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Sch. Dist. No. 175 v. Fair Emp. Pract. Com.





APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT SAUNDERS, Judge, presiding.


Rehearing denied March 21, 1978.

This appeal is taken from a judgment entered by the circuit court of St. Clair County affirming in part and remanding in part an order of the defendant, Illinois Fair Employment Practices Commission (Commission), finding that plaintiff, School District No. 175 of St. Clair County (District), had unlawfully discriminated against defendant, Linda Tiernan, in refusing to hire her because of her sex.

On August 4, 1972, Tiernan filed a charge of unfair employment practices with the Commission against the District alleging that she had been refused employment as a 5th grade teacher because of her sex. On December 26, 1972, Tiernan filed another charge alleging that she had been refused employment as a substitute teacher during the 1972-1973 school year because of the earlier charge that had been filed. On February 13, 1973, and June 22, 1973, complaints were issued by the Commission on behalf of Tiernan on each of the charges respectively. Following public hearings, the hearing officer recommended in each cause that the charges were proven by a preponderance of the evidence. The causes were consolidated for purposes of review by the Commission. The District filed a petition for review with the Commission raising as new matter the single issue of whether it had been denied due process because of an unreasonable delay in the proceedings before the Commission. The Commission limited oral argument before it to the issue of delay raised by the District and on September 10, 1975, the Commission entered its order and decision. In the order and decision, the Commission reviewed the evidence presented in the public hearings and found that each of the charges had been proven by a preponderance of the evidence and accordingly ordered inter alia that the District cease and desist its unfair unemployment practices against Tiernan; that the District employ Tiernan in the position or a comparable position as that which existed on June 29, 1972; that the District pay Tiernan an amount equal to that she would have earned during the period as a 5th grade teacher less any amount actually earned by Tiernan during the period with interest on the balance at seven per cent compounded annually; that the District clear from Tiernan's personnel records all references to the instant charges filed; and that the District pay all Tiernan's reasonable attorney's fees incurred in connection with the instant cause.

On a complaint for administrative review by the District, the lower court affirmed the order and decision of the Commission except that portion of the order which sets forth a formula for ascertaining the amount of monetary damages to be awarded to Tiernan. The court remanded this portion of the order for such further proceedings as may be necessary to determine the exact amount of compensation to be awarded Tiernan. The District brings this appeal.

The District's first contention is directed at the findings of the Commission that the District had committed unfair employment practices. Pursuant to section 3 of the Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 853), it is an unfair employment practice:

"(a) For any employer, because of the * * * sex * * * of an individual to refuse to hire * * * or

(d) For any employer * * * to discriminate against any person * * * because he or she, reasonably and in good faith, has made a charge * * * under this Act * * *."

The evidence presented at the hearings showed that at the end of the 1971-1972 school year the District began the process of selecting a new 5th grade teacher for the Ellis School whose services would be utilized under a new "team teaching" concept in conjunction with two women teachers. The selection process was conducted by an interviewing committee consisting of the principal of Ellis School, James Meyer, and a number of teachers. The function of the committee was to recommend someone to the School Board to hire from the applicants for the position. When Tiernan learned of the opening, she contacted Meyer and inquired about the possibility of employment. She testified that she was told by Meyer that they "were looking for a man if they could find one with elementary [school] qualifications." Thereafter Tiernan and other applicants were interviewed by the committee. Following the interviews, James Seka was determined to be the first choice of the committee members. He was recommended by the committee for the position and subsequently he was hired by the School Board based on the recommendation. Another applicant, Betty Cox, was generally the second choice of the committee members, however, she testified that prior to the selection of any of the applicants, she had accepted a teaching position at another school. Tiernan, generally, was the third choice of the committee members, although it is noted that the committee, once having determined their first choice, had no need to collate their collective judgment as to second choice, third choice, and so on. After her interview before the committee, Tiernan received a letter of rejection from Meyer stating in part that "after much deliberation the committee has decided that it would be best to have a man in the 5th grade." A similar letter was sent to at least two other women. There was also evidence that Tiernan had a college gradepoint average of 4.5 out of 5.0 in obtaining her undergraduate degree from Southern Illinois University and that she had had approximately two years of professional teaching experience. The applicant who was hired, Seka, on the other hand, had a 3.7 average out of 5.0 also from Southern Illinois University and he had had no professional teaching experience.

