text:
    DECATUR FEDERATION OF TEACHERS, IFT-AFT, AFL-CIO, Petitioner, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—89—0772
    Opinion filed June 21, 1990.

      Wayne B. Giampietro, of Witwer, Burlage, Poltrock & Giampietro, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Sandra J. Holman, of Illinois Education Association-NEA, of Springfield, for respondent Decatur Education Association.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On appeal, petitioner, Decatur Federation of Teachers, IFT-AFT, AFL-CIO (DFT), appeals an order of the Illinois Educational Labor Relations Board (Board), adopting in full a hearing officer’s recommendation and order, which set aside a representation election and ordered a new election to be held. Decatur School District No. 61, 5 Pub. Employee Rep. (Ill.) par. 1169, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, Sept. 25, 1989).

We affirm.

PROCEDURAL BACKGROUND

On February 28, 1989, DFT filed a representation petition with the Board, seeking an election in a bargaining unit consisting of approximately 914 certified employees of the Decatur School District 61 (District). At the time the petition was filed, the District’s employees were represented by the Decatur Education Association, IEA-NEA (DEA).

On March 8, 1989, the parties entered into an agreement for a consent election. The notice of election describing the unit and setting forth the date and times of the election was sent to the parties on March 13, 1989. Subsequently, on April 12, 1989, a preelection conference was held. On the following day, the election was held at three sites — Eisenhower High School, MacArthur High School, and Stephen Decatur High School. The polls were scheduled to be opened for two sessions — a morning session from 7 a.m. to 8:30 a.m. and an afternoon session from 2:30 p.m. to 6 p.m. Three Board agents monitored the voting at the respective polling sites, and DFT and DEA assigned observers to each site for both sessions.

The initial tally of the ballots, conducted immediately after the election, produced the following results:

1. Approximate number of eligible voters 949

2. Void ballots 2

3. Votes cast for DEA 406

4. Votes cast for DFT 407

5. Votes cast for_

6. Votes cast against participating labor organizations) 2

7. Valid votes counted 815

8. Challenged ballots 3

9. Valid votes counted plus challenged ballots 818

On the day following the count, April 14, 1989, the Board agent to whom the case was assigned served the parties with a “corrected” tally of ballots. Based on the corrected tally, the following figures were produced:

1. Approximate number of eligible voters 949

2. Void ballots 0

3. Votes cast for DEA 405

4. Votes cast for DFT 407

5. Votes cast for_

6. Votes cast against participating labor organization^) 2

7. Valid votes counted 814

8. Challenged ballots 6

9. Valid votes counted plus challenged ballots 820

At the tally of the ballots, the parties challenged the counting of several ballots. In addition, on April 20, 1989, DEA filed timely objections to the conduct of the election pursuant to section 8 of the Illinois Educational Labor Relations Act (Act) (111. Rev. Stat. 1987, ch. 48, par. 1708). On May 3, DFT responded to the objections.

After investigating the circumstances surrounding the objections and the challenges, the Executive Director issued a preliminary order on May 5, 1989 (Decatur School District 61, 5 Pub. Employee Rep. (Ill.) par. 1099, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, Executive Director, May 5, 1989)), followed by his recommended decision and order (Decatur School District 61, 5 Pub. Employee Rep. (Ill.) par. 1100, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, Executive Director, May 10, 1989)) advising the parties of his determination and disposition of the matters at issue. In those orders, the Executive Director ordered the election conducted on April 13, 1989, to be set aside, and a new election to be conducted on May 24, 1989. More specifically, the Executive Director sustained objection No. 1 filed by DEA, which involved the temporary closing of one election site.

The Executive Director also ruled on six challenges. First, he accepted DFT’s withdrawal of its challenge to the ballot of Cole Williams and overruled the challenges to two late voters. Thus, he ruled that all three of these ballots should be counted. With regard to the last three challenged ballots, he ruled one ballot void, another ballot cast for DFT, and the remaining ballot cast for “No Representative.”

On May 10, 1989, DEA filed a motion to stay the Executive Director’s actions. Two days later, DFT filed a response to DEA’s motion to stay. On May 15, 1989, both labor organizations filed exceptions to the Executive Director’s recommended decision and order. That same day, DFT filed a response to DEA’s “limited exception.” On May 23, 1989, the Executive Director found probable cause to hold a hearing.

On May 30, 1989, the Board reversed the Executive Director, can-celled the May 24, 1989, election, and ordered a hearing to be held on all objections and challenges, stating that it was not prepared to find, without benefit of hearing, that such conduct affected the outcome of the election. (Decatur School District 61, 5 Pub. Employee Rep. (Ill.) par. 1118, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, May 30, 1989).) It also noted that in the private sector and some public jurisdictions, there must be an affirmative showing that eligible voters were disenfranchised by a deviation from the scheduled voting times, recognizing this standard was an unresolved issue of law under the Act. See Decatur School District 61, 5 Pub. Employee Rep. (Ill.) par. 1118, No. 89—RC—0020—S, at IX-264 (Illinois Educational Labor Relations Board, May 30, 1989) (and cases cited therein).

On June 5, 1989, a hearing was held on all challenges and objections to the election. At that hearing, the parties entered into several stipulations. Two stipulations related to the challenged ballots. The first stipulation was that the ballot of Cole Williams should be counted. The second stipulation was that the ballot opened and stating, “get rid of State Representative,” should be counted for DFT. As a result of these stipulations, the votes were retallied to read:

1. Approximate number of eligible voters 949

2. Void ballots 0

3. Votes cast for DEA 406

4. Votes cast for DFT 408

5. Votes cast for_

6. Votes cast against participating labor organization(s) 2

7. Valid votes counted 816

8. Challenged ballots 4

9. Valid votes counted plus challenged ballots 820

A written stipulation, also agreed to by the parties, read as follows:

“The Board Agent assigned to the MacArthur Polling site did temporarily close down the polls between 4:15 p.m. and 4:30 p.m. to take a rest-room break. He posted signs at the entrance of the polling place and immediately inside that area which stated that the polls would be closed for the 15-minute time period.
At approximately 4:15 p.m., the Board Agent sealed the ballot box, signed the seal and secured the signatures of the observers on the seal. He then packed the ballot box and unused ballots, and he and the observers proceeded to leave the polling place. A review of the official voter lists indicated that Jane Spires was not checked off as having voted in the election.”

The hearing officer made additional findings of fact based on the record. Spires, a District employee for 13 years, testified she went to the polls during the time period that they were temporarily closed. Upon learning that the polls were closed, Spires stated that she decided not to wait for the polls to reopen because she had several'appointments that afternoon. Spires further stated that because of her appointments, she was unable to return to the polls before they closed at 6 p.m. No one from the Board advised Spires that if she was a few minutes late she could vote subject to challenge, nor did anyone from the Board advise Spires that she could try to vote at one of the other polling sites if she so desired. Decatur School District No. 61, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, Hearing Officer’s recommended decision and order, July 7, 1989 (unpublished decision) (slip at 6-7)) (hereinafter Hearing Officer’s decision).

Joe Opitz, an English teacher at MacArthur High School, also testified at the hearing. As the DEA observer, he was present for both voting sessions. He also attended the preelection conference on April 12, 1989. During the preelection conference, Opitz stated that there had been no discussion of the polls being closed for breaks. In fact, it was stated that the polls would not be closed for breaks; they would be closed only in case of an emergency.

When Opitz arrived for the start of the afternoon session at the MacArthur site, the Board agent told him and the DFT observer that he was going to take a break about 4:15 p.m. because he did not think he could last until 6 p.m. Neither of the two observers had any objection at that time to the Board agent closing the polls. In addition, they did not sign any written agreement or stipulation that the polls would be closed for 15 minutes.

After the polling site closed, Opitz left the area and went to the second-floor teachers’ lounge for approximately 10 minutes. On his way back to the site, he noticed an unidentified woman at the main entrance of the building. She was leaving and appeared to be very angry. Opitz testified that she stated, “I came to vote and they wouldn’t let me vote, the polls were closed.” Opitz told her that they were going to be open in about five minutes and she replied, “I don’t have time,” and left. Opitz did not know the identity of the woman.

When Opitz returned to the polling site, there were approximately five or six people waiting to vote. The Board agent returned at approximately 4:27 or 4:28 p.m. At that point, the ballot box was reopened and then the polls reopened. The voting list for the MacArthur site indicates that 58 people on the voting list did not vote during the election. Hearing Officer’s decision, slip at 7-8.

On June 20, DEA filed a post-hearing brief to the hearing officer. The next day, DFT filed its post-hearing memorandum. Subsequent to these filings, the hearing officer issued his recommended decision and order. He concluded that the closing of the polls for 15 minutes could have affected the outcome of the election and sustained DEA objection No. 1. Because the hearing officer determined that the closing of the polls alone was a sufficient basis to set aside the April 13, 1989, election, he did not rule upon the other objections or challenged ballots.

On August 28, 1989, and September 25, 1989, after the parties filed exceptions and briefs, the Board adopted the hearing officer’s findings of facts, conclusions of law, and supporting rationale, and ordered a new election be held. (Decatur School District No. 61, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, Aug. 28, 1989 (unpublished order)); Decatur School District No. 61, 5 Pub. Employee Rep. (Ill.) par. 1169, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, Sept. 25, 1989).) The Board did not address the other objections or the challenged ballot issues, including the challenged ballots of two late voters.

A new election was held on September 28, 1989, and DEA won. On October 6, 1989, the Board certified DEA as the exclusive representative of the District’s certified employees.

