2020 IL App (1st) 190931-U

No. 1-19-0931 

Order filed September 17, 2020 

Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

RICHARD VITIRITTI,

Petitioner-Appellant, 

 v. 

KHB GROUP, LLC d/b/a

MIDWEST MECHANICAL GROUP, 

 Respondent-Appellee. 

)

) 

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) 

) 

) 

) 

) 

) 

Petition for Direct

Administrative Review of a

Decision of the Illinois

Human Rights Commission 

Charge No. 2011 CA 2517 

JUSTICE HALL delivered the judgment of the court. 

 Presiding Justice Gordon and Justice Lampkin concurred in the judgment. 

ORDER

¶ 1 Held: We affirm the decision of the Human Rights Commission when it applied the 

appropriate standard in evaluating petitioner’s age discrimination claim, its findings 

of fact were not against the manifest weight of the evidence, and it did not err in 

finding that respondent articulated legitimate, nondiscriminatory reasons for certain

adverse employment actions.

¶ 2 Petitioner Richard Vitiritti appeals from a final decision of the Human Rights Commission 

(Commission), adopting the recommended decision of an administrative law judge (ALJ) on his 
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charge of age discrimination by respondent, KHB Group, LLC d/b/a Midwest Mechanical Group.1

Specifically, the Commission found that respondent discriminated against petitioner on the basis 

of age when it removed him from an account at a client’s request, in violation of the Illinois Human 

Rights (Act) (775 ILCS 5/1-101 et seq. (West 2010)). However, the Commission rejected 

petitioner’s claims that respondent changed his compensation, stopped approving his sales, and 

constructively discharged him based on his age. 

¶ 3 On appeal, petitioner contends that the Commission applied the wrong legal standard when 

evaluating his claims, and erred when it found that he was not discriminated against where (1) his 

compensation was changed to commission only, (2) respondent stopped approving his sales, and 

(3) he was constructively discharged. Petitioner also contends that the Commission erred when it 

denied him damages arising out of his constructive discharge and the “bulk” of his attorney fees.

We affirm. 

¶ 4 On February 28, 2011, petitioner filed a charge with the Department of Human Rights and 

Equal Employment Opportunity Commission alleging his employer, respondent, unlawfully 

discriminated against him based on his age. In particular, petitioner alleged that on September 2, 

2010, respondent acquiesced to client Pepper Construction’s demand for a younger sales 

representative. Thereafter, on November 29, 2010, petitioner’s compensation changed from salary 

plus commission to only commission with no advanced draw. In its answer, respondent denied the 

allegations and stated that petitioner’s compensation was changed due to underperformance. As 

1 In this order, we adopt the caption used in petitioner’s petition for review filed in this court on 

May 6, 2019. The named respondent, however, has not filed an appearance. Rather, an appearance and 

response brief have been filed by the Human Rights Commission and the Department of Human Rights.
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petitioner’s complaint was not adjudicated within one year, he filed a complaint with the 

Commission on March 2, 2012. 

¶ 5 On August 4, 2014, respondent filed a motion for summary decision alleging that petitioner

could not satisfy the prima facie elements of an age discrimination claim, rebut the legitimate 

reasons for respondent’s actions, or show that respondent’s actions were pretextual. The ALJ

denied respondent’s motion and the matter proceeded to a hearing. 

¶ 6 Petitioner testified that he was born in 1947 and had 45 years of experience in the heating, 

ventilating, and air conditioning industry. His success depended on his relationships with clients

and understanding their needs. A client would explain a project to petitioner, and he would confer 

with the engineering and estimating departments to determine a “list” price. “[E]stimating” 

involved collecting quotes for labor and supplies, applying overhead, and determining cost so that 

a price could be presented to a client. He rarely took part in determining prices, but was “expected 

to bring the order back” to respondent. 

