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Northern Ill. Univ. v. Fair Emp. Pract. Com.





APPEAL from the Circuit Court of De Kalb County; the Hon. CARL A. SWANSON, JR., Judge, presiding.


Rehearings denied April 6 and May 3, 1978.

Plaintiff, Northern Illinois University, appeals pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) from an order of the Circuit Court of DeKalb County affirming a decision of defendant, Fair Employment Practices Commission (hereinafter referred to as the Commission), that plaintiff had committed unfair employment practices as defined in section 3(a) of the Fair Employment Practices Act (Ill. Rev. Stat. 1971, ch. 48, par. 853(a)).

On March 26, 1973, Edna Barbour, an associate professor, filed a charge with the Commission and it thereafter issued a formal complaint on her behalf alleging that on or about January 26, 1973, plaintiff discriminated against her on the basis of her sex in determining the terms and conditions of her employment by plaintiff. While the original charge filed by Dr. Barbour was directed against the faculty rating system utilized by plaintiff to determine annual salary increments of its tenured faculty, the hearing of that charge by the examiner appointed by the Commission, held in the spring and summer of 1974, also embraced a wide range of other discriminatory acts alleged to have been committed by plaintiff against Dr. Barbour. These included denying her a sabbatical leave, failure to promote her from the rank of associate professor to full professor and transferring her from the Department of Accountancy to the Department of Business Education both of which are in plaintiff's College of Business. The hearing examiner made certain findings and recommendations, which the Commission substantially adopted, finding that Northern Illinois University had committed these unfair employment practices regarding Dr. Barbour because of her sex and ordered plaintiff to cease such practices as to Dr. Barbour and others and, in order to eliminate what the Commission considered to be the effect upon Dr. Barbour of such practices, ordered plaintiff to expunge all faculty proficiency ratings made of Dr. Barbour after August 27, 1971 (the date discrimination based upon a person's sex became an unfair employment practice under the Act), from its personal records, promote her to full professor retroactive to the date she filed her charge with the Commission, grant her a paid six-month sabbatical leave, allow her to teach both accounting and data processing courses across departmental lines and award her back pay to August 27, 1971, in an amount to be subsequently determined.

In accordance with the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) plaintiff sought review of the decision in the circuit court which affirmed the decision and order of the Commission and, on appeal, plaintiff contends the decision of the Commission is not supported by a preponderance of the evidence and that the far-reaching scope of its order exceeds any authority given the Commission by the Act. In view of our resolution of plaintiff's first contention we need not consider its second argument.

The Fair Employment Practices Act states the policy of the State of Illinois that equal employment opportunity shall not be denied because of a person's sex. (Ill. Rev. Stat. 1971, ch. 48, par. 851.) The Act prohibits unfair employment practices, including discrimination in the terms or conditions of employment, on that basis. (Ill. Rev. Stat. 1971, ch. 48, par. 853(a).) A hearing examiner or commissioner who takes evidence in a case makes a determination based upon that evidence whether the employer has engaged in unfair employment practices with regard to the person aggrieved, as charged in the complaint, and the Act provides that "[a] determination sustaining a complaint shall be based upon a preponderance of the evidence." (Ill. Rev. Stat. 1971, ch. 48, par. 858.01(c).) The findings and recommendations of the hearing examiner are thereafter reviewed by the Commission which may adopt, modify or reverse them in whole or in part.

Judicial review of an order of the Commission must be had pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.; Ill. Rev. Stat. 1971, ch. 48, par. 860) and, on such review, "[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct." (Ill. Rev. Stat. 1971, ch. 110, par. 274.) The parties disagree as to the scope and standard of judicial review in the instant case and refer us to conflicting decisions of the Illinois courts>. Our supreme court indirectly considered the standard to be applied on review of cases brought under the Fair Employment Practices Act in Motorola, Inc. v. Illinois Fair Employment Practices Com. (1966), 34 Ill.2d 266, 215 N.E.2d 286, in which the court considered the evidence upon which the Commission had found a violation of the Act and determined that, while the evidence indicated some suspicion that a prospective employee's test score had been falsely recorded, "the alleged unfair employment practice was not established by a preponderance of the evidence." (34 Ill.2d 266, 282, 215 N.E.2d 286, 295.) The court then reversed the decision of the Commission. In Chicago Transit Authority v. Fair Employment Practices Com. (1st Dist. 1968), 103 Ill. App.2d 329, 243 N.E.2d 638, the court found that the "prima facie correct" presumption applicable to judicial review of all administrative agency decisions may only apply to decisions of the Fair Employment Practices Commission when it appears that the standard of proof by a preponderance of the evidence imposed by the legislature has been met. (103 Ill. App.2d 329, 341, 243 N.E.2d 638, 644.) The court in Moss-American, Inc. v. Illinois Fair Employment Practices Com. (5th Dist. 1974), 22 Ill. App.3d 248, 317 N.E.2d 343, adopted the preponderance of the evidence standard which it found meant "the greater weight of the evidence, not necessarily in numbers of witnesses, but in merit and worth that which has more evidence for it than against it * * *. Preponderance of the evidence is sufficient if it inclines an impartial and reasonable mind to one side rather than the other. [Citation.]" 22 Ill. App.3d 248, 259, 317 N.E.2d 343, 351.

