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FOURTH DIVISION
December 13, 2001

Complainant, Peter Van Campen, filed a charge of discriminationagainst respondent, International Business Machines Corporation (IBM),with the Illinois Department of Human Rights and a complaint with theIllinois Human Rights Commission (Commission). In these documents,Van Campen alleged that IBM discriminated against him based on ahandicap in violation of the Illinois Human Rights Act (the Act). Ill. Rev. Stat. 1989, ch. 68, par. 1-101 et seq. (recodified at 775ILCS 5/1-101 et seq. (West 2000)). After a 17-day hearing, theadministrative law judge (ALJ) found that Van Campen failed to prove aprima facie case of handicap discrimination and recommended that theCommission dismiss his complaint with prejudice. The Commissionaffirmed and adopted, in part, the decision of the ALJ, finding thatVan Campen was not handicapped as defined in the Act. Van Campen nowappeals, arguing that the Commission erred in (1) concluding that VanCampen's disability was related to his ability to perform his job and,thus, he was not handicapped under the Act; and (2) dismissing thecomplaint even though IBM failed to consider the possibility ofreasonable accommodation. IBM cross-appeals, contending that theCommission erred in not affirming alternative bases for the ALJ'sdecision and that additional grounds on which this court could affirmare present in the record. For the reasons set forth below, weaffirm.

The Commission made the following factual findings based on theevidentiary hearing before the ALJ and the ALJ's recommended decision. Van Campen worked for IBM from 1973 to May 1990 in various capacities. In December 1987, Van Campen was promoted to account systems engineer(SE), which involved overseeing the installation of IBM operatingsystems at clients' offices and trouble-shooting for clients with IBMsoftware. Van Campen received three performance awards in 1989, twofor his role as part of a team of IBM employees for a large sale toCiticorp. Since 1989, Van Campen has suffered from an immunedeficiency which caused him to be more susceptible to, and ill from,minor illnesses. Additionally, Van Campen was clinically depressed,sometimes making it difficult to wake up in the morning. IBMmanagement referred employees with medical conditions to IBM's medicaldepartment (IBM Medical), which made all determinations as to theappropriateness and nature of an accommodation.

Van Campen's supervisor in 1988 and 1989, Verlene Gardner,testified that Van Campen was required to be at work and on timeduring business hours and to telephone her when he would be absent orlate. At IBM, the business day lasted from 8:30 a.m. to 5 p.m., withone hour for lunch. When an employee was absent, his manager wasrequired to have another SE cover the absent employee'sresponsibilities. On at least two occasions, Gardner was unable tolocate Van Campen during business hours. Both times, she informed VanCampen that she needed to know where he was during the workday.

In November or December of 1989, Van Campen's new supervisor,Mike Hlebasko, attempted to contact him. When he found Van Campen athome, Hlebasko told him to be at work during business hours and toinform Hlebasko if he would be working from home. Van Campen missedwork twice in December 1989 and did not return Hlebasko's calls orinform him of his absence until the next day, despite warnings fromHlebasko. Van Campen was absent due to illness approximately 13 timesin 1989.

On January 18, 1990, Van Campen called Dr. Foster at IBM Medicaland explained that he was having difficulty arriving at work on time. Foster told him to try to reduce the amount of absences and wake upearlier in the morning. Van Campen missed work due to illness withoutinforming Hlebasko on January 22, 1990. Foster told Hlebasko that sheneeded signed medical releases from Van Campen so that she could speakwith his physicians. Hlebasko told Van Campen to give IBM Medical arelease and informed him that a condition of his employment wasadherence to IBM's attendance policy. Van Campen was absent again onJanuary 25, 1990.

After Van Campen saw Foster on January 26, 1990, Foster sentHlebasko a note stating that Van Campen was doing well. Hlebaskoinformed his supervisor, Bill Brennan, that Van Campen wasconsistently absent and it was affecting his job performance. InJanuary or February, Brennan learned that Van Campen had missedmeetings with Citicorp. Additionally, Van Campen failed to timelyrespond to work-related phone calls. At this time, Hlebasko begankeeping notes of his conversations with Van Campen.

IBM's progressive discipline procedure for handling employeeattendance problems called for, first, a verbal warning or counselingand, second, the issuance of a condition of employment (COE) letter,which informed the employee that his or her behavior was unacceptableand what the employee could do to remedy the situation. If theproblem persisted, IBM terminated the employee.