¶ 7 In July 2006, petitioner began working for respondent. In 2006, he had $3.5 million in sales 

and from January to October 2007, he had $5.5 million in sales. In October 2007, petitioner took 

a position with Pepper Construction. After Pepper Construction laid him off in 2009, he was 

approached by respondent’s sales manager, John Hiller, and accepted a position as a project 

engineer with a $75,000 annual base salary. His additional compensation was 25% of one-half of 

respondent’s net profit on a project, and he received a “weekly guarantee” against his commissions. 

Between 2009 and 2010, his successful sales included projects at the Apple Store ($1.5 million), 

Union Station ($500,000), and Good Samaritan Hospital ($2.5 million). He also sold smaller 

projects totaling between $300,000 and $400,000. 
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¶ 8 In 2007, petitioner was entitled, per his contract with respondent, to request future 

commissions and he received $110,000 when he left respondent’s employ. However, in 2009, after 

he was rehired by respondent, Ken Beard, respondent’s president, told him that certain jobs “went 

south” and he owed respondent $110,000. Petitioner was expected to make sales to cover this “ 

‘back charge.’ ” When petitioner questioned Hiller about the discrepancy, he was told that several

jobs brought in by John Brooks, the head of estimating, were taken at a “lower sold price” and 

needed to be covered. 

¶ 9 On August 26, 2010, Beard told petitioner that Pepper Construction wanted him replaced 

with “someone younger” and instructed him to take Greg Biziarek, who assumed the sales account 

for Pepper Construction’s Division 32, to Pepper Construction for introductions. Otherwise, 

petitioner could “pack up and leave.” Later, a Pepper Construction employee asked petitioner to 

do something because Biziarek was not “doing the job.” 

¶ 10 In November 2010, respondent gave petitioner a new contract that reduced his commission 

draw to zero, making him “negative” once he paid for benefits. Under his original contract, 

petitioner explained that the lowest annual amount he could earn would be $75,000, but he 

expected to earn between $100,000 and $150,000 based on commissions. None of petitioner’s 

sales were being approved and he felt as though he had been discharged. As a result, petitioner and 

his wife lost their home and moved to Florida, and his wife became a “total alcoholic” and 

“blam[ed] it on [him].” Six months later, after petitioner mailed 100 resumes, a company hired 

him as a project engineer with a $40,000 annual salary. After another six months, he moved to a 

different position as a traveling engineer with an $85,000 annual salary. 
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¶ 11 Regarding his claim that respondent “cook[ed] the books” to underpay him, petitioner

explained this meant transferring costs from one project to another. By reducing the profit margin 

for petitioner’s projects and increasing it for other projects, respondent would diminish petitioner’s 

compensation and make it appear as if he had done a “bad job.” He first suspected something in 

2006, after a project at the Baha’i Temple ended but invoices were still being charged against it. 

¶ 12 During cross-examination by respondent’s attorney, petitioner acknowledged signing a 

release of claims when he left respondent in 2007 in exchange for a $115,000 payout. Petitioner 

admitted that he had no documents to support his claim that when he returned to respondent’s 

employ he was told this amount would be a back charge against his commission reserve. He

returned as a project engineer, someone who both supported and made sales. The Apple Store and 

Union Station projects “closed” in late 2010. He booked the Good Samaritan Hospital project in 

2009 and was paid via a draw against commission, but could not “comment” as to whether he 

received the final commission or if that job closed. 

¶ 13 At the end of 2009, a Pepper Construction employee told petitioner that “ownership” said 

he would not be allowed to bid on a project. After August 2010, petitioner was not “calling” on 

Pepper Construction’s Division 32, but the administrative director wanted him back. After

respondent converted petitioner’s salary to only commission, he earned no money because the 

amount he owed respondent had increased and his “commission reserve [was] a negative value.” 

