Appendix — Langley v. Illinois Secretary of State

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APPENDIX A

NOTICE

The text of this order may be changed or corrected prior

to the time for filing of a Petition for Rehearing or the

disposition of the same.

[Filed Jan 16 2001)

NO. 5-99-0336

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

Appeal from an Order

of the Illinois Human

Rights Commission.

No. 1991 SA0096

JOHN D. LANGLEY,

Petitioner,

V.

THE ILLINOIS SECRETARY OF STATE, THE

ILLINOIS HUMAN RIGHTS COMMISSION, and

THE ILLINOIS DEPARTMENT OF HUMAN

RIGHTS,

Respondents.

RULE 23 ORDER

The petitioner, John D. Langley, was forced to retire

from his position as an investigator for the Illinois

Secretary of State at age 62, pursuant to the terms of a

collective bargaining agreement and the provisions of

the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2.

par. 1-100 et seg. (now 625 ILCS 511-100 et seg. (West

ear ee

1998))). Langley filed a complaint with the Illinois

Human Rights Commission (Commission), seeking his

reinstatement as an investigator, back pay, and back

benefits. The Commission ruled that the Secretary of

State did not discriminate against Langley on the basis

of age by forcing his retirement because the retirement

fell within an exception to the Illinois Human Rights Act

(Act) (Ill. Rev. Stat. 1989, ch. 68, par. 1-101 et seg. (now

775 ILCS 511-101 et seg. (West 1998))). Langley appeals

the order of the Commission denying his claim. We

affirm.

Langley began working as an investigator for the

Secretary of State in November 1966. Except for a one-

year period, Langley served continuously as an investi-

gator until August 14, 1990, when he was forced to retire

at age 62. Langley was forced to retire pursuant to the

terms of section 2-115 of the Illinois Vehicle Code (Il.

Rev. Stat. 1989, ch. 95 1/2, par. 2-115 (now see 625 ILCS

5/2-115 (West 1998))) and article 29 of the collective

bargaining agreement between the Secretary of State

and the Fraternal Order of Police. The relevant part of

the collective bargaining agreement states:

“All sworn personnel holding the rank of investigator

shall retire from service with the Department of Police

upon reaching the age of 62 or upon completing 20 years

of active duty, whichever occurs later.”

The Illinois Vehicle Code provides in section 2-115,

No person may be retained in service as an investigator

under this Section after he has reached 60 years of age.”

625 ILCS 5/2-115 (West 1998). This language was added

on October 1, 1979. Ill. Rev. Stat. 1979, ch. 95 1/2, par.

2115 (as amended by Pub. Act 81-567).

cy Sew

Langley filed a complaint with the Commission on

August 29,1990, alleging that the Secretary of State had

discriminated against him based on his age, by forcing

him to retire at age 62. Langley alleged that the retire-

ment provision of the Illinois Vehicle Code is in conflict

with the Act, which prevents any employer from dis-

criminating against employees on the basis of age (Ill.

Rev. Stat. 1989, ch. 68, par. 1-102 (A) (now see 775 ILCS

5/1-102 (A) (West 1998))). On December 3, 1987, section

2-104 of the Act was amended to add an exception to the

prohibition against age discrimination-the following

emphasized language was added:

“Nothing contained in this Act shall prohibit an em-

ployer *** from:

Imposing a mandatory retirement age for firefighters

or law enforcement officers if prior to December 31, 1993,

the law enforcement officer or firefighter has attained the

age of retirement in effect under applicable state or local

law on March 3, 1983[,] and if such retirement action is

taken pursuant to a bona fide retirement plan. This

paragraph (G) [sic] shall not apply with respect to any

cause of action arising under the Illinois Human Rights

Act as in effect prior to the effective date of this amenda-

tory Act of 1987. “(Emphasis added.) Ill. Rev. Stat. 1987,

ch. 68, par. 2-104 (A) (7) (now see 775 ILCS 5/ 2-104 (A)

(7) (West 1998)).

Since Langley was an investigator for the Secretary of

State, this provision would apply to him. Since the Code

was in effect on March 3, 1983, the Secretary of State

argued that its section 2-115 mandatory retirement

provision for law enforcement officers qualifies as an

exception to the prohibition on age discrimination.

ay a Wate

A hearing was held on Langley’s complaint to the

Commission on May 8, 9, and 29, 1997. The administra-

tive law judge issued a recommended order and decision

on Langley’s complaint on January 16, 1998. The judge

found that Langley had established a prima facie case of

age discrimination but that the Secretary of State had

shown that its actions in retiring Langley at age 62 fell

within an exception to the Act. The judge found that

under the Act, an employer may impose a mandatory

retirement age for law enforcement officers who attain

the age of retirement in effect under applicable state or

local law on March 3, 1983, if that retirement action is

taken pursuant to a bona fide retirement plan. The

judge also found that Langley was retired under a bona

fide retirement plan and that Langley was a “law

enforcement officer” subject to the Illinois Vehicle Code’s

mandatory retirement age.

The administrative law judge further found that an

employer may distinguish between classes of law en-

forcement officers in identifying which class of officers

will be subject to a mandatory retirement plan. The

judge held that Langley failed to show that the Secre-

tary of State violated the Act in forcing his retirement.

Finally, the judge found that Langley’s claims that the

Secretary of State had misinterpreted the collective

bargaining agreement were outside the jurisdiction of

the Commission and were therefore not addressed.

After Langley filed exceptions to the findings of the

administrative law judge and the Secretary of State

responded, the Commission issued its final order on

April 23, 1999. The Commission concluded that pursu-

ant to section 2-104 (A) of the Act; the Secretary of State

may retire investigators at age 60 pursuant to the

mS Soe

Illinois Vehicle Code. Therefore, the Commission af-

firmed and adopted the recommended order of the

administrative law judge. The Commission also agreed

with the judge that it was not empowered to hear

Langley’s claims regarding the collective bargaining

agreement or his equal protection claims. Langley filed

a petition for review in this court on May 20, 1999.

To the extent that the Commission in this case has

interpreted the meaning of the Act its findings are

subject to a de novo review. See Best v. Taylor Machine

Works, 179 M. 2d 367, 389 (1997). However, it is well

established that courts must give substantial weight

and deference to the interpretation placed on a statute

by the agency charged with its administration and

enforcement. Airey v. Department of Revenue, 116 Ill. 2d

528, 536 (1987). Such deference is appropriate because

of the agency’s ability to make informed judgments

based on its expertise and experience. Illinois Consolli-

dated Telephone Co. v. Illinois Commerce Comm'n, 95

Ill. 2d 142, 153 (1983).

In reviewing the Commission’s findings, we must

determine whether its interpretation of the Act is valid.

The Illinois Supreme Court has stated: “The cardinal

rule of interpreting statutes[] *** is to ascertain and

give effect to the intent of the legislature. In determin-

ing legislative intent a court first should consider the

statutory language. Moreover, a court will avoid an

interpretation of a statute that would render any por-

tion of it meaningless or void. Also, a court presumes

that the legislature, in enacting a statute, did not intend

absurdity, inconvenience, or injustice.” McNamee v.

Federated Equipment & Supply Co., 181 Ill. 2d 415, 423-

24 (1998). When a court ascertains the meaning of a

ss al oes

statute, the statute should be read as a whole and all of

the relevant parts must be considered. Cummins v.

Country Mutual Insurance, 178 Ill. 2d 474, 482 (1997).

We conclude that the plain meaning of section 2-104

of the Act is to make an exception to the Act to allow the

mandatory retirement of law enforcement officers pur-

suant to state and local laws in effect on March 3, 1983.

In this case, it is clear that, with respect to Langleys

retirement the law in effect on March 3, 1983, was the

Illinois Vehicle Code, which provided for the retirement

of investigators at age 60. Ill. Rev. Stat. 1983, ch. 95 1/

2, par. 2-115 (now 625 ILCS 5/2-115 (West 1998)).

Therefore, We hold that the Commission’s order stating

that the retirement of investigators at age 60 does not

violate the Act is proper.

Langley disputes the Commission’s finding by argu-

ing that the law in effect on March 3, 1983, was not the

retirement provisions of the Illinois Vehicle Code be-

cause that provision, was invalidated by the holding of

Secretary of State v. Mikusch, 138 II]. 2d 242 (1990). In

Mikusch, the supreme court upheld a ruling by the

Commission in favor of certain investigators who had

been involuntarily retired under the Illinois Vehicle

Code. However, those investigators were retired in

1985, prior to the 1987 amendments to the Act. In fact

the supreme court stated in Mikusch that it was ad-

dressing the Act as it existed in the early 1980’s and that

the 1987 amendments caused a substantive change in

the law. Mikusch, 138 Ill. 2d at 252-53'. Therefore, we

find Langley’s reliance on the holding of Mikusch un-

founded, as it does not apply to the Act as it was written

at the time of Langley’s retirement.

ove eae

Langley also argues that the Commission committed

error by “ignoring” the disparate treatment of Langley

as compared to certain other Secretary of State investi-

gators. Langley, claims that by forcing his retirement at

age 62 while allowing other investigators to stay on the

job past age 60, the Secretary of State has violated his

equal protection rights, the provisions of the Illinois

Vehicle Code, and the terms of the collective bargaining

agreement with the Fraternal Order of Police. In its

order, the Commission stated that it refused to hear

these claims because they were out of its jurisdiction.

An administrative agency has only those powers

_ specifically granted to it by the legislature. Miller v.

Illinois Pollution Control Board, 267 Ill. App. 3d 160,

165 (1994). To the extent an agency acts outside its

statutory authority, it acts without jurisdiction. Siddens

v. Industrial Comm’n, 304 Ill. App. 3d 506, 510 (1999).

Acts or orders of an administrative agency that are not

authorized by their enabling statutes are void. City of

Springfield v. Carter, 184 Ill. App. 3d 1, 12 (1989).

The Act grants the Commission authority to render

decisions on complaints filed in conformity with the Act.

775 ILCS 5/8-102 (G) (West 1998). The Act does not

grant the Commission the power to enforce the Code or

to hear constitutional claims such as a claim of the

violation of equal protection rights. Further, the Com-

mission is not empowered to interpret and enforce the

terms of collective bargaining agreements. See Carver

Lumber Co. v. Illinois Human Rights Comm’n, 162 Il.

App. 3d 419, 427-3 0 (1987) (the Commission is without

jurisdiction to consider a claim seeking an accommoda-

tion that violates the terms of a collective bargaining

agreement). Therefore, we conclude that the Commis-

sion was correct in refusing to hear Langley’s claims

it a,

based on the enforcement of the Illinois Vehicle Code,

the collective bargaining agreement and equal protec-

tion rights. We do not make any finding as to the validity

of any of these claims but rather, conclude that we have

no jurisdiction to consider them in Langley’s appeal of

the order of the Commission

CONCLUSION

Based on section 2-104 of the Act, which creates an

exception to the prohibition on age discrimination by

allowing the forced retirement of law enforcement offi-

cials, we affirm the order of the Commission denying

Langley relief under the Act.

Affirmed.

CHAPMAN, P.J., with HOPKINS’ and

GOLDENHERSH, JJ., concurring.

ae Sen

APPENDIX B

[Filed Feb 21 2001)

NO. 5-99-0336

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

Petition for Review of Order of the Illinois Human

Rights Commission.

No. 1991SA0096

JOHN D. LANGLEY,

Petitioner,

Vv.

ILLINOIS SECRETARY OF STATE, et al.,

Respondents.

ORDER

This cause has been considered on appellant’s peti-

tion for rehearing; and the court being advised in the

premises:

IT IS THEREFORE ORDERED that the petition for

rehearing shall be, and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that the time for filing

an answer to the petition shall extend, to and include, 21

days from the date of this order.

ITIS FURTHER ORDERED that the time for filing

a reply to the answer shall extend to, and include, 14

days thereafter.

— A-10 —

APPENDIX C

[Filed Jun 26 2001]

NO. 5-99-0336

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

JOHN D. LANGLEY,

Petitioner,

We

ILLINOIS SECRETARY OF STATE, et al.,

Respondents.

Petition for Review of Order of the Illinois Human

Rights Commission.

No. 1991 SA0096

ORDER

This cause has been considered on rehearing and on

appellant’s motion to publish; and the court having

considered the petition for rehearing, answer thereto,

and reply to answer and being advised in the premises:

IT IS THEREFORE ORDERED that motion to pub-

lish shall be, and the same hereby is, DENIED.

IT IS FURTHER ORDERED that this court’s Su-

preme Court Rule 23 order entered on January 16, 2001,

shall stand as the court’s decision in this cause.

— A-11—

APPENDIX D

A Letter from

SUPREME COURT OF ILLINOIS

CLERK OF THE COURT

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

October 3, 2001

Mr. James B. Wham

Wham & Wham

212 E. Broadway

Post Office Box 549

Centralia, IL 62801

No. 91905 -John D. Langley, petitioner, v. The Illinois

Secretary of State et al., respondents. Leave

to appeal, Appellate Court, Fifth District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on October 25, 2001.

— A-12 —

APPENDIX E

Letter from

SUPREME COURT OF ILLINOIS

SUPREME COURT BUILDING

SPRINGFIELD 62701

JULEANN HORNYAK

CLERK OF THE COURT

(217) 782-2035

TELECOMMUNICATIONS DEVICE

FOR THE DEAF

(217) 524-8132

FIRST DISTRICT OFFICE

20TH FLOOR

160 NO. LASALLE ST.

CHICAGO 60601

(312) 793-1332

TELECOMMUNICATIONS DEViCE

FOR THE DEAF

(312) 793-1333

Mr. James B. Wham

Wham & Wham

212 E. Broadway

Post Office Box 549

Centralia, IL 623801

November 6, 2001

In re: John D. Langley, petitioner, v. The Illinois

Secretary of State et al., respondents.

No. 91905

— A-13 —

Today the following order was entered in the captioned

case:

Motion by petitioner for leave to file a motion for recon-

sideration of the order denying petition for leave to

appeal. Motion Denied.

Order entered by the Court.

Mandate issued forthwith to the Appellate Court.

Very truly yours,

s/Juleann Hornyak

Clerk of the Supreme Court

cc: Ms. Karen J. Dimond

eae

APPENDIX F

[Filed Nov 28 2001]

NO. 5-99-0336

IN THE

APPELLATE COURT OF ILLINOIS

FOR THE FIFTH DISTRICT

JOHN D. LANGLEY,

Petitioner-Appellant,

VS.

THE ILLINOIS SECRETARY OF STATE, ILLINOIS

HUMAN RIGHTS COMMISSION, and ILLINOIS

DEPARTMENT OF HUMAN RIGHTS,

Respondents-Appellees.

APPEAL FROM ORDER AND DECISION STATE OF

ILLINOIS HUMAN RIGHTS COMMISSION,

ENTERED APRIL 23, 1999

THREE JUDGE COMMISSION

CHARGE NO: 1991SA 0096

EEOC NO: 21B903376

ALS NO: S-5288

ON APPEAL FROM ORDER ENTERED JANUARY

16, 1999 BY PRESIDING ADMINISTRATIVE LAW

JUDGE, HON. MICHAEL R. ROBINSON

—ihple—

ORDER

THIS MATTER COMING ON to be heard on Petitioner-

Appellant’s Motion to Recall Mandate of the

Appellate Court and Stay Issuance Thereof Pursuant to

Supreme Court Rule 368 (c) and the Court

being advised in the premises, the Motion is hereby:

GRANTED

PER CURIAM

DATED:

DENIED

— A-16 —

APPENDIX G

STATE OF ILLINOIS

HUMAN RIGHTS COMMISSION

CHARGE NO: 1991SA0096

EEOC NO: 21B903376

ALS NO: 5288 (S)

IN THE MATTER OF:

JOHN D. LANGLEY,

Complainant,

AND

ILLINOIS SECRETARY OF STATE,

Respondent.

ORDER AND DECISION

This matter comes before the Commission panel

pursuant to the Recommended Order and Decision

submitted by Administrative Law Judge Michael R.

Robinson. Ile complainant alleged that the respondent

forced him to retire because of his age in violation of

Section 2-102 of the Human Rights Act. After a public

hearing, the Administrative Law Judge found that

although the respondent did, in fact, force the complain-

ant to retire because of his age, the respondent’s actions

were exempt pursuant to what is now codified as Section

2-104(7) of the Human Rights Act.! The complainant

‘Although the Administrative Law Judge sometimes refers

to subsection (A) (8) of Section 2104, it is clear from the timing of

the complainant’s termination that the Administrative Law Judge

is relying on subsection (A) (7) of Section 2-104.

— A-17 —

filed exceptions to the recommended order, which were

substantially larger than the 30 pages allowed under

Section 5300.920 of the Commission’s procedural rules.

53 Ill. Admin. Code § 5300.920. The Commission granted

the complainant leave to file amended exceptions run-

ning not more than 30 pages. The complainant complied

with the Commission’s order, and the respondent filed

a response. The complainant attempted to file a reply,

but this pleading was stricken because a reply to a

response to exceptions is not provided for under our Act.

Both sides have had the opportunity to present oral

argument, and, accordingly, the case is now ready for

decision.

BACKGROUND FACTS

Although the law in this case may be somewhat

complicated, the background facts are not. The com-

plainant, John D. Langley (Langley), was hired by the

respondent, the Illinois Secretary of State (the Secre-.

tary), on November 1, 1966 as a probationary investiga-

tor. He became a full-fledged investigator in May of

1966. Langley and all other investigators were consid-

ered to be sworn police officers with the power of arrest.

It is uncontested that a Secretary of State investigator

is a law enforcement officer within the meaning of the

Human Rights Act.

Although Langley was terminated from his position

in February of 1971, he was reinstated by the Secretary

on May 22, 1972.

