Find Legal Information

SECOND DIVISION

July 31, 2001

No. 1-00-0645

Complainant, Jerome Wilhelm, filed a complaint with the Illinois Human RightsCommission (Commission). He alleged that respondent, R.B. Hayward and Company(Hayward), discriminated against him based on a handicap and a perceived handicap, in violationof section 2-102(A) of the Illinois Human Rights Act (Act) (775 ILCS 5/2-102 et seq. (West1998)). Wilhelm alleged that Hayward discriminated against him when Hayward refused totransfer him from a drafting position to the position of foreman and later laid him off from hisdrafting position.

The evidence at the hearing showed that Wilhelm was hired by Hayward as a sheet metalduct installer in 1951. He was later promoted to foreman. While working as a foreman at theAmoco Building in Chicago in 1989, Wilhelm injured his neck and shoulder helping a coworkerhoist a fan into a ceiling duct. He was off work for four months. His injury made it difficult totilt his head back or raise his hands above his head. In February 1990 Hayward asked Wilhelm toperform light duty work as a draftsman because he could not perform installation work in thefield. Wilhelm was paid a foreman's wage, including contributions to his union. During thisperiod he also filled in for foremen at several sites and went to construction sites to doestimating, measuring and listing work.

The record shows that another employee, Tony Nuccio, also performed drafting work forHayward. He was paid approximately $8 per hour and was not as proficient at drafting asWilhelm. In the fall of 1990, Nuccio was "loaned" to another sheet metal duct installationcompany because Hayward did not have enough work to keep him busy. When the project at theother company was completed in January 1991, Nuccio returned to Hayward, just after Wilhelmwas told there was no more drafting work available and laid off. Nuccio remained at Haywarduntil April 1991, when he also was laid off. The record shows that from January until April1991, Nuccio performed mostly errands and odd jobs in the office rather than drafting work.

Hayward company policy required a doctor's unrestricted release before allowing aninjured or ill employee to return to work as a sheet metal worker. Bob Kuechenberg, owner ofHayward, testified that Hayward did not consider a variation of the policy for Wilhelm.

Wilhelm testified that Kuechenberg offered him the position of foreman at Harris Bankon January 14, 1991. The foreman at Harris Bank at that time, Dan Flora, was retiring. DonMalzahn, the general manager, was present and asked Wilhelm to "sign this statement stating that[he] was 100-percent healed" before he could take the job. Wilhelm did not read the statement,but relied on Malzahn's description of its contents. Malzahn told Wilhelm that if he did not signthe statement so that he could return to work as a foreman or mechanic, he would be laid off atthe end of that week because there was no more drafting work. Wilhelm told both Kuechenbergand Malzahn that he knew he could do the job at Harris Bank, but that he would seek his doctor'sopinion. Wilhelm testified that he knew he could do the job at Harris Bank without "bothering"his neck. He was familiar with the Harris Bank job because he had been a substitute foremanthere several times and had also worked as a foreman at a nearby site and consulted frequentlywith the Harris Bank foreman. Wilhelm did not sign the statement or provide an unrestrictedrelease from his doctor.

On cross-examination, Wilhelm admitted that in January 1991 he sent a fax to hisworkers' compensation attorney that stated:

"Herewith please find a copy of insurance company doctor's report. Alsoplease be aware that R.B. Hayward general manager Don Malzahn has informedme that as of Friday I will be unemployed unless my doctor signs a full release. He also says that the insurance company will not pay me workmen's comp." (Emphasis added.)

Wilhelm testified that he "may have just written it wrong, worded it wrong," but that Malzahntold him he, not his doctor, had to sign a statement.

Wilhelm further testified that he had been a "nonworking" foreman at the LaSalle Bankbuilding for 10 years. "Nonworking" meant that his role was primarily supervisory and that hedid not have to perform the manual labor involved in sheet metal duct installation. When hefilled in as foreman during 1990 while he was restricted to light duty, he was a nonworkingforeman. In his experience, it was more common to be a nonworking foreman than a workingforeman. A nonworking foreman's responsibilities included: keeping timecards; supervising andinstructing workers; providing proper drawings; measuring and listing ductwork; orderingductwork; ensuring proper equipment and tools were on site; drafting; surveying; estimating; anddealing with the architects, engineers and customers. In Wilhelm's experience, the Harris Bankjob was as a nonworking foreman and did not require heavy lifting above the head for longperiods of time. Wilhelm also looked at the timecards of Dennis Carsello, who was hired inJanuary 1991 as the foreman at Harris Bank. Wilhelm testified that, based on the descriptions onthe timecards, he would have been able to perform all the same work.

Terry Smith, who worked as an account executive for Hayward from April 1990 to July1991, testified that he managed the Harris Bank account during that time. He visited the site onaverage once a week and spent about two hours with the foreman. He never saw either DanFlora or Dennis Carsello, foremen at Harris Bank, working with construction tools or physicallyinstalling ductwork.

