dissenting:
I would affirm the Illinois Human Rights Commission; therefore, I dissent from the majority decision. As to human rights violations, the law is very clear that the complainant must establish a prima facie case of discrimination, that the respondent must put forward a legitimate and nondiscriminatory reason for its action, and that complainant then has the burden of proving that the reason given was a pretext for discrimination. In this case, the respondent does not have to prove its reasons for not hiring complainant; rather, complainant must prove that those reasons are not valid. There is no dispute that complainant Zaderaka did establish a prima facie case for discrimination based on age and that respondent Freeman Coal articulated a legitimate nondiscriminatory reason for not hiring complainant.
The disputed question is whether complainant has carried his burden of proving that the reason put forward by respondent was merely a pretext. The administrative law judge (ALJ) found that pretext was not established, and the Human Rights Commission agreed. Under section 8 — 111(A)(2) (111. Rev. Stat. 1985, ch. 68, par. 8-lll(A)(2)), these findings of fact must be accepted by this court unless the findings are contrary to the manifest weight of the evidence. If there is any evidence in the record that supports the Human Rights Commission’s decision, that decision was not contrary to the manifest weight of the evidence, and we must affirm. Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054, 1065.
The majority opinion disregards some of the facts which plainly support the Human Rights Commission decision. The director of employee relations for Freeman Coal testified that, for the position of welder, he excluded those applicants who had full time permanent work. He also testified that he did not exclude those applicants who were employed at the mine site at the time they applied because he knew their work would end before the mine opened. Several private contractors were engaged to prepare the site for surface mining operations. This included clearing trees, removing top soil, building dams, and erecting a building. Batterton was employed by Ansco, a contractor responsible for dissembling the strip mining equipment at the Banner, Illinois, mine, transporting it to the Industry site, and reassembling the huge “wheel and shovel” machine. This job took two years, and the mine would not open until Ansco had finished its work. Batterton had done all the welding involved in erecting the machinery that would be used in the mining operation and had a good job performance record.
There is nothing devious or incredible about treating those applicants preparing the mine site for operation, including Batterton, as not permanently employed while regarding Zaderaka, who worked at Caterpillar as a welder, as having permanent employment. Freeman knew that Batterton and the others working at the site would be laid off before the mine opened and chose to place them in the same category as the unemployed at the time they applied. It is obvious that Batterton would be chosen over other unemployed applicants because he was familiar with the mine site and with the equipment he would be repairing and maintaining. The majority errs in treating Batterton as though he had permanent employment at the time he applied. The evidence in the record supports the Human Rights Commission finding of no pretext.
The majority also errs by usurping the function of the trier of fact to determine credibility of the witnesses. The ALJ found the Freeman Coal representative credible; the majority does not. The majority says Freeman Coal’s witness was “unworthy of belief” because only one of five of the tractor operators hired was unemployed. (171 Ill. App. 3d at 629.) Examination of the record indicates that two of the five persons hired for that position were employed at the site, like Batterton, and thus would be unemployed before the mine opened, and one was employed at a Midland Coal Company mine that was closing. Thus, only one was regularly employed. Because no discrimination was charged as to the hiring of tractor operators, Freeman Coal was not asked to articulate a reason for selecting one employed person for that position. Accordingly, I do not agree that the evidence in the record compels a finding that the witness was not credible.
A reviewing court may not substitute its judgment for that of the trier of fact. There is ample evidence in the record to support the findings of the ALJ, and I would hold that it should not be disregarded. The Human Rights Commission should be affirmed.