On appeal, DFT requests review of that portion of the order of the Board entered on May 30, 1989, which cancelled the rerun election scheduled for May 24, 1989, and ordered a hearing on objections and challenges to the election previously held. DFT further petitions the court to review the order by the Board entered on August 28, 1989, which upheld objections to the election held on April 14, 1989, and ordered a rerun election. Last, DFT requests review of the opinion and order entered by the Board on September 25, 1989 (Decatur School District 61, 5 Pub. Employee Rep. (Ill.) par. 1169, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, Sept. 25, 1989)).

THE STANDARD OF REVIEW

In order to overturn a decision of the Board, this court must determine that the Board’s findings of fact are against the manifest weight of the evidence and that the Board’s conclusions of law are not supported by the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.). As in other administrative review cases, the findings and conclusions of the Board on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110; City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499.) Courts may not interfere with the discretionary authority vested in an administrative agency unless that authority is exercised in an arbitrary or capricious manner or is against the manifest weight of the evidence. City of Freeport, 135 Ill. 2d at 507.

We conclude that considerable deference must be given the Board because of the Board’s expertise in educational labor matters. (Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 775, 536 N.E.2d 743, 746.) To do otherwise would, for practical purposes, transform appellate review into trial de novo. (Decatur Board of Education, 180 Ill. App. 3d at 775, 536 N.E.2d at 746.) Indeed, such a result would appear to substitute our general knowledge for the expertise required of Board members by section 5 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1705). Decatur Board of Education, 180 Ill. App. 3d at 775, 536 N.E.2d at 746.

GENERAL BOARD STANDARDS FOR REVIEWING ELECTION CONDUCT

Section 8 of the Act sets forth the Board’s duty to investigate allegations of improper election conduct and its authority to order a new election when improper conduct is found that affected the outcome of the election at issue. Section 8 states in pertinent part:

“The Board shall certify the results of the election within 5 working days after the final tally of votes unless a charge is filed by a party alleging that improper conduct occurred which affected the outcome of the election. The Board shall promptly investigate the allegations, and if it finds probable cause that improper conduct occurred and could have affected the outcome of the election, it shall set a hearing on the matter on a date falling within 2 weeks of when it received the charge. If it determines, after hearing, that the outcome of the election was affected by improper conduct, it shall order a new election and shall order corrective action which it considers necessary to insure the fairness of the new election. If it determines upon investigation or after hearing that the alleged improper conduct did not take place or that it did not affect the results of the election, it shall immediately certify the election results.” Ill. Rev. Stat. 1987, ch. 48, par. 1708.

Interpreting its duty and authority under section 8, the Board, in Rlinois State Scholarship Comm’n, 2 Pub. Employee Rep. (Ill.) par. 1125, No. 85—RC—0004—C (Illinois Educational Labor Relations Board, Sept. 26, 1986), stated:

“It is our judgment that employee free choice in representation matters is crucial. Therefore, it is our duty in regulating the election process to provide an election atmosphere not unlike a ‘laboratory’ in which the true desires of the employees may be determined. [N.10, see General Shoe Corp. (1948), 77 N.L.R.B. 127, 21 L.R.R.M. 1337.] However, although we adopt a ‘laboratory’ conditions standard, it is not at the expense of chilling a free and vigorous exchange of ideas. Accordingly, we will look at all of the facts realistically and practically, and will not insist upon a totally pristine preelection environment.” (Illinois State Scholarship Comm’n, 2 Pub. Employee Rep. (Ill.) par. 1125, at VII-363.)

The Board further stated that the burden is on the objecting party to show that (1) the objectionable conduct occurred, and (2) such conduct affected the outcome of the election. Illinois State Scholarship Comm’n, 2 Pub. Employee Rep. (Ill.) par. 1125, at VII-363.

Subsequent to its decision in Illinois State Scholarship Comm’n, the Board utilized the objective standard set forth therein to set aside elections based on improper conduct by both an employer and an agent of the Board. In Centralia School District 135, 4 Pub. Employee Rep. (Ill.) par. 1094, No. 87—RC—0012—S (Illinois Educational Labor Relations Board, Feb. 25, 1988), the Board set aside an election and stated, “we conclude that the Superintendent’s conduct reasonably could have affected the outcome of the election, warranting our setting the election aside.” In Leyden Community School District No. 212, 4 Pub. Employee Rep. (Ill.) par. 1113, No. 88—RC—0018—C (Illinois Educational Labor Relations Board, Aug. 11, 1988), the Board set aside an election and stated that, where a Board agent left a ballot box unattended during polling hours, this type of conduct reasonably could have affected the outcome of the election.

Section 8 of the Act discusses two different standards applicable to a claim that an election was affected by improper conduct: (1) before investigating an allegation of improper election conduct, the Board must find probable cause that the conduct could have affected the outcome of the election; and (2) before ordering a new election, the Board must find that the outcome of the election was affected by the improper conduct. (Ill. Rev. Stat. 1987, ch. 48, par. 1708.) We note that the Board, in directing that a new election be held, applied the less stringent standard applicable only to deciding whether an investigation is required — “that the conduct reasonably could have affected the outcome of the election” — rather than the standard articulated in section 8 of the Act applicable to deciding whether to order a new election — “that the outcome of the election was affected by improper conduct.” (Ill. Rev. Stat. 1987, ch. 48, par. 1708.) However, because we find that the Board reached the correct result even though it applied the wrong standard, we will not remand this case for further proceedings. Instead, we will apply the more stringent standard to our analysis of the instant case.

THE PARTIES’ ARGUMENTS

On appeal, DFT argues that the Board agent’s conduct was not improper. DFT asserts that there was no affirmative showing that anyone was “completely disenfranchised” because any voter appearing at the polls during the period in which they were closed could have waited until they reopened or returned later to vote. According to DFT, the evidence disclosed nothing more than voter inconvenience which, standing alone, is an insufficient basis for overturning an election.

DFT further asserts that because DEA’s observer consented to the Board agent’s decision to close the polls, DEA’s claim is without merit since, in effect, DEA played an “integral part” in the conduct it now objects to.

In response to DFT’s argument, DEA contends that the Board agent’s conduct in temporarily closing the polls at the MacArthur polling place was improper because the action was taken under circumstances that did not pose an emergency. DEA argues that the Board agent made a premeditated decision at 2:30 p.m. to close the polls for a 15-minute restroom break. In addition, DEA contends that such action was improper because there had been no agreement by the parties to the election (as opposed to the observers) to alter the voting hours.

DEA further argues that the temporary closing of the polls affected the outcome of the election. According to DEA, the closeness of the election results supports a reasonable inference that the Board agent’s conduct affected the outcome of the election. DEA argues that when, as here, a voter is improperly disenfranchised, the election must be set aside and a new election conducted.

ANALYSIS

The Act and the Board’s rules and regulations are silent on the issue of deviation from scheduled voting times. In addition, the Board has issued no case to date that directly addresses this issue. The only reference to voting times in Board policy appears in the Board’s Representation Case Handling Manual. Section 4.11 of that manual, regarding on-site voting procedures, states that the polls should be opened at the “designated” time, and “the polls should be declared closed exactly at the scheduled time.”

As noted by the Executive Director and the Board in this case, in the private sector, the criteria for determining whether an election should be set aside based on a Board agent’s deviation from scheduled voting times are (1) whether employees were disenfranchised as a result of the deviation; and (2) whether the disenfranchisement affected the outcome of the election. (See L.C. Cassidy & Son, Inc. v. NLRB (7th Cir. 1984), 745 F.2d 1059, 117 L.R.R.M. 2518; NLRB v. Klingler Electric Corp. (5th Cir. 1981), 656 F.2d 76, 107 L.R.R.M. 3011; Whatcom Security Agency, Inc. (1981), 258 N.L.R.B. 985, 108 L.R.R.M. 1185; NLRB v. Fenway Cambridge Motor Hotel (1st Cir. 1979), 601 F.2d 33, 101 L.R.R.M. 2858; NLRB v. L.D. Mc Farland Co. (9th Cir. 1978), 572 F.2d 256, 98 L.R.R.M. 2037; B & B Better Baked Foods, Inc. (1974), 208 N.L.R.B. 493, 85 L.R.R.M. 1092; Kerona Plastics Extrusion Co. (1972), 196 N.L.R.B. 1120, 80 L.R.R.M. 1231; Repeal Brass Manufacturing Co. (1954), 109 N.L.R.B. 4, 34 L.R.R.M. 1277.) A similar standard is applied in the public sector. See Berkeley Township, 12 Pub. Employee Rep. (N.J.) 17135 (N.J. Pub. Emp. Rel. Comm’n 1985) (where a Board agent’s delay in opening polls for 40 minutes disturbed conditions necessary to ascertain the free choice of employees, thereby requiring that the election be set aside); and Northwest Guidance Clinic, 1986 MERC 771 (Mich. Empl. Rel. Comm’n 1986) (where a brief delay at a polling site immediately after the polls were opened did not constitute legitimate grounds for overturning an election where the delay was brief, for a legitimate purpose, and did not result in discouraging any voter from voting). See Decatur School District No. 61, 5 Pub. Employee Rep. (Ill.) par. 1100, No. 89—RC—0020—S, at IX-242 & n.7 (Illinois Educational Labor Relations Board, Executive Director, May 5, 1989); Decatur School District No. 61, 5 Pub. Employee Rep. (Ill.) par. 1118, No. 89—RC—0020—S (Illinois Educational Labor Relations Board, May 30, 1989).

Private and public sector case law from other jurisdictions further provides that there must be an affirmative showing that eligible voters were disenfranchised by the deviation in the scheduled voting times. See L.D. McFarland Co., 572 F.2d 256, 98 L.R.R.M. 2037; Northwest Guidance Clinic, 1986 MERC 771.