Smith further testified that he discussed with Wilhelm that Maynard White,superintendent, was going to recommend Wilhelm for the foreman position at Harris Bank. White told Smith that the job did not require physical labor. At a meeting in Kuechenberg'soffice, Kuechenberg, Malzahn, Smith, and White agreed that Wilhelm would be a good choicefor the Harris Bank position. Malzahn told them not to tell Wilhelm because he had to discusssome details with Kuechenberg. Later Smith learned that Wilhelm would be laid off because herefused to sign a release based on his doctor's advice. Dennis Carsello was selected for the job atHarris Bank. In Smith's opinion, Wilhelm was physically able to handle the Harris Bankposition.

Don Wirkus, a former vice president of Hayward, testified that there was no distinctionbetween a "working" and "nonworking" foreman. He testified that, depending on how the job ata particular site evolved, a foreman may not work with tools for a period of time, but then may berequired to work with tools. Whether the foreman worked with tools also depended on howmany other workers were assigned to the site.

Malzahn, general manager at the time Wilhelm was laid off, testified that Wilhelm'semployment file contained conflicting doctor's notes. An insurance company doctor whoexamined Wilhelm for worker's compensation eligibility gave an unrestricted release, butWilhelm's own doctor released him for only light duty. To resolve this conflict, Malzahn askedWilhelm to provide an unrestricted release signed by his doctor. He did not ask Wilhelm to signa release that he was 100% healed. Malzahn testified that Hayward's medical release policyexisted because "there is no light duty in the field. To put somebody back that wasn't ready to goback to duty could expose the individual to additional injury [and] could expose his fellowworkers to a potential injury situation." Malzahn's notes from January 17, 1991, read as follows:

"I called Jerry into my office and asked him if he thought he could returnto work without restrictions. He said no. He stated again his doctors told him hecould hurt himself permanently.

He also stated that he thought he could do the work down at the HarrisBank because it was a supervisory position. I told Jerry due to the volume ofwork and the number of people down at the Harris at this time that it was myopinion that he would be working with the tools a majority of the time.

Based on his limited duty restriction, I told Jerry that we were unable atthis time to place him at the Harris."

Malzahn testified that he did not make a judgment about whether Wilhelm was able toperform the job because he had no medical training. To Malzahn, light duty "usually carries withit the restrictions of lifting, reaching, [and] climbing." Malzahn did not know whether Wilhelmwas unable to climb a ladder or had trouble reaching above his head. Malzahn never discussedwith anyone the specific requirements of the Harris Bank job and whether Wilhelm could meetthem. To Malzahn's knowledge, there were no purely supervisory positions available at that timeand Wilhelm was never offered the position of foreman at Harris Bank.

Maynard White testified that the Harris Bank foreman job was 10% to 15% measuring,listing and ordering materials, and 80% to 85% installing ductwork. Wilhelm told White that hewas interested in the Harris Bank job and physically able to do it. But Wilhelm had also toldWhite that he had trouble reaching above his head and looking up because of his neck injury. White testified that Wilhelm was considered for the job but, to White's knowledge, was neveroffered the position.

Dennis Carsello testified that he replaced Dan Flora as the foreman at Harris Bank inJanuary 1991. He said he unloaded ductwork and materials from delivery trucks and took themby hand truck or dolly to various floors where needed. He removed ceiling tiles to makepreliminary measurements and then replaced the tiles. He would remove the tiles again to installductwork. He drilled holes in the ceiling to set anchors in the concrete and then installed hangersto support the ductwork. He often performed these tasks by climbing on a ladder. Several piecesof lifting equipment were available for heavier ductwork, but depending on the configuration ofthe site, Carsello sometimes lifted heavy ductwork into the ceiling himself with the help ofanother worker. One or two men usually worked with him. Carsello spent more than half histime doing manual labor. While at Harris Bank, Carsello was injured helping coworkers lift a300-pound coil. Before he returned to work, he provided Hayward with a doctor's release.

During rebuttal, Wilhelm testified that Malzahn never told him the Harris Bank positionrequired work with construction tools. He also testified about the ways he managed a job asforeman to minimize and simplify the overhead work. After he was laid off, Wilhelm wasexamined by Dr. Loseff, who wrote a report dated March 22, 1991. The report stated: "Thepatient is a sheet metal worker which requires much lifting above his head which causes hisdiscomfort." Wilhelm testified that he told Dr. Loseff he was a sheet metal worker, but did nottell him that his work required much lifting above the head. He told Dr. Loseff that he installedductwork in the ceiling, but did not describe in detail his duties as a mechanic or foreman. Hetestified that Dr. Loseff may have misunderstood him.

