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THIRD DIVISION

September 29, 2000

No. 1--98--4364

JUSTICE BURKE delivered the opinion of the court:

Petitioner Constantine Koulegeorge appeals from an order ofrespondent Illinois Human Rights Commission (Commission) dismissinghis complaint for age discrimination pursuant to section 2--102(A)of the Illinois Human Rights Act (Act) (775 ILCS 5/2--102(A)(West1992)), based on the termination of his employment by respondentTempel Steel Company (Tempel). On appeal, petitioner contends: (1)that the Commission did not have the statutory authority to entera "directed finding"⁽¹⁾ dismissing his complaint; (2) he was onlyrequired to present "substantial evidence" of discrimination todefeat Tempel's motion for a directed finding; (3) and a directedfinding for Tempel was not appropriate because the administrativelaw judge (ALJ) and the Commission applied the wrong legal standardand ignored or misconstrued certain evidence supporting theallegations of his complaint. For the reasons set forth below, weaffirm.

The following facts are based on a stipulation entered into bythe parties prior to the hearing before the ALJ and submitted in a"Joint Prehearing Memorandum" (prehearing memorandum). Petitionerwas born on July 25, 1939, and he began working for respondentTempel as an hourly-paid press operator in July 1968 at Tempel'smotor lamination division in Chicago. Tempel's headquarters werelocated in Skokie. By 1970, petitioner had been promoted todispatcher in the plant's production control department. WilliamSchaller and Arthur Homyak were already working in the productioncontrol department when petitioner was assigned there. In 1973,petitioner was promoted to a salaried position as the productioncontrol 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 serveas the production control staff assistant. Also in 1987, ThomasKlawitter was hired by Tempel as another production control staffassistant. After he had completed his training in the varioustasks performed by the production control department, Klawitter wasprimarily responsible for scheduling Tempel's slitting department. Petitioner was responsible for scheduling of the annealingdepartment.

In March 1990, Tempel underwent a change of administration andbegan a process of corporate restructuring and review. In April1990, following a review of the functions of the production controldepartment, Tempel decided to eliminate both production controlstaff assistant positions. In 1991, Tempel employed a total of 691people at its Chicago plant. In April 1991, Tempel laid off 79hourly employees and 12 of the employees were over the age of 40. Tempel allowed 15 employees to transfer, 3 of whom were over theage of 40. Thomas Setlik, the project manager, had decided as partof the administrative review that began in 1990 to eliminate thetwo production control positions. Petitioner's position waseliminated, effective January 15, 1992, when he was 52 years old. He was informed of this decision, as directed by Setlik, by ArthurCanning, the corporate director of human resources. Schaller wasthe immediate supervisor of both petitioner and Klawitter at thattime. Schaller was not consulted by Setlik regarding theelimination of positions by Tempel. Klawitter was 49 years old atthat time. Petitioner had previously performed the dutiesperformed by Klawitter and had also trained him in these duties.

Klawitter remained working for Tempel until August 28, 1992,because, according to Tempel, the employee who was to assumeKlawitter's job duties under the reorganization, Paul Rasborschek,who was age 54 and the manager of the slitting department, was ona disability leave of absence. Setlik also claimed that Klawitterwas retained because he had been performing the slitting duties inthe slitter department on a day-to-day basis while petitioner hadnot performed them within the last five years.

Tempel gave petitioner a severance package, which was contraryto its usual policy, which included his full salary and fringebenefit continuation for six months through July 15, 1992, andprofessional outplacement services at Tempel's expense. He hadreceived a 2% merit raise in January 1991 based on his lastperformance evaluation before his discharge.

At the hearing on petitioner's complaint, petitioner testifiedthat beginning in 1990, he began having weekly meetings withCanning. Canning would approach him in the hallway on the day ofthe meetings and say to him, "Gus [petitioner], are you still here? I am surprised you are still here." These comments started to makepetitioner think that "something is going to happen to me." Petitioner also stated at the hearing that Setlik told him, "Gus,you get paid top dollars, we'll see what we can do about you." Petitioner testified that these instances occurred shortly beforehe was terminated.

