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THIRD DIVISION

September 20, 2000

No. 1--98--2665

JUSTICE BURKE delivered the opinion of the court:

Petitioner Robert Sola (Sola) appeals from a summary decision of defendantIllinois Human Rights Commission (the Commission) dismissing his complaintagainst respondent International Business Machines Corporation (IBM), allegingthat IBM discriminated against him on the basis of age when it designated him as"surplus" and permanently laid him off⁽¹⁾ in violation of the Illinois Human RightsAct (the Act) (775 ILCS 5/1--102 et seq. (West 1998)). This matter is beforethis court on direct appeal pursuant to Supreme Court Rule 335 (155 Ill. 2d R.335), and section 3--113 of the Administrative Review Law (735 ILCS 5/3--113(West 1998)). On appeal, Sola contends that the summary decision was improperbecause the Commission utilized the wrong legal standard in assessing whether headduced sufficient evidence to create a triable issue of fact, the Commissionignored, minimized, or confused evidence, the Commission erred in holding no caselaw supported his position that IBM failed to adhere to seniority-based reductionin force policies, and the Commission misapplied reduction in force case law. For the reasons set forth below, we affirm.

The relevant facts in this case are taken from Sola's affidavit and theaffidavits of IBM's other employees, unless otherwise indicated. We initiallynote that Sola's affidavit contains no facts regarding his work history or anyactivities or events that occurred during his employment with IBM. The affidavitrelates only to the various exhibits he offered, which are disjointed,unorganized and, at times, unclear as to their source. Thus, the basic facts ofSola's employment history and his ultimate resignation are taken mainly from theemployee affidavits supplied by IBM, including those of Kimberly Kupczyk, KeithHeideman, and Sharon Whitlock.

Sola first began working for IBM on June 14, 1965, as an associate systemsengineer. Thereafter he held a variety of positions, including senior storesystems engineer and customer support representative.

According to Heideman, Sola's second-line manager, in the winter of 1993,IBM established the Area Configuration Team (the ACT Team or Team) based onservices needed for four business groups: product marketing, software marketing,availability services, and customer service organization. The Team was designedto handle the software and hardware configurations for these four groups. At thetime the Team was formed, IBM believed it needed 8 to 12 individuals with skillsin large systems (ES/9000), mid-range systems (AS/400), work stations, andnetworking systems. In early 1994, Sola was recommended for the Team based onhis AS/400 skills and administrative experience. Sola was designated a"generalist" and became the staff information center analyst on the Team. Thiswas the last position he held with IBM. Whitlock was assigned as the Team leaderand was responsible for the day-to-day operational management of the Team. Kupczyk was Sola's first-line manager and was responsible for personnel issuesand his career development. In her role as Team leader, Whitlock reported toKupczyk frequently on the performance and progress of various Team members. Theother Team members were: Steven Fischer, Andrea Adamson, Jeff Laniewski, MargaretLindenberger, Kevin McInerney, Paul Rawlins, and Zoe Miron.

[NONPUBLISHABLE MATERIAL REMOVED UNDER SUPREME COURT RULE 23]

All three individuals averred that in the late summer of 1994, IBMdetermined that the Team's skills were not in accord with customer demands: 80%of the demand was for large system configurations. At this time, only two Teammembers possessed large system configuration skills. Thus, management determinedthat more staff was needed for large systems and less in the other areas. Basedon this, it was determined that approximately three Team members had to beeliminated.

At about the same time and independent of the above determination, IBMannounced its "Employee Transition Plan" (the IETP), a reduction in force planbased on IBM's necessity to become more competitive and efficient. The planwould reduce the overall number of employees while retaining the critical skillsnecessary for IBM to service its customers. An IBM memorandum, dated September8, 1994, stated that IBM would be eliminating 3,000 positions across the country,or 7% of its force. According to the memorandum, a majority of the positions tobe eliminated would be support staff. Under the plan, each general manager wasrequired to designate certain employees as "surplus," based on the manager's solediscretion. One method of implementation of the plan involved staff reduction. In this respect, management analyzed the various units of the business to seewhere employees could be eliminated without significantly impacting upon IBM'sservice level. Once it was decided how many employees would be laid off in anygiven unit, managers of that unit identified the skills to fulfill the unit'smission. Once the skills were identified, each employee in the unit was assessedand those with the weakest skills were designated surplus.

The ACT Team was one area targeted by the reduction in force plan. According to Kupczyk, IBM assessed the Team's overall productivity and businessneeds, and it determined that three members had to be eliminated. Whitlockaverred she was responsible for identifying the necessary skills to fulfill theTeam's mission--those skills critical to the success of the Team. She identifiedthe following skills: AS/400 configuration skills; effective use ofhardware/software tools and administrative systems supporting the configurationprocess; high level of productivity and accuracy; effective multiplexing(handling multiple tasks concurrently); good communication skills; teamwork;customer relation skills; an understanding of the ES (mainframe computer)hardware/software platform; good business judgment; organizational skills; andcreativity to improve the configuration process.

Heideman and Kupczyk met to determine which three members would beeliminated based on a comparative assessment of the skills of each Team member. Each of the seven members were assessed in accordance with the criteria and Sola(56), Fischer (45), and McInerney (43) were designated as surplus. Those memberswho were not surplused were Adamson (36), Laniewski (31), Rawlins (52), andLindenberger (45).⁽²⁾ Sola, Fischer, and McInerney were assessed as comparativelyweaker than those members who were retained. According to Kupczyk, Sola'soverall productivity was the lowest in the group. As Sola's day-to-daysupervisor, Whitlock agreed with Kupczyk's and Heideman's assessment of Sola'sskills as comparatively weaker than those of the rest of the Team in the areasof technical configuration skills, communication skills, and customerrelationship skills. Further, his overall productivity was the lowest in thegroup. All three averred they were unaware of Sola's age while working with himand that age had nothing to do with the assessment of his skills or designatinghim as surplus.

On September 24, 1994, Kupczyk advised Sola he had been designated assurplus and that he would be permanently laid off as of November 30, 1994. Inresponse to his designation as surplus, Sola retired as of November 30, 1994,five days prior to reaching age 57.

On October 3, 1994, Sola filed a charge of discrimination with theDepartment, alleging he had been discriminated against based on his age. Thereafter, Sola filed a verified complaint with the Department pursuant to theAct. 775 ILCS 5/1--102 et seq. Following discovery, IBM filed a motion forsummary decision pursuant to the Illinois Administrative Code (the Code) (56 Ill.Adm. Code