The criteria used by the committee in making its selection included: teaching experience, student teaching recommendations, philosophy of education, willingness to further formal education, ability to communicate with children, enthusiasm, and ability to work with the teaching team concept. The relative importance of each criterion was personally determined by each member of the committee independently. There was testimony that Seka was selected because of his enthusiasm, command of the English language and growth potential. One member of the committee also testified that the committee members had discussed the advantages to having a male teacher in the 5th grade.

With respect to the second charge, the evidence showed that at the end of September 1972, subsequent to the filing by Tiernan of the original charge with the Commission, Grace Moon, the secretary to the Superintendent of the District, Leonard Parrish, was instructed by Parrish not to call Tiernan has a substitute teacher for the District until "some decision had been made." Tiernan had properly placed her name upon the District's list of substitute teachers for the 1972-1973 school year. During the 1971-1972 school year, Tiernan had also placed her name upon the list and had been called by the District as a substitute teacher and so employed for a total of 56 days. During the school year in issue, however, she was never called by the District. Parrish testified that initially he had been directed by the School Board to temporarily not employ Tiernan as a substitute teacher in order to avoid "embarrassing" her. He stated that he thereafter saw a newspaper advertisement announcing that Tiernan had become a realtor and he therefore assumed that she had a full-time job. The newspaper ad appeared during the end of November 1972. Tiernan had never requested that her name be removed from the list of substitute teachers nor had the District contacted her to inquire whether she was still available for such teaching.

On appeal the District contends that the factual determination and legal conclusions of the Commission are contrary to the "preponderance of the evidence" and are against the "manifest weight of the evidence." Before analyzing the evidence, we find it necessary to first consider what standard of review ought to be applied in the instant case.

• 1 In an action to review a determination of an administrative agency, the findings of the agency on questions of fact are deemed to be prima facie true and correct. (Ill. Rev. Stat. 1975, ch. 110, par. 274.) In addition, the general rule which has been applied by courts> reviewing a decision of an administrative agency is that such a decision will not be disturbed unless it is contrary to the manifest weight of the evidence. Some Appellate Courts> have applied this general rule to decisions of the Fair Employment Practices Commission. (Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (4th Dist. 1976), 45 Ill. App.3d 116, 359 N.E.2d 174, appeal allowed (1977), 65 Ill.2d 585; General Electric Co. v. Fair Employment Practices Com. (1st Dist. 1976), 38 Ill. App.3d 967, 349 N.E.2d 553; Chicago-Allis Manufacturing Corp. v. Fair Employment Practices Com. (1st Dist. 1975), 32 Ill. App.3d 392, 336 N.E.2d 40; A.P. Green Services Division v. Fair Employment Practices Com. (1st Dist. 1974), 19 Ill. App.3d 875, 312 N.E.2d 314.) However, it is to be noted that under section 8.01(c) of the Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 858.01(c)), the hearing examiner or commissioner determines whether the respondent has been engaged or is engaging in an unfair employment practice with respect to the complaint based on a preponderance of the evidence. Therefore, in Moss-American, Inc. v. Fair Employment Practices Com. (5th Dist. 1974), 22 Ill. App.3d 248, 259, 317 N.E.2d 343, 351, this court stated that:

"In reviewing an order of the Commission, the preponderance of the evidence standard must be adopted as required by the Fair Employment Practices Act. `[This is the only means of keeping] the agency within the jurisdictional * * * bounds guaranteed by the Constitution and statutes.'" (Accord, Chicago Transit Authority v. ...

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