Petition for Writ of Certiorari — Larrance v. Illinois Human Rights Commission
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88 - 113 ie Supreme Court, U.S
No.
In The
Supreme Court of the United States
@ctober Germ, 15988
CHARLES LARRANCE,
Petitioner,
v.
THE ILLINOIS HUMAN RIGHTS
COMMISSION, et al.
Respondents,
\
PETITION FOR A WRIT OF CERTIORARI
TO THE ILLINOIS SUPREME COURT
J. TImMoTHY EATON
COUNSEL OF RECORD
CoFFIELD UNGARETTI Harris & SLAVIN
3500 Three First National Plaza
Chicago, Illinois 60602
(312) 977-4400
COUNSEL FOR PETITIONER
American Reprographics Management, Inc.™ (312) 332-ARMI (800-999-6239)
QUESTIONS PRESENTED
Does active interference by a state agency with a
complainant’s pursuit of the proper procedure for
litigating his administrative claim deprive the com-
plainant of due process when that interference abrogates
the complainant’s action by causing the jurisdictional
time limit for bringing the action to lapse?
Does due process require the nonretroactive application
of a new judicial interpretation of a jurisdictional time
limit where nonretroactive application would render the
complainant’s action timely despite the agency’s
interference?
LIST OF PARTIES
Charles Larrance, Petitioner
The Illinois Human Rights Commission, as successor to the
Illinois Fair Employment Practices Commission, Respondent
The Illinois Department of Human Rights, as successor to the
Illinois Fair Employment Practices Commission, Respondent*!
Macon County Farm Bureau, Respondent
Country Casualty Insurance Company, Respondent
Country Insurance Company, Respondent
Country Mutual Insurance Company, Respondent
Country Life Insurance Company, Respondent
Country Capital Management Company, Respondent
1 * The Illinois Human Rights Commission and the Illinois Department
of Human Rights are collectively referred to as the FEPC throughout
this Petition for Writ of Certiorari.
TABLE OF CONTENTS
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CONSTITUTIONAL AND STATUTORY
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RPUR UII GF DOMES AMIENS os csc csv esccccssacsccsccesse
A. The Proceedings at the FEPC Through the
Issuance of the Administrative Law Judge’s
Recommended Order and Decision .................
B. The FEPC’s Review of the Recommended
rs cae nweneékdeeences
C. The FEPC’s Proceedings in Connection with
the Administrative Law Judge’s Supplemental
ec cee db sce swear cteceneaccess
D. Disposition of Petitioner’s Complaint for Admi-
nistrative Review in the Appellate Court ...........
E. Disposition of Petitioner’s Request for Leave
to Appeal to the Illinois Supreme Court ............
REASONS FOR GRANTING THE PETITION
I. THE FEPC’S ACTIVE INTERFERENCE WITH
THE PETITIONER’S PURSUIT OF HIS ADMIN-
ISTRATIVE CLAIM, RESULTING IN THE DIS-
MISSAL OF HIS CLAIM, DEPRIVED PETI-
TIONER OF DUE PROCESS OF THE LAW..........
A. Petitioner had a Constitutionally Protected
Property Interest in Pursuing his Employment
Discrimination Claim via the FEPC’s Adjud-
re aca ehwatdienseaeseeees
iv
Page
B. The Dismissal of Petitioner’s Action Through
No Fault of His Own Violated Due Process
Because it Deprived the Petitioner of a “For
Cause” Determination on the Merits of His
Ill. THE FEPC AND THE ILLINOIS COURTS
ERRONEOUSLY APPLIED THE ROTHBARDT
DECISION RETROACTIVELY TO PETITIONER’S
CASE TO PERMIT AN UNCONSTITUTIONAL
AND INEQUITABLE RESULT ..................... 18
CIE 35k nd deeeessbawanesccuatevedddaensaessseas 22
SPE Shae adcdvcanccsniduanecnncubeepasdceuaens la-36a
v
TABLE OF AUTHORITIES
CASES: Page
Adams v. Jewel Companies, Inc., 63 Ill. 2d 336, 348
I oe se a rh eenen teen nmaeaaeee 21
Barry v. Barachi, 443 U.S. 55 (1979) ........ccccccccccceces 15
Bek wu. Daren, GOB UE. GEG GGT) 2 onc cvcvcnanscccsapessens 14
Board of Governors v. Rothbardt, 98 Ill. App. 3d 423, 424
ee Pe I EE 6 ci 5 5 on kee kb ened deceAeuandanes 8
Board of Regents v. Roth, 408 U.S. 564 (1972) ............... 12
Chevron Oil Company v. Huson, 404 U.S. 97 (1971) ......... 19
Goldberg v. Kelly, 397 U.S. 254 (1970) ................04.. 12, 14
Goat O, LAO GAP UE PRD 6 kaw seck ne ddasnvencsresass 12
Illinois Consolidated Telephone Co. v. Illinois Commerce
Commission, 95 Ill. 2d 142, 447 N.E.2d 295 (1983) ......... 21
Johnson v. Marshall Field & Co., 57 Ul. 2d 272, 312 N.E.2d
SD Ge «x vind nas ne kc wade ae aed eee seer eaeotiawes 21
Logan v. Zimmerman Brush Company, 455 U.S. 422
PRPS Re pet aerate went se rer yer punrd ere OU mae ley renege ree 8
Lott v. Governors State University, 106 Ill. App. 3d 851, 436
Pe er iccc i cadsepyrcunds<oncceuses 8
Memphis Light, Gas & Water Division v. Craft, 436
SR REET cc. ah inane suweunodes eeeenaca dca ehebekaewens 12
Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
I ook dos ocd dn auees ead OeeEAReeKneeesibarease 14
Paratt v. Zastor, 461 U.S. G27 (1961) .. 0. ccc cccccvevcces 16
Perry v. Sindermann, 408 U.S. 593 (1972) .............00005- 12
Rothbardt and Northeastern Illinois University,
4 Il. F.E.P. Rep. 8 (F.E.P.C. January 12, 1977) ............. 7
Zimmerman Brush Co. v. The Fair Employment
Practices Commission, 82 Il.2d 99, 411 N.E.2d 277
(1980); rev'd Logan v. Zimmerman Brush Co.,
ee iis so he Ng ckae oan ae eeueetaeee 6
CONSTITUTIONS:
United States Constitution:
IS icc cw acncceceséesececsuneece 2
Illinois Constitution:
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STATUTES:
Illinois Fair Employment Practices Act, Il. Rev. Stat. Ch.
48 §851 et. seg. (1979) (repealed and reenacted as the Illinois
Human Rights Act, Il. Rev. Stat. ch. 68, §1-101 et seq. effective
SDE ee i les talus bn owaweweweeens skawees 3
RULES AND REGULATIONS:
Rules and Regulations of the Fair Employment
Practices Commission, Articles III, IV, X, XII,
and XIV (effective November 17, 1975, as amended,
effective March 9, 1978, August 7, 1978, September 1, 1978,
SE Ae EE COED sc ncccsacarneeessdeaeeansee la-7a
No.
In The
Supreme Court of the United States
@rctober Germ, 1988
CHARLES LARRANCE,
Petitioner,
THE ILLINOIS HUMAN RIGHTS
COMMISSION, et al.
Respondents,
PETITION FOR A WRIT OF
CERTIORARI TO THE ILLINOIS
SUPREME COURT
Petitioner, Charles Larrance, (“Petitioner”) respectfully
prays that a writ of certiorari issue to review the Illinois Supreme
Court order that denied Petitioner leave to appeal from an order
of the Illinois Appellate Court for the Fourth District. The Fourth
District order affirmed the judgment of the Fair Employment
Practices Commission (“FEPC”’) dismissing the Petitioner’s claim
under the Illinois Fair Employment Practices Act, Ill. Rev. Stat.
ch. 48, §851 et seq. (1979) (““FEPA”) on jurisdictional grounds.
The order of the Illinois Supreme Court was entered in this case
on October 6, 1988.
2
OPINIONS BELOW
On February 20, 1987, the Fair Employment Practices
Commission(“FEPC”) issued an order dismissing Petitioner’s
FEPA action on jurisdictional grounds. On March 1, 1988 the
Illinois Appellate Court for the Fourth District issued an order
affirming the February 20, 1987 order of the FEPC denying
Petitioner’s claim. On March 25, 1988, the Illinois Appellate Court
for the Fourth District denied Petitioner’s Petition for Rehearing
of its March 1, 1988 order. On October 6, 1988, the Illinois Supreme
Court issued an order denying Petitioner leave to appeal from
the appellate court order of March 1, 1988. Copies of the indicated
orders are contained in the Appendix attached hereto.
JURISDICTION
On March 1, 1988 the Illinois Appellate Court for the Fourth
District issued an order affirming the February 20, 1987 order
of the FEPC denying Petitioner’s claim. On October 6, 1988, the
Illinois Supreme Court issued an order denying Petitioner leave
to appeal from the appellate court order of March 1, 1988.
This Petition for Certiorari is timely filed pursuant to 28
U.S.C. §2101(c), being within ninety days of the entry of the
Illinois Supreme Court’s October 6, 1988 order.
The jurisdiction of this Court is sought pursuant to 28 U.S.C.
§1257(3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Section 1 of the Fourteenth Amendment to the United States
Constitution provides in pertinent part:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
3
Article 1, §19 of the Illinois Constitution provides in pertinent
part:
All persons with a physical or mental handicap...
shall be free from discrimination, unrelating to ability
in the hiring and promotion practices of any employer.
The Illinois Fair Employment Practices Act, Ill. Rev. Stat.
ch 48, §851 et seq (1979) (repealed by and reenacted as the L1linois
Human Rights Act, Il. Rev. Stat. ch. 68, §1-101 et seq., effective
July 1, 1980), is set out in the Appendix hereto.
Pertinent sections of the rules and regulations of the FEPC
are also set forth in the Appendix hereto.
STATEMENT OF THE CASE
A. The Proceedings at the FEPC Through the
Issuance of the Administrative Law
Judge’s Recommended Order and
Decision.
In August of 1976, while serving as agency manager for
Respondent Macon County Country Companies Agency, Peti-
tioner suffered a heart attack. He returned to work full-time in
the Spring of 1977. In the spring of 1979, he was informed by
several of the board members of the Macon County Farm Bureau
who by written agreement with the Petitioner's employer could
make recommendations regarding Petitioner’s employment, that
he was not performing up to his pre-heart attack ability.
On April 27, 1979, Respondents! notified Petitioner that his
employment with Respondents would be terminated effective at
the close of business on May 31, 1979, but gave him no reason
for the termination. On May 31, 1979, Respondents did, in fact,
terminate the Petitioner. On July 9, 1979, approximately one
month following his termination, Petitioner went to the FEPC
1 For purposes of the STATEMENT OF THE CASE, the designation
“Respondents” refers to Petitioner's employers, Macon County Farm
Bureau, Country Casualty Insurance Company, Country Insurance
Company, Country Mutual Insurance Company, Country Life Insurance
Company, and Country Capital Management Company.
4
to file a charge of employment discrimination against Respon-
dents. He was unrepresented by counsel at the time and remained
unrepresented with respect to his FEPA claim until after
November 15, 1979.
At the FEPC Petitioner met with FEPC representative
George Crawford, told him of his desire to file a charge, and
filled out a form and made handwritten notes detailing the basis
for his charge against Respondents. Mr. Crawford kept the form
and the handwritten notes, but refused to file the charge at that
time. Instead, he advised Petitioner that he had to review the
facts of Petitioner’s case to determine whether the charge was
meritorious before any charge could be filed. Mr. Crawford
testified later that he advised Petitioner that, under then existing
FEPC rules, the FEPC had 180 days from the Petitioner’s last
day of work in which to file the charge, if the charge was
meritorious, and that the FEPC would, in fact, prepare a formal
charge for Petitioner’s signature in that event.
Mr. Crawford’s representations on July 9, 1979 about
Petitioner’s right to file his charge resulted in a wrongful refusal
to file the charge on that date. The FEPA and the FEPC's official
rules and regulations actually provided that Petitioner, himself,
had the right to file his charge at any time within 180 days
after the occurrence of an alleged unfair employment practice,
unconditioned by any prior FEPC investigation to determine the
merits of the charge. App., pp. la & 2a.2 Furthermore, the FEPC
was required to consider a charge filed when it received from
a complainant a written statement sufficiently precise to identify
the parties and to describe generally the allegedly wrongful action
or practice. App., pp. la & 5a.
