Lake Point Tower Ltd. v. Human Rights Comm'n

Fourth Division
August 28, 1997

No. 1-96-3008

LAKE POINT TOWER, LTD., ) PETITION FOR REVIEW
) OF ORDER OF THE
Petitioner-Appellant, ) ILLINOIS HUMAN RIGHTS
) COMMISSION
v. )
)
ILLINOIS HUMAN RIGHTS COMMISSION, )
ILLINOIS DEPARTMENT OF HUMAN RIGHTS, )
and DOROTHY JOHNSON, ) CHARGE NO. 1988CN1275
) ALS NO. 4564
Respondents-Appellees. )

PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
The Illinois Human Rights Act provides that adverse
employment actions cannot be taken against any person due to his
or her physical handicap if the handicap is unrelated to the
person's ability to perform job duties. In this case, Dorothy
Johnson suffered from a form of cancer. Her employer, Lake Point
Tower, Ltd., knew it. She was fired.
We must answer two questions: First, is cancer a physical
handicap within the meaning of the Illinois Human Rights Act?
Second, if it is, did Lake Point Tower, Ltd., violate the Act
when it fired Dorothy Johnson?
We find the Illinois Human Rights Commission correctly
decided cancer is a physical handicap and that Lake Point Tower
was guilty of unlawful employment discrimination.
FACTS
Dorothy Johnson (Johnson) filed a charge of discrimination
with the Illinois Department of Human Rights (DHR), claiming that
she had been terminated by Lake Point Tower, Ltd. (Lake Point)
because she had cancer. This, she said, was a violation of the
Illinois Human Rights Act. 775 ILCS 5/1-101 et seq. (West 1992).
The DHR made a finding of substantial evidence for the claim and
filed a complaint on Johnson's behalf with the Illinois Human
Rights Commission. A public hearing was held before an
Administrative Law Judge (ALJ) on May 12, 1994.
At the hearing, Johnson testified she began employment with
Lake Point in June 1983, as a part-time Health Spa attendant. A
year later, in June 1984, Johnson was promoted to a full-time
position as Health Spa manager. She was put in charge of
payroll, billing, and staffing. She supervised between five and
eight employees. Her salary was $8 per hour.
In addition to her managerial position, Johnson and another
employee shared the responsibility of cleaning the Spa. This
additional job paid $900/month. She received half of this
amount, or $450/month for her share.
In June 1986, Johnson was diagnosed with non-Hodgkins
lymphoma, a form of cancer. Johnson immediately informed her
supervisor, Herb Salberg, who had the title of "Spa Consultant."
Johnson underwent an operation to have some lymph nodes removed.
While she was recuperating at home, she received phone calls from
Spa members and other Lake Point employees, as well as a "Get
Well" card signed by over 100 persons. The card included $500
that had been collected for her. It was common knowledge around
Lake Point that Johnson had cancer.
Johnson's doctor, Dr. Winter, gave an evidence deposition
and prepared a written summary of Johnson's medical history.
These documents were entered into evidence and showed that
Johnson was relatively asymptomatic in 1986 and 1987. Her cancer
was diagnosed as "indolent," meaning slow growing or slowly
progressing. Though Johnson sometimes complained of swollen
glands, fatigue, malaise, and some pain or discomfort, her health
was generally good. Johnson remained able to swim, work out, and
perform all of the duties of her employment. In fact, Johnson's
ability to perform her duties was not contested, but was
stipulated by the parties.
In September 1987, based on a performance review by her
supervisor, Herb Salberg, Johnson received a salary increase.
Shortly after, in late September or early October, Johnson
advised Salberg that chemotherapy was being suggested by her
doctors and she was considering the possibility of undergoing
this treatment.
On October 1, 1987, Thomas Rottman was promoted from leasing
agent to General Operations Manager for Lake Point. He became
Salberg's supervisor. On October 9, 1987, Johnson was notified
that she was being terminated. Johnson testified that Salberg
came to her apartment to give her the news of her termination.
Though she repeatedly asked Salberg the reason for her
termination, he would not tell her. He did tell her, however,
that he told Rottman about her cancer.
The day after Johnson was terminated, Mike Flynn, another
employee at Lake Point, came to Johnson's apartment. He needed
help completing the billing accounts and payroll for Lake Point.
Johnson agreed to help. Johnson said that Flynn told her she had
been terminated because she had cancer.
