# Appendix — Langley v. Illinois Secretary of State > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1004%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 535 U.S. 928 ## Text | & ¥ = 4 F 3 | : | 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 | i | | } | | — 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1004%3A2. Public record. Not legal advice.