Supplemental Appellees Brief — Logan v. Zimmerman Brush Co.

No. 80-5950

3n the

Supreme Court of the Anited States

Octoper Term, 1980

CTS

LAVERNE L. LOGAN,

Appellant,

v8.

ZIMMERMAN BRUSH COMPANY,

Appellee.

On Appeal From The Supreme Court Of Illinois

SUPPLEMENTAL BRIEF FOR APPELLEE

ZIMMERMAN BRUSH COMPANY

Jay A. Caven

Karen M. Dorrr

Rupyick & WoLre

80 North LaSalle Street

Suite 2800

Chicago, Illinois 60602

(312) 368-4000

Counsel For Appellee

Zimmerman Brush Company

The Scheffer Press, Inc.—(312) 263-6850

This Supplemental Brief is filed

by Rudnick & Wolfe pursuant to

the request of this Court.

i

QUESTIONS PRESENTED

The Supreme Court of Illinois construed Section 8(b)

of the Illinois Fair Employment Practices Act as re-

quiring that a discrimination charge be automatically

dismissed unless the state agency administering the Act

held a hearing on the charge within 120 days of its filing.

The questions presented are:

1. Whether Section 8(b), as construed, violated the

federal due process and equal protection rights of a

complainant whose charge was not heard within 120 days

of filing because of the negligence of the state agency.

2. Whether reinstating the complainant’s discrimina-

tion charge against his employer, as a means of remedy-

ing the state agency’s negligence, is an appropriate exer-

cise of the appellate jurisdiction of this Court.

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ....cssesseseseeeneeeeenenenes i

TABLE OF AUTHORITIES .......ccccesesseeeseneseeseneeeeenes il

STATUTES AND PROVISIONS INVOLVED ........ 1

STATEMENT OF THE CASE ....ccsssssseeeeens 2

SUMMARY OF ARGUMENT un. scsssseseseeneseeeeneneenes 5

BREMNER, sacinsscnpssmnvesnnersccsccrsnnsnicrnennncncnoncnsevensensessenennsenees 7

I. Logan Was Not Deprived of Property or Lib-

erty Within the Meaning of the Fourteenth

Amendment, Because Logan’s Rights Under

the Illinois Fair Employment Practices Act

Were Conditioned on a Timely Conference, and

No Such Conference Was Held .w.cccscssseseeee 7

II. Assuming Arguendo That Logan Was De-

prived of Property, the Company Was Not Re-

sponsible for That Deprivation, and Should

Not Be Forced to Sacrifice its Substantive

Rights Under State Law to Redress the Com-

III © esas pohsmnemmecdbaononssinenibtonte 20

a oan sale seanhcuenonenethbonssn’ 26

ESET Ss CE EO ee la

TABLE OF AUTHORITIES

Cases: PAGE

Arnett v. Kennedy, 416 U.S. 184, 94 S.Ct. 1633

AERTS SERS S EER eo 15, 17

Barry v. Barchi, 443 U.S, 55, 99 S.Ct. 2642 (1979) .... 15

Board of Governors v. Illinois Fair Employment

Practices Commission, 78 Ill.2d 148, 399 N.E. 2d

SII? shies shacicbbipsstncinississvlasdisaienessosssioneviessceeesenens 12

ili

PAGE

Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701

ETT sib vaccisheecuthennninstaphionincuchnascdbnistsiaausieuinemweecunnninanters 8

Chandler v. Florida, ........ | Rea 101 S.Ct. 802

IF SIUIEE 0: “cesnoisncnsdaeahstuiisissinsendoaiobiapeueddipuaibicnennteminbichpeiniees 7

City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490

RISE. sncosssesiniahencivineodinisaioiebindaisehemnnabecneonaeccianieaiinumnies 19

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970)... 15

Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1978)... 15

Henry v. Misstssipni, 379 US. 448, 85 S.Ct. 564

ERD 1 esaceshdisscsecsdsionsesaenbsiuiznnenbiansessiaoseianesgeuesiseeninnsenainusints 14

Hortonville Joint School District v. Hortonville Edu-

cation Association, 486 U.S. 482, 96 S.Ct. 2308

UUPITIED s couisitccistsnsuacciceattacesniininsoseamsiancesuiescssamnpsneesadionaineevennian 14

Liebman v. Board of Governors, 79 Ill. App.8d 89,

$98 N.B.2d 305 (1st Dist. 1979) cccccccrsssressessees 24

Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862 (1972)... 18

Lusietto v. Kingan, 107 Til. App.2d 239, 246 N.B.2d

Bie Uae PNIIING > SUNN ua cnicakstisccnisscnatenietsdeummtmnaseardeniuneaiis 25

Martinez v. California, 444 U.S. 277, 100 S.Ct. 553

UMEIEE 1: ssaichabamanasobesduedesiapubetensiaaenondciaamnsniiidatendionaaell 5, 8-9, 20

Mohasco v. Silver, 447 U.S. 807, 100 S.Ct. 2486

ERIE > svssssiedesseuseveancasthansaecaddiscaléseinesencdemssnsselabiasiaaennaiiets 15

Parratt v. Taylor, ........ ik SUpeeaeet , 101 S.Ct. 1908,

CTI ” pilaniosibensdacasuansesieauatisuassabics toanaeaniiamseaainial 6, 8, 22-24, 25

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155 (1978) ..16-18

San Antonio Independent School District v. Rodriquez:

RR Cite Dy Se a SIO CRUG OD sceinstivesciserridonesninns 19

Spagnuolo v. Whirlpool, 467 F.Supp. 364 (W.D.N.C,

UTUTE shseelcaidlipaih lebih slidiialcckannanlceianiinieiastancadiisicsen 11

Spring field-Sangamon County Regional Plan Commis-

sion v. Illinois Fair Employment Practices Com-

mission, 71 Ill.2d 61, 373 N.E. 1307 (1978) ..11-12, 13, 19

iv

PAGU

Zimmerman Brush Co. v. Illinois Fair Employment

Practices Commission, 82 Ill.2d 99, 411 N.E.2d 277

CRI) sccessarsrsersssnscovsenarenssaneenneniosenrsbanaseannenenntsiavaeniaigl passim

CoNnsTITUTIONS:

Fourteenth Amendment to the United States Con-

IIIA. scssisisaccsseceeseiniisevsnasenipssaciuieasintgnnnisaaaianiatiial passim

Article 13, Section 4 of the Illinois Constitution ... 24

STATUTES:

Illinois Fair Employment Practices Act, Ill. Rev.

