Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 2, 1985.
These appeals arise out of three separate actions for writs of mandamus to compel defendants, the Illinois Department of Human Rights and its Director, Joyce Tucker, to file complaints of employment discrimination with the Illinois Human Rights Commission. The trial court dismissed all three mandamus actions, and the separate appeals were consolidated for review. On appeal, plaintiffs contend they are entitled to writs of mandamus as a matter of law because the Department of Human Rights failed to take any action on their claims within the time frame mandated by statute. Defendants request that these appeals be dismissed because the trial court's orders are not final, because the plaintiffs failed to exhaust their administrative remedies, because the cases are moot, and because the cases are barred by the doctrine of sovereign immunity. We find we have jurisdiction to hear two of these cases and affirm the judgments of the trial court. The remaining appeal we dismiss for lack of jurisdiction.
Since these cases all involve defendants' obligations under the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq.), some analysis of that statute is required in order to fully understand the proceedings below. The Act is Illinois' general antidiscrimination statute and prohibits discrimination on the basis of such factors as race, sex, and religion. (Ill. Rev. Stat. 1981, ch. 68, par. 1-102(A).) Claims filed under the Act are initially processed by the Illinois Department of Human Rights (Department), whose primary function is to screen out frivolous cases. The statute requires that the complainant file his charge with the Department within 180 days from the date of the discriminatory conduct (Ill. Rev. Stat. 1981, ch. 68, par. 7-102(A)) and that within 10 days of filing, the Department serve a copy of the charge on the respondent (Ill. Rev. Stat. 1981, ch. 68, par. 7-102(B)). Thereafter, the Department is required to conduct a "full investigation of the allegations set forth in the charge," which may include a fact-finding conference. Ill. Rev. Stat. 1981, ch. 68, par. 7-102(C).
After completing this investigation, a Department investigator prepares a report for the Director, who must determine if there is "substantial evidence" supporting the charge. (Ill. Rev. Stat. 1981, ch. 68, par. 7-102(D).) If the Director resolves this question against the claimant, the charge is dismissed. However, if the Director determines there is substantial evidence and the parties cannot settle the claim through conciliation, then the Department prepares a written complaint stating the nature of the alleged civil rights violation and files it with the Illinois Human Rights Commission (Commission). The Commission acts as an adjudicatory body determining the merits of the complainant's charge and awarding the appropriate relief. (Ill. Rev. Stat. 1981, ch. 68, par. 8-106.) Of particular relevance to the cases at bar are the provisions of section 7-102(G) of the Act which impose a maximum time limit within which the Department must either issue a complaint to the Commission or dismiss the complainant's charge. This section provides in relevant part:
"When a charge of a civil rights violation has been properly filed, the Department, within 300 days thereof * * * shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 68, par. 7-102(G).
Here, all three plaintiffs had initially filed charges of employment discrimination against their employers. In each case, the Department failed to make a finding whether there was substantial evidence to support the charge within the 300-day statutory period. Plaintiffs then brought separate actions for writs of mandamus, claiming that section 7-102(G) requires the Department to automatically issue complaints to the Commission unless the Department finds there is no substantial evidence to support the charge within the 300-day deadline. The trial court found that it had no authority to order the Department to issue a backdated complaint which would bring the Department's action within the 300-day deadline. The court also found that the 300-day requirement set forth in section 7-102(G) was only directory, not mandatory, and therefore it refused to grant the writs of mandamus. In the cases of plaintiffs Franks and Ruffin, the trial court also found the causes moot because the Department had found lack of substantial evidence for issuance of complaints after plaintiffs had filed their mandamus actions. *fn1 The trial court dismissed the cases, stating in both instances:
"[T]his cause is dismissed with prejudice but without prejudice to plaintiff to pursue any available administrative review remedies under the Human Rights Act, and without costs to either side. There is no just reason for delaying appeal of this cause."
In the case of plaintiff Mead, the Department had still failed to take any action on her employment discrimination charge. The trial court dismissed Mead's action, stating:
"[T]his cause is dismissed without prejudice and with leave to refile if defendant fails to act within 45 days of entry of this order."
• 1-3 We will first address defendants' jurisdictional argument that the orders appealed from are not final. A final order is one which either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (People v. Illinois Commerce Com. (1983), 114 Ill. App.3d 384, 448 N.E.2d 986.) The mere inclusion of a finding that there is no just reason for delaying enforcement or appeal will not render an otherwise non-final order appealable. (Levy v. Metropolitan Sanitary District (1981), 100 Ill. App.3d 714, 715, 427 N.E.2d 377, aff'd (1982), 92 Ill.2d 80, 440 N.E.2d 881.) A dismissal with prejudice or without further leave to amend is final and appealable. Martin v. Marks (1980), 80 Ill. App.3d 915, 918, 400 N.E.2d 711.
• 4 Defendants contend that the orders entered in plaintiffs Franks' and Ruffin's cases are not final because the causes were dismissed without prejudice to plaintiffs' rights to pursue their administrative remedies for their underlying discrimination claims. However, defendants ignore those portions of the orders dismissing plaintiffs' mandamus complaints with prejudice. From the inclusion of this language, we must conclude that the trial court's order was intended to fix absolutely and finally plaintiffs' rights to the requested mandamus relief. Accordingly, we find that final judgments were entered on the issues presented by the pleadings in these two cases, and we, therefore have jurisdiction to hear these appeals. Flores v. Dugan (1982), 91 Ill.2d 108, 112, 435 N.E.2d 480; 73 Ill.2d R. 301.
• 5 However, the order entered in plaintiff Mead's case clearly lacks sufficient indicia of finality for us to have appellate jurisdiction. The order states that the dismissal is "without prejudice and with leave to refile" within 45 days. There is also no finding of no just reason for delay of enforcement or appeal. A dismissal order which states it is without prejudice and with leave to refile is on its face non-final and therefore non-appealable. (Flores v. Dugan (1982), 91 Ill.2d 108, 114, 435 N.E.2d 480.) Accordingly, we must dismiss plaintiff Mead's appeal for lack of appellate jurisdiction.
• 6, 7 Defendants also contend that the two remaining cases presently before us are moot because in each instance the Department has already issued complaints of unfair employment practices with the Commission. Plaintiffs contend that the cases are not moot because the complaints issued were not backdated to bring them ...