Wilhelm also testified that, after he was laid off by Hayward, he worked for severalcompanies as a sheet metal mechanic without difficulty. But after Wilhelm's layoff, his doctoronly released him to perform "supervisory" work.

The Commission found that Wilhelm failed to prove that Hayward's policy (anunrestricted medical release before Wilhelm could return to work) was direct evidence ofunlawful discrimination. The Commission also found that Hayward's stated reason for Wilhelm'slayoff-that light-duty drafting work was not available-was not a pretext for unlawfuldiscrimination. Finally, the Commission found that Wilhelm's neck and shoulder injuryprevented him from performing essential functions of a foreman at Harris Bank. TheCommission concluded that Wilhelm failed to prove that the refusal to transfer him violated theAct.

We examine the Commission's conclusion under a settled standard of review. "As withany administrative review action, the scope of judicial review is limited. A court may notreweigh the evidence or substitute its own judgment for that of the Commission. [Citation.] Thesame deference is not given to conclusions of law or statutory construction. These matters areindependently reviewed by the court." Lake Point Tower, Ltd. v. Human Rights Comm'n, 291Ill. App. 3d 897, 902, 684 N.E.2d 948, 952 (1997), citing Raintree Health Care Center v. IllinoisHuman Rights Comm'n, 173 Ill. 2d 469, 479, 672 N.E.2d 1136, 1141 (1996).

To prove a claim of employment discrimination, a complainant must show that anemployer took an adverse action for unlawful discriminatory reasons. Texas Department ofCommunity Affairs v. Burdine, 450 U.S. 248, 259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089,1097 (1981); Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178-79, 545 N.E.2d684, 687 (1989). The court uses a three-part test: (1) the handicapped individual must make aprima facie case that he was qualified for the job, applied and was rejected; (2) the burden thenshifts to the employer to articulate a nondiscriminatory reason for the rejection; and (3) if theemployer gives a nondiscriminatory reason, the burden shifts back to the applicant to show thatthe articulated reason was a pretext. Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687.

To establish a prima facie case of physical handicap discrimination, a complainant mustshow: (1) that he was handicapped under the Act's definition; (2) that the decision not to hire himwas related to his handicap; and (3) that his handicap was unrelated to his ability to perform thejob. Truger v. Department of Human Rights, 293 Ill. App. 3d 851, 859, 688 N.E.2d 1209, 1213(1997), citing Milan v. Human Rights Comm'n, 169 Ill. App. 3d 979, 984, 523 N.E.2d 1155,1158 (1988).

We agree with the Commission that Wilhelm was not handicapped within the definitionof the Act. Under section 1-103(I) of the Act, a person who alleges handicap discriminationmust show that his impairment, whatever it may be, is unrelated to his ability to do the work hisemployer will not allow him to do. 775 ILCS 5/1-103(I) (West 1998). "[A] complainant whocannot, by reason of a physical condition, perform the duties of the job in question even withaccommodation is not handicapped within the meaning of the Act." Harton v. City of ChicagoDepartment of Public Works, 301 Ill. App. 3d 378, 390 (1998).

Here, Wilhelm's neck and shoulder injury impaired his ability to tilt his head back, reachoverhead, and lift heavy objects above his head. We agree with the Commission's finding thatthe evidence showed this impairment was related to Wilhelm's ability to perform the duties of asheet metal duct mechanic and foreman (as Hayward defined foreman). By failing to show hisimpairment met the Act's definition of handicap, Wilhelm did not make a prima facie case ofdiscrimination based on Hayward's failure to transfer him to the foreman position at Harris Bank.

Wilhelm argues that Hayward's policy requiring an unrestricted release from a doctor wasdirect evidence that Hayward imposed an unlawful "blanket restriction" and failed to make anindividualized determination about his ability to perform the job of foreman at Harris Bank. Wilhelm cites Board of Trustees of the University of Illinois v. Human Rights Comm'n, 138 Ill.App. 3d 71, 75, 485 N.E.2d 33, 36 (1985), in which the university unfairly discriminated againstthe applicant, an amputee, by deciding not to hire him without first testing his agility or ability toclimb, and without evidence that his handicap impaired past work performance as a sheet metalworker. The applicant's amputation happened before he began his trade as a sheet metal worker,in which he had worked nearly 20 years. The court found that the university made a "good faithbut overly cautious decision after an insufficiently thorough investigation." Board of Trustees,138 Ill. App. 3d at 76. He also cites Raintree, in which the only medical evidence submitted tothe trier of fact was a doctor's note saying that plaintiff's handicap would not prevent him fromperforming his job. Raintree, 173 Ill. 2d at 483, 672 N.E.2d at 1142-43. And in Melvin v. Cityof West Frankfort, 93 Ill. App. 3d 425, 428, 417 N.E.2d 260, 261-62 (1981), as in Board ofTrustees, the applicant had worked in a similar job since his amputation and also had passed anexamination.