Stat. ch. 48, §§851 et seq. (1979) (current version

at Ill. Rev. Stat. ch. 68, §§1-101 et seq. (Supp.

TENET) senncnenicnitinvnciannmnnnennniniuamial passim

Illinois Equal Opportunity for the Handicapped Act,

Til. Rev. Stat. ch. 38, §§65-21 et seg. (1979) (eur-

rent version at Ill. Rev. Stat. ch. 68, §§1-101 et

Cbg: (BR. TERED siccnnmninsmninienennisinnmaasiiitinns 25

Illinois Human Rights Act, Ill. Rev. Stat. ch. 68,

$§$1-101 62 seq. (Supp. 1980) ccccscccssvcrcersrersssrvsseceees 4, 25

Til. Rev. Stat. ch. 127 $801 (1979) cccsscscssssssrersssees 24

Illinois Court of Claims Act, Ill. Rev. Stat. ch. 37,

Sen 06 BOR. CORTE) | senntmieienianae 24

pa oe

“The statutory scheme here was to provide, through

administrative and judicial channels, a means of re-

lief from discriminatory employment practices. The

legislature could establish reasonable procedures to

be followed upon a charge, and the observance of

them here did not violate [Logan’s] constitutional

rights.”

82 Tll.2d at 108; 411 N.E.2d at 282 (1980).

SUMMARY OF ARGUMENT

The State of Illinois can place reasonable limitations

on a state-created cause of action for employment dis-

crimination based on physical handicap. Since whatever

property and liberty interests Logan claims to have were

created by state law, not federal law, this Court must

look to the Illinois Supreme Court's decision to de-

termine whether Logan’s right to a cause of action

against the Company came within the definition of “prop-

erty” or “liberty.” The Illinois Supreme Court held that

the Commission’s failure to convene a timely fact-find-

ing conference on Logan’s charge required the automatic

dismissal of that charge in view of the underlying pol-

icies, stated goals and mandatory language of the FEPA.

This construction of Section 8(b), binding on this Court,

means that under Illinois law, Logan was not guaranteed

a right to prosecute his FEPC charge unless the Com-

mission performed its statutory duty, which it failed to

do. Even if some causes of action can be considered

‘*property’’ under this Court’s decision in Martinez v.

California, 444 U.S. 277, 100 S.Ct. 553 (1980), Logan’s

interest in his Illinois FEPA charge cannot, because the

120-day conference requirement of Section 8(b), and the

automatic dismissal which results when that require-

ment is not met, are important aspects of the State’s

—

definition of the interest created under the FEPA. The

requirements of Section 8(b) applied with equal force

to each and every complainant who filed an FEPA charge

while that statute was in effect. Logan has therefore

failed to state a violation of his federal due process

and equal protection rights.

Even if a property interest is assumed to exist, Logan

is not entitled to have his cause of action against the

Company reinstated before the Commission. The Illinois

Supreme Court has recognized that under Illinois law,

employers charged with employment discrimination have

certain rights, including the right to expect the Com-

mission to follow statutory procedures on a charge. Rein-

stating Logan’s charge would impermissably shift the

burden for the Commission’s negligence to the Company,

in contravention of express policies embodied in the

FEPA and with no apparent justification under the Four-

teenth Amendment. Reinstatement can only be accom-

plished by invalidating Section 8(b), a statute since re-

pealed, amended and reenacted as part of a comprehen-

sive Human Rights Act, as repugnant to the United

States Constitution, a drastic and unnecessary result.

Under this Court’s recent decision in Parratt v. Taylor,

jsshabade US. «0, 101 S.Ct. 1908 (1981), a postdeprivation

remedy can satisfy due process requirements when a de-

privation occurs as the result of a state employee’s ran-

dom and unauthorized negligence. Several different rem-

edies against the Commission may be available to Logan

under Illinois law, but Logan has not chosen to pursue

any of them. Logan has therefore not been deprived of

property ‘‘without due process of law.’’

po yore

ARGUMENT

I. Logan Was Not Deprived of Property or Liberty

Within the Meaning of the Fourteenth Amendment,

Because Logan’s Rights Under the Illinois Fair Em-

ployment Practices Act Were Conditioned on a Timely

Conference, and No Such Conference Was Held.

This Court has recently reaffirmed that it has no

supervisory jurisdiction over state courts, and that its

role in reviewing state court judgments is confined to

evaluating those judgments “in relation to the Federal

Constitution.’’ Chandler v. Florida, ........ Bs sation enone ;

101 S.Ct. 802, 807 (1981). Thus, the issue esate be-

fore the Court on this appeal is not the wisdom of the

Illinois legislature in enacting Section 8(b) of the Fair

Employment Practices Act, nor the correctness of the

Illinois Supreme Court’s decision construing that statute;

the questions is whether that statute, as construed, vio-

lated Laverne Logan’s rights to due process and equal

protection under the Fourteenth Amendment to the United

States Constitution.

An analysis of the Illinois Supreme Court’s decision

is pertinent, however, to an analysis of whether a prop-

erty or liberty interest arose under Illinois law in con-

nection with Logan’s charge of employment discrimina-

tion because, in order to invoke the federal due process

and equal protection clauses, Logan must show that he

was deprived of property or liberty under color of state

law. And, as this Court has explained, property interests

“are not created by the Constitution. Rather, they are

created and their dimensions are defined by existing rules

or understandings that stem from an independent source

such as state law—rules or understandings that secure

benefits and that support claims of entitlement to those

ro ee

benefits.’? Parratt v. Taylor, ....... i oa > saan , 101

S.Ct. 1908, 1910 n.1 (1981); Board of Regents v. Roth,

408 U.S. 564, 577, 92 S.Ct. 2701 (1972). Logan does not

contend that his right to be free from discrimination in

employment on the basis of his physical handicap arises

from any source other than state law (Brief for Ap-

pellant at 26).

In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553

(1980), the survivors of a young girl murdered by a

parolee sued state parole officials, alleging that their

negligent decision to release the parolee despite his known

dangerous propensities resulted in the girl’s death. A

state statute conferred on the officials complete im-

munity from state-law claims for injuries resulting from

their parole determinations. The plaintiffs contended

that by barring their state-law cause of action against

the parole officials, the state immunity statute violated

the Fourteenth Amendment to the United States Con-

stitution. In upholding the California statute, this Court

noted:

“Arguably, the cause of action for wrongful death

that the State has created is a species of ‘prop-

erty’ protected by the Due Process Clause. On that

hypothesis, the immunity statute could be viewed as

depriving the plaintiffs of that property interest

insofar as they seek to assert a claim against parole

officials.”