After the receipt of such a written statement, FEPA and
the FEPC’s rules and regulations bound the FEPC to serve the
charge upon the Respondents within ten days and to initiate
an investigation to ascertain the facts relating to the unfair
employment practices alleged in the charge. App., pp. la & 5a.
Upon the completion of the investigation, the FEPC was bound
2 Citations to materials in the separate appendix accompanying this
petition will be denoted “App” followed by a page cite.
5
to issue a formal complaint if it found that there was substantial
evidence to support the charge and to dismiss the charge if it
found a lack of substantial evidence. App., pp. 2a, 5a & 6a:
In refusing to file Petitioner’s charge pursuant to the then
governing FEPC rules, Mr. Crawford testified that he relied upon
an established informal procedure or practice entitled “The Rapid
Charge Processing System.” App., p. 8a. In direct contravention
of FEPA and the FEPC’s official rules and regulations, the
established informal procedure or practice allowed intake
representatives the discretion to refuse to file a charge if the
representative entertained any doubt that the complainant’s
problem was the result of a prohibited practice within the
jurisdiction of the FEPC.
In Petitioner’s case, Mr. Crawford testified that he elected
not to accept the charge for filing until he could make a
preliminary determination whether Petitioner’s problem was the
result of a prohibited practice. Likewise, he failed to serve
Petitioner’s charge upon Respondents within the prescribed ten
days. Instead, he initiated an investigation pursuant to the
established informal practice or procedure; made an informal
determination that Petitioner’s case was meritorious; and filed
a formal charge signed by Petitioner on November 15, 1979, a
date within 180 days of Petitioner’s last day of employment but
not within 180 days of the termination letter. On November 16,
6
1979, he assigned the charge to the FEPC’s Springfield office
for investigation.3
During the interval between the FEPC’s wrongful refusal
to file Petitioner’s charge in July of 1979, and its filing of a formal
charge in November of 1979, Petitioner kept in contact with the
FEPC. Never during that period did the FEPC permit Petitioner
to file his charge himself. On the contrary, each time he spoke
to FEPC representatives, the Petitioner was told that no decision
had been reached concerning whether his charge would be
allowed. Finally, on October 31, 1979, FEPC representatives
contacted Petitioner to inform him that the FEPC would permit
the charge, and on November 15, 1979, they allowed him to sign
the formal charge that they had prepared.
Although the FEPC did not file a charge until November
15, 1979, Respondents had notice of the Petitioner’s FEPA
proceedings against them well before that time. In early October
of 1979 Petitioner retained counsel for a purpose other than
representation regarding the FEPA claim, who, on October 4,
informed Respondents of the proceeding. Furthermore, FEPC
investigators maintained numerous contacts with the Respond-
ents prior to October 31, during the period that they conducted
their preliminary investigation.
$ On or about July 1, 1980, prior to the termination of the proceedings
concerning Petitioner’s charge, the FEPC merged into the [linois
Human Rights Commission and the Illinois Human Rights Department,
two separate administrative agencies created by the Illinois Human
Rights Act, Ill. Rev. Stat. ch. 68 §1-101 et seq., effective July 1, 1980.
Pursuant to this Act, the Ilinois Human Rights Department handles
a complainant’s grievance from the initial filing of a charge through
the issuance of a formal complaint. The Illinois Human Rights
Commission processes complaints through the termination of the
litigation in any particular case. The Illinois Supreme Court has
determined that the Illinois Human Rights Act does not have retroactive
application. See Zimmerman Brush Co. v. Fair Employment Practices
Commission, 82 Ill. 2d 99, 108-109, 411 N.E. 2d 277, 282 - 283 (1980)
Accordingly, the FEPA and the rules and regulations of the FEPC in
effect at the time that Petitioner attempted to file his charge governed
the handling of his charge. For the sake of clarity, the entity handling
Petitioner’s charge following July 1, 1980 will be referred to throughout
this Petition as the FEPC.
7
Following November 15, 1979, the FEPC undertook a formal
investigation pursuant to FEPA and the FEPC’s official rules
and regulations to determine whether there was substantial
evidence to support Petitioner’s charge. This formal investigation
ultimately resulted in the FEPC's finding of substantial evidence
to support the charge on February 6, 1981.
Shortly thereafter, on April 3, 1981, the FEPC prepared a
formal written complaint pursuant to the FEPA and the FEPC’s
official rules and regulations and served the same on
Respondents.
Respondents moved to dismiss the Complaint in June of
1981 on the ground, inter alia, that Petitioner’s charge had not
been filed within 180 days of the date that the alleged unfair
employment practice had been committed. Specifically, Respon-
dents maintained that the 180 days should have been computed
from the date Petitioner was notified of his termination rather
than from the last day of his employment. Since the FEPC did
not file Petitioner’s charge until November 15, 1979, while notice
of termination was given on April 30, 1979, Respondents argued
that Petitioner’s charge was untimely.
In its order of June 18, 1981, the FEPC rejected Respondents’
argument, affirming its rule, announced in Rothbardt and
Northeastern Illinois University, 4 Ill. F.E.P. Rep. 8 (F.E.P.C.
January 12, 1977), that the filing of a charge begins to run from
the date termination of employment takes effect, rather than
from the time notice of termination is given. App., p. 14a. At
that time, the agency’s interpretation of the 180 day time filing
requirement was the only interpretation that existed.
Thereafter, Petitioner’s claim proceeded to a preliminary
hearing on the merits on September 16 and 17, 1981, October
19, 20 and 21, 1981, and December 17 and 18, 1981. On September
9, 1982, the administrative law judge entered a Recommended
Order and Decision in favor of Petitioner.
B. The FEPC’s Review of the Recommended
Order and Decision.
The administrative law judge’s Recommended Order and
Decision did not constitute a final determination on the merits.
8
The FEPA and the FEPC’s official rules and regulations required
the FEPC to review each recommended order, together with the
record of proceedings, prior to the issuance of a final order and
decision in any matter. App., p. 7a. Only the FEPC's decision
was final.
On October 27, 1982, in connection with the review proceed-
ings, Respondents filed exceptions to the administrative law
judge’s Recommended Order and Decision, raising among other
issues the effect of an Llinois appellate court decision, Board
of Governors v. Rothbardt, 98 Ill. App.3d 423, 424 N.E.2d 842
(4th Dist. 1981), on the disposition of the case. In that decision,
announced on July 17, 1981, the appellate court for the fourth
district announced that a timely charge was one which was filed
within 180 days of notice of the act of discrimination, regardless
of the date of actual termination.
The appellate court acknowledged that in so ruling, it was
ruling upon a question of first impression in [linois. Because
the time filing requirement was deemed to be jurisdictional,
Respondents urged the FEPC that the Rothbardt decision
deprived it of further jurisdiction to entertain Petitioner’s action
and required the FEPC to dismiss the case.
In its order dated January 7, 1983, the FEPC held that the
Rothbardt decision was not determinative concerning whether
the FEPC lacked jurisdiction to entertain the Petitioner's action
because of the recent first district appellate court decision in Lott
v. Governors State University, 106 Ill. App.3d 851, 486 N.E.2d
569 (1st Dist. 1982).
In Lott, the first district had held that the Illinois Human
Rights Commission’s administrative delay in filing a complaint
on a petitioner’s behalf, resulting in the lapsing of the 180 day
jurisdictional time period for filing the same, could not deprive
him of his cause of action. Relying on this Court’s decision in
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), which also
involved the lapsing of a mandatory jurisdictional time period
because of administrative delay, the court in Lott had held that
such a result would deprive a complainant of equal protection
and due process of the law.
9
It is unquestionable that Petitioner’s charge would have been
timely filed if the FEPC had not improperly refused to allow
Petitioner to file his charge in July of 1979 when he attempted
to persuade the agency to accept it for filing. Accordingly, the
FEPC remanded the Petitioner’s case to the administrative law
judge to hear additional evidence on the facts and circumstances
surrounding the filing of Petitioner's charge.
C. The FEPC’s Proceedings in Connection
With the Administrative Law Judge’s
Supplemental Order and Decision.
On remand, the Petitioner argued, inter alia, that the new
interpretation of the 180 day charge filing requirement set forth
in Rothbardt should not be applied in his case because of the
due process principles announced in Logan. Petitioner argued
specifically that Logan forbade the abrogation of a complainant’s
cause of action because of a state agency’s failure to process
the same in accordance with a jurisdictional time limit, rather
than the fault of the Complaint and that the retroactive
application of Rothbardt had the effect of violating Petitioner’s
right to due process.
On November 12, 1985, after hearing the evidence on remand
and considering the briefing by the parties, the administrative
law judge issued a Supplemental Recommended Order and
Decision in which he found that the Rothbardt interpretation
of the 180 day time filing requirement applied retroactively to
Petitioner’s case. However, he further found that the agency’s
action preventing the timely filing of Petitioner’s charge
compelled the FEPC to permit the Petitioner’s case to proceed
to a final determination on the merits because of the due process
considerations set forth in Logan.
On review of the Supplemental Recommended Order and
Decision, the FEPC attacked the administrative law judge’s
position that agency conduct led to the failure to file a timely
charge. The FEPC acknowledged that the failure to file a charge
on a timely basis had been due to a practice of the FEPC.
Nonetheless, the FEPC concluded, without analysis, that the
Petitioner had no right to rely on the FEPC’S interpretation of
a timely charge and that, the agency’s practice of taking control
10
over the charge filing process could not, therefore, have deprived
the Petitioner of his due process rights. Rather, the FEPC held
that Petitioner’s case came within footnote seven of the Logan
decision which excepts from its ruling cases wherein the claimant
fails to comply with a reasonable procedural requirement or fails
to file a timely charge. Accordingly, the FEPC held that
Rothbardt deprived the FEPC of jurisdiction to proceed with
Petitioner’s action. App., p. 29a, 35a.
D. Disposition of Petitioner’s Complaint for
Administrative Review in the Appellate
Court.
Petitioner subsequently filed his Complaint for Administra-
tive Review in the appellate court for the fourth district of Illinois,
alleging, inter alia, that the FEPC had erred in construing Logan
to be inapplicable to cases in which a state agency practice
prevents a complainant from filing a timely charge.
Petitioner and Respondents fully briefed these issues before
the appellate court for the fourth district; and, on March 1, 1988,
the appellate court issued an order affirming the FEPC’s
dismissal of Petitioner’s action. In essence, the appellate court
held that since the 180 day jurisdictional time filing requirement
was a component of the right created and the 180 days ran from
the time Petitioner received his termination letter, Petitioner had
no cause of action. App., p. 15a, 21a. The appellate court
distinguished Logan merely on the basis that Logan did not
involve a claim that was untimely filed.
Subsequent to the appellate court's ruling, Petitioner filed
a Petition for Rehearing. The appellate court for the fourth district
denied that petition on March 25, 1988. App., p. 25a.
E. Disposition of Petitioner’s Request for
Leave to Appeal to the Illinois Supreme
Court.
Petitioner then prayed for leave to appeal to the [linois
Supreme Court on the ground, inter alia, that the appellate court
had misconstrued Logan as being inapplicable to Petitioner’s
case. On October 6, 1988, the Illinois Supreme Court denied the
Petitioner Leave to Appeal. App., p. 26a.
ee
11
REASONS FOR GRANTING THE PETITION
I. THE FEPC’S ACTIVE INTERFERENCE WITH
THE PETITIONER’S PURSUIT OF HIS AD-
MINISTRATIVE CLAIM, RESULTING IN THE
DISMISSAL OF HIS CLAIM, DEPRIVED PETI-
TIONER OF DUE PROCESS OF THE LAW.
This Court should accept certiorari in this case because the
decision of the Illinois appellate court, affirming the dismissal
of Petitioner’s action, directly conflicts with the due process
principles announced by the Court in Logan v. Zimmerman Brush
Co., 455 U.S. 420 (1982).
In Logan the FEPC terminated Logan’s cause of action under
the FEPA because an agent of the FEPC failed to process Logan’s
claim within the framework prescribed by a statutorily mandated
jurisdictional time limit. A majority of this Court determined
that the termination deprived Mr. Logan of a constitutionally
protected property interest, the right to use the FEPA’s adjud-
icatory procedures to prosecute his FEPA claim, without due
process of law. Noting that under the FEPA’s statutory scheme,
a claim could not be terminated except for cause, the Court
determined that due process required both access to the FEPA’s
adjudicatory procedures and a hearing on the merits of
Petitioner’s claim before any decision dismissing the claim could
be made.
The circumstances of this case are virtually identical to those
involved in Logan. Agency practice permitted Petitioner’s cause
of action to lapse through no fault of his own. Therefore, Logan
compels the determination that the state’s termination of
Petitioner’s cause of action without a final adjudication on the
merits deprived the Petitioner of due process.