Jacinto Gabriel, who had worked as a dispatcher for Tempel,testified that he noticed from March 1990 through June 1991 thatTempel was "letting older people go" from the work force in theproduction control department. He also believed that petitionerwas "let go" based on his age because Klawitter was younger thanpetitioner and had less seniority. He did not know Klawitter'sexact age. Gabriel claimed that he did not have any other basisfor believing that petitioner was subject to discrimination. Gabriel also believed that he was "let go" because of his age.

Larry McIntyre testified that he worked as a security officerfor Tempel from 1979 to 1981 and from 1989 to 1993. He was 55 whenhe was terminated the second time. McIntyre claimed that the othersecurity officers were also terminated except for the youngest whowas in his mid-40's. He and the other guards began to notice apattern terminating older workers. He noticed younger workersreplacing older workers in the housekeeping and truckingdepartments after the new management took control. McIntyrefurther stated that the guards filed charges against Tempel withthe Equal Employment Opportunity Commission (EEOC) which were stillpending at the time of the hearing. McIntyre further stated thatall of the guards who filed charges with the EEOC were terminated. Only the youngest guard, who was the only guard not to participatein the filing of charges with the EEOC, was not terminated. McIntyre also stated that Tempel claimed that it was "outsourcing"security guard jobs.

Robert Nichols, Tempel's vice president and general managertestified as an adverse witness at the hearing to the authenticityof a memorandum dated September 7, 1993, indicating that Tempel wasaware the guards had gone to the EEOC before they were fired. Thememorandum (petitioner's exhibit 10) was an "interofficecorrespondence" based on a meeting requested by Victor Toboada, aplant protection officer, regarding "specific events taking placewith the other officers." Nichols testified that he decided toterminate the guards to save money by "outsourcing" the guardpositions and because of the other matters regarding inappropriatebehavior by the guards listed in the memorandum as described byToboada, such as possession of keys and access to offices, desks,and confidential information concerning pensions, salaries, andprofits of the company.

Setlik testified as an adverse witness that when Tempeleliminated the position of a salaried employee, the company wouldgive the employee severance payment rather than transfer and recallrights. He also stated that there were no other positions forpetitioner to transfer to at the time his position was eliminated.

At the close of petitioner's case, Tempel moved for a directedfinding. On June 11, 1998, the ALJ filed her "Recommended Orderand Decision" which stated that petitioner's complaint failed toestablish a prima facie case of age discrimination and that adirected finding for Tempel was appropriate. The ALJ, therefore,recommended that petitioner's charge and complaint be dismissedwith prejudice. The ALJ's decision stated that petitioner'sposition, as well as several other positions, in the ProductionControl Department were eliminated as a result of a review of thefunctions of that department in April 1990. The decision alsostated that the preponderance of the evidence adduced duringpetitioner's case-in-chief did not sustain the complaint. The ALJfound that petitioner's testimony, regarding the alleged commentshe attributed to Setlik and Canning, was not credible. The ALJnoted that petitioner had admitted in his answers tointerrogatories that no comments regarding his age had ever beenmade to him, and she also noted that neither of the comments wereincluded in petitioner's charge or his complaint. The ALJ furtherfound that even if petitioner had not fabricated the comments, theywere insufficient evidence of age discrimination because he failedto show that Canning had any input into the decision to terminatehim and that the parties had stipulated that Tempel had decided toeliminate the production control staff assistant positions as earlyas April 1990. The ALJ also stated that there were valid "monetaryconcerns" which may have led to petitioner's termination based onhis high salary due to his number of years working for Tempel, asopposed to his age, and that Setlik's comment would have beenconsistent with this concern.

The ALJ further found that the testimony of Gabriel andMcIntyre regarding discrimination by Tempel against defendant andthe other "older people" to be speculative and not credible becausethey could not give specific instances or dates of discrimination. It was undisputed, according to the ALJ, that petitioner was notreplaced by a similarly-situated younger individual and that any ofpetitioner's remaining former duties which still existed after theelimination of the position and restructuring were simply absorbedby existing personnel. The ALJ also found that Klawitter was nottreated more favorably by Tempel because Tempel made the decisionto eliminate Klawitter's position at the same time that iteliminated petitioner's and Klawitter was only able to remainlonger with Tempel because Rasborschek, the individual who wouldhave taken over some of Klawitter's duties, had a heart attack andrespondent waited for his return before actually eliminatingKlawitter's position. The ALJ stated that petitioner did not provethat he had any "bumping" rights to support his argument that heshould have been allowed to "bump" Klawitter from the position heheld while waiting for Rasborschek's return. The ALJ further foundthat the evidence indicated that Tempel had a policy of offeringsubstantial severance to laid off workers and petitioner was not,therefore, entitled to a hourly position at the time of hisdischarge. The ALJ also stated that there were no other positionsavailable at the time as the evidence showed that Tempel did notbegin hiring for "some time" after petitioner's discharge.