Applying the general standard enunciated in Illinois State Scholarship Comm’n, as well as the above-cited private and public sector precedents to the facts underlying this issue on appeal, we conclude that the Board properly determined that the Board agent’s conduct in temporarily closing the polls at the MacArthur voting site was improper as such conduct affected the outcome of the election. The Board has the responsibility under the Act to conduct an election that ensures the greatest potential for the exercise of employees’ free choice. This responsibility rests with the Board agents that conduct the election. In Leyden, the Board agreed with the pronouncements of the National Labor Relations Board (NLRB) that the highest standards possible must be maintained to protect the balloting process and that where the Board cannot certify to the validity of that process, there is no alternative but to set the election aside and to direct another be held.

In a situation where, as here, a decision is made to alter the scheduled voting times, and such decision is not precipitated by an emergency or other exigency, there is a potential for voter disenfranchisement. Such a decision exceeds the authority of a Board agent, particularly when the established voting hours do not indicate a temporary closing of the polls. In addition, there was no advance notice to the parties of the contemplated closing, thus no opportunity for the parties (not the observers) to agree or disagree with the decision. We note, by way of reference only, that the directives in the Representation Case Handling Manual regarding the opening and closing of polls precisely at scheduled times support an inference that an unscheduled closing may not be within a Board agent’s discretion, absent unusual circumstances.

That the Board agent’s conduct affected the outcome of the election or that his conduct reasonably could have done so is shown by the fact that possibly two voters were disenfranchised by his action. Contrary to DFT’s assertion, more than mere voter inconvenience was shown here. In the present case, Spires presented herself at the polling place during the scheduled voting time with the intention of voting. What she found instead was that the polls had been closed. She was denied the opportunity to vote. But for the Board agent’s unscheduled closing of the polls, she would have voted. While there was no affirmative showing that other voters were similarly denied the opportunity to vote, the extreme closeness of the election results shows this unauthorized closure affected the outcome of the election. Fifty-eight eligible voters on the MacArthur list did not vote, and only two votes separated the two parties receiving the most votes. Thus, we hold the Board was correct in setting the election aside.

As a final matter, it is necessary to address DFT’s argument that DEA waived its right to object to the Board agent’s conduct because its observer, Opitz, made a binding decision for DEA when he acquiesced in the unscheduled closing of the polls and signed the certificate on election conduct. While DFT’s argument may have some surface appeal, the Board, in adopting the hearing officer’s rationale, rejected this argument (Hearing Officer’s decision, slip at 23-24), and we agree that it is without merit.

The hearing officer’s analysis summarized the law on point. In Leyden Community High School District 212, 4 Pub. Employee Rep. (Ill.) par. 1071, the Board agent let the observers for the parties run one election site while the Board agent ran a second election site. Not only did the parties acquiesce in this conduct, but they also signed a stipulation approving it, waiving the right to file objections based on it. Nevertheless, an objection was filed based on the absence of a Board agent from one of the election sites. The executive director set aside the election and ordered a new one. His decision was affirmed by the Board.

Two NLRB cases, Nyack Hospital (1978), 238 N.L.R.B. 257, 99 L.R.R.M. 1362, and Alterman-Big Apple, Inc. (1956), 116 N.L.R.B. 1078, 38 L.R.R.M. 1406, lend further support. In both cases, the NLRB stated that its responsibility in establishing election procedures, affording all eligible employees an opportunity to vote, is not subject to waiver by the parties. (Nyack, 238 N.L.R.B. at 259, 99 L.R.R.M. at 1363; Alterman-Big Apple, 116 N.L.R.B. at 1080, 38 L.R.R.M. at 1406.) Thus, in the instant case, neither Opitz nor DEA had the authority to waive required election procedures.

Based on the foregoing, we affirm the Board’s findings of fact and conclusions of law, adopted from the hearing officer’s recommended decision and order, as they were not arbitrary or capricious or against the manifest weight of the evidence.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL SIDES, Defendant-Appellant.
    Fourth District
    No. 4—89—0801
    Opinion filed June 21, 1990.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender's Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This case presents the question of whether the State must establish the foundation required under Frye v. United States (D.C. Cir. 1923), 293 E 1013, before the results of field-sobriety tests can be admitted into evidence. We hold that a Frye hearing is not required.

Defendant, Samuel Sides, was convicted of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95½, par. 11-501) and sentenced to 12 months’ probation. At trial, Officer Ronald Reysen testified that when he walked up to defendant’s parked automobile, he found defendant therein had glassy eyes, unzipped trousers, an odor of alcohol on his breath, and an open can of beer between him and the console. The keys to the car were in the ignition.

Defendant exhibited difficulty in getting out of the car and took 45 seconds to retrieve his driver’s license from his wallet. Reysen requested that defendant perform field-sobriety tests, specifically the “finger-to-nose,” “walk and turn,” and “one leg stand” tests. Defendant touched his nose each of six times, but touched the tip of his nose, as he had been requested, only once. In addition, defendant was unable to complete the “walk and turn” test and was able to perform the “one leg stand” for only 3 seconds, not 30, as requested. Reysen said that defendant’s speech was slightly slurred.

Reysen further testified that he had attended a three-day course on field-sobriety tests at Illinois Central College approximately four to five years earlier. Both a written and a practical examination were given at the end of the training and Reysen passed both of them. Reysen testified he had been a police officer for 9V2 years and had charged approximately 50 people with DUI.

Prior to trial, the defendant filed a motion in limine to bar the State from introducing any evidence of the results of field-sobriety tests, as well as the results of the horizontal gaze nystagmus (HGN) test that Reysen performed. As part of this motion, defendant argued that the field-sobriety test results are not admissible because they fail to meet the Frye reliability standards for scientific testing, as discussed in People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070 (a case in which the supreme court ruled that no polygraph results are admissible). The motion in limine was allowed with regard to the results of the HGN test, but denied with regard to the results of the field-sobriety tests.

Before this court, defendant renews the same argument:

“Because the State failed to establish an adequate foundation to show that field sobriety tests are reliable indicators of past use of alcohol, the trial court erred by denying defense counsel’s motion in limine ***.
In this case, Officer Reysen had no knowledge of the scientific theory underlying the field sobriety tests and admitted that he gave the tests only because ‘those were the tests that we were taught to administer’ when an individual was believed to have been consuming alcohol. *** The State obviously failed to establish any scientific basis for the field sobriety tests and failed to show that the scientific theory underlying those tests had won general acceptance in the scientific community.”

We reject this characterization of the field-sobriety tests. In People v. Vega (1986), 145 Ill. App. 3d 996, 1000-01, 496 N.E.2d 501, 504-05, this court held that admission of the results of an HGN test was error because such evidence was beyond the general knowledge of the average individual and no expert testimony was offered to establish the necessary foundation. However, reversal was not required because of the strength of the other evidence offered. (Vega, 145 Ill. App. 3d at 1001, 496 N.E.2d at 505.) In so holding, we stated the following:

“Even though the admission of the evidence of the results of [the HGN] test was in error, we believe that there was sufficient other evidence to sustain the jury’s verdict. The other tests, ‘walk the line,’ ‘one leg stand,’ and ‘finger to nose,’ are not so abstruse as to require a foundation other than the experience of the officer administering them.” (Emphasis added.) (Vega, 145 Ill. App. 3d at 1001, 496 N.E.2d at 505.)

We reaffirm in our holding today what we stated as dicta in Vega.

The jury in this case was given Illinois Pattern Jury Instruction, Criminal, No. 23.05 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d), which defines when a person is under the influence of alcohol. That instruction, as given, reads as follows:

“A person is under the influence of intoxicating liquor when as a result of drinking any amount of intoxicating liquor his mental and/or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.”

The jury was also given IPI Criminal 2d No. 1.01 (2d ed. Supp. 1989), a portion of which reads as follows:

“You should consider all the evidence in the light of your own observations and experience in life.”

In assessing the defendant’s mental and physical faculties at a time relevant to the charge that he was driving an automobile while under the influence of alcohol, it is entirely appropriate for the jury to consider the defendant’s ability to perform the simple physical tasks which comprise the field-sobriety tests. The jury’s inference that a defendant who had difficulty performing some of these tasks may have been similarly impaired in his ability to think and act -with ordinary care when in operation of an automobile is entirely justified and one which the law permits the jury to draw.

Certainly in our modern society, a juror’s common observations and experiences in life would include not only the driving of an automobile, but a familiarity with the degree of physical and mental acuity required to do so. No expert testimony is needed nor is a showing of scientific principles required before a jury can be permitted to conclude that a person who performs badly on the field-sobriety tests may have his mental or physical faculties “so impaired as to reduce his ability to think and act with ordinary care.”

Last, defendant makes much of the fact that because Officer Reysen received some training on how to conduct the field-sobriety tests, the scientific basis underlying them must therefore be demonstrated. We disagree and find this argument to be a non sequitur.

For the reasons stated, the judgment is affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD BURY, Defendant-Appellee.
    Fourth District
    No. 4—89—0603
    Opinion filed June 29, 1990.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    William E. Nelson, of Nelson & Stipp, P.C., of Hoopeston, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On September 2, 1988, defendant Donald Bury was charged by information in the circuit court of Vermilion County with committing the offense of computer fraud. (Ill. Rev. Stat. 1987, ch. 38, par. 16D—5(a)(3).) On April 18, 1989, defendant filed a motion to suppress, seeking to exclude as evidence all oral and written statements of defendant and all physical evidence taken from defendant’s home on September 2. The court granted defendant’s motion. The State now appeals.

