text:
    FLOYD THOMAS ASHLEY, Plaintiff-Appellant, v. OSMAN & ASSOCIATES, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2059
    Opinion filed April 29, 1983.

      Allan G. Levine, of Chicago, for appellant.
    Michael J. Gill and Charles J. Risch, both of Isham, Lincoln & Beale, of Chicago, for appellee Robert Jaydos & Associates.
    French, Rogers, Kezelis & Kominiarek, EC., of Chicago (Algimantas Kezelis and Lew J. Campione, of counsel), for other appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiff, an employee of Hans Rosenow Roofing Company, Inc., filed a two-count complaint seeking damages for injuries sustained when he fell at an office building construction site during the course of his employment. Count I of the complaint alleged that defendants, Osman & Associates, Inc. (general contractor), Robert Jaydos & Associates (architects), and Charter Properties, Inc. (owner of the office building complex), were guilty of violations of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) (the Act) and count II alleged common law negligence. Pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), defendants moved for dismissal of count I of the complaint. The motion was granted. Thereafter, pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), plaintiff was granted his motion for an express finding to allow immediate appeal of the dismissal of count I. Plaintiffs timely appeal followed. The issues before this court are: (1) whether plaintiff was using a scaffold, support or device within the purview of the Act at the time he fell and was injured, and (2) whether carrying materials and/or equipment at a construction site is an activity covered by the Act. For the reasons that follow, we reverse the trial court’s decision.

In August 1980, plaintiff and defendants were engaged in the construction of an office building complex in Wheeling, Illinois. The record indicates that, at that time, the ground at the construction site was ungraded and covered in deep mud due to an abnormal amount of rainfall. As a result, it was impossible for vehicles of any kind to make deliveries directly to the buildings under construction. Instead, materials and equipment had to be deposited as close to the buildings as conditions would allow, at which point workmen would then carry the materials and equipment to wherever they were needed. To prevent workmen from sinking into the mud, planks and concrete forms were set up as walkways across the site.

On August 12, 1980, while plaintiff, a roofer, was walking on one of the walkways, carrying a 200-pound propane tank to the building where he was working, the planking beneath him slipped out from under his feet and he fell to the ground with the propane tank on top of him. As a result, plaintiff suffered severe muscle and nerve damage.

Opinion

The principal issue of this appeal involves the scope of section 1 of the Act, which provides:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1979, ch. 48, par. 60.

The purpose of the Act is to protect persons engaged in extrahazardous occupations on or near a construction site. In order to effectuate this benevolent purpose, the Act is to be liberally construed. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573.) However, judicial construction should not be so broad as to have the Act cover all construction-related injuries. (St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 522, 439 N.E.2d 12.) Rather, particular attention must be directed to the special circumstances surrounding each injury-causing accident.

The elements of a cause of action under section 1 of the Act include the following: (1) the device involved must be one listed in the Act; (2) the device involved must be used to complete the construction of a building or other structure within the Act; (3) the device must be unsafe, or not safely placed or operated (or there must be a failure to provide such a device); (4) those in charge of the work must have wilfully violated the Act; and (5) plaintiff’s injury must be proximately caused by defendant’s violation. (Ring, The Scaffold Act: Its Past, Present and Future, 64 Ill. B.J. 666, 670 (1976).) The pending appeal involves only the first element, whether the planks and concrete forms erected as walkways are within the scope of the Act.

Defendants argue that planks and boards laid flat on the ground do not constitute a “scaffold” within the meaning of the Act. In support of their position, defendants rely on Louis v. Barenfanger (1968), 39 Ill. 2d 445, 451, 236 N.E.2d 724 (section one covers construction work required to be done beyond a person’s ordinary reach); Juliano v. Oravec (1972), 3 Ill. App. 3d 835, 840, 279 N.E.2d 376 (subflooring is the same as a scaffold in that both are used for above-ground support); and Spiezio v. Commonwealth Edison Co. (1968), 91 Ill. App. 2d 392, 405-06, 235 N.E.2d 323 (“if the apparatus was intended to be and was put to temporary use to provide footing or support above the ground or floor *** it was a scaffold ***.”) In adopting this position, defendants focused exclusively on the term “scaffold” to the exclusion of hoists, cranes, stays, ladders, supports or other mechanical contrivances, which are also expressly listed in the Act. It is precisely this narrow focus which we find at error in defendant’s argument.

As this court stated in Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090-91, 428 N.E.2d 1051, “[I]f we construe the other terms [of the Act] as exact synonyms of ‘scaffold,’ *** we judicially erase terms that the legislature thought important enough to include. Such a result is illogical and unnecessary.” In reaffirming our position in Ur-man regarding use of the terms, we turn our focus away from the term “scaffold” and direct it to the term “support.”

Because the Act itself does not define the terms listed in section 1, it has become a necessary function of the courts to do so. As a result, a three-prong judicial guideline has evolved over the years which, when applied to a given fact situation, facilitates the delineation of the scope of section 1. First, courts inquire into the intended use of the device in question at the time of the injury. Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213 (worker fell off a roof while installing insulation and skylights. Held: roof was within the meaning of section 1 because at the time of the injury, the roof was being used as the only support for the worker); Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011 (while inspecting a building under construction, a city inspector tripped over debris strewn on a concrete floor. Held: floor was not within the meaning of section 1 because it was being utilized solely as a completed floor); Acquaviva v. Sears Roebuck & Co. (1979), 68 Ill. App. 3d 588, 386 N.E.2d 381 (in an effort to start the mortar mixer, a worker fell while standing with one foot on top of an empty wheelbarrow and the other on top of the mortar mixer. Held: the mortar mixer was within the meaning of section 1 of the Act because it was employed as a necessary support in the performance of the worker’s task); Swendsen v. Brighton Building & Maintenance Co. (1976), 41 Ill. App. 3d 930, 355 N.E.2d 164 (worker was injured when he fell off a stack of pilings at a construction site. Held: pilings were not within the scope of the Act because they were not intended for use as a scaffold or support).

Second, courts inquire into whether the injury has some connection with the hazardous nature of the device in question. For example, in Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011, the unfinished character of the floor had no connection with the inspector’s injury. Instead, the inspector had tripped over debris and fallen, hitting himself on a reinforced steel column. Similarly, in Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607, plaintiff foreman was inspecting a building under construction when he tripped, fell against a ladder, and then fell through the open unbarricaded baffle chamber to the basement 17 or 18 feet below. The court held that neither the floor nor the ladder were within the meaning of section 1 in this particular fact situation. First, the floor was not being used as a working platform, a scaffold or for the purpose of completing construction. Second, although a ladder is expressly listed in section 1 of the Act, the use of the ladder in this situation takes it out of the Act. The foreman did not fall off of the ladder. Rather, he fell into it while trying to regain his balance. Thus, the hazardous nature of the ladder was not the cause of the foreman’s injury. As the court stated, “The ladder may well have been placed or left in the baffle area in a negligent manner and may have contributed to plaintiff’s injury, but the testimony shows no violation of the Structural Work Act.” Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371.

Finally, courts inquire into the element of danger involved in the use of the support device and whether this was the danger which the legislature was attempting to alleviate in enacting the statute. Louis v. Barenfanger (1968), 39 Ill. 2d 445, 450, 236 N.E.2d 724.

Application of the guideline to the particular facts at bar indicates conclusively that the planks and concrete forms erected on the construction site as temporary walkways were supports within the meaning of the Act. In reaching this determination, we looked first to the intended use of the planks at the time of the injury. Defendants argue that the planks and cement forms were erected across the construction site for use as a walkway and nothing more, thus placing the situation squarely within the precedential parameters of Quinn and Tenenbaum. Plaintiff, on the other hand, acknowledges that the planks were erected as a walkway, but further adds that the walkway was intended to prevent the workmen and their materials from sinking into the mud. It is undisputed that the construction site was ungraded, wet and covered in mud so deep that plaintiff, at one time, sunk up to the top of his hip boots. Plaintiff’s accident itself further illustrates the severity of the slippery conditions. Thus, it is our opinion that as a result of the unusually muddy conditions, planks and concrete forms were erected as supports specifically intended to prevent the workmen and their materials from sinking into the mud. In so finding, we emphasize that our decision is premised on the particular ground conditions which existed at the time of plaintiff’s injury.

The second element of the guideline is whether there was a connection between the injury and the hazardous nature of the supports. At the outset, we recognize that there is nothing inherently hazardous about planks placed on the ground. In our case, however, the planks became hazardous when they were placed, unanchored, on the slippery, ungraded, muddy surface for use as a walkway by men carrying a variety of construction materials and equipment. Because plaintiff was injured when the planking slipped on the muddy surface, there is no question that the connection criterion has been satisfied.