In 1979, the Iliinois Vehicle Code was amended to

provide that no person could be retained by the Secre-

tary after he had reached age 60. See, 625 ILCS 5/2-115,

formerly, Tll. Rev. Stat. 1991, ch. 951/2, par. 2-115.

—hi—

On September 8, 1986, the Secretary and Langley’s

union entered into a collective bargaining agreement

which was effective retroactive to July 1, 1986. Article

29 of that agreement provided that all sworn personnel

holding the rank of investigator had to retire upon

reaching the age of 62, or after 20 years of service,

whichever came last. Langley’s 62nd birthday was on

August 14, 1990. At that point he had 23 years, 10

months and 14 days of active duty. Pursuant to the

provisions of the collective bargaining agreement, Lan-

gley was forced to resign, but the Secretary changed the

effective date to August 16, 1990 in order to allow

Langley to take advantage of certain insurance cover-

age.

LEGAL BACKGROUND

The Illinois Human Rights Act became effective on

July 1, 1980. At that time, the word “age” was defined to

include individuals who were at least 40, but not yet 70

years old. Effective September 23, 1987, Public Act 85-

748 removed the upper age limit for protection under

the Human Rights Act. In other words, prior to Septem-

ber 23, 1997, it was legal to discriminate against indi-

viduals who were over 70 years of age.

The age discrimination provisions of the Illinois Hu-

man Rights Act were in conflict with several preexisting

provisions of Illinois law. Traditionally, Illinois law

demanded that municipalities refuse to hire applicants

over a certain age and mandatorily retire law enforce-

ment officers when they reached mandatory retirement

age. As noted, Section 2-115 of the Illinois Vehicle Code

was amended to provide for a maximum age for Secre-

tary of State investigators of 60.

—A-19—

After the passage of the Human Rights Act, Secretary

of State investigators who had been mandatorily retired

under the Illinois Vehicle Code began filing charges of

age discrimination. The Human Rights Commission

consolidated these cases and found that the Human

Rights Act and the Illinois Vehicle Code were in irrecon-

cilable conflict over the Secretary's duty with respect to

investigators who had reached their 60th birthdays. On

the one hand, the Illinois Vehicle Code required the

Secretary to retire the investigators, but on the other

hand, the Human Rights Act prohibited the Secretary

from considering the investigators’ ages when making

termination decisions. We found that the Human Rights

Act provisions should prevail. Mikusch and Illinois

Office of the Secretary of State, 17 Tll.. HRC Rep. 241

(1985). Eventually, the Commission’s position was up-

held by the Illinois Supreme Court. State v. Mikusch,

138 Ill.2d 242, 562 N.E.2d 168 (1990).

The Illinois Supreme Court decision did not, however,

represent the last word on the subject. After the

Commission’s decision in the Mikusch case, legislation

was introduced into the General Assembly to provide

that imposing a mandatory retirement age for law -

enforcement officers was not a violation of the Human

Rights Act if the action was taken pursuant to appli-

cable state or local law in effect on March 3, 1983. Public

Act 85-949, effective December 3, 1987. The amend-

ment reads as follows:

Police and Firefighter Retirement. Imposing a man-

datory retirement age for firefighters or law en-

forcement officers if prior to December 31, 1993, the

-law enforcement officer or firefighter has attained

the age of retirement in effect under applicable

ii.

state or local law on March 3, 1983 and if such

retirement action is taken pursuant to a bona fide

retirement plan. This paragraph (G) shall not apply

with respect to any cause of action arising under the

date of this amendatory Act of 1987. [December 3,

1987]

The amendment explicitly stated that it would not

apply with respect to any cause of action arising under

the Illinois Human Rights Act as in effect prior to

December 3, 1987. Thus, the Illinois Supreme Court

decision in Mikusch, which was issued on October 4,

1990, but which dealt with charges filed in the early

80’s, did not state the law in effect on the date it was

issued.

In fact, the Illinois Supreme Court expressly stated

that the amendment (P.A. 85-949) had caused a sub-

stantive change in the law. State v. Mikkusch, 138 Ill.2d

242, 253, 562 N.E.2d 168, 173 (1990). The Secretary had

argued in the Mikusch case that the above quoted

amendment merely clarified the law as it existed prior

to the amendment’s effective date. The Supreme Court

unambiguously rejected that argument. Jd.

THE COMPLAINANT’S EXCEPTIONS

With this legal background in mind, it is now possible

to consider the complainant’s exceptions. Langley’s main

argument appears to be that the Supreme Court deci-

sion in the Mikusch case made it clear that on March 3,

1983, the applicable state law was the Human Rights

Act. Although the Illinois Vehicle Code provided for

mandatory retirement at age 60, Langley argues that

the Mikusch case made it clear that the Illinois Vehicle

Code could not be enforced. Therefore, Langley argues

— A-21—

that the Secretary does not come within the exception

because he was forcibly retired at age 62, some eight

years prior to the age 70 cap in effect under the Human

Rights Act as it read in 1983. We disagree.

There are many canons of statutory construction

which apply to a question such as the one presented by

the complainant’s exception. All of them support the

Secretary’s position. Perhaps the most important canon

is that the legislature is not presumed to have placed

extra words in a statute without any purpose. Husky v.

Bd. of Managers of Condominiums Edelweiss, Inc. , 297

Ill. App. 3d 292, 696 N.E.2d 753 (1998) [Ifthe legislature

had meant to say that the old upper limit of 70 for age

discrimination remained in effect for the mandatory

retirement of police and fire fighters, it could easily have

done so]. In fact, the very law which took away the upper

limit for age discrimination protection specifically

grandfathered in compulsory retirement at age 70 for

teachers who had obtained tenure and for workers

under a collective bargaining agreement. Public Act 85-

748.

If Langley is right, the General Assembly would not

have needed to use a phrase like “. . . the age of

retirement in effect under applicable state or local law

...” The General Assembly would have known that on

March 3, 1983, no law could have allowed for forced

retirement before age 70.

The weight of this argument is increased by the

legislative history of the bill which became P.A. 85-949

(H.B. 2164). As originally passed by the General Assem-

bly, the exemption would have applied to any police

officer who was at least 63 years old. Thus, the original

intent of the legislature was clearly to change age

—A-22 —

discrimination protection for police officers from “less

than 70” to “less than 63.” When the bill went to the

Governor, he issued an amendatory veto. He inserted

the language which refers to the law in effect on March

3, 19,83. If he had intended to reinstate the cap on

protection at age 70, he could have merely substituted

the number “70” for “63.” The fact that he did not do so

is strong evidence that he did not intend the language to

void any mandatory retirement law with a maximum

age under 70. The Governor’s language was accepted by

the General Assembly. See, Legislative Synopsis and

Digest 1741-1742 (Legislative Reference Bureau, Feb-

ruary 16, 1988).

Moreover, as noted previously, the Illinois Supreme

Court has ruled that the exemption for police and fire

fighter retirement was intended to make a substantive

change in the Human Rights Act. Mikusch, Id. When

the bill which became Public Act 85-949 was introduced

into the General Assembly, the law with respect to age

discrimination was the same as it had been on March 3,

1983. Thus, if Langley’s argument were accepted, one

would have to assume that the amendment was in-

tended to have no effect. Yet, the Illinois Supreme Court

has specifically held, in a opinion relied upon by the

complainant, that the amendment did, in fact, change

the law. ;

Finally, extrinsic aids to statutory construction make

it absolutely clear what the General Assembly intended.

The federal equivalent to the Illinois Human Rights Act

is the Age Discrimination in Employment Act of 1967

(ADEA). Section 623 (j)(1)(A) has almost exactly the

same exemption for fire fighters and law enforcement

officers as the Human Rights Act, including the refer-

—A-23 —

ence to March 3, 1983. The exemption in ADEA predates

the amendment to the Human Rights Act in question.

Accordingly, it is crystal clear that it was the intent of

the General Assembly to put into the Human Rights Act

the same exemption with respect to police and fire

fighters as was in the federal age discrimination law.

This brings us to the significance of the date, March

3, 1983. Prior to March 2, 1983, most states and munici-

palities had laws which had maximum ages for police

and fire fighters. Despite the provisions of ADEA, it was

thought that these statutes and ordinances were effec-

tive because the federal law did not apply to state or

local government employees performing essential gov-

ern mental services. In the case of EEOC v. Wyoming,

460 U.S. 226 (1983), however, the U.S. Supreme Court

held that ADEA applied to decisions made by states and

municipalities with respect to their police and fire

fighters. The case of EEOC v. Wyoming was released by

the U.S. Supreme Court on March 2, 1983.

Seen in this context, subpart (j)(1)(A) of Section 623 of

the ADEA is a legislative attempt to reinstate the law as

it existed prior to the Supreme Court decision in EEOC

vu. Wyoming. Given the fact that Congress chose March

3, 1983, it is clear beyond doubt that the purpose of the

language in question was to reinstate the state or local

laws which had prevailed up until the Supreme Court

decision the day before.

Under this interpretation, the phrase “applicable

state or local law” make sense. As noted, there were

many many instances prior to March 2, 1983, where

states and/or municipalities set a maximum age for

police and fire fighters. It would have been a drafting

nightmare to have listed each state or local law which

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— A-24 —

was “revived” by the legislation. The language in ques-

tion is a simple, shorthand way of saying that if a state

or local law had a mandatory retirement date which was

inconsistent with EEOC v. Wyoming, that state or local

law would be reinstated. One of those laws which was

“reinstated” was the Illinois Vehicle Code.

This brings us back to the exemption provided for

under Section 2-104(A)(7) of the Human Rights Act.

Since the General Assembly used virtually the same

language as did Congress in the ADEA, including the

all-important reference to March 3, 1983 (the day after

the EEOC v. Wyoming decision), the General Assembly

must have intended to put the same exemption into the

Human Rights Act as existed in the ADEA. Thus, just as

Congress intended to revive all of the mandatory retire-

ment laws which had been voided by EEOC v. Wyoming,

the General Assembly intended to revive all of the state

and local laws which had been voided by our decision in

the Mikusch case. Given the fact that the General

Assembly was attempting to make the Human Rights

Act consistent with the ADEA, it is crystal clear that the

“applicable state” law referred to in the exemption is the

Illinois Vehicle Code, not the Human Rights Act.

With fundamental question of legislative intent dis-

posed of, the rest of Langley’s exceptions can be resolved

rather quickly. First, Langley argues that Secretary

violated the original cease and desist order in the

Mikusch case. The problem with this argument is that

the Supreme Court Mikusch decision explicitly states

that there was a substantive change in the law after

Mikusch filed his charge. The Human Rights Commis-

sion is a creation of the Human Rights Act. It does not

have the power to enforce a cease and desist order which

— A-25 —

is inconsistent with that Act. Accordingly, the cease and

desist order expired when the law changed.

Langley next argues that the Administrative Law

Judge erred when he failed to consider Langley’s equal

protection argument. The short answer to Langley’s

argument is that it is inconsistent with established law.

Generally, administrative agencies are limited to the

power vested in them by statute. Acts or orders of an

administrative agency which are not authorized by

their enabling statute are void. City of Springfield v.

Carter, 184 Ill. App. 3d 1, 540 N.E.2d 536 (1989). No one

has authorized us to enforce the equal protection clause

of the Constitution, and thus Langley’s argument must

fail. This is not to say that there is no overlap between

the protections afforded to the people of Illinois by the

Constitution and the Human Rights Act. Where there is

a overlap, cases construing the Constitution may aid the

Commission in interpreting the Human Rights Act. The

Constitution is not, however, a separate basis for deci-

sion.

Langley’s next argument is similar. He points out

that ranked officers were not forced to retire in accor-

dance with the collective bargaining agreement. Al-

though this is clearly true, it does not constitute dis-

crimination on the basis of age. Discrimination on the

basis of rank is not a covered basis under the Human

Rights Act. Langley next argues that the Secretary does

not come within the provisions of subsection (A) (7)

because no one was forced to retire at age 60, which is

the mandatory retirement age under the Illinois Vehicle

Code. Although the Secretary did not provide us with a

convincing explanation as to why the mandatory retire-

ment age was not uniformly followed, the fact that the

complainant was allowed to continue working two years

— A-26 —

beyond the mandatory retirement age provided for in

the Illinois Vehicle Code can hardly be considered “age

discrimination.

Langley next argues that the Secretary’s treatment of

Raymond Sanchez (Sanchez) proves age discrimina-

tion. Judge Robinson found that when Sanchez turned

62 in the fall of 1993, he was eligible for forced retire-

ment, but was in fact not forced to retire. Judge Robinson

articulates the possibility that the Secretary’s treat-

ment of Sanchez may constitute age discrimination

because Sanchez is younger than Langley. Ultimately,

however, Judge Robinson finds no discriminatory in-

tent. We reject Langley’s exception for a number of

reasons. First, Judge Robinson’s finding of no discrimi-

natory intent is not against the manifest weight of the

evidence. Second, although Sanchez is younger than

Langley, by definition, both individuals were exactly

the same age when they became eligible for retirement.

We are not convinced that the fact that one 62-year-old

was forced to retire and another 62-year-old was al-

lowed to continue is evidence of “age” discrimination.

Third, as noted above, the Secretary’s actions clearly

come within the exemption decided for in subsection (A)

(7). This exemption clearly allows discrimination on the

basis of age. We fail to see how refraining from discrimi-

nating against Sanchez on the basis of his age takes the

Secretary out from the protection afforded by subsec-

tion (A) (7). For all of the above reasons, this exception

is denied.

Langley next excepts to the finding of the Administra-

tive Law Judge that the Secretary's treatment of Ed-

ward Foley (Foley), a fellow investigator, does not prove

age discrimination. Judge Robinson finds that it was

unclear whether Foley had 20 years of service at the

may ey pen

time he reached age 62. This finding is not against the

manifest weight of the evidence, and therefore the fact

that Foley was not forced to retire at age 62 cannot prove

age discrimination.

Langley next presents a number of evidentiary ques-

tions in the form of exceptions to the Recommended

Order and Decision. After having reviewed the record,

we find that the evidentiary rulings by the Administra-

tive Law Judge are consistent with Illinois law, and all

evidentiary exceptions are denied.

Finally, Langley excepts to the Administrative Law

Judge’s refusal to allow him to amend the complaint to

add allegations with respect to Investigator Sanchez. As

noted above, Sanchez’ case was fully considered by the

Administrative Law Judge. Moreover, it has now been

discussed at the Commission level. The question whether

Langley should have been allowed to amend his com-

plaint to add allegations with respect to Sanchez is

moot.

CONCLUSION

In sum, it is crystal clear that the General Assembly

intended to reinstate the mandatory retirement provi-

sions of the Illinois Vehicle Code when it passed subsec-

tion (A) (7) of Section 2-104 of the Human Rights Act.

Thus, forcibly retiring Langley because he was over 60

was not a violation of the Human Rights Act. The

Human Rights Act does not give this Commission juris-

diction to force the Secretary to treat ranked and

unranked investigators in the same way; neither does

our Act give us the authority to enforce the provisions of

the Illinois Vehicle Code. The bottom line is that the

people of the state of Illinois, as represented by the

General Assembly, do not want law enforcement offic-

hie

ers over a certain age on active duty. While individuals

may debate the wisdom of this decision, the Human

Rights Commission, which It a creature of the General

Assembly, does not have the authority to declare the

Secretary's actions illegal.

IT IS THEREFORE ORDERED:

1. that the instant complaint and the underlying

charge of discrimination are dismissed with prejudice;

2. that the Recommended Order and Decision in this

cause is affirmed, adopted by the Commission and

incorporated by reference herein.

(Commissioner Rudolph S. Shoultz, Commissioner

James Maloof, *Commissioner Clyde H. Brooks)

Human Rights Commission

s/Rudolph S. Shoultz

s/James Maloof

ENTERED: 4-23-99

— A-29 —

APPENDIX H

*This Order and Decision is in accordance with a vote

cast by Commissioner Brooks prior to the expiration of

his term.

STATE OF ILLINOIS

HUMAN RIGHTS COMMISSION

IN THE MATTER OF:

JOHN D. LANGLEY,

Complainant,

and

ILLINOIS SECRETARY OF STATE,

Respondent.

CHARGE NO: 199 1 SA0096

EEOC NO: 21B903376

ALS NO: S-5288

RECOMMENDED ORDER AND DECISION

This matter is ready for a Recommended Order and

Decision pursuant to the Illinois Human Rights Act

(775 ILCS 5/ 1-101 et seq.). A public hearing was held

before me in Springfield, Illinois on May 8, 9 and 29 ,

1997. The parties have filed their posthearing briefs.

Accordingly, this matter is ripe for a decision.

Fentenit f the Parti

In the instant Complaint, Complainant, an investiga-

tor with Respondent, contends that he was the victim of

age discrimination when, on his 62nd birthday, he was

told that he was required to retire pursuant to the terms

of the applicable collective bargaining agreement. Re-

spondent, however, contends that Complainan’s forced

— A-30 —

retirement was exempted from coverage under section

2104(A)(7) of the Human Rights Act (775 ILCS 5/2-

104(A)(7)) which permits the imposition of mandatory

age retirement plans under certain circumstances. It

alternatively contends that any alleged disparate treat-

ment asserted by Complainant under the instant record

was insufficient to establish any claim of age discrimi-

nation, and that this Commission is without jurisdic-

tion to consider the instant Complaint to the extent that

Complainant’s discrimination claim rests upon an in-

terpretation of the terms of a collective bargaining

agreement.

Findi € Fact

Based upon the record in the instant matter, I make the

following findings of fact:

1. On November 1, 1966, Complainant was hired by

Respondent as a probationary investigator. Complain-

ant became a fun-fledged investigator in May of 1966.