There are thousands of cases just like Petitioner’s in which
claimants were subjected to the FEPC’s unlawful “Rapid Charge
Processing System” only to learn that their claims had been
lost because the FEPC failed to act within the jurisdictional limit.
When Petitioner’s case was on appeal to the Illinois Supreme
Court, an amicus brief was filed in favor of Petitioner’s petition
for leave to appeal to that court by the Mandel Legal Aid Clinic
12
of the University of Chicago. In its amicus brief it stated to the
court that “approximately five thousand other complainants are
directly, adversely affected by the Fourth District’s decision
below.” App., 27a.
This Court should not permit the state courts to put their
imprimaturs of approval on unconstitutional acts and should
accept certiorari in this case to correct that result.
A. Petitioner had a Constitutionally Pro-
tected Property Interest in Pursuing his
Employment Discrimination Claim Via
the FEPC’s Adjudicatory Procedures.
This Court has traditionally looked to state law to determine
whether an interest is “property” within the meaning of the Due
Process Clause. Memphis Light, Gas & Water Division v. Craft,
436 U.S. 1 (1978). See, also, Board of Regents v. Roth, 408 U.S.
564 (1972) and Perry v. Sindermann, 408 U.S. 593 (1972).
Where an interest has been granted to an individual by the
state and “cause” is a requirement for its abrogation, then the
interest constitutes constitutionally protected property. Memphis
Light; Goss v. Lopez, 419 U.S. 565 (1975); Goldberg v. Kelly, 397
U.S. 254 (1970).
Article 1, §19 of the Illinois Constitution entitles all persons
with a physical or mental handicap unrelated to ability to the
right te be free from discrimination in the hiring and promotion
practices of any employer. This state-created right is the
foundation for Petitioner’s claim of employment discrimination.
During the period that it was in effect, FEPA was the
legislatively mandated means of vindicating this Constitutional
right, in fact, the exclusive means for doing so. Furthermore,
it established a comprehensive scheme for adjudicating claims
of discrimination which ensured that a claim could not be
terminated except for cause. In particular, the FEPA required
the FEPC to determine by investigation whether there was
substantial evidence supporting an individual’s charge. Then,
after an evidentiary hearing, the FEPC decided whether an unfair
employment practice had occurred. A charge could be dismissed
only if it was found to be unmeritorious or if either party defaulted.
I
13
App., p. 5a. Because Petitioner’s interest in pursuing his FEPA
claim has been granted to him by the state and cannot be removed
except for cause, it constitutes property protected by the Four-
teenth Amendment.
The importance of the interests protected by FEPA are
undeniably worthy of Constitutional protection. The Ilinois
legislature recognized that employment discrimination wastes
“the productive capacities of individuals ... [and] deprives a
portion of the population of the State of earnings necessary to
maintain a reasonable standard of living.” Victims of discrim-
ination may be found to “resort to public charity and the anger
bred by discriminatory treatment may cause conflicts and
controversies resulting in grave injury to the public safety, health
and welfare.” Ill. Rev. Stat. ch 48, §851 (1979).
Recently, this Court has confirmed that the right to use the
FEPA’s adjudicatory procedures is a protected property interest.
In Logan v. Zimmerman Brush Co., 455 U.S. 422, 481 (1982),
the majority stated unambiguously,
The right to use the FEPA’s adjudicatory procedures
shares these characteristics [the characteristics of
property]. A claimant has more than an abstract desire
or interest in redressing his grievance; his right to
redress is guaranteed by the state, with the adequacy
of his claim assessed under what is, in essence a “for
cause” standard, based upon the substantiality of the
evidence. And an FEPA claim, which presumably can
be surrendered for value is at least as substantial as
the right to an education labeled as property in Goss
v. Lopez, supra. Certainly it would require a remarkable
reading of a “broad and majestic term” to conclude
that a horse trainer’s license is a protected property
interest under the Fourteenth Amendment, while a
state-created right to redress discrimination is not.
Accordingly, because Petitioner has an entitlement to be free
from discrimination guaranteed by the Illinois constitution,
because FEPA ensures a means of vindicating that right which
cannot be abrogated except for cause, and because the interests
underlying Petitioner’s entitlement are important societal
+ eaten
14
interests, Petitioner has a protected property interest in pursuing
his employment discrimination claim through use of the FEPA’s
adjudicatory procedures, under the governing precedents of this
Court, which cannot be denied him without due process of law.
B. The Dismissal of Petitioner’s Action
Through No Fault of His Own Violated
Due Process Because it Deprived the
Petitioner of a “For Cause” Determina-
tion on the Merits of His Claim.
The dismissal of Petitioner's employment discrimination
through no fault of his own, but, rather, through the misappli-
cation of an unlawful agency practice to Petitioner’s case violated
the Petitioner’s due process rights because it deprived the
Petitioner of a “for cause” determination on the merits of his
claim. Although the administrative law judge made a determi-
nation on the merits in Petitioner’s favor, that determination
was not final until the FEPC itself reviewed the merits. The
FEPC declined to conduct this review before dismissing Peti-
tioner’s action, thereby depriving him of a “for cause” determi-
nation. The decision of the Illinois appellate court for the fourth
district ratified this unconstitutional result by affirming the
dismissal of Petitioner’s action through the retroactive applica-
tion of Rothbardt.
The minimum guarantee of due process protection is the
opportunity to be heard before being deprived of a protected
interest in property or liberty. Mullane v. Central Hanover Bank
& Trust Co., 339 U.S. 371 (1971); and Goldberg v. Kelly, 397 U.S.
254 (1970). Inherent in this idea is the concept that a protected
property interest cannot be abrogated except for cause. Thus a
decision based on the merits or on the conduct of one of the
parties is a traditional minimum requirement of due process. Bell
v. Burson, 402 U.S. 535 (1971). Assuredly, the exact timing of
the required hearing may vary as well as the degree of formality,
but in all cases a “for cause” determination on the merits is
necessary before a person can be deprived of a protected property
interest within the bounds of due process.
The need for a decision on the merits is especially acute
when the deprivation of an interest is permanent. For example,
mmm
+ Til eee aN dl
15
in Barry v. Barchi, 443 U.S. 55 (1979), the Court found that the
post-suspension hearing provided by the statute violated due
process because it was not held soon enough after the suspension
to avoid a de facto final deprivation.
In this case, Petitioner, like the Petitioners in each of the
cited authorities, was entitled to a final determination on the
merits of his claim before his cause of action could be dismissed
consistent with due process. Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982). Although a post-deprivation hearing, such
as a suit for damages against state officials, may be sufficient
to protect a claimant’s due process rights in cases where a
deprivation of property occurs as a result of the unauthorized
random failure of a state agent to follow established state
procedures, Logan and subsequent decisions clearly demonstrate
that such a hearing would be insufficient in this case.
In Logan, this Court held that Logan’s employment discrim-
ination action could not be terminated because of agency
inadvertence in processing his claim within a 120 day statutorily
mandated jurisdictional time period for agency action on his
claim. Rather, Logan was entitled to a hearing on the merits
of his FEPA claim before it could be eliminated. In so holding,
the Court noted that its decisions had time and again emphasized
that the Due Process Clause grants aggrieved parties the
opportunity to present their cases and have the merits fairly
judged, making some kind of hearing prior to deprivation an
absolute necessity.
This Court acknowledged in Logan that the timing and
nature of the required hearing would depend upon the appropriate
accommodation of the competing interests involved, including
the importance of the private interest, the length or finality of
the deprivation, and the likelihood of government error.
Applying those principles, the Court observed that Logan’s
interests in retaining his employment, in disproving his employ-
er’s charges of incompetence or inability and in redressing an
instance of discrimination were all substantial. Further, the
deprivation was final because Logan, unlike a claimant whose
charge is dismissed on the merits for lack of evidence, could not
obtain judicial review of FEPC action. The Court held that a
16
system or procedure that deprives persons of their claims in a
random manner presents an unjustifiably high risk that meri-
torious claims will be terminated. Furthermore the state’s interest
in refusing Logan’s request to proceed with his claim was
insubstantial. The Court concluded that Logan was, therefore,
entitled to have the FEPC consider the merits of his charge based
upon the substantiality of the available evidence, before deciding
whether to terminate his claim.
The Court expressly distinguished Paratt v. Taylor, 451 U.S.
527 (1981) in reaching this result. In Paratt, a state employee
had negligently lost a prisoner’s hobby kit. The Court had
concluded, in that case, that the prisoner had suffered a
deprivation of property within the meaning of the Fourteenth
Amendment but that all the process that was due him was
provided by the state’s tort claims procedure.
In distinguishing Paratt, the Court observed that negligent
deprivations such as those in Paratt were difficult to prevent
via a predeprivation hearing precisely because they involved
random unauthorized acts of state employees rather than acts
taken pursuant to some established state procedure.
In the Logan case, on the other hand, the state system itself
destroyed the complainant’s property interest by operation of
law, whenever the FEPC failed to convene a timely fact-finding
conference — whether the FEPC’s action was taken through
negligence, maliciousness or otherwise. Unlike the complainant
in Paratt, Logan was challenging not the FEPC’s error but an
established state procedure that destroyed his entitlement without
according him proper procedural safeguards.
The Court further observed that a post-deprivation hearing
would be constitutionally inadequate, in any event. It would leave
Logan only with a tort suit against the state which could not
make him whole regarding such things as reinstatement and
backpay. Accordingly, Paratt did not apply to render a prede-
privation hearing on the merits unnecessary.
This case is exactly like Logan in all material respects. As
in Logan, an established state procedure rather than a random
unauthorized act of a state employee destroyed the complainant’s
|
17
property interest. That established procedure was an informal
written procedure for processing charges that allowed intake
representatives the discretion not to file a charge if they believed
the complainant’s problem not to be the result of a prohibited
practice. The procedure left sole control over whether a charge
was filed within the jurisdictional 180 day time limit in the hands
of the intake representative, just as surely as the FEPC’s official
procedure in Logan left in the sole control of the FEPC whether
the 120 day jurisdictional hearing requirement would be met.
Thus, the FEPC’s informal procedure wrongfully permitted
situations in which the FEPC’s failure to file a charge within
180 days could terminate a complainant’s cause of action.
The very same policy determinations considered in Logan
to justify a predeprivation hearing on the merits apply with equal
force to this case. Petitioner has substantial interests in retaining
his employment and in disproving his employer’s charges of
incompetence or inability. Furthermore, he has an even stronger
interest than in Logan in redressing an instance of alleged
discrimination because the administrative law judge has actually
issued a Recommended Order and Decision to the effect that
Petitioner was discriminated against. Furthermore, like the
deprivation in Logan, the deprivation here is final. Unlike a
claimant whose charge is dismissed on the merits, Petitioner
cannot even obtain judicial review going to the substance of his
claim.
A post deprivation hearing would be just as useless in this
case as it was in Logan. At most, Petitioner could attempt to
sue the FEPC in state court on a tort theory. Such a proceeding
would be both lengthy and speculative. Furthermore, Petitioner
could get neither reinstatement nor backpay. Accordingly, like
the complainant in Logan, Petitioner was entitled to a final
adjudication on the merits of his claim before his cause of action
could be terminated.
Respondents have argued below that Logan is inapplicable
because Logan did not involve a charge that was untimely filed.
In support of their position that this distinction makes a
difference, Respondents have relied heavily upon the portion of
the Court’s opinion stating that a State may erect reasonable
procedural requirements for triggering the right to an adjudi-
18
cation by means of statutes of limitations and that the States
accord due process when they terminate a claim for failure to
comply with a reasonable procedural rule. Respondents’ reliance
on this portion of the Court’s opinion is misplaced. Nowhere did
the Court say that a State may erect reasonable procedural rules
for triggering the right to an adjudication, systematically prevent
a claimant from utilizing those rules via a contrary procedure,
and then terminate the claimant’s cause of action because he
did not follow the reasonable procedural rule in spite of the
systematic prevention. Any other conclusion makes a mockery
of this Court’s opinion.
Respondents have also relied heavily on footnote seven of
the Logan opinion which states that the Court did not mean
to suggest that the state must consider the merits of a claim
when the claimant fails to fails to file a timely charge. Respon-
dents’ reliance on this footnote is also wholly misplaced. In the
very text of the footnote, this Court italicized the word “claimant”,
emphasizing that its opinion is inapplicable only where the
noncompliance or untimeliness is the result of the claimant’s
fault rather than the agency’s.