The last element of the guideline is whether the danger involved was intended to be covered by the Act. An analysis of this element will concomitantly resolve defendants’ allegation that plaintiff was not engaged in the kind of extrahazardous activity the Act is designed to protect. In support of their position, defendants rely on Crafton v. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817. In Crafton, plaintiff, an ironworker, was loading structural steel onto a tractor which was equipped with a 30-foot side-boom hoist. The tractor was used to haul the steel to the construction site several hundred yards away. The area between the storage yard and the place of construction was covered in deep mud, ranging in depth from six inches to two feet. After he loaded the tractor, plaintiff started to climb on the back of it for a ride to the site. Before plaintiff was seated, the operator put the tractor in reverse, which caused it to lurch backward, throwing plaintiff off the rear. The Crafton court held that the facts of the case did not fall within the scope of the Act because the hoist which was attached to the tractor had nothing to do with the injury. Instead, the injury was caused by the lurching of the tractor, which in itself was not a “scaffold, hoist, crane, stay, ladder, or support.” In making its determination, the Crafton court did not address the issue of whether transporting materials at a construction site was an activity covered by the Act. Therefore, we find Crafton inapplicable to the instant case.

However, we do find McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573, applicable to the instant case and also dispositive of the transporting issue before us. In McNellis, plaintiff’s deceased husband received fatal injuries while unloading component parts of a steam generator from a railroad car on Commonwealth Edison’s property. The unloading area was situated approximately one-half mile from the actual building site. In upholding the appellate court’s decision that the work being done by the decedent at the time of his injury was a Structural Work Act activity, the supreme court stated, “ ‘[T]he record fairly demonstrates that the unloading in question was an integral part of the entire operation of erecting the generating units.’ ” (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 150.) Unlike the case at bar, in McNellis, the decedent’s contract provided that the general task of erecting generators would necessitate the incidental task of unloading. However, we do not find the lack of testimony regarding such a provision in the present case to be relevant to our decision. Rather, we look to plaintiff’s specific function at the site and the conditions of the site in making our determination as to whether unloading was an integral part of plaintiff’s duties. Unequivocally, the facts before us indicate that it was. In order for plaintiff to perform his duties as a roofer, he needed certain materials and equipment because of the muddy site conditions, that material and equipment could not be delivered directly to the site; it had to be carried from the perimeters of the site via plank walkways. Defendants would have us believe that plaintiff was a roofer while at the building itself, and a delivery man (hence, not covered by the Act) when it became necessary for him to carry equipment from his truck to the building. This is an untenable contention and one that runs counter to the very purpose of the Act.

Therefore, premised on the special circumstances at bar regarding site conditions and intended use of the planks, we reverse the trial court’s decision and remand the cause to the trial court with directions to reinstate the Structural Work Act count of plaintiff’s complaint and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

LORENZ and MEJDA, JJ., concur.

      Although defendants have indicated some concern regarding incorporating count II’s allegations into count I when no such references were made in the complaint itself, we note that this court is now at the pleading stage and, consequently, has the entire record for review, including motions for dismissal and supporting memoranda of law.

      Two dictionary definitions of “support” are: (1) “to bear the weight of, especially from below;” and (2) “to hold in position to prevent from falling, sinking or slipping.” (American Heritage Dictionary 1293.)

      While our analysis focuses on use of the planking as a support, we note that plaintiff also has a cause of action under the Act for defendants’ failure to provide adequate braces for the planking which would have prevented its shifting on the muddy surface. Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724; Navlyt v. Kalinich (1970), 125 Ill. App. 2d 290, 260 N.E.2d 855.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    CLARK OIL & REFINING CORPORATION, Plaintiff-Appellant, v. DWIGHT A. GOLDEN et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2963
    Opinion filed April 22, 1983.

      Susan Margaret Vance and Henry C. Krasnow, both of Mandel, Lipton and Stevenson, Ltd., of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Fredric D. Tannenbaum, Assistant Attorney General, of counsel), for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order of the trial court affirming a decision of the Illinois Human Rights Commission that plaintiff violated section 3(a) of the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 853(a)) in that it discriminated against Dwight A. Golden (defendant) on account of his race with respect to his discharge and the terms and conditions of his employment. Plaintiff contends that defendant failed to (a) establish a prima facie case of discrimination by showing that at the time he was fired he was a competent employee, and (b) prove that its reason for firing him— poor job performance — was merely a pretext to cover up race discrimination.

Defendant began his employment with plaintiff in November 1973 as a product loader, but was promoted to a number three chemical operator (3 operator) in January 1974 and later to a number two cumene operator (2 operator) in December 1977. As an operator, defendant was responsible for monitoring tanks and pumps used in the refining of oil products to prevent overflow and spillage. He was fired on June 2, 1978, for “reasons including, but not limited to excessive absenteeism, sleeping on the job, and having caused three tank spills in May, 1978.” In his charge filed before the Illinois Fair Employment Practices Commission (FEPC), defendant alleged that he was fired because of his race and not because of his work performance.

The FEPC issued a complaint against plaintiff, and at a hearing thereon before an administrative law judge, defendant testified that he was the first and only black employee in the chemical unit of plaintiff’s plant in Blue Island, Illinois (the plant). Each shift in the unit was staffed by a number one operator, who monitored the level of chemicals in each tank within the unit from a central location, and three number 2 or 3 operators who supervised 25 to 30 tanks moving chemicals from one to another and monitoring the level of product therein, usually by checking gauges on the outside of each tank. The four operators worked independently, but would help each other. During the 4V2 years that he worked as an operator, he caused six spills, for all but one or two of which he was either formally reprimanded or suspended without pay. When he was first promoted to 3 operator, the training was to come mostly from co-workers, but they refused to teach him. He complained about this to his supervisor, Delbert Gibson, who took no action other than to tell him to “keep trying.” After two or three weeks of training, Gibson reviewed his work and demoted him to product loader on the basis that he was not qualified for the position of 3 operator. He (defendant) immediately went to Bert Foster, the assistant plant manager, and complained of his inadequate training, which resulted in his demotion. Foster ordered Gibson to personally train him, and Gibson, although angry, spent three days doing so. After his reinstatement as a 3 operator, his co-workers were still hostile and uncooperative, and anonymous letters containing racial slurs and veiled threats appeared on his locker every three or four days. When he complained, Gibson responded that “we can’t make a lot of people like you,” but promised to try to put a stop to the letters. Gibson placed a note in the daily instruction book ordering a stop to the letters, but did not threaten any disciplinary action. The letters finally stopped four or five months later, but his co-workers still refused to help him, although they assisted each other. He was cited for sleeping on the job, and did have difficulty during the first two years because he was not used to shift work. However, sleeping on the job was common practice among all of the operators, and the foremen would try to avoid catching the others by knocking or making noise before they entered the area, while making an effort to catch him (defendant). He complained about this disparate treatment to Fred Davidson, one of the foremen. His promotion to 2 operator necessitated a change in shift, and he immediately began having problems with Norman Duckworth, the number one operator on the new shift. He complained to Gibson about Duckworth’s racial slurs, but his requests for a shift change, made two or three times, were denied. After a confrontation with Duckworth in March 1978, Duckworth began carrying a gun to work, and although he (defendant) reported this to Gibson, no disciplinary action was taken. Spills occurred at the plant every month or two and were generally caused by the negligence of an operator, although co-workers could sabotage one another by opening a valve after it had been set. This happened to him once, but when told of the incident, Gibson took no action. He admitted that he discussed his absenteeism with Gibson and Foster after receiving a letter about it in September or October of 1977; that he spilled acetone, a flammable liquid, in January 1975; that he had three spills in May 1978; that spills can be prevented; that he did not report to the assistant plant manager that Duckworth was carrying a gun; and that he never heard Gibson make any racially derogatory remarks.

Edward Scheutzow testified that he worked for plaintiff from June 1970 until January 1976. He was first assigned to the chemical unit, where he worked as a truck loader for three months before his promotion to 3 operator. In October 1973, he was transferred to the resin unit. While employed in the chemical unit, he caused the following spills: phenol and crude oil in the fall and winter of 1970; phenol in the summer of 1971; two phenol spills during an eight-hour shift in 1972; acetone in the summer of 1972; and acetone again in the summer of 1973. He had a number of smaller spills which he did not report. He became notorious for spilling, and both his foreman and Gibson knew of the seven spills described; however, his only discipline was being “yelled at,” and he never received a written reprimand or a suspension. On one occasion, Gibson personally informed him that a tank in his area was overflowing, but merely commented that given his history of spills, he (Scheutzow) would have to be more careful. On the average, a spill occurred every two months at the plant, but there might be two or three in one week, then none for several months. Sleeping on the job was a common occurrence at the plant, because there was a lot of “dead time”; but, in general, workers were not disciplined for sleeping. He (Scheutzow) was caught and reprimanded for sleeping, but he believed no formal record was made of the incident because he never received a copy of it. The only way an operator can be trained for the job is learning from existing operators. Defendant was commonly called “dumb nigger” by his co-workers. He (Scheutzow) admitted that he did not enjoy working at the plant and was glad to leave, but he left amicably and of his own volition.

Earl Rousseau, director of employee relations at the plant, testified for plaintiff that his position entailed maintaining employee records, but he would have no knowledge of any infractions unless the supervisor chose to report them to him. There was an “affirmative action policy” in effect at the plant which was communicated to supervisory personnel, posted on bulletin boards, and explained to prospective employees. When an infraction occurred, an employee usually received an oral warning the first time, and thereafter a written record was made. He recommended that defendant be fired after reviewing his record. He talked to defendant approximately five times concerning work-related problems, but the derogatory notes and problems with Duckworth were not brought to his attention. He admitted that a supervisor had discretion in notifying him of any infraction; that there were no written policies on termination because of sleeping, spilling, or absenteeism, although a policy that three unexcused absences would result in termination was adopted on April 1, 1978; and that when defendant complained to him in 1974 or 1975 about discrimination, he (Rousseau) discussed the problem with Gibson, the assistant plant manager, and the plant manager.

