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Florsheim Shoe v. Fair Employment Com.





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


Plaintiff Florsheim Shoe Company filed suit in the circuit court seeking review of administrative proceedings before defendant Fair Employment Practices Commission (Commission). The circuit court affirmed the Commission's decision that plaintiff committed an unfair labor practice in violation of the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1973, ch. 48, par. 851 et seq.) *fn1 when plaintiff laid off defendant Jean Woods. On appeal plaintiff asks this court to consider (1) whether the Commission's complaint satisfied the requirements of due process, (2) whether the Commission applied the proper legal standard to the proofs, and (3) whether the Commission's decision is contrary to the manifest weight of the evidence.

On November 13, 1974, Woods filed a charge with the Commission which alleged plaintiff laid off Woods as a result of sex discrimination. The charge stated Woods was three months pregnant. On June 2, 1975, the Commission issued a complaint which alleged that plaintiff laid off Woods and four other full-time workers on November 8, 1974, and that plaintiff selected Woods for the layoff because Woods was pregnant. The Commission subsequently held an adjudicatory hearing before an administrative law judge (ALJ) and the following facts were adduced.

During the fall of 1974, plaintiff instructed its supervisory personnel to select workers for layoff due to economic reasons. Frank Keats, Woods' office manager and supervisor, was responsible for selecting layoff candidates in Woods' department. Five full-time and three part-time department personnel had to be laid off. Keats was aware that Woods thought herself to be pregnant. On November 8, 1974, Woods and two other full-time employees, Debra Rentas and Linda Matos, were called into Keats' office. Keats informed the women they were selected for layoff. Woods and Rentas were told they were selected because they were pregnant. Keats justified the layoff to them on the ground that he thought they would be leaving anyway and it would be unfair to lay off others who did not intend to leave. Woods told Keats she did not intend to take a maternity leave until just before her expected date of delivery, sometime during the spring of 1975. The only other pregnant woman in the department was also laid off. At least one other employee with less time on the job than any of the laid-off pregnant women was retained in Woods' department.

The record also indicates that during Woods' employment with plaintiff, management personnel discussed with her their concerns about her poor work performance and attitude. Subsequent to those discussions, but prior to the instant layoff, Woods was told her work performance and attitude had improved. She was given a raise in salary.

Woods testified she suffered a miscarriage in February of 1975. Plaintiff proffered testimony that Woods underwent surgery (a dilation and curettage) on February 17, 1975. According to the treating physician, Mahmound Halloway, Woods was not pregnant on the date of that operation. He was treating her for dysfunctional uterine bleeding. Dr. Halloway testified he would be unable to determine whether Woods was pregnant within the seven or eight months previous to the operation.

The ALJ's recommended decision and order found, inter alia, that two of the five persons laid off in Woods' department were pregnant, and that Keats selected Woods because he believed Woods was pregnant. The ALJ then held plaintiff committed an unfair employment practice against Woods because pregnancy was the predominant, stated reason for Woods' layoff. In addition, the decision stated that the evidence casting doubt on Woods' pregnancy status in February of 1975 did not refute her declaration of pregnancy in July through November of 1974. Furthermore, the ALJ concluded the relevant issue was whether plaintiff believed Woods to be pregnant and acted upon that belief.

The Commission held the ALJ's recommendation was supported by the facts. The Commission concluded that since the layoff resulted from plaintiff's stated reason (i.e., Woods' pregnancy), the layoff penalized Woods because of her gender in violation of section 3(a) of the FEPA (Ill. Rev. Stat. 1975, ch. 48, par. 853(a)).

Plaintiff appealed that decision to the circuit court which affirmed the Commission's determination, but remanded the cause for an additional hearing on appropriate relief regarding back pay. Plaintiff's initial appeal to this court was dismissed for want of a final order. The circuit court subsequently affirmed the Commission's second back pay determination.


Plaintiff first contends it was denied due process of law because the Commission's complaint against plaintiff provided allegedly inadequate notice. Plaintiff argues it was initially charged with discrimination in selecting Woods for the layoff where that selection was based upon Woods' status as a pregnant woman. Plaintiff states it was prepared to adduce evidence tending to refute Woods' claim of pregnancy. It claims, however, that it was not prepared by the Commission's complaint to defend against the Commission's eventual finding. Plaintiff characterizes the finding as resting only upon the ALJ's conclusion that even if Woods was not pregnant at the time of the layoff, plaintiff's conduct was violative of the FEPA because it was motivated by the belief that Woods was pregnant. Since the complaint did not specify "belief" as an element of the alleged unfair labor practice, plaintiff concludes it did not satisfy the notice requirements of due process.

Due process of law requires a definite charge, adequate notice of that charge, and a full, fair and impartial hearing. (Smith v. Department of Registration & Education (1952), 412 Ill. 332, 344, 106 N.E.2d 722.) Adequacy of notice is determined by whether the party receiving notice should have anticipated the effects and orders possible under an adverse ruling. Wilmar Oil, Inc. v. Dixon (1980), 90 Ill. App.3d 164, 166, 412 N.E.2d 1139; see also Department of Revenue v. Jamb Discount (1973), 13 Ill. App.3d 430, 435, 301 N.E.2d 23.

• 1 Plaintiff claims the instant complaint resulted in prejudice and relies upon Lake Shore Savings & Loan Association v. American National Bank & Trust Co. (1968), 91 Ill. App.2d 143, 147, 234 N.E.2d 418, to support its claim. That case is not apposite. There the complaint was barren of any allegation relative to the underlying theory supporting the circuit court's judgment. The appellate court held that absent such necessary allegation the judgment was void. Here, the original complaint contained sufficient allegations. The instant complaint averred plaintiff laid off Woods because she was pregnant. *fn2 As the case against plaintiff unfolded, plaintiff was afforded a reasonable opportunity to know the claims of the opposing parties and to meet them. (See, e.g., Swift & Co. v. United States (7th Cir. 1968), 393 F.2d 247, 252; see also L.G. Balfour Co. v. Federal Trade Com. (7th Cir. 1971), 442 F.2d 1, 19.) In our opinion plaintiff's argument is without merit. If plaintiff discharged Woods because of pregnancy as charged in the complaint, it appears obvious to us it was because plaintiff believed her to be pregnant. Plaintiff has made no showing to support its mere allegation of detrimental reliance upon the instant notice (see Wilmar Oil, Inc. v. Dixon), and it offers no example of how it would have conducted its ...

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