APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
THE CITY OF BELLEVILLE, Board of Police and Fire
522 N.E.2d 268, 167 Ill. App. 3d 834, 118 Ill. Dec. 813 1988.IL.492
Petition for review of order of Human Rights Commission.
JUSTICE KARNS delivered the opinion of the court. LEWIS and CALVO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS
Craig Stafford filed a complaint with the Illinois Human Rights Commission against the Board of Fire and Police Commissioners of Belleville (the Board). The complaint alleged handicap discrimination in violation of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.) (hereinafter HRA or Act). The record indicates that the Board refused to appoint Stafford to the position of probationary patrol officer because he failed to meet the minimum vision standard required for appointment. Stafford maintained in his complaint that the particular vision standard relied on by the Board constituted unlawful discrimination within the meaning of the HRA. After a hearing, the Administrative Law Judge found that the Board had unlawfully discriminated against Stafford on the basis of a physical handicap and recommended that, in addition to back pay and attorney fees, he be awarded the position of patrol officer without having to serve the usual probationary period. The HRC adopted the ALJ's finding and recommendations, but awarded Stafford the position of probationary patrol officer, holding that this was the position denied Stafford and such relief would place him in the position he would have been in absent the Board's discriminatory conduct. The Board appeals that part of the decision finding that it unlawfully discriminated against Stafford, and Stafford appeals that part of the decision awarding him only probationary patrol officer status.
In 1982, Craig Stafford applied for the position of probationary patrol officer for the City of Belleville. At the time Stafford was already employed by Belleville as an auxiliary police officer. Appointments of probationary patrol officers were made by the board of fire and police commissioners. As part of the application process, the Board requested that Stafford take an examination for the position. Based on his score of 77.97%, Stafford's name was placed on the eligibility list in the number one position.
The Board made Stafford's appointment conditional on his passing a physical examination, including a vision test. The ophthalmologist Stafford was referred to reported to the Belleville police pension Board that Stafford had uncorrected vision of 20/100- in his right eye, 20/100- in his left eye and 20/80 in both eyes when tested together. He also reported that with corrective lenses, Stafford had 20/20 vision in each eye separately and in both eyes together.
At the time of Stafford's application, the Board maintained a minimum vision requirement for probationary police officers of 20/30 uncorrected. The record indicates that this requirement did not apply to officers already on the force and that there were some officers who did not meet this standard. As Stafford failed to meet the required standard, he was denied the position of probationary patrol officer and terminated from his position as an auxiliary officer.
Initially, we must address the issue of the HRC's jurisdiction, which the Board raised for the first time in its reply brief. The Board maintains that by virtue of section 3-148 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 3-148), the HRC is without jurisdiction to hear Stafford's complaint. Section 3-148 provides that "[the] provisions of the Administrative Review Law . . . shall apply to and govern all proceedings for the judicial review of final administrative decisions of the retirement board." (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 3-148.) The Board cites Board of Trustees of the Police Pension Fund v. Human Rights Comm'n (1986), 141 Ill. App. 3d 447, 490 N.E.2d 232, to support its position. In Urbana, an applicant for the position of policeman applied to participate in the city's police pension fund. The board of trustees of the fund denied the application. Instead of appealing the denial through administrative channels, the applicant filed a charge of discrimination with the Department of Human Rights. The board sought a circuit court order prohibiting the HRC from proceeding on the complaint. The trial court declined to issue an order of prohibition, but this court reversed, holding that the Illinois Pension Code gave the board exclusive authority over issues of eligibility to participate in the police pension fund and implicitly gave the pension fund board exclusive authority over certain civil rights violations. In reaching its Conclusion, the Urbana court relied on the long-standing rule that where expressly adopted, the Administrative Review Law is the exclusive method of review of the decision of an administrative agency. (Mason v. Board of Trustees of Southern Illinois University (1984), 125 Ill. App. 3d 614, 617, 466 N.E.2d 365, 367-68.) Our recent decision in City of Benton Police Department v. Human Rights Comm'n (1987), 160 Ill. App. 3d 55, 513 N.E.2d 29, followed Urbana.
This argument was raised for the first time in the Board's reply brief. Illinois Supreme Court Rule 341(e)(7) requires that all arguments must be raised in the opening brief and any points not raised are waived and shall not be raised in the reply brief. (107 Ill. 2d R. 341(e)(7).) Although the Board contends that this is a question of subject matter jurisdiction, which can be raised at any time, the decision in Urbana makes clear that this is not a question of subject matter jurisdiction. The HRC has subject matter jurisdiction over alleged civil rights violations. The appropriate inquiry is whether the Commission has legitimate authority to proceed on the complaint. (Urbana, 141 Ill. App. 3d at 451-52, 490 N.E.2d at 234.) As this is not a question of subject matter jurisdiction, it cannot be raised for the first time in the Board's reply brief.
Even if this argument had been properly raised by the Board, it would not prevail. The statute relied upon by the Board and the cases cited in support of its position are not authority supporting the Board's argument. The decision not to hire Stafford was made by the Board of Fire and Police Commissioners, whose actions are controlled by the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 10-2.1-1 et seq.). This does not involve the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 3-101 et seq.) and section 3-148 of the Pension Code does not apply.
A charge of discrimination under the Illinois Human Rights Act utilizes the same analytical framework adopted by the Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, and later refined in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089. Board of Education of Waterloo ...