Defendant, called as an adverse witness, further testified that he was not disciplined for a spill which occurred on May 9, 1978, but received a three-day suspension for a spill on May 17, 1978. At that time, he was having personal problems and was engaged in a personal telephone conversation when one spill occurred. He left work because of illness on May 4 and May 15, 1978. In December 1977, he spilled caustic solution, and while Gibson recommended a three-day suspension, he was not suspended after he filed a grievance. None of the spills involved finished products, and spills of finished product are more serious because the materials and time involved in manufacture cannot be recovered. His last three spills did not involve flammable material.

Delbert Gibson, chemical unit supervisor at the plant, testified that he was responsible for training and supervising foremen, chemical operators, and other workers within the unit. At a 1974 meeting, the plant manager ordered that everyone be treated equally, regardless of race or sex, and he (Gibson) followed that directive in evaluating employees. Defendant complained to him about receiving racially derogatory notes, and the letters stopped after he (Gibson) wrote a note in the daily instruction book that such behavior was “horseplay, childish, and uncalled for.” Defendant did not tell him about Duck-worth carrying a gun or complain about co-workers calling him names. When a new operator started, he was first given books to read, then received on-the-job training from the other operators on his shift for two or three weeks. Additional training was received on promotion from 3 operator to 2 operator. He wrote a warning to defendant in regard to his frequent spills, telling him that he had to improve his work, and talked to him several times about his absenteeism. On May 17, 1978, he heard defendant paged several times to check a steam generator, and he (Gibson) went out to look for defendant, at which time he saw a tank overflowing in defendant’s area. He could never trust defendant to do what he was supposed to do, and he (defendant) did not seem to want to learn the operation. He (Gibson) rejected defendant after a month, but he was reinstated after complaining, and he (Gibson) spent three full days training him personally. Approximately six spills occur each year at the plant, and a spill of unfinished product is just as serious as a spill of finished product, although a spill of flammable material is more serious. He admitted that the most important training comes from co-workers; that the directive to treat everyone equally was in response to defendant’s complaints about his training; that he did not tell his supervisors about the notes defendant was receiving; that defendant did complain of problems with Duckworth, but he did not recall that it was put in terms of racial harassment; and that he recommended defendant’s promotion to 2 operator in December 1977.

The administrative law judge concluded that plaintiff treated defendant differently from white employees in making formal note of his infractions more frequently and in imposing more severe penalties on him for the same or similar offenses; that plaintiff did not take adequate action to reduce or eliminate racial hostility directed at defendant; and that plaintiff discriminated against him on account of race with respect to his discharge and the terms and conditions of his employment. Her findings and conclusions were adopted by the Illinois Human Rights Commission (successor of the FEPC), and the trial court found that its decision was not against the manifest weight of the evidence. This appeal followed.

Opinion

Plaintiff first contends that defendant failed to establish a prima facie case of race discrimination. It maintains that defendant did not prove he was a competent employee as required by Weigel Broadcasting Co. v. Hammer (1978), 67 Ill. App. 3d 805, 384 N.E.2d 811. Defendant argues that, under the circumstances of this case, he was only required to prove that he was as competent as a similarly situated white employee who was not fired.

The board outlines of a prima facie case of race discrimination were first articulated in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, where the plaintiff brought suit under title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000e et seq. (1970)), alleging that he was denied employment because he was black. The court held that the complainant under title VII has the burden of showing “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants [sic] from persons of complainant’s qualifications.” (411 U.S. 792, 802, 36 L. Ed. 2d 668, 677, 93 S. Ct. 1817, 1824.) This same standard is applicable to charges brought under the Illinois Fair Employment Practices Act (Schoneberg v. Grundy County Special Education Cooperative (1979), 67 Ill. App. 3d 899, 385 N.E.2d 351) and has been adapted, with minor modifications to suit the particular facts and circumstances, to cases involving failure to promote (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 207, 101 S. Ct. 1089), discharge (Flowers v. Crouch-Walker Corp. (7th Cir. 1977), 552 F.2d 1277), and retaliatory discharge (Weigel Broadcasting Co. v. Hammer (1978), 67 Ill. App. 3d 805, 384 N.E.2d 811). In each case, the complainant must present evidence that he was qualified for the position in question.

In the instant case, defendant attempted to satisfy the qualification element of his prima facie case by comparing his work performance with that of another employee who was not discharged. He presented evidence that Scheutzow caused seven chemical spills during his 3V2 years as an operator in the chemical unit, while he (defendant) caused six spills in 41/2 years. Both men had been caught sleeping on the job. Defendant did have some difficulty with absenteeism approximately seven months before his discharge, but there is no evidence of Scheutzow’s record of absenteeism. However, it appears that this problem of defendant was corrected to plaintiff’s satisfaction since no further incidents appear on the record and defendant was thereafter promoted. (Compare Flowers v. Crouch-Walker Corp. (7th Cir. 1977), 552 F.2d 1277, 1283 (when unsatisfactory work is corrected and the employer thereafter accepts the complainant’s work without express reservation, there is sufficient showing that he was qualified to sustain his prima facie case).) Plaintiff does not contend that such comparative evidence is insufficient to establish that an employee is competent; instead, it maintains that Scheutzow’s performance is irrelevant because he was a 3 operator, whereas defendant was a 2 operator when the majority of his spills occurred. Thus, resolution of this issue is dependent upon a determination of the similarity between the two positions.

Plaintiff argues that since there are no disputed facts on this issue, the agency’s implicit conclusion that the positions are similar and that defendant therefore established a prima facie case of discrimination, is a legal conclusion which we must review without deference to the agency’s determination. (See Local 7-641, Oil, Chemical & Atomic Workers International Union v. Department of Labor (1982), 106 Ill. App. 3d 476, 435 N.E.2d 1192.) However, the cases it cites in support thereof actually favor defendant’s position that the agency’s decision in this instance was a question of fact which we may not disturb unless it is contrary to the manifest weight of the evidence. (Board of Education v. Illinois Fair Employment Practices Com. (1979), 79 Ill. App. 3d 446, 398 N.E.2d 619; United Air Lines, Inc. v. Illinois Fair Employment Practices Com. (1979), 69 Ill. App. 3d 519, 387 N.E.2d 875; Weigel Broadcasting Co. v. Hammer (1978), 67 Ill. App. 3d 805, 384 N.E.2d 811; Northern Illinois University v. Fair Employment Practices Com. (1978), 58 Ill. App. 3d 992, 374 N.E.2d 748. See also Pullman-Standard v. Swint (1982), 456 U.S. 273, 72 L. Ed. 2d 66, 102 S. Ct. 1781.) Therefore, we will presume, as we are required to do, that the agency’s determination is prima facie correct (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110; McHugh v. Civil Service Com. (1979), 68 Ill. App. 3d 575, 386 N.E.2d 573) and reverse only if the opposite conclusion is clearly evidence (Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745).

Here, there is evidence that 2 and 3 operators had the same responsibilities although they were involved in the manufacture of different chemical products in different, but overlapping, areas in the plant. Gibson, supervisor of both defendant and Scheutzow, testified that “a spill is a spill”; that it is immaterial, in terms of cost, what substance is spilled; and that, when a new employee is trained, he learns his duties from 1, 2, and 3 operators. Plaintiff maintains that since a 2 operator receives some extra training and an unspecified amount of additional money, there must be different standards of performance and care. Contrary to plaintiff’s assertion, the evidence does not compel a conclusion that the general duties were different, since the hearing officer might well have concluded that even though some additional pay and training were involved, the positions entailed similar responsibilities. It is not our function to reweigh these factors, only to determine whether a conclusion opposite to that reached by the agency is clearly evident. (Cartwright v. Illinois Civil Service Com. (1980), 80 Ill. App. 3d 787, 400 N.E.2d 581.) Furthermore, plaintiff admitted in its final brief submitted to the administrative law judge that these positions are similar. There, it stated that “[sjpillage may be committed by any of the 21 employees or four foremen who work in jobs similar to that held by [defendant].” (Emphasis added.) The employees referred to are the 1, 2, and 3 operators and four “spares” under the supervision of Gibson. In the light of plaintiff’s own representation in addition to the testimony noted, we do not believe that the agency’s conclusion was against the manifest weight of the evidence.

