THIRD DIVISION
March 16, 2005
 

No. 1-04-1620

JUSTICE SOUTH delivered the opinion of the court:

Petitioner, Marla Owens, brings this petition for review of an order of Raymundo R. Luna,chief legal counsel of the Illinois Department of Human Rights (Department), which sustained theDepartment's dismissal of her charge of unlawful discharge based upon handicap discriminationagainst her former employer, respondent, AT&T Corporation. 775 ILCS 5/8-111(A)(1) (West2002); 155 Ill. 2d R. 335.

Petitioner's charge of discrimination alleged that she had been employed by respondent for23 years and always performed her job adequately; that in March 2001 she was transferred from adowntown Chicago location to Rolling Meadows, which required her to drive 50 miles in onedirection; that she developed a disabling medical condition which consisted of congestive heartdisease, hypertension, chronic obstructive pulmonary disease and sleep apnea; that due to thismedical condition, she could not safely drive the 50-mile commute to Rolling Meadows; that sherequested reasonable accommodations from respondent, which included a transfer back to aChicago location; that against her doctor's orders, she drove to Rolling Meadows for a while butrequired periodic disability leaves; that she was terminated from her employment on June 21,2002; that respondent's stated reason for the termination was "job abandonment"; and that it washer belief that she had been discriminated against on the basis of her disability.

In its verified response, respondent-employer admitted petitioner's length of employmentand date of discharge; neither confirmed nor denied her medical condition or inability to safelydrive the 50-mile commute; and denied all remaining allegations.

The Department conducted an investigation of the charges. As part of that investigation,several witnesses were interviewed. Among these witnesses were respondent's senior equalopportunity specialist, a department manager, and the administrative support manager, all ofwhom confirmed that petitioner was transferred to Rolling Meadows on April 2, 2001, due to a"work imbalance," and that she requested a transferred back to a Chicago location due to amedical condition. She took two disability leaves, the second of which was in December 2001. She was released to go back to work by her physician on June 17, 2002. However, because shefailed to return on that date, respondent considered her as having resigned. MetLife, respondent'sdisability insurance carrier that handles its health affairs, receives all of an employee's medicaldocumentation and advises respondent when an employee is on medical leave and when he or sheis scheduled to return. However, per company policy, respondent is never advised by MetLife asto an employee's medical condition but only as to whether he or she has certain restrictions and, ifso, what those restrictions are.

Robert Mroz, an AT&T manager, stated that when petitioner approached him on April 2,2001, requesting a transfer because of the long drive from her home to Rolling Meadows, headvised her that she could look into AT&T's transfer system for a lateral transfer or promotion aslong as she was qualified for the position. He did not know the nature of petitioner's medicalcondition due to respondent's policy, and she never told him.

Judi Thomas, respondent's administrative support manager, stated that on August 28,2001, petitioner approached her after coming off of her first medical leave and told her that shewanted to be transferred back to Chicago because the drive was too far. Thomas also did notknow the nature of petitioner's medical condition due to the above-stated company policy, andpetitioner never told her. Thomas referred her to the company transfer system and told her thatshe was free to seek a transfer. She also provided petitioner with information on van pooling andwas advised that another employee had offered to drive her to work.

Thomas stated that petitioner took a second disability leave in December 2001 and wasscheduled to return on June 17, 2002, after she (Thomas) received a telephone call from aMetLife representative advising her that petitioner no longer had any medical restrictions. Shereceived a message from petitioner that she was not coming back because she could not drive thedistance, and she did not tell her when she would be coming back. On June 18, 2002, Thomassent petitioner a letter advising her that since she had been released to return to work, she wasscheduled to be there on or before June 21, 2002, or would be considered as no longer wantingthe job. When petitioner failed to return to work on that date, Thomas sent her a letter datedJune 21, 2002, informing her that she was being "let go" because of her failure to return to work.

In rebuttal, petitioner stated that she did, in fact, tell Mroz and Thomas that the reason shewanted to be transferred back to Chicago was because of a heart condition which caused her tofall asleep, and that driving 50 miles to work would be difficult for her. She further stated thatthey advised her that she could be transferred at any time as long as AT&T had a position forwhich she was qualified at that location. She searched the transfer system on respondent'scomputer at least twice a week but discovered there were no positions available for which shewas qualified. According to petitioner, AT&T constantly had layoffs for her particular job title,so using the transfer system was ineffective since no positions were available for her at closerlocations.

Petitioner confirmed that while she was on her second disability leave, MetLife contactedher on June 13, 2002, and told her that she was due to report to work on June 17, 2002, but thatinstead of reporting, she called the attendance hotline and left a message for her immediatesupervisor that she could not come in because she was afraid to drive due to her medicalcondition. She admitted she never told her supervisor when she would be returning and that shereceived a warning letter advising her that she had to return to work on or before June 21, 2002,or be considered as no longer wanting the job. She had no further contact with respondent afterreceiving the June 21, 2002, letter advising her that she had been removed from the payroll due toher failure to return to work.

