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Fair Employment Practices Com. v. Hohe





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Petitioner, the State of Illinois Fair Employment Practices Commission (FEPC), brought this action seeking an order which would require that respondent, Henry Hohe, the department head for driver education at Morton West High School, obey a subpoena issued by the FEPC for the production of certain documents and records covering the period from September 1971 to August 1974. Initially, the trial court ordered respondent to comply with that portion of the subpoena which requested documents and records for the period commencing 180 days prior to February 5, 1975, but this order was subsequently modified to encompass a full year prior to February 5, 1975. Petitioner appeals the denial of the enforcement of its subpoena prior in time to February 5, 1974, and presents the following issue for review: whether, in denying the full enforcement of the subpoena, the trial court exceeded the proper scope of judicial review of administrative subpoenas.

On February 5, 1975, Frances M. Hartley and Carole J. Gilbertsen-Pangercic filed charges before the FEPC of unfair employment practices allegedly committed by their employer, Morton West High School (M-W), based upon their sex (female). Under oath, they each alleged, "In the month of December after repeated requests to have Drivers Education Classes equitably rotated among males and females, I was not given proper consideration." Again, under oath, Hartley amended her complaint stating that she had been employed by M-W since September 1969 and had been a qualified driver-education teacher since September 1970, and Gilbertsen-Pangercic also amended her complaint, stating that she had been employed by M-W since September 1971 and had been a qualified driving instructor since June 1969. They each further alleged that they had not been given equal consideration with qualified male instructors until January 1975.

During the initial phase of the FEPC's investigation, respondent voluntarily produced documents and records which disclosed the total number of male and female driving instructors and, concerning each driving instructor, the number of instructional hours assigned, the rate of compensation, and the amount of compensation paid during the 1974-75 school year. Respondent, however, refused to comply with a FEPC subpoena for the production of the same type of documents and records covering the period from August 1971 to September 1974, and on July 11, 1975, he filed a motion to quash the subpoena on grounds that the requested information covered a period in excess of the applicable statute of limitations (180 days) and that it was vague and sought nonexistent material.

On October 15, 1975, the FEPC entered an order denying the motion to quash, stating that because the allegations of sexual discrimination were of a continuing nature and the records voluntarily supplied were inconclusive, the investigation of documents and records predating the 180-day period was required for the three-year period. It did, however, modify the subpoena to eliminate vagueness and to require only those documents and records which had actually been kept by M-W during the years in question.

On December 11, 1975, the FEPC instituted the instant action in the trial court, seeking the enforcement of its subpoena as modified. Respondent's brief in opposition contended that as the information already supplied conclusively established that no violation occurred within the 180-day period, any information without that period could not be relevant. During the hearing on its motion, the FEPC argued that it was not necessary to show an actual violation occurring within the 180-day period as a prerequisite to inquire beyond the statutory period. Whereupon, the trial court, relying on Klein v. Fair Employment Practices Com. (1975), 31 Ill. App.3d 473, 334 N.E.2d 370, stated that the FEPC would be presumed to have made a determination that a violation had probably occurred where it requested access to records without the statutory period; that such a determination was reviewable under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.); and, in the absence of a showing of such a violation, that no subpoena which sought records beyond the statutory period could be enforced. An enforcement order was entered which limited the production of data to the 180-day period in which information had in fact been voluntarily produced, and the cause was remanded for a determination whether a violation had occurred within the statutory period.

FEPC moved to reconsider and, after a hearing, the trial court retreated somewhat from its earlier application of Klein v. Fair Employment Practices Com. and viewed a subpoena for records covering a period of more than one year prior to the filing of charges as burdensome per se, stating that beyond one year "[t]here must be some determination that the record would be relevant." In using the term relevancy, it appears that the court meant a showing of reasonable cause to believe the charges have substance. The enforcement order was then modified to include access to the requested records for the period of February 5, 1974, to February 5, 1975.


Petitioner contends that the trial court exceeded the proper scope of judicial review of administrative subpoenas. It argues that the trial court erred (1) in finding only the documents and records which covered a year prior to the filing of charges of discrimination were relevant; (2) in determining that a showing of some evidence of a violation within the 180-day period was a prerequisite to a finding of relevancy concerning documents and records covering a time period in excess of one year; and (3) in entertaining respondent's alleged defense on the merits to the charge of discrimination. Because of the view we take of this case, only the first two arguments need be considered.

The question of the proper scope of judicial review of administrative subpoenas was first before the Illinois Supreme Court in Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill.2d 556, 562, 224 N.E.2d 236, 240, cert. denied (1967), 389 U.S. 848, 19 L.Ed.2d 117, 88 S.Ct. 75, where the court stated:

"This issue has frequently been before the Federal courts>, and it is now there established that judicial review is limited to a consideration of the constitutionality of the statute, whether the contemplated agency proceedings are included within the statutory authority, the reasonableness of the demand and the relevance of the information sought. [Citations.] Courts> cannot consider whether the agency has probable cause for its proposed action, defenses on the merits of the administrative proceeding, or procedural irregularities. [Citation.] Outside the Federal system the question has rarely arisen, but all the cases which we have found are consistent with the Federal view. [Citations.] The soundness of the Federal cases is attested by the unanimity of opinion and the desirability of interfering with agency investigations only to the extent required by due process necessities. We share this view."

During oral argument in this court, the parties agreed that the instant subpoena is entitled to judicial enforcement if the information sought is relevant to the inquiry and the demand for such information is reasonable and that the FEPC is not required to make a prior showing of reasonable cause to believe the charges are true. We are also in agreement, as to hold otherwise "is not only to place the cart before the horse, but to substitute a different driver for the one appointed by [the General Assembly]." (Graniteville Co. v. Equal Employment Opportunity Com. (4th Cir. 1971), 438 F.2d 32, 36.) Thus, the only questions properly before the trial court in the enforcement hearing here were: whether the documents and records covering the period from August 1971 to February 5, 1974, were relevant to the FEPC's inquiry and whether the demand for their production was reasonable.

Initially, it can be noted that there is no question but that the documents and records voluntarily produced and those sought by subpoena are of the same type and character and that all had been compiled in the course of school business. Therefore, questions of relevancy and reasonableness concern only the difference in the time periods reflected by each set of records.

The FEPC possesses a duty to "promptly institute an investigation to discover and evaluate facts underlying a charge of discrimination." (Klein v. Fair Employment Practices Com. (1975), 31 Ill. App.3d 473, 481, 334 N.E.2d 370, 376.) In the course of such investigation, the FEPC is authorized "whenever necessary to compel the attendance of a witness or to require the production for examination of any books, payrolls, records, correspondence, documents, papers or other evidence in any investigation of an unfair employment practice charge" and, in the event of a failure or refusal to comply therewith, "the Circuit Court * * * has jurisdiction to issue an order requiring such person to appear before the Commission, there to produce evidence, if so desired, or there to give testimony touching the matter under investigation ...

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