444 U.S. at 281-82, 100 S.Ct. at 557. Both Logan and the

Commission rely on the first sentence quoted above to

support their position that Logan’s right to a cause of

action against the Company was “property” under TIIli-

nois law. Such reliance is misplaced when the quoted

language is read in conjunction with the Court’s foot-

note to the same passage:

=

“Tt is arguable, however, that the immunity de-

fense, like an element of the tort claim itself, is

merely one aspect of the State’s definition of that

property interest. Recently, in considering a law-

yer’s claim of immunity in a state malpractice ac-

tion, we noted that ‘when state law creates a cause

of action, the State is free to define the defenses

to that claim, including the defense of immunity,

unless, of course, the state rule is in conflict with

federal law.’ ”’

444 U.S. at 282 n. 5; 100 S.Ct. at 557 n. 5 (citations omit-

ted). The decision of the Illinois Supreme Court in this

case strongly supports the conclusion that the 120-day

conference requirement of Section 8(b) is merely one as-

pect of the State’s definition of the property interest

created by its Fair Employment Practices Act.

The Illinois Fair Employment Practices Act (“FEPA’)

first became law in 1961. As originally enacted, Section

3 of the FEPA prohibited employment discrimination on

the basis of race, color, religion, national origin or an-

cestry. Ill. Rev. Stat. ch. 48, §853 (1961). In 1975, See-

tion 3 was amended to include “physical or mental handi-

cap unrelated to ability” as a protected basis. Ill. Rev.

Stat. ch. 48, §853 (1975).

Illinois thus chose to join the thirty-seven other states,’

and the District of Columbia, which have enacted statutes

prohibiting discrimination against handicapped persons

* Alaska, California, Colorado, Connecticutt, Florida,

Georgia, Hawaii, Indiana, Iowa, Kansas, Kentucky, Lou-

isiana, Maine, Maryland, Massachusetts, Michigan, Min-

nesota, Missouri, Montana, Nebraska, Nevada, New Hamp

shire, New Jersey, New Mexico, New York, Ohio, Oregon,

Pennsyivania, Rhode Island, Tennessee, Texas, Utah, Ver-

mont, Virginia, Washington, West Virginia, and Wis-

consin.

a= 10) ax

in the private work force. The various laws in these

states differ greatly in both substance and procedure.’

* See Alaska Stat. §§18,80.010—18.80.300 (1974 & Supp.

1980); Cal. Gov’t Code §§12900—12996 (West 1980);

Colo. Rev. Stat. §24-34-301 et seq. (1980 Cum. Supp.);

Conn. Gen. Stat. Ann. §$46a-51—46a-99 (West Supp.

1981); Fla. Stat. Ann. §§23.161—23.167 (West Supp.

1981); Ga. Code Ann. §§66-501—66-506 (Supp. 1981);

Haw. Rev. Stat. §§378-1—378-38 (1976 & Supp. 1980);

Ind, Code Ann. §22-9-1-1 et seq. (Burns 1974 & Supp.

1980); Iowa Code Ann. §§601A.1—601A.17 (West 1975

& Supp. 1981-82); Kan. Stat. Ann. §44-1001 et seq. (1973

& Supp. 1979); Ky. Rev. Stat. §§207.1830—207.240 (1977

& Supp. 1980); La. Rev. Stat. Ann. §§46.2251—46.2256

(West Supp. 1981); Me. Rev. Stat. Ann. tit. 5, §4551 et

seq. (West 1979 & Supp. 1980-81); Md. Ann. Code art.

49A, §§1-28 (1979); Mass. Gen. Laws Ann. ch. 149, §24K

(West Supp. 1981); Mich. Comp. Laws Ann. §37.1101 et

seq. (West Supp. 1981); Minn. Stat. Ann. §§363.01—

363.14 (West 1966 & Supp. 1981); Mo. Ann. Stat. §§296..-

010—296.070 (Vernon Supp. 1981); Mont. Rev. Code Ann.

§§64-301—64-330 (Cum. Supp. 4 _ 1977); Neb. Rev.

Stat. §§48-1101—48-1125 (1978 & § ~~ 1980); Nev. Rev.

Stat. §§613.310—613.430 (1979); N. H. Rev. Stat. Ann.

§$354-A :1—354-A:14 (1966 & Supp. 1979); N.J. Stat.

Ann.§§10:5-1—10:5-38 (West 1976 & Supp. 1981); N. M.

Stat. Ann. §§28-1-1—28-1-14 (1978 & Supp. 1981); N.Y.

Exec. Law §§290-291 (McKinney 1972 & Supp. 1980);

Ohio Rev. Code Ann. §§4112.01—4112.99 (Page 1980);

Or. Rev. Stat. §§659.400—659.435 (1979); Pa. Stat. Ann.

tit. 43, §4§951—963 (Purdon 1964 & Supp. 1980); R.I. Gen.

Laws §§28-5-1—28-5-39 (1979 & Supp. 1980); Tenn. Code

Ann. §§8-50-103, 8-50-104 (1980); Tex. Human Re-

sources Code Ann. tit. 8, §§121.001—121.009 (Vernon

1980); Utah Code Ann, §§34-35-1—34-35-8 (1974 & Supp.

1979); Vt. Stat. Ann. tit. 21, 4498 (1979); Va. Code §40.1-

28.7 (1981); Wash. Rev. Code Ann. §§49.60.010—49.60.320

(1962 & Supp. 1981); W. Va. Code §§5-11-1—5-11-15

(1979 & Supp. 1981); Wis. Stat. Ann, §§111.31—111.37

(West 1974 & Supp. 1981).

=

Three additional states prohibit such discrimination only

in public employment;’ eight others do not prohibit em-

ployment discrimination against the handicapped at all.‘

In interpreting the 120-day conference requirement

contained in Section 8(b) of the FEPA as mandatory,

the Supreme Court of Illinois examined the statutory

language “within the context of the entire statute, look-

ing particularly to the purpose of the legislation.” Zim-

merman Brush Company v. Fair Employment Practices

Commission, 82 Ill.2d 99, 103, 411 N.E.2d 277, 280 (1980)

(J.A. 30-31). The Illinois Supreme Court viewed the

case against the background of earlier decisions in which

the court had unequivocally held that a similar time re-

quirement, contained in another section of the FEPA,

was intended by the legislature to be mandatory. In

Springfield-Sangamon County Regional Plan Commission

v. Illinois Fair Employment Practices Commission, 71

Tll.2d 61, 373 N..2d 13807 (1978), the court had been

called on to construe Section 8(¢c) of the FEPA, which

at the time of the filing of the charge in that case pro-

vided:

*Alabama (See Ala. Code tit. 21, §21-7-8 (1975));

Arkansas (See Ark. Stat. Ann, §§82-2901—82-2907 (Supp.

