APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On March 29, 1973, defendant, the Illinois Fair Employment Practices Commission (F.E.P.C.) entered an order and decision finding plaintiffs, Springfield-Sangamon County Regional Plan Commission, County of Sangamon and City of Springfield, to have committed an unfair employment practice in not hiring defendant Elwood Smith as "Urban Renewal Planner-Administrator" because of his race. Plaintiffs were ordered to offer Smith the job, to pay him certain sums that he would have received had he been hired at a time another was chosen for the job, and to take several other steps to prevent future discrimination based on race.
Plaintiffs appealed this decision and order to the Circuit Court of Sangamon County pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.) by separate complaints which were consolidated in the circuit court. After a hearing, that court ruled that F.E.P.C. had lost jurisdiction of the case prior to the time of its decision and order and reversed and set aside the F.E.P.C. ruling. Defendants appeal to this court.
The Administrative Review Act provides that a complaint for review shall be filed in the circuit court within 35 days from the date that a copy of the administrative decision is served on the plaintiff (Ill. Rev. Stat. 1973, ch. 110, par. 267) and that the administrative agency and all persons other than the plaintiff who were parties in the administrative proceedings shall be made defendants (Ill. Rev. Stat. 1973, ch. 110, par. 271). None of the plaintiffs made the other plaintiffs defendants to their respective complaints for review. After the 35-day period had elapsed, defendant Smith made motions to dismiss the complaints on the grounds that the circuit court lacked jurisdiction because of the failure to join all proper parties. That court, however, allowed subsequently made motions to join the necessary parties and denied Smith's motion to dismiss.
In Hailey v. County Board of School Trustees (1959), 21 Ill. App.2d 105, 157 N.E.2d 570, and Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App.3d 582, 297 N.E.2d 316, subsequent amendments to add necessary parties, although made after the end of the 35-day period for filing the complaint, were held to have cured the defect. In O'Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill. App.3d 764, 291 N.E.2d 349, and Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 95 N.E.2d 864, cited by defendant Smith, no such amendments were made. The circuit court had jurisdiction and the denial of the motions to dismiss was correct.
Section 3 of the Illinois Fair Employment Practices Act (F.E.P.A.) at all times in point provided in part:
"It is unfair employment practice:
(a) For any employer, because of the race, color, religion, national origin or ancestry of an individual to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment; * * *." (Ill. Rev. Stat. 1967, ch. 48, par. 853.)
Procedure under the Act is governed by section 8 (Ill. Rev. Stat. 1967, ch. 48, par. 858) and, in general, provides for the usual administrative remedies. After a proceeding has been instituted, a hearing is held before a hearing officer. If a determination is made based upon substantial evidence, this recommendation becomes the decision of the Commission if a petition for review is not filed. If such a petition is filed, further evidence may be presented to a commissioner and oral argument had before the whole Commission. The Commission may grant a trial de novo. Section 10 of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 860) makes the decision of the Commission appealable under the Administrative Review Act.
Of special importance here is the procedure for initiating an action. Section 8 further provided, "Whenever within 120 days after the date that an unfair employment practice allegedly has been committed, a charge in writing under oath or affirmation is filed with the Commission by a complainant and in such detail as to substantially apprise any party properly concerned as to the time, place and facts with respect to such alleged unfair employment practice, that any employer, labor organization, employment agency, or person, hereinafter referred to as a respondent, has committed such unfair employment practice, the Commission shall promptly serve a copy of the charge or summary thereof on the respondent" and investigate to see if there is substantial evidence to support the charge. If not, the charge is to be dismissed. If substantial supporting evidence is found, the commission is to initiate a conciliatory procedure. If this fails, a complaint is to be filed.
Until October 1, 1972, the following provision was in force:
"Whenever a charge of an unfair employment practice has been properly filed, the Commission, within 180 days thereof, shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent." (Ill. Rev. Stat. 1967, ch. 48, par. 858(c).)
After October 1, 1972, the Fair Employment Practices Act provided in part:
"Whenever such a charge of an unfair employment practice has been properly filed, the Commission, within 180 days thereof or within any extension of that 180 day period agreed to in writing by all parties and approved by a member of the Commission, shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent." Ill. Rev. Stat. 1972 Supp., ch. 48, par. 858.01(a).
On June 12, 1968, defendant Elwood Smith filed a verified charge of unfair employment practice with the F.E.P.C. naming as respondents "City of Springfield Plan Commission, Nelson Howarth, Mayor, Eugene Estes, Chairman, Bradley Taylor, Executive Director." The unfair practice was alleged to have occurred on or about May 20, 1968. The charge further stated that in October 1967 Smith placed an application for a job with Taylor, was interviewed by him for about two hours and kept in touch with him until March 1968. Smith further alleged that in reading a newspaper article on May 20, 1968, "I learned I had been discriminated against because of my race [Negro] and color."
On September 9, 1968, an amended charge was filed by Smith substantially the same as the original except that it named as respondents "Springfield-Sangamon County Regional Plan Commission, Eugene Estes, Chairman, Bradley Taylor, Executive Director City of Springfield Plan Commission." Investigation was made and conciliation attempted. On December 5, 1968, a stipulation purporting to extend the 180-day period in which a complaint could be issued was entered into between defendant Smith and plaintiff Springfield-Sangamon County Regional Plan Commission and approved by the F.E.P.C. This agreement, plus a subsequent modification and a similar agreement, purported to extend the 180-day period to March 31, 1969.
Conciliation was attempted unsuccessfully until, on March 26, 1969, a complaint was filed naming plaintiff Springfield-Sangamon County Regional Plan Commission as respondent and alleging an unfair employment practice on or about May 20, 1968, as set forth in the charge filed on June 12, 1968, as per a copy attached. Attached was the original charge to which the respondent to the complaint was not a respondent. On April 30, 1969, pursuant to leave, the F.E.P.C. amended its complaint to add an allegation that unfair employment practices were committed on or about October 1967, May 20, 1968, January 26, 1969, February 14, 1969, and March 18, 1969. On August 22, 1969, a petition was presented to further amend the complaint to add plaintiffs City of Springfield and County of Sangamon as additional respondents. The petition was allowed on October 7, 1969, and an amended complaint was issued on April 28, 1970. This complaint named the city and county as additional parties and alleged an unfair employment practice on or about May 20, 1968, as set forth in a charge filed on June 12, 1968, a copy ...