As an investigator, Complainant’s duties consisted of

handling pick-ups on drivers licenses and license plates,

dealing with bad checks and assisting dealers with

notary supplies. Moreover, as an investigator, Com-

plainant was considered to be a sworn police officer with

powers of arrest, and, at all times pertinent to the

instant Complaint, was also considered to be an “inves-

tigator” as that term is defined under section 2-115 of

the Illinois Vehicle Code (625 ILCS 5/2-115).

2. On February 12, 197 1, Complainant was termi-

nated from his position with Respondent. After his

termination, Complainant and four other investigators

filed an unspecified type of litigation, claiming that

their terminations were wrongful because they were

based on their political affiliation. On May 22, 1972,

ieee

Complainant and the other terminated investigators

were eventually reinstated into their positions as inves-

tigators.

3. On October 1, 1979, sec. 2-115 of the Motor Vehicle

Code was amended to provide that: “[n]o person may be

retained in service as an investigator under this Section

after he has reached 60 years of age.”

4. Atsome point in the mid 1980s, the Fraternal Order

of Police, Lodge No. 95 petitioned the Illinois State

Labor Relations Board for an order directing that an

appropriate class of Respondent’s investigators -be per-

mitted to vote whether it should be the bargaining agent

for the investigators. At the time of the petition, all

investigators, including those with a rank of investiga-

tor sergeant, investigator lieutenant, investigator cap-

tain and investigator major were eligible for member-

ship in Lodge 95. On June 6, 1985, the Board entered an

order, in Case No. S-RC-46, which granted the right to

certain investigators to vote either for representation by

Lodge 95 or for “no representation”. The Board, how-

ever, limited the right to vote to:

“all investigators below the rank of sergeant in the

Secretary of State’s Department of Police, but ex-

cluding all sergeants, lieutenants, commanders and

all other employees of the Department and all

supervisors, managerial employees, confidential

employees and all others excluded by the Act.”

5. On July 29, 1985, the Commission entered an Order

and Decision in Mikusch v. State of Illinois Office of

Secretary of State, 17 Ill. HRC Rep. 241 (1985), in favor

of certain investigators of Respondent who had been

involuntarily retired under section 2-115 of the Motor

Vehicle Act. There, the Commission rejected the argu-

ii

ment made by Respondent that section 2-115 of the

Motor Vehicle Act, as being the more specific act, should

control over the language of the Human Rights Act

which, at that time, prohibited employers from dis-

criminating against employees between 40 and 70 years

of age. Significantly, it should be noted that the Human

Rights Act did not contain at the time of the Mikusch

terminations, an exemption which would permit the

State to impose mandatory retirement for law enforce-

ment officers under certain circumstances. (See, Il.

Rev. Stat. (1983), Ch. 68, par. 2-104.) In any event, the

Commission in Mikusch, entered a cease and desist

order which prevented Respondent from “disqualifying

[investigators] based solely upon attaining the age of 60

years.” 17 Ill. HRC Rep. at 250.

6. On September 8, 1986, Respondent and Lodge 95

entered into a collective bargaining agreement, effec-

tive July 1, 1986. Article I of the agreement, after

making reference to Illinois State Labor Relations Board

Case No. S-RC-46, recognized Lodge 95 as the “sole and

exclusive Collective Bargaining representative for the

certified employees in the job classification known as

Investigator... for purposes of collective bargaining in

respect to rates of pay, wages, hours of employment and

other terms and conditions or employment.” As such,

only non-ranked investigators were covered under the

terms and provisions of the agreement. Article 29 of the

agreement provided that: “All sworn personnel holding

the rank of investigator shall retire from service with

the Department of Police upon reaching the age of sixty-

two (62) or upon completing twenty (20) years of active

duty, whichever occurs later.”

7.On September 9, 1987, the Commission’s Order and

Decision in Mikusch was reversed in favor of Respon-

mae

dent by the Circuit Court of Sangamon County. How-

ever, on November 4, 1987, the Circuit Court granted a

motion to reconsider its decision.

8.0n December 3, 1987, section 2-104 of the Human

Rights Act (In. Rev. Stat. (1987), Ch. 68, par. 2-104) was

amended to add the following language:

(A) Nothing contained in the Act shall prohibit an

employer... from “(G) Police and Firefighter Retire-

ment. Imposing a mandatory retirement age for

firefighters or law enforcement officers if prior to

December 31, 1993, the law enforcement officer or

firefighter has attained the age of retirement in

effect under applicable state or local law on March

3, 1983 and if such retirement action is taken

pursuant to a bona fide retirement plan. This para-

graph (G) shall not apply with respect to any cause

of action arising under the Human Rights Act as in

effect prior to the effective date of the amendatory

Act of 1987.”

9. On June 6, 1988, the Circuit Court of Sangamon

County reversed itself, and affirmed the Commission’s

decision in Mikusch.

10. On October 6, 1988, Respondent and Lodge 95

entered into a collective bargaining agreement which

replaced the agreement mentioned in Finding, of Fact

No. 6. As with the predecessor agreement, Article 1 of

the agreement made reference to Illinois State Labor

Relations Board Case No. S-RC-46 and recognized Lodge

95 as the exclusive bargaining agent for Respondent’s

“investigators” for purposes of collective bargaining

with respect to rates of pay, wages, hours of employment

and other terms and conditions of employment. As such,

this agreement covered the terms and conditions of only

pony Ss * See

unranked investigators. The agreement also contained

in Article 29 a mandatory retirement provision calling

for the retirement of investigators at 62 years of age, or

upon completion of 20 years active duty whichever

occurs later.

11. On May 5, 1989, the appellate court reversed the

circuit court’s affirmance of the Commission’s Order

and Decision in Mikusch.

12. On June 9, 1990, Complainant entered into an

agreement with Respondent that changed his employ-

ment start date from May 22, 1972 (when he came back

to work after his initial termination) to November 1,

1966. This agreement permitted Complainant to buy

back the time lost to his eligible credible service during

the period of his first termination (February 12, 1971 to

May 22, 1972).

13. On August 14, 1990, Complainant had reached his

62nd birthday (as of August 10, 1990) and had 23 years,

10 months and 14 days active duty with Respondent. On

that date, Complainant reported to work, but was told

by his superior, Captain Price, that, pursuant to Article

29 in the collective bargaining agreement, he (Com-

plainant) was being retired effective at the close of

business, August 14, 1990. Complainant thereafter went

home and retrieved all state-issued uniforms and sup-

plies and tendered them to his superior. Complainant’s

retirement date was thereafter changed to August 16Y

1990, in order for him to take advantage of certain

insurance coverage.

14. On October 4, 1990, the Illinois Supreme Court in

Mikusch reversed the appellate court and affirmed the

circuit court judgment finding that the forced retire-

ment of certain investigators constituted age discrimi-

— A-35 —

nation under the applicable Human Rights Act.

15. On September 6, 1991, section 2-104 ofthe Human

Rights Act (Ill. Rev. Stat. (1991), Ch. 68 par. 2-104) was

amended to read:

“(A) Nothing contained in this Act shall prohibit

an employer... from:

(8) Police and Firefighter/ Paramedic Appoint-

ment. Failing or refusing to hire or to discharge

any individual because of such individual’s age if

such action is taken with respect to the employ-

ment of an individual as a firefighter/paramedic

or as a law enforcement officer and the individual

has attained the age of hiring or retirement in

effect under applicable State or local law, which

provides a maximum age hiring limitation or for

mandatory retirement, in effect on or before

March 3, 1983.... The provisions of this para-

graph (8) shall remain in effect until December

31, 1993 or until similar provisions in Section 4

of the Federal Age Discrimination in Employ-

ment Act of 1967 (29 U.S. Code 623) are deleted

or repealed, whichever is later.”

16. At all times pertinent tothe instant case, Raymond

Wood was a lieutenant investigator with Respondent.

As a lieutenant investigator, Wood held a supervisory

position over Complainant and other investigators, and

his employment relationship with Respondent was not

covered by any terms of the 1986 or 1988 collective

bargaining agreements mentioned in Findings of Fact

Nos. 6 and 10. On August 14, 1990, Wood was 65 years

old, was still employed in his position with Respondent,

and was eventually permitted to retire voluntarily on

December 31, 1991.

— A-36 —

17. At all times pertinent to the instant case, Colum-

bus DiSabato was a lieutenant investigator with Re-

spondent. As a lieutenant investigator, DiSabato held a

supervisory position over Complainant and other inves-

tigators with Respondent, and his employment rela-

tionship with Respondent was not covered by any of the

terms of the 1986 and 1988 collective bargaining agree-

ments mentioned in Findings of Fact Nos. 6 and 10. On

August 14, 1990, DiSabato was 67 years old, was still

employed as a lieutenant investigator, and eventually

was permitted to retire voluntarily after serving over 21

years active duty with Respondent.

18. At all times pertinent to the instant case, Robert

Sandona. was a major investigator with Respondent. As

a major investigator, Sandona held a supervisory posi-

tion over Complainant and other investigators, and his

employment relationship with Respondent was not cov-

ered by any of the terms of the 1986 and 1988 collective

bargaining agreements mentioned in Findings of Fact

Nos. 6 and 10. On August 14, 1990, Sandona was 64

years old, was still employed as a major investigator,

and was permitted ‘to continue in his position until

October 31, 1991, when he retired voluntarily after

serving more than 20 years of active duty with Respon-

dent.

19. At all times pertinent to the instant case, Edward

Foley was an investigator with Respondent. As an

investigator, Foley held a position similar to that of

Complainant, and Foley’s position, like that of Com-

plainant, was covered under the terms of the 1986 and

1988 collective bargaining agreements mentioned in

Findings of Fact Nos. 6 and 10. On August 14, 1990,

Foley was 63 years old, and had approximately 19 years

of “active duty” as an investigator with Respondent. At

— A-37 —

some point between September 1991, and December 31,

199 1, Foley purchased five years of SERS (State Em-

ployees Retirement System) creditable service time as

an early retirement incentive. On December 31, 1991,

Foley was permitted to voluntarily retire. While at that

time, Foley had been in “active duty” with Kespondent

for over 20 years, it is unclear immediately prior to the

time he purchased the five years of credible SERS time

whether Foley had 20 years of SERS time since: (1)

Foley did not contribute to SERS pension plan during

the six month qualifying period at the beginning of

Foley’s employment, and did not start accruing pension

time for purposes of acquiring SERS benefits until

January 1, 1972; and (2) Foley had incurred an approxi-

mate three month suspension during his tenure with

Respondent which did not count toward his retirement

time.

20. At all times pertinent to the instant case, Raymond

Sanchez was an investigator employed by Respondent.

As an investigator, Sanchez held a position similar to

that of Complainant, and Sanchez’ position, like that of

Complainant, was covered under the terms of the collec-

tive bargaining agreements of 1986 and 1988, men-

tioned in Findings of Fact Nos. 6 and 10. As of August 14,

1990, Sanchez was 60 years old, was still employed as an

investigator, and had over 17 “work years” with Respon-

dent. The record is unclear, however, as to the amount

of SERS time Sanchez had as of August 14, 1990 since

a review of Sanchez’ personne! file indicates that he had

a “seniority date” of 1969 and a “credible service date” of

1993.

21. On August 20, 1995, Sanchez received a notifica-

tion from Respondent indicating that he (Sanchez) would

be involuntarily retired on October 15, 1995, pursuant

— A-38 —

to Article 29 of the then existing collective bargaining

agreement. The record does not contain a copy of the

collective bargaining agreement pertinent to the in-

stant notification. However, on September 7, 1995,

Respondent sent another notice indicating that it would

defer action on Sanchez’ mandatory retirement due to

the state of the law under the federal ADEA. It further

stated that it reserved the right to require a mandatory

retirement should there be a future change in federal

law. Sanchez remained as investigator with Respon-

dent as of the date of the public hearing.

22. At all times pertinent to the instant case,

Respondent’s management construed the completion of

“active duty’ requirement in Article 29 in the 1986 and

1988 collective bargaining agreements to mean 20 years

according to the SERS pension records. The 1991 collec-

tive bargaining agreement, which took effect after the

expiration of the 1988 collective bargaining agreement,

contained a provision which tied the “active service”

language of Article 29 to the calculation of creditable

service time according to SERS records.

23. By August 10, 1990, Complainant and other inves-

tigators had taken advantage of an alternative formula

for calculating retirement pension administered bySERS

that was established for investigators by the legislature

in 1979. This formula, which was more generous in

benefits than that given to the majority of state employ-

ees, required at a minimum that investigators be at

least 55 years of age and 20 years of “creditable service”

in the position of investigator.

24. At the time of Complainant’s forced retirement,

Respondent had forced the retirement of at least four

other unranked investigators from the time period of

one el an

1979 to 1980. Complainant, however, was the only

investigator that was mandatorily retired under Article

29 of the 1988 collective bargaining unit. The record is

silent as to whether any other investigators met the 62

years old/ 20 years active duty requirements of Article

29 during the lifetime of the 1988 collective bargaining

agreement.

Conclusions of Law

1. Complainant is an “employee” as that term is

defined under the Human Rights Act.

2. Respondent is an “employer” as that term is defined

under the Human Rights Act and was subject to the

provisions of the Human Rights Act.

3. Complainant has established a prima facie case of

age discrimination.

4. Respondent has articulated a legitimate, non-dis-

criminatory reason for its decision to forcibly retire

Complainant.

5. The Commission is without jurisdiction to consider

Complainant’s discrimination claim to the extent that

such claim rests on the allegation that Respondent

misinterpreted the meaning of a collective bargaining

agreement both as to coverage of the agreement regard-

ing the job classification of Respondent’s employees and

as to the appropriate construction of the. language of the

agreement’s mandatory retirement provisions.

6. An employer may impose a mandatory retirement

age for law enforcement officers if, prior to December 31,

1993, the law enforcement officer had attained the age

of retirement in effect under applicable state or local law

on March 3, 1983 and if such retirement action was

— A-40 —

taken pursuant to a bona fide retirement plan. More-

over, an employer may distinguish between classes of

law enforcement officers in identifying which class of

law enforcement officers will be subject to a mandatory

retirement retirement plan.

7. Respondent has shown by a preponderance of the

evidence that Complainant was a law enforcement

officer subject to the mandatory retirement provisions

of section 2-115 of the Motor Vehicle Act (Ill. Rev. Stat.

(1987), ch. 651/2, par. 2-115), that it had in existence at

the time of Complainant’s forced retirement a bona fide

mandatory retirement plan in accordance with section

2-104 (A) (7) of the Human Rights Act (775 ILCS 5/2-

104(A)(7), and that Complainant was terminated as a

result of the implementation of said plan.

Dislecuniendl

Complainant has failed to prove by a preponderance

of the evidence that Respondent violated section 2-102

of the Human Rights Act (775 ILCS 5/2-102) when it

forcibly retired Complainant from his position as an

investigator. Conversely, Respondent has shown that

Complainant’s forced retirement was outside the cover-

age of the Human Rights Act due to the exemption

provided to employers under section 2-104(A)(7) of the

Human Rights Act (775 ILCS 5/2-104(A)(7).

Di ;

This case presents an interesting question regarding

the interplay between the mandatory retirement ex-

emption set forth under the Human Rights Act (775

ILCS 5/2-104(A)(7)), and Respondent’s application of a

mandatory retirement provision in a collective bargain-

hii

ing agreement. Curiously, Complainant does not quar-

rel with the right of Respondent to establish a manda-

tory retirement system for its investigators. Indeed,

Complainant conceded at the public hearing that he

would have no cause of action if Respondent had applied

a mandatory retirement system as to all of its ranked

and unranked investigators. (See, for example, Tr. Vol.

I pp. 11- 12.) However, for reasons to be explained below,

I find that the Commission does not have jurisdiction to

consider certain of Complainant’s arguments in support

of his claim of discrimination, that Respondent may use

the exemption provided in section 2-104(A)(7) of the Act

to excuse its forced retirement of Complainant, and

that, in any event, any disparity in treatment given to

Complainant and other alleged comparables does not

establish discrimination based upon Complainant’s age.

In order to understand why Complainant loses under

the circumstances of the instant case, it is necessary to

review case law concerning the standards of proof appli-

cable to the claims made before the Commission. Nor-

mally, in a case alleging discrimination based upon age,

the Commission and the courts have applied a three-

step analysis to determine whether there has been a

violation of the Illinois Human Rights Act. (See, for

example, Clyde v. Human Rights Commission, 206 IIl.

App.3d 283, 546 N.E.2d 265, 151 Ill. Dec. 288 (4th Dist.

1991), and Orlet and Jefferson Smurfit Corporation d/

b/a Alton Packaging Corporation, 40 Ill. HRC Rep. 363

(1988).) Under this approach, the complainant must

first establish a prima facie case of unlawful discrimina-

tion by a preponderance of the evidence. Then, the

burden shifts to the respondent to articulate a legiti-

mate, non-discriminatory reason for its action taken

against the complainant. Ifthe respondent is successful

— A-42 —

in its articulation, the presumption of unlawful dis-

crimination is no longer present in the case (see, Texas

Department of Community Affairs v. Burdine, 450 U.S.

248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (198 1)), and the

complainant is required to prove by a preponderance of

the evidence that the respondent’s articulated, non-

discriminatory reason is a pretext for unlawful dis-

crimination. This latter requirement merges with the

complainant’s ultimate burden of proving that the re-

spondent discriminated unlawfully against the com-

plainant.

As with any case of alleged unequal treatment based

upon age, the elements of a prima facie case will vary

according to the specific claim. Generally, in establish-

ing a prima facie case of age discrimination under the

Act, a complainant must show that: (1) he was in the

protected age classification; (2) he experienced an ad-

verse act; and (3) others younger than the complainant

were treated more favorably. (See, for example, Clyde.)