¶ 14 Petitioner was originally hired under a salary plus commission plan, but he denied there 

was a $4.5 million annual sales plan or that an annual sales plan was communicated to him. He 

received a monthly sales report and was “consistently” on plan between February 2009 and 

November 2010. Petitioner and Beard discussed his sales performance every Monday morning. 
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Petitioner explained that these discussions were not “necessarily” about underperformance; rather 

“they would try to understand was it the economy, was it the estimates, or was it poor 

salesmanship.” Beard never expressed that petitioner’s performance reflected “poor 

salesmanship”; rather, it was “always the economy and what was going on and how we could make 

it better.” There was a “slump because of 2008,” and the Monday morning meetings were Beard’s 

chance to talk to each salesperson and understand what he could do to improve sales. The “tone” 

of these meetings was that everyone needed to make more sales. 

¶ 15 Between February 2009 and November 2010, petitioner sold three projects totaling 

$1,818,485. These generated a gross margin loss of $18,738. After spring 2010, he only sold $3950 

in bookings. Although petitioner did not know how Biziarek was compensated, Biziarek’s 

“pipeline” in October 2010 suggested a sales-based performance plan.

¶ 16 Petitioner explained that the estimating department, under the direction of Brooks and 

possibly a sales manager, would set the minimum price that respondent would accept on a project. 

When a bid was submitted, there was no way to know if respondent was the lowest bidder. In some 

cases, respondent could not meet the client’s demand for a lower price, and in other cases, 

respondent might take a job to create overhead to cover costs and petitioner would negotiate his 

commission separately. During 2009 and 2010, Brooks, whose job was to determine whether 

projects would be profitable, rejected petitioner’s proposals. Petitioner specifically asked Brooks 

why one job, the Kluczynski building project, was rejected, but Brooks had no explanation. When 

petitioner asked Hiller why the project was rejected, Hiller said respondent needed the sale and he 

could not understand why the project was not “brought in.” 
No. 1-19-0931 

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¶ 17 On November 29, 2010, respondent converted petitioner to only commission-based 

compensation. During a meeting with John Caraher, respondent’s president, petitioner was told 

that the change was “company-wide.” Petitioner denied that his underperformance was a factor in 

his changed compensation; rather, to the best of his recollection, Caraher said that the “entire 

company was suffering,” that respondent’s structure was being changed, and “that this had to be 

done to save the company.” Caraher “did not say anything about [petitioner’s] age.” After 

November 30, 2010, petitioner was not in the office; rather, he was “beating the streets.” Although 

he believed that zero compensation was equivalent to termination, he would have earned money if 

his projects were approved. He believed he was terminated because his compensation was changed 

to solely commission, and calculated his lost commissions as “plus a million bucks.” When he told

Brooks that he was not being credited the proper amount, Brooks “read [him] the riot act.” 

¶ 18 During re-cross, petitioner testified that Biziarek was not involved in sales before replacing 

petitioner on the Pepper Construction account. Petitioner never sold at “list price” because the 

market was too competitive. When he spoke to Hiller about the profit margins on his projects being 

“cooked,” Hiller said other salespeople were experiencing the same thing. At a “major meeting” 

when no one could explain why salespeople were losing commissions, it almost got “physical.” 

¶ 19 John Reints, respondent’s executive vice president and general manager from 2004 until 

2008, testified that he hired petitioner twice at other companies because he was “an extremely 

good engineer.” He also knew Biziarek, who was a drafting engineer without sales experience, and 

never would have replaced petitioner with Biziarek. In 2008, Reints did most of the hiring for 

respondent and hired people who could engineer first. Beard, on the other hand, hired young and 
No. 1-19-0931 

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inexperienced salespeople. During cross-examination, Reints testified that he left respondent’s 

employ 2008 and had no firsthand knowledge of petitioner’s employment between 2009 and 2010.

¶ 20 Respondent moved for a directed finding, arguing that petitioner testified that he believed 

he was terminated because his compensation changed. The ALJ denied the motion. 

¶ 21 Caraher testified that he was respondent’s chief financial officer and then president 

between February 2004 and May 2012, when respondent ceased operations. Petitioner was 

employed by respondent three times. First, in the “middle 1990s” for one day, then between 2006 

and 2007, and finally between 2009 and 2010. When petitioner left the second time, Caraher was 

concerned about paying his commissions because some projects were “too early” in the process. 

