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07/20/88 Mary Ann Johnson, v. the Human Rights

July 20, 1988

MARY ANN JOHNSON, PETITIONER

v.

THE HUMAN RIGHTS COMMISSION, RESPONDENT (FREY BINDERY COMPANY, RESPONDENT). -- FREY BINDERY COMPANY, PETITIONER,

v.

THE HUMAN RIGHTS COMMISSION, RESPONDENT (MARY ANN JOHNSON, RESPONDENT)

"MAKE COMPLAINANT WHOLE. TAKE SUCH ACTION AS MAY BE NECESSARY TO MAKE THE INDIVIDUAL COMPLAINANT WHOLE." (ILL. RE

v.

STAT. 1985, CH. 68, PAR. 8-108.)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

527 N.E.2d 883, 173 Ill. App. 3d 564, 123 Ill. Dec. 245 1988.IL.1122

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

The cause of action giving rise to this appeal originated with a complaint filed by complainant, Mary Ann Johnson, pursuant to the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.) with what is now known as the Illinois Human Rights Commission (Commission) on January 5, 1979. In her complaint, Johnson alleged that she was unlawfully terminated from her employment with respondent, Frey Bindery, on December 12, 1978, for racial reasons. On March 25, 1982, the Commission found in Johnson's favor, ordered her reinstated to her former position and awarded her full back pay and a restoration of all her previously existing fringe benefits. Thereafter, Frey Bindery filed an action in the circuit court of Cook County appealing the Commission's decision pursuant to the Illinois Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.). The circuit court reversed the Commission's decision. On appeal, we reversed the decision of the circuit court, affirmed the findings of the Commission and remanded the case to the Commission for a determination as to the amount of relief due Johnson.

On remand to the Commission, the parties eventually stipulated to the amount of back pay and other benefits due Johnson pursuant to the Commission's order of March 25, 1982. Eventually, the parties agreed that Johnson was entitled to $21,679 in back wages and vacation pay and a stipulation to this effect was entered. These funds were immediately tendered to Johnson. Thereafter, on November 2, 1984, the parties also stipulated that Johnson was due $20,000 in overtime compensation and a check was tendered to her in that amount. On July 24, 1986, the Commission entered an order to which it stated that: (1) Johnson was only entitled to attorney fees for legal work before the Commission following remand of the case from the appellate court; (2) Johnson was entitled to post-judgment interest from the date of the Commission's original order of March 25, 1982, and (3) Johnson was not entitled to prejudgment interest. Both parties filed appeals from the Commission's decision, which we consolidated for review. We affirm in part and reverse in part.

On appeal, Johnson assigns as error the Commission's denial of her request for (1) prejudgment interest and (2) attorney fees for the proceedings conducted on both administrative review and on appeal. Frey Bindery, however, argues that the Commission (1) lacks the statutory authority necessary to award Johnson either post-judgment or prejudgment interest; (2) the Commission erred in awarding Johnson post-judgment interest; and (3) the Commission erred in awarding Johnson attorney fees for the remanded proceedings before the Commission. For its part, the Commission contends that its decisions concerning the issues raised by Johnson were proper.

We initially address Johnson's argument concerning prejudgment interest. Johnson assigns as error the Commission's denial of her request for prejudgment interest and relies on section 8 -- 108of the Act in support of her argument. At the time of Johnson's claim, section 8 -- 108provided:

Based on this general language, Johnson argues that the Commission possesses the statutory authority necessary to award prejudgment interest. We disagree.

Illinois law is clear that in the absence of a statutory provision or an agreement of the parties, prejudgment interest is not an available remedy. (Alguire v. Walker (1987), 154 Ill. App. 3d 438, 447, 506 N.E.2d 1334, 1341; Advance Mortgage Corp. v. Concordia Mutual Life Association (1985), 135 Ill. App. 3d 477, 485, 481 N.E.2d 1025, 1031.) Here, there is neither a statute nor an agreement between Johnson and Frey Bindery authorizing the imposition of prejudgment interest. We do not believe that the right to prejudgment interest can be implied from a statutory provision. To the contrary, we believe that such a remedy must be clearly and specifically provided for by the legislature. *fn1 We therefore find that based on the fact that there was no statutory authority to make such an award, the Commission reached the appropriate decision when it denied Johnson's request for prejudgment interest.

We next address the issue of the Commission's award of post-judgment interest to Johnson. Our review of the record indicates that the Commission relied on section 2-1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1303) in awarding Johnson post-judgment interest. At the time that the Commission awarded post-judgment interest to Johnson, section 2-1303 provided:

"Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of judgment until satisfied . . .. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1303.)

Based on the use of the word "court" in section 2 -- 1303, Frey Bindery argues that this section applies only to a court and, as a result, the Commission lacked the authority ...


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