Thus, Logan is applicable to all situations in which agency
conduct, whether intentional or inadvertent, leads to the lapsing
of a jurisdictional time filing requirement and jeopardizes the
claimant’s right further to pursue his cleim. Any other conclusion
“would allow the State to destroy virtually any state-created
property interest.”
Logan renders it abundantly clear that the FEPC’s inaction
in this case unconstitutionally deprived Petitioner of his protected
property interest in pursuing his claim and that Petitioner is
entitled to a hearing on the merits of his claim.
Ul. THE FEPC AND THE ILLINOIS COURTS
ERRONEOUSLY APPLIED THE ROTHBARDT
DECISION RETROACTIVELY TO PETI-
TIONER’S CASE TO PERMIT AN UNCONSTI-
TUTIONAL AND INEQUITABLE RESULT.
Retroactive application of the Rothbardt decision by the
FEPC and the Dlinois appellate court for the fourth district
19
ratified and completed the abrogation of the Petitioner’s due
process rights. Furthermore, it endangered the claims of a whole
class of persons who brought their claims to the attention of
the FEPC well within the statutorily mandated time period but
suffered the FEPC’s unlawful “Rapid Charge Processing System”’
procedure. This procedure left the determination to act within
the statutory time limit entirely within the control of the FEPC,
creating a system whereby mere agency inadvertance and not
the conduct of a complainant could abrogate a complainant’s
claim. In Logan, the Court decried agency schemes which produce
results such as those indicated. This Court should accept certiorari
to reverse the retroactive application of Rothbardt and thus avert
the injustice that the Illinois appellate court has sanctioned and
that Logan was designed to avoid.
Acceptance of certiarori under the circumstances of this case
is particularly appropriate because this Court has expressly
recognized that the nonretroactive application of a judicial
decision is required in such circumstances.
In Chevron Oil Company v. Huson, 404 U.S. 97 (1971) the
issue before the Court was whether a United States Supreme
Court opinion applying a one-year statute of limitations to actions
for personal injuries on offshore oil dwelling rigs should be
retroactively applied to bar actions that had been commenced
and prosecuted in the reasonable belief, based on federal
decisions, that the one-year statute did not apply and that were
pending at the time the contrary opinion was announced. The
Court held that the decision should not be retroactively applied
to such cases.
In so holding, the Court noted that the respondent was not
at fault in any way in failing to comply with the one year statute
because the decision in question had both decided an issue of
first impression and effectively overruled a long line of decisions.
For the two years prior to the filing of his lawsuit and for an
entire year of his pretrial proceedings, the overruled decisions
represented the law governing respondent’s case. It could not,
therefore, be assumed that respondent did or could foresee that
those decisions would be overruled. The Court cautioned against
indulging in the fiction that the law now announced has always
20
been the law and that those who have not availed themselves
of it have waived their rights.
The Court further held that to hold respondent’s lawsuit
retroactively time barred would be anomalous since the primary
purpose underlying the statutory scheme pursuant to which
respondent had sued was to aid injured employees and afford
them comprehensive remedies. The Court emphasized that,
contrary to the purpose of the statutory scheme, retroactive
application of the new Court decision would deprive the respon-
dent of any remedy, whatsoever. Accordingly, terminating the
lawsuit after it had proceeded through lengthy and, no doubt,
costly discovery served no beneficial purpose.
The Court then again stressed that retroactive application
would produce the most “substantial inequitable results” in that
it would result in the abrogation of respondent’s right to his
day in court at a time when he could not have known the
limitations that the law imposed upon him. Having made these
findings, the Court concluded that retroactive application of the
new decision was in order and affirmed the circuit court’s opinion
to that effect.
The case at hand bears remarkable similarity to the Chevron
Oil case because the Petitioner was not at all at fault in failing
to comply with the jurisdictional time limit as it was interpreted
in Rothbardt. First, in Rothbardt, the Court decided a question
of first impression, namely from what event the 180 day period
for filing a charge was to run. Second, always prior to Rothbardt,
the agency rule had been that the period for filing a charge ran
from the date of the employee’s actual termination, rather than
his notice of termination. This rule was announced by the agency
as early as 1977; furthermore, FEPC representatives informed
Petitioner of the agency interpretation and applied it to his case.
Third, numerous judicial decisions in Dlinois acknowledge the
reasonableness of relying on agency interpretations of the
sista
= ji alin aghast
21
law. 4 Accordingly, Petitioner, like the respondent in Chevron,
reasonably relied on existing law in assuming that his charge
was governed by the rule that filing had to occur within 180
days from the last day of his employment. Like the respondent’s
action in Chevron Oil, Petitioner’s action proceeded for at least
a year before the new interpretation of the statutory time period
was announced, and there was nothing to foreshadow a change
in the rule.
Retroactive application of Rothbardt would no more effec-
tively further the purpose and effect of the statutory scheme,
in this case, than retroactive application of the opinion considered
in Chevron Oil would have furthered the statutory scheme at
issue there. Similarly to the statutory scheme in Chevron Oil,
the purpose of the statutory scheme under which Petitioner sued
was to aid injured individuals by affording them comprehensive
remedies. The whole statutory scheme is frustrated by Roth-
bardt’s retroactive application to Petitioner’s case because
retroactive application would deprive Petitioner of any remedy,
whatsoever, on the basis of an unforeseeable change in the law.
Thus, just as it would have been anomalous to apply the decision
considered in Chevron retroactively, it would be anomalous to
apply Rothbardt retroactively in this case.
4 See e.g., Illinois Consolidated Telephone Co. v. The Illinois Commerce
Commission, 95 Ill. 2d 142, 447 N.E.2d 295 (1983) (it is generally
reco.nized that courts will give substantial weight and deference to
an interpretation of a statute by the agency charged with the enforcement
of the statute); Adams v. Jewel Companies, Inc., 63 Ill. 2d 336, 348
N.E.2d 161 (1976) (interpretation by administrative agencies provides
an informed source for ascertaining legislative intent; and Johnson v.
Marshall Field & Co., 57 Ill. 2d 272, 312 N.E.2d 271 (the interpretation
of statutes by administrative bodies constitutes an informed source for
guidance to ascertain the legislature’s intention when it enacted the
statute).
22
CONCLUSION
This Court should accept certiorari to correct the unconsti-
tutional abrogation of Petitioner’s rights which the Illinois
appellate court and the [linois Supreme Court have sanctioned
and to avoid the same result in thousands of other cases similar
to Petitioner’s. This Court’s decision in Logan forbids such
deprivations. In the alternative, in view of the clear mandate
of the Logan case, Petitioner prays for summary reversal of the
appellate court’s decision.
DATED: January 3, 1989
Respectfully submitted,
J. TIMOTHY EATON
COUNSEL OF RECORD
CoOFFIELD UNGARETTI Harris & SLAVIN
3500 Three First National Plaza
Chicago, Illinois 60602
(312) 977-4400
COUNSEL FOR PETITIONER
la
FAIR EMPLOYMENT PRACTICES ACT
Section 8. Procedure - charge, investigation, confer-
ence, settlement and adjustment -
Whenever within 180 days after the date that an unfair
employment practice allegedly has been committed, a charge in
writing under oath or affirmation is filed with the Commission
by a complainant or by the Commission upon a vote of at least
three members and in such detail as to substantially epprise
any party properly concerned as to the time, place and facts
with respect to such alleged unfair employment practice, that
any employer, labor organization, employment agency, or person,
hereinafter referred to as a respondent, has committed such unfair
employment practice, the Commission shall promptly serve a
copy of the charge within 10 days on the respondent and
thereafter shall institute an investigation by its employees to
ascertain the facts relating to such alleged unfair employment
practice. If it is determined by the Commission, after such
investigation, that there is not substantial evidence that the
alleged unfair employment practice has been committed, the
charge shall be dismissed; otherwise the Commission, a Com-
missioner or a hearing officer, who shall be an attorney licensed
to practice in Illinois, designated by the Commission, shall
endeavor to eliminate the effect thereof and prevent repetition
thereof by means of conference and conciliation. The complainant
and respondent shall be notified of the time and place of the
conference by registered or certified mail at least 10 days prior
thereto and either or both parties shall appear at such conference
or conciliation in person or by attorney. The place fixed shall
be within 35 miles of the place where the unfair practice is alleged
to have been committed. What occurs in the conference or
conciliation meeting shall not be disclosed by the Commission
unless the complainant and respondent agree in writing that
such disclosure be made. When a settlement is effectuated in
conference and conciliation conducted by a Commissioner or
hearing officer, the terms of settlement and adjustment shall
be subject to the approval of the Commission. The Commission
shall notify the complainant and the respondent of the disposition
of every charge filed and the terms of any settlement, adjustment
or dismissal thereof. Any member of the Commission who takes
2a
part in an investigation shall thereby be disqualified to hear
any evidence on the cause in question. Except as provided in
this Section, the manner and form of filing charges shall be
in accordance with such rules and regulations as the Commission
shal! from time to time prescribe. If a settlement is effectuated,
and the terms thereof are approved by the Commission, then
the Commission shall prepare written terms of settlement and
adjustment and have the complainant and respondent agree to
them in writing. The Commission shall then enter upon all parties
an order in accord with the executed written terms of settlement
and adjustment. If the Commission determines after an inves-
tigation that there is substantial evidence that the respondent
has violated the terms of settlement and adjustment and the
order entered pursuant thereto, the Commission may either
commence an action pursuant to Section 11 of the Act, or issue
a written complaint and order a public hearing on such alleged
violation, and, finding that such alleged violation has occurred,
may then order such remedies as may be necessary to correct
the violation. If the Commission finds that no violation has
occurred it shall dismiss the complaint. If terms of settlement
and adjustment not approved by the Commission are entered
into by a complainant and respondent, the Commission need
not enter an order in accord therewith and may terminate further
proceedings in the case. The Commission may dismiss a charge
if, in conference and conciliation, it is established to the
satisfaction of the Commission that the respondent has taken
steps to eliminate the effects of the unfair employment practice
charged and prevent the repetition thereof, or if, in conference
and conciliation, the respondent offers and the complainant
declines to accept terms of settlement and adjustment which the
Commission finds are sufficient to eliminate the effects of the
unfair employment practice charged and prevent the repetition
thereof.
Section 8.01. Procedure - complaint, answer, hear-
ing and order—
(a) In case of failure to settle or adjust any such charge
by conference and conciliation in accordance with
Section 8 of this Act, the Commission shall cause to
be issued and served upon such respondent a written
aa. 2
1 NEE ee
3a
complaint, under oath or affirmation, stating the
charge of unfair employment practice substantially as
alleged in the charge theretofore filed with the Com-
mission as hereinbefore provided in Section 8 of this
Act and the relief sought on behalf of the person
aggrieved and containing a notice of public hearing
before a Commissioner or a duly appointed hearing
examiner at a place therein fixed, to be held not less
than 30 nor more than 90 days after the service of
such complaint. The place fixed shall be within 100
miles of the place where the unfair employment
practice is alleged to have been committed.
Whenever such a charge of an unfair employment
practice has been properly filed, the Commission,
within 180 days thereof or within any extension of
the 180 day period agreed to in writing by all parties
and approved by a member of the Commission, shall
either issue and serve a complaint in the manner and
form set forth in this Section or shall order that no
complaint be issued. Any such order shall be duly
served upon both the complainant and the respondent.
Section 8.02. Procedure - review by Commission,
order -
(a)
(d)
The findings and recommended order of the Commis-
sioner or hearing examiner shall be filed with the
Commission.
Following the filing of the findings and recommended
order of the hearing examiner and any written excep-
tions and responses thereto, and any other proceedings
provided for in this Section, the Commission shall
review the record and may adopt, modify or reverse
in whole or in part the findings and recommendations
of the hearing examiner. The Commission shall adopt
the hearing examiner’s findings of fact if they are not
contrary to the manifest weight of the evidence. The
Commission shall file its written order and decision
in its office and serve copies thereof on all parties
together with a notification of the date when it was
4a
RULES AND REGULATIONS OF THE FAIR EMPLOY-
MENT PRACTICES COMMISSION
PART TWO: CHARGES OF UNFAIR EMPLOYMENT
PRACTICE
ARTICLE III
Charge
Section 3.1. Time of Filing - A complainant, or the
Commission upon a vote of at least three members, may file
a charge at any time within 180 days after occurrence of an
alleged unfair employment practice. If the alleged unfair
employment practice is of a continuing nature, the date of
occurrence may be any date subsequent to the commencement
of the unfair employment practice up to and including the date
on which it shall have ceased.