Plaintiff next contends that defendant failed to rebut its evidence that he was fired for reasons unrelated to race. It correctly notes that once the complainant satisfies his prima facie case, the burden of going forward with the evidence shifts to the employer to show some evidence of a nondiscriminatory reason for the discharge. (Weigel Broadcasting Co. v. Hammer (1978), 67 Ill. App. 3d 805, 384 N.E.2d 811.) The burden then shifts back to the complainant to rebut this evidence and prove that the reason advanced is a pretext, and the employer’s true motivation was racial discrimination. (United Air Lines, Inc. v. Illinois Fair Employment Practices Com. (1979), 69 Ill. App. 3d 519, 387 N.E.2d 875.) Plaintiff asserts that it discharged defendant because he caused three chemical spills in May 1978. It maintains that defendant attempted, but failed, to rebut this evidence by showing (1) that a similarly situated white employee engaged in similar conduct and was not discharged; (2) that his infractions were “written-up” more often and resulted in disciplinary action not imposed upon white co-workers who committed the same infractions; and (3) that plaintiff failed to take adequate action to eliminate racial hostility directed at him.

Turning to the first rebuttal evidence cited by plaintiff, we note that Scheutzow caused seven spills during his employment in the chemical unit of plaintiff’s plant, two of them during one eight-hour shift; whereas, defendant caused six spills during his tenure, three of them during the same month. Comparison with a single employee is sufficient to meet defendant’s burden of proof (see McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574) so long as the conduct engaged in is of comparable seriousness (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817). Plaintiff posits that defendant and Scheutzow were not similarly situated, and that defendant’s conduct was more serious than Scheutzow’s.

We have already addressed plaintiff’s first argument and believe that the same reasoning is applicable here. The agency’s determination that these employees were similarly situated, whether for purposes of establishing defendant’s prima facie case or rebutting plaintiff’s proffered reason for discharge, is not against the manifest weight of the evidence. The sole remaining question, then, is whether the conduct engaged in by defendant and by Scheutzow was of comparable seriousness. We believe, contrary to plaintiff’s assertion, that this is a question of fact rather than of law; therefore, the appropriate standard for review is whether the agency’s conclusion is against the manifest weight of the evidence. Eastman Kodak Co. v. Fair Employ ment Practices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877.

Plaintiff maintains that an employer might rationally conclude that an employee who commits three infractions in one month is worse than an employee who commits two infractions in one day; that the former had a “bad month” while the latter only had a “bad day.” There is evidence, however, that plaintiff was not actually motivated by the frequency with which infractions occurred in meting out punishment therefor. In December 1977, before the three spills in question occurred, defendant was involved in a single chemical spill. From the record, it appears to have been his first spill in approximately two years, yet it was only his filing of a grievance which prevented plaintiff from imposing a three-day suspension without pay. When Scheutzow had two spills in a single shift, he was not suspended and no formal reprimand was placed in his personnel file. Surely if plaintiff were imposing punishments in relation to the infractions committed, Scheutzow’s conduct on that day merited more severe punishment than defendant received for “lesser conduct,” yet Scheutzow’s only punishment was being “yelled at” by the foreman. If two spills in one day is not more serious than one in a day, we do not believe that the agency’s determination that three in a month is not more serious than two in a day is against the manifest weight of the evidence. In the light of our disposition of this issue, we find it unnecessary to address plaintiff’s further arguments with regard to its allegedly disparate record keeping and failure to eliminate or reduce racial hostility directed at defendant.

For the foregoing reasons, the order of the trial court affirming the decision of the Illinois Human Rights Commission is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      On July 1, 1980, the Fair Employment Practices Act was superseded by the Illinois Human Rights Act. (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.) The Illinois Human rights Act provides that complaints issued under the Fair Employment Practices Act, as was the complaint in the instant action, shall be assumed by the Illinois Human Rights Commission. (Ill. Rev. Stat. 1981, ch. 68, par. 9 — 102.) Section 3 of the Fair Employment Practices Act is substantially the same as section 2 — 102(A) of the Illinois Human Rights Act. Ill. Rev. Stat. 1981, ch. 68, par. 2 — 102(A).

      In its letter of discharge, and before the Commission, plaintiff advanced as further justification defendant’s excessive absenteeism and sleeping on the job. During oral argument, however, it abandoned reliance on these additional factors and argued that its sole reason for discharging defendant was the three spills caused in one month. Therefore, we do not consider those other factors here, although they are noted above in comparing the work performance of defendant and Scheutzow.


author: PRESIDING JUSTICE BUCKLEY

text:
    WILLIAM C. MICELI, Petitioner-Appellant, v. MICHAEL LAVELLE et al., Respondents-Appellees.
    First District (1st Division)
    No. 83—266
    Opinion filed April 25, 1983.

      Joel R. Monarch and Daniel P. Madden, both of Chicago, for appellant.
    Mickey Levinson and Franklin J. Lunding, Jr., both of Chicago, for appellee Municipal Officers Electoral Board of the City of Chicago.
    Andrew M. Raucci, of Chicago, for appellee Erven G. Vrankin.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Petitioner, William Miceli, brought this action to review the decision of the Municipal Officers Electoral Board of the city of Chicago striking his name from the ballot as a candidate for alderman. The Board found that a statement of economic interest had not been timely filed and petitioner’s nomination papers were therefore invalid. Petitioner appeals from an order of the trial court affirming that decision.

The record reveals that on April 30, 1982, petitioner filed a statement of economic interest in connection with his employment with the board of education of the city of Chicago. Such a statement is required of any person employed by a school district at a rate of $25,000 or more annually and must detail any interest the employee may have in any entity doing business with the school district (Ill. Rev. Stat. 1981, ch. 127, par. 604A — 101(i)). Petitioner, as an assistant principal, fell within this class of persons. At the time he filed, petitioner told the clerk at the counter that he intended to run for aider-man and asked if his statement could be used when filing his nomination papers. From his conversation with the clerk, petitioner contends he was left with the impression that a second statement of economic interest would not be necessary.

The deadline for filing nomination papers for alderman was January 5, 1983. Petitioner filed his papers on December 29, 1982, and included with them a receipt issued by the Cook County clerk for his April 30 statement of economic interest. On January 10, 1983, an objection was filed to petitioner’s nominating papers on the ground that the April 30 statement was inadequate since it was filed in relation to the board of education and not the city of Chicago. On January 13, 1983, petitioner filed with the Cook County clerk a statement of intent to defer filing a statement of economic interest and then filed his statement of economic interest in relation to the city of Chicago on that same day. On January 18, 1983, the Chicago Board of Election Commissioners, sitting as the Municipal Officers Electoral Board of the city of Chicago, upheld the objection and ordered that petitioner’s name not be printed on the ballot.

On appeal, petitioner raises the following issues: (1) whether the 30-day deferral provision for filing statements of economic interest found in the Illinois Governmental Ethics Act (Ill. Rev. Stat. 1981, ch. 127, par. 604A — 105) is applicable to statements filed pursuant to the Election Code; and (2) whether the April 30 statement of economic interest filed in relation to his employment by the board of education could also be used to satisfy the filing requirements of the Election Code with respect to his candidacy for alderman (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5).

I

Petitioner’s first argument deals with a deferral provision contained in the Illinois Governmental Ethics Act (Ethics Act). He contends that this provision for deferring the filing of a statement of economic interest should also be applicable to statements filed under the Election Code and, therefore, his statement filed on January 13 was timely. An analysis of that contention involves the construction of article 4A of the Ethics Act (Ill. Rev. Stat. 1981, ch. 127, pars. 604A— 101 through 604A — 107) and article 10 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, pars. 10 — 1 through 10 — 15).

The Ethics Act was designed to reveal conflicts of interest between the public trust and private gain by requiring disclosure of financial interests related to public employment. Article 4A of this Act is concerned with the filing of “Statements of Economic Interests,” with section 4A — 101 enumerating the classes of persons who must file. The scope of this Act is broad, requiring not only candidates for State and local offices to file but also State and local government employees compensated at a rate of $25,000 or more annually and certain persons appointed to office. Section 4A — 102 describes the types of interests which must be disclosed, with sections 4A — 103 and 4A— 104 giving the actual forms to be used when filing a statement of economic interest.

Section 4A — 105 of the Ethics Act is of particular relevance to the present case since it specifies the time when statements must be filed. It provides:

“Statements must also be filed as follows:
(a) A candidate for elective office shall file his statement not later than the end of the period during which he can take the action necessary under the laws of this State to attempt to qualify for nomination, election, or retention to such office if he has not filed a statement in relation to the same unit of government within a year preceding such action.
(b) A person whose appointment to office is subject to confirmation by the Senate shall file his statement at the time his name is submitted to the Senate for confirmation.
(c) Any other person required by this Article to file the statement shall file a statement at the time of his initial appointment or employment in relation to that unit of government.” Ill. Rev. Stat. 1981, ch. 127, par. 604A — 105.

Section 4A — 105 also provides for a 30-day extension for filing a statement of economic interest by filing an intention to defer within 10 days before or after the due date. It is this exception that petitioner seeks to apply to the Election Code, thereby making his January 13 filing timely. It provides:

“Any person who is required to file a statement of economic interests may effect one 30 day extension of his time for filing such a statement by filing with the officer with whom his statement is required to be filed, not more than 10 days before or 10 days after the date when his filing is otherwise due, a declaration of his intention to defer the filing of his statement of economic interests.” Ill. Rev. Stat. 1981, ch. 127, par. 604A — 105.

Finally, section 4A — 107 gives the sanctions for noncompliance and provides as follows:

“Any person required to file a statement of economic interests under this Article who willfully files a false or incomplete statement shall be guilty of a Class A misdemeanor.
Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office or position of employment, as the case may be.” Ill. Rev. Stat. 1981, ch. 127, par. 604A-107.

