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02/02/89 Jose Gonzalez, v. the Human Rights

February 2, 1989

JOSE GONZALEZ, PETITIONER

v.

THE HUMAN RIGHTS COMMISSION ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

534 N.E.2d 544, 179 Ill. App. 3d 362, 128 Ill. Dec. 362 1989.IL.121

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Petitioner, Jose Gonzalez, was discharged from St. Anne's Hospital. He filed a charge with the Illinois Department of Human Rights, alleging that the hospital had discharged him in retaliation for his previously filing discrimination charges against St. Anne's. The Human Rights Commission (Commission) dismissed his complaint as being untimely filed and therefore did not reach the merits.

Gonzalez appeals, contending that his complaint was improperly dismissed because the 180-day period for filing charges in accordance with the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1983, ch. 68, par. 1-101 et seq.) is not a jurisdictional limitation, but rather a statute of limitations that can be equitably tolled and should have been tolled under the circumstances of this case. He had given his typed and signed statement of the charge to the agency within the 180-day period, but it had not been retyped on the Department's charge form and verified until after that period. Gonzalez additionally argues that the oath and affirmation requirement of the Act is not jurisdictional in the sense that it must be satisfied at the time charges are required to be filed.

We reverse and remand.

Background

Gonzalez, a former mental health technician with St. Anne's Hospital, was discharged on July 28, 1983. He filed charges with both the Equal Employment Opportunity Commission and the Illinois Department of Human Rights (Department), claiming that the discharge was discriminatory. The EEOC found no reasonable cause for the charge and therefore issued its letter dismissing the charge and notifying Gonzalez of his right to sue in the Federal district court. The Illinois Human Rights Department, however, eventually determined that Gonzalez' charge was based on substantial evidence and filed a complaint with the Human Rights Commission, naming St. Anne's Hospital as respondent.

The hospital filed a motion to dismiss on jurisdictional grounds. The administrative law Judge held an evidentiary hearing on the motion because of her belief that there were factual issues relating to the timeliness of the filing of the charge.

At the hearing Gonzalez testified that he contacted his attorney on January 10 or 11, 1984, concerning a possible action under the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 1-101 et seq.). The attorney typed up the charge using the Illinois Department of Human Right's client information sheet , a form that provides spaces for the pertinent information and for signature, but no space for notarization or oath.

On January 20, 1984, at 12:11 p.m., Gonzalez took his signed charge (the CIS form) to the Department for filing. This was 176 days after his discharge. When he went to the Department's office to file the charge, he was told to wait for the Department to retype it, after which he was to sign it and have it notarized. At this time, the general procedure of the Department was for the CIS form to be submitted to the receptionist for stamping, after which it was given to an intake investigator, who would interview the complaining party. Gonzalez waited two or three hours to be called. However, at 4:30 or 5 p.m. a Department representative told Gonzalez that no typist or notary was available and that he should go home. Someone would then mail him the retyped charge for his signature and for notarization. The receptionist assured Gonzalez that there would be no problem with this procedure.

Gonzalez further testified at the hearing that he called the Department three or four days later to inquire about the charge. He was told that it was on the way. On January 31, 1984, seven days after the expiration of the 180-day period, the Department mailed the charge to him. On that same day, the Department mailed a letter to St. Anne's, notifying the hospital that Gonzalez had "filed a charge" against the hospital, which the Department "docketed . . . as an unperfected charge pursuant ...


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