Section 3.2. Form - A charge shall be in writing and signed
by the complainant, or by a member of the Commission in the
case of a Commission charge, under oath or affirmation before
a notary public or other person authorized by law to administer
oaths or affirmations. Notary service shall be provided without
cost at the Commission’s offices.
Section 3.3. Contents - A charge shall be in such detail
as to substantially apprise any party of the time, place and facts
with respect to the alleged unfair employment practice. It should
contain the following:
(a) The full name and address of the complainant, or a
statement that the charge is filed in the name of the
Commission in the case of a Commission charge;
(b) The full name and address of the respondent;
(c) Astatement of the facts alleged to constitute the unfair
employment practice, including the date, time, and
place thereof;
(d) A statement describing any other action instituted by
or on behalf of the complainant in any other forum,
including one instituted under grievance or arbitration
provisions of a collective bargaining agreement, based
on any of the incidents or practices alleged in the charge.
5a
Section 3.4. Amendment -
(a) Notwithstanding any other provisions of these Rules
and Regulations, a charge shall be deemed filed when
the Commission receives from a complainant a written
statement sufficiently precise to identify the parties
and to describe generally the action or practices
complained of. A charge or any part thereof may
subsequently be amended by the complainant to cure
technical defects or omissions (including failure to
properly subscribe or swear to the charge as herein-
above provided), or to clarify or amplify allegations
made therein, or to set forth additional facts or
allegations related to the subject matter of the original
charge, and such amendments shall relate back to the
original filing date.
ARTICLE IV
Investigation
Section 4.1. Docketing and Service of Charge - Each
charge, once filed, shall be docketed and assigned a case number
by the Commission, and a copy of such charge shall, within
ten (10) days following the date of filing, be served by the
Commission on the named respondent.
Section 4.3. Investigation - After a charge has been filed,
the Commission’s staff shall institute an investigation to
ascertain the facts relating to the unfair employment practice
alleged in the charge and any amendments thereto.
Section 4.5. Dismissal After Investigation - If after
investigation of a charge, the investigative findings indicate that
the charge is not supported by substantial evidence or that the
Commission lacks jurisdiction of the charge or that the charge
otherwise should be dismissed, and this indication is concurred
in by the Commission’s Director of Investigations, the Director
of Investigations shall thereupon cause to be served upon the
complainant a Notice of Dismissal. The Notice of Dismissal shall
advise the complainant that the charge is recommended for
cian
6a
dismissal, and shall state the ground upon which it is to be
dismissed, and shall be accompanied by a copy of the written
investigation report. The Notice shall further advise that the
complainant may object to dismissal of the charge and obtain
consideration of the matter by the full Commission, by serving
a demand therefor upon the Commission within thirty (30) days
of the date of the Notice. If no such timely demand is served
by the complainant upon the Commission, the charge shall be
deemed dismissed as of the expiration of said thirty-day period,
and the parties shall be so notified. In the event the complainant
files a timely demand for reconsideration as herein provided,
the matter shall be submitted to the full Commission for
determination. A complainant’s timely demand for reconsider-
ation under this Section may be accompanied by such statements
and/or evidence as the complainant may feel supports the charge.
Section 4.6. Commission Finding - After investigation,
the Director of Investigations shall submit to the Commission
each charge which the investigation indicates is supported by
substantial evidence, or in which a complainant has filed a timely
demand for reconsideration of a Notice of Dismissal as provided
in Section 4.5 of these Rules and Regulations. If the Commission
finds that it has jurisdiction of the charge and that there is
substantial evidence to support the charge, it shall order that
conciliation be attempted in accordance with Article V of these
Rules and Regulations. Otherwise, it may return the charge for
further investigation, or order that the charge be dismissed. In
the event that a charge is ordered to conciliation or ordered
dismissed, the Commission shall promptly serve notice of such
action upon all parties.
ARTICLE X
Section 10.1. Service of Complaint - A complaint and
notice of public hearing, issued by the Commission pursuant to
Article V, Section 5.7 of these Rules and Regulations, or pursuant
to Article VIII, Section 8.4(b) of these Rules and Regulations,
shall be served by the Commission upon the parties to such
proceeding either personally or by registered or certified mail.
Section 10.2. Form of Complaint - The complaint shall
be in writing and shall state the relief sought. The allegations
Ta
of the complaint may encompass (a) such matters as alleged
in the underlying charge or which are substantially related
thereto, and (b) such matters as would constitute noncompliance
with Part Three of these Rules and Regulations and which were
involved in the Commission’s investigation or compliance review.
ARTICLE XI
Review of Recommended Order and Decision
Section 12.1. Recommended Order Not Final - The
Administrative Law Judge’s recommended order and decision
shall not constitute a final order determining or disposing of
the proceedings. Whether or not exceptions to the recommended
order and decision are filed with the Commission as hereinafter
provided, the Commission shall review each recommended order
together with the record of proceedings prior to issuance of its
final order and decision therein. Only the Commission’s decision
shall be final.
ARTICLE XIV
Section 14.2 Standard of Review - The Commission shall
accept the findings of fact of its Administrative Law Judge and
of the person who presided at any supplemental proceedings as
true and correct, unless it shall find that such findings or any
of them are contrary to the manifest weight of the evidence.
8a
ILLINOIS REGISTER
AGENCY: Fair Employment Practices Commission
ACTION: Emergency Adoption of Amendments to Rules and
Regulations.
STATUTORY AUTHORITY: Ill. Rev. Stat., ch. 48, §856.05.
EXPLANATION: In response to a growing backlog of charges
filed with it, the Fair Employment Practices Commission
is revamping its intake and investigative techniques so as
to enable it more readily to identify charges which do not
state a claim under the FEPA, and to more rapidly reselve
charges through investigation and settlement. Because of
the magnitude of the present backlog and the volume of
new charges it receives daily, the Commission must
implement these new techniques on an emergency basis,
beginning as of Monday, March 13, 1978.
DESCRIPTION: Under these new procedures, the Commission
will conduct more intensive interviews of prospective
complainants, administratively close charges in which
complainants fail to cooperate, and schedule early fact-
finding conferences to obtain evidence and provide an
opportunity for rapid settlement of disputes. The new
procedures will be implemented through amendments to
Articles III and IV of the Commission’s Rules and Reg-
ulations adopted by the Commission on March 8, 1978.
THE FULL TEXT OF THE AMENDED ARTICLES I AND
IV FOLLOWS:
ARTICLE III
Charge
Section 3.1. Time of Filing-A complainant, or the Commis-
sion upon a vote of at least three members, may file a charge
at any time within 180 days after occurrence of an alleged unfair
employment practice. If the alleged unfair employment practice
is of a continuing nature, the date of occurrence may be any
date subsequent to the commencement of the unfair employment
practice up to and including the date on which it shall have ceased.
iatelaiesi-ec ince «
,
9a
ILLINOIS REGISTER
Section 3.2. Form-A charge shall be in writing and signed
by the complainant, or by a member of the Commission in the
case of a Commission charge, under oath or affirmation before
a notary public or other person authorized by law to administer
oaths or affirmations. Notary service shall be provided without
cost at the Commission’s offices.
Section 3.3. Contents-A charge shall be in such detail as
to substantially apprise any party of the time, place and facts
with respect to the alleged unfair employment practice. It should
contain the following:
(a) The full name and address of the complainant, or a
statement that the charge is filed in the name of the
Commission in the case of a Commission charge;
(b) The full name and address of the respondent;
(c) Astatement of the facts alleged to constitute the unfair
employment practice, including the date, time, and
place thereof;
(d) A statement describing any other action instituted by
or on behalf of the complainant in any other forum,
including one instituted under grievance or arbitration
’ provisions of a collective bargaining agreement, based
on any of the incidents or practices alleged in the
charge.
Section 3.4. Requirements for Charge-In addition to the
elements specified in Section 3.3 hereof, an individual may be
required to provide the Commission with the following informa-
tion where available to enable the Commission to determine
whether the facts alleged by the individual state a claim of unfair
employment practice under the Act:
(a) The approximate number of persons employed by
any entity which is sought to be charged in the capacity
of an employer;
(b) For each alleged unfair employment practice,
10a
ILLINOIS REGISTER
a statement of the facts which lead the individual to
believe that the practice is or was unlawful;
(c) A statement of each specific harm or injury that the
individual has suffered as a consequence of the alleged
unfair employment practice.
Section 3.5. Acceptance of Charge-
(a) The Commission shall accept for filing any charge
which it receives from an individual in compliance with
the foregoing provisions of this Article.
(b) In the event the Commission receives a written
statement from an individual which complies substan-
tially with Sections 3.1 and 3.3 hereof, but which is lacking
elements specified in Sections 3.2 and/or 3.4, the Com-
mission may accept and docket the statement as an
unperfected charge. The Commission shall then notify
the complainant in writing of the elements which must
be supplied to perfect the charge. If the individual fails
or refuses to perfect the charge as specified, the charge
may be dismissed pursuant to Section 4.6 of these Rules
and Regulations.
Section 3.6. Amendment-
(a) Notwithstanding any other provisions of these Rules
and Regulations, a charge may be deemed sufficient when
the Commission receives from a complainant a written
statement sufficiently precise to identify the parties and
to describe generally the action or practices complained
of. A charge or any part thereof may subsequently be
amended by the complainant to cure technical defects
or omissions (including failure to properly subscribe or
swear to the charge as hereinabove provided), or to set
forth additional facts or allegations related to the subject
matter of the original charge, and such amendments shall
relate back to the original filing date.
ee ne
lla
ILLINOIS REGISTER
(b) A charge may be amended by the complainant to
substitute or name additional parties respondent, and
such an amendment shall relate back to the original filing
date, if (i) at the time of the amendment a separate charge
could have been filed against such additional respondent;
or (ii) such additional respondent had timely notice of
the original charge and the fact it might be involved
therein.
Section 3.7. Withdrawal of Charge-A charge or any part
thereof may be withdrawn by the Complainant upon the consent
of the Commission, at any time prior to an order of the Com-
mission dismissing the charge or the issuance by the Commission
@f a Complaint based on the charge. A complainant’s request
to withdraw a charge shall be in writing to the Commission
and signed under oath or affirmation.
ARTICLE IV
Investigation
Section 4.1. Docketing and Service of Charge-Each charge,
once filed, shall be docketed and assigned a case number by
the Commission, and a copy of such charge shall, within ten
(10) days following the date of filing, be served by the Commission
on the named respondent.
Section 4.2. Maintenance of Employment Records--
Notwithstanding any other provision of these Rules and Reg-
ulations, once a charge has been served on a respondent, the
respondent shall preserve all personnel records, production
records and other evidence which may be relevant to the case
until the matter has been finally adjudicated.
Section 4.3. Investigation—-After a charge has been filed, the
Commission’s staff shall institute an investigation to ascertain
the facts relating to the unfair employment practice alleged in
the charge and any amendments thereto. As part of its inves-
tigation the Commission may convene a fact-finding conference
upon notice of not less than ten (10) days to all parties whose
attendance will be required, for purposes of ascertaining the
positions of the parties, identifying the issues in dispute, obtaining
12a
ILLINOIS REGISTER
evidence and determining the likelihood of a negotiated
settlement.
Section 4.4. Adjustment During Investigation-If terms of
settlement are agreed to between complainant and respondent
during the investigation of a charge, the same shall be reduced
to writing, signed by the parties and submitted to the Commission
for approval. If so approved, the Commission shall thereupon
enter an order incorporating the terms of settlement and
dismissing the charge pursuant thereto without a finding on the
merits of the charge. Said order shall be served by the Commission
on all parties.
Section 4.5. Dismissal After Investigation-If after investi-
gation of a charge, the investigative findings indicate that the
charge is not supported by substantial evidence or that the
Commission lacks jurisdiction of the charge, and this indication
is concurred in by the Commission’s Executive Director or his
designee, the Executive Director shall thereupon cause to be
served upon the complainant a Notice of Dismissal. The Notice
of Dismissal shall advise the complainant that the charge is
recommended for dismissal, and shall state the ground upon
which it is to be dismissed, and shall be accompanied by a copy
of the written investigation report. The Notice shall further advise
that the complainant may object to dismissal of the charge and
obtain consideration of the matter by the full Commission, by
serving a demand therefor upon the Commission within thirty
(30) days of the date of the Notice. If no such timely demand
is served by the complainant upon the Commission, the charge
shall be deemed dismissed as of the expiration of said thirty-
day period, and the parties shall be so notified. In the event
the complainant files a timely demand for reconsideration as
herein provided, the matter shall be submitted to the full
Commission for determination. A complainant’s timely demand
for reconsideration under this Section may be accompanied by
such statement and/or evidence as the complainant may feel
supports the charge.