Article 10 of the Election Code describes the procedures through which a candidate for public office may be nominated and have his or her name placed on the ballot. Section 10 — 1 provides:

“Political parties as hereinafter defined and individual voters to the number and in the manner hereinafter specified may nominate candidates for public offices whose names shall be placed upon the ballot to be furnished, as hereinafter provided ***.” Ill. Rev. Stat. 1981, ch. 46, par. 10-1.

Section 10 — 5 deals with the formal requirements for nomination papers and the filing of statements of economic interest. It provides:

“Nomination papers filed under this Section are not valid if the candidate named therein fails to file a statement of economic interests as required by the Illinois Governmental Ethics Act in relation to his candidacy with the appropriate officer by the end of the period for the filing of nomination papers unless he has filed a statement of economic interests in relation to the same governmental unit with that officer during the same calendar year as the year in which such nomination papers were filed. If the nomination papers of any candidate and the statement of economic interest of that candidate are not required to be filed with the same officer, the candidate must file with the officer with whom the nomination papers are filed a receipt from the officer with whom the statement of economic interests is filed showing the date on which such statement was filed. Such receipt shall be so filed not later than the last day on which nomination papers may be filed.” Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5.

In construing these statutory provisions, this court is required to determine and follow the intent of the legislature. (Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450.) In attempting to give effect to that intent, the reasons for these enactments and the purposes to be obtained must also be considered. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247.) Finally, the probable consequences of a proposed construction may also be considered in making a determination of legislative intent. Peifer v. Board of Trustees (1978), 57 Ill. App. 3d 102, 372 N.E.2d 1106.

Applying these sound principles of statutory construction, we must reject petitioner’s first contention. An analysis of the relative sanctions provided in the two acts for failure to timely file a statement of economic interest indicates the 30-day deferral provision was never intended to be applicable to statements filed under the Election Code. The penalty given in section 4A — 107 of the Ethics Act is harsh; noncompliance results in “ineligibility for, or forfeiture of, office or position of employment” (Ill. Rev. Stat. 1981, ch. 127, par. 604A— 107). The deferral provision contained in section 4A — 105 of the same act is designed to ameliorate harsh consequences which could flow from even inadvertent noncompliance. By way of contrast, failure to comply with the filing requirements of the Election Code results only in the removal of therandidate’s name from the ballot, not in disqualification for office. To apply the Ethics Act deferral provision to avoid the lesser sanction given in the election Code would be inappropriate. This is especially true when the countervailing policy considerations underlying the Election Code and the probable consequences of the construction urged by petitioner are taken into consideration.

The policy behind section 10 — 5 of the Election Code which mandates the filing of statements of economic interest with nomination papers is clear. The legislature intended that certain information be available to the public prior to the election with respect to actual or potential conflicts of interest that a candidate might have. Nomination papers are required to be filed at least 71 days prior to the election in most instances (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 6). Requiring the economic interest statements to be filed at the same time immediately opens them up to public scrutiny and allows a better informed electorate to choose among the alternative candidates on a more rational basis. To permit candidates to defer filing this statement until 30 days later significantly undermines the legislative objective of full disclosure at the earliest possible time.

Applying the deferral provision to the Election Code would also effectively eliminate the right of the public to question the validity of the statement of economic interest by filing objections. This result will necessarily follow from section 10 — 8 of the Election Code, which requires that all objections be filed within five days after the last day for filing of nomination papers. If petitioner’s position were to be adopted, a candidate could always circumvent the objection procedure by filing his nomination papers and an intent to defer filing a statement of economic interest. The statement could later be filed after the five day period for raising objections had passed. Thus, the procedures through which private citizens can ensure compliance with the Election Code would be significantly frustrated.

In view of the foregoing, we hold that the 30-day deferral provision found in the Ethics Act is inapplicable to statements of economic interest filed pursuant to the Election Code. The sound public policies in favor of full and early disclosure by candidates and in preserving the right of the electorate to file objections clearly indicate that the legislature did not intend the result urged by petitioner. The reference to the Ethics Act in section 10 — 5 of the Election Code is merely descriptive of the type of disclosure a candidate is required to make and should not be construed as incorporating the deferral provision contained therein. Accordingly, the January 13 filing of the statement of economic interest was untimely.

II

Petitioner’s second argument involves a provision in section 10 — 5 of the Election Code which excuses a candidate from filing a statement of economic interest with his nomination papers if he has previously filed such a statement in relation to the same governmental unit during the same calendar year. Under these circumstances, all a candidate need do is file a receipt issued by the county clerk which indicates that a statement of economic interest was previously filed.

Petitioner points to his April 30 filing in relation to his employment with the board of education and contends that this statement is also a sufficient disclosure of his economic interests with respect to the city of Chicago. Petitioner concedes that the board of education and the city of Chicago are not the same governmental unit, but he maintains that the questions on the April 30 statement of economic interest were answered in relation to both. Petitioner would therefore have us conclude that the receipt for the April 30 statement he initially filed with his nomination papers on December 29 was adequate compliance with section 10 — 5 of the Election Code since the statement was filed within the same calendar year and made in relation to both the city of Chicago and the board of education.

Initially, it should be noted that there exists no authority supporting the proposition that one statement of economic interest may be filed in relation to two units of government. On the contrary, the plain language of the Ethics Act consistently directs a declarant to make disclosure in relation to “the unit of local government.” (Ill. Rev. Stat. 1981, ch. 127, pars. 604A — 102, 604A — 104.) The use of the singular form suggests that a statement of economic interest should only be filed in relation to one governmental unit. In addition, the dual purpose filing argued by petitioner could only lead to confusion; no one could be sure whether a given disclosure related to one or the other governmental unit or both. We, therefore, reject petitioner’s contention that one statement of economic interest may be filed in relation to two units of government. In so doing, we find that the April 30 statement fails to satisfy the disclosure requirements with respect to the city of Chicago as mandated by the Election Code.

Since neither the April 30 nor the January 13 statement of economic interest complied with the filing requirements of the Election Code, the trial court properly affirmed the decision of the Electoral Board striking petitioner’s name from the ballot. Accordingly, we affirm the judgment of the circuit court.

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, COUNTY OF COOK, Plaintiff-Appellee, v. BRENDA TAYLOR et al., Defendants-Appellants.
    First District (1st Division)
    No. 81—3123
    Opinion filed April 25, 1983.

      Gilbert Feldman, of Cornfield and Feldman, of Chicago, for appellants.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants Brenda Taylor and Joyce Smith appeal from a summary judgment granted in favor of plaintiff, the Board of Trustees of Community College District No. 508 (City Colleges of Chicago), declaring that two teachers dismissed by the City Colleges were not tenured faculty members entitled to the benefits of the tenure provisions of the Public Community College Act (Ill. Rev. Stat. 1981, ch. 122, par. 103B — 1 et seq.) (hereinafter referred to as Community College Tenure Act). On appeal, defendants raise the issue whether defendants, by reason of their positions as project training specialists in the Comprehensive Employment and Training Act (CETA) program at plaintiff’s college, may be considered to be faculty members eligible to gain tenure under the Community College Tenure Act. Plaintiff, by cross-appeal, raises in the alternative issue whether employment prior to the effective date of the Community College Tenure Act may be counted toward acquiring tenure under the Act.

Defendants Smith and Taylor were dismissed on January 26, 1981, from their positions as project training specialists in plaintiff’s CETA-funded licensed practical nurse training program at the William L. Dawson Skills Center. Both requested that plaintiff hold hearings on their dismissal pursuant to section 103B — 4 of the Community College Tenure Act. On March 31, 1981, plaintiff brought this suit to obtain a declaratory judgment that (1) defendants, as CETA project training specialists, were not faculty members within the meaning of the Community College Tenure Act and, therefore, not entitled to protection under its provisions with respect to dismissal of tenured teachers; and, alternatively, (2) defendants did not acquire tenure under the Tenure Act until they had completed three consecutive years of full-time service after the January 1, 1980, effective date of the Act.

Affidavits and exhibits filed by the parties indicate that Joyce Smith had been employed since the fall, 1975, and Brenda Taylor had been employed since the fall, 1977. The licensed practical nurse program in which defendants taught lasts 54 weeks and consists of both classroom and clinical teaching. The students are prepared to take the State board examinations to receive licensed practical nurse certification. The City Colleges also maintain a registered nurse program at four of their colleges. These programs last two years and prepare the students to take the State board examinations for certification as registered nurses.

Plaintiff’s affidavits establish that the licensed practical nurse program in which defendants worked is a manpower training program federally funded under title I of the Comprehensive Employment and Training Act of 1973 (29 U.S.C. sec. 801 et seq. (1976)) (herein referred to as CETA). The manpower training program does not give academic credit or academic degrees. Trainees in the program must qualify under CETA income level requirements and are evaluated and recruited by the Illinois Job Services Department. CETA trainees are paid the Federal minimum wage for their participation in the training program. Project training specialists, such as defendants, are employed for the duration of the CETA funding grant which runs yearly from October 1 to September 30 of the following year. Both project training specialists and trainees are subject to numerous Federal and State regulations specifying fixed work schedules, prescribed lunch hours and breaks, paid vacations and specified grievance procedures.