Thomas Rottman, the general manager for Lake Point,
testified that he gave Salberg the order to fire Johnson, but
claimed he had no input into the decision. That decision, he
said, was made by one of the owners, Evangeline Gouletas.
Rottman also claimed he did not know about Johnson's cancer until
after her termination. He denied her cancer was the reason for
her termination.
Rottman admitted, however, that Johnson's personnel file
contained no written reprimands or warning letters. He could not
say why she was terminated. Though he was told there were some
complaints about the running of the Spa, he never received any
direct complaints about Johnson's performance.
Evangeline Gouletas, who co-owned Lake Point along with her
brother, testified that she used the Health Spa in 1987 and found
Johnson to be somewhat rude and unfriendly. She claimed,
however, that she had almost no input into the day-to-day
decision-making for Lake Point and denied that she had been the
one to decide that Johnson was to be terminated. She said she
did not know the reason for Johnson's termination, but claimed it
was not because of her cancer. Gouletas also denied she was
aware of Johnson's illness before her termination.
The ALJ issued a decision in favor of Johnson and
recommended that she be awarded damages, attorney fees, and
costs. The ALJ found Johnson proved that Lake Point had
discriminated against her because of her physical handicap of
cancer. Damages, fees, and costs were recommended as follows:
$51,894.09 for back pay; $2,613 as reimbursement for health
insurance premiums Johnson paid; $15,816.25 for attorney fees;
and $320.65 for costs.
Lake Point filed exceptions to the ALJ's decision with the
Commission. Johnson responded. Both parties had an opportunity
to present oral argument to the Commission. Thereafter, a final
order was issued by the Commission, affirming the ALJ's decision.
The Commission concluded it was not against the manifest weight
of the evidence for the ALJ to have found that Johnson made a
prima facie case of discrimination. Lake Point's failure to
provide any reason for Johnson's termination, said the
Commission, entitled Johnson to prevail as a matter of law. The
Commission adopted all of the ALJ's recommendations with regard
to damages, fees, and costs.
Lake Point petitioned this court for review pursuant to
Supreme Court Rule 335.
DECISION
Section 5/8-111 of the Illinois Human Rights Act (775 ILCS
5/8-111 (West 1992)) provides that "any complainant or respondent
may apply for and obtain judicial review of a final order of the
Commission entered under this Act by filing a petition for review
in the Appellate Court within 35 days" of the date when the
decision was served on the party. This section also provides, in
paragraph (A)(2), that "the Commission's findings of fact shall
be sustained unless the court determines that such findings are
contrary to the manifest weight of the evidence." To affirm a
Commission finding a court must find the final decision just and
reasonable in light of all the evidence. Acorn Corrugated Box
Co. v. Illinois Human Rights Comm'n, 181 Ill. App. 3d 122, 136,
536 N.E.2d 932 (1989).
As with any administrative review action, the scope of
judicial review is limited. A court may not reweigh the evidence
or substitute its own judgment for that of the Commission. Acorn
Corrugated Box Co., 181 Ill. App. 3d at 136. The same deference
is not given to conclusions of law or statutory construction.
These matters are independently reviewed by the court. Raintree
Health v. Human Rights Comm'n, 173 Ill. 2d. 469, 479, 672 N.E.2d 1136 (1996).
Employment discrimination claims brought under the Human
Rights Act are analyzed according to the three-step approach set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and adopted by our supreme
court in Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178-79, 545 N.E.2d 684 (1989).
First, the employee must establish, by a preponderance of
the evidence, a prima facie case of unlawful discrimination. If
the employee succeeds, a rebuttable presumption of unlawful
discrimination is created. In step two, the burden of production
of evidence shifts to the employer. To rebut the presumption of
discrimination, the employer must articulate, but need not prove,
a legitimate, nondiscriminatory reason for its action against the
employee. If the employer presents enough evidence of good
reason, the burden is on the employee in the third step. Here,
the employee must show by a preponderance of the evidence that
the reasons offered by the employer are not the true reasons, but
are a pretext for unlawful discrimination. Raintree Health v.
Human Rights Comm'n, 173 Ill. 2d. at 481; Cisco Trucking, Inc. v.
Human Rights Comm'n, 274 Ill. App. 3d 72, 653 N.E.2d 986 (1995).
To establish a prima facie case of discrimination, an
employee must show (1) that he/she is handicapped within the
definition of the Act, (2) that an adverse action was taken
against the employee due to his/her handicap, and (3) that the
handicap is unrelated to the employee's ability to perform the
functions of his/her job. Cisco Trucking Co., Inc., 274 Ill.