Petitioner further stated that while her doctor did release her to go back to work, he alsoadvised her that she could not work "under the circumstances of driving so far, " and that thereason she did not go back to work on June 21, 2002, was because he had advised her that shecould not drive the long distance. She admitted that she did not make it clear to respondent whather medical conditions were. She also submitted a medical report from her physician indicatingfinal diagnoses of pulmonary hypertension, morbid obesity, hypertension and congestive heartfailure.

In surrebuttal, respondent stated that petitioner was never "discharged" but wasconsidered as "having resigned" when she failed to return to work after she was cleared with norestrictions.

On December 8, 2003, the Department issued a "Notice of Dismissal For Lack ofJurisdiction" (count a) and "Lack of Substantial Evidence" (count b). The investigation reportbifurcated the charge into two allegations: (a) discharge in lieu of accommodation/physicalhandicaps, congestive heart disease, hypertension, and sleep apnea; and (b) discharge in lieu ofaccommodation/chronic obstructive pulmonary disease. A finding of lack of substantial evidencewas made as to count (a) even though the report acknowledged that congestive heart disease,hypertension and sleep apnea are handicaps within the definition of the Act and were supported bymedical documentation. As to count (b) the report found that petitioner's medical condition ofchronic obstructive pulmonary disease was not a handicap within the definition of the Act becauseit was not supported by medical documentation and that, therefore, the Department lackedjurisdiction over that particular allegation of the charge.

The report set out the following uncontested facts: (a) respondent, AT&T, providesworldwide telecommunicating services to the public; (b) petitioner went on disability leave andwas notified on June 13, 2002, that she had been released to return to work on June 17, 2002; (c)petitioner was hired on "November 31, [sic] 1978," and her position of reports clerk withrespondent ended on June 21, 2002.

As to the first allegation, there was a finding of lack of substantial evidence ofdiscrimination based upon the following uncontested facts:

"(1) Respondent has a transfer policy to which it strictly adhere.[Petitioner] is aware of the policy;

(2) It is an uncontested fact that [Petitioner] was told that she couldtransfer to another location to work if it was available;

(3) [Petitioner] concedes that she does not think she made it clear toRespondent what her medical condition was;

(4) It is an uncontested fact that [Petitioner] indicated that she was notcoming to work because she was afraid to make the long drive due to her medicalcondition after Respondent instructed her to return to work;

(5) [Petitioner] was released to return to work with no restrictions as ofJune 17, 2002;

(6) Respondent instructed [Petitioner] to return to work by June 21, 2002, or she would be considered as having resigned;

(7) [Petitioner] failed to report to work by June 21, 2002, as instructed."

As to the second allegation, the investigative report found a lack of jurisdiction on thegrounds that petitioner's condition was insubstantial because no medical documentation wasprovided to show that the condition existed, and for that reason it did not meet the definition of ahandicap under the Act.

On November 14, 2003, the investigations supervisor of the charge processing division,after reviewing the file and investigation report, concurred with the report and determined that theinvestigator did not rely on "an assessment of the credibility of the witnesses."

Subsequently, petitioner filed a Request for Review asking that the dismissal of her chargebe reviewed by the chief legal counsel of the Department.

On May 24, 2004, the chief legal counsel entered an order sustaining the dismissal of thecharge for lack of substantial evidence and lack of jurisdiction. After recapping the above-referenced statements and the documentation that was submitted, the order stated that as to count(a) the investigation did not reveal, and the evidence did not show, a nexus between petitioner'shandicap condition and respondent's decision to discharge her, and that she was not discharged inlieu of providing her with a reasonable accommodation. As to count (b) the order stated thatpetitioner's condition of chronic obstructive pulmonary disease was not a handicap within themeaning of the Human Rights Act (775 ILCS 5/1-101 et seq. (West 2002)) because she failed toprovide the Department with medical documentation regarding that alleged handicap. Inconclusion, the order stated:

"In the final analysis, [petitioner] fails to establish, and theDepartment's investigation fails to show, that Respondentdischarged [petitioner] in lieu of providing her with a reasonableaccommodation. Further the Department does not have jurisdictionover Count B of [the] charge."

This petition for review followed.

Petitioner has raised the following issues for our review: (1) whether the Departmentmisinterpreted and misapplied Illinois law regarding an employer's duty to reasonablyaccommodate; (2) whether the Department violated the federal court injunction of Cooper v.Salazar, 196 F.3d 809 (7th Cir. 1999), by making material credibility determinations in favor ofAT&T and against petitioner; and (3) whether the Department applied an erroneously highstandard to the determination of "substantial evidence."