Plaintiff argued that the following differences exist between CETA project training specialists and plaintiff’s regular faculty. CETA project training specialists are paid through a grant from the Federal government, while plaintiff’s academic faculty are paid through tuition, real estate taxes and State aid. Unlike defendants, plaintiff’s faculty sign written employment contracts with plaintiff. Defendants are subject to only specific portions of the collective bargaining agreement that covers plaintiff’s faculty. Defendants also enjoy different working conditions than plaintiff’s regular faculty. Defendants work an October to September school year and receive paid vacations which may be scheduled throughout that year. Plaintiff’s faculty works an academic year from August to May and do not receive paid vacations. Defendants are subject to work schedules fixed by Federal regulations and must remain at the training sites except for their prescribed breaks while plaintiff’s regular faculty members do not have fixed work schedules and are not required to remain on campus except as their professional duties dictate.

The trial court granted plaintiff’s motion for summary judgment. The court found that project training specialists were not faculty members within the meaning of section 103B — 1 and, therefore, not eligible to receive tenure. The court stated:

“They have no certainty of continued employment by reason of the federal grant status, and the Court will not extend the very broad tenured provisions of the statute to this category or class of employee. To do so would in the Court’s opinion impose intolerable burdens on school district and other public agencies ***; and *** the local taxing bodies would be obligated to provide permanent employment when no permanent employment was contemplated.”

The record reveals that prior to the enactment of the Act, the granting of tenure was left to the voluntary discretion of the individual community college districts. Ten of the State’s 39 community college districts had no provisions for faculty tenure. A collective bargaining agreement governed the awarding of tenure to faculty at plaintiff’s colleges and project training specialists were specifically excluded from the tenure provisions of that agreement.

The tenure provisions of the Public Community College Act (Ill. Rev. Stat. 1981, ch. 122, par. 103B — 1 et seq.) became effective on January 1, 1980. The Act established that tenured status may be achieved by faculty members within all of the State’s community colleges. The Act provides that faculty members who have been employed by a community college school district for three consecutive school years shall receive tenure unless the board gives the faculty member notice of dismissal 60 days prior to the end of the third school year. The board also may give the faculty member timely notice that the period before acquiring tenure has been extended for an additional year. A tenured faculty member then has a vested contractual right to continued employment as a faculty member subject to termination only upon dismissal for cause or a reduction in size, or termination of, a teaching program (Ill. Rev. Stat. 1981, ch. 122, par. 103B — 2). The Act provides that an impartial hearing officer shall decide whether cause for dismissal exists. (Ill. Rev. Stat. 1981, ch. 122, par. 103B — 4.) If a tenured faculty member is dismissed because of a reduction in staff, that faculty member has as a preferred right for 24 months to reappointment in any position which the faculty member is qualified to fill. (Ill. Rev. Stat. 1981, ch. 122, par. 103B — 5.) The Act contains the following definition of “faculty member”:

“ ‘Faculty Member’ means a full time employee of the District regularly engaged in teaching or academic support services, but excluding supervisors, administrators and clerical employees.” Ill. Rev. Stat. 1981, ch. 122, par. 103B — 1.

On appeal, defendants contend that by the clear and unambiguous language of the Act, the statutory definition of faculty member includes project training specialists. Defendants argue that the trial court misconstrued the Tenure Act by adding exclusions to the definition of faculty member that are not found within the statute or the legislative history of the Act. Defendants assert that the trial court exceeded its authority by substituting its judgment for that of the legislature in determining tenure policy for the State’s community colleges.

Plaintiff argues that in view of the numerous undisputed differences between CETA project training specialists and plaintiff’s regular faculty, defendants cannot be considered to be “regularly engaged in teaching or academic support services.” (Ill. Rev. Stat. 1981, ch. 122, par. 103B — 1.) Also, plaintiff argues that defendants cannot be considered to be “regularly engaged” because of the inherent irregularity of grant funding. Plaintiff has no assurance that any particular grant application will be approved, and any grant can be declared void for conditions outside of plaintiff’s control. Plaintiff further argues that the statute’s implementation of tenure, which occurs automatically if notice is not given 60 days prior to the end of the school year, clearly contemplates that a faculty member’s employment will be coextensive with the school year. If these provisions are applied to CETA personnel, plaintiff would be required to make personnel decisions in March, six months before the current CETA project grant would end. Plaintiff argues that the legislature could not have intended such premature and unfair personnel decisions as would result when the Tenure Act is applied to project training specialists.

The cardinal rule of statutory interpretation is to ascertain and give effect to the true intent and meaning of the legislature, (General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 112, 338 N.E.2d 561, 564.) The language used is the primary source for determining this intent (General Motors Corp.), and if legislative intent can be ascertained from its provisions, that intent will prevail without resorting to other aids for construction. But where differing interpretations are proffered, legislative intent must be determined from the reasons for the enactment and the purposes to be thereby attained as well as the meaning of the words enlarged or restricted according to their real intent. In re Roberts Park Fire Protection District (1975), 61 Ill. 2d 429, 438, 337 N.E.2d 8, 13.

The supreme court, in Johnson v. Board of Education (1981), 85 Ill. 2d 338, 423 N.E.2d 903, stated that the tenure system is intended “to provide continuity and stability for students; provide some degree of job security, thus affording teachers the ability to pursue a career free from arbitrary hiring and firing; attract teachers of high quality; and retain experienced teachers.” (85 Ill. 2d 338, 344, 423 N.E.2d 903, 906.) The court held, however, that since tenure statutes create liabilities where none would otherwise exist, a statute granting tenure “must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate the educational systems.” 85 Ill. 2d 338, 344, 423 N.E.2d 903, 906.

Where legislative intent is not clear it is also proper to compare the statute in question with statutes upon related subjects even though not strictly in pari materia (Bergin v. Board of Trustees (1964), 31 Ill. 2d 566, 202 N.E.2d 489). The School Code (Ill. Rev. Stat. 1979, ch. 122, pars. 24 — 11 through 24 — 16) provides inter alia for tenure status to be achieved by teachers in the State’s public schools. In McLain v. Board of Education (1978), 66 Ill. App. 3d 1024, 384 N.E.2d 540, the court considered the issue whether a tenured teacher who had been honorably dismissed because of a reduction in the teaching program had a right under the School Code to fill a vacancy occurring in a CETA position. The court held that since the CETA position was indirectly paid by the county which administered the CETA program and the CETA teacher was not under written contract with the board of education, the CETA position was not a new or reinstated position funded by the district within the meaning of the School Code and, therefore, was not available to a claim by a tenured teacher. 66 Ill. App. 3d 1024, 1026, 384 N.E.2d 540, 542.

Recently, in Kuykendall v. Board of Education (1982), 111 Ill. App. 3d 809, 444 N.E.2d 766, the appellate court determined whether a teacher may consider time spent teaching in a CETA program to be properly included as part of the probationary period necessary to acquire tenure under section 24 — 11 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11). The court held that since local school boards have no control over continuation of positions which are wholly federally funded, teachers in federally funded programs are not full-time teachers within the meaning of the statute and are not, therefore, entitled to count time spent teaching in CETA programs toward obtaining tenure. The court further reasoned that the nature of the probationary period allows the employee to prove himself and the employer to evaluate his service before the position becomes permanent. A probationary position may be inadequate to accomplish these objectives if the teacher trains participants in a CETA program rather than teaching in a regular high school program. The court noted that the flexibility that is essential for the probationary period would be lost if CETA positions were included as part of the probationary period and ripened into permanent positions. As Kuykendall noted, “[i]t would be unrealistic and impractical to require school boards to give teachers job security on the basis of positions over which the boards themselves have no control.” 111 Ill. App. 3d 809, 812, 444 N.E.2d 766, 769-70.

The Community College Tenure Act, like the School Code, requires a period of employment in the community college district before tenure is granted thus allowing the board to evaluate the performance of the faculty member and to determine whether the long-term needs of the college are such that a particular professor should become a permanent member of the faculty. As the court concluded in Kuykendall, a project training specialist who teaches trainees in a federally funded program cannot be considered a full-time employee of the community college district for the purpose of satisfying the consecutive years of service required by the Tenure Act.

The Tenure Act further limits the definition of faculty member to those employees “regularly engaged in teaching.” Plaintiff argues that in view of the numerous differences between project training specialists and plaintiff’s academic faculty, defendants cannot be considered to be regularly engaged in teaching within the meaning of the statute. We agree. Defendant’s working conditions and job benefits are set by Federal regulation and differ vastly from those plaintiff has established for its faculty. Defendants, unlike plaintiff’s academic faculty, do not sign employment contracts with plaintiff. Defendants teach paid trainees selected not through plaintiff’s admission process but, rather, by a State agency in compliance with Federal regulations. Plaintiff has no control over whether and to what extent the federally funded CETA program grant will be approved for the City Colleges. Defendant has not shown us that the legislature intended when it passed the Community College Tenure Act to extend the benefits of tenure to personnel such as defendants.

