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 October 31, 1973, defendant, Marlene Rothbardt, filed charges with defendant State of Illinois Fair Employment Practices Commission (FEPC) against plaintiff, Board of Governors of State Colleges and Universities, alleging she had been discriminated against because of her sex by Northeastern Illinois University, an institution under the governance of plaintiff. On August 15, 1979, the FEPC entered an order stating that it affirmed and adopted the March 15, 1979, "Recommended Order and Decision" of an administrative judge and ordered that "the relief specified therein be implemented forthwith." The thrust of the recommended order was that Rothbardt be reinstated to a teaching position with Northeastern University and be awarded $90,779 lost compensation for a period from September 1972 through June 1978.
Plaintiff brought suit in the circuit court of Sangamon County for administrative review of the FEPC decision. On October 15, 1980, that court reversed, holding that: (1) the FEPC lacked jurisdiction of the charge because of its tardy filing; and (2) in any event, its decision was contrary to the manifest weight of the evidence. Defendant Rothbardt then appealed to this court, maintaining: (1) the circuit court erred in denying her prehearing motion for a change of venue to the circuit court of Cook County; (2) the FEPC had jurisdiction; and (3) the administrative decision was sufficiently supported by the evidence.
Section 12 of the Fair Employment Practices Act has required that proceedings for administrative review or judicial enforcement of FEPC decisions,
"* * * shall be commenced in the Circuit Court in and for the county wherein the unfair employment practice which is the subject of the Commission's order was committed or wherein any person required to cease and desist by such order resides or transacts business * * *." (Ill. Rev. Stat. 1977, ch. 48, par. 862.)
Northeastern University was shown, at all times, to have been located in Cook County, and all acts comprising the alleged discrimination were claimed to have taken place there. Plaintiff was shown to have its office in Springfield in Sangamon County. Under section 12, venue in the circuit court of Sangamon County was proper only if the administrative order appealed required plaintiff to cease or desist. The record is somewhat confused in that respect.
A "Recommended Order and Decision" of an administrative law judge entered April 21, 1976, had proposed entry of an order against plaintiff requiring it to cease and desist the "practice of discriminating against women who choose to have children and at the same time pursue a professional academic career." This recommendation was never adopted by the FEPC although the conclusion of the administrative judge that defendant Rothbardt had proved her charge was adopted by the FEPC order dated January 12, 1977. The proceeding was then remanded to an administrative law judge for determination of the appropriate relief to be granted. After further hearing, another administrative law judge, on March 15, 1979, filed a document also entitled "Recommended Order and Decision." The portion of that document headed "Recommended Order" was silent as to any direction for plaintiff to cease and desist. Under the heading of "Discussion", a portion of the same document stated that (1) defendant Rothbardt was entitled to compensation and an order directing reinstatement, and (2) "[a]dditionally, an order directing Northeastern to cease and desist from the unfair employment practice of discriminating against women who choose to have children and at the same time pursue a career, is proper." Finally, on August 15, 1979, the FEPC entered the order which stated that it affirmed and adopted "the Recommended Order and Decision" of March 17, 1979, and ordered that "the relief specified therein be implemented forthwith." It also ordered plaintiff to report to the FEPC within 45 days as to "the steps it has taken in compliance herewith."
Although the record is confusing, we conclude that plaintiff was under an order to cease and desist. The Recommended Order and Decision of the administrative judge entered April 21, 1976, not only recommended the issuance of a cease and desist order but also recommended that plaintiff be required to report to the FEPC within 45 days as to the steps that it had taken to prevent the type of discrimination found to have existed. The document filed by a different administrative judge on March 15, 1979, contained no similar recommendation nor did it say such would be proper or desirable. The final FEPC order entered August 15, 1979, did require plaintiff to make a timely report as to its compliance. If plaintiff were merely required to make reparations to and reinstate defendant Rothbardt, reporting as to compliance would not have been logical. Rather, it would appear that FEPC deemed plaintiff to be under an order to cease and desist as recommended by the prior administrative judge and, as also recommended by that judge, wished a report on the actions taken to prevent further discrimination. Further weight is given to this interpretation by the FEPC action in adopting not only the "Recommended Order" but also the "Decision" of March 15, 1979, which deemed a cease and desist order to be proper.
• 1 As plaintiff was under a cease and desist order, venue was properly in the circuit court of Sangamon County and that court properly denied the motion to dismiss.
We next turn to the question of whether the charge was timely filed. At the time of its filing, section 8 of the Fair Employment Practices Act provided for initiation of proceedings under the Act:
"Whenever within 180 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 * * *." (Ill. Rev. Stat. 1973, ch. 48, par. 858.)
At the time section 8.01(a) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 858.01(a)) provided that the FEPC, after investigating the charges and attempting to settle the dispute, should either file a complaint against the respondent within 180 days of the filing of the charges, or such extension as agreed upon in writing between the parties, or order that no complaint be issued.
In Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill.2d 61, 373 N.E.2d 1307, the supreme court held the FEPC to be without jurisdiction to proceed when the FEPC had failed to file a complaint within the 180-day period of section 8 even though the complainant had filed a charge within the time required by section 8. (Accord, Board of Governors v. Illinois Fair Employment Practices Com. (1979), 78 Ill.2d 143, 399 N.E.2d 590.) Logic requires that if, as there, a claimant was to be deprived of a hearing on his claim because the FEPC had been dilatory in meeting the filing requirements of section 8, here, if the claimant herself was dilatory in meeting the filing requirements of section 8, she too would be deprived of her claim. (See dictum in Moss-American, Inc. v. Illinois Fair Employment Practices Com. (1974), 22 Ill. App.3d 248, 254, 317 N.E.2d 343, 347-48.) The purpose of the section 8(a) requirement was stated in Springfield-Sangamon County Regional Plan Com. to be to expedite conciliation and diminish expense to employers who might be found to be liable for back pay to claimants. Although we are not advised of any decision passing upon the question of whether compliance with the section 8 filing requirement is a necessary condition for the FEPC to have jurisdiction, we hold that it is. Moreover, even if timely filing was not a jurisdictional requirement in the sense it could not be waived, it was a protection to which plaintiff was entitled. It has raised the issue at every stage and has not waived it. Reversible error would have occurred if the FEPC proceeded upon an untimely charge.
Accordingly, we must determine when the discriminatory practice claimed here occurred. Discussion of this requires narration of the series of ...