Van Campen missed work March 1 and 2, calling to inform Hlebaskoonly on March 2. That day, Hlebasko learned that Van Campen failed tofill two software orders for Citicorp and later learned that VanCampen failed to order cables for another client. When Van Campenreturned to work on March 3, Hlebasko reiterated that he needed to beadvised if Van Campen would not be at work.

On March 13, 1990, Van Campen again missed work and did notrespond to an emergency software problem at Citicorp. When Hlebaskomet with Van Campen, Van Campen first informed Hlebasko of hisdepression and immune deficiency. Hlebasko asked Van Campen to seeIBM Medical and informed him that his work was deficient. Hlebaskothen imposed a requirement on Van Campen that he call Hlebasko thefirst thing every morning to advise him that he was at work. WhileVan Campen was the only employee under such an obligation, he was theonly employee who was occasionally unavailable to Hlebasko duringworking hours.

On March 16, 1990, Van Campen was late to work, but did not callHlebasko. On April 6, 1990, Van Campen left Hlebasko a message atnoon, stating that he was working at Citicorp that day. On April 10,Van Campen phoned Hlebasko at 8 a.m. and 10 a.m., saying he would belate. Van Campen failed to call Hlebasko on April 11, but gave him adoctor's note at 2:30 p.m. Hlebasko discussed Van Campen's attendancewith Brennan on April 12. Brennan advised Hlebasko to issue VanCampen a COE letter.

Van Campen met with Brennan on April 12 and explained that hesuffered from depression, diarrhea, and side effects of medication. He stated he was not able to arrive at work on time and asked Brennanto get Hlebasko "off his back." Brennan informed Van Campen that heneeded an orderly work schedule because employees were dependent oneach other and stated that Van Campen needed to come to work on timeor risk his job. Brennan further told Van Campen that his doctorsshould speak with IBM Medical concerning his condition and any specialaccommodations. When Van Campen replied that his doctors would notprovide this information, Brennan stated that his doctors were costinghim his job.

On April 16 or 17, 1990, Hlebasko met with Van Campen, discussedhis attendance record, and issued a COE letter. The letter statedHlebasko's concerns about Van Campen's absenteeism and tardiness andIBM Medical's opinion that he was fit for work and imposed severalconditions on his employment. Van Campen was to report to work,either at One IBM Plaza or a client location, from 8:30 a.m. to 5p.m., Monday through Friday. In the event of illness, he must contacta supervisor by 8:30 a.m. and present a doctor's note stating the dateand nature of treatment. Van Campen, Hlebasko and Foster then had aconversation where Van Campen explained that his condition preventedhim from arriving at work on time, he did not want to release personalinformation to IBM Medical, and it was difficult to be "constrained"by reporting to work every day at a fixed time.

On April 20, Van Campen met with Brennan and Hlebasko regardingthe COE letter. Brennan informed Van Campen of the seriousness of thesituation and that he was in danger of losing his job. Brennan againasked Van Campen to have his doctors release information to IBMMedical, but Van Campen replied that his doctors would not do so. Brennan warned Van Campen that his doctors would cause histermination. Ultimately, Brennan revoked the COE letter based on VanCampen's assertion that he was at Citicorp on April 10. Brennaninstructed Van Campen to inform Hlebasko of his whereabouts.

On April 23, Van Campen called Hlebasko late at 8:55 a.m. Hlebasko then met with Van Campen at Brennan's insistence. Van Campengave Hlebasko a letter from one of his treating doctors to aninsurance company which assessed his psychological condition. Theletter did not state that Van Campen needed an accommodation.

Van Campen called in sick on April 26. On May 3, Van Campen didnot call Hlebasko until 10 a.m. In May, Hlebasko asked one of VanCampen's coworkers to perform some of Van Campen's jobresponsibilities. Hlebasko also reviewed Van Campen's performance andinstructed him that his performance was slipping and that he needed toadhere to IBM's attendance policy. On May 4, Van Campen called to sayhe would be late for work. In their next meeting, Hlebasko issued aCOE letter that was substantially the same as the previous letter. Van Campen then met with Hlebasko and Brennan's supervisor, explainingthat his medical conditions prevented him from arriving at work ontime. The supervisor told Van Campen to execute medical releases forIBM Medical.

