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10/20/97 DANA TANK CONTAINER v. HUMAN RIGHTS

October 20, 1997

DANA TANK CONTAINER, INC., PETITIONER-APPELLANT,
v.
THE HUMAN RIGHTS COMMISSION AND MELVIN WESLEY, RESPONDENTS-APPELLEES.



Petition for Review of an Order Entered by the Human Rights Commission. No. 87 CF 2276, 21B871039.

Released for Publication December 5, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Petitioner, Dana Container, Inc. *fn1, employed respondent, Melvin Wesley, as a tank washer from June 1985 until October 8, 1986. In July 1986, respondent filed a charge of race discrimination against petitioner with the Illinois Department of Human Rights. The charge apparently was brought pursuant to section 2-102 of the Illinois Human Rights Act, which states that it "is a civil rights violation" 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 or citizenship status." (Emphasis added.) 775 ILCS 5/2-102(A) (West 1992). The charge was dismissed for lack of subject matter jurisdiction because petitioner employed less than 15 persons. See 775 ILCS 5/2101(B)(1)(a) (West 1992) (defining "employer" as "any person employing 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation").

Following the dismissal of respondent's race discrimination charge, petitioner fired respondent on October 8, 1986. On February 17, 1987, respondent filed another charge against petitioner with the Illinois Department of Human Rights (hereafter the Department), this time alleging that petitioner had fired him in retaliation for previously filing the charge of race discrimination. On May 22, 1991, the Department filed a complaint with the Illinois Human Rights Commission (hereafter the Commission) based on the retaliation charge.

Petitioner did not defend the retaliation proceeding. On May 20, 1993, the Administrative Law Judge (hereafter the ALJ) issued an order holding petitioner in default and setting a hearing date on the issue of damages and other relief.

On September 19, 1995, the ALJ issued an order and decision recommending that the Commission require petitioner to pay respondent $51,204, plus interest, as compensation for lost wages. On October 19, 1995, petitioner filed exceptions to the recommended order and decision, arguing that the Commission lacked subject matter jurisdiction over the charge because petitioner employed less than 15 employees and, therefore, was not an employer under the Act.

On January 8, 1996, the Commission entered an order and decision affirming the ALJ's recommended order and decision. The Commission explained that petitioner's status as an employer was irrelevant because respondent's retaliation complaint was brought under section 6-101(A) of the Act (775 ILCS 5/6-101(A) (West 1992)), which makes it a civil rights violation for a "person" to retaliate against another "person" for filing a charge of discrimination. The Commission noted that the Act defines "person" to include one or more corporations. See 775 ILCS 5/1-103(L) (West 1992). Petitioner filed a petition for rehearing, which the Commission denied. Petitioner then filed this timely appeal.

It is undisputed that the Commission lacked subject matter jurisdiction over respondent's initial claim of race discrimination because the petitioner employed fewer than 15 persons and therefore was not an "employer" as defined by the Act. Petitioner contends that since respondent's subsequent retaliation claim is premised on the race discrimination charge over which the Commission lacked jurisdiction, the retaliation claim cannot constitute a civil rights violation under section 6-101(A) of the Act. Therefore, petitioner claims that the Commission should have dismissed respondent's retaliation claim for lack of subject matter jurisdiction.

The resolution of this issue requires us to construe section 6-101(A) of the Act. Because the construction of a statute is a matter of law, we may independently construe the Act. See Raintree Health Care Center v. Human Rights Comm'n, 173 Ill. 2d 469, 479, 220 Ill. Dec. 124, 672 N.E.2d 1136 (1996).

The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 97, 214 Ill. Dec. 784, 662 N.E.2d 138 (1996). In determining legislative intent, the court first should consider the statutory language. Somers, 278 Ill. App. 3d at 97. Where the statutory language is clear, it will be given effect without resort to other aids for construction. Somers, 278 Ill. App. 3d at 97.

Section 6-101(A) states in relevant part:

"It is a civil rights violation for a person, or for two or more ...


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