'The appellate court in Clyde added “adequate job performance”

as an additional element of a prima facie case of age discrimina-

tion. However, more recently, the Appellate Court, First District,

Third Division, in JSS International Service System, Inc. v. The

Illinois Human Rights Comm’n, 272 Ill. App-3d 969, 652 N.E.2d

592, 209 Ill. Dec. 414, concluded that it was no longer necessary

that a discharged complainant show either that he was performing

satisfactorily at the time of discharge or that he was replaced by a

member outside of the protected classification in order to establish

a prima facie case of discrimination. See, also, the Commission’s

decision in Battieste and C.E. Niehoff __ Ill. HRC Rep. _,

(1989CF 4075, November 14, 1995), which approved the reasoning

set forth by the JSS court.

— A-43 —

Here, I find that Complainant has stated a sufficient

prima facie case of age discrimination since the record

shows that Complainant was within the protected age

classification, he experienced an adverse act, and other

investigators younger than Complainant, (i.e. both

Sanchez and all other younger investigators who were

not subject to the alleged mandatory retirement plan)

were permitted to work as investigators after Com-

plainant was forced to mandatorily retire in August of

1990.

Respondent, though, has taken the stance that Com-

plainant has not established a prima facie case of age

discrimination under the Act since Complainant was

subject to a valid mandatory retirement plan that was

exempted from the Act under section 2-104(A)7). How-

ever, the fact that enforcement of Respondent’s retire-

ment plan may or may not exempt Respondent from the

provisions of the Act does not detract from a finding that

Complainant has established a prima facie case of age

discrimination. Indeed, the fact that the legislature has

created an exemption under the Act lends itself to a

finding that Complainant has established a prima facie

case of age discrimination since there would be no need

for establishing an exemption if the subject conduct

were not otherwise considered to be actionable under

the Act.? Here, it is sufficient to say that Complainant

established a prima facie case of age discrimination

when Captain Price told Complainant on Complainant’s

2 Moreover, in a case cited by Respondent (Gonsalves v. Cater-

pillar Tractor Co., Inc., 634 F.2d 1065, 1068 (7th Cir. 1980)), the

court observed that in retirements under a mandatory retirement

plan, age is the relevant factor used to determine when an

employee must retire.

aay SY ee

62nd birthday that, due to the terms of the mandatory

retirement provisions of the collective bargaining agree-

ment, Complainant would no longer be able to work for

Respondent.

Ordinarily, after Complainant has established a prima

facie case of discrimination, Respondent is required to

“articulate” a reason for its adverse decision against

Complainant. Moreover, under the standards used by

the courts and the Commission, Respondent need not

“prove” by a preponderance of the evidence the truth of

the articulation proffered by Respondent. (See, for ex-

ample, St. Mary’s Honor Center v. Hicks, 113S.Ct. 2742,

2747 (1993), and Fitzgerald and State of Illinois, Dep’t

of Public Aid, _Tll. HRC Rep. _ (1993SA0460, November

7, 1997).) However, Respondent has invoked the man-

datory retirement exception found in section 2-104(A)(7)

of the Human Rights Act, as well as the language of a

collective bargaining agreement, as an explanation for

what it did to Complainant on August 10, 1990. Thus,

the normal standards requiring Complainant to bear

the burden of proof to establish pretext once Respondent

has articulated a reason for its adverse decision against

Complainant do not apply here since, as noted by the

Commission in Cafagna v. Village of Chicago Ridge, Ill.

HRC Rep. _ (1988CF0023, April 4, 199 1), Respondent

bears the burden of proof in establishing an exemption

under the Human Rights Act. Gafagna, at p. 6.

In this instant matter, Respondent notes that under

section 2-104(A)(7), law enforcement officers such as

Complainant could be mandatorily retired if. (1) prior to

December 31, 1993, the law enforcement officer has

attained the age of retirement “in effect under appli-

cable state or local law on March 3, 1983, [] if such

retirement action is taken pursuant to a bona fide

— A-45 —

retirement plan”; (2) the “applicable state law” in effect

on March 3, 1983 was section 2-115 of the Illinois

Vehicle Code (Til. Rev. Stat. 1983, ch. 95 1/2, par. 2-115)

which provided that “no person may be retained in

service as an investigator ... after he has reached 60

years of age”; (3) the collective bargaining agreement in

effect at the time of Complainant’s forced retirement

required unranked investigators such as Complainant

to retire at age 62; and (4) the retirement plan at issue

(i.e., the Sate employees retirement system alternative

formula) was “bona fide” because it provided substan-

tial benefits to Complainant and others involuntarily

retired. See, for example, EEOC v. Borden’s, Inc., 724

F.2d 1390 (9th Cir. 1984)

Complainant raises several arguments contesting

the availability of section 2-104(A)(7) to the instant

case. Initially, Complainant contends that, under State

of Illinois, Secretary of State v. Mikusch, 138 T1l.2d 242

(October 4, 1990), the Illinois Supreme Court held that

Respondent could not rely on section 2-115 to involun-

tarily retire investigators at the age of 60 since: (1) the

language Human Rights Act at that time prohibited age

discrimination for employees aged between 40 and 70

years of age; (2) the Human Rights Act did not contain

an exemption permitting the involuntary retirement for

law enforcement officers; and (3) section, 2-115 of the

Motor Vehicle Code did not provide an exception to the

Human Rights Act. Accordingly, Complainant contends

that his involuntary retirement at age 62 was unlawful

since, under Mikusch, the applicable retirement age for

investigators was the 70 year limit found in the Human

Rights Act. Complainant’s arguments, however, do not

persuade.

Specifically, it should be noted that the terminations

at issue in Mikusch were accomplished at a time when

the Human Rights Act did not contain the exemption for

mandatory retirements found in section 2-104(A)(7).

Moreover, the Illinois Supreme Court expressly noted

that the amendment to the Act which included for the

first time the language presently found in section 2-

104(A)(7) did not apply to the terminations at issue in

Mikusch. Thus, while Complainant wishes to bind Re-

spondent to the holding in Mikusch which essentially

“repealed” section 2-115 with respect to involuntary

terminations of Respondent’s investigators, it can be

argued that the holding in Mikusch does not apply to the

instant case since Complainant’s termination occurred

at a time when section 2-104(A)(7) was a part of the

Human Rights Act.

Complainant’s related argument with respect to the

Mikusch decision is more intriguing. Distilled to its

essence, Complainant’s argument focuses on the lan-

guage of section 2-104, which Emits the applicability of

the exemption to law enforcement officers who have

attained the age of retirement “in effect under appli-

cable state or local law on March 3, 1983”. Thus, accord-

ing to Complainant, Respondent cannot rely on section

2-104(A)(7) to excuse what would otherwise be unlawful

age discrimination since the Mikusch court declared

that, at least prior to the 1987 amendment to the

Human Rights Act (and presumably on March 3, 1983),

section 2-115 of the Motor Vehicle Act did not apply to

Respondent’s unranked investigators.

Complainant’s argument is without merit for several

reasons. Initially, it should be noted that the Illinois

Supreme Court in Mikusch did not hand down its

— A-47 —

decision until October of 1990, and the Commission did

not give the parties any clue that there could be some-

thing wrong with the applicability of section 2-115 until

it entered its Order and Decision in Mikusch in July of

1985. Thus, ifthe language in section 2-104(A)(7) is to be

viewed literally, section 2-115 did “apply” to involun-

tary retirements of Respondent’s investigators on March

3, 1983 since there had been no judicial or agency

pronouncement to the contrary as of that date.

Too, while Complainant expends great energy on his

observation that “ignorance of the law” is no excuse for

this Respondent in relying on its perception of the state

of the law at the time of Complainant’s involuntary

retirement, it should be noted that as of the August 10,

1990 termination of Complainant, the “last word” on

whether section 2-115 ofthe Motor Vehicle Code permit-

ted Respondent to involuntarily retire its investigators

was contained in the Appellate Court decision in Mikusch

which told Respondent that involuntary retirements

under section 2-115 of the Motor Vehicle Code were

proper. Hence, Complainant’s desire to find Respondent

liable under the Human Rights Act based upon lan-

guage set forth in the Illinois Supreme Court’s decision

in Mikusch is problematic where the decision had not

been in existence at the time of Complainant’s termina-

tion.®

Other factors also lead to a determination that the

mandatory retirement provisions of section 2-115 of the

5Indeed, due to the differing opinions registered by the various

courts which considered the mandatory retirement provisions of

section 2-115 of the Motor Vehicle Act as applied to investigators,

it is difficult to fault Respondent for taking the position it did in

August of 1990 with respect to Complainant.

soutien

Motor Vehicle Act were “in effect” as of March 3, 1983 for

purposes of applying the exemption contained in sec. 2-

104(A)(7) of the Human Rights Act. Specifically, as

noted by the court in McCann v. City of Chicago, 968

F.2d 635 (71 Cir. 1992), the 1987 amendment to the

Human Rights Act, which first included section 2-

104(A)(7) as an exemption to the Act, would be hollow if

the rules in force in 1983 forbade mandatory retirement

earlier than the limit of 70 years already established by

the Human Rights Act. (968 F.2d at 637.) Here, Com-

plainant has noreal answer to the reasoning used by the

Seventh Circuit in McCann which, as noted in its

decision, was in a position to resolve what effect, if any,

Mikusch had on involuntary retirements occurring af-

ter the enactment of section 2-104(A)(7).

Additionally, Complainant, in invoking notions of

equal protection, challenges the ability of Respondent to

involuntarily retire him while permitting others to

remain with Respondent after their 62nd birthday and

after their 20th year of service with Respondent. Spe-

cifically, Complainant insists that if Respondent is to

have an involuntary retirement policy for its investiga-

tors, it must apply such policy to all investigators

* Moreover, while the Mikusch case concerned only a conflict

between section 2115 of the Motor Vehicle Code and the anti-age

discrimination provisions of the Act, the rationale behind the

Mikusch decision, i.e. that the Human Rights Act must prevail

over the Motor Vehicle Code provision because the Human Rights

Act is more specific on the issue of age discrimination, would

theoretically place all state and local enactments providing for

mandatory retirement as of March 3, 1983 in jeopardy. Thus,

taking Complainant’s argument to its logical conclusion, none of

the various state and local laws providing for mandatory retire-

ments would have been “in effect” as of March 3, 1983 due to the

conflicting age provisions of the Human Rights Act.

— A-49 —

regardless of rank. Case law, however, does not support

Complainant’s argument in this issue.

Initially, to the extent that Complainant rests his

claim on the federal equal protection clause, I agree

with Respondent that the Commission is the wrong

forum to address such claims since the Commission can

only interpret the Human Rights Act. Moreover, while

Complainant contends that “no court in the land ... can

ignore equal protection” when it comes to issues of age

discrimination (see Complainant’s brief at p. 31), I

would note that the United State Supreme Court, on at

least three different occasions, has determined that age

discrimination is constitutionally permissible. (See,

Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115

L.Ed. 2d 410 (199 1); Vance v. Bradley , 440 U.S. 93, 99

S.Ct. 939, 59 L.Ed.2d 171 (1979); and Massachusetts

Board of Retirement v. Murgia 427 U.S. 307, 96 S.Ct.

2562, 49 L.Ed.2d 520 (1976).)° Indeed the organiza-

tional posture in which the McCann court considered

and rejected the claim that the City of Chicago could not

have two different retirement ages for its ranked and

unranked police officers should put to rest Complainant’s

equal protection claim that Respondent could not have

two different retirement schemes for its ranked and

unranked investigators.

To be sure, though, Complainant is correct that, even

though the Commission may not cite the equal protec-

‘Indeed, the court in Quinones v. City of Evanston, IIl., 58 F.3d

275, 280 (7th Cir. 1995) suggested that an employee’s only federal

relief with respect to age discrimination lies with the ADEA rather

than any constitutional protection since an employee could not use

a section 1983 petition (42 U.S.C. § 1983), which provides the only

avenue to raise rights guaranteed by the Constitution, to raise an

age discrimination claim.

— A-50 —

tion clause, the Commission has always considered

disparate treatment among similarly situated employ-

ees in order to determine whether there has been any

violation of the Human Rights Act. (See, for example,

Loyola University v. Human Rights Com’n., 149 Ill.

App.3d 8, 500 N.E.2d 639, 102 Ill. Dec. 746, (1st Dist., 3d

Div., 1986).) However, three of the five investigators

Complainant cites as comparables (i.e., DiSabato,

Sandona and Wood) are “ranked” investigators, and

thus arguably disqualify them from being suitable

comparatives. More important, though, is the fact that

four of the five comparable investigators cited by Com-

plainant (DiSabato, Sandona, Wood and Foley) who

were permitted to retire on their own time-tables after

achieving the age of 62, were older than Complainant.

Hence, even if notions of the court’s decision in Loyola

come into play in the resolution of the instant case,

Complainant has failed to cite any authority (persua-

sive or otherwise) for the proposition that Respondent is

guilty. of age discrimination when it treats individuals

older than Complainant in a more favorable fashion.

The circumstance of Sanchez, though, is problematic

for Respondent since unlike DiSabato, Sandona and

Wood, Sanchez was an unranked investigator who, at

age 60, was younger than Complainant at the time of

Complainant’s termination and was permitted to re-

main on staff past his 62nd birthday in the Fall of 1993,

after having served the minimum of 20 years as an

investigator. Initially, Respondent contends that

Sanchez is not a suitable comparative for purposes of

establishing age discrimination since: (1) Sanchez nei-

ther had the required 20 years of service or minimum

age for retirement until at least two years after

Complainant’s August 10, 1990 termination; (2) at the

— A-51 —

time Sanchez acquired the requisite age and number of

years of creditable service, a different collective bar-

gaining agreement was in effect; and (3) Sanchez’ con-

tinued employment after December 31, 1993 can be

explained by the fact that the exemption provided by the

Human Rights Act for mandatory retirements expired

on December 3 1, 1993.

These attempts by Respondent to distance Sanchez

from the circumstances associated with Complainant,

however, do not persuade. Specifically, while it is true

that in the Fall of 1993 the terms of mandatory retire-

ment provisions set forth in Article 29 of the collective

bargaining agreement differed from the 1988 collective

bargaining agreement that was in existence at the time

of Complainant’s forced retirement, the difference in

the 1991 collective bargaining agreement, i.e., the ex-

press language in Article 29 which calculates the 20

years of “active duty” in terms of records kept by SERS

in the alternative law enforcement pension plan, did not

differ in any significant detail from Respondent’s inter-

pretation of the 1988 collective bargaining agreement

which also viewed the 20 year “active duty” requirement

to mean 20 years according to SERS records. Indeed,

Respondent maintained that it viewed the SERS calcu-

lation of time as the relevant standard for determining

“active duty” even though the 1988 collective bargain-

ing agreement never expressly mentioned the SERS

calculation and even though the lead negotiator for

Respondent never had an oral agreement with the

union before January 1, 1992 that the calculation for 20

years of active duty would be based upon SERS records.

Moreover, while it is true that the mandatory retire-

ment exemption provided in section 2104(A)(7) expired

— A-§3

on December 31, 1993, the record reflects that Sanchez

would have satisfied all requirements for the forced

retirement provision of Article 29 (i.e. over 62 years of

age and “creditable service date” of August 1, 1993) on

August 1, 1993. Here, although Respondent did give

technical notice to Sanchez in August of 1995 of the

mandatory retirement provisions contained in the col-

lective bargaining agreement (which it later rescinded

due to its interpretation of the ADEA), Respondent has

not explained why it did not insist that Sanchez retire at

the earliest moment after having met all of the require-

ments for torced retirement under the terms of the 1991

collective bargaining agreement in August of 1993,

while it required Complainant to retire a mere four days

after Complainant had met all of the criteria for forced

retirement under the 1988 collective bargaining agree-

ment.

The existence of Sanchez as a suitable comparative,

however, does not automatically require a finding of

liability under the instant record. Here, Complainant

could show at most that one coworker, approximately

two years younger than he, received more favorable

treatment from Respondent in the implementation of

its forced retirement plan. Such evidence of age dis-

crimination, though, is particularly underwhelming

where the evidence shows that at least four other

individuals who received more favorable treatment were

older than Complainant.® See, for example, O’Connor v.

5 Moreover, even if the “ranked” investigators are taken out of

the mix and only unranked investigators are compared, the result

is still the same since Foley, an unranked investigator received

more favorable treatment. Again, Complainant is reduced to

arguing that he is the victim of age discrimination in a system

where, at time, older and younger individuals are treated more

favorably. ‘

— A-53 —

Consolidated Caterers, U.S._, 116 S. Ct. 1307 (1996),

the Court observed that an inference of age discrimina-

tion cannot be drawn through a comparison of one

worker with another who is “insignificantly younger”,

and Kuhn v. Ball State University 78 F.3d 330, 332 (7th

Cir. 1996) where the court emphasized that a finding of

discrimination requires a “goodly” sample of discrimi-

natory acts.

Alternatively, it should be noted that Complainant is

correct that Respondent has not explained why, if the

ranked officers were not forced to retire pursuant to

Article 29 of the collective bargaining agreement, Re-

spondent did not forcibly retire these officers pursuant

to section 2-115 of the Motor Vehicle Act when they

turned 60 years old. However, this seeming incongruity

does little to advance Complainant’s age discrimination

claim because: (1) this Commission is not equipped to

enforce an alleged violation, of a provision of the Motor

Vehicle Act; and (2) Complainant has not argued that

Respondent did not have a bona f:*'e retirement plan for

at least unranked investigators for purposes of applying

the mandatory retirement exemption contained in sec-

tion 2-104(A)(7). Indeed, the record reflects at least four

other investigators in the 1979 to 1980 time period were

mandatorily retired by Respondent, and I would note

that Respondent and the union went to the trouble of

putting in Article 29 which called for mandatory retire-

ment of Respondent’s investigators in the various col-

lective bargaining agreements contained in this record.

