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February 7, 1997


Petition for Review of Order of The Illinois Human Rights Commission. Honorable Helen W. Gunnarsson, Administrative Law Judge Presiding.

Released for Publication March 13, 1997.

The Honorable Justice South delivered the opinion of the court. Hartman, P.j., and Hoffman, J., concur.

The opinion of the court was delivered by: South

JUSTICE SOUTH delivered the opinion of the court:

This appeal arises out of the dismissal of petitioner's complaint by the Illinois Human Rights Commission (Commission) where petitioner, Cynthia Lee Davis (Davis), alleged that the Commission had jurisdiction over her directly filed complaint. The Commission alleged that it lacked jurisdiction under the Illinois Human Rights Act (the Act) because Davis filed her complaint prior to the expiration of the Illinois Department of Human Rights (Department) 300-day investigation period as provided by section 7A-102(G)(1) (775 ILCS 5/7A-102(G)(1) (West 1994)) of the Illinois Human Rights Act.

Davis contends that the Commission's order dismissing her complaint was a final order and, therefore, appealable to this court pursuant to Supreme Court Rule 335 (134 Ill. 2d R. 335) and section 3-113 of the Administrative Review Law (735 ILCS 5/3-113 (West 1994)); that the Commission's finding that the 300-day investigation period runs from the date the typed version of the charge was signed, dated and notarized by Davis was erroneous; and that because she relied on information provided by the Department, equitable principles should toll the 30-day window period under the Act during the pendency of this dispute in order to protect her right to file directly with the Commission.

Respondents contend that judicial review is barred under the administrative review law because Davis has petitioned from a nonfinal order of the Commission; that the Commission was correct in determining that the complaint filed by Davis with the Commission was premature and that dismissal without prejudice for lack of jurisdiction was proper; that equitable principles do not apply to the 300-day statutory time limit because the filing of a timely complaint is a jurisdictional prerequisite under the Act; and that the Commission did not abuse its discretion in finding that equitable defenses should not be applied in this context.

Davis was employed by respondent, J.P. Morgan Futures, Inc. (J.P. Morgan). On January 12, 1994, Davis went to the Illinois Department of Human Rights and filled out the Department's "Complainant's Information Sheet" (CIS) alleging that she was harassed and given unequal pay on the basis of her sex. The Department date-stamped the CIS and docketed it as received on January 13, 1994.

On January 24, 1994, Davis filed a signed and notarized charge of discrimination with the Department. On February 3, 1994, the Department sent Davis a letter informing her in relevant part:

"If the Department does not complete your case within 300 days from the date you filed your signed and notarized charge (or within any extension of time agreed to in writing by you and the Respondent), you have the right to file your own complaint with the Human Rights Commission, starting on the 301st day (November 10, 1994) and ending on the 330th day (December 9, 1994). If you do not file a complaint, the Department will continue to investigate your charge."

This letter was signed by Derrick Davis, investigations supervisor of the charge processing division of the Department.

On November 16, 1994, Davis filed a verified complaint with the Commission alleging that she was within the 30-day window provided for in section 7A-102(G)(2) (775 ILCS 5/7A-102(G)(2)(West 1994)). On January 11, 1995, the administrative law judge (ALJ) issued an order stating that it was "unclear whether the Complaint had been timely filed." The ALJ asked for briefing on whether the complaint was filed properly within the 30-day window period. Davis filed a memorandum in response to the ALJ's order on January 19, 1995. On October 19, 1995, the ALJ issued a recommended order dismissing the complaint without prejudice because it was filed on day 296, prior to the expiration of the Department's 300-day investigation period, and the Commission lacked jurisdiction. Davis filed exceptions to the ALJ's recommended order and decision. On January 19, 1996, the Commission issued its decision affirming the recommended order and decision of the ALJ. Davis filed her petition for review with this court on January 25, 1996.

On March 5, 1996, respondents filed a motion with this court to dismiss the petition for direct review for want of subject-matter jurisdiction. Davis filed a response to this motion on March 28, 1996. On April 3, 1996, this court issued an order that respondent's motion was taken with the case.

As a preliminary matter, this court must determine whether the appellate court has subject-matter jurisdiction to review the Commission's order entered January 19, 1996, dismissing Davis' directly filed complaint. Davis contends that this appeal is brought for direct review of a final order pursuant to Illinois Supreme Court Rule 335 (134 Ill. 2d R. 335) and section 3-113 (735 ILCS 5/3-113 (West 1994)). Supreme Court Rule 335 provides in relevant part:

"The procedure for a statutory direct review of orders of an administrative agency by the Appellate Court shall be as follows: (a) The Petition for Review. The petition for review shall be filed in the Appellate Court and shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. The agency and all other parties of record shall be named respondents." 134 Ill. 2d R. 335.

Section 3-113, "Direct Review of Administrative Orders by the Appellate Court," provides in relevant part:

"(a) Unless another time is provided specifically by the law authorizing the review, an action for direct review of a final administrative decision of an administrative agency by the appellate court shall be commenced by the filing of a petition for review in the appellate court within 35 days from the date that a copy of the ...

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