13a
ILLINOIS REGISTER
Section 4.6. Failure to Proceed--A complainant has the
responsibility to promptly provide the Commission with notice
of any change in address or any prolonged absence from that
current address so that he or she can be located when necessary
during the Commission’s investigation and consideration of the
charge. In addition, a complainant is responsible for providing
the Commission with necessary information and to be available
for interviews and conferences, upon reasonable notice or request
by the Commission. If a complainant cannot be located or does
not adequately respond to reasonable requests by the Commis-
sion, the Commission’s Executive Director is authorized to
dismiss the charge for complainant’s failure to proceed; Provided,
that the Commission shall first afford the complainant written
notice of his or her failure to comply with this Section at the
last known address, and shall allow the complainant not less
than thirty (30) days to respond thereto. Written notice of any
dismissal pursuant to this Section shall be promptly provided
by the Executive Director to the complainant and respondent
and shall specify the nature of the complainant’s noncompliance
herewith.
Section 4.7. Commission Finding-After investigation, the
Commission’s staff shall submit to the Commission each charge
which the investigation indicates is supported by substantial
evidence, or in which a complainant has filed a timely demand
for reconsideration of a Notice of Dismissal as provided in Section
4.5 of these Rules and Regulations. If the Commission finds that
it has jurisdiction of the charge and that there is substantial
evidence to support the charge, it shall order that conciliation
be attempted in accordance with Article V of these Rules and
Regulations. Otherwise, it may return the charge for further
investigation, or order that the charge be dismissed. In the event
that a charge is ordered to conciliation or ordered dismissed,
the Commission shall promptly serve notice of such action upon
all parties.
l4a
IN RE: MARLENE ROTHBARDT, Complainant, and
NORTHEASTERN ILLINOIS UNIVERSITY, Respondent, Nos.
73WS-68, 73CF-1092 (January 12, 1977).
Synopsis: 1. Complainant’s termination from employment
became effective as of her last day of employment, even
though the decision to terminate her may have been made
considerably earlier, so that it was actionable under the
provisions of the Act in effect on the latter date.
2. An employer’s reconsideration of its decision to discharge
its employee, resulting in reaffirmation of the original
decision, constituted an independent action subject to
challenge under the Act.
3. An employer’s aversion to the employment of females with
minor children is sexually discriminatory where no similar
aversion is evident with regard to males with minor children.
4. There was sufficient evidence for the Administrative Law
Judge to find that Complainant’s Department Chairman
influenced others with decision-making authority to support
Complainant’s termination, thus infecting their decisions
with his discriminatory animus.
Peewee a a) eee
OO WAST) Ptr
15a
NO. 4-87-0205
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
CHARLES LARRANCE, ~
Petitioner,
THE ILLINOIS HUMAN Administrative
RIGHTS COMMISSION, Review of
Rights THE ILLINOIS linois Human
DEPARTMENT OF Nos. 1980SN0206
HUMAN RIGHTS, COUNTY 1980SN0207
Commission MACON FARM 1980SN0208
BUREAU, COUNTRY CAS- 1980SN0209
UALTY INSURANCE COM- 1980SN0210
PANY, COUNTRY INSURANCE 1980SN0211
COMPANY, COUNTRY MUTUAL
INSURANCE COMPANY, COUNTRY
LIFE INSURANCE COMPANY, and
COUNTRY CAPITAL MAN-
AGEMENT COMPANY,
Respondents. Y
JUSTICE McCULLOUGH delivered the opinion of the court:
Petitioner appeals an order of the Illinois Human Rights
We affirm.
Commission (Commission) which dismissed his complaint. The
Commission found it lacked jurisdiction to entertain the cause.
(Ill. Rev. Stat. 1985, ch. 68, par. 7-102(A)(1).) Petitioner argues:
(1) the Commission erred in retroactively applying Board of
Governors v. Rothbardt (1981), 98 Ill. App. 3d 423, 424 N.E.2d
742; (2) principles of equitable tolling apply in the instant cause;
(3) petitioner’s formal charge should be found to relate back to
his complainant information sheet (CIS) so as to create a timely
charge; and (4) dismissal of petitioner’s cause of action because
of a State procedure denied him due process.
16a
Petitioner filed his employment-discrimination charge on
November 15, 1979. The administrative law judge found for
petitioner. On October 27, 1982, respondents filed exceptions to
the recommended order and decision, arguing lack of jurisdiction.
Petitioner filed a motion to produce additional information. On
January 7, 1982, the Commission denied petitioner’s motion but
on its own motion, remanded for a hearing on the circumstances
surrounding the filing. Respondents filed suit in the circuit court
to prohibit the hearing on remand. The circuit court ruled the
Commission could order an additional hearing. On appeal, this
court, in Country Casualty Insurance Co. v. Human Rights
Comm’n (Nov. 30, 1984, 4th Dist. Gen. No. 4-83-0772, order under
Supreme Court Rule 23), affirmed the circuit court. The facts
relevant to the instant appeal stem from information obtained
at the supplemental hearing.
Petitioner had been hired by respondents, Country Casualty
Insurance Company, Country Insurance Company, Country
Mutual Insurance Company, Country Life Insurance Company,
and Country Capital Management Company (Country Compan-
ies) in 1956. In 1962, he was made agency manager in Macon
County. On April 30, 1979, petitioner received a letter telling him
his employment would be terminated, effective May 31, 1979.
On July 9, 1979, petitioner contacted the Fair Employment
Practices Commission (FEPC) in Springfield. Petitioner testified
that he had not talked to an attorney at that time. He completed
a form entitled “Complainant Information Sheet.” On that form,
he indicated his termination was due to a heart attack which
occurred in 1976. The only document he brought to the meeting
was the termination letter. Petitioner stated that he told the intake
representative that the name of his employer was Country
Companies. George Crawford, the intake representative, told
petitioner that he had until the end of November to file a formal
charge. Petitioner never calculated the last day on which he could
file the charge.
Petitioner further testified that Crawford took notes and
raised a question about whether petitioner could file a charge.
Crawford indicated the FEPC would decide whether or not to
17a
accept the charge. Crawford needed to discuss the matter with
his superiors and would contact petitioner. Crawford did not ask
for additional information on July 9, 1979.
Petitioner stated Crawford gave him a brochure on July 9,
1979, and he looked at it. Between July 9, and October 29, 1979,
petitioner called the FEPC office to check on the status of his
cause. On October 29, 1979, the FEPC contacted him to ask for
his employment contracts. He brought them in the same day.
On October 31, 1979, he met with Crawford. They discussed his
heart attack. After he brought in his employnent contracts, the
individual companies were charged separately.
On November 15, 1979, petitioner signed a formal complaint.
No one indicated a timeliness problem. Petitioner stated that
although he met with an attorney concerning renewal income
from Country Companies to which he felt entitled, he and his
attorney did not discuss his employment discrimination action.
He would have signed a charge on July 9, 1979, if he had been
given one.
On cross-examination, petitioner agreed that the CIS form
states it is not a legal charge. On October 4, 1979, his attorney
drafted a letter seeking commissions. In the letter, counsel states
that if the additional commission is not forthcoming, the
employment discrimination action will be pursued. Petitioner
denied delaying filing because of the dispute.
Crawford stated that anyone who wished to file a complaint
would be assigned a representative, who gathered the needed
information. If the criteria were met, the representative would
prepare a charge. The complainant would then sign it. Crawford
met plaintiff on July 9, 1979. The CIS is a general information
sheet which a complainant completes. The intake officer reviews
the CIS before interviewing the complainant to determine if there
is a charge.
Crawford stated that he told petitioner he needed to determine
a couple of factors and would have to discuss those issues with
his supervisor before knowing whether the FEPC would be able
to proceed with the charge. Crawford outlined the procedure for
petitioner. Crawford believed that May 31, 1979, was the date
18a
of the discriminatory act. This was the FEPC’s position in 1979.
Petitioner, therefore, had 180 days from that date to file his action.
He told petitioner the FEPC would decide whether it would accept
the charge for filing. Crawford stated that the brochure he gave
petitioner did not contain an indication that the FEPC would
automatically file complaints or that a complainant may demand
a charge be filed.
Crawford further stated that at the time petitioner came in
charges were not automatically accepted for filing. The policy |
changed after July 1980. Petitioner’s charge was not accepted |
on July 9, 1979, and Crawford did not draft a charge for him.
Crawford had a question about whether petitioner was an
employee. However, he covered all the jurisdictional prerequisites
and could have prepared a charge on July 9, 1979.
Crawford stated that petitioner cooperated. After Crawford
had a meeting with his supervisor he prepared a charge on
October 31, 1979. He and his supervisors had determined that
petitioner was an employee under the Fair Employment Practices
Act (Ill. Rev. Stat. 1979, ch. 48, par. 852(c)). Petitioner signed
the charge on November 15, 1979.
Crawford admitted that now the Commission will file a
charge if a complainant insists even if the jurisdictional
prerequisites are not fulfilled.
Sandra Jean Kimberly, an intake representative with the
Commission, stated that when she first started, a complainant
had 180 days from the last day of employment to file a charge.
Now, a complainant has 180 days from the date he is told of
his termination to file. She believed the change occurred after
January 1, 1980. However, it had always been a practice to accept
a charge if the complainant wanted one filed, regardless of
whether the intake representative wanted him to file a charge.
She tells complainants this fact. The policy in effect when plaintiff
filed his charge was to file charges even if a question existed
about their validity.
The documents indicate plaintiff was not told that he could
insist on filing a charge and Crawford asked plaintiff to bring
in his contracts on July 9, 1979.
dee
19a
A supplemental recommended order and decision (SROD)
was filed on November 12, 1985. The hearing officer found
Rothbardt applied but that the Commission’s actions caused the
tardy filing. Therefore, the hearing officer felt that the Commis-
sion had jurisdiction pursuant to United States Supreme Court
cases. He also found the November 15, 1979, charge was not
an amendment of an earlier charge so did not relate back to
the CIS. The Commission did not follow the recommendation
and found that it did not have jurisdiction. It also found the
United States Supreme Court cases were distinguishable.
Initially, petitioner argues Rothbardt should not apply
retroactively to his cause because he justifiably relied on an
administrative interpretation of the charge-filing limitations
period. He had no choice but to rely upon the administrative
agency. Respondents point out that the Rothbardt court itself
retroactively applied its decision, that the degree of untimeliness
is irrelevant in determining retroactivity, and petitioner’s reliance
on existing administrative interpretation of the law does not affect
the applicability of Rothbardt to his case.
In Rothbardt, this court held that an aggrieved employee
had 180 days from the time he was notified of termination of
employment to file a charge under the Fair Employment Practices
Act, interpreting section 8 of the Fair Employment Practices Act.
(il. Rev, Stat. 1973, ch. 48, par. 858.) Rothbardt, a college professor,
was notified that she would not be given tenure. She then received
a terminal contract. She filed a charge within 180 days of her
last actual day of work but in excess of 180 days of the date
of the notice. The Board of Governors raised a jurisdictional
question throughout.
The circuit court found the agency lacked jurisdiction over
the cause. The appellate court affirmed, holding that timely filing
as a necessary condition to the FEPC’s jurisdiction. In deter-
mining that the period started to run at the time notice was
given, the court relied on Delaware State College v. Ricks (1980),
449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498, where the court
reached a similar result. This court affirmed dismissal of
Rothbardt’s complaint. The court noted that the time limitation
was an inherent part of the right created. (See also Pickering
v. Human Rights Comm’n (1986), 146 Ill. App.3d 340, 496 N.E.2d
20a
746 (where the court held that the 180-day charge-filing limitation
period was an inherent part of the employment discrimination
action created by the statutes); Lee v. Human Rights Comm’n
(1984), 126 Ill. App.3d 666, 467 N.E.2d 943.) Section 8 of the Fair
Employment Practices Act was incorporated into the Illinois
Human Rights Act (Human Rights Act) as section 7-102(A)(1).
Ill. Rev. Stat. 1985, ch. 68, par. 7-102(A)(1).
Petitioner in the instant cause does not contest in this court
that the charge-filing limitation period is an inherent part of
the right created. However, he argues that this court should not
apply Rothbardt to his situation but should only apply it
prospectively. The decision of a court is generally applied
retroactively to the case under consideration. The criteria for
determining prospective or retroactive application of a decision
are: (1) a decision to be applied prospectively must establish a
new principle of law; (2) will the purpose and effect of the new
decision be best served by prospective or retroactive application;
and (3) the equities of the situation. Revoal v. Human Rights
Comm’n (1984), 128 Ill. App.3d 70, 470 N.E.2d 54.