Hence, this is not a situation where Respondent has

manufactured an alleged retirement plan as an excuse

to explain away Complainant’s forced retirement. Thus,

for all of the above reasons, I find that Respondent has

shown by a preponderance of the evidence, that it had in

— A-54 —

place at the time of Complainant’s forced retirement, a

bona fide retirement plan calling for Complainant’s

mandatory retirement, that Complainant was subject

to such retirement plan and that the instant forced

retirement of Complainant was exempted under section

2-104(A)(7) of the Human Rights Act.

Finally, it should be noted that Complainant, in a

separate argument, has urged me to construe the recog-

nition and mandatory retirement clauses of the 1986

and 1988 collective bargaining agreement in order to

support his claim that he was the victim of age discrimi-

nation. Specifically, Complainant contends that: (1)

Respondent’s only explanation as to why he was treated

differently from DiSabato, Sandona and Woods was the

fact that none of these ranked investigators were cov-

ered under the terms of the collective bargaining agree-

ment; (2) at least the mandatory retirement terms

contained in Article 29 of the collective bargaining

agreement included all three individuals in spite of

Respondent’s interpretation of the agreement; and (3)

because ranked and unranked investigators were sub-

ject to the mandatory retirement provision of the collec-

tive bargaining agreements, they constituted suitable

comparatives for purposes of establishing age discrimi-

nation.

Complainant’s arguments, however, ignore the juris-

dictional boundaries of what the Commission can re-

solve when rendering a decision on a complaint. Specifi-

cally, in Carver Lumber Co. v. Illinois Human Rights

Comm., 162 Ill. App.3d 419, 515 N.E.2d 417, 113 Ill. Dec.

608 (3rd Dist. 1987), the court, in finding that the

Commission was without jurisdiction to consider a handi-

cap claim where the complainant sought an accommo-

— A-55 —

dation which would violate terms ofa collective bargain-

ing agreement, reaffirmed the notion set forth by the

United States Supreme Court, in AllisChalmers Corp.

v. Lueck, 471 U.S. 202, 105 S.Ct. 1904 (1985) that where

the resolution of the State claim is substantially depen- _

dent upon analysis of the terms of an agreement made

between the parties in a labor contract, the clair is

either one under Section 301 or under Federal contract

law.

Here, it would appear that Complainant wants me to

construe the terms of the 1986 and 1988 collective

bargaining agreements in order to resolve who was

actually covered under the contract and what the par-

ties actually intended when it included the “20 years

active duty” language in the mandatory retirement

provisions of said agreements. This determination, how-

ever, is better left to the federal courts to resolve.

Moreover, should the Commission deem otherwise, I

would find that only unranked investigators were cov-

ered under the contract due to the reference to the

Illinois State Labor Relations Board case limiting the

union’s representation to only unranked investigators’.

Indeed, Complainant has not offered any labor law

authority which could explain how a union limited to the

representation of a certain group of employees could

bind a different group of employees to terms contained

in a collective bargaining agreement. In any event,

whether Respondent should have viewed ranked inves-

* Indeed, it could be argued that when Captain Price referred to

Article 29 of the collective bargaining agreement as the reason for

Complainant’s termination, Complainant’s sole recourse should

have been the federal courts to the extent that Complainant has

contested here that Respondent, for various reasons, has miscon-

strued the language of Article 29.

— A-56 —

tigators as being covered under the terms of the either

collective bargaining agreement is irrelevant in the

instant case since any inclusion of such individuals (who

were all older than Complainant) only highlights the

fact that age had nothing to do with Respondent’s

decision to invoke the terms of Article 29 to effectuate

Complainant’s forced retirement.

Recommendation

For all of the above reasons, it is recommended that

the instant Complaint and the underlying Charge of

Discrimination of John D. Langley be dismissed with

prejudice.

HUMAN RIGHTS COMMISSION

Michael R. Robi

MICHAEL R. ROBINSON

Administrative Law Judge

Administrative Law Section

ENTERED THE 16 th DAY OF JANUARY, 1998.

— A-57 —

APPENDIX I

STATE OF ILLINOIS

HUMAN RIGHTS COMMISSION

CHARGE NO: 1984 CF 9002

ALS NO: 1164(L)

IN THE MATTER OF.

DEPARTMENT OF HUMAN RIGHTS, et al.,

Complainants,

and

STATE OF ILLINOIS,

OFFICE OF THE SECRETARY OF

STATE,

Respondent.

ORDER AND DECISION

This matter is before our panel of the Commission to

consider the Recommended Order and Decision entered

by Administrative Law Judge, Stephen X. Lythcott.

Judge Lythcott was asked to determine whether the

policy of the Secretary of ‘State which calls for the forced

retirement of investigators at age 60 violates the Illinois

Human Rights Act. This is the same issue which has

been ruled upon by another panel of this Commission in

the case of Mikusch and State of Illinois, Office of the

Secretary of State, Charge No. 1981CF0146,et seq. For

the reasons stated by the Commission Panel in that

case, we believe that the Secretary of State has violated

the Human Rights Act. A copy of the Commission

Panel’s decision in the Mikusch case is attached hereto

as Appendix A and incorporated by reference herein.

— A-58 —

IT IS THEREFORE ORDERED:

A

10.

The complaint of the Department of Human

Rights, Charge No. 1984CF9002, is sustained.

The Complaint of Lyly Pratt, Charge No.

1983CF0416, is sustained.

The Complaint of Gerald Jackson’ Charge No.

1983CF0417, is sustained.

The Complaint of Joseph Quest, Charge No.

1983CF0467, is sustained.

The Complaint of Wayne Misfeldt, Charge NO.

1983CF0468, is sustained.

The Complaint of Columbus Disabato, Charge

No. 1983CF2380, is sustained.

The Complaint of Robert -Schmitt, Charge No.

1983CF2381.

That the Recommended order and Decision

and the Interim Recommended order and Deci-

sion in this case are affirmed, adopted. by the

Commission, and incorporated by reference

herein.

That the Respondent is ordered to cease and

desist forthwith from disqualifying Complain-

ants and others from employment as investiga-

tors solely upon their attaining the age of 60

years.

That the Respondent is ordered to cease and

desist forthwith from taking any measures

henceforth to compel or coerce Complainants

or any others it may employ as investigators to

— A-59 —

retire because they hav «ttained any age-

younger than 70 years.

. That the Respondent is ordered to reinstate

any Complainants who may have been retired

pursuant to the Respondent’s policy during the

course of these proceedings to their positions as

investigators with all rights and benefits of

employment, including seniority and service

credit intact, and with full recompense for all

back pay and other losses suffered as a conse-

quence thereof.

. Thatthe Respondent, is ordered to report to the

Commission within 45 days following the entry

of this Order, the steps it has taken to comply

therewith.

. That this Order and Decision is final and ap-

pealable.

(Commissioner Manuel Barbosa, Commissioner Alfred

C. Whitley, Commissioner Rebecca Sive-Tomashefsky

HUMAN RIGHTS COMMISSION

s/Manuel Barbosa

s/Alfred Whitley

s/Rebecca Sive-Tomashefsky

ENTERED AUGUST 28, 1985

— A-60 —

APPENDIX J

Rule 23. Disposition of Cases in the

Appellate Court

The decision of the Appellate Court may be expressed

in one of the following forms: a full opinion, a concise

written order, or a summary order conforming to the

provisions of this rule. All dispositive opinions and

orders shall contain the names of the judges who ren-

dered the opinion or order. Only opinions of the court

will be published.

(a) Opinions. A case may be disposed of by an opinion

only when a majority of the panel deciding the case

determines that at least one Of the following criteria is

satisfied, subject to the limitations contained in the

accompanying administrative order:

(1) the decision establishes a new rule of law or

modifies, explains or criticizes an existing rule of

law; or

(2) the decision resolves, creates, or avoids an

apparent conflict of authority within the Appellate

Court.

(b) Written Order. Cases which do not qualify for

disposition by opinion may be disposed of by a concise

written order which shall succinctly state:

(1) the germane facts;

(2) the issues and contentions of the parties when

appropriate;

(3) the reasons for the decision; and

(4) the judgment of the court.

— A-61—

(e) Effect of Orders. An unpublished order of the

court is not precedential and may not be cited by any

party except to support contentions of double jeopardy,

res judicata, collateral estoppel or law of the case. When

cited for these purposes, a copy of the order shall be

furnished to all other counsel and the court.

(f) Motions to Publish. If an appeal is disposed of by

order, any party may move to have the order published

as an opinion. The motion shall set forth the reasons

why the order satisfies the criteria for disposition as an

opinion and shall be filed within 21 days of the entry of

the order.

— A-62 —

APPENDIX K

STATE OF ILLINOIS

HUMAN RIGHTS COMMISION

CHARGE NO: 1991SA 0096

EEOC NO: 21B903376

ALS NO: S-5288

IN THE MATTER OF:

JOHN D. LANGLEY,

Complainant,

and

ILLINOIS SECRETARY OF STATE,

Respondent.

PRE-HEARING MEMORANDUM

A. Counsel For Complainant:

James B. Wham

Wham & Wham Attorneys

212 East Broadway

Post Office Box 549

Centralia, Illinois 62801

(618) 532-5621

For Respondent:

Robert B. Powers

Assistant Counsel

Secretary of State’s Office

298 Howlett Building

Springfield, Illinois 62756

(217) 785-3094

— A-63 —

B. Material Facts

C lai P he follow

numbered Material Facts:

1. As of August 14, 1990 the following named employees

of the Secretary of State, Department of Police, were

permitted by the Secreiary of State to continue their

employment although each of them were at that time

over the age of 62 years: Columbus the Margolis deci-

sion:

“The District Court specifically noted that Illi-

nois law in effect on March 3, 1983 required Illinois

State Policemen to retire upon reaching age 60,

citing Il]. Rev. Stat. 1983, ch. 121, par. 307.121. The

The applicable State law in effect on March 3, 1983

was Illinois Revised Statutes, ch. 95 1/2, par. 2-115

(as amended by P.A. 82-977 effective January 1,

1983) concerning investigators for the Secretary of

State which reads in pertinent part: No person may

be retained in service as an investigator under this

section after he has reached 60 years of age. Like

Burke, Complainant herein misconstrued which

was the ‘applicable state or local law on March 3,

1983.” (Emphasis added)

The Order of the Administrative Law Judge further

stated at page 6:

* * *

“Under the existing collective bargaining agree-

ment calling for mandatory retirement at age 62

rather than at age 60 as called for in the statutes,

the Complainant herein was able to retain his

position two years beyond that which would have

(Emphasis added)

Complainant contends that under the law of the case

as determined by the Administrative Law Judge in the

order referred to above, that Investigator-Lieutenant

Columbus DiSabato, Investigator-Major Robert Sandona

and Investigator-Lieutenant Raymond A. Wood should

all have been required by the Secretary of State to retire

at age 60 as required by the above statute if they were

not subject to Article 29 of the Agreement between the

Secretary of State of Illinois and Fraternal Order of

Police Lodge 95.

Whether DiSabato, Sandona and Wood were bound

by Article 29 or by the statute, in either event, the

Secretary of State unlawfully discriminated against the

Complainant Langley in requiring him to retire at age

62 while permitting DiSabato, Sandona and Wood to

serve beyond their 62nd birthdays. This discrimination

by the Secretary of State not only vidlated the law, but

also violated Section 2 of Article 4 being the

NonDiscrimination provision of the Agreement which

provides that:

“The employer shall not discriminate against

officers .... nor shall the employer discriminate

against officers as a result of membership or non-

membership in the Lodge.”

Respondent’s defense asserted against Complainant’s

discrimination claim based on the fact that DiSabato,

Sandona. and Wood had rank and that Langley had no

rank is nothing but a selfserving, irrelevant and inaccu-

rate invention. Nothing in writing or in practice justifies

such a distinction. It is Complainant’s position that if

DiSabato, Sandona and Wood were not bound by Article

— A-65 —

29 of the Agreement then DiSabato, Sandona and Wood

were bound by the 60 year statutory retirement require-

ment. In such event, the Secretary of State was required

to terminate their services in accordance with the stat-

ute referred to above, namely, that: “No person may be

retained in service as an Investigator under this section

after he has reached 60 years of age.”

In either event, the discriminatory act by the Secre-

tary of State requiring Langley to retire, while at the

same time permitting DiSabato, Sandona and Wood to

serve when the statute or the Agreement required their

retirement, is a clear violation of the equal protection

rights of Langley under the Fourteenth Amendment to

the Constitution of the United States of America.

2. The Complainant contends that age is a protected

status under both Federal and State law. The Supreme

Court of the United States in EEOC v. Wyoming, 460

U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), decreed

that the Age Discrimination in Employment Act (ADEA)

applies to state law enforcement officers. “In 1986 Con-

gress amended the ADEA to permit state governments

to restore the mandatory retirement age that had been

in place on March 3, 1983, the day after the Supreme

Court handed down EEOC v. Wyoming:

“It shall not be unlawful for an employer which is a

State [or] a political subdivision of a State ... to

discharge any individual because of such individual’s

age if such action is taken (1) with respect to the

employment of an individual as a firefighter or as a

law enforcement officer and the individual has

attained the age of hiring or retirement in effect

under applicable State or local law on March 3,

1983, and (2) pursuant to a bona fide hiring or

ii.

retirement plan that is not a subterfuge to evade

the purposes of this chapter. 29 U.S.C. § 623().”

McCann v. City of Chicago, 968 F.2d 635 (7th Cir. 1992),

cert den. 61 U.S. L.W. 3370 (1993), [This case was cited

and relied on at page 6 of the Order entered by the

Administrative Law Judge

— A-67 —

APPENDIX L

BEFORE

THE HUMAN RIGHTS COMMISSION

STATE OF ILLINOIS,

Charge No. 1991-SA-0096

ALS No. S-5288

IN THE MATTER OF:

JOHN D. LANGLEY,

Complainant,

VS

ILLINOIS SECRETARY OF STATE,

Respondent.

VOLUME III

Hearing held, taken before Julie J. Mayer, CSR, RPR,

and Notary Public, on the 28th day of May, 1997, at the

hour of 9:00 A.M., at 404 Stratton Building, Springfield,

Illinois, before Judge Michael Robinson, duly appointed

Administrative Law Judge.

it at that. And I suppose the only thing I can tell Mr.

Wham not to do is to make either full or partial settle-

ment of his client’s case without the prior knowledge of

Mr. Powers, is that - -

Transcript by

ASSOCIATED COURT REPORTERS

1-800-252-9915

404 East Main Cross 444 First of America Center

Taylorville, Illinois 62568 P.O. Box 3243

(217) 824-5717 Springfield, Illinois 62705

— A-68 —

MR. POWERS: I don’t want to belabor this day’s

efforts on this issue. I simply wanted to bring it to your

attention.

JUDGE ROBINSON: All right. Do you want either of

these introduced?

MR. POWERS: No.

J UDGE ROBINSON: Okay. All right, Mr. Wham, you

may present your case in rebuttal.

MR. WHAM: Thank you, Your Honor.

First, before I present the evidence, I have prepared

a motion for finding of liability in favor of the Complain-

ant at the close of the Respondent’s evidence.

Have I given you one of those yet?

MR. POWERS: I haven’t seen it.

MR. WHAM: Now what I have done in this motion, I

have analyzed this case up one side and down the other.

I have taken apart every possible position that any-

one can take that is within my sometimes limited

intellect.

But nevertheless, it is our concept of this case that as

of right now, without our introducing another scratch of

evidence, that the Complainant, John Langley, has

established a prima facie case of unlawful discrimina-

tion against the Respondent, which prima facie case has

established a rebuttable presumption that the Respon-

dent unlawfully discriminated against the Complain-

ant, and that the Respondent has failed to rebut the

presumption and has failed to articulate a legitimate

nondiscriminatory reason for its decision to require the

— A-69 —

mandatory retirement of John Langley against his will.

Nowhere in the records, either by pleading or proof,

has the Respondent articulated the reason for enforcing

a program of mandatory retirement for all Secretary of

State investigators in such a discriminatory manner so

as to permit DiSabato, Sandona and Wood to work as

investigators for the Secretary of State as long as they

wished, while at the same enforcing forcing the Com-

plainant Langley to retire against his will.

What are the scenarios? Let’s take the case, assuming

the case to be as the order of the Administrative Law

Judge on April 16, 1992 viewed this case - -

And incidentally, as a preview of the future comments

here, we’re going to ask Your Honor to reexamine that

interlocutory order and conclude to the contrary that

the 70 year law applied instead of the 60.

But staying with the - -

JUDGE ROBINSON: Let me stop you right there.

Let’s say that, for example, that there was an error

made in the law and that the Administrative Law Judge

improperly found that 62 was the appropriate date.

MR. WHAM: You mean 60?

JUDGE ROBINSON: 60 was the appropriate date.

And let’s say that our Respondent shared that view and

shared that view since 198— let’s say 185 through 1995,

for example.

Let’s say that that was the case.

That we’re finding out after the fact that the legal stance

of the employer was wrong.

— A-70 —

But there was case law out there that might have said

that was the right stance.

How does that affect your claim if all we can show is

that the employer was laboring under an incorrect

stance in the law, although we can’t say that that stance

was unreasonable at the time?

MR. WHAM: I’ve taken this thing apart and consid-

ered that very thing Your Honor is talking about.

I’m viewing this case first, and the first scenario I’m

discussing is assuming that 60 is the law, assuming

that, as the Administrative Law Judge found

JUDGE ROBINSON: - Okay. But my stance is why

is it age discrimination when the employer wasn’t think-

ing about age, but was thinking about what the law

permits it to do?

MR. WHAM: What is that though? They’ve never

said. They've never articulated what they think they

had a right to do as far as DiSabato, Sandona and Wood.

Not once have they articulated a reason, whether it

was a mistake of the law, whether it was anything, they

haven’t articulated it. They have to come up with the

articulation. They haven’t done it.