1981)); and Mississippi (See Miss. Code Ann. §43-6-15

(Supp. 1979)).

*Arizona (See Ariz. Rev. Stat. Ann. §41-1463 (West

Supp. 1980-81)), Delaware (See Del. Code tit. 19, §711

(1974)). Idaho, North Dakota, Oklahoma, South Carolina,

South Dakota (See S.D. Codified Laws §20-13-10 (1979)),

and Wyoming. North Carolina’s Equal Employment Prac-

tices Act does not prohibit discrimination, but declares it

to be against ‘‘publie policy.’? N.C. Gen. Stat. §§143.422-

1—143.422-3 (1978); accord, Spagnuolo v. Whirlpool, 467

F.Supp. 364 (W.D.N.C. 1979).

«nn com

‘*Whenever a charge of an unfair employment prac-

tice has been properly filed, the Commission, within

180 days thereof, 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 the com-

plainant and the respondent.”

Ill. Rev. Stat. ch. 48, §858(c) (1967) (current version at

Ill. Rev. Stat. ch. 68, §7-102(G) (Supp. 1980)). The court

in Springfield-Sangamon ruled that the 180-day period

requirement “was intended to ensure expeditious action

on behalf of the [Commission], and must be considered

mandatory.” 71 TlL.2d at 68, 373 N.E.2d at 1310. In

reaching this conclusion, the court noted that de-

lays by the Commission ‘‘would tend to hamper the

remedial and reconciliatory procedures which underlie

the very purpose of the Fair Employment Practices Act,”

71 Til.2d at 68, 373 N.E.2d at 1310, and analogized the

180-day requirement to a statute of limitations. Jd.

In 1979, the Illinois Supreme Court issued a writ of

prohibition against the Commission in the case of

Board of Governors v. Illinois Fair Employment Prac-

tices Commission, 78 Tll.2d 143, 399 N.E.2d 590 (1979).

Relying on Springfield-Sangamon, the court held that the

Commission could not proceed on a complaint which it had

filed after the expiration of the 180-day period.

Thus, for nearly two years before Logan filed his charge

in this case, the clear state of the law in Illinois was

that inaction by the Commission could result in the for-

feiture of a complainant’s rights to have his charge in-

vestigated and evaluated. In Springfield-Sangamon, the

court addressed this very issue:

“Although an aggrieved individual who has suf-

fered discrimination should not be deprived of the

=== 13

benefits of the Act because of administrative failures,

we must also consider that those charged under

the Act have the right to a determination of the

validity of the charge within the time limitations

of the statute. In the event of a finding against a

respondent the impact of the administrative order

may be severe. In this case, the order was entered

March 29, 1973, almost 5 years after the alleged un-

fair employment practice. This period of time would

have been substantially shortened and the amount of

money the respondents would have been required

to pay [the complainant] as accrued salary and

interest would have been considerably less if [the

complainant] and the [Commission] had complied with

the statute. The respondents have the right to ex-

pect that the impact of such administrative orders

will be minimized by compliance with the statutory

time limitations.”

71 ill.2d at 73, 373 N.E.2d at 1312.

In Logan’s case before the Illinois Supreme Court, the

Commission argued that the Springfield-Sangamon ra-

tionale should not be applied to Logan’s case, where

the charge was filed five days after termination of em-

ployment and the conference convened five days after

the 120-day limitation period had run. (J.A. 32). What-

ever the merits of this position may be as a matter of

raw justice or social policy, the Illinois Supreme Court

firmly rejected it as a matter of state law:

“We deem that this contention that the confer-

ence should be allowed to proceed beyond the 120-

day period interprets Springfield-Sangamon too nar-

rowly and ignores the goals underlying section 8(b).”

82 Ill.2d at 105, 411 N.E.2d at 281. (J.A. 32).

Noting that Section 8(b) had been enacted after the

Springfield-Sangamon dccision had construed the word

“shall” in Section 8(c), the court held:

a

“We consider that the legislature’s use again of

the term ‘shall’ in section 8(b) indicates an inten-

tion that the prescription of a 120-day period be

given a manadtory construction. . . . It is reason-

able to consider that under these circumstances the

legislature intended to accept the prior construction

of ‘shall.’”

82 Ill.2d at 104-05; 411 N.E.2d at 280-81. (J.A. 21-32).

This interpretation of state law by the highest court of

the state is binding on this Court. Hortonville Jot

School District v. Hortonville Education Association, 436

U.S. 482. 96 S.Ct. 2308 (1976); Henry v. Mississippi,

379 U.S. 443, 85 S.Ct. 564 (1965). The Illinois Supreme

Court’s opinion holds that the Commission’s failure to

act on a complainant’s charge within statutory time limi-

tations results in the automatic dismissal of that charge.

Thus, the 120-day conference requirement of Section 8(b)

is, in effect, a condition precedent to an individual com-

plainant’s rights under the FEPA.

Logan’s argument that once filed, his charge could only

be dismissed “for cause,” ignores the holding of the IIli-

nois Supreme Court that a charge must be automatically

dismissed if the Commission fails to comply with statu-

tory time limitations. 82 Ill.2d at 106, 411 N.F..2d at 282.

If a charge can be automatically dismissed, then obviously

it can be dismissed for reasons other than “for cause.”

Logan therefore had no property interest in his FEPA

charge unless and until a timely conference was held. If

it is true, as Logan contends, that ‘‘the presentation of

an FEPA case is controlled entirely by the complainant,’’

(Brief for Appellant at 28 n.6) then it would be the

complainant’s responsibility to make sure that the Com-

mission scheduled the fact-finding conference within 120

a eN

days, which Logan did not do.’ If that is not the case,

then the only logical alternative is that Illinois has chosen,

for various policy reasons underlying the statute, to

place the potential rights of employment discrimination

complainants in the hands of the Commission, which is

the state agency charged with the prompt administration

of the FEPA.

Because no timely hearing was held, Logan’s interest

never rose to the level of a statutory entitlement such

as those involved in the cases he cites. In Goldberg v.

Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970), recipients’

welfare benefits could not be terminated by the state

without ‘‘cause’’; in Goss v. Lopez, 419 U.S. 565, 95 S.Ct.