When the intent of the legislature is determined from the language of the statute, the purposes of a tenure system and the interpretations of similar tenure provisions in the School Code, we conclude that the legislature did not intend to extend the tenure provisions of the Community College Tenure Act to project training specialists in CETA programs. In view of our decision with respect to defendants’ appeal, we find it unnecessary to consider the issue raised by plaintiff’s cross-appeal.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: JUSTICE PERLIN

text:
    KWAI PAUL LAM, Plaintiff-Appellee, v. NORTHERN ILLINOIS GAS COMPANY, Defendant-Appellant.
    First District (2nd Division)
    No. 82—725
    Opinion filed May 24, 1983.

      Mayer, Brown & Platt and Jares, Komosa, Burke & Shanahan, both of Chicago (Michael R. Feagley and Michele Odorizzi, of counsel), for appellant.
    Walsh & Fielding, of Chicago (John R. Fielding, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Kwai Paul Lam, brought a negligence action against defendant, Northern Illinois Gas Company (NI-Gas), to recover damages for personal injuries he suffered in a gas explosion. In a jury trial, a verdict was returned in favor of defendant. Plaintiff moved for judgment notwithstanding the verdict or, in the alternative, for a new trial on the grounds that certain evidence improperly had been admitted because it was hearsay and violated the best evidence rule. The trial court denied the motion for judgment n.o.v. but granted plaintiff’s motion for a new trial. We allowed defendant’s petition for leave to appeal pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306).

On July 7, 1974, plaintiff was severely burned in a gas explosion at his mother’s apartment in Skokie, Illinois. In 1974, he filed the instant action against the owner of the building, alleging that its negligence in maintaining certain appliances had caused the explosion. In July of 1976, plaintiff amended his complaint to add NI-Gas as a defendant. Plaintiff thereafter again amended his complaint to include an allegation that NI-Gas had been negligent in failing to investigate several telephone calls it purportedly had received prior to the explosion reporting possible gas leaks at the apartment complex.

The first jury trial ended in a mistrial. At the second jury trial plaintiff presented the testimony of four former residents of the apartment complex who stated that at various times before the explosion occurred they telephoned the custodian of the complex or NI-Gas or both to complain of possible gas leaks.

In defense the custodian testified that in the week prior to the accident he did not receive any gas leak complaints from these four witnesses. A fifth former resident stated that less than one-half hour before the explosion he notified the custodian of a gas leak. NI-Gas also attempted to introduce into evidence photostatic copies of its customer service cards to prove that prior to the date of the accident NI-Gas had not received any telephone calls concerning gas leaks at the building where the explosion occurred or at an adjacent building.

At the time of the accident, NI-Gas had a standard procedure for responding to telephone calls reporting possible gas leaks. If this procedure had been followed, a three-digit code number ending in “9” (indicating a gas leak complaint) would have been entered into the service card for the customer reporting the leak and a serviceman would have been dispatched immediately to investigate the complaint. When NI-Gas tried to introduce copies of these cards, plaintiff objected, arguing that the best evidence rule required NI-Gas to offer the original cards or to account satisfactorily for their unavailability. The trial court agreed and ruled that if the original customer service cards were no longer available, NI-Gas had the burden of establishing that the copies were exact duplicates of the originals and that the originals had not been destroyed in bad faith.

NI-Gas represented to the court that the original cards had been destroyed, either as part of NI-Gas’ normal records retention program or when the customer service system was computerized. The court, however, indicated that these explanations might well be insufficient to meet NI-Gas’ burden in light of the fact that the original cards apparently had been destroyed after NI-Gas had been named as a defendant in plaintiff’s lawsuit.

NI-Gas subsequently abandoned its attempts to put the copies of its customer service records before the jury. Instead, NI-Gas presented the testimony of Leonard Starasinic, NI-Gas’ local customer service manager. Starasinic stated that the morning after the explosion he personally examined all of the customer service cards for the building where the accident occurred and the adjacent building. He observed that the cards contained no notations that any telephone calls had been received reporting gas leaks from tenants in either building for a period of at least six months to one year prior to the explosion. Starasinic testified that if standard procedures had been followed, such calls, if received, would have been noted on those cards. After Starasinic examined the cards, they were photocopied and the copies were sent to NI-Gas’ director of claims and insurance. The original cards were returned to service and subsequently destroyed. The copies were not made in the ordinary course of business. The trial court admitted this testimony over plaintiff’s hearsay and best evidence objections.

Later in the trial the court informed the parties out of the presence of the jury that Starasinic’s testimony had been admitted only for the purpose of impeaching plaintiff’s witnesses and not as substantive evidence that NI-Gas in fact had not been notified. The court instructed NI-Gas’ attorneys that in their closing arguments they could refer to Starasinic’s testimony in commenting on the credibility of the witnesses who allegedly had called NI-Gas, but that they could not refer to it as "substantive evidence of the reasonableness of the gas company’s conduct or reasons for the gas company doing something or not doing something.”

In closing argument, defense counsel repeatedly referred to Starasinic’s testimony to challenge the credibility of those witnesses who testified that they had reported possible gas leaks to NI-Gas. Plaintiff’s counsel did not object to the first three such references. After reviewing the testimony concerning the company’s standard operating procedures, counsel for NI-Gas raised the point for a fourth time:

“Some of you ladies and gentlemen have called other gas companies possibly with, with a request for assistance where a pilot light possibly was out and he smelled gas and you know what happened, a serviceman came out. I say that if it is difficult to believe, stretches your imagination that this company would miss one call, what about two?
Isn’t it getting a little bit more unbelievable, what are the probabilities? Probability grow[s] astronomically if you might say that they ignore three calls so I say to you, ladies and gentlemen, the records of the company which were testified to and which did not reflect any such telephone calls would establish no calls were made, that is certainly not the—
MR. FIELDING: Objection.
THE COURT: Objection sustained, counsel’s argument stricken from the record, jury will disregard it.
MR. HIGGINS [counsel for NI-Gas]: Apologies.” (Emphasis added.)

Counsel for NI-Gas then commented on Starasinic’s testimony for a fifth time: “*** [H]e told you he checked every card from those two buildings searching for any kind of complaint of gas leaking for six months prior.” No objection was made to this comment.

In rebuttal, plaintiff’s counsel attempted to discredit Starasinic’s testimony by pointing out that NI-Gas had failed to introduce into evidence the customer service cards which Starasinic had examined.

The jury returned a general verdict in favor of NI-Gas. On October 16, 1980, plaintiff moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. In the motion plaintiff argued that Starasinic’s testimony should not have been admitted because it was hearsay and because, in the absence of the original customer service cards, it violated the best evidence rule. Subsequently, on March 4, 1982, the trial court entered an order denying the motion for judgment n.o.v. but granting the motion for a new trial on the ground that the admission of the testimony had violated the best evidence rule. The court found:

“1. That the trial court’s determination to allow witness, Leonard Starasinic’s testimony as impeachment of the plaintiff’s witnesses, absent defendant, NORTHERN ILLINOIS GAS COMPANY’S original records, so that Mr. Starasinic’s impeachment testimony before the jury was based solely upon his recollections of the content of the NORTHERN ILLINOIS GAS COMPANY’S records, was error.
2. That said error, when coupled with the reference to said impeachment witness’s testimony during closing argument, and I quote, '*** the records of the company, which were testified to and which did not reflect any such telephone calls, established no calls were made, that is certainly not the —,’ and even though said reference was objected to, at that point, and the jury was instructed to disregard same, was prejudicial to plaintiff, and based upon the interaction of these two circumstances, with each other, was sufficient to taint the verdict of the jury so substantially as to require a new trial upon the merits of the cause.”

We allowed defendant’s petition for leave to appeal pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306).

The original writing rule, which is often but inaccurately referred to as the best evidence rule, provides that in establishing the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. (McCormick, Evidence sec. 230, at 560 (2d ed. 1972).) The parties agree that the contents of the original customer service cards, insofar as they might indicate whether complaints of possible gas leaks had been reported to NI-Gas, were material. NI-Gas, however, argues that the original writing rule does not apply where the secondary evidence is offered to prove a negative fact. In support of this argument, NI-Gas relies on E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 1002.1 (3d ed. 1979), which in turn cites the Federal Advisory Committee’s Note to Rule 1002 of the Federal Rules of Evidence.

Rule 1002 provides in part that “[t]o prove the content of a writing *** the original writing *** is required ***.” (Fed. R. Evid. 1002.) The Advisory Committee’s Note states that the original writing rule does not apply “to testimony that books or records have been examined and found not to contain any reference to a designated matter.” Fed. R. Evid. 1002 (1973), 56 F.R.D. 183, 342 (Advisory Committee’s Note (1973)); see 4 Wigmore, Evidence sec. 1244 (Chadbourn rev. ed. 1972).

Initially, we observe that Rule 1002 has not been adopted in Illinois. More significantly, we believe that the Advisory Committee’s Note is inapplicable to the facts before us. In our judgment, a distinction must be made between “testimony that *** records have been examined and found not to contain any reference to a designated matter,” and testimony that there is no reference to a specific matter in a particular original record which record is known to have existed. In the instant case, NI-Gas kept business records (i.e., the customer service cards) which, in the normal course of its operations, would have reflected whether NI-Gas had received any complaints of possible gas leaks. It is the contents of those records and not their existence which is in dispute, and this serves to distinguish the authorities on which NI-Gas relies.