Let me answer Your Honor’s question. Assuming that

she made the mistake and they labored under that

mistake, they labored then under the proposition that

60 was the magic law on, in effect March 3, 1983, which

is the magic date.

So we examine that scenario. And if they had, and if

they did assume that 60 was that date, the discrimina-

oS

tion is apparent because here’s what we've got in this

case, as I’ve tried to articulate from the start.

We've got the Secretary of State, the common em-

ployer of all these investigators, the ranked and the

nonranked, the Secretary of State has a common policy

of mandatory retirement. Every one of these people are

going to have to mandatory retire some time.

And when they apply mandatory retirement against

the one group and not against the other, where is that

articulation of a

rational, reasonable basis that’s, that is sufficient to

overcome the prima facie case?

Do they say merely because there is rank? No, that

hasn’t got anything to do with it.

Because the retirement policy on age is not based on

rank. It has to do with nonranked and ranked.

It has to do with a year reference to the nonranked

that’s different-than the year reference to the ranked.

But it is still a mandatory retirement scheme, in the

good sense of the word scheme, a mandatory retirement

scheme that applies to everybody alike.

These people are similarly situated because they are

all under this mandatory retirement provisions that the

Secretary of State must enforce or can enforce or maybe

has a discretion to enforce. Let’s say that.

But any way you look at this, when the Secretary of

State — and believe me I do not say this with any

disrespect to the Secretary of State, that’s not the issue,

it’s what was done - - when the Secretary of State says

— A-72 —

look, I’m going to enforce the contractual requirement

that Langley retire, but I’m not going to enforce the

statutory requirement that DiSabato, Sandona and

Wood retire, that is discrimination on an age basis.

Because that’s the only basis upon which theyre

making Langley retire. Theyre not doing it on his

qualifications. They're not doing it on his performance.

They’re not doing it on his health or abilities in any way.

It’s pure and simple age.

Now let’s take another scenario. Let’s say if they rely

on the fact that Langley is under a union contract and

they are not, then give them the, give them that issue.

They are not under it. Langley is. Does that make a

difference to put them in a different category? No, not

when the key issue is the enforcement of mandatoriness

with regard to both.

Let’s see what would happen if there was the law that

said that, look, nonranked, retire at 62; ranked, retire at

60, in one fell swoop, in one piece of legislation. And then

the Secretary says, Langley, you got to retire because

you re 62.

DiSabato, Sandona and Wood, you're way over 62, but

you don’t have to retire even though the law says that

you have to retire at 60. Discrimination? What else

could it be?

Articulation of why? None. There isn’t. Absolute si-

lence. And the reason there’s silence, they know that the

minute they try to explain it, they’re done.

Because they can’t come up with a reasonable, ratio-

nal basis for it.

— A-73 —

Let’s turn to another trick. Let’s say theyre all under

the same contract; 62 for nonranked, 60 for ranked. And

they say Langley, we’re going to enforce this contract

against you, but we're not going to enforce this contract

against DiSabato, Sandona and Wood. Discrimination?

Of course there’s discrimination. Age discrimination.

It’s only based on age. So taking their position on 60

years being the magic number, as far as the law in force

in Illinois in 1983, March 3, after EEOC vs Wildman

came down the line, then there is discrimination on the

face. Now what are we going to say about if it was

something else? Let’s say they then say, look, there is a

cease and desist order out there. There is a cease and

desist order that says, back in 1981, that the Secretary

of State shall not take any action in enforcing the age

under 70. It’s cited in here. I forget where it is.

MR. POWERS: Page 17.

MR. WHAM: Cease and desist orders in 18 Illinois

Human Rights Commission Reports 51. That the Re-

spondent is ordered to cease and desist forthwith from

taking any measures henceforth to compel Complain-

ants or others it may employ as investigators to retire

before they have attained any age younger than 70.

Now is that in effect? Let’s assume it is. Does it allow

them to discriminate against Langley by not giving him

that same attention that they gave DiSabato, Sandona

and Wood, et cetera?

No. Because this is all inclusive. The Secretary of

State cannot take any measures, that’s contract and

otherwise, to compel or coerce, and coercion is when you

make somebody do something against their will, any

— A-74—

investigator, and that includes Langley, to retire before

they have attained any age younger than 70 years.

If their thrust was here, the reason we didn’t make

DiSabato and et cetera, retire, because here, hang out

that cease and desist order, and Langley then can go, or

can he?

Can he? Because he is an investigator and the cease

and desist order is broad enough to encompass him. It

encompasses everybody. It encompassed Mikusch. It

encompassed DiSabato, Woods, Sandona, Foley, Lan-

gley, anybody that’s there as an investigator.

So if they go that route, and say that’s why they would

not enforce it against DiSabato, et cetera, they have run

into a cul-de-sac in their reasoning. They cannot get

their way out because they’re done the minute they

enunciate that as a principle.

So then we go to Mikusch itself. We’re goingtosayare _

they, well, in between the Circuit Court of Sangamon

County sustaining the Human Rights Commission, there

was an appeal. And the appellate court, in March of

1989 or some month, had reversed the circuit court and

said, oh, no, the 60 year is in effect. Is it?

If they adopt that rationale, all that time DiSabato,

Sandona and Wood are over 60 for several years.

Prior to making Langley retire at 62, they've allowed

these people to continue on. Discrimination? You’re

back to square one.

As I said, they cannot do this and not have discrimi-

nation on an age basis alone, because that’s all that’s

involved.

— A-75 —

There isn’t anything that is criteria oriented as to why

they would do this. They haven’t articulated a reason

why. Confusion of the law? If it’s confusion of the law as

to DiSabato, Sandona and Wood, it’s confusion of the

law.

It’s confusion of the law as to Langley. In other words,

if they say the 70 applies and they were afraid to fire

DiSabato, Sandona and Wood because theyre going to

get sued, why not Langley? Why not bring him under the

tenets?

Ofcourse they had to bring him under the tenets if there

was not abject discrimination. And they had not articu-

lated their way out of that one, because as I said, the

astonishing silence on their part is a confession that

they know there is no way out of the cul-de-sac.

They can’t articulate a reason that is valid and ratio-

nal as to why they should allow this to be done in that

way.

To go to Mikusch itself, Mikusch came down the line

on October 4, 1990, after the firing, or after the forced

retirement.

Allright, October 4, 1990. Do you know —I’msure you

know, that’s a rhetorical question — does Your Honor

remember that Mikusch, they held that there was an

inherent conflict between the Human Rights law and

the Motor Vehicle Code.

And they preferred the Human Rights law, and said

it preempts the very law that they would have to be 60

at that time.

And in the preemption of that, then that became the

law that was in effect on March 3, 1983, regardless of

a.

what Margolis, the federal Judge, fine federal Judge,

but he was under, he was operating under a handicap.

The reason he was under a handicap, knowing very

well that he must apply Erie Railroad against Tompkins,

that requires a federal Judge, in determining State law,

to apply State law.

And where does he look? To the Supreme Court of

Illinois for that information.

Unfortunately, the Supreme Court of Illinois had not

come down the line with that decision. It was still

pending in there.

So when Margolis is annunciated and ruled on, de-

cides, well, the Human Rights Act did not preempt the

Motor Vehicle Act. As the federal court said, that was in,

in February of 1990. Supreme Court is not going to come

down until October 4, 1990.

And so what effect is Margolis? And that’s why we’re

asking Your Honor that somewhere along this line, to

reconsider this interlocutory order, which of course is

within the Court’s prerogative. It’s Hornbook law. I’ve

got a case cited and so, to reexamine that.

The Margolis case went ahead and decided that. But

then the very case that the defendant or Respondent

relies on, and that the Administrative Judge cited, the

McCann case comes down the line, Circuit Court of

Appeals, Seventh Circuit.

What does that do? It does nothing but support us.

Here’s why. First dealing with the McCann, with the

issue that was confronting that court; ranked policemen

of Chicago and unranked policemen of Chicago for 60

years have been forced to retire at 63 years of age.

— A-77 —

Then comes EEOC versus Wyoming and knocks that

prop out from under that. And so the City of Chicago,

operating as a home rule city, under the law of Illinois,

they are the ones then that are in control as much as the

legislature would be in control.

They adopted the 70 year. And in the course of that,

then they entered into a contract with the unranked

policemen in a union organization to apply the 70 years.

Then comes the 1986 amendment to the Human

Rights Act, and they come within that window of oppor-

tunity, and they then go back to the same thing they had

before, that had for 60 years, 63 years of age, as far as

everybody is concerned.

Now when they did that, then directly the ranked

policemen said, hey, wait a minute, equal protection.

You're letting these other guys stay until 70. You're

making us get off at 63. You say no way. We've got aright,

to do that because of the very statute. This is not going

to be forever. It’s going to come to an end.

But we have a right to have this statute, because

that’s what the Human Rights, the ADEA Amendment

said we could have. And so we reestablished that at that

time:

And then what? We can’t fire these other fellows

because we've got a contract with them. And so we’re

going to let them run until 70. We’ve got to.

Okay. How is that similar? It’s not. Because in that

case, the issue was not preferring one over the other as

far as age is concerned, because they applied the same

requirements, the requirements of 63 as to the ranked,

they applied 70 as to the nonranked.

Now if that case had involved an incident like I

referred to the other day, where this patrolman was

— A-78 —

allowed to continue on until he was 75 years old, and

another patrolman until he was 73, and another one

until he was 76, and then firing these other people at 63,

you would then have an identity of this case. But you

don’t.

That is not there. So the issue was not there in

McCann asitisin this case. Because the issue was never

raised, couldn’t be, because they were applying the 70

year to the one and the 63 year to the other, as they had

a right to do and had a duty to do.

Not so here, as I’ve indicated. But now where does the

McCann then really come down the line to help us?

It’s in those parts of our brief that we have, or motion

that, we will call your attention to Page 19 and 20, where

we're discussing the McCann case.

In fact, down at the bottom, in fact, the McCann case

contains a specific reference to State vs Mikusch at

Pages 636 and 637 of the opinion wherein the Court

states that between 1980 and 1987, the Illinois Human

Rights Act, which applies to private and public

employer’s, forbade:mandatory retirement before the

age of 70.

Plaintiffs submit that the age of retirement in effect

under the applicable State or local law on March 3, 1983,

was accordingly 70.

One district judge has agreed. Jirus vs Berwyn ap-

plies.

Chicago replies that the Human Rights Act does not

govern because the Illinois Municipal Code authorizes

cities to compel law enforcement officers to retire at 63.

The Illinois Municipal Code is the one that gives that

power of home rule to the City of Chicago.

(Duplicate Pages 79 — 85 eliminated intentionally)

— A-85 —

Duplicate pages 79-85 eliminated intentionally.

— A-86 —

Then it says, then it deals with Mikusch, and it has

this very significant statement to make, State versus

Mikusch, citing the Supreme Court decision, casts sub-

stantial doubts on this approach, for it holds that the

Human Rights Act displaces part of the State’s Vehicle

Code separating State vehicle investigators from office

at age 60.

We called for supplemental briefs after argument on

the effects of Mikusch, which neither party has dis-

cussed.

They go on and say then, if you turn to Page 21, as

recognized by the Seventh Circuit Court of Appeals in

McCann versus Mikusch, case holds that, in McCann,

the Mikusch case holds that, quote, here’s what McCann

said about it, the Human Rights Act displaces part of the

State Motor Vehicle Code separating State vehicle in-

vestigators from office at age 60. And they cite the

statute 2-115.

Keeping in mind that they are applying correctly Erie

Railroad against Tompkins, and also the Jones versus

Salenberger case, which is a highly significant case.

And I’ve got the authority here for Your Honor toread,

which then blurs out anything that eer had to say

about this.

It is little wonder that you will not find one reference

to Margolis in McCann, because it’s an irrelevancy.

It was decided before the Supreme Court of Illinois

decided that the Illinois law said that the Human Rights

Act preempts the Motor Vehicle Code in regard to the

age.

— A-87 —

As far as the McCann case is concerned, if you turn to

Page 23 and 24, another difference between McCann

and Langley is the fact that in McCann, the contractual

agreement in McCann extended to 70 rather than less-

ened the mandatory age retirement in effect March of

183 governing Chicago city policemen, which was 63.

In Langley, it was the other way around. It was

mainly the 70 year age limit in effect March 3, 1983,

when we take into account Mikusch and reexamine the

Administrative Law Judge’s ruling of 1982. The 70 year

in effect on March 3, 1983, was cut down from the

contractual agreement to age 62.

That is another difference. Then yet another differ-

ence, and this is very significant, it follows right after

that, another difference between the McCann and Lan-

gley cases is this; Page 637.

The court, in McCann, held the municipal code does

not set 63 as a mandatory age of retirement.

Instead — now that’s the municipal code of the State

of Illinois, that’s not the Chicago — the municipal code

does not set 63 as the mandatory age of retirement,

instead it delegates to municipalities the power to set a

retirement age, provided they choose 63 or over. That’s

what that held.

The Human, then he said, they say, the Human

Rights Act does not conflict with delegation in the same

direct way it superseded the retirement age in the

vehicle code.

In other words, that municipal code did not specifi-

cally construct an exception to age with reference to the

municipal power of the City of Chicago operating under

— A-88 —

home rule as it did, for instance, with housing. They

specifically did it with housing, but not with any regard

to age.

And at Page 637, the court states, the Human Rights

Act withdraws home rule powers concerning housing

discrimination, but contains nothing comparable con-

cerning age discrimination.

In other words, they don’t withdraw from home rule

cities the power to deal with age discrimination. They

only withdrew the power concerning housing discrimi-

nation.

So that’s another thing that’s different. Home rule is

all over the place in McCann. It doesn’t even surface in

this case, because it’s not involved.

We say also McCann is not in point with Langley,

inasmuch as there was no question raised with regard

to the particular law in effect as of March 3, 1983,

because it was 60 years. They'd been enforcing this law

that they could, under home rule enforcement, and

that’s what they did.

So actually, as I’ve said before, McCann supports our

position that the Human Rights law of 70 preempted

anything that the Motor Vehicle Code said about inves-

tigators’ retirement at 60.

And therefore, if they take the position that Mikusch

was not decided at the time they let Langley go, it was

decided on October 4, 1990, and reverted to that, they

should have put him back to work immediately. Because

they were allowing these other people to continue.

So when we begin to look at this case and take it apart,

on any kind ofa theory you want to look at, this has been

— A-89 —

a discriminatory act against one man, the only man that

was ever forced to retire against his will under the

contract.

We don’t have to ask Your Honor to interpret the

agreement, because we’re going to accept, for the pur-

pose of argument here, on this issue regarding DiSabato,

et cetera, as compared to the treatment given Langley,

we re going to accept what they say, that the rank is not

included in the contract, for the purpose of argument.

Because we got several strings to the fiddle.- We’ve got

several different aspects.

But on this particular aspect, we take that into ac-

count, that we don’t have to ask Your Honor to interpret

that contract because we’re not going to premise our

position on saying, well, they should have been consid-

ered to the part of that, et cetera.

So even ifthey re not, then any way you turn and twist

these facts, any way you try to find a rational reason for

the discharge of Langley compared to the continuation

of DiSabato, Sandona and Wood, there just isn’t any.

They haven’t articulated it. They can’t articulate it.

It’s an absolute, a complete showing of discrimination,

which was stated.

We had a prima facie case. They haven’t come forward

with anything that can even come close to showing a

rational reason for that action.

Now it has often been said that we don’t consider

equal protection in this court. I don’t see how this court

could ever avoid equal protection. That is what the

whole country is based on, quality of the law applied to

different people in similar circumstances. It has to be a

part of the consideration.

— A-90 —

There isn’t any case I’ve found that says that the,

somehow or another when the legislature constructed

the Human Rights Act, which is one of the fundamental

and most basic acts there is in this State, because it goes

right back to the Declaration of Independence, it goes

back to the Bill of Rights, it goes back to the Fourteenth

Amendment, it is the most basic body that they could

construct, the legislature could construct.

They couldn’t, if they wanted to, withdraw from this

Human Rights Commission the right — and I say the

duty — to consider that great monumental equal protec-

tion clause in the Fourteenth Amendment.

And as mirrored in Article 1 and Section 2 of the

Illinois Constitution of 1970, how do they? How could

anybody put equal protection outside the payer? It

couldn’t. No way.

Is there equal protection? Take a look at Ciechon

versus City of Chicago, Page 34 of the brief. Equal

protection demands, at a minimum, that a municipality

must apply its laws in a rational and nonarbitrary way.

This requires a showing that its application of the law

rationally furthers some legitimate, articulated stated

purpose, and therefore does not constitute invidious

discrimination.

We have consistently applied these principles which

are at the heart of the equal protection guarantee to

protect against arbitrary government conduct. That’s

what we are talking about, arbitrary government.

That is what the Fourteenth Amendment was all

about. To bring states into the concept of the Bill of

Rights that was applicable to the federal government.

— A-91—

Now it’s all applicable to the State government. Any

kind of a State action by a State employee, State officer,

legislature, court, anything else that transgresses the

equal protection clause comes straight ahead against

the Fourteenth Amendment.

So the action of the Secretary of State was arbitrary

government conduct. And again, I’m not saying this was

a bad man-that said, I want to do this to you. This is, on

the face, an arbitrary government contract.

And there is no showing that this discrimination

against Langley rationally, quote, out of the case, ratio-

nally furthers some legitimate articulated State‘ pur-

pose in applying mandatory State retirement policy.

I quote Falk, Page 35. At Page 618, they’re saying the

promise of equal protection of the laws is not limited to

the enactment of fair and impartial legislation, but

necessarily extends to the application of these laws.

So the question in this case is not whether the statute

was unfair in coming up with this age, or contractual

provision was unfair in coming to this age selected.

The issue involves the equal application of the statute

and the contract. The same issue would be presented if

both ranked and nonranked investigators were under

contract, as I said. If they were both under the law, as I

said.

