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October 14, 1997


Petition for review of an order of the Illinois Human Rights Commission. No. 1995SF0474.

The Honorable Justice Hopkins delivered the opinion of the court. Kuehn, P.j., and Maag, J., concur.

The opinion of the court was delivered by: Hopkins

The Honorable Justice HOPKINS delivered the opinion of the court:

Donald K. Moeser, Jr. (petitioner), appeals to this court from an order of the Human Rights Commission (the Commission) dismissing his complaint for civil rights violation against his former employer, Hy-Dac Rubber Manufacturing (respondent). The issues presented are (1) whether the order from which petitioner appeals is final and appealable and (2) whether the Commission has jurisdiction to consider a complaint that was filed within the 30-day window of section 7A-102(G)(2) of the Illinois Human Rights Act (the Act) (775 ILCS 5/7A-102(G)(2) (West 1994)) but was incorrectly mailed to the Department of Human Rights (the Department) rather than to the Commission. For reasons we will more fully explain, we reverse and remand.


The relevant facts are not disputed. Petitioner was fired from his job with respondent on August 31, 1994. On January 5, 1995, petitioner filed a charge of discrimination against respondent. By filing the charge with the Department within 180 days of the alleged discrimination, petitioner complied with section 7A-102(A) of the Act (775 ILCS 5/7A-102(A) (West 1994)). On January 10, 1995, the Department mailed petitioner a letter explaining as follows:

"If the Department does not complete your case within 300 days from the date you filed your signed and notarized charge ***, you have the right to file your own complaint with the Human Rights Commission, starting on the 301st day (October 30, 1995) and ending on the 330th day (November 29, 1995). If you do not file a complaint, the Department will continue to investigate your charge.

*** If you file a complaint, the form of it must be in accordance with Section 7A-102(F) of the *** Act. You must file a copy of it on the same day with the Department of Human Rights. *** If you have any questions about filing a complaint, you should contact the Human Rights Commission at (217) 785-4350." (Emphasis in original.)

The only address listed on the January 10, 1995, letter from the Department to petitioner was the Department's address in Springfield, Illinois. The letter did not include an address for the Commission or any other information on how to file a complaint with the Commission. The letter also stated " KEEP THIS LETTER. HAVE IT WITH YOU IF YOU NEED TO TELEPHONE OR COME TO THE DEPARTMENT ." (Emphasis in original.) Petitioner kept the letter.

The Department did not complete its investigation or file a complaint on petitioner's behalf within 300 days after petitioner filed the charge. Prior to filing his own complaint, petitioner called the telephone number for the Commission that was listed on the letter from the Department. According to petitioner, the person he spoke to at the Commission advised him that the complaint would be timely if mailed and postmarked on November 29, 1995. Petitioner stated that he was not advised that he should mail the complaint to the Commission rather than to the Department, that he was not given an address for the Commission, and that he attempted in good faith to file his complaint in accordance with the instructions given in the letter from the Department.

On November 29, 1995, petitioner filed his own complaint by mailing it to the Department and mailing a copy of the complaint to respondent on the same date. Petitioner was not represented by an attorney at that time. When the Department received petitioner's complaint on December 6, 1995, it sent it to the Commission via messenger mail. The Commission received petitioner's complaint on December 14, 1995, at its Springfield, Illinois, office.

On January 22, 1996, respondent filed an answer to petitioner's complaint. The answer did not raise any issue of lack of jurisdiction but generally alleged that petitioner "failed to satisfy the procedural prerequisites for filing this action."

On January 25, 1996, petitioner's attorneys filed an entry of appearance on his behalf. On February 5, 1996, the chief administrative law judge entered an order granting petitioner a continuance and transferring the case to Springfield, Illinois, which was the closest hearing location for all of the parties. Both parties then engaged in discovery in preparation for the upcoming hearing.

On February 27, 1996, the administrative law judge (the ALJ) assigned to hear the case issued an order, sua sponte, directing the parties to file briefs discussing the issue of whether petitioner's complaint was filed within the 30-day window of section 7A-102(G)(2) (775 ILCS 5/7A-102(G)(2) (West 1994)). In an order, the ALJ stated:

"It would appear that the instant Complaint is too late since: (1) section 7A-102(G)(2) of the *** Act *** permits Complainant[-]filed Complaints within 30 days after the Department's 300[-]day investigation period following the filing of a Charge of Discrimination; and (2) the tender of the instant Complaint to the Department on December 6, 1995, occurred 335 days after Complainant filed his Charge of Discrimination on January 5, 1995." (Emphasis added.) ...

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