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06/08/89 the City of Springfield, v. Ronald Carter Et Al.

June 8, 1989

THE CITY OF SPRINGFIELD, PETITIONER

v.

RONALD CARTER ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

540 N.E.2d 536, 184 Ill. App. 3d 1, 132 Ill. Dec. 796 1989.IL.864

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

On June 23, 1983, the Human Rights Commission (Commission) entered an order finding the Springfield police department's promotional examination was discriminatory and directing certain relief. (In re Carter, 9 Ill. Hum. Rights Comm'n Rep. 164 (1983).) In October 1986, complainants filed motions for attorney fees and enforcement of the 1983 order. The Commission remanded the cause to the administrative law section for a report on the facts in dispute. The administrative law Judge issued a report to the Commission, and the respondent City of Springfield (City) filed objections claiming the Commission was without jurisdiction to enforce its 1983 order since, by its terms, it was not a final order. The 1983 order stated in pertinent part:

"(7) That complainants' attorney submit to the Commission within 28 days a petition for attorneys fees and supporting affidavit setting forth in detail the reasonable number of hours expended in this case and counsel's hourly billing rate. Failure to submit this documentation will be considered to be a waiver of the fee request. Respondent shall have 28 days from the receipt of such information to file its response. The question of attorneys fees will be taken under advisement and a Supplemental Order will issue. This matter will not be considered final for purposes of review under Article III of the Code of Civil Procedure until the Commission has issued its Supplemental Order." (Carter, 9 Ill. Hum. Rights Comm'n Rep. at 168.)

Upon consideration, the Commission agreed. Accordingly, the Commission complainants' motion for fees as waived, denied the motion for enforcement as premature, purported to make the 1983 order final and enforceable, and directed the City to report to the Commission within 30 days the steps taken to comply with its supplemental order finalizing its 1983 order. (In re Carter, Ill. Hum. Rights Comm'n Rep. (March 8, 1988, HRC Nos. 1978SF0184, 1978SF0193, 1979SF0023, 1979SF0045).) The City appeals, challenging portions of the relief granted as void as (1) beyond that authorized by the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1-101 et seq.); and (2) an impermissible delegation of the City's legislative power to make employment-related decisions.

The underlying facts are as follows.

In February 1978, the City administered a promotional examination to fill vacancies in the position of sergeant in its police department. The written examination was prepared and administered by an outside consulting firm, Police Consultants of Hillside, Illinois. Complainants were black police officers for the City in the rank of patrolman when they took the examination. Complainants Carter, Pettit, and Crump failed the examination; Schluter passed.

In the summer of 1978, complainants filed charges of discrimination against the City with the Illinois Fair Employment Practices Commission (now Department of Human Rights) (Department) complaining the promotional examination was not validated. On November 5, 1980, the Department filed a complaint of civil rights violation, alleging the City discriminated against complainants by administering a sergeant's promotional examination which had an adverse impact on black examinees.

Complainants and the City stipulated the results of the promotional examination were as follows: 67 candidates took the examination; 57, or 85%, were Caucasian, and 10, or 15%, were black. Of the 67 who took the examination, 49 passed, and 45, or 92%, were Caucasian, and 4, or 8%, were black. The passage rate for Caucasians was 79% while the passage rate for blacks was 40%. Two of the four blacks who passed the examination, including complainant Schluter, were promoted prior to the expiration of the eligibility list in May 1981. In addition, complainant Carter was appointed to the position of deputy chief.

On October 28, 1982, the ALJ issued his recommended order and decision. The ALJ found the City's promotional examination had an adverse impact on blacks based upon the Equal Employment Opportunity Commission's (EEOC's) Uniform Guidelines on Employee Selection Procedures. (29 C.F.R. § 1607.1 et seq. (1982).) Under section 1607.4of the guidelines, a selection rate for any group which is less than four-fifths (or 80%) of the rate for the group with the highest rate would generally be regarded by Federal enforcement agencies as evidence of adverse impact. (29 C.F.R. § 1607.4(1982).) Application of the four-fifths rule to the instant case results in the sergeant's examination having a disparate impact on blacks if their passage rate was less than 63.2%. Because the actual passage rate of blacks was 40%, the ALJ found an adverse impact on black examinees. The City argued the results of the test were not statistically significant due to the small number of blacks who took the examination. The ALJ disagreed, stating such statistics could be considered, especially with nonstatistical evidence of adverse impact such as the use of psychological tests.