However, Reints was “adamant” that petitioner be paid, so they agreed that any shortfalls would 

be charged to Reints. Petitioner was not back charged when he returned to respondent because the

amounts had been moved to “house accounts.” 

¶ 22 Petitioner was hired to generate new sales, with an annual sales plan of between $4 and $5 

million. His “big selling point” was his strong relationships at Pepper Construction. Caraher

prepared monthly sales and commission reports, but petitioner did not meet the annual sales plan. 

Respondent was not doing well in early 2010, so “dramatic” changes were made. Six people were 

terminated and salaries were reduced. All of respondent’s sales engineers were over 40 years old, 

and three were converted solely to commission-based compensation. On November 29, 2010, 

petitioner’s compensation was also changed to solely commission. Caraher testified that 

petitioner’s age “had nothing to with” the change in compensation; rather, respondent could not 

continue with the “same cost structure.” 
No. 1-19-0931 

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¶ 23 Respondent “partner[ed]” Biziarek with petitioner to work on the Pepper Construction 

account. Biziarek was also assigned to sales engineer Bob Parks to obtain “more coverage” on his

accounts. Biziarek was a project manager and did not replace petitioner. Although the estimating

department determined the cost to build a project and set margins, in some situations, Caraher and 

Beard would make concessions to pursue a project. No one in the estimating department had the 

authority to reject a “profitable project.” He was unaware of labor from other jobs being charged 

against petitioner’s projects. Caraher last spoke to petitioner on November 29, 2010, and did not 

fire petitioner or say petitioner’s employment was terminated.

¶ 24 During cross-examination, Caraher testified that Biziarek was directed to assist petitioner 

in cultivating the relationship with Pepper Construction. If petitioner’s projects were not approved, 

he made no money. Caraher was never told that costs were improperly attributed to petitioner’s 

jobs, but if he was made aware of “moving” costs or other unethical practices, he addressed them. 

During redirect, Caraher testified that assigning Biziarek to help petitioner did not affect 

petitioner’s compensation or responsibilities. He thought petitioner was creative and a good 

salesperson. However, because of “the crash of 2008,” sales engineers were unable to find work, 

which was “essentially” why respondent could not find the types of projects it had previously 

booked. 

¶ 25 In rebuttal, petitioner testified that Biziarek said he did not need petitioner’s help with 

Pepper Construction. Between March and August 2010, Brooks rejected three of petitioner’s sales. 

Hiller, petitioner’s direct supervisor, told him to do what Brooks said. 

¶ 26 On January 12, 2018, the ALJ entered a recommended liability determination that 

petitioner proved, through direct evidence, that respondent discriminated against him on the basis 
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of age when it removed him from Pepper Construction’s Division 32 account and replaced him 

with a younger colleague. The ALJ noted, however, that petitioner’s “remaining claims cannot be 

established through direct evidence,” and concluded that petitioner failed to establish a prima facie

case of age discrimination with regard to his compensation agreement, the assignment of costs to 

his projects, or his departure from respondent’s employ.2 The ALJ determined that respondent 

articulated a legitimate, non-discriminatory reason for changing petitioner’s compensation. 

Specifically, respondent switched its sales force to solely commission-based compensation 

because respondent’s financial position “progressively weak[ened],” and petitioner failed to prove 

that this reason was a pretext for unlawful age discrimination. The ALJ stated that petitioner 

provided no documentation to support his claim that respondent wrongly attributed costs to his 

projects. As for the claim that respondent rejected projects in order to force petitioner from the 

company, the ALJ concluded that it “defied logic” to suggest that a company in financial difficulty 

would reject business in order to induce an employee to quit. 