729 (1973), state law required “grounds” before a stu-

dent could be suspended from school; in Barry v. Barchi,

443 U.S. 55, 99 S.Ct. 2642 (1979), state law required a

finding of “at least negligence” before a horse trainer’s

license could be revoked; in Arnett v. Kennedy, 416 U.S.

134, 94 S.Ct. 1633 (1974), a public employee could only

be terminated “for cause” under state law. As noted

above, Logan’s citation of these authorities begs the

issue, because Illinois law not only allows but requires

“automatic dismissal” of FEPA charges for a reason

* Although the soundness or fairness of Illinois law is

not an issue properly before this Court, it is interesting

to note this Court’s recent decision in a somewhat anal-

ogous Title VII context. In Mohasco v. Silver, 447 U.S.

807, 100 S.Ct. 2486 (1980), a claimant’s EEOC charge

was held to be time-barred for failure to file within the

statutory time limitation for deferral states, despite the

existence of prior FEOC regulations and lower court case

law which had interpreted the limitation in a manner

which supported the claim of timeliness. This Court held

that it was not unfair to require pro se complainants to

observe the statutory requirements which it was then

construing for the first time.

ne

other than “for cause:” the failure of the Commission

to meet statutory time limitations enacted to effectuate

the FEPA’s purposes.

Logan correctly asserts that his right to procedural

due process arises, not from state law, but from the fed-

eral Constitution. He then argues that Illinois should not

be allowed to “simultaneously create protected interests

and limit those interests by procedures that violate due

process.” Brief for Appellant at 32. This reasoning is

faulty in two respects.

First, Logan was not deprived of “property”. Pro-

cedural due process applies only where there is a dep-

rivation of “liberty” or “property” within the meaning

of the Fourteenth Amendment. In Paul v. Davis, 424

U.S. 693, 96 S.Ct. 1155 (1978), the Court reviewed various

types of interests which have been found to constitute

“liberty” or “property”. The Court then noted:

“In each of these cases, as a result of the state

action complained of, a right or status previously

recognized by state law was distinctly altered or ex-

tinguished. It was this alteration, officially removing

the interest from the recognition and protection pre-

viously afforded by the State, which we found suffi-

cient to invoke the procedural guarantees contained

in the Due Process Clause of the Fourteenth Amend-

ment.

424 U.S. at 711; 96 S.Ct. at 1165 (emphasis added).

Since the Illinois Supreme Court ruled that Logan’s

FEPA charge was dependent on the timely convening

of a fact-finding conference, the statute which gave

Logan the right to file a charge did not, in and of it-

self, afford Logan any protection from the negligent

failure of the Commission to convene the conference.

When the state does not vouchsafe an individual’s right

oy

or interest, no “liberty” or “property” interest has been

created within the meaning of the Fourteenth Amend-

ment. Cf. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155

(1978) (no legal guarantee under state law of present

enjoyment of reputation). Logan cannot claim a right

to have the Commission proceed on his charge despite

the late scheduling of the conference because the deci-

sion of the Illinois Supreme Court is directly to the con-

trary.

Second, the facts of this case preclude a need to con-

stitutionally analyze “the adequacy of statutory pro-

cedures for deprivation of a statutorily created property

interest,’’ Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct.

1633, 1650-51 (1974) (Powell, J., concurring) (emphasis

added.) Logan was not deprived of any property interest

pursuant to statutory procedures; it was the Commis-

sion’s negligent failure to follow the mandated statu-

tory procedures which resulted in Logan’s charge being

dismissed.° It would be a singularly inappropriate exer-

cise of the appellate jurisdiction of this Court to hold a

state statute unconstitutional because, in one isolated in-

stance, a state employee negligently failed to follow that

statute. Cf. Parratt v. Taylor, ........ ie Swen 5 hina , 101

S.Ct. 1908, 1918 (Powell, J., concurring) (negligent acts

by state officials do not constitute deprivations of prop-

erty within the meaning of the Fourteenth Amendment).

Here, as in Paul v. Davis, the argument advanced by the

°All of the parties to this appeal agree that the Com-

mission’s failure to schedule a fact-finding conference

within 120 days was negligent. See Brief for Appellant

at 4; Brief for Appellees Illinois Human Rights Commis-

sion, et al. at 6 (scheduling was ‘‘erroneous’’); Brief for

Congress of Organizations of the Physically Handicapped

et al. as Amicus Curiae at 6.

= =

party invoking the due process clause “would seem al-

most necessarily to result in every legally cognizable

injury which may have been inflicted by a state official

acting under ‘color of law’ establishing a violation of the

Fourteenth Amendment.” 424 U.S. at 699; 96 S.Ct. at 1159.

Equal protection analysis is likewise inapplicable to

this case, both because no property or liberty interest

existed and because the 120-day requirement of Section

8(b) applied equally to all FEPA claimants. As his only

means of invoking the equal protection clause, Logan

argues, in effect, that Section 8(b) creates two classes

of complainants: those for whom the Commission con-

venes a conference within 120 days of the filing of a

charge and those for whom the Commission fails to do

so. Brief for Appellant at 41-42. This strained construc-

tion of the statute finds no support in the Illinois Su-

preme Court’s opinion below. No such distinctions are

created by the FEPA itself or by its lawful applica-

tion. The statute cannot be said to create a class of

claimants whose conferences are not timely convened, be-

cause its express mandate is that such conferences be

convened. Logan does not represent any class defined

by or arising out of the application of state law; to

the contrary, he is an individual victim of a state agency’s

failure to follow controlling state law.

Unlike the double-bond requirement in forcible en-

try and detainer appeals which was the subject of this

Court’s analysis in Lindsey v. Normet, 405 U.S. 56, 92

S.Ct. 862 (1972), the 120-day conference requirement of

Section 8(b) does not label any charge unfounded. The

Court found in Lindsey v. Normet that the double-bond

requirement drew a distinction based on whether poten-

tial appellants could afford to post the bond. Section

a es

8(b) draws no distinctions between claimants who have

fied FEPA charges. Notwithstanding Logan’s conten-

tion that the 120-day requirement is “unlike a statute of

limitations” (Brief for Appellant at 47 n.14), the Il-

nois Supreme Court’s opinion strongly suggests that that

is exactly what it is like. See 82 Ill.2d at 103-04, 411

N.E.2d at 280 (J.A. 31) (citing the Springfield-Sangamon

case. )

This Court has recently reaffirmed that ‘‘where a statc

law does not impair a right or liberty protected by the

Constitution, there is no occasion to depart from ‘the

settled mode of constitutional analysis of legislat[ion]

. . . involving questions of economic and social policy.’ ”’

City of Mobile v. Bolden, 446 U.S. 55, 76, 100 S.Ct.