And even if they weren’t at even a different rate, let’s

say there was a law that prohibited a person beyond the

age of 40 to serve as a ranked investigator, and that

same law provided the unranked can serve until 62, how

do you define whether that’s equal protection in how it’s

enforced?

— A-92 —

The arbitrary enforcement of making the 62 year old

retire and allowing the 40 year old to continue, age

discrimination.

Turn it around the other way and say you allow the 62

year old, Imean the man could go well beyond the 62, but

you say when you get to be 40, you’re done.

So you're enforcing one statute against one and not

the same statute against the other, even though differ-

ent age.

Equal protection? No. It’s the other way around.

Because there is no articulation of why this happens.

In Northwestern University versus Evanston, it’s

cited at 36, that’s an Illinois Appellate case, under

principles of equal protection, the classification is in-

valid if it is arbitrary and without a reasonable basis.

To construct a class of privileged investigators with

rank and exempt them from the law requiring their

retirement while enforcing this age requirement on

nonranked investigators, that would constitute an un-

reasonable classification violative of the principles of

equal protection, violative of the principles of the Hu-

man Rights Act, violative of principles of the contract

itself, that says that they will not discriminate because

a person belongs to this union and because the union,

the contract insists that the State and the union comply

with federal and State standards.

It’s in their contract itself. And to construct a class of

privileged investigators called ranked investigators and

give them this priority of treatment, no standards have

been set, none by the Secretary of State for the manda-

tory retirement based on duty assignment, rank, health,

— A-93 —

ability. Age alone is a criteria and age alone is the basis

for the discrimination against Langley.

Not a scratch on the paper in this case about his

incapacity or ability to work. Nothing about his moral

attention to duty. None, nothing about he having to

perform one kind of duty, they can perform another.

The arbitrary unreasonable and unequal treatment

violates these federal standards and State standards,

which this bargaining agreement itself clearly specified

were not to be violated.

And consequently, there is no reason for the Human

Rights Commission to ignore the violations of the equal

protection clause of the Fourteenth Amendment and of

the Illinois Constitution that has been conclusively

demonstrated by the evidence and the law in this case.

There are many types of age discrimination. You

know, I’ve tried these cases for a guy being fired because

he was beyond 55 years old because some company

wants to get rid of him, so they don’t have to pay a big

pension somewhere down the line.

So they concoct a pretext of firing him; we’re cutting

down the force because of economics. His work record

has not been good.

But here they bring in this 40 year old and put him in

there.

Set up a prima facie case? They must announce the

reason. We must prove it’s a pretext. Those cases are all

over the lot. I’ve tried hundreds of them.

But what we're talking about here is something else.

We're not talking about that kind of an age discrimina-

— A-94 —

tion. We’re talking about something just as invidious,

but something that cannot be articulated.

In other words, there can be no reasonable basis

articulated for giving preference to the one and not

enforcing the law against him and enforcing the con-

tract against the other.

So any way you turn this case, Your Honor, any way

it’s examined, and comparing Langley against DiSabato,

Sandona and Wood, it is just not there. They can’t avoid

this. They cannot articulate the reason to get them out

from under the prima facie case.

And the prima facie case is there. It’s been deter-

mined. And they cannot articulate their way out of it

because they haven’t even tried. The reason they haven’t

tried is because they can’t say. There isn’t any reason

that they can point to on this phase of the case. That’s

just one string of the fiddle.

Now I can go on with the next, or if you want to have

argument on the other.

JUDGE ROBINSON: I’m going to ask Mr. Powers

what testimony would support the notion that the

Respondent has articulated something in this case?

MR. POWERS: I think the fact that he was mandato-

rily retired at the time the Illinois Human Rights Act

specifically allowed the mandatory retirement, prob-

ably in and of itself is enough, Judge.

I think the testimony, and in my argument, I want to

try to again go through the different kinds of issues that

are, that the courts are faced with in age discrimination

cases, and what the three or four step burden of proof is

in each one of those cases.

— A-95 —

Assuming that there is a process in a mandatory

retirement case where a prima facie case of showing

that he was in a protected group and he was doing a good

job and he was terminated, and then deciding what the

rest of the four steps is, assuming that’s the case, I think

that the rebuttal case showed that the employer took

their acts on the basis that the law allowed it.

That the contract required it as to Langley. And that,

in and of itself, is the nondiscriminatory reasons for the

action.

JUDGE ROBINSON: Okay.

MR. POWERS: In regard to all of Mr. Wham’s equal

protection arguments, I understand what he’s trying to

Say.

I don’t necessarily agree that the cases that he cites,

particularly the McCann case, would even support his

equal protection arguments.

The problem is it’s in the wrong court. It should not be

here. Federal cases are in federal court, and in some

situations a state court is an appropriate place to file a

cause of action alleging violation of the Fourteenth

Amendment of the Constitution.

The Illinois Human Rights Commission is not the

proper case to be bringing that cause of action.

Just like his arguments that the collective bargaining

agreement has a nondiscriminatory provision in there,

article one, article two, you violated it, you,re bad.

You have done that. That is great. That is a good

argument. And there’s a place where that argument

should be made. It’s called the Illinois State Labor

Relations Board.

— A-96 —

If you would have filed it in circuit court, it could have

bounced out because of failure to exhaust its adminis-

trative remedies.

You have to file your cause -of action in the proper

jurisdiction.

Alleging abuses of the collective bargaining agree-

ment is clearly the exclusive jurisdiction of the Illinois

State Labor Relations Board. It’s not that his argument

maybe doesn’t make some sense, it’s just not properly

here.

Mr. Wham has, in my opinion, butchered the McCann

case so badly in his interpretation of what it says and

what it doesn’t say.

I think the, first of all, the appellate court decision is

dealing with an equal protection claim because the

plaintiffs gave up their ADEA claim because Judge

Grady, in the district court, not only reversed or distin-

guished the Jirus case, but clearly indicated and cited

several other cases, Illinois cases, indicating that the

Illinois Human Rights Act does not preempt the specific

laws governing retirement and pensions that were in

effect on March 3, 1983.

And he summarily dismissed their age discrimina-

tion case because the law specifically allowed manda-

tory retirement at that point in time.

The appellate court decision is also, I think, favorable

even if we’re going to argue equal protection.

Here is the McCann case, in dealing with the second

count of the complaint on equal protection, noted that

the argument is is there a violation by treating ser-

geants and above differently from patrol officers?

— A-97 —

The decision says no. There’s a lot of argument in

there, and there’s discussion about Mikusch and how

that is different.

When the court is talking about Mikusch, it’s saying

the plaintiffs are in here arguing and Mikusch says

blah, blah, blah.

It’s not the seventh circuit here saying that based

upon Mikusch, we think this. That is the plaintiffs

argument.

Court says you're wrong. There is no equal protection

violation here by virtue of the fact that your sergeants

and above are treated different than your patrol officers,

the equivalent of our investigators.

To get to the point of this motion, I think that if the,

if there was a prima facie showing by the plaintiffs, that

the Respondent has articulated a nondiscriminatory

reason for the action that was taken against McCann.

I don’t know whether to complete my argument at this

time, or whether we’re going back to Mr. Wham here, to

go on to wherever he is going on to.

JUDGE ROBINSON: The one thing that I would say

is that I, too, find that at least Respondent has articu-

lated a reason.

Now the ultimate issue is as to whether there’s pre-

text in this case. And that I don’t think we can decide on

this particular motion.

I am going to have to go through the records and the

exhibits to find whether there was inconsistent treat-

ment and whether the comparables are truly similarly

situated.

— A-98 —

There was one case, I think I mentioned on the last

hearing, that I want both parties to talk about in their

briefs, and that is the Carver Lumber case, that is cited

in Page

MR. WHAM: 27.

JUDGE ROBINSON: 27 of the motion, that’s in the

motion for finding of liability in favor of Complainant.

As I recall the testimony at the last hearing, there was

some argument by Mr. Wham that I would have to look

at the collective bargaining agreement.

And now I hear that that may be not the case. But I,

I want both parties to talk about that.

And if I do have to look at the collective bargaining

agreement, whether Carver Lumber would say that the,

that that claim is somehow preempted had under fed-

eral law.

MR. WHAM: Well, ifI could reply real quickly on this.

McCann, Mr. Powers misreads, not Jim Wham.

McCann involved the fact, number one, on equal

protection, whether or not it was equal to require the

one to have 33, 33 years mandatory retirement and the

other 70.

As I said in my opening, that’s not the question here.

The question is the unequal enforcement of the manda-

tory requirement where they require the one to retire,

because of the rules governing him, but not require the

other to retire on the rules governing him.

So the McCann case does not get into the equal

protection question that’s involved here.

— A-99 —

Second, there isn’t anything Mr. Powers has cited

that says that equal protection considerations are out of

bounds in this, in this Commission’s hearing, and he

can’t, because there is no case. There is none.

And it would be wrong if there was, because of the

constitution itself that’s binding on this Commission as

well as any other.

The meanest school board, a zoning board, never gets

away from equal protection. Always there.

As far as McCann is concerned, as I pointed out, the

difference is they are bound to look at their case under

the proposition that home rule governs. Home rule

governs the City of Chicago. That meant that they can

set their pays regardless of the Human Rights Act

limitation, which is what that case held.

The last thing I want to say about McCann, is simply

that it unmistakably recognizes that Mikusch, the Su-

preme Court of Illinois, which they are bound to follow,

if it was involved, has unmistakably declared that the

Human Rights law preempts the 60 year Motor Vehicle

Law in this case, and therefore had to be the law as of

March 3, 1983 .

And that’s why we're asking Your Honor to view this

interlocutory order in that connection, in that light. And

to say that actually it was 70 instead of 60 at the time.

And then the rest of our argument is so.

Now I wanted to do what Your Honor suggested, that

is where does Carver come in? when we were talking

about that the other day, on the view of Your Honor

examining it through the contract and its meaning, only

one string to the fiddle.

— A-100 —

It doesn’t apply to this string. We’re saying Your

Honor doesn’t have to interpret the contract one minute

on this because it’s been so clear-cut. We were talking

about the contract with regard to Foley, et cetera.

I’m talking about in this case, you don’t have to

consider the contract at all, as far as whether it brings

in DiSabato, et cetera, because we’re not even basing

our argument on that in this particular phase of the

case.

JUDGE ROBINSON: But don’t you have to somehow

establish that your three comparables are truly simi-

larly situated, and in doing so, don’t you have to look at

the terms of the collective bargaining agreement?

MR. WHAM: No.

JUDGE ROBINSON: Why not?

MR. WHAM: Simply because the issue to be deter-

mined that sets parameters on what is similarly situ-

ated and what is not, must be examined to see what kind

of class are we looking at?

We’re not looking at a class that’s dictated by rank,

because mandatory retirement is enforced against

nonranked and ranked.

We’re not looking at duty, what Langley is supposed

to do and what they’re not supposed to do, that is not,

that did not come within the parameters. That is not the

criteria.

Age alone is the criteria. And the effect of the common

employer administering a mandatory retirement sys-

tem that applies to everybody, not just ranked, not just

in nonranked, but to everybody, he has to apply the law

— A-101 —

of say 60, as far as the ranks are concerned, and 62 as far

as Langley is concerned, that doesn’t take any interpre-

tation of a contract to decide that.

Transcript jumps to page 84

than what it says. I mean it says what it says, and

nobody needs to interpret what it says.

Until they then put in their own interpretation in

1991, which has nothing to say about this case.

Then we come to Sanchez. Sanchez, they say I should

have known about Sanchez because his name was on

Article 3. There’s many others on Article 3.

There was nothing showing up on Sanchez until we

come to the proposition that we discover, discovered by

happenstance right before this hearing, two letters, two

letters that — one that said in August of 195, you have

got to retire. The other one said a month later, you don’t

have to retire.

So then they're brought in the records of Sanchez.

Theyre in the records now. And the records of Sanchez

show that he has been a Secretary of State investigator,

as of the time that Langley was retired, that Sanchez —

at page, yeah, the personnel records of Sanchez.

Okay. First place, Respondent agrees to Material

Fact 54. That the attached document marked Exhibit

#3-B contains the correct information with regard to

Raymond Sanchez.

It states as of October 24, 1990, Sanchez had a hire

date of August 1, 1913; birth date of January 8, 1930.

His age as of October 24, 1990 was 60.74 years. His years

of work on that date were 17.22 years. That’s personnel

records of the Secretary of State.

— A-102 —

And then comes Exhibit Number 19, the testimony of

Tina Prose, with reference to the records. And it shows

that as of October 24, 1993, now that’s — that’s a couple

of months before you're going to find the Human Rights

Amendment of 1987 going out the window on December

31, 193, so this is before that, same as it was when

Langley was there — that as of October 24, 1993,

Sanchez’ age was 63.74 years of age and his work years

were 21 years, 5 months and 21 days.

So that means, cutting it back even, closer to time

frame of Langley, on October 24 of 1993, his age was

62.74 years, and he had worked 20 years, five months

and 21 days. There wasn’t anything that intervened

during those times.

That means the Secretary of State knows that a

record of this man that they have allowed tocontinue on,

clear on now, that as of that time, if they were going to

treat Mr. Langley like they treated him, they would

have allowed Langley to stay.

Granted, he was, he came of age after Langley. But it

shows a continuation of the policy of not requiring these

investigators to retire at 62.

Now they did Langley. The only one. Did he fall

between the cracks for some mysterious reason? I don’t

know, But all I know, it shows on the face of it, as it did

on the face of it with reference to DiSabato, et cetera,

and his comparison with them, it shows on the face of

it here, that there are investigators of the absolute same

status that are allowed at the time to continue and have

been allowed subsequent to that time to continue.

And it’s, and it is strange then to say that this is not

relevant. Of course it’s relevant. It’s so relevant that

— A-103 —

we're asking to amend the complaint to conform to the

proof, to allow an amendment to the complaint to be set

forth showing that he was another that we were weighed

against and found wanting.

Okay. But we don’t even need that complaint amended,

actually, to raise the relevance of this. Because it goes in

to show that at the time Langley was required to retire,

there were others that were allowed to continue on.

And if they'd treated Langley as they had treated the

others, he would still be working, because he wants to

continue to work. He’s ready to continue to work. He’s

physically able to continue to work. And he has applied

for the right to continue to work. And there it is.

So the concept of the fact that this letter said that of

September 7, 195, and a letter of August of 195 are

irrelevant, because they come up at another time?

No. The significance of the letter of August of 195, and

that is the one that told him that he was going to have

to get out, it shows a continuity of allowing him to retire

up to that time.

That spells out continuation, of allowing him to con-

tinue. That’s the first time in their records that shows

that they ever asked him to retire, and that was long

after he should have been retired, if they treated him

like they did Foley — not Foley, but they did Langley.

And all of this, they can’t say that the law changed in

the interim, because it didn’t, as far as that time frame

of up until October 24, 1993. The law was the same as far

as Langley and Sanchez, during that frame up until that

time.

— A-104 —

Up until December 31, 1993, the law was the same as

far as Langley and Sanchez were concerned.

And as I have previously indicated, we didn’t learn

about the whole effects of Sanchez until this case was

tried.

We got an inkling about the letters, but we didn’t have

his record showing what his continuity of service was.

We'd asked Attorney Powers, in advance of the hear-

ing, to produce him, He took the position that he wasn’t

relevant and didn’t have to produce him.

But that was resolved. It was ordered that the, that

his records be produced. So that’s the first time we got

the records.

So when we got the records, got them in evidence,

these facts have emerged. without going into great

detail, these are the facts that emerged without contra-

diction.

So with these all admitted into evidence, it shows that

there is another man that should be evaluated along

with Foley. That’s why we are asking to amend the

complaint by adding his name in order to conform to the

proof under the practice act.

So we've got that amendment here ready to offer at

that time.

There is one case that needs, or one bit of evidence

that needs ventilating, and that is the question of

Saracco.

And we start at Page 54. The only attempt to use

Saracco was to change some words, change 20 years of

— A-105 —

active duty to 20 years of eligible credible service. That’s

the only reason they produced Saracco.

So they brought on the evidence of Saracco. what did

they bring?

Transcript jumps to page 102

time, I’m asking that we amend, be allowed to amend

the complaint by adding this to this amendment with

reference to Sanchez.

I guess this is the original, June.

In this we’re asking that the amendment to the

amended complaint add Paragraph e(1) as follows:

Raymond Sanchez, a Secretary of State nonranked

investigator was born January 8, 1930, now 67 years of

age, et cetera.

I’m not going to read it into the records because it

speaks for itself.

JUDGE ROBINSON: All right. What I'll do, [ll take

that motion with the case as well, and the parties can

talk about the merits of the motion to amend to its brief.

And to the extent that we’re talking about the eviden-

tiary ruling as to the, I think it was Exhibit 417 from the

Respondent, I will let the parties talk about that in their

briefs as well.

MR. WHAM: I didn’t hear that.

JUDGE ROBINSON: I will let the parties talk about

the admissibility of that document in their briefs as

well,

JUDGE ROBINSON: All right.

— A-106 —

MR. WHAM: I tender the balance of the motion, that

I have eliminated for the sake of brevity, and adopt it as

if I had spoken it.

JUDGE ROBINSON: All right. And that will be filed

and made part of the record as well.

Now you may present your first witness on rebuttal.

MR. WHAM: Okay. Mr. Langley?

JOHN LANGLEY called as a witness herein, at the

instance of the Complainant, having been previously

sworn on his oath, testified as follows:

DIRECT EXAMINATION BY

MR. WHAM:

JUDGE ROBINSON: Mr. Langley, I'll remind you

youre still under oath. A. Yes, Your Honor.

MR. WHAM: Your Honor, I’ve given a copy of

this,which is documents that Mr.