The motion to suppress hearing was conducted on July 14, 1989. The State’s evidence establishes that on September 2, 1988, two State Police officers, Sergeant Abigail Abraham and Agent Mark Matón, and two security agents for the U.S. Sprint phone company proceeded to defendant’s home around 9 p.m. At the time, they had an arrest warrant for defendant for the instant offense in their possession. Defendant, after being told who they were, invited them inside. The warrant was not served at this point.

Defendant, his wife, and the four investigators proceeded to defendant’s kitchen. The officers indicated they wished to speak about defendant’s dealings with U.S. Sprint and Call Indiana. Defendant agreed and did so. Within a short time, they asked permission to search the residence. A consent to search was presented and signed by defendant at 9:17 p.m. His wife offered to sign it also. The consent form specifically mentioned the defendant’s study.

While two of the investigators conducted the search, defendant continued to speak with Sergeant Abraham. During that time, defendant discussed his involvement in the charged offense. Defendant was asked if he would give a written statement, and he agreed. The statement was given around 9:30 p.m. and placed on a preprinted form entitled “Voluntary Statement.” Defendant read the form and statement, and then signed it. Defendant had not yet been placed under arrest and never asked if he was or would be.

At this point, the search of the study was completed. Defendant then asked if something was going to happen or if he should consult an attorney. Defendant was then told of the arrest warrant. Defendant’s wife became upset because she had just returned from surgery, and defendant’s arrest would create a hardship since she was on crutches and this was Friday night. The police attempted to contact the prosecuting attorney to see if they could hold off on the warrant until after the weekend. When they were unable to contact anyone, they executed the warrant and gave defendant’s wife a ride to the home of one of their children.

Upon the close of the State’s evidence, the court stated:

“[I] [bjelieve even in the 80’s which we’re presently in, that there are certain modes of conduct which go to an extreme. It is shocking in my opinion that the State Police went out there with their arrest warrant, they knew about the constitutional provisions. They were playing games with the constitution if you have an arrest warrant and they know, as she said at the very end, that she knew that when she saw this man that she had to arrest him, because she went as far as to call Chicago to get advi[c]e as to how not [to] arrest him.

Motion will be allowed to suppress and the fruits thereof.”

Initially, we comment on the insufficiency of the court’s order. Section 114—12 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 114—12(e)) provides:

“The order or judgment granting or denying the motion [to suppress] shall state the findings of facts and conclusions of law upon which the order or judgment is based.”

This requirement serves the salutary purpose of enlightening the appellate court as to the evidence and reasoning relied upon below, and thereby facilitates review. (People v. Reincke (1980), 84 Ill. App. 3d 222, 405 N.E.2d 430.) Trial courts have appeared reluctant to comply with this provision, and the reviewing courts have repeatedly commented on the failure to do so. (See, e.g., People v. Brown (1990), 136 Ill. 2d 116; People v. Winters (1983), 97 Ill. 2d 151, 454 N.E.2d 299; People v. Jones (1984), 129 Ill. App. 3d 618, 472 N.E.2d 1176; Reincke, 84 Ill. App. 3d 222, 405 N.E.2d 430; People v. Drury (1971), 130 Ill. App. 2d 798, 268 N.E.2d 460.) However, we can find no case which has remanded an order for compliance with section 114—12 of the Code. Accordingly, while we find the present order is more deficient than those in other cases, we will not remand the case for compliance but simply continue to exhort the trial courts to conform their orders to the mandates of the statute.

The difficulty with orders that do not adhere to the statute is readily apparent in the present case. While the court’s order appears based on some vague assertion of fundamental unfairness and due process, the briefs have focused on the voluntariness of defendant’s consent to search and the necessity of the giving of the defendant Miranda rights prior to his statement. Since these are the issues briefed, these are the issues we will address.

First, we shall deal with the simpler question, which is the validity of the search. On a motion to suppress evidence, the burden of proof is on the defendant to establish that the search and seizure were unreasonable. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) Once the defendant has established that a warrant-less search has occurred and that he was not doing anything unusual at the time, the burden of going forward with evidence to prove its legal justification shifts to the State. (People v. Burton (1985), 131 Ill. App. 3d 153, 156, 475 N.E.2d 583, 585.) However, the State is required to demonstrate the validity of a search only by a preponderance of the evidence. (Burton, 131 Ill. App. 3d at 156, 475 N.E.2d at 585.) A reviewing court will not disturb a trial court’s determination on such a motion unless it is manifestly erroneous. Neal, 109 Ill. 2d at 218, 486 N.E.2d at 899.

It is well settled that under the fourth and fourteenth amendments a search conducted without a warrant is, subject only to a few exceptions, per se unreasonable. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043.) One such exception is a search conducted pursuant to consent. (Schneckloth, 412 U.S. at 219, 36 L. Ed. 2d at 858, 93 S. Ct. at 2043-44; People v. DeMorrow (1974), 59 Ill. 2d 352, 360, 320 N.E.2d 1, 6.) The burden is on the prosecutor to establish that the consent was voluntarily given and not the result of coercion or duress, express or implied. (Schneckloth, 412 U.S. at 222, 36 L. Ed. 2d at 860, 93 S. Ct. at 2045.) Voluntariness is a question of fact to be determined from the totality of the circumstances. (Schneckloth, 412 U.S. at 227, 36 L. Ed. 2d at 862-63, 93 S. Ct. at 2047-48.) The question is whether a defendant’s consent, because his will had been overborne and his capacity for self-determination critically impaired, was not his own essentially free and unconstrained choice. Schneckloth, 412 U.S. at 225, 36 L. Ed. 2d at 862, 93 S. Ct. at 2047; United States v. Watson (1976), 423 U.S. 411, 424, 46 L. Ed. 2d 598, 609, 96 S. Ct. 820, 828.

Here, the evidence establishes the voluntariness of the consent. Defendant invited the officers into his home. After only 15 minutes, while sitting at his own kitchen table, he agreed to the search. The form, which was filled out and he signed, provides, “I understand that I have the right to refuse to consent to the search described above.” His wife also offered to sign the form. The record fails to present any evidence that defendant was subject to any coercion or duress, other than the fact that the police were present and asking permission to search his house. While it is undeniable that this may create some pressure to comply with the request, this is insufficient to establish that defendant’s will has been overborne. To the extent that the court’s order can be construed as finding the consent to search was not voluntary, it is clearly against the manifest weight of the evidence.

Now, turning to the statements defendant gave, the State acknowledges that the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, were not given. However, the State maintains they are not required in this case.

The rules of Miranda apply to admissions made by a defendant while he is in custody or otherwise deprived of his freedom in any significant way. (Brown, 136 Ill. 2d at 124; People v. Lucas (1989), 132 Ill. 2d 399, 417, 548 N.E.2d 1003, 1009.) As the Brown court explained:

“The ultimate inquiry is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (California v. Beheler (1983), 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 1279, 103 S. Ct. 3517, 3520.) Although what constitutes police custody is not always self-evident, the Court in Miranda was concerned with interrogations that take place in a police-dominated environment containing ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ Miranda, 384 U.S. at 467, 16 L. Ed. 2d at 719, 86 S. Ct. at 1624; see also Berkemer v. McCarty (1984), 468 U.S. 420, 437-38, 82 L. Ed. 2d 317, 333, 104 S. Ct. 3138, 3149.” Brown, 136 Ill. 2d at 124.

The determination of whether an interrogation is custodial should focus on all of the circumstances surrounding the questioning, such as location, time, length, mood and mode of interrogation, the number of police present, the presence or absence of family and friends of the accused, any indicia of formal arrest or evidence of restraint, the intentions of the officers, the extent of knowledge of the officers and focus of their investigation, and the age, intelligence, and mental makeup of the accused. (Brown, 136 Ill. 2d at 124; Lucas, 132 Ill. 2d at 417-18, 548 N.E.2d at 1009.) After reviewing these factors, the court must make an objective determination as to what a reasonable man, innocent of any crime, would have thought had he been in defendant’s shoes. (Brown, 136 Ill. 2d at 124; Lucas, 132 Ill. 2d at 417-18, 548 N.E.2d at 1009.) Again, a reviewing court should not disturb a trial court's motion to suppress ruling unless it is against the manifest weight of the evidence. People v. Garcia (1983), 97 Ill. 2d 58, 74, 454 N.E.2d 274, 279.

After rexdewing the record in the present case and considering the relevant factors, we conclude that the statements were not given in a custodial setting. Defendant is a middle-aged man and there is no indication of any mental abnormality. The interview occurred in defendant’s own kitchen, xvith his wife present. The mood was nonthreatening. Defendant gave the questioned statements xvithin 30 minutes of the police arriving. Admittedly, there were a number of people present and there is a certain coercive factor when police officers ask an individual questions. But, this is true of any interview by the police and is not controlling. See Oregon v. Mathiason (1977), 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719, 97 S. Ct. 711, 714.

We are aware that at the time the police arrived they had an arrest warrant for defendant, about which they did not immediately advise defendant. Thus, it is clear he was the focus of their investigation, and it was their intention to arrest him. However, an interrogation is custodial only when a reasonable person in the position of the defendant, innocent of any wrongdoing, would believe that he was under arrest, given all the circumstances with which he was then confronted. See Lucas, 132 Ill. 2d at 417-18, 548 N.E.2d at 1009.

