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08/19/97 ILLINOIS STATE BOARD ELECTIONS v. ILLINOIS

August 19, 1997

THE ILLINOIS STATE BOARD OF ELECTIONS, PETITIONER,
v.
THE ILLINOIS HUMAN RIGHTS COMMISSION AND CELIA DART, RESPONDENTS.



Administrative Review of the Human Rights Commission. No. 1989SF0094.

Petition for Rehearing Denied September 15, 1997. Released for Publication September 15, 1997.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J. - Concur, Honorable Robert J. Steigmann, P.j. - Dissent. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

On September 1, 1988, respondent, Celia Dart, an employee of petitioner, the Illinois State Board of Elections (Board), filed a complaint with respondent, the Illinois Human Rights Commission (Commission), contending she was discriminated against by the Board because she, a female, received less pay than Mark Kloever, a male, for doing similar work. She claimed a violation of section 2-102(A) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 2-102(A)), which states as follows:

"It is a civil rights violation:

(A) Employers. For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination. " (Emphasis added.)

Section 1-103(Q) of the Act describes "unlawful discrimination" as:

"Discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, handicap or unfavorable discharge from military service as those terms are defined in this Section." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 68, par. 1-103(Q).

After hearing evidence, the Commission issued an order on June 26, 1996, finding the Board violated the Act by discriminating against Dart in regard to her salary because of her sex and awarded her (1) $25,257.42 in back pay, (2) $1,916.89 to be paid to the Social Security Administration as due from the additional salary, (3) $2,511.38 to be similarly paid to the Illinois State Employees Retirement System, and (4) $17,132.50 for attorney fees and $287.63 for court costs. The Board has taken administrative review to this court. 775 ILCS 5/8-111(A)(1) (West Supp. 1995).

The parties dispute the allocation of the burden of proof, but we conclude the Commission found that, even under the allocation we and the Board deem to be correct, Dart is entitled to the relief granted. The decision of the Commission was not contrary to the manifest weight of the evidence regardless of what allocation was required. We do not find any reversible error in the introduction of evidence. We disagree with the Commission in regard to its appraisal of the importance of the college degree of Board employee Kloever, to whom Dart compared herself, but also find no reversible error in that regard. Accordingly, we affirm.

We must first determine what issues are before us. In the Board's brief it listed three matters as being issues. The first was whether the Commission's determination that Dart and Board employee Kloever performed equal work was contrary to the manifest weight of the evidence. The second such issue was whether the Commission's determination that the Board's stated reason for giving Kloever a higher salary than Dart was not worthy of belief was contrary to the manifest weight of the evidence. The last stated issue was whether the Commission erred relative to the equality of work between Dart and Kloever and the Board's nondiscriminatory reasons for paying Kloever a higher salary than Dart.

In the Commission's brief, it contended the Board raised an issue as to whether the Commission applied the proper formula for the burden of proof. The Board had not referred to this issue in its statement of issues or its points and authorities. However, in a summary of its argument, the Board stated that if the complainant establishes that "she is a member of a protected class, based on gender, that she performs substantially equal work to a comparator not of the same gender class, and that she is paid at a rate less than the comparator," she has established a prima facie case and the burden shifts to the respondent to articulate a proper reason for the wage differential.

The summary then stated that if the respondent articulates "one or more defenses the burden of production again shifts back to the complainant to prove that the reasons offered by the respondent are pretextual," and Dart failed to make this proof. Later, in the Board's detailed argument portion of its brief, the Board stated the Commission "appears to have ignored the requirement that the complainant prove by a preponderance of the evidence that the non-discriminatory reason articulated by the respondent for the difference in salary was a mere pretext." The argument then stated the Commission appears to have required the Board to "bear the burden of proof that its hiring decision was non-discriminatory." The Board then raised this issue in more detail in its reply brief. Dart maintains that because the question of the allocation of burden of proof was not raised in the Board's statement, of issues, it is not properly before us.

Because of the importance of the allocation of burden of proof, we examine the question of whether it was properly raised in detail. Supreme Court Rule 335(i)(1) states, in part, that "insofar as appropriate, the provisions of [Supreme Court] Rules 301 through 373 (except for Rule 326) are applicable" for proceedings in the appellate court for administrative review. 155 Ill. 2d R. 335(i)(1). Supreme Court Rule 341(e) concerns appellant's briefs and subsection 7 therein states, in part: "points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." 155 Ill. 2d R. 341(e)(7); see Dunn v. Baltimore & Ohio R.R. Co., 162 Ill. App. 3d 97, 105, 515 N.E.2d 1027, 1033, 113 Ill. Dec. 868 (1987); Gale v. Hoekstra, 59 Ill. App. 3d 400, 410, 375 N.E.2d 456, 464, 16 Ill. Dec. 583 (1978).

In People v. Saulsburry, 178 Ill. App. 3d 857, 864, 533 N.E.2d 1154, 1158, 128 Ill. Dec. 66 (1989), the Second District Appellate Court stated:

"Finally, defendant 'notes' in a cursory, one-page argument in his brief that the prosecutor made improper comments in his closing arguments. Contrary to Supreme Court Rule 341(e) (113 Ill. 2d R. 341(e)), the issue was not listed in the statement of issues presented portion of the brief or mentioned in the caption of the issues in the argument portion of the brief, and is therefore waived. Further, the issue is also waived for failure to raise the issue in the written post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 119 Ill. Dec. 265[, 1129-30]."

The foregoing is the only authority we have found to deem an issue before this court waived when, as here, it is not set forth in the statement of issues or captioned in regard to the argument. In other cases, such as Dunn (162 Ill. App. 3d at 105, 515 N.E.2d at 1033) and Gale (59 Ill. App. 3d at 410, 375 N.E.2d at 464), the court speaks of waiver occurring when the issue is not raised in any portion of the appellate brief. We conclude the latter is the rule. Stating the points to be relied upon for reversal in the statement of issues in the brief is highly desirable and makes the argument of the brief more logical and persuasive, but we deem the Board's brief here barely sufficient to raise the issue of the allocation of burden of proof.

The particulars of Dart's complaint before the Commission were as follows: (1) Dart was hired in December 1973; (2) since December 1984 and continuing, Dart had not received pay equal to Kloever for the performance of her duties as an "Election Specialist II"; (3) Dart's supervisor was a female and her division included five election specialists--three female and two male; (4) Mark Kloever (a male) and Dart were "Election Specialist IIs" (at the time the complaint was filed) and performed the same duties; (5) Kloever was hired as a trainee in 1984 with a beginning salary of $19,000; (6) Kloever had been With the Board for four years and Dart had been with the agency for ...


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