On May 9 and May 16, Van Campen arrived late to work. WhenHlebasko met with Van Campen on May 17, Van Campen stated he was latedue to his medical conditions and indicated a reluctance to execute ablanket medical release. Van Campen did not call Hlebasko the nextmorning. On May 21, Van Campen told Hlebasko he was not feeling wellso Hlebasko sent Van Campen to IBM Medical. Van Campen left Hlebaskoa message that, although IBM Medical cleared him to return to work, hewas still sick and went home. Van Campen did not report to work onMay 22.

Hlebasko then spoke with Brennan, who told Hlebasko to obtain adoctor's note from Van Campen and to fire him if he did not have one. Hlebasko left a message at Van Campen's home telling him to bring adoctor's note describing the nature of his treatment and that he wasunable to work. At their meeting, Van Campen presented Hlebasko witha doctor's note dated May 22, stating "rule out hepatitis." Hlebaskostated that the note did not cover his absence of May 21 and did notexplain that Van Campen could not have returned to work. Hlebaskothen fired him. In 1989 and 1990, Van Campen never executed a medicalrelease or provided IBM Medical with medical evidence of hisconditions which prevented him from arriving at work on time or fromcalling in when he would be late or sick.

The testimony of Gardner, Hlebasko, Brennan and Fosterestablished that Van Campen's job required him to be at work, on time,on a regular, consistent basis from 8:30 a.m. until 5 p.m. Hlebaskotestified that SEs were required to be at work during normal businesshours, with an 8:30 a.m. start time. Gardner stated that IBM had astandard policy that required employees to call their supervisors atthe start of the workday, or as soon as feasible, when they would belate or absent. The ALJ found that implicit in this notification isacknowledgment of the fact that IBM expected SEs to be at work at 8:30a.m. The Commission found that Van Campen's position was "customerdriven" and SEs must be available at all times for their clients. IBMdid not require SEs to arrive at work at 8:30 a.m. if they worked latethe night before and notified their managers that they would be late. Van Campen did not testify that he was late to work due to workinglate the previous night.

In 1989 and 1990, IBM had a flex-time policy that required anemployee to report to work at the same, fixed time every day, butchanged the hours slightly from the regular 8:30 a.m. to 5 p.m.schedule. Flex-time had to be formally requested and approved by theemployee's manager. However, Hlebasko testified that flex-time wasnot available for employees in his department. Further, Van Campennever requested a later start time through the flex-time policy, butrequested a flexible schedule that could vary day-to-day depending onhow he was feeling. The Commission found that the nature of VanCampen's job, in which he may be needed by a client at any time, didnot permit an unacceptable amount of leave without causing undueburden or expense to IBM.

Van Campen's doctors testified to his depression, personalitydisorders, immunological deficiency, frequent diarrhea and minorillnesses, and hypothyroidism. Due to these conditions, Van Campenneeded to immediately handle any minor illnesses or diarrhea and couldnot predict when these conditions would occur. Additionally, he mighthave difficultly waking in the morning due to his depression andsometimes could not make it to work on time. Relying on the testimonyof Van Campen's doctors, the ALJ concluded that Van Campen's physicaland psychological conditions made him unable to adhere to a structuredroutine work schedule and that a formal, fixed flex-time schedulewould not have aided him.

At the conclusion of the hearing, the ALJ issued herrecommendation to dismiss Van Campen's complaint with prejudice,finding that he did not establish that his medical conditions were"handicaps" under the Act because those conditions were related to hisability to perform his job. In assessing credibility, the ALJ foundHlebasko, Brennan, Foster, and Gardner credible, while discounting VanCampen's testimony. The ALJ also found that Van Campen failed toprove a prima facie case of discrimination, IBM presented credibleevidence that it terminated Van Campen for a legitimate,nondiscriminatory reason, and Van Campen did not establish that IBM'sreason was a pretext for discrimination. After Van Campen filedexceptions to this recommendation, the Commission affirmed and adoptedthe ALJ's decision, except on the ground that Van Campen failed toexecute a full medical release. The Commission then dismissed VanCampen's complaint, prompting this timely appeal.