App. 3d 72 at 74.
In the present case, the third element of a prima facie case
-- that Johnson's cancer was unrelated to her ability to perform
her duties -- was stipulated by the parties and is not at issue.
Lake Point, however, questions whether Johnson has succeeded in
proving the other two elements. Lake Point contends that
Johnson's cancer is not a "handicap" as that term is defined in
the Act. But even if it is a handicap, Lake Point contends,
Johnson failed to prove her termination was related to her
cancer.
1. Is Cancer a Handicap?
"Handicap" is defined in the Act at paragraph (I) of section
5/1-103:
"Handicap means a determinable physical or mental
characteristic of a person, including, but not limited
to, a determinable physical characteristic which
necessitates the person's use of a guide, hearing or
support dog, the history of such characteristic, or the
perception of such characteristic by the person
complained against, which may result from disease,
injury, congenital condition of birth or functional
disorder and which characteristic:
(1) For purposes of Article 2 is unrelated to the
person's ability to perform the duties of a particular
job or position . . ." 775 ILCS 5/1-103(I) (West
1992).
The Commission's interpretive rules provide further insight:
"The definition [of handicap] is not confined to only
those physical and mental conditions which are grave or
extreme in nature. However, it is interpreted as
excluding:
(A) conditions which are transitory and
insubstantial, and
(B) conditions which are not significantly
debilitating or disfiguring.
To be covered, a condition must be determinable by
recognized diagnostic techniques." 56 Ill. Adm. Code,
2500.20(b) (1996).
More significantly, section 2500.30(b) of the Administrative
Code states that a person with a history of cancer is protected
against handicap discrimination based on that history. 56 Ill.
Adm. Code, 2500.30(b) (1996). Specifically, the provision
states:
"An individual has a "history" of a handicapping
condition if he/she is restored or recovered from a
prior affliction or if the individual's symptoms are in
remission. The mentally restored, those who have had
heart attacks or cancer, and persons with orthepedic
findings may be examples; they are protected against
discrimination which is based upon their medical
histories." (Emphasis added.)
Before July 1, 1980, Illinois courts defined "handicap" as
something that required a person to be severely limited in
performing major life functions. Lyons v. Heritage House
Restaurants, Inc., 89 Ill. 2d 163, 432 N.E.2d 270 (1982)
(Employee suffering from early stages of uterine cancer was not
"handicapped" within the meaning of the Equal Opportunities for
Handicapped Act). The definition under the Federal Americans
with Disabilities Act (ADA), 42 U.S.C. 12101, et seq., was
similar--"The ADA requires that the impairment substantially
limit one or more of the individual's major life activities."
Gordon v. E.L. Hamm & Associates, 100 F.3d 907, 911 (11th Cir.
l996).
Lake Point urges us to apply the Lyons and ADA definitions
in this case. Of course, we cannot. Recognizing that the
definition of handicap was too restrictive, the legislature
enacted the Human Rights Act in 1980.
The new Act changed the definition of handicap. It
eliminated the reference to limitations on major life activities.
That change furthered a policy that protects handicapped persons.
An employer now cannot defend a firing by saying the employee was
not suffering enough from his or her disease. Handicapped
employees are protected from an untenable catch 22--a requirement
that a major life function be severely limited by a handicap that
is unrelated to the employee's ability to perform job duties.
That approach would swallow the statute and destroy its salutary
policy.
The ADA cases have no relevance here. In Lyons the Court
plainly said the 1980 Human Rights Act "uses a substantially
different definition" for the term "handicapped." Lyons, 89 Ill. 2d at 165. Lake Point will have to accept the definition
contained in the Act, in the Commission's regulations, and in the
relevant reported decisions.
The plain language of the statute clearly states that a
person is handicapped if he/she has "a determinable physical or
mental characteristic *** which may result from disease." 775
ILCS 5/1-103 (West 1994). This Human Rights Act definition of a
"handicapped" person has been interpreted to include an employee
diagnosed with HIV (Raintree Health Care Center v. Illinois Human
Rights Comm'n, 173 Ill. 2d 469, 672 N.E.2d 1136 (1996); an
employee who suffered from dysmenhorrea due to endometriosis
(Bell Telephone v. Human Rights Comm'n, 190 Ill. App. 3d 1036,
547 N.E.2d 499 (1989)); and an employee who had a history of
heart disease, but had recovered (Kenall Manufacturing Co. v.