In General Electric Co. v. Illinois Fair Employment Practices Com. (1st Dist. 1976), 38 Ill. App.3d 967, 349 N.E.2d 553, appeal denied (1976), 63 Ill.2d 556, however, the court interpreted Motorola to hold only that the hearing examiner in that case had not applied the preponderance standard to the evidence as he is charged to do by statute. General Electric then holds that the court must apply two tests to an order or a decision of the Fair Employment Practices Commission.

"[F]irst, the reviewing court must determine if the agency applied the proper test to the evidence presented to it [citation]; second, if full compliance with the Act is manifested by a review of the record, the court must then determine whether the agency's determinations are against the manifest weight of the evidence." (38 Ill. App.3d 967, 977, 349 N.E.2d 553 561.)

Subsequent decisions of the appellate court have also determined that the manifest weight standard is applicable to judicial review of Commission decisions. Montgomery Ward & Co. v. Fair Employment Practices Com. (1st Dist. 1977), 49 Ill. App.3d 796, 802, 365 N.E.2d 535, 539; Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (4th Dist. 1976), 45 Ill. App.3d 116, 127, 359 N.E.2d 174, 182, rev'd in part on other grounds (1978), 71 Ill.2d 61, 373 N.E.2d 1307.

• 1 While the Fair Employment Practices Act is unique in that it dictates the standard of proof to be applied by that administrative agency in making its determinations under the Act, we find no difference between the standard of review to be applied in the instant case and that which must be applied in the judicial review of any other administrative agency decision under the Administrative Review Act. *fn1 For these reasons, we hold the manifest weight of the evidence test to be applicable to judicial review of an administrative decision of the Fair Employment Practices Commission.

The major challenge in the instant case is directed to plaintiff's faculty rating system which is considered in determining faculty salary increments each year and which Dr. Barbour and the Commission deemed discriminated against her because she is a woman. Some general background information will be helpful to our analysis of this question. Dr. Barbour was, at the time of her complaint in 1973, an associate professor in the Department of Accountancy, one of five departments in the University's College of Business. Personnel matters, including salary increments, were within the jurisdiction of a departmental personnel committee which had the responsibility of evaluating the members of the faculty and making recommendations to the University for their respective annual salary increments. The College of Business is governed by a College Council composed of five members, one from each department, elected by other faculty members, together with the dean of the college. The University Council, a faculty governing board chosen by members of the various departments, also had a personnel committee which heard appeals in such matters.

The rating system relied upon by the personnel committee of Dr. Barbour's department considered three general factors in evaluating each faculty member's performance for the previous year: teaching effectiveness, scholarship and service. These considerations included any significant activities by a faculty member outside of teaching and other professional activities as well as service to the University. Each faculty member was rated by the committee on a scale of 0 to 10 in each of these three areas and the scores were then weighted so that teaching effectiveness made up 50% of the total and scholarship and service each 25%. The amount of the salary increment recommended by the personnel committee then bore a direct relationship to the total score given each of the respective faculty members. Any faculty member aggrieved by the recommendation of the personnel committee may appeal to both the Council of the College of Business and to the University Council personnel committee.

Student evaluations of teachers, made through surveys taken by the Student Advisory Board, have been utilized since 1970 by the personnel committee to help it evaluate the teaching effectiveness of the members of the faculty. The form for these evaluations included questions on the ability of the teacher to communicate, his or her understanding of the subject matter taught and the teacher's willingness to assist students out of class. Additional space was provided on such forms for students to make any other comments they may wish to make regarding the teacher's effectiveness. The students were not informed their evaluations help determine a faculty member's salary increment for the year and the individual members of the faculty may refuse to be evaluated by students, if they wish, although Dr. Barbour asserted she was not aware of that option. The personnel committee also considered general information received from students and other faculty members in making its ...

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