It is part of the inherent power of the court to determine
whether its decision should be prospectively or retroactively
applied. (Lane v. Sklodowski (1983), 97 Il. 2d 311, 454 N.E.2d
322.) Reliance is a factor to be considered. (Brown v. Metzger
(1984), 104 Ill.2d 30, 470 N.E.2d 302.) However, as a general rule,
a decision will be applied retrospectively unless the court
expressly declares that its decision is a clear break with the past,
such as when a court explicitly overrules its own past precedent,
disapproves a practice that it has previously approved, or
overturns a well established body of lower court authority. (People
v. Boswell (1985), 132 Dl. App.3d 52, 476 N.E.2d 1154.) Judicial
interpretation of a statute does not necessarily constitute a change
in the law. People v. Crete (1986), 113 Ill. 2d 156, 497 N.E.2d
751.
Plaintiff argues Rothbardt’s interpretation should not control
his case essentially because Rothbardt was decided after he had
filed his complaint and while the decision of the hearing officer
was pending. He argues his reliance on the intake officer’s
statement and the FEPC’s interpretation of the statute should
bar retroactive application. Parties have a right to rely on the
2la
decisions of the supreme court. (Moehle v. Chrysler Motors Corp.
(1982), 93 Ill.2d 299, 443 N.E.2d 575; Garcia v. Hynes & Howes
Real Estate, Inc. (1975), 29 Ill. App.3d 479, 331 N.E.2d 634.)
Reliance on administrative interpretations is entitled to weight
in determining whether a decision should be given retroactive
or prospective application, but it is not controlling. (People ex
rel. Ponder v. Bensinger (1974), 57 Ill.2d 55, 310 N.E.2d 161.)
It, as well as lower court opinions, is subject to review and
modification by the supreme court.
Although a court of review may also give significant weight
to an agency’s ‘interpretation of a statute which it is charged
with enforcing, the agency’s interpretation is not binding on the
court. (People v. Roos (1987), 118 I1l.2d 203, 212, 514 N.E.2d 993,
998; Illinois Consolidated Telephone Co. v. Illinois Commerce
Comm’n (1983), 95 Ill.2d 142, 447 N.E.2d 295.) An agency,
however, is bound by an uncontested judicial interpretation of
a statute. Spraic v. United States R.R. Retirement Board (9th
Cir. 1984), 735 F.2d 1208, 1211.
The charge-filing limitation period is an inherent part of
the employment discrimination action created by the statutes.
The Rothbardt case was the first judicial interpretation of this
type of language in Illinois, and its interpretation is binding
on the agency. Since timely filing is a jurisdictional part of the
right created and the 180 days is counted from the time of the
discriminatory act, petitioner here has no cause of action. The
Commission was correct in dismissing the action.
An administrative agency can only act pursuant to its
statutory authority. (City of Chicago v. Fair Employment
Practices Comm’n (1976), 65 [.2d 108, 357 N.E.2d 1154; Pickering,
146 Ill. App.3d 340, 496 N.E.2d 746.) Any action outside of that
authority is void. Since the agency interpretation is controlled
by the judicial interpretation of a statute, the agency was bound
by Rothbardt and lacked authority to hear plaintiffs complaint.
Interpretation of the statute did not create new law, there were
no past precedents to break with, and petitioner’s reliance on
the administrative interpretation needs to be balanced with the
potential harm to respondents, who raised the issue throughout.
Petitioner next argues that the charge-filing period should
22a
be tolled because the agency misled him. In Pickering, plaintiff
was employed as a sales manager when his position was
terminated. At the time of termination, he signed a release of
all of his claims against his employer. Subsequently, he filed
an employment discrimination action arguing he had been
terminated because of a physical disability. Pickering argued
that equitable tolling and estoppel concepts should bar enforce-
ment of the 180-day charge-filing limitations period. The appellate
court found to the contrary, noting the distinction between
statutes of limitations and limitations periods which are an
inherent part of the right created. Concepts of equitable stoppel,
tolling, and waiver usually apply to statutes of limitations, not
limitations periods which are inherent parts of the right of action
created. See also Fredman Brothers Furniture Co. v. Department
of Revenue (1985), 109 Il.2d 202, 486 N.E.2d 893, for a discussion
of the distinctions between the two types of limitations.
The appellate court in Pickering found that estoppel did not
apply. In Lee v. Human Rights Comm’n (1984), 126 Il. App.3d
666, 467 N.E.2d 943, the appellate court stated the 180-day charge-
filing limitations period was jurisdictional. The Lee court,
however, stated that if appropriate factors were present, the
employer would be estopped from raising the issue.
Petitioner urges this court to find equitable tolling here based
on the language in Lee and Dartt v. Shell Oil Co. (10th Cir.
1976), 5389 F.2d 1256. Dartt is distinguishable from the instant
case. In Dartt the court reviewed the filing limitations period
in the Fair Labor Standards Act. The court noted the period
was analogous to a statute of limitations so equitable modifi-
cations were appropriate. See also Zipes v. Trans World Airlines,
Inc. (1982), 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127.
In the instant cause, no employer misconduct is involved
so the applicability of the Lee exception need not be addressed.
Additionally, agency representatives did not mislead the
petitioner. The agency position and its interpretation of the law
was correctly stated to petitioner. This interpretation was altered
by a judicial decision. Therefore, neither the agency nor the
employer intentionally misled petitioner to his disadvantage since
both acted on the information available. Equitable tolling is a
concept which should be applied to prevent injustice when the
23a
agency has knowingly misled a complainant or in some manner
acted unfairly. It does not apply under the instant circumstances.
Petitioner next argues that the Commission should have
accepted the CIS as an unperfected charge and allowed the
November 15, 1979, charge to relate back to it. It is uncontested
that under the FEPC rules in effect in 1979, the FEPC could
have accepted a charge for filing if it was written even though
it lacked an element necessary for a perfected charge. A later
amendment would relate back to the original unperfected charge.
Here, the hearing officer found, and the Commission
approved the finding, that no unperfected charge was filed in
a timely fashion. This is essentially a factual determination by
the agency. Factual determinations of administrative agencies
are considered prima facie true and correct. They will be affirmed
unless they are contrary to the manifest weight of the evidence.
Department of Corrections v. Adams (1986), 146 Tl. App.3d 173,
496 N.E.2d 1138.
Petitioner asserts this case is analogous to Logan v. Zim-
merman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102
S. Ct. 1148, and therefore, he has a due process interest in
preservation of his cause of action. In Logan, the United States
Supreme Court held that a State may not terminate a complain-
ant’s cause of action because a State official, for reasons beyond
the complainant’s control, failed to comply with the statutorily
mandated procedure. In Logan, plaintiff filed a timely complaint
with the FEPC, alleging employment discrimination. The statute
gave the FEPC 120 days to convene a fact-finding hearing. After
the fact-finding determination, the FEPC had 180 days to decide
whether it would issue a formal complaint. The FEPC failed
to hold the fact-finding hearing within the 120 days. The Dlinois
Supreme Court affirmed a finding that the FEPC lost jurisdiction
over the cause.
The United States Supreme Court reversed. It held the
complainant had a protected property interest in the continuation
of his cause of action such that it could not be eliminated by
the State’s failure to act. In a footnote, the United States Supreme
Court specifically stated that it was not suggesting a State had
to consider the merits of a claim which was not timely filed.
24a
(Logan, 455 U.S. at 434 n.7, 71 L. Ed. 2d at 277 n.7, 102 S. Ct.
at 1157 n.7.) Illinois courts have applied Logan to similar
situations. (See Lott v. Governors State University (1982), 106
Ill. App.3d 851, 484 N.E.2d 569.) However, the instant situation
is distinguishable from Logan and analogous to the situation
stated in the footnote. Petitioner could not rely on an adminis-
trative interpretation to create a protected property interest in
an action which was not timely under a judicial construction
of the statute.
For the above reasons, we affirm the judgment of the Illinois
Human Rights Commission.
Affirmed.
GREEN, P.J., and LUND, J., concur.
25a
DATE: March 25, 1988
RE: Larrance v. Ill. Human
Rights Commission, et al.
General No. 4-87-0205
TO COUNSEL:
The court today denied the petition for rehearing filed in
the above entitled cause.
The mandate of this court will issue in 7 days to the Clerk
of the Circuit Court unless an affidavit of intent to seek review
in the linois Supreme Court [Rule 368(b)] is filed in this court.
DARRYL PRATSCHER, Clerk
Appellate Court
Fourth District
DP:mcb
TO: Jon D. Robinson David B. Stumpf
Hull, Campbell & Robinson Attorney at Law
132 South Water Street 1701 Towanda Avenue,
Decatur, IL 62523 Box 2901
Bloomington, IL 61701
Wildman, Harrold, Allen & Dixon
Attorneys at Law
One IBM Plaza, Suite 3000
Chicago, IL 60611
Bernard Harrold
Anne G. Kimball
James B. Fiffer
26a
66970
October 6, 1988
Mr. Jon D. Robinson
Hull, Campbell & Robinson
P. O. Box 1765
Decatur, IL 62525
No. 66970 — Charles Larrance, petitioner, v. The Illinois
Human Rights Commission, et al., respondents.
Leave to appeal, Appellate Court, Fourth District.
The Supreme Court today DENIED the petition for leave
to appeal in the above entitled cause.
Stamos, J., took no part.
The mandate of this Court will issue to the Appellate Court
on October 28, 1988.
27a
No. 66970
In Che Supreme Court
of Che State of Illinois
IN THE MATTER OF: ie
CHARLES LARRANCE
Appellant-Petitioner
= Appeal from Fourth
THE ILLINOIS HUMAN RIGHTS District Appellate
COMMISSION, THE ILLINOIS Court of the State of
DEPARTMENT OF HUMAN Illinois
RIGHTS, MACON COUNTY >
FARM BUREAU, COUNTRY
CASUALTY INSURANCE COM- No. 4-82-0205
PANY, COUNTRY INSURANCE
COMPANY, COUNTRY MUT-
UAL INSURANCE COMPANY,
COUNTRY LIFE INSURANCE
COMPANY, and COUNTRY CAP-
ITAL MANAGEMENT COMPANY,
Appellee-Respondent.
of
MEMORANDUM IN SUPPORT OF MOTION OF
AMICUS CURIAE IN SUPPORT OF CHARLES
LARRANCE’S PETITION FOR LEAVE TO APPEAL
Jerald Beene, by his attorney, Gary H. Palm, Mandel Legal
Aid Clinic, respectfully submits this Memorandum of Law in
support of Charles Larrance’s Petition for Leave to Appeal filed
in this case, and states as follows:
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THIS COURT SHOULD ACCEPT
THIS APPEAL BECAUSE IT PRESENTS
A QUESTION OF GENERAL IMPORTANCE
Jerald Beene and approximately five thousand other com-
plainants are directly, adversely affected by the Fourth District’s
decision below. They may lose their rights to pursue their charges
of discrimination against their employers because of the faulty
procedures of the Human Rights Department, and through no
fault of their own. Jerald Beene was forced to have an attorney
accompany him to the Human Rights Department (the “Depart-
ment”) to ensure that the Department would prepare a timely
charge. Approximately five thousand persons have filed timely
Complaint Information Sheets (“CIS”), which were accepted by
the Department as “unperfected charges,” meeting the statute
of limitations criteria.1
1 The Department, pursuant to its Rules and Regulations, 56 Ill. Admin.
Code, Section 2520. 350 b), accepts a written statement from a com-
plainant (the CIS) as an unperfected charge. The Department estimated
in 1987 that over 5000 such unperfected charges have been accepted
since July, 1980. See Department of Human Right’s Exceptions to the
Recommended Order and Decision of the Administrative Law Judge
at 18, n.4, (May 26, 1987) Jose Gonzales and St. Anne’s Hospital, file
no. 1789, charge no. 1987 CF-1488, affirmed by the Ill. Human Rights
Commission (January 25, 1988).
EE |
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STATE OF ILLINOIS
HUMAN RIGHTS COMMISSION
IN THE MATTER OF: a
CHARLES LARRANCE
Complainant
AND CHARGE NOS):
P 1980 SN 0206
COUNTRY CASUALTY INSURANCE et al.
