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Smith v. City of Springfield

OPINION FILED MAY 13, 1980.

ELWOOD SMITH, PLAINTIFF-APPELLANT,

v.

THE CITY OF SPRINGFIELD ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding. MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal lies from further proceedings growing out of plaintiff's charge of an unfair employment practice which arose originally in 1968. The facts are set forth at length in a prior opinion of this court, Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1976), 45 Ill. App.3d 116, 359 N.E.2d 174, and in the opinion of the supreme court, Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill.2d 61, 373 N.E.2d 1307. They will be repeated only briefly for the purposes of clarity.

In 1968, Smith filed a charge of an unfair employment practice with the Illinois Fair Employment Practices Commission (FEPC). The FEPC found in his favor, but on administrative review such finding was reversed by the circuit court of Sangamon County. That decision was reversed by this court, and this court's decision was in turn reversed by the supreme court. The ultimate finding of the circuit court, as affirmed by the supreme court, was that the FEPC had lost jurisdiction because its complaint was not issued within 180 days following the charge being lodged with it.

In an apparent reaction to the supreme court's decision the legislature amended the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1977, ch. 48, par. 851 et seq.) by adding section 8.01a to it which reads as follows:

"§ 8.01a. In the case of any charge of an unfair employment practice which has been properly filed with the Commission prior to March 30, 1978, which has not been settled or adjusted by conference and conciliation under Section 8, and which within 180 days thereafter has not been the subject of a complaint issued by the Commission or an order that no complaint be issued, the person filing the charge may seek appropriate injunctive or other relief by filing an action in the circuit court of the county where the alleged unfair employment practice occurred, and if the person prevails in such action the court may award such person costs and reasonable attorneys' fees. The Commission shall notify all such persons by registered mail of their right to seek such relief and any such action must be initiated in the circuit court within 2 years of the receipt of such notice, notwithstanding any other statute of limitations imposed on such actions." Ill. Rev. Stat., 1978 Supp., ch. 48, par. 858.01a.

The amendment was effective September 16, 1978, and on January 5, 1979, Smith filed suit in the circuit court of Sangamon County pursuant to the amendment, and asked for back pay to May 20, 1968, together with interest and attorney's fees. By order entered August 16, 1979, the circuit court dismissed the complaint on the motion of the defendants, holding that plaintiff's charge was not properly filed with the FEPC prior to March 30, 1978, as required by the statute. The circuit court made the necessary finding under Supreme Court Rule 304(a)(73 Ill.2d R. 304(a)), and this appeal followed.

The parties are in agreement that the amendment was passed to aid persons like the plaintiff who had become victims of an administrative backlog in the FEPC. It is suggested in the briefs by way of quotation from the legislative debates that more than 3,000 cases were awaiting disposition in the FEPC at the time of the supreme court's decision.

The parties are in further agreement that the construction of the words "properly filed" in the amendment will be dispositive of the instant case. The defendants have raised questions concerning the constitutionality of the amendment, but in the view which we take of this matter, we need not reach the constitutional issue.

There is no question but that plaintiff filed his charge with the FEPC within 120 days of the alleged unfair practice as required by section 8 of the FEPA (Ill. Rev. Stat. 1967, ch. 48, par. 858). The alleged discrimination occurred on May 20, 1968, and the charge was filed on June 12, 1968. However, the present defendants, the City of Springfield and the County of Sangamon, were not made parties respondent until October 7, 1969, almost 16 months later. It is this latter fact that prevents plaintiff's charge from being "properly" filed.

• 1 At the risk of stating the obvious, we believe that a "charge" must be based on two elements: (1) A statement of fact which is encompassed by one or more of the unfair practices delineated in section 3 of the FEPA (Ill. Rev. Stat. 1967, ch. 48, par. 853), and (2) an accusation against someone, or some organization, which has allegedly committed the unfair practice. In other words, there must be a res and a persona.

The very form which was used by the plaintiff in this case and which was furnished by the FEPC reads in part as follows:

"I, ________________________________________ (Complainant)

* * * charge on my own behalf to have been personally aggrieved by an unfair employment practice committed by ______________________ ____________________________ * * * (Respondent)

The facts of the alleged unfair employment practice are:"

The chronology of events must be reviewed briefly. As stated above, the original charge was filed June 12, 1968, and named "City of Springfield Plan Commission, Nelson Howarth, Mayor, Eugene Estes, Chairman, Bradley Taylor, Exec. Director" as respondent. An amended charge was filed September 6, 1968. It reiterates exactly the original charge but is directed against "Springfield-Sangamon County Regional Planning Commission, Eugene Estes, Chairman, Bradley Taylor, Exec. Dir., City of Springfield Plan Commission." On March 26, 1969, the FEPC issued a complaint directed at the respondents named in the original and amended charges. On August 22, 1969, plaintiff petitioned the FEPC to amend its complaint to include the present defendants, City of Springfield and County of Sangamon, as additional respondents. This was allowed by the FEPC on October 7, 1969, but the amended ...


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