The focus of the inquiry must always be on what the defendant thought and believed, not the officers. “Coercion is determined from the perspective of the suspect.” (Illinois v. Perkins (1990), 495 U.S. _,_, 110 L. Ed. 2d 243, 251, 110 S. Ct. 2394, 2397.) In weighing all of these circumstances, the subjective intent of the police officers is relevant only to the extent that it might color their outward behavior. These intentions become probative when there is a conflict in the evidence between the defendant and the officers over how the officers behaved. If the officers intended all along to arrest the defendant, then the court might reasonably resolve such a conflict by doubting the ability of the officers to hide their intentions. But, the fact that the officers might have intended to arrest the defendant when their interrogation ceased is of no significance if their behavior was such that this intent was never revealed to the defendant. In other words, that the investigation had focused upon the defendant, even to the extent, as here, that the officers possessed an arrest warrant as the interrogation was taking place, does not matter as long as the defendant was not aware of the officers’ intentions.

Here, in considering the short duration of the interview, its setting and the presence of defendant’s wife, we conclude that the presence of the unarticulated intent to arrest defendant does not, by itself, transform the setting into the type with which Miranda is concerned. A reasonable, innocent person would not believe he was in custody at the time of the interview.

Accordingly, for the foregoing reasons, we find the trial court’s order against the manifest weight of the evidence.

Reversed and remanded.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE GREEN

text:
    DARRELL N. CONSTANT, SR., Plaintiff-Appellee, v. TURRIS COAL COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—90—0226
    Opinion filed June 27, 1990.

      Jeffrey S. Goldman and Paul A. Olsen, both of Fox & Grove, Chartered, of Chicago, Roy 0. Gulley, of Heyl, Royster, Voelker & Allen, of Springfield, and Glyn Cook, of Houston, Texas, for appellant.
    Steven Nardulli and G. Michael Taylor, both of Stratton, Dobbs, Nardulli & Lestikow, and Roger Edward Ryan, both of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Section 7 — 104(A) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 7—104(A)) permits either a complainant before the Department of Human Rights (Department), or the Department, after a charge has been filed with the Department, to proceed in the circuit court to seek interlocutory injunctive relief pending administrative disposition of the charge pursuant to the Act. Here, plaintiff Darrell N. Constant, Sr., filed such a charge with the Department against his employer, defendant Turris Coal Company, alleging defendant had discriminated against him because of a physical handicap “unrelated” to his work. Then, on October 2, 1987, Constant filed suit in the circuit court of Sangamon County seeking such injunctive relief.

On October 5, 1989, the circuit court entered an order requiring Turris to assign Constant, pending resolution of his charge of discrimination, to different duties than those he was then performing. The order was based upon a rule promulgated by the Department and the Illinois Human Rights Commission (Commission) which requires employers to make reasonable accommodation to the limitations of handicapped employees (56 Ill. Adm. Code §2500.40, at 5852 (1985)). On March 5, 1989, the circuit court denied Turris’ motion to dissolve the October 5 order. Turris has appealed, maintaining (1) any showing it had failed to make reasonable accommodation to Constant’s disability was insufficient to support the order; (2) insufficient showing was made of the likelihood Constant would prevail on the merits; (3) the Department, the Commission, and the circuit court lacked jurisdiction to rule concerning the safety aspects of the dispute; and (4) Constant’s charge was time barred. We affirm.

The basic facts underlying the dispute between the parties as shown by evidence before the circuit court are mostly undisputed. Constant lost his right hand and a portion of his right forearm in a hunting accident in 1975. On his right arm, he wears a prosthetic hook. The hook is controlled by a cable which is secured to Constant’s body. The cable is operated by movement of Constant’s left shoulder and arm. Constant cannot raise his prosthesis above his shoulder. As a result of Constant wearing the cable, the movement of his left arm is also somewhat limited.

Constant was hired by Turris in 1980 as an aboveground heavy equipment operator. In early 1982, his job classification was changed to “mining technician.” Mining technicians employed by Turris are required to be proficient in a variety of aboveground and underground mining skills in order to permit flexibility in work assignments and thus minimize layoffs due to fluctuations in the demand for coal. For approximately six months in 1982, Constant worked underground due to a shortage of underground workers and for the purpose of being trained in underground mining work. While working underground during this period, Constant was never more than 500 feet from the mine shaft entrance.

Except for the described period of underground work, Constant was employed in aboveground work for Turris until January 1988. During this time, Constant’s work performance was generally satisfactory. He was able to operate earth-moving equipment by means of special knobs, which he attached when he began working with a particular piece of equipment and removed when he was finished working with it.

On January 8, 1988, Turris assigned Constant to underground work. Constant testified at the hearing on Turris’ motion to dissolve the circuit court’s order for temporary relief that he immediately advised Turris’ management that he was concerned about his new underground job assignment. Specifically, Constant feared that he could not properly operate a self-rescuer, which is an individual apparatus assigned to each minor in order to permit breathing in the event of an underground mine disaster. Constant feared he could not properly attach a nose clip to his nose (in order to prevent noxious gases from entering his nose) or tightly strap the canister portion of this apparatus to his body so that it would not get caught on man doors or other narrow openings through which he might have to pass in an emergency situation. Turris did prepare a modified nose clip which it concluded Constant could properly operate. However, while the operation of this modified nose clip was being explained at the hearing on Turris’ motion to dissolve the order for temporary relief, it broke and could not be made to close.

During the first two months that Constant worked underground in 1988, he was assigned to heavy manual labor which included such things as lifting sections of railroad rail, and building “stoppings,” which involves lifting, carrying, and stacking concrete blocks, lifting and carrying sacks of mortar mix, and sealing the joints between the concrete blocks with mortar. As a result of engaging in these activities, Constant sustained two injuries in January 1988. One of these injuries caused him to miss approximately one month’s work.

At the time the order granting temporary relief was entered, Constant operated a “ram car,” which moves coal from place to place underground. Constant stated he does not think he can safely operate this vehicle, because due to his condition, he must take his hands off its steering wheel in order to operate its bells and lights when it passes through intersections. Also, when operating the ram car’s bells and lights, Constant cannot look both ways for approaching traffic due to movement limitations imposed by his prosthesis and harness.

In an affidavit filed in support of his petition for temporary relief, Constant also expressed a fear that while working underground, he might unintentionally permit his prosthetic steel hook to come into close proximity to uninsulated electrical cables, thereby causing electricity to arc to his hook. Furthermore, Constant stated that because of his steel hook, breaks in the insulation of insulated underground electrical cables posed a greater threat to him than to his coworkers.

Section 7—104(A)(2) of the Act, under which Constant sued in the circuit court, states that such a proceeding “shall be governed by Part I of Article XI of the ‘Code of Civil Procedure.’ ” (Ill. Rev. Stat. 1987, ch. 68, par. 7—104(A)(2).) Absent other statutory regulation of a particular type of proceeding, Part I of article XI governs the practice when injunctive relief is sought. The parties do not dispute that the traditional rule concerning the granting of a preliminary injunction by a circuit court requires the party seeking relief to establish by a preponderance of the evidence “(1) he possesses a certain and clearly ascertainable right or interest needing protection; (2) there is no adequate remedy at law; (3) irreparable harm will result if [relief] is not granted; and (4) there is a reasonable likelihood of success on the merits.” Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 1002, 516 N.E.2d 1313, 1317.

This case turns upon the question of whether Constant has made a sufficient showing of a likelihood of success. This concerns Turns’ second contention on appeal. That turns mostly upon the proof in regard to whether Turns had failed to make a reasonable attempt to accommodate Constant’s disability. We examine that issue first.

Section 2—102(A) of the Act provides it is a civil rights violation:

“For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination.” (Ill. Rev. Stat. 1987, ch. 68, par. 2-102(A).)

Unlawful discrimination is defined as “discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, handicap or unfavorable discharge from military service as those terms are defined in this Section.” (Ill. Rev. Stat. 1987, ch. 68, par. 1—103(Q).) In regard to employment, as involved here, the term “handicap” is defined as a “physical *** characteristic of a person *** unrelated to the person’s ability to perform the duties of a particular job or position.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 68, par. 1—103(I)(1).

The Department and the Commission have promulgated rules which require employers to take reasonable steps to accommodate handicapped employees. These regulations provide in pertinent part:

“Employers and labor organizations must make reasonable accommodation of the known physical or mental limitations of otherwise qualified handicapped applicants or employees, unless the employer or labor organization can demonstrate that such accommodation would be prohibitively expensive or would unduly disrupt the ordinary conduct of business. Whether an accommodation would be prohibitively expensive or disruptive will involve weighing its cost and inconvenience against the immediate and potential benefits of providing it, where the immediate benefit is facilitation of the handicapped person’s employment and the potential benefits include facilitating access by other disabled employees, applicants, clients and customers. Accommodation may include: alteration of the facility or work site; modification of work schedules or leave policy; acquisition of equipment; job restructuring; provision of readers or interpreters; and other similar actions.” (Emphasis added.) 56 Ill. Adm. Code §2500.40, at 5852 (1985).

In its October 5, 1989, order granting temporary relief, the circuit court stated: “[T]he likelihood that irreparable harm would occur to the plaintiff in the event injunctive relief is not granted overbalances the irreparable harm likely to occur to the defendant if injunctive relief is granted.” The court further found that granting Constant temporary relief would not prejudice Turris. Therefore, the court ordered Turris:

“[T]o permit Petitioner Darrell N. Constant, Sr. to return to the work he performed prior to January 8, 1988, namely: Operating heavy earthmoving equipment aboveground and to other above-ground work which he performed from time to time since November 1981 and prior to January 8, 1988 which was within his reasonable physical functional capacity using his left hand and prosthetic hook with reasonable accommodation to his handicap, or in the alternative at the option of the Defendant to keep Plaintiff on the payroll at his present rate of pay without the assignment of duties to him.”