In this case, though Wilhelm alleges that Hayward demanded he sign a statement that hewas completely healed, the Commission found Hayward only required Wilhelm to provide anunrestricted release from his doctor in order to return to the field. The only release Wilhelmprovided from his doctor (after he was laid off) stated that Wilhelm was released for supervisorywork. Most important, the Commission found, and the record supports, the conclusion that theHarris Bank foreman position was not purely supervisory, but required the duties of a sheet metalworker from time to time. "[O]n administrative review, it is not a court's function to reweigh theevidence or make an independent determination of the facts." Abrahamson v. IllinoisDepartment of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992). Wilhelm had not done sheet metal work since his injury; he had worked as a drafter for Hayward. While the record shows that Hayward never examined or tested Wilhelm's ability to perform thephysical duties of a sheet metal mechanic or foreman, Malzahn testified that Hayward required adoctor's release because Malzahn was not medically qualified to judge an employee's physicalability to perform a job.

The Commission did not directly address whether Hayward imposed an unlawful "blanketrestriction." Wilhelm argues on appeal that Hayward's reliance on his doctor's report that he wasonly released for light duty did not give Hayward the right to bar him from all mechanic andforeman jobs. Instead, he argues that Hayward must relate the light duty restriction to eachspecific job and that he could have performed the Harris Bank job under the restriction.

We may affirm on any basis that is supported by the record. In re Application of theCook County Treasurer, 185 Ill. 2d 428, 436, 706 N.E.2d 465, 469 (1998). The Commission wasnot persuaded by Wilhelm's testimony that he could do the manual labor required of a foreman atthe Harris Bank site. The Commission noted that the only medical evidence in the record wasWilhelm's doctor's note that he was only released to perform supervisory work. Though Wilhelmpresented rebuttal evidence that he was able to perform manual labor in jobs he took after thelayoff from Hayward, it was the Commission's task to evaluate and weigh conflicting evidence. Lake Point Tower, 291 Ill. App. 3d at 902, 684 N.E.2d at 952. In this case the Commissionclearly gave greater weight to the evidence available to Hayward at the time Wilhelm was laidoff. The facts of this case are distinguishable from those in the cases cited by Wilhelm in whichthere was evidence before the alleged discriminatory act that the applicant either passed aphysical exam (Melvin, 93 Ill. App. 3d 425, 417 N.E.2d 260), was released by a doctor (Raintree,173 Ill. 2d 469, 672 N.E.2d 1136) or had performed similar jobs despite his handicap (Board ofTrustees, 138 Ill. App. 3d 71, 485 N.E.2d 33).

We believe Hayward's policy requiring an unrestricted medical release from a doctorbefore returning an employee to sheet metal installation work is not a "blanket restriction." There were only two kinds of positions open: sheet metal worker and foreman. Both requiredphysical labor. The record shows that Hayward had a note from Wilhelm's doctor that he wasrestricted to light duty. Hayward had asked for an opinion from Wilhelm's doctor that he wassufficiently recovered to perform all types of manual labor required in sheet metal ductinstallation. We do not find support for Wilhelm's argument that Hayward should haveconducted its own examination of his physical capability. An employer need only inquirewhether the handicapped applicant can perform the job he is applying for. Board of Trustees,138 Ill. App. 3d at 75, 485 N.E.2d at 36. The manner in which an employer conducts this inquiryhas not been prescribed by the Act or by case law. An employer is not required to transfer orretain an at-will employee who is medically unable to return to his original job. LaPorte v.Jostens, Inc., 213 Ill. App. 3d 1089, 1093, 572 N.E.2d 1209, 1212 (1991); Fitzpatrick v. HumanRights Comm'n, 267 Ill. App. 3d 386, 392, 642 N.E.2d 486, 491 (1994). We find nodiscrimination in Hayward's policy requiring an employee's own doctor to assess the employee'sphysical condition and provide an unrestricted release.

Addressing Wilhelm's discrimination claim based on Hayward's decision to lay him offfrom the drafting position, the Commission found that Wilhelm made a prima facie case ofdiscrimination. But the Commission then found that Hayward's explanation for the layoff-thatthere was no more drafting work available-was not a pretext for unlawful discrimination. Weagree. The record showed that Hayward did not hire a replacement draftsman. Nor was thereevidence that Nuccio's return to the office was anything but coincidence. Nuccio was not aproficient draftsman, and the testimony showed that he performed mainly office errands until hewas laid off in April 1991, just three months after Wilhelm. The Commission's finding was notagainst the manifest weight of the evidence. 775 ILCS 5/8-111(A)(2) (West 1998).

We affirm the order of the Human Rights Commission.

Affirmed.

GORDON and McBRIDE, JJ., concur.