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06/28/89 Diana Phelps, v. the Human Rights

June 28, 1989





540 N.E.2d 1147, 185 Ill. App. 3d 96, 133 Ill. Dec. 281 1989.IL.1021

Petition for review of order of Human Rights Commission.


JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.


Section 7-102of the Illinois Human Rights Act (Act) states that a person seeking relief from a civil rights violation shall file "a charge in writing under oath or affirmation " (emphasis added) with the Department of Human Rights "[within] 180 days after the date" of the alleged commission of the violation. (Ill. Rev. Stat. 1985, ch. 68, par. 7-102.) Section 7-102 further provides that, upon receipt of such a charge, the Department shall give notice to any respondent to a charge, investigate the allegations, hold a fact-finding conference, and report to the Director of the Department, who shall, within 300 days or such extension agreed upon by the parties, determine whether to file a complaint with the Illinois Human Rights Commission (Commission). Section 7-102(2) of the Act authorizes the person making the charge to file a complaint with the Commission within 30 days of the expiration of the time for the Department to make that decision if the Department has not done so. Ill. Rev. Stat. 1985, ch. 68, par. 7-102(2).

The evidence here showed that no later than October 16, 1986, the Department received from petitioner Diana Phelps an unverified document charging respondents, the Department of Corrections , petitioner's employer, and Steven Horner, petitioner's supervisor with that employer, with a series of acts of sexual harassment (Ill. Rev. Stat. 1985, ch. 68, par. 2-101), the last act of which occurred on May 1, 1986. This act allegedly took place less than 180 days before the Department's receipt of the document. The Department did not process the document as a charge within the 480 days after receiving the document. Within the last 30 days of that period, petitioner filed a complaint with the Commission making allegations similar to those in the previous document. DOC moved for a summary order (Ill. Rev. Stat. 1987, ch. 68, par. 8-106.1) dismissing the complaint for lack of jurisdiction of the Commission because the previous document which petitioner filed with the Department was not verified. After a hearing, an administrative law Judge recommended entry of such an order. On June 28, 1988, the Commission entered a summary order dismissing the complaint for want of jurisdiction. Petitioner filed with this court for administrative review. Ill. Rev. Stat. 1987, ch. 68, par. 8-111(1).

In dismissing petitioner's complaint, the Commission explained that, in Pickering v. Human Rights Comm'n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746, the court held the requirement of section 7 -- 102of the Act that a charge be filed with the Department within 180 days of a civil rights violation was a condition precedent to the Commission's subsequent exercise of jurisdiction over a complaint. The Commission here reasoned that, similarly, the failure of a charge to meet the requirement of section 7 -- 102that it be "under oath or affirmation" must also be a jurisdictional requirement for the Commission's later consideration of a complaint. As the Commission noted, it had recently so held in Gonzalez v. St. Anne's Hospital (1988), Ill. Hum. Rts. Comm'n Rep. (HRC No. 1984CF1488).

In Gonzalez v. Human Rights Comm'n (1989), 179 Ill. App. 3d 362, 534 N.E.2d 544, the appellate court for the first district reversed the Commission's decision, holding that a charge filed with the Department within the 180-day period of section 7 -- 102need not be verified prior to the expiration of the 180-day period in order for the Commission to later acquire jurisdiction of a complaint concerning the same alleged violation. Rather, the court concluded that, when an unverified charge is filed within 180 days, "equitable principles" control a determination as to whether the Commission can later properly proceed. (Gonzalez, 179 Ill. App. 3d at 371, 534 N.E.2d at 549.) The opinion indicated a complainant would be barred from relief for failure to verify the charge if the complainant was guilty of laches in regard to that failure.

In Larrance v. Human Rights Comm'n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203, this court followed Pickering and held that the statutory requirement for the filing of the charge with the Department was a jurisdictional requirement and, unlike a statutory period of limitations, could not be waived or tolled. As we subsequently amplify in more detail, we need not retreat from that position to decide this case consistently with Gonzalez. The filing of a charge puts in force the machinery tying a claimant to a particular claim within a short period of the alleged deprivation of rights and sets in motion a time schedule. The filing of the charge also begins a scheme of notices to parties respondent. The verification requirement merely serves as some protection to the parties charged from false claims.

This court has never decided whether the requirement for verification within the 180-day period is a condition precedent to subsequent jurisdiction by the Commission. We recognize arguments both ways. We further recognize different precedent between the districts of the appellate court of this State is permissible. (People v. DeVoss (1986), 150 Ill. App. 3d 38, 501 N.E.2d 840.) However, when an issue involves the jurisdictional concerns of an administrative agency from which all districts often sit in administrative review, we deem a difference in controlling precedent to be very undesirable. The decision in Gonzalez is very credible. Acting in comity, we chose to follow Gonzalez.

The Commission contends the facts of this case are so different from those in Gonzalez that, putting the question of jurisdiction aside, petitioner was so dilatory as to justify the dismissal. The Commission's order did indicate the petitioner here was less deserving of equitable consideration than was the petitioner in Gonzalez. We do not agree the difference is controlling.

In this case and in Gonzalez, the petitioner (1) obtained from the Department a multipage document called a "complainant information sheet" ; (2) had the document filled out and signed; and (3) returned the document to the Department within 180 days of the alleged civil rights violation. The first page of the CIS was headed "YOU MAY FILE A CHARGE." It admonished prospective claimants that the Department would help them but would have to get information from them with particular reference to whether the Department had jurisdiction. The first page ended its admonition with these words:

"However, if it should happen that we counsel you that we do not believe that we have jurisdiction or that it appears unlikely that we can help you or that the organization has violated the law, based on what you tell us, YOU MAY, NONETHELESS, FILE A CHARGE WITH US. That is YOUR decision to make. It is possible that your filing a charge will result in its being dismissed because we do not have jurisdiction or because it is determined that the law has not been violated. But even if we counsel you that we do not have jurisdiction or that it appears ...

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