1490, 1505, (1980), citing San Antonio Ind. School Dist.

v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1296 (1973).

Logan’s right to seek redress for alleged employment

discrimination on the basis of physical handicap exists

only by virtue of Illinois law. Illinois has, in its exercise

of its power to shape that right, conditioned it on the

convening of a timely conference by the state agency

charged with administering the applicable statute. Illi-

nois was not required to grant Logan an unconditional

right to a cause of action against the Company. Logan

would prefer that the FEPA had guaranteed him the

right to pursue his claim even if the Commission failed

to convene a timely conference. The statute did not do

so, however, and for that very reason there was no

deprivation of a property or liberty interest within the

meaning of the Fourteenth Amendment.

— 20 —

II. Assuming Arguendo That Logan Was Deprived of

Property, the Company Was Not Responsible for

That Deprivation, and Should Not Be Forced to

Sacrifice its Substantive Rights Under State Law to

Redress the Commission’s Negligence.

In the Martinez decision, this Court said that a state-

created cause of action was ‘‘arguably’’ a species of prop-

erty for the purpose of analyzing the constitutionality of

a state statute that provided certain state officials with

immunity from a wrongful death action. Yet the Court

went on to hold that the immunity statute did not violate

the Fourteenth Amendment, reasoning that ‘‘even if one

characterizes the immunity defense as a statutory depri-

vation, it would remain true that the State’s interest in

fashioning its own rules of tort law is paramount to any

discernible federal interest, except perhaps an interest in

protecting the individual citizen from state action that is

wholly arbitrary or irrational.’’ Martinez v. California, 444

U.S. 277, 282, 100 S.Ct. 553, 557 (1980). The Court re-

viewed the State of California’s purposes for enacting the

immunity statute, as set forth in the decision of the Cali-

fornia court, and concluded:

‘*Whether one agrees or disagrees with Califor-

nia’s decision to provide absolute immunity for parole

officials in a case of this kind, one cannot deny that

it rationally furthers a policy that reasonable law-

makers may favor. As federal judges, we have no au-

thority to pass judgment on the wisdom of the under-

lying policy determination. We therefore find no

merit in the contention that the State’s immunity

statute is unconstitutional when applied to defeat a

tort claim arising under state law.’’

444 U.S. at 283, 100 S.Ct. at 558.

=

In its decision in this case, the Illinois Supreme Court

articulated the legislative policies which underlie the

120-day requirement:

‘*Under section 8(b) the interests of both employee

and employer can be served in that each is given an

opportunity to discuss and possibly settle the dispute

without formal action being taken against the em-

ployer by the Commission. Through a conference, un-

necessary costs may be avoided and the Commission

permitted to devote itself to other matters. Iiven if a

settlement is not reached at this state, the proceeding

can be importantly valuable to the Commission in

that the conference not only places the Commission

in a better posture to decide whether to dismiss the

employee’s charge, it also aids the Commission in

setting up a procedural framework for the concilia-

tory process which follows. (See Ill. Rev. Stat. 1979,

ch. 49, par. 858(¢).) The publie interest in an expen-

ditous resolution of disputes which is made possible

through section 8(b) is not less important than the

financial considerations discussed in Springfield-San-

gamon. Avoiding unnecessary expenditures of time

and money by all parties serves to further the stated

policy of the Act, which is not only to protect em-

ployees from unfair employment practices but also

to protect ‘employers, labor organizations and em-

ployment agencies from unfounded charges of diserimi-

nation.’ Ill. Rev. Stat. 1979, ch. 48, par. 851.’’

82 Tll.2d at 105-06, 411 N.E.2d at 281. (J.A. 33).

Neither these articulated state policies nor the way

that the 120-day requirement furthers these policies can

reasonably be termed ‘‘wholly arbitrary or irrational.’’

Logan’s real contention is not that Section 8(b) is arbi-

trary or irrational; it is that the Commission’s negligent

failure to convene a timely conference resulted in Logan’s

arbitrarily and irrationally losing his right to pursue his

ax 9 am

sharge. Yet Logan has chosen not to sue the Commission

or any of its employees for their negligence,’ but instead

asks ‘‘only that his cause of action be reinstated’’ before

the Commission. Brief for Appellant at 33 n.7. Logan

ignores the fact that under state law, as articulated by

the Illinois Supreme Court, the Company also has rights.

Nothing in the Fourteenth Amendment compels or even

permits this Court to reinstate Logan’s claim against the

Company as a means of compensating Logan for the Com-

mission’s negligence. Rather, remedying any deprivation

is a matter to be resolved between Logan and the State

of Illinois.

This Court has recently held that post-deprivation rem-

edies made available by the state can satisfy the require-

ments of the due process clause. In Parratt v. Taylor, ........

i Sees , 101 S.Ct. 1908 (1981), state employees in a

Nebraska prison negligently misplaced mail order hobby

materials belonging to Taylor, a prisoner. Taylor brought

an action under 42 U.S.C. §1983 to recover the value of

the lost materials, alleging that he had been deprived of

property without due process of law in violation of the

Fourteenth Amendment.

Although a federal cause of action was involved in Par-

ratt v. Taylor, the constitutional issue in that case was

identical to the issue here: whether there was a depriva-

tion of property without due process of law. See Parratt

v. Taylor, ...... is i pcbiendans , 101 S.Ct. 1908, 1913 (1981).

‘Presumably, in an action against the Commission or

its employees Logan would have to prove, as in legai

malpractice cases, that he had a meritorious claim against

the Company which was lost due to the negligence of the

investigator.

=<

Taylor alleged that the negligent acts of the prison em-

ployees deprived him of his hobby materials; Logan

maintains that the Commission’s negligence deprived him

of a cause of action.

Writing for « four-member plurality, Justice Rehnquist

first noted that Taylor’s claim satisfied three prerequi-

sites of a valid due process claim. The prison employees

had acted under color of state law; the hobby materials

fell within the definition of property’; and ‘‘the alleged

loss, even though negligently caused, amounted to a de-

privation.”’ ........ if og ee , 101 S.Ct. at 1913. The Court

went on to decide, however, that no violation of the due

process clause had been stated because the deprivation

was not ‘‘without due process of law:”’’

**Although he has been deprived of property under

color of state law, the deprivation did not occur as

a result of some established state procedure. Indeed,

the deprivation occurred as a result of the unauthor-

ized failure of agents of the State to follow estab-

lished state procedure. There is no contention that the

procedures themselves are inadequate nor is there

any contention that it was practicable for the State

to provide a predeprivation hearing. Moreover, the

State of Nebraska has provided respondent with the

means by which he can receive redress for the depri-

vation. The State provides a remedy to persons who

believe they have suffered a tortious loss at the hands

of the State .... The remedies provided could have

fully compensated the respondent for the property

loss he suffered, and we hold that they are sufficient

to satisfy the requirements of due process.’’

