The opinion of the court was delivered by: Nordberg, District Judge.
MEMORANDUM OPINION AND ORDER
This employment discrimination action was filed by the
plaintiff on December 17, 1978. Count I alleged a violation of
the Equal Pay Act, 29 U.S.C. § 206(d). Count II alleged a
violation of the Illinois Fair Employment Practices Act
("FEPA"), Ill. Rev.Stat. ch. 48, par. 851 et seq. (now the
Illinois Human Rights Act). Count III alleged a claim under
Article I, section 17 of the Illinois Constitution, which
prohibits employment discrimination in hiring and promotions.
Plaintiff's case was tried before a jury, which returned a
verdict in favor of the defendant on all counts. On appeal to
the Seventh Circuit Court of Appeals, 661 F.2d 647, the
judgment of the trial court was sustained as to Counts I and
III, and was reversed and remanded on Count II.
Defendants have now moved to dismiss Count II of this action on
the ground that, in light of recent United States Supreme Court
and Illinois Supreme Court decisions, this Court does not have
jurisdiction over plaintiff's claim under the Illinois Fair
Employment Practices Act.
Plaintiff originally filed a charge of employment
discrimination against the defendant with the Fair Employment
Practices Commission ("FEPC") on September 27, 1976. Section
8.01 of the FEPA required the FEPC to "issue or serve a
complaint" or "order that no complaint be issued" within 180
days after the filing of a charge. The FEPA failed to act on
plaintiff's charge within 180 days. The Illinois Supreme Court
then held, in Springfield-Sangamon Regional Plan Comm. v. Fair
Employment Practices Commission, 71 Ill.2d 61, 15 Ill. Dec.
623, 373 N.E.2d 1307 (1978), that the 180-day time limitation
is mandatory, and that the failure of the FEPC to act on a
charge within 180 days deprives the FEPC of jurisdiction to
adjudicate the charges. Judicial review of a charge was
available only under the Illinois Administrative Review Act,
Ill.Rev.Stat. ch. 110, par. 264 et seq. Under this act,
review is permitted only after the FEPC has adjudicated the
charge. Therefore, after the Springfield decision, if the
FEPC did not make a timely adjudication of a charge, judicial
review of the charge was foreclosed.
To remedy this situation, the Illinois General Assembly passed
Public Act 80-1455, codified as Ill.Rev.Stat. ch. 48, par.
858.01a (1979), which created a new cause of action for those
individuals whose claims were barred under the Springfield
decision. The Illinois Supreme Court subsequently held that
this act was unconstitutional as prohibited special legislation
in Wilson v. All-Steel, Inc., 87 Ill.2d 28, 56 Ill.Dec. 897,
428 N.E.2d 489 (1981). Thus, the only statute providing
jurisdiction for judicial review of a charge filed with the
FEPC which was not processed within 180 days has been held
unconstitutional, thereby depriving this Court of its
jurisdictional basis for reviewing plaintiff's claim under the
However, the United States Supreme Court has recently ruled, in
Logan v. Zimmerman Brush Co., 455 U.S. 509, 102 S.Ct. 1198,
71 L.Ed.2d 379 (1982), that a decision
by the Illinois Supreme Court interpreting a similar time limit
under the FEPA as mandatory violated the claimant's right to
due process.*fn1 The Court in Logan held that such an
interpretation arbitrarily deprived claimants of their right to
an agency determination on their charges. The court held that
the process due to the claimants was to have their charges
processed by the FEPC. Applying the identical analysis to the
Illinois Supreme Court's decision in Springfield-Sangamon,
the Court concludes that the plaintiff in this case is entitled
to a determination of her employment discrimination charge by
the FEPC (now the Illinois Human Rights Commission).
The Illinois appellate court faced the same situation presented
in this case in Lott v. Governor's State University, 106 Ill. App.3d 851,
62 Ill.Dec. 543, 436 N.E.2d 569 (1982). The Court
in Lott concluded that the plaintiff was entitled to have the
Department of Human Rights and the Human Rights Commission
consider the merits of his charge. The Court then directed the
trial court to permit the plaintiff to join these state
entities as defendants. Following the decision in Lott, the
Court will permit the plaintiff in this case to join the proper
parties so the Court may order that the appropriate action be
taken with respect to plaintiff's discrimination charge.
Accordingly, plaintiff is granted 28 days from the date of this
order to amend the complaint ...