Under the evidence presented, the circuit court’s determination that Constant’s continued assignment to work underground presented too great a risk to him was sufficiently supported by the evidence. A more difficult question is presented by the requirement placed on Turris by the preliminary injunction. As pertinent here, section 1—103(I)(1) of the Act defines a “handicap” as a “determinable physical *** characteristic of a person, including *** a determinable physical characteristic which *** may result from *** injury *** and which characteristic *** is unrelated to the person’s ability to perform the duties of a particular job or position.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 103(I)(1).) Thus, here, the provision of the administrative rule permitting the Commission to order “job restructuring” must be considered in the context of section 1—103(I)(1) of the Act, which deems Constant to be “handicapped” and entitled to relief only if his disability is “unrelated” to his job.

Constant complains of his inability to safely perform the underground aspects of the job description for the position of mining technician which he has held since 1982. Some dispute exists in the evidence as to whether Constant was adequately informed of his change in status in 1982, but the circuit court concluded that the evidence was very strong that he was so informed. We are unaware of a case decided by the appellate or supreme courts of this State where an employer has been required to accommodate by keeping an employee with a disability in the same job classification, drawing the same pay while, at the same time, relieving the employee of difficult parts of the tasks required for the position.

Constant relies on Illinois Bell Telephone Co. v. Human Rights Comm’n (1989), 190 Ill. App. 3d 1036, 547 N.E.2d 499, where an employee suffered a physical condition which caused her to be incapacitated for at least two days per month. She had been working in a division where the employees were permitted flexible schedules whereby they could make up lost work by working weekends. The employee was later transferred to another division where the flexible schedule program was not in use. Eventually, as the employee’s lost time grew progressively worse, she was discharged. The Appellate Court for the First District upheld a Commission order requiring the employer to either transfer the employee to a division having flexible schedules or to grant her such prerogative in her present position. The accommodation required in the foregoing case did not relieve the employee of performing the work required for the position. Rather, the accommodation ordered gave her flexibility as to when the work was performed.

More nearly in point is the case of Caterpillar, Inc. v. Human Rights Comm’n (1987), 154 Ill. App. 3d 424, 506 N.E.2d 1029. There, a probationary employee during her early days on a job in 1978 developed a tennis elbow injury rendering her unable to perform the function of a drill operator for which she had been hired. When she was separated from her employment, she filed a complaint with the Illinois Fair Employment Practices Commission (FEPC), which then had jurisdiction of charges of discrimination against the handicapped. (Ill. Rev. Stat. 1975, ch. 48, pars. 851 through 867.) The case became the responsibility of the Commission after it succeeded the FEPC. The Commission concluded the employer could have given her other jobs to do, ordered the employer to rehire the employee, pay her back wages, and give her seniority for the time she should have been employed. The circuit court affirmed but the Third District Appellate Court reversed, holding that the employer’s duty to accommodate only involved accommodation in the employee’s present job and did not extend to placing the employee in another position.

Constant maintains Caterpillar is not analogous because at the time that employer was alleged to have discriminated, the instant Department and Commission rules requiring an employer to accommodate to an employee’s disability to “job restructuring” were not in force. (56 Ill. Adm. Code §2500.40, at 5852 (1985).) Rather the employer was merely required to make a reasonable accommodation. (Caterpillar, 154 Ill. App. 3d at 426-27, 506 N.E.2d at 1031.) Moreover, we note that here Constant was a longtime employee who, despite his job classification, had been permitted to work on the ground level for several years while the employee in Caterpillar was on probation and had worked for only a few days when injured. In Johnson & Madison Maintenance Corp., X Ill. Human Rights Comm’n Rep. 105 (1983), a janitor had suffered an injury impairing his ability to lift heavy weights. The employer had allowed him to obtain assistance from others with his lifting for several years. The Commission held the employer discriminated when it withdrew that accommodation and denied the janitor assistance in lifting.

This case presents an interesting question as to the amount of accommodation an employer can be required to make to an employee’s disability in order that the disability become “unrelated” to the employee’s “ability to perform the duties of a particular job” within the meaning of section 1—103(I)(1) of the Act. (Ill. Rev. Stat. 1987, ch. 68, par. 1—103(I)(1).) One question which might arise is whether, if an employer is required to accommodate an employee who cannot perform the most difficult and dangerous aspects of a job, the employer is required to continue to remunerate the employee at the rate given to those who can do so. However, we need not answer all of those questions at this stage. The supreme court has stated that the proof of likelihood of recovery sufficient to support a preliminary injunction need only be such as to raise a “fair question” of the right of recovery. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386, 483 N.E.2d 1271, 1275.

One of the criteria for determining whether injunctive relief is appropriate is the burden placed upon the party enjoined. (G.H. Sternberg & Co. v. Cellini (1973), 16 Ill. App. 3d 1, 305 N.E.2d 317.) Here, the burden upon Turris appears to be very slight. Constant had been permitted to work at ground level almost all of the time for several years. One person of equal seniority and not shown to be disabled had also been given that privilege and several similarly classified employees of lesser tenure had been given the same privilege also. On the other hand, to require Constant to work in the mine would appear to require him to choose between work which might be very dangerous to him or to give up his job. Considering Constant’s tenure and his ability to continue to ably perform important work at ground level, we deem the record to raise a “fair question” of a failure by Turris to make a required accommodation to Constant. We do not attempt to prejudge the decision the Commission may make upon this difficult question nor do we prejudge what a decision of this court might be on possible subsequent administrative review.

The contention of Turris in regard to Constant’s charge before the Department being time barred is also a matter for us to consider on the basis of the “fair question” standard. The Act prescribes a 180-day limitation period for making such charges. (Ill. Rev. Stat. 1987, ch. 68, par. 7—102(A)(1).) This period runs from the date the claimant first received notice of the allegedly discriminatory conduct, as opposed to the time at which the harm caused by the alleged misconduct was most acutely felt. (Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203, cert. denied (1989), 489 U.S. 1054, 103 L. Ed. 2d 585, 109 S. Ct. 1316.) The trial court concluded Constant was aware of the job requirement of work in the mine as early as 1982 and he worked underground during that year. However, at that time he apparently always worked within 500 feet of the mine shaft entrance and had no need for the rescue device he contends he is unable to operate. Thus, a “fair question” exists as to whether his administrative cause of action for discrimination did not arise until January 1988 when he was required to work in the mine in areas more than 500 feet from the shaft entrance. If this was so, his charge, filed with the Department on March 8, 1988, was timely.

We find no merit in the assertion of Turris that both the circuit court and the Commission lacked jurisdiction to decide the safety aspects of the instant dispute, more particularly whether Constant was endangered by inability to use the mine rescue device. Turris points out that miners employed in mines have recourse under the Federal Mine Safety and Health Act of 1977 (30 U.S.C. §801 et seq. (1988)) supplemented by the Coal Mining Act (Ill. Rev. Stat. 1987, ch. 96½, par. 313). However, those legislative provisions focus upon the standards of safety for all miners. Constant makes no claim that the Turris mine fails to meet those standards. Rather, he is contending that Turris failed to make accommodation to his disability. Had he proceeded under the foregoing legislation, he would have been subject to the contention that the legislation was not applicable to his complaint.

As we have indicated, we affirm the order granting the preliminary injunction.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


text:
      In re MARRIAGE OF BARBARA J. WILEY, Petitioner-Appellee, and GARY W. WILEY, Respondent-Appellant.
    Fourth District
    Nos. 4—89—0764, 4—89—0927 cons.
    Opinion filed June 21, 1990.

      Gerald L. Timmerwilke, of Lewis, Blickhan, Longlett & Timmerwilke, of Quincy, and Stephen M. Komie, of Komie & Associates, of Chicago, for appellant.
    Richard F. Scholz, of Quincy, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal involves the enforcement of a marital settlement agreement. Respondent, Gary W. Wiley, argues that the trial court erred in (1) denying both of his motions for discharge of contempt, (2) enforcing a marital settlement agreement and supplement thereto, (3) awarding attorney fees to petitioner, Barbara J. Wiley, and (4) denying respondent’s petition for reduction or abatement of support and maintenance.

We disagree and affirm.

On August 3, 1988, the Wileys were granted a dissolution of marriage. Also approved and incorporated into the dissolution order was a marital settlement agreement which had been executed by the parties on July 15, 1988. This settlement agreement required Gary to pay Barbara $200 per month for child support and $250 per month for maintenance over a five-year period. In addition, the agreement contained a provision concerning retirement, which stated the following:

“12. RETIREMENT PLANS
It is expressly agreed that the Profit Sharing Plan (401 K) through Gary’s employer in which Bankers Trust Company of New York is the Trustee and an IRA Program (Individual Retirement Account) in the Mercantile Trust & Savings Bank of Quincy in Gary’s name were funded by mutual contributions from the parties hereto. Each agrees that after sufficient information is secured concerning the penalties, the ability to switch beneficiaries, the income tax to be paid and any other information which would impact on the value of said accounts, a fair and equitable settlement will be reached which, in effect, insures to each of the parties hereto approximately the same retirement benefits.”

The agreement also provided for the payment of debts and attorney fees, the maintenance of life insurance, and the distribution of real estate, personal property, stocks, bonds, and vehicles. The last page of the agreement stated the following:

“This Agreement shall operate as a full, complete and final settlement, satisfaction, discharge and adjudication of any and all legal rights, claims or demands of either party against the other, for support, maintenance, attorney fees, distribution or division of the property of the parties, widow’s award, homestead, inheritance or any other interest or money demand which might otherwise than for this instrument be asserted by either party hereto against the other party or the property or estate of such other party.”

