Appeal from the Circuit Court of Du Page County; the Hon. S.
Bruce Scidmore, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
This is an interlocutory appeal from the circuit court of Du Page County brought pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308) by defendants, the Human Rights Commission (Commission), the Department of Human Rights (Department) and Seatt Corporation raising two issues: (1) whether the 180-day filing requirement in section 7-102(A)(1) of the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 7-102(A)(1)) is jurisdictional or in the nature of a statute of limitations subject to the doctrines of waiver, tolling and equitable estoppel, and (2) whether the Commission erred in not granting plaintiff a hearing on his allegations that such doctrines should apply in this case.
Plaintiff, John L. Pickering, was employed by Seatt Corporation as its national sales manager until his termination on July 31, 1983. Shortly thereafter plaintiff consulted with an attorney concerning his discharge. The attorney, however, took no legal action. On July 20, 1984, almost one year after his discharge, plaintiff filed a pro se charge of discrimination with the Department alleging that he was fired because of his age (60) and physical handicap, the latter being a serious eye condition for which plaintiff was to undergo surgery. Plaintiff stated in his charge that he signed a release of all claims against Seatt that might arise as a result of his termination but claimed he did so only because Seatt threatened to refuse to pay severance pay and other benefits as well as his medical bills for his upcoming eye surgery. Plaintiff further alleged that he was the only employee who had ever been asked to sign such a release and that he subsequently learned he was fired solely because of his age and physical handicap.
On October 2, 1984, the Department dismissed the charge on the ground that it lacked jurisdiction to pursue the allegations since the charge had not been filed within the 180-day time limit as required by section 7-102(A)(1). Plaintiff, who by now had retained another attorney, sought review of the Department's dismissal before the Commission. In his request for review, plaintiff claimed he had been coerced into signing the release and that the "release coupled with the circumstances of [Seatt's] actions after the termination of [plaintiff] in encouraging the hope of settlement and in other regards, constituted a waiver, tolling and equitable estoppel of the 180-day limitation period." Plaintiff did not submit any evidence to substantiate his allegations, although section 8-103(B) of the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 8-103(B)) authorizes the Commission to consider any argument and supplemental evidence which is timely filed. Plaintiff did, however, in addition to asking for a reversal of the Department's decision, request that the cause be remanded for a hearing on the tolling question and that he be given the opportunity to submit factual materials and legal authorities to support his allegations.
In its response to plaintiff's request for review, the Department noted that while plaintiff did not file his discrimination charge until one year after his termination, he sought legal advice immediately. The Department pointed out that in August 1983 (less than one month after his discharge) plaintiff's attorney wrote to Seatt seeking to negotiate a settlement and threatening legal action if the demands were not met. Arguing that plaintiff clearly knew of his legal options within the 180-day time period, the Department maintained plaintiff "could have and should have" filed his discrimination charge within 180 days of his termination. Because the charge was not timely filed, the Department asserted, it lacked jurisdiction to entertain plaintiff's claim of discrimination. The Commission sustained the Department's dismissal of plaintiff's charge, citing the lack of jurisdiction as the reason for its decision.
Thereafter, plaintiff filed a complaint for administrative review in the circuit court of Du Page County, arguing that the 180-day time period in section 7-102(A)(1) was not jurisdictional but was in the nature of a statute of limitations subject to the doctrines of waiver, tolling and equitable estoppel. Plaintiff also alleged in general terms that there were "strong equitable considerations" for tolling the time limit. Seatt moved for summary judgment on the grounds that plaintiff's charge was not timely filed and that plaintiff had failed to allege any specific basis either in his complaint or before the administrative agencies to justify tolling the filing period. Plaintiff then filed a motion for reversal of the Commission's decision alleging that there were "substantial factual contentions" which would justify tolling the filing deadline. Plaintiff again charged that he had been coerced into signing the release, and he pointed out that a malpractice action was then pending against the attorney he originally consulted in August of 1983. Plaintiff urged the court to remand the case for further evidentiary proceedings on the tolling question.
The trial court reversed the Commission's jurisdictional determination and remanded the cause to the Commission with orders that it conduct a hearing concerning the application of the principles of waiver, tolling and equitable estoppel. The court based its ruling on Lee v. Human Rights Com. (1984), 126 Ill. App.3d 666, which held that an employer could be estopped from raising the 180-day filing requirement in the Fair Employment Practices Act (now the Illinois Human Rights Act) as a defense under certain circumstances.