See OBS EED OU MI AOE UOC ee ae era

— A-107 — |

APPENDIX M

[Received March 17, 1998]

STATE OF ILLINOIS

HUMAN RIGHTS COMMISSION

CHARGE NO: 1991SA 0096

EEOC NO: 21B903376

ALS NO: S-5288

IN THE MATTER OF:

JOHN D. LANGLEY,

Complainant

and

ILLINOIS SECRETARY

OF STATE,

Respondent.

ENTERED JANUARY 16, 1998 SUPPORTED BY AR-

GUMENT

Now comes Complainant, John D. Langley, by Wham

& Wham, his attorneys, and for his Exceptions to Rec-

ommended Order and Decision Entered January 16,

1998 Supported by Argument says:

EXCEPTION I

The Administrative Law Judge erroneously failed to

find for the Complainant against the Respondent on the

positions of Complainant set forth in Section I of the

Argument of Complainant’s Brief which addressed the

discriminatory treatment Complainant received from

Respondent in comparison to Respondent’s treatment of

— A-108 —

DiSabato, Sandona, and Wood; and Sanchez in Section

II of the Argument.

The Administrative Law Judge erroneously over-

looked, ignored and misapprehended the following posi-

tions:

[A]

The Administrative Law Judge overlooked and ig-

nored the cease and desist order entered in the matter

of Department of Human Rights v. State of Illinois, office

of the Secretary of State, 18 Ill. HRC Rep. 51 which

contained the provision stating:

(Emphasis added) (Appendix 1)

This cease and desist order was presented at the

Hearing. (Tr. Vol. I, pgs. 18-20) (Appendix 2)

The Administrative Law Judge overlooked this cease

and desist order in the Findings of Fact #5 at page 3 of

the Recommended Order and Decision. No reference to

this cease and desist order was made, although it clearly

appeared in the record and applies to Complainant.

The Administrative Law Judge overlooked and ig-

nored pages 1 and 2 of Complainant’s Reply Brief and

Complainant’s Brief at page 3 of Conclusions of Law, in

Findings of Fact, Conclusions of Law and Brief of Com-

plainant, John D. Langley, which referred to this cease

— A-109 —

and desist order as follows:

“The evidence established a prima facie case of

Complainant against Respondent which was not

rebutted by Respondent in that Complainant had

not attained the age of 70 years at the time of his

forced retirement against his will which forced

retirement was in violation of the cease and desist

order and decision of the Human Rights Commis-

sion decision rendered in: In the Matter of: Depart-

ment of Human Rights, et al., Complainants, and

State of Illinois, Office of the Secretary of State,

Respondent, Charge No: 1984 C 9002, ALS No:

1164(L), (18 Ill. HRC Rep. 51).”

This cease and desist order was in the record from the

outset of the case. (Tr. Vol. I, pgs. 18-20) (Appendix 2)

The Administrative Law Judge recognized at pages

18 and 19 of the Recommended Order and Decision that:

“ ..Complainant is correct that ... the commission

has always considered disparate treatment among

similarly situated employees in order to determine

whether there has been any violation of the Human

Rights Act.”

Langley, DiSabato, Sandona and Wood were simi-

larly situated by the terms of the cease and desist order

which prevented forced retirement before attaining 70

years and which order applied to all investigators,

ranked and nonranked alike, who were employed by the

Secretary of State.

Thus, Respondent is precluded from enforcing Article

29 of the collective bargaining agreement against Lan-

gley. The April 16, 1992 Order of the Administrative

— A-110 —

Law Judge in the instant case, provides at page 6: “A

labor contract may extend rights greater than man-

dated by law, but may not be more restrictive than

existing law.”

The Administrative Law Judge erroneously over-

looked and ignored this position of Complainant and

erroneously failed to award Complainant the damages

and relief established by the evidence.

(B]

The Administrative Law Judge at page 18 errone-

ously agreed with Respondent that the Commission is

the wrong forum to address claims based on the equal

protection clause of the Fourteenth Amendment and

the Illinois Constitution of 1970.

This erroneous concept is unsupported by any author-

ity. Moreover, the Administrative Law Judge totally

ignored the equal protection clause of the Constitution

of Illinois (1970) being Article I, Section 2 and the

Constitutional Commentary, Smith-Hurd Illinois Com-

piled Statutes Annotated, Article I,§ 2, Constitution of

1970, at page 64.

In Thakkar v. Wilson Enterprises, Inc., 120 Ill.App.3d

878, 458 N.E.2d 985, 76 Ill.Dec. 331, it is stated at page

333: '

“A review of the detailed legislative scheme of the

Human Rights Act persuasively suggests that the

General Assembly intended for it to be the preemp-

tive vehicle for the resolution of employment dis-

crimination cases in Illinois.”

The Illinois legislature did not intend to, nor did it

preclude an Administrative Law Judge and the Human

— A-111—

Rights Commission from exercising the power and duty

to apply the Federal and Illinois Constitutional provi-

sions of the equal protection clause.

The Administrative Law Judge erroneously over-

looked and ignored Complainant’s position as set forth

at pages 26-32 of the Argument in Findings of Fact,

Conclusions of Law and Brief of Complainant, John D.

Langley. (Appendix 3) (All references hereafter to said

Argument in these Exceptions shall be referred to as

“Appendix 3” and the page number of the Argument.)

[C]

The Administrative Law Judge erred in not allowing

Langley’s claim on Respondent’s own theory.

At pages 21 and 22 of the Recommended Order and

Decision the Administrative Law Judge found that:

officers pursuant to Section 2-115 of the Motor

i .” (Em-

phasis added)

Also, at pages 18 and 19 of the Recommended Order

and Decision the Administrative Law Judge recognized

that:

“.. . the Commission has always considered

disparate treatment among similarly situated em-

ployees in order to determine whether there has

been any violation of the Human Rights Act.”

The Administrative Law Judge then misconceived and

— A-112 —

ignored Complainant’s position with regard to DiSabato,

Sandona and Wood being similarly situated with Com-

plainant Langley in connection with the Respondent’s

administration of the mandatory age retirement system

which applied to nonranked and ranked investigators.

At page 19 of the Recommended Order and Decision

it is stated:

“However, three of the five investigators Com-

plainant cites as comparables (i.e. DiSabato,

Sandona and Wood) are ‘ranked’ investigators, and

thus, arguably disqualify them from being suitable

comparatives.”

This is a misconception of the criteria in determining

the comparatives. Under the facts in this case rank has

nothing to do with determining comparatives. Job du-

ties and job performance have nothing to do with the

question since the mandatory retirement system of

Respondent is based solely on age.

The Administrative Law Judge erroneously ignored

this position of Complainant stated at Appendix 3, at

pages 2 and 3 and pages 8 through 11.

Simply stated, DiSabato, Sandona, Wood and Lan-

gley are all similarly situated Secretary of State inves-

tigators with respect to the administration by Respon-

dent of its mandatory retirement program which ap-

plies to ranked and non-ranked investigators-ranked

investigators by the statute requiring mandatory retire-

ment at age 60—non-ranked investigators by the collec-

tive bargaining agreement requiring mandatory retire-

ment at age 62. This is so on Respondent’s own theory.

It is undeniable that disparate treatment of Langley

— A-113 —

compared to the treatment of DiSabato, Sandona and

Wood has been established and recognized by the Ad-

ministrative Law Judge and has never been justified by

Respondent.

The fact that they were older in years than Langley has

38-42).

The total amount of damages to which Complainant,

John D. Langley, is entitled is $618,579.13 plus attor-

neys’ fees which should be determined at later date at

the Commission’s direction. In addition to the monetary

damages established by the evidence, Complainant is

entitled to reassignment as a Secretary of State inves-

tigator at the same location he was assigned at the time

of his forced retirement on August 14, 1990.

Complainant requests oral argument.

Respectfully submitted,

JAMES B. WHAM

WHAM & WHAM ATTORNEYS

212 East Broadway - P.O. Box 549

Centralia, Illinois 62801

(618) 532-5621

Attorneys for Complainant,

John D. Langley |

s/James B. Wham

James B. Wham #02995530

NO. 5-99-0336

— A-114—

APPENDIX N

IN THE

APPELLATE COURT OF ILLINOIS

FOR THE FIFTH DISTRICT

JOHN D. LANGLEY,

Petitioner-Appellant,

VS.

THE ILLINOIS SECRETARY OF STATE, ILLINOIS

HUMAN RIGHTS COMMISSION, and ILLINOIS

DEPARTMENT OF HUMAN RIGHTS,

Respondents-Appellees.

ON APPEAL FROM ORDER AND DECISION

STATE OF ILLINOIS HUMAN RIGHTS COMMIS-

SION

ORDER AND DECISION ENTERED APRIL 23, 1999

BY

THREE MEMBERS OF THE HUMAN RIGHTS

‘COMMISSION,

COMMISSIONER RUDOLPH S. SHOULTZ

COMMISSIONER JAMES MALOOF

COMMISSIONER CLYDE H. BROOKS

CHARGE NO:1991SA 0096

EEOC NO:21B903376

ALS NO: 8-5288

ON APPEAL FROM RECOMMENDED ORDER

ENTERED JANUARY 16, 1999 BY

PRESIDING ADMINISTRATIVE LAW JUDGE,

HON. MICHAEL R. ROBINSON

— A-115 —

BRIEF OF PETITIONER-APPELLANT, JOHN D.

LANGLEY

James B. Wham #02995530

Wham & Wham Attorneys

212 East Broadway

Post Office Box 549

Centralia, Illinois 62801

(618) 532-5621

ORAL ARGUMENT REQUESTED

The Cease and Desist Order contained the provision

stating:

“That the Respondent is ordered to cease and

desist forthwith from taking any measures hence-

forth to compel or coerce Complainants or any

others it may employ as investigators to retire

before they have attained any age younger than 70

NN lark iesd caebducinesvesteesoess 8

1987 Amendment to the Illinois Human Rights Act,

Tll.Rev.Stat.1987, ch. 68, par. 2-104(7) ... 10, 15, 17, 19

Illinois Secretary of State v. Mikusch, 138 Tll.2d 242, 562

N.E.2d 1020, 149 I1].Dec. 704 (Oct. 4, 1990)

vepetheeseneonteieiaeeaanicn ccieaaniei setae 10, 11, 14, 20

Cease and Desist Order entered October 28, 1985 in

State of Illinois, Office of the Secretary of State, Respon-

dent, Charge No. 1984 CF 9002, ALS NO. 1164(L), 18 Ill.

OU Ree: Ol ices ea 11, 12, 22

Motor Vehicle Act, Ill.Rev.Stat.1981, ch. 95 1/2, par. 2-

115 requiring Secretary of State investigators to retire

BE GID cacsievcciesncsutccinniapiabipiciaticbiecudiavniae Mus 11, 19

Burke v. Margolis, 738 F.Supp. 1201 (C.D. 111. 1990)

(hatha © cic scnictisinscnhcisdeksinssip cesacochinscebinicantedabaeh 18

Erie R. Co. v. Tompkins, 304 U.S. 64...........cccccceeeeees 19

Jones v. Schellenberger, CA 7, 225 F.2d 784, 790-791.

soniishgn cides gedit ealeeacnioaamei cancels ac Cat ac aa aaa 19

McCann v. City of Chicago, 968 F.2d 635 (7th Cir. 1992)

CistinwwieA) sciiiciiiiac cee mee. 16

Illinois Municipal Code, Ill.Rev.Stat.1991, ch. 24, sec.

ROR TENGE iis ccescsnscccncaecsetarcc nda eas 16

— A-117 —

Tll.Rev.Stat.1981, ch. 68, par. 1-103(A) .................... 10

Ill.Rev.Stat.1983, ch. 68, par. 1-103(A) .............. 10, 20

Ill.Rev.Stat.1985, ch. 68, par. 1-102(A), 1-103(A) (Q), 2-

Sy SUE Seine eiictistad cbs nah sasipacidnentaiabadseanee vida eesiacinane 19

Ill.Rev.Stat.1981 and 1983, ch. 68, par. 1-103(A) (Q), 2-

PTE catithieh aenhiaelsiens abiplacecubsernscekicasnanconseoaabanntes 19, 20

EEOC v. Wyoming, 460 U.S. 226, 103 St.Ct. 1054, 75

L.Ed.2d 18 (Mares S, 1963) «.........ccsccrsisecsoserssceeorerese 21

29 USCA,sec. 23(j)(1)(A) ADEA — Age Discrimination

I I iis dcesiassadcnocesicsccnnbionccene 21, a0

Gately v. Com. of Mass. 2 F.3d 1221 (1st. Cir. 1993) 1228,

EE dhisicateninivcesmssnvcnnsstinorsniapnineeteapheatsohssinbivoceineorcégensn 23

C.

Ill.Rev.Stat.1989, ch. 95 1/2, par. 2-115 ................. 24

Daily v. Parker, 152 F.2d 174, at 177 (7th Cir. 1945)

a toihanioe 28

Weeadaiescinih wll kiins dba Devetatadilini phiithaaithestd cheye deseeiiceoartsnacusvecte 30

Illinois Secretary of State v. Mikusch 138 Il.2d 242, 562

N.E.2d 168, 149 Ill.Dec. 704, (1990) ........0. ee. 31

— A-118 —

!

Illinois Secretary of State v. Mikusch 181 I1l.App.3d 431,

536 N.E.2d 1237, 130 Ill.Dec. 26 (May 5, 1989)

gienctnmeqnedsseuninieeoesaaeuaoonaueioths haakmmanaa a aaiade anaes 32

City of Springfield v. Carter, 184 Ill.App.3d 1, 540

N.E.2d 536, 132 Ill.Dec. 796 (Ill.App. 4th Dist. 1989)

»bsaoxniomeaienaxedeisaniateabanaanteebametdamuseaeodiadeniacmal as an ead aah 34

Fourteenth Amendment tothe Constitution ofthe United

States (Equal Protection Clause) ..................:.ssseeeee 35

Constitution of the State of Illinois (1970), Article I,

Section 2 (Equal Protection Clause) ................... 35, 36

Constitutional Commentary, Smith-Hurd Illinois Com-

piled Statutes Annotated, Article I, Sec. 2, Constitution

Of TOFO, ne GG oii sickccsscvckestectvassssslessesectaeacctoris 35, 36

Thakkar v. Wilson Enterprises, Inc., 120 Ill.App.3d 878,

458 N.E.2d 985, 76 Ill.Dec. 331, 333...................c000e 36

Ciechon v. City of Chicago, 686 F.2d 511 (7th Cir. 1982)

savajaicnbsipusr dihpnsndipiaemamniandaaaise aimiieeinmie pert c or coe 37

United States v. Falk, 479 F.2d 616, (7th Cir. 1973)

asin 6 jeuiasaesipdanlldaegsatoh seauibessailuaeaaiierdada aie nCucian Dei 37

Northwestern University v. Evanston, 221 [ll.App.3d

893, 582 N.E.2d 1251, 164 Ill.Dec. 307..................... 38

— A-119 —

Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 49 L.Ed.2 520, 96 S.Ct. 2652 (Distinguished) .. 39

Gregory v. Ashcroft, 501 U.S. 452, 115 L.Ed.2d 410, 111

S.Ct. 2305 (Distinguished) ..........ccccccccccccserssessrcrseseess 39

Kuhn v. Ball State University, 78 F.3d 330, 332 (7th Cir.

a seiseedenmonnens 39

Quinones v. City of Evanston, Ill., 58 F.3d 275, 280 (7th

CEs EWee) UL CRMIN RINE) cccrccsocsssescconccnsesvervsieveseeceves 40

O’Connor v. Consolidate Coin Caterers, 517 U.S. 308,

134 L.Ed.2d 433, 116 S.Ct. 1307 (April 1, 1996) (Distin-

EEE EEE OSES SSE TE es eR 43

O’Connor v. Consolidate Coin Caterers, 84 F.3d 718,

(June 5, 1996) 4th Cir. on remand.....................000080- 43

Tll.Rev.Stat.1989, ch. 68, par. 2-102(A) and 1-103(Q)

tN a ispetsasetoniies 44

Livingston v. Meyers, 6 Ill.2d 325, 129 N.E.2d 12 (1955)

ni a pecavaneussarecetasouresccevitec 44

Reed v. Albanese, 78 Ill.App.2d 53, 223 N.E.2d 419

ec pupbcenstounedeusenweaness 44

DuMond v. City of Mattoon, 60 Il.App.2d 83, 207 N.E.2d

a cawslsdonsubinenemevacsidesses 44

— A-120 —

Herrera v. First Northern Sav. & Loan Ass’n, 805 F.2d

BOS (Gt Cle. TO oe, i Aa 44

SRA sovecvncineekshieiviestatantasinneacepinmamanhcndeaesmanion 48

Ill.Rev.Stat.1989, ch. 108 1/2, sec. 14-110 (40 ILCS 5/14-

EID) cs-ccncpenrpscdnnionsnesieninledsnecesepsnenbienchaiantseiamreniaiane 49

Illinois Evidentiary Foundations, Copyright 1997 Michie,

Second Ed., by Michael H. Graham, Robert J. Steigmann,

William R. Brandt and Edward J. Imwinkelried, at page

BRE 5 OS WR ir cccpcacncsneddiesteatenagusccnslacinntebinizomuaictecisuaae 56

Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) 57

In The Matter of: Department of Human Rights, et al.,

Complainants, and State of Illinois, Office of the Secre-

tary of State, Respondent, Charge No. 1984 CF 9002,

ALS NO. 1164(L), 18 ILL. HRC REP. 511 ................. 58

COIN sss cccpcssvbssthieiyshibionscssnestiouayebeatiaiatis 59

— A-121—

The Cease and Desist Order contained the provision

stating: “That the Respondent is ordered to cease and

desist forthwith from taking any measures henceforth

to compel or coerce Complainants or any others it may

employ as investigators to retire before they have at-

tained any age young

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