On November 10, 1998, the Commission filed a "Notice" whichstated that the Commission had "decided to decline to review theRecommended Order and Decision" of the ALJ and that it would becomethe "Order and Decision" of the Commission. This appeal followed.

We initially address petitioner's argument that our standardof review of the Commission's decision is de novo. Petitionerargues that because there is no authority allowing the Commissionto enter a directed finding, we must rely on "the most analogouscase law" involving summary decisions under the Human Rights Act. Based on this analogy, petitioner maintains that because summarydecisions, like a decision for summary judgment under the IllinoisCode of Civil Procedure, concern questions of law, our review ofthe Commission's order and decision should be de novo.

Tempel and the Commission argue that because a hearing washeld in which testimony and evidence were presented, the decisionin this case is not the equivalent of a summary decision addressingquestions of law. They maintain that the findings of fact made bythe ALJ on their motion for a directed finding must be sustainedunless they are against the manifest weight of the evidence.

The findings and conclusions of an administrative agency onquestions of fact are held to be prima facie true and correct. 735ILCS 5/3--110 (West 1994). The Commission's factual findings mustbe affirmed unless a reviewing court concludes that they areagainst the manifest weight of the evidence. Raintree Health CareCenter v. Illinois Human Rights Comm'n, 173 Ill. 2d 469, 479, 672N.E.2d 1136 (1996). Determinations as to the credibility ofwitnesses and the weight to be given their testimony are reservedfor the administrative agency, and it is not this court's functionto substitute its judgment on those issues. Abrahamson v. IllinoisDepartment of Professional Regulation, 153 Ill. 2d 76, 88, 606N.E.2d 1111 (1992).

The present case involved findings of fact followingpetitioner's presentation of evidence in an evidentiary hearing. The ALJ determined from the evidence and the credibility of thewitnesses that petitioner had not established a prima facie case ofdiscrimination by a preponderance of the evidence. The ALJ did notenter judgment on petitioner's complaint as a matter of law, andpetitioner has presented no authority supporting his contentionthat we should apply the de novo standard of review applicable tosummary decisions to the decision of the ALJ and Commission in thepresent case. Accordingly, the applicable standard of review iswhether the factual findings made by the ALJ, and adopted by theCommission, were against the manifest weight of the evidence.

Petitioner next contends that there is no statutory authorityfor the ALJ to have entered a directed finding before the "close ofall proofs." He argues that although the Illinois AdministrativeCode permits "summary decisions" similar to summary judgment underthe Illinois Code of Civil Procedure, there is no correspondingprovision in the Administrative Code permitting the ALJ to make adirected finding. Petitioner also maintains that none of thereported cases in which the Commission has decided that it has the"right" to enter a directed finding has ever been reviewed by theIllinois appellate courts.

Tempel argues that it is illogical to require a respondent topresent exculpatory evidence when the evidence presented by apetitioner is clearly insufficient to support the allegations ofhis complaint. Tempel also argues that because the AdministrativeCode permits an ALJ to render a summary decision without havingheld any hearing where there is no genuine issue of material fact,the ALJ must necessarily have the power after an evidentiaryhearing to dismiss the complaint. The Commission adopts Tempel'sargument and further argues that because the ALJ found thatpetitioner failed to establish a prima facie case of agediscrimination, it was proper for her to dismiss petitioner'scomplaint as the remainder of the hearing was unnecessary.

The section of the Illinois Administrative Code (Code)applicable to the Commission states, in relevant part:

"a) Subject to the provisions of the Act andof this Part, the [ALJ] shall have fullauthority to govern the procedure of thehearing and to admit or exclude testimonyor other evidence.

b) The [ALJ] shall rule on all propermotions and objections by any party ***." 56 Ill. Admin. Code