The ALJ found further the examination was not job related because it was based on the duties of Peoria, Illinois, sergeants, whose duties differed significantly from those of the City's sergeants. Finally, the ALJ found the need to give a validated examination was not excused under EEOC guidelines because the City's ongoing study, designed to produce evidence of validation, was discontinued when funding through the Illinois Law Enforcement Commission was terminated.

With respect to relief, the ALJ refused to recommend the promotions made from the eligibility list resulting from the examination be set aside because there was no evidence of intentional discrimination. He did, however, make certain recommendations with respect to the relief which should be granted. See Carter, 9 Ill. Hum. Rights Comm'n Rep. at 183-84.

On June 23, 1983, the Commission entered its order and decision affirming the recommended order and decision of the ALJ and sustaining the complaints. The Commission directed the City to discontinue use of the eligibility list established as a result of its February 1978 promotional examination in filling vacancies in the position of sergeant; cease discriminating on the basis of race in the application of terms and conditions of employment; clear from its personnel records on complainants all references to the filing of these charges, and the subsequent Disposition thereof; report to the Commission, within 90 days following the entry of its order, the steps taken to comply with the order (Carter, 9 Ill. Hum. Rights Comm'n Rep. at 168); and, most important for the issues considered on this appeal:

"(4) That respondent immediately establish a promotional policy for filling vacancies in the position of sergeant which is non-discriminatory and affords complainants the opportunity to qualify for the position of sergeant under such policy. To the extent that respondent has adopted a new examination, respondent shall immediately begin an impact and validation study of the new examination. The parties shall agree upon an expert, acceptable to both sides, to conduct such study. Respondent shall bear the cost of the study;

(8) The parties shall agree among themselves regarding appropriate interim relief with respect to the method for choosing sergeants to fill vacancies which occur between the date of the Commission Order and respondent's completion of an impact and validation study of its examination for sergeant. In the event that the parties are unable to agree upon interim relief, the procedures shall be determined by the Commission." (Carter, 9 Ill. Hum. Rights Comm'n Rep. at 168 -- 69.)

Contrary to the Commission's order, complainants' attorney Donald Jackson did not submit his fee petition within 28 days, but rather submitted it more than three years later, on October 10, 1986. Also, the City did not submit its report to the Commission within 90 days following the entry of the order and decision or at any time thereafter. At approximately the same time, complainants filed a motion for enforcement of the order and decision.

On December 22, 1986, the Commission entered an order referring complainants' motion for enforcement to the ALJ for fact finding. The ALJ issued his report to the Commission on May 18, 1987.

Finally, on March 8, 1988, the Commission entered its supplemental order and decision. It denied complainants' motion to enforce the 1983 order on the basis that the Commission had no jurisdiction to enforce its order and decision because, according to complainants, the order and decision had not, by its terms, been made final. The Commission denied the belated request for attorney fees as untimely. Last, the Commission stated its order and decision of June 23, 1983, is final, enforceable, and appealable. (Carter, Ill. Hum. Rights Comm'n Rep. (March 8, 1988, HRC Nos. 1978SF0184, 1978SF0193, 1979SF0023, 1979SF0045).) The City appealed directly to this court pursuant to section 8-111 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8-111), without first seeking rehearing by the Commission.

Complainants filed a motion to dismiss the City's appeal, arguing the City has not exhausted its administrative remedies and the Commission's order is not final. We first consider the motion to dismiss. I

Complainants argue the Commission's March 1988 order is not final for purposes of appeal because (1) the order is subject to the rehearing provision of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8-107) and the City has not availed itself of the rehearing procedure; and (2) paragraphs eight and nine of the order contemplate further action by the parties and the Commission.

On the first point, complainants rely on Consolidation Coal Co. v. Department of Labor (1985), 138 Ill. App. 3d 541, 485 N.E.2d 1102, for the proposition if there is an agency rule or statute which provides for rehearing, an agency decision is not appealable until (and, apparently, unless) the aggrieved party requests rehearing and his petition is denied.

Section 3-101 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 3-101) ...


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