*There was no contention that under Nebraska law

Taylor did not enjoy a property interest in the hobby

materials. ........ U.S. at ....... , 101 S.Ct. at 1910 n.1.

sania U.S. at ......... 101 S.Ct. at 1917. The similarities be-

tween the Parratt v. Taylor case and Logan’s case are

striking. Logan’s charge was dismissed because of the un-

authorized failure of the Commission to follow established

state procedure which required the convening of a timely

fact-finding conference. Logan does not contend that the

Commission’s conciliation procedures are inadequate; in-

deed, he seeks reinstatement of his claim so that he may

enjoy ‘‘the same opportunity to present his case and have

state judicial review that is afforded all other complain-

ants whose claims were not negligently extinguished.’’

Brief for Appellant at 33 n.7. A predeprivation hearing

would have been no more practicable here than in Parratt

v. Taylor because the negligent failure of the Commission

to schedule a conference was as much a ‘‘random and un-

authorized act by a state employee’? (........ We OE cccscens ,

101 S.Ct. at 1915) as was the loss of Taylor’s hobby

materials.

Finally, a remedy similar to the remedy available to

‘Taylor under Nebraska law is available to Logan under

Illinois law. The Illinois Court of Claims Act grants

jurisdiction over ‘‘all claims against the State for dam-

ages in cases sounding in tort.’’ Ill. Rev. Stat. ch. 37,

§439.8(d) (1979). Logan maintains that this remedy is

‘‘uncertain’’ but cites no authority indicating that no ac-

*The 1970 Illinois Constitution abolished sovereign im-

munity ‘‘[e]xcept as the General Assembly may provide

by law.’’ Ill. Const. Art. 13, §4. As established by statute,

Illinois’s waiver of sovereign immunity is coextensive with

the jurisdiction of the Illinois Court of Claims. Ill. Rev.

Stat. ch. 127, §801 (1979); Liebman v. Board of Gover-

nors, 79 Tll. App.3d 89, 398 N.E.2d 305 (1st Dist. 1979).

=

tion would lie for a loss such as his.” If that were the

case, and Illinois offered no alternative remedy," then

the clear import of this Court’s holding in Parratt v. Tay-

lor is that Logan would have a valid §1983 action against

the state employees who negligently deprived him of his

interest in his FEPA charge. See ........ US. at ........ , 101

S.Ct. at 1912 (‘‘Nothing in the language of §1983 or its

legislative history limits the statute solely to intentional

deprivations of constitutional rights’’) ; ........ UB. BB ccssssee

* Logan also argues that the relief available in a Court

of Claims action would not compensate him as fully for

alleged employment discrimination as would his potential

recovery in an FEPA action. Brief for Appellant at 24

n.5. The Court in Parratt v. Taylor rejected a similar

argument made by Taylor with respect to the Nebraska

tort claims procedure. See ........ US. at ...... , 101 S.Ct.

at 1917. Moreover, Logan presumes that he would have

prevailed in his FEPA action against the Company, a

fact which remains unproven.

"See Brief for Appellant at 24-25 n.5. The Illinois

Equal Opportunity for the Handicapped Act, Ill. Rev.

Stat. ch. 38, §65-21 et seq. (1979), was repealed when the

Tilinois Human Rights Act went into effect on July 1,

1980. Causes of action arising under the EOHA prior

to July 1, 1980, are not affected by the repeal. Ill. Rev.

Stat. ch. 68, §9-102(2) (Supp. 1980).

Logan also appears to have a cause of action against

the individual commission employee or employees who

negligently failed to schedule the conference within the

time limitation. See Lusietto v. Kingan, 107 Til. App.2d

239, 248, 246 N.E.2d 24, 26-27 (3d Dist. 1969) (‘The

failure of a public officer to perform a public duty can

constitute an individual wrong only when some person

can show that in the public duty was involved also a duty

to himself as an individual, and that he has suffered a

special and peculiar injury by reason of its non-per-

formance.’’) Public officials enjoy immunity only when

they are exercising their official discretion on matters

which are discretionary in nature and not ministerial. 7d.

ancien

101 S.Ct. at 1918 (Blackmun, J., and White, J., concur-

FIRE) $ ccccreee if pawn , 101 S.Ct. at 1923 (Marshall, J.,

concurring); but see ........ if Se Bane , 101 S.Ct. at

1918 (Powell, J., concurring in the result) (negligent acts

by state officials do not constitute a deprivation of prop-

erty within the meaning of the Fourteenth Amendment.)

CONCLUSION

For the foregoing reasons, appellee Zimmerman Brush

Company requests that the judgment of the Illinois Su-

preme Court be affirmed, or in the alternative, that the

appeal be dismissed.

Respectfully submitted,

Jay A. CayeL

Counsel For Appellee

Zimmerman Brush Company

Jay A. CaNneL

Karen M. Dorrr

Rupyick & Wo.re

30 North LaSalle Street

Suite 2800

Chicago, Illinois 60602

(312) 368-4000

Counsel for Appellee

Zimmerman Brush Company

a er

APPENDIX

Section 8 of the Illinois Court of Claims Act (Ill. Rev.

Stat. ch. 37, §439.8 (1979)) provides in pertinent part:

§ 8. The court shall have exclusive jurisdiction to

hear and determine the following matters:

(d) All claims against the State for damages in

cases sounding in tort, if a like cause of action would

lie against a private person or corporation in a civil

suit, and all like claims sounding in tort against the

Medical Center Commission, the Board of ‘Trustees

of the University of Illinois, the Board of Trustees

of Southern Illinois University, the Board of Regents

of the Regency Universities System or the Board ot

Governors of State Colleges and Universities; pro-

vided, that an award for damages in a case sounding

in tort, other than certain cases involving the opera-

tion of a State vehicle described in this paragraph,

shall not exceed the sum of $100,000 to or for the

benefit of any claimant. The $100,000 limit prescribed

by this Section does not apply to an award of dam-

ages in any case sounding in tort arising out of the

operation by a State employee of a vehicle owned,

leased or controlled by the State. The defense that

the State or the Medical Center Commission or the

Board of Trustees of the University of Illinois, the

Board of Trustees of Southern Illinois University,

the Board of Regents of the Regency Universities

System or the Board of Governors of State Colleges

and Universities is not liable for the negligence of

its officers, agents, and employees in the course of

their employment is not applicable to the hearing and

determination of such claims.

