch to fill out. The extra paperworkwas needed because the work orders were vague, and the tenant complaints against Gischrequired some justificationfor Gisch's work. According to Lussier, it took Gisch approximately three to five minutes perday to fill out thisextra paperwork, and that time was billed so Gisch was paid for this time. In approximatelyApril 1989, Lussierwent to Cashman because Gisch was not responding to Lussier's attempts to improve Gisch'swork performance.

Thomas Cutrara, a general foreman for Livingston, testified that he hadknown Gisch for 23 years and had been ageneral foreman for Livingston at the Prudential Building since 1981. Cutrara tookresponsibility for maintenanceelectricians, including Gisch, sometime in 1989. Cutrara identified several Livingston workorders for similar jobs,replacing a broken light switch, done by three different electricians. Two of those electriciansdid the job in one-half hour. It took Gisch twice that amount of time to complete the job. Cutrara identified another set of work ordersin which two electricians did similar jobs. One electrician did the job in two hours, whereas ittook Gisch eighthours. Cutrara admitted that there was approximately one hour of extra work in Gisch'sassignment, but evenallowing for that extra hour, the job should have taken Gisch approximately three hours.

Throughout 1989, Cutrara made personal observations that Gisch's workwas not done in a timely fashion. Cutrarahad occasion to speak to both Cashman and Rathman concerning Gisch's slow work. During1989 when Cutrarawas Gisch's supervisor, he never observed any improvement in Gisch's speed. In May 1989,Cutrara personallydelivered a layoff notice to Gisch. According to Cutrara, after the layoff notice, and Livingston'ssubsequentdecision not to lay Gisch off, the jobs Gisch was given were ones that did not require him tocome into contract withtenants. Cutrara also stated that he agreed with the decision to terminate Gisch becauseLivingston could no longerplace Gisch in tenant space.

Matthew Cashman, Livingston's project manager and superintendent,testified that during the time Gisch worked forLivingston, Cashman was responsible for the hiring and termination of manpower, as well asgeneral oversight ofthe work area. Cashman had approximately 30 years' experience as an electrician, and had seenthe efficiency ofelectricians increase greatly over that time period. According to Cashman, Gisch failed to adaptto the changes inthe industry, and failed to become more efficient. Cashman further stated that when Rublofftook over thePrudential Building's management in 1984, it had different expectations about efficiency and thetime it took docertain jobs than what Livingston was used to prior to that time. Cashman received complaintsfrom Rathman andGisch's foremen periodically between 1984 and 1989 about Gisch's work. Prior to 1988,Cashman had personallydiscussed Gisch's work performance with him approximately six times. Whenever Cashmanwould speak to Gischabout productivity problems, Gisch would simply respond that he was doing the best he could. The only complaintsupervisors and tenants had about Gisch's work was the time it took him to complete jobs. Cashman personallyreviewed a job Gisch had done installing coffee makers and a pop dispenser in a tenant's space in1988 anddetermined, along with other Livingston supervisors, that Gisch took substantially too much timein completing thejob.

Cashman also stated that he had Gisch fill out extra paperwork becausehe had received so many complaints aboutthe time it took Gisch to complete tasks that the extra paperwork would give Gisch anopportunity to documentexactly what he had done and what problems he encountered. Cashman maintained that thepaperwork was toprotect Gisch against the complaints. In May 1989, Cashman and Rathman decided that therewere too manycomplaints and that Gisch had to be terminated. As a result, Cashman had Cutrara give Gisch alayoff notice. However, the next day, Rathman called Cashman to relate an agreement between Livingston andPrudentialsupervisor Bob DeMarc, that Prudential would supply enough jobs for Gisch. These jobs wouldnot require Gisch towork in tenant areas or on Rubloff jobs.

As a result of the agreement, Gisch continued to work after his May1989 layoff notice until his termination inAugust. The events leading up to his termination involved a job in Grant Thornton's space. After receivingcomplaints, Cashman and Rathman decided they needed to terminate Gisch. Cashman was ableto identify thenames of several Livingston employees who worked while in their sixties and until they decidedto retire.

Cashman admitted on cross-examination that no other employees wereterminated the year prior to Gisch'stermination for lack of productivity, only for absenteeism. Although Cashman testified he hadapproximately sixdiscussions with Gisch about his productivity, he could not recall the exact dates of thoseconversations other thanone that occurred in early 1984. Cashman never kept a log of discussions, nor apprised Rathmanin writing of hisconversations with Gisch.

Cashman further stated that although Gisch was not insubordinate,Gisch would not change his attitude and methodsto meet the demands of Livingston's customers. While Cashman looked at Gisch's termination asan option as earlyas 1988, Livingston fought with Rubloff to keep Gisch on, and attempted to convince Rubloffand tenants that thework Gisch did was justified. Cashman also acknowledged that Livingston occasionallyabsorbed some of Gisch'sexcess costs in order to keep Rubloff happy and allow Gisch to continue working.

In rebuttal, Gisch testified that he never left dangerous situations intenant spaces, and if he ever had to leave workunfinished at the end of the day, he would cover it, place barricades around it, bundle any loosewires, and alwaysreplace tools in his truck. Gisch maintained that he never really stopped working in tenant space,specifically LeoBurnett's, from 1984 until he was terminated. Gisch further stated that he never left a tenantspace without speakingto the person in charge of the space, and specifically never worked three consecutive days inGrant Thornton's space,as contended by Livingston and Holthaus.

The ALJ subsequently found that Livingston had unlawfullydiscriminated against Gisch on the basis of age, andawarded Gisch over $130,000 in damages. In a split decision, the Commission affirmed andadopted the ALJ'sdecision. This appeal followed.

When reviewing a decision of an administrative agency, all findings offact of the agency are deemed prima facietrue and correct, and those findings "should be sustained unless the court determines that suchfindings are againstthe manifest weight of the evidence." Raintree Health Care Center v. Illinois HumanRights Comm'n, 173 Ill. 2d469, 479, 672 N.E. 2d 1136 (1996), citing Zaderaka v. Illinois Human RightsComm'n, 131 Ill. 2d 172, 180, 545N.E. 2d 684 (1989); 735 ILCS 5/3-110 (West 1996).

The Illinois Human Rights Act (Act) (775 ILCS 5/1-101, etseq. (West 1992)) guarantees freedom fromdiscrimination in employment. Section 1--103 of the Act defines unlawful discrimination as"discrimination againsta person because of his or her race, color, religion, national origin, ancestry, [or] age." 775 ILCS5/1-103(Q)(West1996). Pursuant to the Act, persons over 40 years of age are included in the protected class. 735ILCS 5/1-103(A)(West 1992).

Here, Livingston argues Gisch failed to present any direct evidence ofage discrimination by Livingston. As statedin Interstate Material Corporation v. Human Rights Comm'n, 274 Ill. App. 3d1014, 1021, 654 N.E.2d 713 (1995),"[e]mployment discrimination actions brought under the Illinois Human Rights Act are to beanalyzed in accordancewith the framework set forth by the United States Supreme Court decisions reviewing claimsbrought under TitleVII of the Civil Rights Act of 1964 (42 U.S.C.