Appeal from the Circuit Court of McHenry County; the Hon.
Roland A. Herrmann, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The plaintiff, Edith Sauers, appeals from an order of the circuit court of McHenry County which entered summary judgment against her and in favor of the defendants, the city of Woodstock (the city) and John Hayes, the city manager of Woodstock.
Her assignments of error on review are: (1) that the trial court improperly entered summary judgment for the defendants on count I of her amended complaint because the affidavit and exhibits supporting the defendants' motion for summary judgment did not comply with the requirements of Supreme Court Rule 191(a) (91 Ill.2d R. 191(a)); and (2) that the granting of the defendants' motion for summary judgment on counts II and III of her amended complaint was erroneous for the reasons (a) that material issues of fact existed with respect to those counts which precluded the use of summary judgment procedure in this cause and (b) that the defendants' motion was only directed at count I.
The plaintiff filed a one-count complaint in the circuit court of McHenry County, pursuant to section 8.01a of the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a), in which she alleged that the defendants engaged in employment discrimination on the basis of sex and a physical disability (hearing impairment) when, on January 24, 1977, they discharged her from her position as an accounting clerk with the city of Woodstock.
The plaintiff filed a motion for leave to amend her complaint, which the trial court granted. Her amended complaint, which was brought against the same two defendants who had been named in the original complaint, consisted of three counts. Count I of the amended complaint alleged essentially the same facts and cause of action as the original complaint, except that it was brought under section 9-102(B) of the Illinois Human Rights Act (IHRA) (Ill. Rev. Stat. 1981, ch. 68, par. 9-102(B)). It also added an additional paragraph which stated that the defendants had discriminated against the plaintiff because of her age.
The other two counts of the amended complaint alleged, in essence, that the defendants breached the employment contract which existed between the plaintiff and the city. More specifically, count II stated that the plaintiff had accepted, as part of her employment contract, the policies and procedures set forth in the city's Review Board Procedure and Personnel Plan and that the city had violated the employment contract by failing to comply with certain terms and conditions of those two documents. Both documents were attached as exhibits to the plaintiff's complaint. The defendants answered admitting that the plaintiff had accepted, as part of her employment contract, the above-mentioned standards, policies, and procedures; they denied, however, that they had violated the provisions of those documents. Count II further recited that the plaintiff had performed all the terms and conditions of the contract of employment, an allegation which the defendants denied. In addition, she alleged that she was discharged without just or sufficient cause, a statement the defendants also denied. Count II requested an award of monetary damages.
Count III alleged the same facts as count II but requested that the plaintiff be reinstated in her former position as an accounting clerk and that she be awarded backpay and accrued fringe benefits, with interest. The responses contained in the defendants' answer were the same as those directed to count II.
In their answer, the defendants raised an affirmative defense. The plaintiff did not reply to that defense. The defendants asserted in their defense that the plaintiff was discharged from her position as a general accounting clerk for four reasons: (1) poor work performance; (2) not directing telephone messages to proper people because of her hearing loss; (3) use of the telephone for personal calls; and (4) the "phasing out" of her position. The defense further recited that the plaintiff had filed a written complaint with the Chicago office of the Illinois Fair Employment Practices Commission (the Commission) on March 2, 1977, charging the defendants with unfair employment practices; that the Commission gave the defendants written notice of the charge on March 11 of that year; that, on October 24, 1978, the city of Woodstock filed a motion with the Commission to dismiss the charge; that the Commission responded on October 27, 1978, that the plaintiff's complaint was still in the investigatory stage and that the city's motion was inappropriate at that time. The October 27 letter from the Commission to the city attorney, Michael Caldwell, which was attached to the answer as an exhibit, stated that the plaintiff's charge had not been processed through investigation and conciliation within 180 days. The affirmative defense also said that, according to the records of the Commission, as of April 30, 1979, there were no charges or investigations pending before the agency relative to the city of Woodstock. The defendants attached as exhibits to their answer the complaint which the plaintiff filed with the Commission and the correspondence between the city and the Commission to which the defendants referred in their affirmative defense.
The gravamen of the defendants' affirmative defense was that section 9-102(B) of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 9-102(B)), upon which, they alleged, the plaintiff relied in bringing her lawsuit in the circuit court, was unconstitutional because it (1) denied the defendants equal protection of the law and due process by reviving a previously barred cause of action and (2) constituted prohibited special legislation. (See Wilson v. All-Steel, Inc. (1981), 87 Ill.2d 28, 33.) Consequently, they asserted that due to the unconstitutionality of section 9-102(B), the plaintiff's suit in the circuit court was barred.
The defendants filed a motion for summary judgment in which they raised the same matters asserted in their affirmative defense. Included as part of the motion for summary judgment were the same exhibits that were incorporated as part of the affirmative defense, as well as an affidavit by the city attorney. The record reveals that the plaintiff did not file a response to the motion for summary judgment, a counteraffidavit, or any other document.
In his affidavit, Michael Caldwell related that he was an attorney for the defendants and was authorized to make the affidavit in support of the motion for summary judgment. The affiant stated that he was the city attorney for the city for Woodstock during all times material to the present cause of action and that he was aware of the unfair employment practice claim which the plaintiff had filed with the Commission. He further stated that the exhibits which were included as part of the motion for summary judgment were true, correct, and accurate copies of all documents which either the city or the affiant had received in connection with the plaintiff's claim of an unfair employment practice.
The trial court granted the defendants' motion for summary judgment. In its order, the trial court concluded, in agreement with the defendants' theory, that section 9-102(B) of the Illinois Human Rights Act was unconstitutional in that it constituted special legislation and also denied the defendants equal protection and due process. After finding that no genuine issues of material fact existed, the court below entered judgment, as a matter of law, for the defendants and against the plaintiff.
The plaintiff filed a "motion to vacate summary judgment and for rehearing" on May 5, 1982. In that motion, she alleged that only count I of her complaint was predicated on section 9-102(B) of the IHRA; she stressed that counts II and III were based on a claim of a breach of her employment contract. Accordingly, she concluded that the defendants' motion for summary judgment was directed solely to count I of her complaint. In addition, she argued that material issues of fact existed with respect to counts II and III of her complaint. Lastly, the plaintiff maintained that the affidavit and supporting documents or exhibits which were included as part of the defendants' motion for summary judgment were legally deficient because they did not comply with the requirements of Supreme Court Rule 191 (91 Ill.2d R. 191). Attached to the plaintiff's motion were the affidavit of her attorney, her own affidavit, and numerous exhibits relating to her employment relationship with the city.
The court below denied the plaintiff's motion to vacate. The plaintiff appealed from both the original summary judgment and the subsequent denial ...