In March 1989, a petition to show cause was filed by Barbara alleging that Gary had failed to pay both child support and maintenance, and had failed to assign half of the profit-sharing plan and the IRA to Barbara. In her petition, Barbara also requested attorney fees. Attached to Barbara’s petition was an assignment made on September 7, 1988, to Barbara of half of Gary’s interests in the profit-sharing plan and half of the IRA. Also attached was a supplemental agreement dated September 14, 1988, which stated on its face that it was supplemental to the July 15, 1988, agreement. That supplemental agreement provided in part the following:

“2. Gary will pay from said funds received from Harsco to Barbara one-half of the said funds received from Harsco and one-half of the funds in the IRA account in the Mercantile Trust & Savings Bank of Quincy.
* * *
4. On the completion of distribution, each of the parties will have received one-half of the total of the two accounts, one in Mercantile Trust & Savings Bank of Quincy in an IRA account and one in Bankers Trust Company under a profit sharing plan (401 K) with Harsco, less the amount withheld by Harsco for income taxes and penalties, if any.
5. In the event that the Harsco funds are received but not distributed as herein provided, all of the funds in the Mercantile Trust & Savings Bank IRA account will be distributed to Barbara, but said distribution will in no way affect Barbara’s right to one-half of said funds, which right may be enforced by proceedings ***.”

Also on March 30, 1989, Barbara filed a supplemental petition to show cause, alleging that Gary failed to maintain life insurance. Barbara later filed a petition for an increase in child support and for payment of educational expenses.

The court set the hearing on all of these petitions for April 20, 1989. However, due to the late employment of counsel by Gary, it was rescheduled for April 27, 1989. Gary subsequently filed a motion for continuance. On April 28, 1989, the court granted the motion and reset the hearing for May 25, 1989. In its order, the court required Gary to provide opposing counsel within 10 days with all information concerning his 401(k) retirement program and the Mercantile Bank IRAs.

On May 2, 1989, Gary filed a petition for reduction or abatement of support and maintenance, alleging that there had been a substantial and material change in his financial circumstances. Specifically, Gary claimed that at the time of the dissolution of marriage, he was earning $25,000 a year at Harsco, with a bonus of $12,000. However, since then, he had left Harsco and now earned only $600 monthly.

On May 25, 1989, a hearing was held on all pending matters, and on June 16, 1989, the trial court made the following findings:

“1. The parties executed a valid Marital Settlement Agreement, the terms of which were incorporated into the Judgment Order entered August 3, 198[8]. In that Agreement, paragraph 12, the parties agreed to reach a future settlement as to marital retirement assets upon securing necessary additional information about those assets.
2. On September 14, 198[8], the parties entered into a supplemental Agreement regarding division and payment of the retirement assets. That supplemental Agreement was not filed or specifically incorporated into the Judgment Order, but the parties clearly intended that the second Agreement would be controlling as to their respective rights and obligations in the retirement assets and their distribution. Further, no objection has been raised to petitioner’s attempt to enforce the second Agreement by use of the contempt process, so it is presumed that the parties intended the second Agreement to supplement the Judgment Order. However, the Court is of the opinion that the contempt process is not available for enforcement of the supplemental Agreement because it was never made part of the Judgment Order, and thus its violation was not a violation of an order of court. The petitioner is, however, entitled to her contractual remedies for any breach of the supplemental Agreement occurring before such time as the Judgment Order may be modified by the supplemental Agreement. Alternatively, the petitioner is entitled to have the respondent ordered to perform the supplemental Agreement.
3. The respondent has violated the terms of the supplemental Agreement, in that he received the proceeds of the Harsco 401(k) Plan in December, 1988, invested them in an annuity in his name, and has failed to pay petitioner her contractual share as provided for in the supplemental Agreement. No time period for distribution of the funds was stated in the supplemental Agreement, but the court finds six months’ delay to be unreasonable and unjustified. Accordingly, the penalty provisions of paragraph 5 of that Agreement becomes [sic] operative. Those penalty provisions, agreed to by the parties, negate any claims for prejudgment interest. No evidence was presented as to the value of the retirement assets.
4. As of the date the first Petition to Show Cause was filed, March 30, 1989, respondent was current in his maintenance and child support payments. As of the date of the hearing on that Petition, May 25, 1989, he was $900.00 in arrears.
5. Paragraph 9. A. of the Agreement incorporated in the Judgment Order does not provide that respondent has the obligation to submit to petitioner evidence of his compliance therewith. However, given the conduct of the respondent in failing to comply with other terms of the parties’ agreements, evidence of compliance should be provided to petitioner that respondent is purchasing the required insurance.
* * *
7. The court’s April 28, 1989, Order directed respondent to provide certain information about the Harsco 401(k) and Mercantile IRA accounts to petitioner’s attorney within ten days. He has failed to provide that information without just cause, and the failure is therefore found to be willful.
8. Respondent has failed to prove that he is entitled to a reduction or abatement of maintenance and/or child support. The court finds that respondent’s testimony is not credible as to his current circumstances. The timing of the loss of his last full-time employment, where his present wife was his employer, and his actions regarding distribution of the parties’ retirement assets, among other things, taint respondent’s testimony. In any event, respondent voluntarily entered into the marital settlement Agreement, and should be held to the bargain he made with petitioner as to maintenance, especially in view of the assets owned by respondent.
9. No evidence was presented as to the amount of attorneys’ fees incurred or paid by the parties.”

The court then denied in part and granted in part the petition to show cause, explaining as follows:

“The respondent is not found to be in contempt for violation of the supplemental Agreement, but is directed to forthwith pay to petitioner one-half of the proceeds of the Harsco 401(k) plan, providing to petitioner’s attorney the information about that plan per the Court’s order of April 28, 1989; further, petitioner is awarded and assigned all of the parties’ interests in the Mercantile IRA certificates of deposit.
Respondent is found to be in contempt for his violation of the order of April 28, 1989, and may purge that contempt by compliance with this order and payment of any attorney's fees reasonably incurred by petitioner in connection with these proceedings.
Respondent is found to be in contempt for failure to pay maintenance and child support as ordered, and a judgment for $900.00 is entered in favor of petitioner and against respondent. Respondent may purge the contempt by paying the arrearage to the Clerk of the court forthwith, and by payment-of any attorney’s fees reasonably incurred by petitioner in connection with these proceedings.
The prayer for payment of interest is denied.
B. The Supplemental Petition to Show Cause is denied, but respondent is directed to provide petitioner with evidence of payment of the current premium for the life insurance forthwith, and then annually within fourteen days following the premium due date.
C. The Petition for Increase in Child Support is denied.
D. The Petition for Reduction or Abatement of Maintenance and Child Support is denied.”

On June 21, 1989, Barbara petitioned for a hearing for the purpose of producing evidence on the award of attorney fees.

On July 5, 1989, Gary filed a motion, requesting, inter alia, the court to reconsider both its ruling concerning the alleged failure to comply with the supplemental agreement and its finding of contempt concerning his failure to pay child support and maintenance. The motion also requested that the court reconsider the award of attorney fees because no evidence had been presented at trial concerning the fees and no request to reserve ruling on the fees had been made.

The hearing on Gary’s motion was held on July 27, 1989. At that hearing, Gary argued that distribution of the retirement funds could not take place until both parties’ incomes had been determined for 1988. Gary also argued that he should not be held in contempt on the issue of child support and maintenance because of his loss of income and change of employment. Gary claimed that he did not quit his job in order to avoid his obligations.

In regard to attorney fees, the court noted that the applicable statute provided that when a party is found to be in contempt, the other party is entitled to an award of fees. The court found that Gary was responsible for his failure to pay both maintenance and child support.

On July 27, 1989, the court ordered Gary to provide information concerning the 401(k) plan within 14 days or to personally appear at the next hearing, which was allotted for August 14, 1989. The court also set the hearing on attorney fees on that date.

On August 14, 1989, the respondent failed to appear, and a body attachment was issued. Bail was fixed in the amount of $5,000. Respondent was again ordered to appear on September 1, 1989.

On August 22, 1989, the court entered an order in reconsideration of its order of June 16, 1989. In this order, the court found that Gary offered no satisfactory evidence for his delay in paying Barbara her share of the retirement funds. In support of its conclusion, the court found Gary’s excuse for not paying the money — for the last six months, his accountant had been compiling an opinion as to the tax consequences of the retirement fund — to be unpersuasive. The court also found that respondent failed to provide the retirement-fund documentation as ordered. In short, the court found that Gary had not only acted in bad faith, but that he also indicated no willingness to change his future behavior. The court then ordered the contempt findings with respect to the delay and violation of its production orders to stand.

On September 1, 1989, Gary again failed to appear in court. At this hearing, Gary’s attorney tendered $2,500 from Gary’s present wife to satisfy Gary’s maintenance and child support obligations. In addition, Gary’s counsel tendered documentation concerning the retirement plan to Barbara. The court found that these.actions partially purged Gary of contempt, noting that Gary had not yet provided all information as ordered. The court then ordered Gary to be present at the next hearing and to provide full documentation in regard to (1) the 401(k) plan, (2) the Mercantile IRA account, (3) the annuity of January 9, 1989, issued by American Mutual Life Insurance Company, and (4) any and all matters in dispute in regard to the case.

On September 11, 1989, Gary filed a motion for discharge of contempt, arguing that because all of the support and maintenance payments were current and all of the documentation concerning the annuity and IRAs had been provided as directed, he had purged himself of contempt. Gary also requested that the contempt proceedings be dismissed and that the court enter an order terminating all proceedings.