¶ 27 Regarding petitioner’s claim that he was constructively discharged, the ALJ concluded that 

it was “clear” that respondent did not intend to discharge petitioner; rather, it wanted the business 

relationship to continue as evidenced by a new contract with updated compensation terms. The 

ALJ conceded that the new pay structure, through which petitioner’s income was “nearly 

eliminated,” might lead a reasonable person to conclude that he had to resign. However, petitioner 

failed to establish that the change in compensation was because of his age. The ALJ noted that 

although petitioner proved one incident of age discrimination, his removal from the Pepper 

2 The ALJ noted that petitioner’s complaint did not expressly allege constructive discharge or 

wrongdoing in the assignment of costs to his projects, but respondent elected to address both issues on the 

merits after they were raised at the hearing.
No. 1-19-0931 

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Construction Division 32 account, there was no other evidence of age discrimination in the record. 

Rather, all of respondent’s sales engineers were over 40 years old and all were converted to 

commission-only compensation. The ALJ was not persuaded by petitioner’s argument, based on 

one incident, that “every adverse action he encountered after the point was the result of age 

discrimination.” 

¶ 28 The ALJ recommended a $5000 award to petitioner for emotional distress due to the 

embarrassment of being removed from the Pepper Construction account and having to introduce 

his replacement. However, the ALJ did not recommend backpay because petitioner failed to 

establish that he lost any money due to his removal from Pepper Construction’s Division 32 

account, as he had no pending projects at that time. 

¶ 29 In a July 30, 2018 order, the ALJ awarded petitioner’s attorneys $36,329 out of the 

$89,822.50 sought based upon the partial success of petitioner’s claims. 

¶ 30 Petitioner filed exceptions, arguing that he testified that several profitable projects were 

rejected by respondent, he suffered emotional distress, and he was constructively discharged. 

¶ 31 On April 3, 2019, the Commission declined further review, and held that the ALJ’s 

recommended order and decision had become the order of the Commission. This order was served 

on the parties on April 10, 2019. On May 6, 2019, petitioner filed a petition for review before this 

court. 

¶ 32 The Act provides that upon judicial review of a final order of the Commission, “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.” 775 ILCS 5/8-111(B)(2) (West 2010); see also 

Koulegeorge v. State of Illinois Human Rights Comm’n, 316 Ill. App. 3d 1079, 1087-88 (2000). 
No. 1-19-0931 

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Whether the employer’s articulated reason for discharging the employee is pretextual is a question 

of fact. Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 180 (1989). 

¶ 33 Where an appellant raises an issue of law, our review is de novo. Jones v. Lockard, 2011 

IL App (3d) 100535, ¶ 16. However, if the appellant raises an argument that involves a mixed 

question of law and fact, or application of law to the facts, we review for “clear error.” Id. We may 

affirm the Commission’s decision “on any basis appearing in the record, regardless of the actual 

findings and rulings of the agency.” Habinka v. Human Rights Comm’n, 192 Ill. App. 3d 343, 372 

(1989). 

¶ 34 Initially, petitioner contends the Commission applied the wrong legal standard to his claims 

in violation of Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), when it separately 

analyzed direct and indirect evidence of discrimination rather than evaluating the evidence as a 

whole. 

¶ 35 Whether the Commission applied the correct legal standard is a question of law that is 

reviewed de novo. Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 327 Ill. App. 3d 768, 

775 (2002). 

¶ 36 In Lau v. Abbott Laboratories, 2019 IL App (2d) 180456, this court noted that it was guided 

by federal caselaw related to antidiscrimination statutes when interpreting the Act and cited Ortiz 

for the proposition that “ ‘[e]vidence must be considered as a whole, rather than asking whether 

any particular [type or] piece of evidence proves the case by itself.’ ” Id. ¶¶ 38, 39 (quoting Ortiz, 

834 F. 3d at 765). 

¶ 37 In Ortiz, an employee claimed that his employer terminated him because of his Mexican 

ancestry. Ortiz,834 F.3d at 761. He offered both direct and indirect evidence of discrimination, but 
No. 1-19-0931 

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the district court granted summary judgment to the employer. Id. at 762-63. The district court 

determined that the employee failed to create a “ ‘convincing mosaic’ ” under either the direct or 

indirect method. Id. at 763. 