The Department is authorized to dismiss a civil rights violation for lack of substantialevidence. 775 ILCS 5/7A-102(D)(2)(a) (West 2002). Substantial evidence is evidence which areasonable mind accepts as sufficient to support a particular conclusion and which consists ofmore than a mere scintilla but may be somewhat less than a preponderance. 775 ILCS 5/7A-102(D)(2) (West 2002).

The chief legal counsel possesses the same reviewing authority as was formerly assignedto the Human Rights Commission. Folbert v. Department of Human Rights, 303 Ill. App. 3d 13,19 (1999). Therefore, the appropriate standard of review is whether the chief legal counselabused his discretion in sustaining the Department's dismissal of a civil rights violation. Traficanov. Department of Human Rights, 297 Ill. App. 3d 435 (1998). The reviewing court cannotreweigh the evidence or substitute its judgment for that of the trier of fact, here, the Department. Roedl v. Midco International, 296 Ill. App. 3d 213 (1998).

To establish a prima facie case of discrimination, the claimant must show by apreponderance of the evidence that: (1) she is a member of a protected class; (2) she wasperforming satisfactorily; (3) she was discharged despite the adequacy of her work; and (4) asimilarly situated employee who was not a member of the protected group was not discharged. Marinelli v. Human Rights Comm'n, 262 Ill. App. 3d 247, 253-54 (1994). Once a claimantsatisfies a prima facie case, the employer must articulate, not prove, a legitimate,nondiscriminatory basis for its action. Alcequeire v. Human Rights Comm'n, 292 Ill. App. 3d515, 520 (1997).

The burden then shifts back to the claimant to prove by a preponderance of the evidencethat the employer's articulated reason was not its true reason but was in fact a pretext forunlawful discrimination. Alcequeire, 292 Ill. App. 3d at 520. The failure of a claimant to presentsubstantial evidence of a prima facie discrimination claim or to disprove an employer's articulatedreason for discharge warrants dismissal of the charge. Alcequeire, 292 Ill. App. 3d at 520.

The Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2002)) providesthat an individual may be protected by it when he or she has a determinable physical characteristicwhich results from a disease and which is unrelated to his or her ability to perform a particular jobor function, or when his or her condition is perceived as a handicap. Illinois Bell Telephone Co..v. Human Rights Comm'n, 190 Ill. App. 3d 1036, 1046 (1989). The pertinent provision of theAct defines a handicap as:

"[A] determinable physical or mental characteristic of aperson *** which may result from disease, injury, congenitalcondition of birth or functional disorder and which characteristic:

(1) *** is unrelated to the person's ability to perform theduties of a particular job or position ***." 775 ILCS 5/1-103(I)(1)(West 2002).

Thus, the plain language of section 1-103(I) provides that an individual may be protectedby the Act when he or she has a determinable physical characteristic which results from a diseaseand which is unrelated to his or her ability to perform a particular job or function, or when his orher condition is perceived as a handicap. Illinois Bell Telephone Co., 190 Ill. App. 3d at 1046.

The supreme court construed "handicap" to include at least those individuals whosecondition in fact hindered them from engaging in major life activities, and "major life activity"encompasses employment. Lyons v. Heritage House Restaurants, Inc., 89 Ill. 2d 163, 170(1982).

In this case, the chief legal counsel found as to count (a) no evidence that respondentdischarged petitioner because of her medical condition but, rather, that she was dischargedbecause she failed to go back to work after being given a medical release by both MetLife and herprimary care physician. On this factual point, the evidence is undisputed that petitioner's medicalcondition did not impact her ability to do her job as a reports clerk whether she was in RollingMeadows or Chicago. Petitioner has never claimed that her chronic obstructive pulmonarydisease, for example, or sleep apnea in any way affected her ability to perform her jobresponsibilities. According to petitioner, she always performed her job adequately during the 23years she was employed by respondent. Her physician's report also indicates that she was able toreturn to her regular duties, with the proviso, of course, that she could not "safely drive" the 50-mile commute from her home to Rolling Meadows. Furthermore, the evidence is undisputed thatthere were no positions available in petitioner's job title. According to petitioner, she, herself,searched respondent's transfer system and was unable to find a position available in her job title inChicago. Petitioner's physical limitations with respect to driving had no bearing on her ability todo her job at work.

Based upon the record and the undisputed facts, we find that petitioner was discharged fora nondiscriminatory reason, i.e., her refusal to return to work after being medically cleared, andthat she was not transferred back to Chicago because no positions were available in her job title.

However, there is a more fundamental issue that we are required to address and that iswhether the Act requires an employer such as respondent to reasonably accommodate anemployee with commuting problems. Under the Department's interpretive rules, an employermust provide reasonable accommodation for known physical limitations of otherwise qualifiedhandicapped employees, unless the employer can demonstrate that such accommodation would beprohibitively expensive or would unduly disrupt the ordinary conduct of business. 56 Ill. Adm.Code