The hearing on Gary’s motion was held on September 15, 1989. Again, Gary failed to appear. Over an objection by Gary’s counsel, Barbara presented evidence concerning the amount of money in the annuity and retirement funds. The court denied Gary’s motion for discharge of contempt, noting that Gary had failed to appear as ordered and failed to provide evidence of insurance coverage. The court then entered a judgment in favor of Barbara in the amount of half of the proceeds of the retirement fund.

Also on September 15, 1989, the court considered evidence on attorney fees. Barbara’s counsel presented a bill itemizing the time he spent in enforcing the dissolution order. He then testified that his hourly rate was $75 and that he charged an additional $1,500 because of the effect the case had on his “general welfare and nerves.” He noted the extreme agitation involved and the unusual nature of the case. On cross-examination, Barbara’s counsel acknowledged that he had not broken down the charges with respect to what services were provided as a direct result of the contempt proceedings.

A second attorney testified in support of the fees requested by Barbara’s attorney. He testified that on three occasions he had imposed a similar additional charge on his clients. He stated that he imposed this charge only in extreme cases.

Barbara also testified on the subject of fees. She stated that she did not know about the extra charge until seven days prior to the hearing. She also stated that she first learned of the amount that day. The court awarded the entire amount requested, including the additional charge of $1,500.

A second motion for discharge from contempt was filed on October 2, 1989, and at the hearing on that motion held on October 3, 1989, Gary again failed to appear. The court noted that the contempt finding was for nonappearance, failure to follow previous court orders, and failure to produce documents.

On October 27, 1989, the court entered two separate orders. The orders consolidated previous rulings and denied both of Gary’s motions for discharge of contempt.

A motion to reconsider was filed on November 20, 1989, denied on November 21, 1989. Gary appeals the orders entered on October 27 and November 21, 1989.

Gary first argues on appeal that he should not be held in contempt for failing to pay petitioner’s attorney fees or for failing to divide or distribute retirement funds. The basis of respondent’s contention lies in the trial court’s order of October 27, 1989, where the trial court stated the following:

“The provisions of the June 16, 1989, Order regarding purging of contempt by payment of petitioner’s attorney’s fees and the Harsco funds due petitioner remain in effect. Those amounts are ordered paid forthwith, in view of their availability from the annuity purchased by respondent.”

Gary maintains that because he was not ordered by the court to pay half of the retirement funds to petitioner in the parties’ original dissolution order, he cannot be held in contempt of court for failing to do so.

Gary’s argument misrepresents the court’s action. Gary was not held in contempt for failing to pay Barbara’s attorney fees or for failing to divide or distribute retirement funds. Instead, these were two steps specified by the court that Gary could take to purge the contempt in which he was found as a result of his failing to perform other acts that he had been ordered to perform.

Paragraph 12 of the marital settlement agreement pertaining to retirement benefits stated that, after sufficient information was secured concerning the penalties, the ability to switch beneficiaries, the income tax to be paid, and any other information which would impact on said accounts, a fair and equitable settlement would be reached which insures each of the parties approximately the same retirement benefits. This agreement was specifically incorporated into the judgment of dissolution and, as a result, can be enforced.

Upon careful review of the record, we find that Gary never complied with paragraph 12. The trial court repeatedly ordered Gary to supply information regarding the retirement funds, but Gary failed to do so. In addition, the import of the order is clear — that the retirement funds are to be divided and Barbara’s share distributed to her. Nevertheless, Gary did not give Barbara her share of the retirement funds.

Gary next argues that the trial court erred in enforcing the marital settlement agreement and supplement thereto because the supplemental agreement was never incorporated or approved by court order.

In its order of October 27, 1989, the trial court stated the following:

“A judgment for $11,741.15 is entered in favor of petitioner and against respondent, representing petitioner’s share of the Harsco retirement funds. Petitioner is awarded one-half of the Mercantile Trust and Savings Bank accounts No. 001—3—390—2 and No. 001—4—082—3 ($1633.85), provided, however, that she may elect to receive the entire amounts of those accounts, which would reduce the amount of the judgment for the Harsco funds by $1633.85.”

Further, the marital settlement agreement provided that after sufficient information was secured concerning the penalties, the ability to switch beneficiaries, the income tax to be paid, and any other information which would impact on the value of the 401(k) and IRA accounts, a fair and equitable settlement would be reached which insured to each of the parties approximately the same retirement benefits. This agreement was incorporated into the dissolution order. The supplemental agreement dated September 14, 1988, however, was not so incorporated. It read as follows:

“Gary will pay from said funds received from Harsco to Barbara one-half of the said funds received from Harsco and one-half of the funds in the IRA account in the Mercantile Trust & Savings Bank of Quincy.
*** [L]ess the amount withheld by Harsco for income taxes and penalties, if any.”

Additionally, the marital settlement agreement further provided for a full, complete and final settlement, satisfaction, discharge, and adjudication of any and all legal rights, and distribution or division of the property of the parties.

The trial court did not err in requiring Gary to pay half of the retirement proceeds to Barbara. The court’s order was not inconsistent with the marital settlement agreement. Because the court found that Gary’s refusal to pay Barbara her portion of the retirement funds (as agreed upon in the marital settlement agreement) was in bad faith, the court itself provided a full, complete, and final settlement of the distribution and division of that property.

Gary also claims that the trial court erred in awarding and assessing attorney fees to Barbara. Specifically, Gary maintains that the trial court erred in refusing to hear evidence on Barbara’s ability to pay her own fees, in failing to make a distinction in its fee award between time spent on contempt versus noncontempt issues, and in allowing $1,500 to be added to the attorney fees awarded to petitioner.

Section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 508(b)) provides that a court shall order a spouse to pay a reasonable amount for the costs and reasonable attorney fees incurred by the prevailing spouse in connection with the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification.

Accordingly, because Gary was found in contempt for failing to comply with the dissolution order, the trial court correctly found that Barbara was entitled to an award for attorney fees incurred in connection with the enforcement of that order. These fees are to be awarded even absent a showing of that party’s inability to pay the fees and the other party’s ability to pay. (In re Marriage of Cierny (1989), 187 Ill. App. 3d 334, 348, 543 N.E.2d 201, 211.) An award of attorney fees will not be overturned absent an abuse of discretion. Baker v. Baker (1990), 193 Ill. App. 3d 294, 303, 549 N.E.2d 954, 959.

With regard to Gary’s contention that the trial court failed to make a distinction in its fee award between time spent on contempt versus noncontempt issues, we find it unsupported by the record.

In its order of October 27, 1989, the trial court made the following finding:

“Evidence was presented regarding the attorney fees incurred by petitioner in prosecuting the post-judgment proceedings. 5.7 hours were spent by petitioner’s working on the case immediately following the Judgment for Dissolution but before the respondent began overtly hedging on his obligations thereunder, through November 3, 1988. 12.7 hours were spent thereafter through the May 25, 1989, hearing. 19.7 more hours were spent through the date of this hearing. The total of 38.1 hours was necessarily incurred in petitioner’s pursuing the completion of the settlement between the parties and attempting to force the respondent to comply with its terms. From respondent’s actions, it appears he never intended to comply with the agreement signed on September 14, 1988. This bad faith prompts the Court to assess petitioner’s attorney fees in total against the respondent as a sanction for the contempt. The total reasonable and necessary fees thus incurred is $4315.59.”

Based upon a review of the record, and, in particular, a review of the bill submitted by Barbara’s attorney, we find that the trial court did not abuse its discretion in awarding attorney fees to Barbara.

Finally, with regard to the award of a $1,500 supplement to the attorney fees which normally would be awarded to Barbara, we find this supplemental award to be reasonable and within the trial court’s discretion. At the hearing on attorney fees, a second attorney testified that charges of this kind, albeit unusual, are used in cases like the present one, which involve “extreme agitation” for the attorney handling the case. In light of the many complex and time-consuming issues involved in this case, we do not find the $1,500 supplemental award to be an abuse of discretion.

Last, Gary argues that the trial court erred in denying his petition for reduction or abatement of support and maintenance. Specifically, Gary claims that because he incurred a material and substantial change in circumstances affecting his ability to pay child support and maintenance in accordance with section 510 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510), he is entitled to a reduction or abatement of that support and maintenance.

A determination regarding modification of child support rests in the sound discretion of the circuit court, and this court will not interfere with the exercise of that discretion in the absence of its abuse. (In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 690, 548 N.E.2d 139, 142.) Illinois cases have held that economic reversals as the result of changes in employment, if made in good faith, may constitute a material change in circumstances sufficient to warrant a modification of a child support order. (Hardy, 191 Ill. App. 3d at 690, 548 N.E.2d at 142.) In determining whether a change in status was made in good faith, the crucial consideration is whether the change was prompted by a desire to evade financial responsibility for supporting the children or otherwise to jeopardize their interests. Hardy, 191 Ill. App. 3d at 690, 548 N.E.2d at 142.

In its order of June 16, 1989, the trial court found that Gary failed to prove that he was entitled to a reduction or abatement of maintenance and child support. In so holding, the court found that Gary’s testimony about his circumstances was not credible and concluded that Gary’s job change was not made in good faith. The court held that he was trying to evade his responsibilities.

Because the trial court is in the best position to observe the demeanor of the witnesses and to asses their credibility, we are unwilling to second-guess the trial court’s determination of which witnesses are believable and which are not. We find no abuse of discretion in the trial court’s denial of Gary’s petition for reduction or abatement of support and maintenance.

Before concluding, we wish to commend the trial court for the obvious care it used and time it expended in preparing its written orders in this case. Our task of reviewing these complicated proceedings was greatly facilitated by the court’s written orders.

For the foregoing reasons, the circuit court of Adams County is affirmed.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.