When reviewing an administrative agency's decision, its factualfindings are deemed prima facie true and correct and will not bedisturbed unless they are against the manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d191, 204, 692 N.E.2d 295, 302 (1998). We cannot substitute ourjudgment for that of the Commission, nor may we reweigh any evidencepresented at the hearing, resolve any factual disputes or assesscredibility. Chicago Housing Authority v. Human Rights Comm'n, No. 1-99-3885 (October 12, 2001). The Commission's legal analysis, however,is not entitled to such deference. Because this case involves a mixedquestion of fact and law, we will apply the clearly erroneous standardof review, which rests between manifest weight of the evidence and denovo, when examining the Commission's decision. City of Belvidere,181 Ill. 2d at 205, 692 N.E.2d at 302. We can affirm the decision onany basis present in the record. Rogy's New Generation, Inc. v.Department of Revenue, 318 Ill. App. 3d 765, 771, 742 N.E.2d 443, 448(2000).

The Illinois Human Rights Act prohibits discrimination inemployment against the physically and mentally handicapped. 775 ILCS5/1-101 et seq. (West 2000); Raintree Health Care Center v. IllinoisHuman Rights Comm'n, 173 Ill. 2d 469, 479, 672 N.E.2d 1136, 1141(1996). In analyzing employment discrimination claims under the Act,Illinois courts apply the three-part test set out by the United StatesSupreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed. 2d 668, 93 S. Ct. 1817 (1973). Zaderaka v. Illinois Human RightsComm'n, 131 Ill. 2d 172, 178-79, 545 N.E.2d 684, 687 (1989). First,plaintiff must establish a prima facie case of unlawful discriminationby a preponderance of the evidence. Raintree, 173 Ill. 2d at 481, 672N.E.2d at 1141. Second, to rebut the presumption of unlawfuldiscrimination, the employer must articulate a legitimate,nondiscriminatory reason for its employment decision. Finally, if theemployer establishes a legitimate reason, plaintiff must prove thatthe reason was merely a pretext for unlawful discrimination. Raintree, 173 Ill. 2d at 481, 672 N.E.2d at 1141.

In order to establish a prima facie case of handicapdiscrimination, plaintiff must prove that (1) he is handicapped asdefined within section 1-103(I) of the Act; (2) an adverse job actionwas taken against him because of the handicap; and (3) his handicap isunrelated to his ability to perform the functions of the job. Hartonv. City of Chicago Department of Public Works, 301 Ill. App. 3d 378,385-86, 703 N.E.2d 493, 498 (1998). "Handicap" is defined under theAct as "a determinable physical or mental characteristic of a person*** which may result from disease, injury, congenital condition ofbirth or functional disorder and which characteristic *** is unrelatedto the person's ability to perform the duties of a particular job orposition." 775 ILCS 5/1-103(I)(1) (West 2000). Thus, a prima faciecase of handicap discrimination twice contains the requirement that aplaintiff must have the ability to perform the duties of the job inquestion. Harton, 301 Ill. App. 3d at 386, 703 N.E.2d at 498. Further, a plaintiff who cannot, by reason of a physical condition,perform the duties of the job in question even with accommodation isnot handicapped under the Act. Harton, 301 Ill. App. 3d at 390, 703N.E.2d at 501. An individualized determination of a handicappedperson's abilities is required. Raintree, 173 Ill. 2d at 482, 672N.E.2d at 1142.

Van Campen first contends that the Commission erred in concludingthat his condition was related to his ability to perform his job and,thus, he was not covered by the Act. Specifically, Van Campenchallenges many of the Commission's factual findings, including thefindings that regular attendance was essential to his position, hisposition was not amenable to a flexible schedule, he could notregularly attend work and his work performance suffered as a result ofhis absences. When reviewing the Commission's factual determinations,we cannot substitute our judgment for that of the Commission and willnot disturb its findings unless against the manifest weight of theevidence. City of Belvidere, 181 Ill. 2d at 204, 692 N.E.2d at 302;Chicago Housing Authority, slip op. at 9. After reviewing theevidence, including the ALJ's credibility determinations, we find thatthe Commission's factual findings were not against the manifest weightof the evidence, and thus they are deemed prima facie true andcorrect. Therefore, we reject Van Campen's challenges to theCommission's facts.

Our first inquiry is whether Van Campen met the Act's definitionof "handicap" and, therefore, invoked the reasonable accommodationrequirement. We agree with the Commission that Van Campen was nothandicapped within the definition of the Act, even with accommodation,because his handicap was related to his ability to perform his jobduties. "[A] person's condition is related to his/her ability [toperform his/her job] *** if it is manifested or results in behavior(e.g., absenteeism ***) which fails to meet acceptable standards." 56Ill. Adm. Code