COMPANY, et al.,
Respondents
¢
ORDER AND DECISION
This matter comes before the Commission panel to review
a Supplemental Recommended Order and Decision submitted by
Administrative Law Judge Kenneth N. Parker, Jr. The Com-
plainant claims that he was discriminated against because of
a perceived handicap. The Respondent! claims that the Com-
plainant did not file a charge of discrimination within 180 days
after the alleged discriminatory event, as required by section 8
of the Fair Employment Practices Act.?
The Respondent claims that the failure of the Complainant
to file a timely charge of discrimination deprives the Human
Rights Commission of jurisdiction in this case. This matter was
remanded to the Administrative Law Section to determine if the
1 The Respondents in this case are a group of related companies.
Since they all have the same position with respect to the issues addressed
in this Order and Decision, they will sometimes be referred to collectively
as “the Respondent”.
2 The Fair Employment Practices Act has been repealed by the Human
Rights Act. Under section 9-102 of the Human Rights Act, the cause
of action does not abate. Instead, each charge pending at the time of
repeal was assumed by the Human Rights Commission at the same
stage of proceeding to which it had progressed prior to the effective
date of the Human Rights Act.
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Commission has jurisdiction to proceed to a decision on the merits
of the Complainant’s handicap discrimination claim.
SUPPLEMENTAL RECOMMENDED ORDER AND DECISION
The Administrative Law Judge finds that under the law
which is in effect at this time the date of an alleged discriminatory
termination is the date that the employee is informed that he
is “terminated”, not the last date of employment. Thus, if an
employee is told that he is terminated on April 1, but is allowed
to work until April 15, the employee must file a charge of
discrimination within 180 days of April 1. If the employee waits
until 180 days have elapsed from his last day of employment,
the charge will not be timely. The Administrative Law Judge’s
finding with respect to the current state of the law is based upon
the Appellate Court case of Board of Governors v. Rothbardt,
98 Ill App 3d 423, 53 Ill Dec. 951 (1981). It is undisputed that
the Rothbardt standard is the law in Illinois today.
If the Rothbardt standard is applied to the claim made by
the Complainant, the charge could not be considered timely. The
Complainant filed the charge some 199 days after he received
notice that certain employment contracts he had with the
Respondents would not be continued.
The Complainant argued to the Administrative Law Judge
that the Rothbardt standard should not be applied retroactively
to this case. The Rothbardt decision came down in 1981, after
the Complainant filed the instant charge. It is the Complainant’s
argument that it is unfair to apply the Rothbardt standard to
a decision he made prior to the date that the Appellate Court
decision was published.
The Administrative Law Judge states that the general rule
in Dlinois is that a court decision which interprets a statutory
provision is applied retroactively. Judge Parker states that it is
only in exceptional circumstances that a new court decision is
applied prospectively. He points out that the rule announced in
the Rothbardt decision was applied to Rothbardt herself, even
though Rothbardt filed her charge well before the Appellate Court
decision.
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The Complainant argued in front of the Administrative Law
Judge that a court decision should be applied prospectively if
retroactive application would affect rights which had vested by
reason of an earlier decision. The Complainant argues that the
Fair Employment Practices Commission had ruled that the 180
day period began to run from the last day of employment. Since
the Complainant relied upon this quasi-judicial decision, the
Rothbardt rule should not be applied retroactively.
The Administrative Law Judge found that an individual may
not acquire vested rights by relying on the law as interpreted
by a judicial body, unless the judicial body is the court of last
resort in the state. Since there had not been a binding declaration
by a court of last resort with respect to the 180 day rule at the
time that the Complainant filed his charge, he could not obtain
a “vested right” in the prior law. Thus, the Administrative Law
Judge ruled that the Rothbardt decision applied retroactively to
the facts of this case. Accordingly, he finds that the Complainant
failed to meet the 180 day deadline set out in the Fair Employment
Practices Act, because he filed his charge more than 180 days
after he received notice that hewould be terminated.
The Administrative Law Judge next considers whether the
actions of the Fair Employment Practices Commission worked
to deprive the Complainant of his right to try his case, without
due process of law. In the case of Logan v. Zimmerman Brush
Company, 455 U.S. 422 (1982) the United States Supreme Court
ruled that state action could not work to deprive a Complainant
of his right to try his case under the state anti-discrimination
law. In other words, a Complainant has a property interest in
a cause of action arising under Illinois law. This property interest
cannot be taken away by the state without a hearing which
comports with due process. Thus, the failure of the state to meet
a statutory deadline cannot deprive the Complainant of his cause
of action.
The Complainant argued in front of the Administrative Law
Judge that his failure to file his charge on a timely basis was
due to the fact that he relied upon misinformation from a state
agency. Thus, he contends that it was the state which took away
his cause of action. Accordingly, he argues that this case is
analogous to Logan v. Zimmerman Brush Company.
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The Administrative Law Judge accepted the Complainant’s
arguments with respect to the Constitutional question. On page
11 of the Supplemental Recommended Order and Decision the
Administrative Law Judge states that it was “state action” which
caused the late filings. Judge Parker states that it would be a
deprivation of due process to dismiss the instant claim based
upon the action of the state. Accordingly, the Administrative
Law Judge recommends that the case be considered on its merits,
because the Supreme Court case of Logan v. Zimmerman Brush
Company prevents the dismissal of a cause of action based upon
the malfeasance of the state.
Finally, the Administrative Law Judge rejects the Complain-
ant’s argument that he filed a timely charge on July 9, 1979.
The Complainant contended that he gave the Fair Employment
Practices Commission all the information it needed to file a charge
on that date. It is his contention that the signing of a document
which contains his allegations is a mere technical detail. Thus,
the signing of the ultimate charge in this case should “relate
back” to the date on which the Fair Employment Practices
Commission received the information upon which the charge
was based. Since this date was within the 180 day filing period,
the Complainant argues that his charge was timely filed. Judge
Parker rejects this argument based upon the clear wording of
the statute which requires that charges be in writing, signed
and filed within 180 days of the alleged discriminatory event.
THE RESPONDENT’S EXCEPTIONS
The Respondent argues that the case of Logan v. Zimmerman
Brush Company does not apply to the facts of the case at bar.
In Logan it was argued that the Complant’s charge should be
dismissed because the Fair Employment Practices Commission
failed to conwene a fact finding conference within 120 days of
the filing of the charge. This position was upheld by the Illinois
Supreme Court. Zimmerman Brush Company v. Fair Employ-
ment Practices Commission, 82 I11.2d 99, 411 N.E. 2d 277 (1980).
The U.S. Supreme Court said that such a rule violated the
Complainant’s right to due process. Justice Blackmun, speaking
for the Court, said that the state may not finally destroy a property
Os
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interest without first giving the putative owner an opportunity
to present his claim. of entitlement. This language is accompanied
by a footnote which reads as follows:
This is not to suggest, of course that the state must
consider the merits of the claim when the claimant
fails to comply with a reasonable procedural require-
ment or fails to file a timely charge. (Logan, supra,
fn.7; emphasis in original)
As can be seen from the above quotation, the U.S. Supreme
Court has made it crystal clear that the rationale behind the
Logan decision does not apply when the claimant fails to file
a timely charge. Thus, it appears that the Logan decision is not
analogous to this case.
The Administrative Law Judge states, however, that it was
not the Complainant’s fault that the charge was not timely filed.
Judge Parker states that the Complainant’s failure to file on
a timely basis was a direct result of the Commission’s ruling
and its employee’s statement. Thus, he concludes that it was
state action, and not the Complainant’s fault which led to the
failure to file a timely charge.
The problem with this analysis is that it directly contradicts
the portion of the Supplemental Order and Decision which states
that no one may obtain a vested right in a judicial determination
unless the determination is made by the court of last resort in
the state. When the employee of the Fair Employment Practices
Commission told the Complainant that the filing period began
to run on the last day of employment, the complainant was
receiving the position of the Fair Employment Practices Com-
mission, as stated in the case of Rothbardt and Northeastern
Illinois University, 4 Ill FEP Rep. 8. This decision is clearly not
an interpretation of the Fair Employment Practices Act by a
Court of last resort in Illinois. Thus, under Judge Parker’s own
analysis, the Complainant could have obtained no vested right
in the FEPC interpretation of the law. Accordingly, the fact that
the Appellate Court reversed the Commission’s decision cannot
be considered a “taking” of the Complainant’s “property” within
the meaning of the due process clause. Since the Complainant
had no right to rely on the position of the Fair Employment
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Practices Commission, his failure to file a timely charge with
the FEPC comes squarely within the wording of footnote 7 to
Logan v. Zimmerman Brush Company. In view of the fact that
~ the U.S. Supreme Court has specifically stated that the failure
of a Complainant to file a timely charge does not, by itself,
constitute a taking of a property interest without due process,
the Administrative Law Judge’s analysis must be rejected. The
case of Logan v. Zimmerman Brush Company does not require
that the Complainant be given a hearing, even though he did
not file a timely charge.®
In his response to the Respondent’s exceptions the Complain-
ant sets forth another argument in support of his position that
the Commission should consider this case on its merits. He states
that even if the charge were not timely filed, and even if there
were no Constitutional deprivation, his action in going to the
Fair Employment Practices Commission and asking to file a
charge worked to toll the 180 limitations. In other words, he argues
that the 180 day time limitation is subject to concepts such as
equitable tolling.
This position has recently been rejected oy the Illinois
Appellate Court. In the case of Pickering v. Illinois Human Rights
Commission, 146 Ill.App.3d 340, 496 N.E.2d 746 (1986) the
Appellate Court ruled that the 180 day filing deadline is not in
the nature of a statute of limitations, subject to the doctrines
of waiver, estoppel and equitable tolling. . DLApp.3d. _,
496 N.E. 2d 746, 750. According to the Pickering court, the failure
to file within the 180 day period extinguishes the cause of action.
Thus, once it is established that a timely charge was not filed,
the Human Rights Commission no longer has jurisdiction over
the case. The court went on to say that if the employer misleads
the Complainant in a way which prevents him from filing a
timely charge, the employer may be estopped from raising the
3 What we have said here applies only to instances where Commission
employees transmit to Complainants correct information concerning the
Commission’s position. need not decide in this case if the due process
clause of the Constitution is violated when a state employee gives a
Complainant incorrect information which leads to an untimely filing.
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180 day period as a defense. According to the Pickering Court,
this is a narrow exception to the 180 day jurisdictional time limit.
In this case there is no evidence that the Respondent misled
the Complainant with respect to the time for filing a charge
of discrimination. Accordingly, the Complainant cannot argue
that the defendant should be estopped from asserting the
jurisdictional defense. Since it is quite clear that the Complainant
did not file his charge within 180 days, under the Pickering
decision it appears that the Human Rights Commission is without
jurisdiction to proceed.
The Complainant urges the Commission to follow the federal
court case of Dartt v. Shell Oil Company, 539 F.2d 1256 (10th
Cir. 1976). The Court of Appeals for the Tenth Circuit held in
that case that equitable tolling would apply to the action or lack
of action of a federal employee. The Dartt case is based upon
the proposition that the filing period under federal law is a statute
of limitations. This is consistent with the ruling of the U'S.
Supreme Court that the filing period under Title VII of the Civil
Rights Act 1964 is a statute of limitations, and not jurisdictional.
Zipes v. Transworld Airlines, Inc., 455 U.S. 385 (1982). We find
much merit in the approach used by the Supreme Court in Zipes.
We are not, however, writing on a clean slate. As stated above,
the Illinois Appellate Court has already determined that the Zipes
doctrine does not apply in Illinois. The 180 day deadline is in
the nature of a jurisdictional limitation, and not a s.atute of
limitation. We have no authority to decline to follow a binding
ruling of the Appellate Court of Illinois. Consequently, we find
that there is no jurisdiction vested in the Human Rights
Commission to reach the merits of this case.
IT IS THEREFORE ORDERED
1. That the Complaint filed in the instant matter is
dismissed with prejudice on the ground that the Human Rights
Commission has no jurisdiction over the claims made by the
Complainant.
2. That the Supplemental Recommended Order and Deci-
sion in this matter is reversed. The factual findings of the
Administrative Law Judge are accepted by the Commission only
eee
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to the extent that they are not inconsistent with this Order and
Decision.
3. Thatall motions and exceptions not previously dealt with
by the Commission, and not specifically mentioned in this Order
and Decision are hereby denied.
4. That this Order and Decision is final and appealable.
(Commissioner Lillian A. Mitchell, Commissioner Randall
Raynolds, Commissioner Howard R. Veal, Sr.)
HUMAN RIGHTS COMMISSION
Lillian A. Mitchell
Randall Raynolds
Howard R. Veal, Sr.
Entered:
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