¶ 38 On appeal, the Seventh Circuit determined that the district court erred when it failed to 

“aggregate the possibilities to find an overall likelihood of discrimination.” Id. Additionally, the 

Seventh Circuit stated that the concept of a “ ‘convincing mosaic’ ” was not a legal standard. Id. 

at 765. Rather, the proper legal standard was “whether the evidence would permit a reasonable 

factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor 

caused the discharge or other adverse employment action.” Id. The court concluded that 

“[e]vidence must be considered as a whole, rather than asking whether any particular piece of 

evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the ‘indirect’ 

evidence.” Id. 

¶ 39 In the case at bar, petitioner contends that the Commission violated Ortiz based on the 

reference to “direct” and “indirect” evidence in its order. We disagree. Ortiz did not hold that a 

factfinder cannot state whether a claim is proved by direct or indirect evidence, but rather that all 

evidence must be considered together. See id. 

¶ 40 Here, as the Commission noted, the record shows one instance of direct evidence of 

discrimination, that is, petitioner’s testimony that Beard stated that Pepper Construction wanted 

someone younger on the account and replaced petitioner with a younger employee. The 

Commission further noted that petitioner’s “remaining claims cannot be established through direct 

evidence.” In other words, petitioner produced no other direct evidence of discrimination, i.e., no 

one stated that petitioner’s compensation was changed, his sales were rejected, or he was 
No. 1-19-0931 

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constructively discharged because of his age. We cannot agree with petitioner’s conclusion that 

the Commission violated Ortiz simply by mentioning that only one of his claims was supported by 

direct evidence of age discrimination. Rather, the Commission examined the available evidence 

and correctly recognized that “all evidence belongs in a single pile and must be evaluated as a 

whole.” Id. at 766. Hence, we find that the Commission applied the correct legal standard to 

petitioner’s claims. 

¶ 41 Turning to the merits of petitioner’s claims, he contends that the Commission erred in 

finding that respondent did not discriminate against him based on age when it changed his 

compensation to commission only, stopped approving his sales, and constructively discharged 

him. 

¶ 42 The Act prohibits unlawful discrimination against a person on the basis of, inter alia, age, 

sex, or disability. Owens v. Department of Human Rights, 403 Ill. App. 3d 899, 916 (2010). To 

establish a prima facie case of employment discrimination, an employee must show that (1) he 

belongs to a protected class, (2) he met the employer’s legitimate business expectations, (3) he 

suffered an adverse employment action, and (4) the employer treated others similarly situated 

outside the class more favorably. Id. at 919. 

¶ 43 To show the third element, an adverse employment action, an employee must establish that 

the employment action was “materially adverse” and not a “mere inconvenience or an alteration 

of job responsibilities.” (Internal quotation marks omitted.) Id. A materially adverse employment 

action is “one that significantly alters the terms and conditions of the employee’s job.” (Internal 

quotation marks omitted.) Id. For an employment action to be actionable, there must be a 

“significant change in employment status, such as hiring, firing, failing to promote, reassignment 
No. 1-19-0931 

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with significantly different responsibility, or a decision causing a significant change in benefits.” 

(Internal quotation marks omitted.) Lewis v. City of Chicago, 496 F.3d 645, 653 (7th Cir. 2007). 

¶ 44 Discrimination can be proved through direct evidence or indirectly through the three-prong 

test followed by federal courts to determine whether an employer has unlawfully discriminated 

against an employee. See, e.g., Lalvani v. Illinois Human Rights Comm’n, 324 Ill. App. 3d 774, 

790 (2001) (“a plaintiff *** may attempt to meet his burden by presenting direct evidence that race 

was a determining factor in the employment decision, or he may use the indirect method of proof 

for Title VII cases set forth in [federal cases]”). Direct evidence of age discrimination would be 

evidence that an employer made specific comments about an employee’s age before an adverse 

employment action. Illinois J. Livingston Co. v. Illinois Human Rights Comm’n, 302 Ill. App. 3d 

141, 152 (1998). When direct evidence is unavailable, indirect evidence may be used to sustain a 

case of intentional discrimination. Sola v. Illinois Human Rights Comm’n, 316 Ill. App. 3d 528, 

536 (2000). 

