Appeal from the Circuit Court of Cook County; the Hon. Richard
L. Curry, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
JUSTICE O'CONNOR delivered the opinion of the court:
___ N.E.2d ___ Plaintiff, Joe Ann McClandon, filed suit on November 25, 1980, in the circuit court of Cook County charging defendant, Bell and Howell Schools, with employment discrimination in violation of the Illinois Human Rights Act (IHRA) (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-101 et seq.), of article I, section 17 of the 1970 Illinois Constitution and of section 1981 of the Civil Rights Act of 1866 (42 U.S.C. § 1981 (1974)).
Counts I and II allege employment discrimination with respect to plaintiff's salary and job classification and retaliation for the filing of a discrimination charge. The jurisdiction for these counts is based on section 8.01a of the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a; repealed and replaced by section 9-102(B)(1) of the IHRA, Ill. Rev. Stat., 1980 Supp., ch. 68, par. 9-102(B)(1)). Count III is based on 42 U.S.C. § 1981 (1976) and alleges race discrimination by the defendant in its treatment of plaintiff's salary and job classifications. Count IV alleges race and sex discrimination under article I, section 17 of the Illinois Constitution.
On May 4, 1981, the trial court dismissed plaintiff's complaint with prejudice. Upon defendant's motion, the trial court found: the jurisdictional predicate for counts I and II, section 8.01a of the FEPA, was unconstitutional; count III did not state a cause of action and was time barred; and count IV was time barred. On July 23, 1981, the court, on plaintiff's motion, refused to reconsider its judgment and denied plaintiff the opportunity to file an amended complaint. Plaintiff's motion in this respect included a proposed amended complaint.
Plaintiff appeals, contending (1) section 8.01a of the FEPA is constitutional; (2) her claim brought pursuant to 42 U.S.C. § 1981 (1976) states a cause of action and is not time barred; (3) the claim of race and sex discrimination in employment practices under the Illinois Constitution is not time barred; and (4) the trial court abused its discretion in refusing to allow plaintiff leave to amend her complaint.
Plaintiff started working for defendant in October 1974 as a data entry supervisor. On December 1, 1974, she was assigned additional responsibilities without any additional compensation. In October 1975 plaintiff's position was upgraded without a salary increase. During the four-month period beginning in October 1974 and ending April 1975 plaintiff was not compensated for overtime work. After filing the initial charge of employment discrimination in October 1975, some of plaintiff's authority and job responsibilities were removed by defendant. Plaintiff remained on the job until August 1976.
Conciliation attempts between plaintiff and defendant apparently failed. The FEPC then issued an administrative complaint against defendant on November 22, 1977. On December 4, 1978, the FEPC informed plaintiff of her right to pursue the claims on her own in the circuit courts>. This notice was in response to the addition of section 8.01a to the FEPA which provided a remedy for certain individuals whose discrimination charges were not acted upon by the FEPC within the 180-day time limit. Ill. Rev. Stat. 1979, ch. 48, par. 858.01a.
After an administrative law judge refused to dismiss the FEPC complaint, defendant instituted an action for declaratory relief on February 21, 1979. In that matter, Bell and Howell Schools v. Earle Tockman and Joe Ann McClandon, No. 79 CH 1085, the circuit court dismissed the action upon FEPC's motion to dispose of the case. The court's order, dated July 2, 1980, also stated that the FEPC was without jurisdiction to proceed on plaintiff's charges then before it.
On September 10, 1980, the Illinois Human Rights Commission (Commission) (successor to the FEPC) dismissed for lack of jurisdiction the administrative complaint relative to plaintiff's charges. As mentioned above, plaintiff then filed her present action.
Since the trial court's dismissal of this cause and the pendency of this appeal three cases have been decided which control our review of the issues before us. In Wilson v. All-Steel, Inc. (1981), 87 Ill.2d 28, 428 N.E.2d 489, the Illinois Supreme Court determined that section 9-102(B) of the IHRA is unconstitutional special legislation. Insofar as section 9-102(B) is the successor statute to section 8.01a, we are constrained to find that the trial court's ruling that section 8.01a is unconstitutional is correct. Thus, plaintiff's rights cannot be predicated upon it.
However, in a case with many factual similarities the United States Supreme Court found that an individual's access to the FEPA's adjudicatory procedures was a property interest protected by the due process clause of the fourteenth amendment. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L.Ed.2d 265, 101 S.Ct. 1345.) In Logan, the petitioner sought resolution of employment discrimination charges with the FEPC. The FEPC failed to convene a fact-finding conference within the prescribed 120 days of the filing of the charges. The Illinois Supreme Court determined that the FEPC lacked jurisdiction because the 120-day period was mandatory. (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill.2d 99, 411 N.E.2d 277.) In reversing this determination, the United States Supreme Court found that Logan was deprived of a property right without due process when an administrative delay (for which he was not responsible) led to the dismissal of his complaint.
• 1 In Lott v. Governers State University (1982), 106 Ill. App.3d 851, 436 N.E.2d 569, the original issue on appeal was whether a suit against the State under section 9-102(B) of the IHRA could seek monetary damages. The court stated that this issue became moot after the supreme court's decision in Wilson invalidating that section. (106 Ill. App.3d 851, 852.) This court was then confronted with the dilemma of reconciling Wilson and Logan. First we found that plaintiff had a protected property interest in his employment discrimination claim and that he could not constitutionally be deprived of that interest by the inaction of the FEPC. (106 Ill. App.3d 851, 854.) In determining what process was due plaintiff, we said (106 Ill. App.3d 851, 855):
"* * * In Logan v. Zimmerman Brush Co., the court found that `Logan is entitled to have the Commission [FEPC] consider the merits of his charge, based on the substantiality of the available evidence, ...