Illinois Human Rights Comm'n, 152 Ill. App. 3d 695, 504 N.E.2d 805 (1987)).
The Commission, the agency entrusted with interpreting and
administering the Act, has repeatedly expressed its belief that
cancer is a handicap within the meaning of the Act. In a number
of administrative decisions, the Commission has stated:
"With many claims of physical handicap, it is
relatively easy to identify the cause of the
handicapping condition. If someone is deaf, blind,
cannot walk or speak, or suffers from a well known
disease such as cancer, asthma, or renal failure, it is
apparent that the person so afflicted has a condition
which rises to the level of a physical handicap and
thus is entitled to protection under the Act." See In
the Matter of Francisco R. Carlin v. Edsal
Manufacturing Co., ALS No. 7321; In the Matter of
Sheila Jackson v. Evanston Hospital Corp., ALS No.
5821. (Emphasis added.)
We see at least two, possibly three ways the Commission
could have found Johnson suffered from a handicap as defined by
the Act.
First, she is currently afflicted with a condition "which
constitutes a handicap." True, it is not yet fully debilitating,
but the Act does not require complete debilitation. It requires
that the disease not be transitory or insubstantial.
Johnson's form of cancer affects her lymph nodes, which
enlarge at times. Lymph nodes are an important part of the
body's immune system because of their role in fighting infection.
Some of her lymph nodes have been surgically removed. She
suffers pain, fatigue, and malaise. She will require
chemotherapy. Although Johnson's doctor described the disease as
"waxing and waning," there is nothing trivial or insubstantial
about it. It is slowly and inexorably progressing. The disease
is serious and people often die from it. That is a "handicap."
While Johnson currently is afflicted with a handicap, her
condition fits another part of the definition of handicap within
the HRA. She has a "history of handicap." The HRA protects
someone with a history of handicap, even though he or she is not
currently afflicted.
In Kenall Manufacturing Co. v. Illinois Human Rights Comm'n,
152 Ill. App. 3d 695, 504 N.E.2d 805 (1987), an employee was
fired just after he returned to work following a heart attack.
He had been on disability leave for six months, but was feeling
well when he returned to work. We held the employee's history of
a heart condition, even though he seemed to be fully recovered,
could bring him under the statutory definition of a handicapped
person.
Here, Lake Point knew about Johnson's cancer. It knew she
had undergone surgery and probably would have to undergo
chemotherapy in the future. While Lake Point rightly could have
believed Johnson would require extensive treatment in the future,
acting on that economically-based concern for what might happen
was prohibited employment discrimination.
The Act offers a third way the Commission could, but expressly
did not, find Johnson had a handicap. If the employer perceives
the employee as handicapped, rightly or wrongly, then acts
against the employee based on that perception, the Act has been
violated. Kenall Manufacturing Co., 152 Ill. App. 3d at 703.
Lake Point contended here and at the Commission that
Johnson's disease was not serious. Given Johnson's testimony,
including the prospect of chemotherapy, the Commission might well
have concluded Johnson was fired because Lake Point at that time
perceived the existence of a handicap. However, since the
Commission expressly found this case did not involve the
"perception" element of the Act there is no need to dwell further
on this third way.
That is, because it is clear to us the Commission correctly
found Johnson had a presently handicapping condition, there is no
need to discuss the obvious fact that cancer is a stigmatizing
disease. "There is little question that cancer history raises
barriers to employment opportunities." Burris v. City of
Phoenix, 179 Ariz. 35, 875 P.2d 1340, 1344 (1993). Resting at
the core of the Act is a challenge to ignorance and irrational
fear in the workplace. That is good law and good policy.
We hold that cancer is a handicap within the meaning of the
Act. Johnson, having been afflicted with a form of cancer, was
"handicapped" and entitled to protection under the Act.
2. Was Johnson's termination due to her cancer?
In this case Johnson was diagnosed with cancer in June 1986,
but was not terminated until October 1987. The ALJ found that
the delay between the diagnosis and the adverse action was not
significant. The specter of chemotherapy was not raised until
September 1987. Rottman was named the new general manager on
October 1, 1987.
The ALJ found that "the mention of chemotherapy was close
enough in time to the discharge to at least raise the inference
that there was a connection between the two events." But even
"more convincing," said the ALJ, was the correlation between
Johnson's discharge and the arrival of Rottman as general
manager.