¶ 45 Under the indirect approach, an employee must first establish by a preponderance of the 

evidence a prima facie case of discrimination, Owens, 403 Ill. App. 3d at 919; see also McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973). This prima facie case creates a presumption that 

the employer engaged in unlawful discrimination. Sola, 316 Ill. App. 3d at 536. The burden then 

shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision. Owens, 

403 Ill. App. 3d at 919. “The employer has only the burden of production, not the burden of 

persuasion on this element.” Sola, 316 Ill. App. 3d at 537. Once the employer has articulated a 

legitimate, nondiscriminatory reason for its actions, the burden shifts back to the employee to 

establish by a preponderance of the evidence that the employer’s reason was a pretext. Id. An 
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employee must therefore show that the articulated reason had no basis in fact, did not actually 

motivate the employer’s decision, or was insufficient to motivate the employer’s decision. Id.

Under this test, the ultimate burden of persuasion rests with the employee. Owens, 403 Ill. App. 

3d at 919. A final determination of unlawful discrimination must be established by, and supported 

with, a factual finding. Illinois J. Livingston Co., 302 Ill. App. 3d at 153-54. 

¶ 46 Here, it was undisputed that petitioner was over 40 years of age. Although petitioner 

testified that he met his sales goals, was never counseled about his performance, and any sales 

difficulties were due to the economy, he acknowledged that his sales between February 2009 and 

November 2010 generated a gross margin loss of $18,738. Caraher testified that petitioner did not 

meet his sales goals and was counseled regarding underperformance. Caraher further testified that 

all sales engineers were over 40 years old, and in September 2010, some of the sales engineers 

were converted to commission-only compensation due to respondent’s poor financial outlook. This 

change did not immediately apply to petitioner, and it was only several months later that 

petitioner’s compensation changed. Thus, petitioner cannot show that he was treated less favorably 

than the other sales engineers. Moreover, petitioner has failed to show that this change in 

compensation was pretextual when respondent was struggling financially, converted other sales 

engineers to commission-only compensation, laid off employees, and eventually ceased 

operations. 

¶ 47 We also note that petitioner provided no evidentiary support for his claims regarding his 

sales not being approved and that respondent assessed improper costs against his projects, nor did 

he identify specific accounts or younger colleagues whose projects were not improperly charged. 
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Additionally, as the Commission observed, it would “def[y] logic” to suggest respondent, a 

company in financial distress, would reject profitable projects out of animus. 

¶ 48 Before this court, petitioner argues that the Commission erred by rejecting his unrebutted 

testimony. He relies on Bucktown Partners v. Johnson, 119 Ill. App. 3d 346, 353 (1983), for the 

proposition that “the unimpeached and uncontradicted testimony of a witness cannot be arbitrarily 

disregarded by a finder of fact.” He concludes that because no witnesses contradicted his testimony 

and he was not impeached, the Commission erred by not finding for him on these issues. We 

disagree.

