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09/14/87 Lawrence Polacek, v. the Human Rights

September 14, 1987

LAWRENCE POLACEK, APPELLANT

v.

THE HUMAN RIGHTS COMMISSION ET AL., APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

513 N.E.2d 1117, 160 Ill. App. 3d 664, 112 Ill. Dec. 508 1987.IL.1335

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Petitioner, Lawrence Polacek, was employed by respondent Amax Zinc, Inc., at its plant in Sauget, Illinois, until he was laid off by that company on September 20, 1983, because he was unable to perform the duties and responsibilities required of his position. Petitioner has developed carpal tunnel syndrome in his hands and wrists, which prevents him from executing his assigned duties. As a result of this layoff, petitioner filed a grievance under the grievance procedure provided for by the collective bargaining agreement which covered his employment. The grievance went to arbitration; and on December 5, 1984, the arbitrator entered his decision denying petitioner's grievance. Petitioner thereafter filed a charge of a civil rights violation with the Department of Human Rights (Department) on April 19, 1985, alleging that his layoff on September 20, 1983, violated the Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.) and that since his layoff, Amax had not hired him back. In that charge, petitioner stated the alleged civil rights violation occurred on September 20, 1983, the date he was laid off from work. However, through a separate letter to the Department, petitioner contended that the civil rights violation continued until the date of the arbitrator's decision on December 5, 1984. Subsequently, petitioner submitted a supplement to his complaint, alleging that the violation was still continuing because Amax had not rehired him.

Petitioner's charge was assigned to an investigation committee of the Department of Human Rights for examination. An investigation report was issued, finding petitioner did not comply with the Department's rule and the Human Rights Act provision requiring charges brought to the Department of Human Rights be filed within 180 days of the alleged violation. Stating that the alleged violation that triggered the running of this period was petitioner's layoff on September 20, 1983, rather than the arbitrator's decision on December 5, 1984, the report recommended that the Department lacked jurisdiction to investigate petitioner's charge. Concurring with this finding and recommendation, the Department of Human Rights dismissed petitioner's charge for lack of jurisdiction on February 3, 1986.

Pursuant to the rules of the Human Rights Commission (Commission), petitioner requested review by the Commission of the Department's dismissal of his charge. On June 23, 1986, the Human Rights Commission, having reviewed the matter, found in accord with the Department. Explicitly stating petitioner's underlying cause of action arose on the date he was laid off, September 20, 1983, the Commission determined petitioner's charge was filed untimely and entered its order dismissing petitioner's charge for lack of jurisdiction. It is from this June 23, 1986, order that petitioner brings his present petition for administrative review. The general issue before this court is whether petitioner's charge before the Commission was timely filed.

In pertinent part, section 7 -- 102(1) of the Illinois Human Rights Act provides:

"Within 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department . . .." (Ill. Rev. Stat. 1985, ch. 68, par. 7-102(1).)

This 180-day filing requirement is jurisdictional. (Board of Governors of State Colleges and Universities v. Rothbardt (1981), 98 Ill. App. 3d 423, 426, 424 N.E.2d 742, 744-45.) Failure to file a charge within the prescribed time deprives the Department and the Commission of jurisdiction to proceed further. Lee v. Human Rights Com. (1984), 126 Ill. App. 3d 666, 669, 467 N.E.2d 943, 945.

The facts in the instant case are not contested. Petitioner was laid off from his job at Amax Zinc, Inc., on September 20, 1983, because he could not perform his job responsibilities. After petitioner's union grievance was denied, he filed the instant charge of a civil rights violation with the Department on April 19, 1985, approximately 575 days after the date he was laid off.

Petitioner first contends that the relevant date for commencing the running of the 180-day filing period was the date the arbitration decision denying the grievance was entered, December 5, 1984. Second, he contends that the violation is continuing since Amax has not rehired him. We note that absent any event which would have tolled the filing period, petitioner's charge, filed 575 days after his discharge, was untimely filed and compelled its dismissal for lack of jurisdiction.

We first address ourselves to petitioner's assertion that his layoff by Amax was just a "temporary decision" and that the decision did not become final until the arbitration decision was rendered. In effect, petitioner urges that the grievance procedure should toll the running of the 180-day filing period. In this regard, we note that it is appropriate to examine Federal authority "because of the similarities between the Federal and Illinois fair employment enactments" (Lee v. Human Rights Com. (1984), 126 Ill. App. 3d 666, 672, 467 N.E.2d 943, 947), and an examination of Federal authority indicates that plaintiff's contention that the 180-day filing period was tolled because of the intervening grievance procedure has been considered and rejected by the United States Supreme Court. (Delaware State College v. Ricks (1980), 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498; International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc. (1976), 429 U.S. 229, 50 L. Ed. 2d 427, 97 S. Ct. 441.) Delaware State College and Electrical Workers not only specifically hold that the pendency of a grievance procedure does not toll the running of a limitations period, but the Delaware State College case explicitly provides that pursuing a grievance does not make the earlier decision to discharge only temporary. (Delaware State College v. Ricks (1980), 449 U.S. 229, 261, 66 L. Ed. 2d 431, 441, 101 S. Ct. 498, 505-06.) In fact, Delaware State College holds that mere notification of a discharge, rather ...


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