The ALJ rejected as "incredible" Rottman's claim that he was
unaware of Johnson's condition. We agree with that
characterization. In light of the fact that Johnson was given a
rather significant raise just one month before her termination
and then, within days of Rottman's promotion, was discharged
without any reasons given, strongly suggested to the ALJ that
there was some link between Johnson's cancer and her dismissal.
We agree.
It appears from Johnson's testimony that her condition was
common knowledge at Lake Point. Employees outside of the Spa
were aware that she was diagnosed with cancer and underwent some
biopsy surgery. Over 100 people signed a card and contributed to
a gift. The ALJ's finding that Rottman and Gouletas were not
credible when they claimed to be unaware of Johnson's cancer is
not against the manifest weight of the evidence. Put another
way, the ALJ's finding is sound.
Since a prima facie case of discrimination was established,
we advance to step two of the analysis -- whether the employer
has articulated a non-discriminatory reason for its action.
Both the ALJ and the Commission found that the vague
references to complaints against the Spa and Johnson's rudeness
did not rise to the level of an articulated reason for dismissal.
Perhaps most significant is the fact that neither of the two
agents of the employer admitted making the decision to dismiss
Johnson. Though Rottman and Gouletas were in a position to make
the decision to dismiss Johnson, they both denied doing it and
were, therefore, unable to articulate any legitimate
justification for terminating Johnson's employment.
There was no response to Johnson's prima facie case of
discrimination. There was no need for her to go any further.
Her discrimination case was complete.
We acknowledge that the Commission's final order contains
some misstatements about the evidence. Salberg no longer was
employed by Lake Point and did not testify at Johnson's hearing.
There are two references in the Commission's final order,
however, to Salberg's "testimony" that Rottman knew about
Johnson's condition.
These two misstatements, though erroneous, do not lead us to
find the Commission's conclusion is against the manifest weight
of the evidence. The ALJ's recommendation and determination,
adopted by the Commission, clearly indicate it was Johnson who
testified that Salberg told her Rottman was aware of her cancer.
Although this was hearsay, the ALJ did not rely on hearsay to
conclude Rottman's and Gouletas' claims of being unaware of
Johnson's condition were not credible. There was ample other
evidence to support the finding.
The Commission's final order entered in Johnson's favor was
not against the manifest weight of the evidence.
3. Should the Amount of Damages Awarded be reduced?
As its final issue, Lake Point contends that certain
elements of damages awarded by the Commission should be
eliminated or reduced. Specifically, Lake Point contends
Johnson failed to produce sufficient evidence to show that she
sought other employment after her termination to mitigate her
damages; that the physical evidence Johnson produced to establish
the amount of insurance premiums she paid was not competent; and
that attorney's fees should be reduced because certain charges
for telephone calls "appeared excessive."
Each of these matters was dealt with by the Commission. In
ISS International Service v. Illinois Human Rights Comm'n, 272
Ill. App. 3d 969, 651 N.E.2d 592 (1995), a complainant's
testimony was sufficient to establish damages, the employer
bearing the burden of proving that an employee failed to mitigate
damages. It was not against the manifest weight of the evidence
for the Commission to have accepted Johnson's testimony regarding
the efforts she made to secure employment.
With regard to the insurance premiums, Johnson testified
about the amounts paid. In addition she produced three checks,
two of which were drawn from her live-in boyfriend's account. We
do not find it against the manifest weight of the evidence for
the Commission to have accepted Johnson's testimony as proof of
this element of damages.
The last objection is to the award of attorney fees. We
note, however, the ALJ specifically reviewed exceptions raised by
Lake Point regarding charges for phone calls and found that
"several of the calls were to opposing counsel. If [the call]
were shorter than the reported time, it should have been a simple
matter for Respondent to produce its attorney time sheets to
contradict the claimed amounts. No such time sheets were
produced."
On appeal, Lake Point, once again, makes no effort to show
why the billing for phone calls is inappropriate, but merely
claims they "appear excessive." Vague speculation provides no
basis for this court to say the Commission's judgment as to
damages was against the manifest weight of the evidence.
CONCLUSION
We agree with the Commission's determination that a person
diagnosed with cancer is "handicapped" within the meaning of the
Illinois Human Rights Act. The Commission did not err in finding
that Johnson established a prima facie case of discrimination.
This created a presumption of discrimination that was not
overcome by Lake Point since it failed to articulate any reason
for Johnson's termination. The Commission's finding that Johnson
was discriminated against based on a physical handicap was proper
and the amounts awarded for damages and fees are affirmed.
AFFIRMED.
McNAMARA and BURKE, JJ., concur.