¶ 49 Although plaintiff testified that costs were charged against his accounts and his proposed 

sales were rejected, Caraher testified that no one in the estimating department had the authority to 

reject a “profitable project,” he was not aware of costs from other jobs being charged against 

petitioner’s projects, and he addressed costs being moved or other unethical issues once he was 

made aware of them. Thus, although petitioner’s testimony was not impeached, respondent 

presented evidence to rebut his testimony and petitioner presented no evidence to corroborate his 

testimony, such as account statements or other documents. The credibility of witnesses and the 

weight to be accorded their testimony are considerations for the trier of fact. Sweilem v. Illinois 

Department of Revenue, 372 Ill. App. 3d 475, 485-86 (2007). Here, the Commission considered 

the evidence and the testimony and was unable to conclude that respondent rejected petitioner’s 

proposed sales or improperly altered the finances for his projects. These findings of fact were not 

contrary to the manifest weight of the evidence, since the opposite conclusion, i.e., that a company 

in financial difficulty would reject profitable sales and engage in accounting irregularities just to 

encourage an employee to quit, was not clearly evident.
No. 1-19-0931 

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¶ 50 Plaintiff next contends that the Commission erred when it found that his removal from the 

Pepper Construction account, his change in compensation, the rejection of his proposed projects, 

and the improper charges against his projects did not amount to a pattern of discriminatory 

behavior leading to constructive discharge. 

¶ 51 “A constructive discharge occurs when an employee’s working conditions are made so 

intolerable that the employee, acting as a reasonable person, is compelled to resign.” Stone v. 

Department of Human Rights, 299 Ill. App. 3d 306, 316 (1998); see also Raintree Health Care 

Center v. Human Rights Comm’n, 275 Ill. App. 3d 387, 395 (1995), aff’d 173 Ill. 2d 469 (1996) 

(“Constructive discharge occurs when the employer alters the working conditions of an employee 

to the point where the employee had effectively been fired and compelled to leave.”). Thus, the 

question is how a reasonable person would react to the employee’s situation. Stone, 299 Ill. App. 

3d at 316. 

¶ 52 In the case at bar, petitioner was converted to commission-only compensation, and would 

not earn money if his projects were not approved. He testified that because he was not earning 

money he had been terminated, and therefore, he stopped going to the office and began looking 

for a new job. Caraher, however, testified that respondent wanted to retain petitioner, albeit it under 

different terms, namely, commission-only compensation. The Commission concluded that even if 

the change in compensation would have led a reasonable person in petitioner’s position to resign, 

petitioner failed to establish that the change in compensation was due to his age. The Commission 

noted that while petitioner was removed from one account due to the client’s age bias, petitioner’s 

evidence did not establish that his projects were rejected or that his compensation was changed for 

the same reason. In other words, the Commission was not persuaded that every other adverse 
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employment action was related to the reasons for petitioner’s removal from the Pepper 

Construction Division 32 account. With the change to commission specifically, the evidence was 

that respondent was under financial pressure and wanted its business relationship with petitioner 

to continue. 

¶ 53 Contrary to petitioner’s position on appeal, the Commission considered all of his 

allegations when analyzing whether he was constructively discharged. However, it concluded that 

the mere fact that one of those allegations was due to age bias did not mean that every other action 

also reflected age bias when no evidence supported that conclusion. 

¶ 54 Petitioner finally contends that the Commission “severely” miscalculated his damages 

because it failed to consider the damages caused by the “cooking of the books,” his projects being 

rejected, the change in compensation to commission only, and his constructive discharge. He also 

contends that the Commission’s finding on attorney fees, which awarded an amount based on 

partial success, was in error because had the “proper analysis been done,” he would have prevailed 

on all his claims and his attorneys would have been awarded the full amount. 

¶ 55 “The amount of damages awarded to a prevailing complainant under the Human Rights 

Act must be affirmed on review absent an abuse of discretion.” City of Chicago v. Human Rights 

Comm’n, 264 Ill. App. 3d 982, 987 (1994). Here, having found no error in the Commission’s 

findings as to petitioner’s claims, we find no abuse of discretion in the amount of damages 

awarded.

¶ 56 Accordingly, we affirm the Commission’s finding that petitioner failed to establish a prima 

facie case of age discrimination for the adverse employment actions at issue in this appeal, that 
No. 1-19-0931 

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respondent articulated legitimate, non-discriminatory reasons for those actions, and that 

respondent’s proffered reasons for its actions were not pretextual.

¶ 57 Affirmed.