The only Illinois case our research has discovered on this precise question indicates that the original writing rule does apply to proof of negative facts. In City of Chicago v. McGraw (1874), 75 Ill. 566, our supreme court held that parol evidence that no sales of United States land in a certain district were made was properly excluded because “[t]he government records furnish the proper evidence of what lands were sold.” (75 Ill. 566, 571. But see People ex rel. Illinois State Den tal Society v. Vinci (1976), 35 Ill. App. 3d 474, 478, 342 N.E.2d 206, where, in dicta, the appellate court suggested that the original writing rule does not apply to proof of negative facts.) Lawrence v. Stiles (1885), 16 Ill. App. 489, cited by NI-Gas, does not set forth a contrary rule. In Lawrence, the appellate court held that where bank records had been admitted as business records, the absence of an entry in those records could be noted since there was evidence that an entry normally would have been made. (16 Ill. App. 489, 498-500.) At issue in Lawrence was the hearsay rule, not the original writing rule. See Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 936-37, 387 N.E.2d 1241.

Examination of McCormick’s evidence text sheds additional light on this question:

“Distinguishable from the situation in which the witness undertakes to state the fact based upon what he has seen in a writing, is the situation in which the witness testifies that the fact did not occur because relevant records contain no mention of it. This negative type of testimony is usually held not to constitute proof of contents and thus not to require production of records. But it will be seen that care in the application of this exception is required, since testimony as to what does not appear may easily involve a questionable description by the witness of the details which do appear. Perhaps a better approach would be to treat such ‘non-entry’ testimony as a form of summary, which in fact it is, and to subject it to the safeguards employed in that context.” McCormick, Evidence sec. 233 (Supp. 1978).

The safeguards to which McCormick refers are that the records must be produced or made available to the opposing party for inspection. (McCormick, Evidence sec. 233, at 564 (2d ed. 1972),) Here, the original records were not produced at trial nor were they made available for plaintiff’s inspection. The Illinois decisions have held that the adverse party must be given an opportunity to examine the original records and that the original records from which the summary was made be admissible in evidence. (LeRoy State Bank v. J. Keenan’s Bank (1929), 337 Ill. 173, 191-93, 169 N.E. 1; People v. Sawhill (1921), 299 Ill. 393, 403-04, 132 N.E. 477; 612 North Michigan Avenue Building Corp. v. Factsystem (1977), 54 Ill. App. 3d 749, 752, 370 N.E.2d 236; Murray v. Kleen Leen, Inc. (1976), 41 Ill. App. 3d 436, 443, 354 N.E.2d 415.) The originals need not be introduced into evidence although the court may require that they be produced for in-court examination. (Sheldon Livestock Co. v. Western Engine Co. (1973), 13 Ill. App. 3d 993, 999, 301 N.E.2d 485.) The Federal opinions construing Rule 1006 of the Federal Rules of Evidence (Fed. R. Evid. 1006) are in accord with these decisions. (See the cases collected in Annot., 50 A.L.R. Fed. 319 (1980), and in 5 Weinstein’s Evidence pars. 1006 [01] through [05] (1982).) If summary testimony is offered in place of the matters that are summarized, an exception to the original writing rule is required. McCormick, Evidence sec. 233 n. 40 (Supp. 1978); 4 Wigmore, Evidence sec. 1230 (Chadbourne rev. ed. 1972).) Wigmore’s view was codified by Rule 1006 of the Federal Rules of Evidence (1973), 56 F.R.D. 183, 345-46, Advisory Committee’s Note (1973). See also United States v. Scales (6th Cir. 1979), 594 F.2d 558, 562, where the court held that Rule 1006 applied to a summary of what the contents of the underlying records did not include.

Based on the foregoing, we agree with the trial court that the original writing rule was applicable in this case. We must next determine whether NI-Gas was entitled to introduce secondary evidence of the contents of the customer service cards.

To introduce secondary evidence of a writing, a party must first prove prior existence of the original, its loss, destruction or unavailability; authenticity of the substitute and his own diligence in attempting to procure the original. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 199, 246 N.E.2d 269.) Here, NI-Gas established that the original customer service cards did exist. NI-Gas, however, destroyed the cards. If the original document has been destroyed by the party who offers secondary evidence of its contents, the evidence is not admissible unless, by showing that the destruction was accidental or was done in good faith, without intention to prevent its use as evidence, he rebuts to the satisfaction of the trial judge, any inference of fraud. (McCormick, Evidence sec. 237, at 571 (2d ed. 1972); 29 Am. Jur. 2d Evidence secs. 454, 463 (1967); 32A C.J.S. Evidence sec. 824 (1964).) In Illinois, “if a party has voluntarily destroyed a written instrument, he cannot prove its contents by secondary evidence unless he repels every inference of a fraudulent design in its destruction.” (Blake v. Fash (1867), 44 Ill. 302, 304; accord, Palmer v. Goldsmith (1884), 15 Ill. App. 544, 546.) We note further that the “resolution of loss or destruction issues is a matter necessarily consigned to the sound discretion of the trial judge.” Wright v. Farmers Co-Op (8th Cir. 1982), 681 F.2d 549, 553; accord, People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.

In the instant case, the trial court did not make an explicit finding that NI-Gas had failed to “repel every inference of fraudulent design in [the] destruction” of the original customer service cards, although such a finding may be implied in the court’s order granting plaintiff a new trial. If we were to decide this issue on the basis of the present record which, as NI-Gas concedes, leaves “many unanswered questions about the destruction of the cards,” we would be inclined to affirm that order. In our judgment, NI-Gas did not carry its burden of demonstrating that it destroyed the original cards in good faith. But since we conclude that the absence of a complete record explaining the destruction of the cards cannot be attributed solely to NI-Gas, we believe that this cause must be remanded for further proceedings.

After NI-Gas abandoned its attempts to place the photostatic copies of its customer service cards before the jury, the court allowed Leonard Starasinic to testify regarding his examination of the original cards without requiring NI-Gas to present any further evidence of the circumstances surrounding the destruction of the originals. In our opinion, it would be unfair to NI-Gas to affirm the trial court’s order granting plaintiff a new trial where, by virtue of the court’s action in admitting Starasinic’s testimony, NI-Gas had no reason to introduce additional evidence on this matter. An evidentiary hearing is needed to determine the precise circumstances under which the original customer service cards were destroyed. Accordingly, we vacate the trial court’s order granting plaintiff a new trial and remand the cause for an evidentiary hearing in accordance with the views expressed herein.

Vacated and remanded.

DOWNING, P.J., and HARTMAN, J., concur.

      Under Rule 1001(4) of the Federal Rules of Evidence, “[a] ‘duplicate’ is a'counterpart produced *** by means of photography *** which accurately reproduces the original.” (Fed. R. Evid. 1001(4).) Under Rule 1003, “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” (Fed. R. Evid. 1003.) The substance of these rules was adopted in People v. Bowman (1981), 95 Ill. App. 3d 1137, 1143, 420 N.E.2d 1085. The court noted that “the rule provides for any contingency suggested by the circumstances surrounding the admission of duplicates.” (95 Ill. App. 3d 1137, 1143.) While there is some question whether the definition of duplicates in Rule 1001(4) is broad enough to cover photographic copies of original writings not intended by the person making them to be treated as originals (see 1 Gard, Illinois Evidence Manual R. 6:19 (2d ed. 1979)), we find it unnecessary to reach this question given the unusual circumstances of this case. In our judgment, it would be unfair to plaintiff to consider the photostatic copies of the customer service cards as “duplicates” where the record suggests that NI-Gas destroyed the originals after it was joined as a defendant in plaintiff’s suit. See E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 1003.1 (3d ed. 1979).

      Compare Consolidated Coke Co. v. Commissioner of Internal Revenue (1932), 25 B.T.A. 345, aff'd (3d Cir. 1934), 70 F.2d 446, 448 (secondary evidence held inadmissible where originals were intentionally destroyed with the knowledge that litigation was pending), with Ocasio-Morales v. Fulton Machine Co. (1973), 10 Ill. App. 3d 719, 295 N.E.2d 329 (duplicate blueprints were properly admitted where originals were destroyed in the ordinary course of business long before defendant was aware of the litigation).

      We need not reach plaintiff’s argument that Starasinic’s testimony was inadmissible hearsay because the testimony was admitted solely for the purposes of impeaching plaintiff’s witnesses and not as substantive evidence that NI-Gas had not been notified. (See Smith v. Williams (1975), 34 Ill. App. 3d 677, 681, 339 N.E.2d 10.) While at one point in his closing argument, counsel for NI-Gas referred to this testimony as substantive evidence that no telephone calls had been made, an objection to this comment was sustained and the jury was instructed to disregard it. We do not find that this isolated comment, standing alone, was so prejudicial that it would require a new trial. We note in this regard that the trial court’s order granting a new trial specifically mentioned “the interaction of these two circumstances,” i.e., the failure to produce the original customer service cards and the reference in closing argument to Starasinic’s testimony as substantive evidence.