# Petition for Writ of Certiorari — Larrance v. Illinois Human Rights Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0714%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 489 U.S. 1054 ## Text 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 Ee oo rciebebaW hs esse ssa dWiseeceseesoeesen NE eee ere ee errs CONSTITUTIONAL AND STATUTORY PE MUTE TED ov co vnccsesesccesccscccceccccces 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 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: 28a 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 | 29a 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. 30a 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. 3la 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. 32a 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 33a 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 34a 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. 35a 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 36a 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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0714%3A1. Public record. Not legal advice.