# Supplemental Appellees Brief — Logan v. Zimmerman Brush Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Appellees Brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 422

## Text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2394%3A07. Public record. Not legal advice.