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12/14/87 Glassworks, Inc., v. the Human Rights

December 14, 1987

GLASSWORKS, INC., PLAINTIFF-APPELLANT

v.

THE HUMAN RIGHTS COMMISSION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

518 N.E.2d 343, 164 Ill. App. 3d 842, 115 Ill. Dec. 818 1987.IL.1844

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Djeadj Molnar (Molnar), the complainant, filed a "charge of discrimination" against Glassworks, Inc. (Glassworks), with the Illinois Department of Human Rights . The complaint alleged that Glassworks terminated Molnar from his position with them because of his national origin as a Yugoslavian and that Glassworks' action constituted discrimination under the Illinois Human Rights Act. (Ill. Rev. Stat. 1985, ch. 68, par. 8-101 et seq.) Thereafter, when Glassworks failed to appear for a fact-finding hearing, Glassworks was defaulted by the DHR and, on appeal, the Illinois Human Rights Commission affirmed the default and remanded the matter to the DHR for a hearing on specific damages. Subsequently, the DHR entered an order which found Glassworks liable by reason of the default judgment and awarded Molnar damages; the HRC then affirmed this order. However, before the order could be enforced, Glassworks filed a complaint for review of the HRC order in the circuit court of Cook County. In response, Molnar moved in the circuit court to dismiss Glassworks' complaint for administrative review on the grounds that Glassworks failed to properly preserve its right to review. After a hearing, the court granted Molnar's motion. Glassworks then filed a notice of appeal and this appeal followed.

The factual and procedural background of this case is important in considering the issues raised in this appeal. Molnar, a native of Yugoslavia, was employed by Glassworks as a customized mirror installer from September 17, 1979, until his discharge on October 20, 1982. On November 10, 1982, Molnar filed the charge herein alleging a civil rights violation against Glassworks pursuant to the Human Rights Act. (Ill. Rev. Stat. 1985, ch. 68, par. 8-101 et seq.) Based on this action, Victoria Holmes, a case investigator for the DHR, began an investigation of the allegations in an effort to verify the information set forth in Molnar's charge. Upon contacting Glassworks, she was referred by Glassworks to their attorney, Jerome Feldman. The case investigation notes of Holmes indicated that Glassworks' officers, Mr. and Mrs. Harris, and Glassworks' attorney, Mr. Feldman, were uncooperative. Specifically, Holmes' investigative report noted that Feldman hung up on her when she telephoned him to set a fact-finding conference with Glassworks' officers, Molnar, and Molnar's attorney on January 20, 1983. Thereafter, on January 25, 1983, Holmes sent Feldman and the Harrises a notice that a fact-finding conference would be held on March 2, 1983. Holmes also sent to Feldman a questionnaire to complete on behalf of Glassworks as part of the case investigation. The questionnaire provided that it was to be returned to Holmes by February 10, 1983, but an incomplete set of answers to the questionnaire was not returned until February 28, 1983 (the final documents necessary to complete the answers were apparently filed March 23, 1983). When Holmes contacted Feldman's office on February 14, 1983, to find out why the questionnaire had not been returned, she was told by a secretary that Feldman was unavailable and could not speak to her. Since she was unable to speak with Feldman, she advised his office that she would grant a short extension of time for filing the questionnaire until February 18, 1987.

Subsequently, on February 28, 1983, Glassworks' attorney, Feldman, contacted Holmes and said that he had completed most of the questionnaire, but requested an additional extension of time to file the employee time cards that had been requested in the questionnaire. He promised to send the completed portion of the questionnaire to the HRC on that very day. After Holmes had spoken with Feldman, she spoke to Molnar's attorney, Timothy Bridges, who refused to agree to an extension. Holmes then immediately telephoned Feldman that same day to notify him that an extension would not be granted. However, Feldman insisted that there had been an agreement concerning an extension to March 23, 1983, and stated that he would not attend the fact-finding conference scheduled for March 2, 1983. After the conversation, Holmes sent Feldman another letter advising him of the consequences of not appearing at a fact-finding conference, and specifically warned him that failure to appear would result in an order of default being entered against his clients. Later, Feldman sent a letter to both the director and the manager of the charge processing division of the DHR, dated March 1, 1983, in which he accused Holmes and Molnar's attorney, Mr. Bridges, of acting in collusion against him and asserted that Holmes had a personal prejudice against him because he was a "Jewish" attorney. In the letter, he also requested that, because of this prejudice, a new case investigator should be appointed to the case and that he should be granted a continuance of the fact-finding conference scheduled for March 2.

On March 2, 1983, the fact-finding conference was held and Molnar, Bridges, and Feldman's partner, Mr. Romer, attended. Romer read a statement to Holmes which informed her that the Harrises were on vacation and were unable to attend and that because of prior trial commitments, Feldman also would not attend. Glassworks was allowed until April 19, 1983, to avoid the entry of a default judgment by submitting a statement of reasons justifying Feldman's and the Harrises' failure to attend the fact-finding conference.

While Glassworks did not file a statement of reasons on April 19, 1983, it did file a "motion to vacate the proposed entry of default," citing Holmes' abusive attitude as its reason for failing to answer the questionnaire within the time provided, and again attempted to argue the merits of the case. The DHR director, however, found that this was an inadequate response concerning Feldman's and the Harrises' failure to attend the March 2 fact-finding conference. Accordingly, the DHR denied the motion and entered a default judgment against Glassworks.

The order of default entered against Glassworks specifically found that the April 19, 1983, response failed to show good cause for Glassworks' failure to attend the scheduled hearing. Thereafter, Glassworks appealed the entry of default to the HRC. The HRC, on August 31, 1983, affirmed the order of default and noted in its order that Glassworks was given 36 days' prior notice of the scheduled conference and that Glassworks had made no request for a continuance until two days before the hearing. The HRC concluded, in its order:

"At that point Mr. and Mrs. Harris were already out of town. Accordingly, we believe the fact that Mr. and Mrs. Harris were on vacation at the time of the fact finding hearing was not -- under the circumstances of this case -- 'good cause' for their failure to appear."

The HRC then remanded the case to the administrative law division for the sole purpose of holding a hearing on the issue of damages.

On December 2, 1983, a hearing was held on the issue of damages. At the Conclusion of this hearing, Molnar requested that Glassworks be ordered to cease and desist from discriminating against individuals on the basis of national origin, that he be reinstated, that he be awarded back pay of $28,368, and that he be awarded attorney fees as provided for in section 8-108of the Human Rights Act. (See Ill. Rev. Stat. 1985, ch. 68, par. 8-108.) The administrative law Judge issued an interim recommended order and decision on October 16, 1984, which found Glassworks guilty of a civil rights violation committed against Molnar, as a matter of law, because Glassworks had been found to be in default. Additionally, the order found that Molnar had attempted to mitigate his damages since his termination from Glassworks and that Molnar was entitled to damages, as requested, in the amount of the difference between what he earned at Glassworks and what he was currently earning. The ...


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