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Moriearty v. Civil Service Com.

OPINION FILED JANUARY 31, 1985.

SUE MORIEARTY, PLAINTIFF-APPELLANT,

v.

CIVIL SERVICE COMMISSION ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Plaintiff, formerly a supervising psychologist at Jacksonville Mental Health and Developmental Center (JMHDC), filed an action in the circuit court of Sangamon County for administrative review of defendant, Civil Service Commission's (CSC), denial of her appeal of her layoff. The Department of Personnel (DOP) had approved the layoff plan. The CSC accepted its staff findings and denied plaintiff's appeal without holding formal or informal hearings. The circuit court affirmed the CSC's decision.

Plaintiff argues that the CSC's decision was against the manifest weight of the evidence, that DOP Rule 2-525 was in conflict with section 8b.13 of the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 63b108b.13; Department of Personnel Rule 2-525), and that therefore, plaintiff's layoff was improper. Plaintiff also argues the statistical methodologies used in assessing disproportionate impact were rules as defined by The Illinois Administrative Procedure Act (IAPA) (Ill. Rev. Stat. 1981, ch. 127, par. 1001 et seq.). Therefore, they were ineffective, absent promulgation according to the IAPA.

We affirm.

Plaintiff is a white, non-handicapped female who is not a member of any national origin minority group. She was certified pursuant to the Personnel Code and had worked for the Department of Mental Health and Developmental Disabilities (DMHDD) since 1972. On September 28, 1981, the director of the DMHDD sent plaintiff a preliminary layoff letter notifying her that due to lack of funds and a reorganization plan, she would be laid off. The letter informed plaintiff of her appeal and transfer options under DOP Rules.

The director of the DMHDD requested DOP approval of the layoff plan. The DOP approved the plan.

Plaintiff appealed her layoff to the CSC, alleging that the entire layoff plan had a disproportionate impact on race and/or sex groups. Since the layoff plan violated DOP Rule 2-525, plaintiff argued her layoff was ineffective. (DOP Rule 2-525, amended June 6, 1976.) Plaintiff's statistical format considered all females, handicapped, minority surnamed, and nonwhite males who were sent a preliminary layoff letter.

The CSC staff investigated whether plaintiff's layoff violated the Personnel Code or Rules pursuant to section 10(13) of the Personnel Code. (Ill. Rev. Stat. 1981, ch. 127, par. 63b110(13).) The section enables the CSC to hear or conduct investigations as it deems necessary of appeals of layoff which are filed in a timely fashion by employees. The CSC determines whether the provisions of the Personnel Code or Rules relating to layoff have been complied with in the individual layoff. Ill. Rev. Stat. 1981, ch. 127, par. 63b110(13).

The CSC assessed the impact of the layoff plan on plaintiff's race and sex group. Three statistical methodologies were used. The Department of Human Rights (DHR) method used equal employment opportunity job categories. The DOP method used occupational series. Plaintiff was in the psychologist series. Both methodologies started with employees at JMHDC as the measuring group. However, there were insufficient employees in plaintiff's groups for valid statistical results, so department-wide data was used. The comparison was made on the basis of white females affected by the layoff as opposed to white males. No disproportionate impact was found.

The third method, the CSC method, considered two DHR job categories but stayed within JMHDC. Males affected by the layoff plan were compared to females affected by the layoff plan. "Affected" persons included all those sent a preliminary layoff notice, regardless of eventual retentions, position reductions, or position shifting. Within the facility, five out of 39 males were scheduled for layoff. There were nine out of 62.5 females scheduled for layoff. Roughly two-thirds of the employees at the facility were women. No disproportionate impact was found.

On August 20, 1982, the CSC adopted its staff's findings and denied plaintiff's appeal. On administrative review, the circuit court affirmed the CSC's decision.

• 1 Initially, we address defendant's contention, raised for the first time on appeal, that the circuit court affirmed the CSC's decision using an erroneous standard of review. Defendant argued that it may at its discretion conduct investigations or hearings into appeals of layoff. (Ill. Rev. Stat. 1981, ch. 127, par. 63b110(13).) Since denial of plaintiff's layoff came after an investigation, not a hearing, the court should limit its review to whether the agency's decision was arbitrary, capricious or an abuse of discretion.

The term "investigation" applies to a "non-judicial function of an administrative agency for a general one-sided presentation of issues without issues drawn, and `hearing' is appropriate to quasijudicial proceedings which include parties, issues of law and fact, and at which parties are entitled to be present, participate, and obtain records of the proceedings." (Roosevelt-Wabash Currency Exchange, Inc. v. Fornelli (1977), 49 Ill. App.3d 896, 899, 364 N.E.2d 449, 452.) Defendant cites two cases decided under the Fair Employment Practices Act (Ill. Rev. Stat. 1971, ch. 48, par. 851 et seq. — since repealed) in support of its position. We find them inapposite.

In Klein v. Fair Employment Practices Com. (1975), 31 Ill. App.3d 473, 334 N.E.2d 370, the Commission, acting on its investigator's recommendation, dismissed plaintiff's allegation of discrimination. The trial court affirmed the Commission's decision. The court on appeal remanded because an inadequate record had been presented on review. The court noted that dismissal of a charge on an investigator's recommendation was subject to the arbitrary and capricious standard of review. In Unger v. Sirena Division of Consolidated Foods Corp. ...


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