. In THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1980

No. 80-5950

SEES

—_—— —_— — -———_—_———_-—

LAVERNE L. LOGAN,

Appellant,

vs.

ZIMMERMAN BRUSH COMPANY,

Appellee.

a

On Appeal From The Supreme Court Of Illinois

SUPPLEMENTAL BRIEF FOR APPELLEE

ZIMMERMAN BRUSH COMPANY

STATUTES AND PROVISIONS INVOLVED

The following are in addition to the Constitutional and

Statutory Provisions cited in the Brief for Appellant.

Article 13, Section 4 of the 1970 Illinois Constitution

provides: “Except as the General Assembly may provide

by law, sovereign immunity in this State is abolished.”

Chapter 127, Section 801 of the Illinois Revised Statutes

(1979) provides:

“Except as provided in “AN ACT to create the Court

of Claims, to prescribe its powers and duties, and to

repeal an AN ACT herein named,’ filed July 17, 1945,

as amended, the State of Illinois shall not be made a

defendant or party in any court.”

The applicable section of the Illinois Court of Claims

Act is set forth in the Appendix to this Brief.

tun

STATEMENT OF THE CASE

On November 14, 1979, appellant Laverne J). Logan

(“Logan”) filed an employment discrimination charge

with the [llinois Fair Employment Practices Commission

(“Commission”). Logan charged that his employer, ap-

pellee Zimmerman Brush Company (“Company”), had

discriminated against him because of his physical handi-

eap, a short left leg. On January 30, 1980, the Company

received notice from the Commission that a fact-finding

conference would be held on March 18, 1980. The Com-

pany also received a questionnaire, which it was directed

to answer by March 10, 1980. The Company filed its an-

swers to the questionnaire with the Commission on March

7. 1980. In its answers, the Company stated that it had

made efforts to accommodate Logan’s handicap, but that

he was unable to handle the physical requirements of

either the job he was initially hired to do or the alter-

native job the Company had given him' and that accord-

ingly he was terminated. (J.A. 10-11).

On Ma: 18, 1980, the Company appeared at the fact-

finding conference for the sole purpose of filing a mo-

tion to dismiss. The Company asserted that Logan was

not entitled to have the Commission pursue his charge

because the Commission had failed to convene a fact-

finding conference within 120 days of the filing of the

charge, as required by Section 8(b) of the Illinois Fair

‘The Illinois Fair Employment Practices Act (FEPA)

“a ma discrimination against “physical or mental!

1andicap unrelated to ability.” Ill. Rev. Stat. ch. 48,

§853(a) (1979) (emphasis added) (current version at II.

Rey. Stat. ch. 68, §1-103(1)(1) (Supp. 1980)).

=

Employment Practices Act (“FEPA”).? (J.A. 14). The

Commission denied the Company’s motion and on March

19, 1980, notified the Company that the investigation of

Logan’s charge would continue. The Commission also re-

quested interviews with certain of the Company’s em-

ployees and informed the Company that failure to com-

ply with this request could result in a finding that there

was “substantial evidence” to support Logan’s charge.

(J.A. 16).

On March 20, 1980, the Company petitioned the Su-

preme Court of Illinois for a writ of prohibition. Pro-

ceedings before the Commission were stayed pending the

decision on the petition. (J.A. 24-25). Prior to oral

argument on the petition, on April 30, 1980, Logan filed

a second charge, identical to his first, with the Commis-

sion. (J.A. 26-27). The Commission notified the Com-

pany of its intent to proceed on the second charge and

the Company moved to stay proceedings on the second

charge, which motion was granted. (J.A. 30).

On September 29, 1980, the Supreme Court of Illinois

awarded the Company a writ of prohibition against the

*The section in effect at the time provided:

“Within 120 days of the proper filing of a charge,

the Commission shall convene a fact finding con-

ference (unless the charge has been withdrawn or

dismissed) for the purpose of obtaining evidence,

identifying issues in dispute, ascertaining the posi-

tions of the parties, and exploring the possibility

of a negotiated settlement of the controversy. Notice

of such conference shall be given to all parties at

least 10 days prior thereto and a default order may

be entered against any party who fails to attend such

conference without good cause shown.”

Till. Rev. Stat. ch. 48, §858(b) (1979) (current version at

Tl. Rev. Stat. ch. 68, §7-102(C)(3) (Supp. 1980)).

a

Commission. Zimmerman Brush Company v. Illinois Fair

Employment Practices Commission, 82 IIl.2d 9, 411 N.E.

2d 277 (1980). The court construed the language of Sec-

tion 8(b), directing that the Commission convene a fact-

finding conference within 120 days of the filing of a

charge, as mandatory, and held that the Commission’s

failure to convene a timely conference in Logan’s case

required the automatic dismissal of his charge. The court

rejected the Commission’s contention that the 120-day

requirement should be viewed as discretionary.

Prior to the Illinois Supreme Court’s decision, the

Illinois legislature repealed the FEPA and reenacted it,

as amended, as part of the Illinois Human Rights Act.’

Tn the Illinois Supreme Court, Logan argued that his

second charge should be governed by the amended Aet,

which he contended made fact-finding conferences dis-

eretionary.< The court did not rule on this contention

but refused to apply the new Act retroactively to Logan’s

second charge.

The court also rejected Logan’s argument that See-

tion 8(b) as construed violated his Fourteenth Amend-

ment due process and equal protection rights, holding

that:

*Tllinois Human Rights Act, P.A. 81-1216, 1979 TIl.

Legis. Serv. 3380 (West) (effective July 1, 1980) (codi-

fied at Ill. Rev. Stat. ch. 68, 441-101 et seq. (Supp. 1980)).

* Section 7-102(C)(3) of the Illinois Human Rights Act

provides:

“Upon reasonable notice to the complainant and

the respondent, the Department may conduct a fact-

finding conference. The fact-finding conference shall

be held within 120 days of the date on which a

charge has been filed unless waived by the parties

in writing 10 days before the 120 day period has

expired.”

Ill. Rev. Stat. ch. 68, §$7-102(C)(3) (Supp. 1980).