The Illinois Human Rights Act consolidated various antidiscrimination statutes that had been scattered throughout the Illinois Revised Statutes, although in certain respects the Act affords individuals greater protection against unlawful discrimination than had previously existed. The acts that were repealed and replaced by the Human Rights Act include the Fair Employment Practices Act (formerly Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq..), the Equal Opportunities for the Handicapped Act (formerly Ill. Rev. Stat. 1979, ch. 38, par. 65-21 et seq.) and "AN ACT to prohibit unjust discrimination in employment because of age * * *" (formerly Ill. Rev. Stat. 1979, ch. 48, par. 881 et seq.).
The Human Rights Act is comprised of various articles setting forth the purposes of the Act, the type of conduct constituting civil rights violations, and the procedures to be followed to redress a claim of unlawful discrimination. As to the latter, the provisions contained in Article 7 require a complainant to file a charge with the Department of Human Rights "[w]ithin 180 days after the date that a civil rights violation allegedly has been committed." (Ill. Rev. Stat. 1983, ch. 68, par. 7-102(A)(1).) The threshold question to be decided here is whether the 180-day filing requirement is a jurisdictional limitation preventing the Department from pursuing a charge that is not timely filed.
There is, of course, an important and fundamental distinction between limitations which are jurisdictional and those considered to be statutes of limitations. As the Illinois Supreme Court recently explained in Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill.2d 202, 209-10:
"Statutes of limitation only fix the time within which the remedy for a particular wrong may be sought. (See Smith v. Toman (1938), 368 Ill. 414, 420.) They `are procedural in nature [citations] and are not designed to alter substantive rights * * *.' Wilson v. Bishop (1980), 82 Ill.2d 364, 373.
On the other hand, `statutes which create a substantive right unknown to the common law and in which time is made an inherent element of the right so created, are not statutes of limitation.' (Smith v. Toman (1938), 368 Ill. 414, 420.) Such a time period `is more than an ordinary statute of limitations' (North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 519); it `is a condition of the * * * liability itself and not of the remedy, alone. * * * It goes to the existence of the right itself.' 295 Ill. 515, 519-20.) Such a provision is a condition precedent to the plaintiff's right to seek a remedy. (North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 520; Demchuk v. Duplancich (1982), 92 Ill.2d 1, 9.) Such statutes set forth the requirements for bringing the right to seek a remedy into existence."
In this case plaintiff contends that the filing deadline is not jurisdictional but rather constitutes a statute of limitations, which may properly be subject to the doctrines of tolling, waiver and equitable estoppel under appropriate circumstances. Plaintiff bases this assertion on the fact that "the causes of action herein are constitutional in their essence, being based on specific provisions of our State Constitution." As such, he maintains that the Human Rights Act merely provides the procedural framework for implementing the substantive rights created by the Illinois Constitution. To further support his position, plaintiff observes that the Act's prohibitory provisions the statutory embodiment of the constitutional rights are separated from those sections, such as 7-102(A)(1), which establish the procedure for filing a charge of discrimination. This separation, plaintiff asserts, indicates that time is not an inherent element of the protection granted individuals against unlawful discrimination. Plaintiff also relies heavily on Zipes v. Trans World Airlines, Inc. (1982), 455 U.S. 385, 71 L.Ed.2d 234, 102 S.Ct. 1127, wherein the United States Supreme Court held that the time limit in title VII of the Civil Rights Act of 1964, requiring a charge of discrimination to be filed with the Equal Employment Opportunity Commission within 90 days [now 180 days] of the alleged unlawful conduct, was not a jurisdictional prerequisite to bringing an action in Federal court but rather was in the nature of a statute of limitations subject to the doctrines of waiver, estoppel and equitable tolling.
Plaintiff's contention that the 180-day period at issue here is not jurisdictional cannot be sustained. Turning first to his claim that the Human Rights Act only establishes the procedural framework for enforcing the substantive rights created by the Illinois Constitution, it is true as plaintiff points out that one of the purposes of the Act is to secure and guarantee the rights established by sections 17, 18 and 19 of article I of the Illinois Constitution. (Ill. Rev. Stat. 1983, ch. 68, par. 1-102(C).) However, none of those sections protects an individual against age discrimination. Section 19 does prohibit discrimination on the basis of physical and mental handicap but only with respect to "the hiring and promotion practices" of an employer. (Ill. Const. 1970, art. I, sec. 19.) In Yount v. Hesston Corp. ...