Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Plaintiff Peter Lee filed a charge of handicap discrimination with the Fair Employment Practices Commission (the Commission) on June 2, 1980. On June 30, 1981, the Commission filed a complaint against defendant, the Chicago Transit Authority (CTA), on plaintiff's behalf. Defendant filed a motion to dismiss alleging, inter alia, that plaintiff's charge was untimely filed and that, therefore, the Commission lacked jurisdiction to hear plaintiff's claim. The administrative law judge (ALJ) of the Illinois Human Rights Commission (successor to the Fair Employment Practices Commission) granted defendant's motion and issued a recommended order and decision on April 16, 1982. Plaintiff filed exceptions to the recommended order and decision, but the Commission affirmed the dismissal of the complaint on August 3, 1982.
Plaintiff filed a complaint for administrative review of the Commission's decision in the circuit court of Cook County. On May 5, 1983, the circuit court ruled that the Commission's order and decision be reversed and that the matter be remanded to the Commission for further proceedings. After a denial of its post-trial motion, defendant instituted this appeal.
Plaintiff became a bus servicer with defendant in 1974. On May 25, 1977, plaintiff injured his back while at work. Plaintiff twice attempted to return to work and reinjured his back on both occasions. Plaintiff wore a steel back brace and was under the care of an orthopedic specialist from June until August 24, 1977. On October 21, 1977, plaintiff reported to defendant that he was awaiting admission to a hospital. On December 13, 1977, plaintiff informed defendant that he was in traction but would report to work on December 19, 1977. On December 19, 1977, plaintiff reported to defendant that he would continue to be under a doctor's care until February 18, 1978. On that date, plaintiff reported for work wearing a steel back brace and was informed that he must procure a note from his physician concerning the reason for the brace, any lifting restrictions and the estimated length of time that plaintiff had to wear the brace. Plaintiff returned to work on February 27, 1978, with a note from his physician stating that the brace was intended to treat a back injury, that plaintiff should not lift over 100 pounds and that the length of time that the brace must be worn was unknown. (A bus servicer cleans, fuels, transports and repairs buses and must be able to lift and/or carry at least 100 pounds.) Because of the restrictions, plaintiff was not allowed to return to work. On March 27, 1978, defendant found plaintiff unfit to work as a bus servicer.
After March 27, 1978, plaintiff attempted to gain reinstatement to his position as bus servicer on four occasions. On August 17, 1978, plaintiff's physician released plaintiff to return to work without restrictions. Defendant informed plaintiff that his case would be reviewed and clarified. On October 16, 1978, defendant's physician approved plaintiff to return for nonoperating work (not bus service). Thereafter, plaintiff filed a grievance in accordance with his collective bargaining agreement in an attempt to regain his position as a bus servicer. This grievance was denied on January 15, 1979. Plaintiff then invoked a clause in his collective bargaining agreement which required that plaintiff be examined by a "disinterested" physician. It was this physician's opinion that plaintiff should not be allowed to return to work as a bus servicer, and on this basis defendant again denied plaintiff reinstatement on March 14, 1980. After this denial of reinstatement, plaintiff filed his charge of handicap discrimination with the Commission on June 2, 1980. A complaint was filed on June 30, 1981, but was dismissed on the ground that the discriminatory act cited in the complaint did not occur within 180 days of the filing of the charge. Plaintiff appealed to the circuit court of Cook County, which found that plaintiff's attempts to gain reinstatement should be considered in calculating the 180-day filing period and that these attempts rendered the filing of the charge timely. After a denial of its post-trial motion, defendant appealed from the circuit court's decision.
• 1 The general issue before this court is whether plaintiff's charge before the Commission was timely filed. In the instant case, plaintiff filed his charge with the Illinois Fair Employment Practices Commission on June 6, 1980. At that time, filing procedures before the Commission were governed by section 8 of "An Act to promote the public health, welfare and safety of the People of the State of Illinois by reducing denial of equality of employment opportunity." (Ill. Rev. Stat. 1975, ch. 48, par. 858.) In pertinent part, section 8 states:
"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 * * * in such detail as to substantially apprise any party properly concerned as to the time, place and facts with respect to such alleged unfair employment practice * * * the Commission shall promptly serve a copy of the charge within 10 days on the respondent * * *."
Plaintiff suggests that the 180-day limitation on filing a charge is permissive rather than mandatory and that therefore the Commission erred by strictly applying the 180-day limitation to the facts of his case. But in Board of Governors v. Rothbardt (1981), 98 Ill. App.3d 423, 424 N.E.2d 742, the court held that the 180-day filing requirement is jurisdictional. (98 Ill. App.3d 423, 426.) Thus, the Commission was not at liberty to relax the filing requirement and a failure to file within the prescribed limits deprives the Commission of jurisdiction.
• 2, 3 Alternatively, plaintiff contends that by its misleading conduct defendant prevented plaintiff from timely filing his charge of discrimination. Plaintiff cites the following four instances as examples of the misleading conduct engaged in by defendant.
(1) The CTA told Lee on August 17, 1978, that "his case would be reviewed and clarified";
(2) Lee reported to the CTA on October 16, 1978, with the approval of the CTA, for nonoperating work;
(3) Lee filed a grievance to be reinstated to operating work, pursuant to his collective bargaining agreement, which was responded to and eventually denied by the CTA on January 15, 1979; and
(4) The CTA had Lee examined by another physician on March 14, 1980, pursuant to Lee's collective bargaining agreement.
Plaintiff correctly asserts that if his charge was untimely filed because of defendant's misleading conduct, defendant will be estopped from raising the limitations period as a defense. (See Sabath v. Morris Handler Co. (1968), 102 Ill. App.2d 218, 223, 243 N.E.2d 723.) But defendant will only be estopped if it was conduct initiated by defendant which induced plaintiff not to act. (See 102 Ill. App.2d 218, 223.) In the instant case, the four examples of misleading conduct ...