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United States District Court, Northern District of Illinois, Eastern Division

January 29, 1999


The opinion of the court was delivered by: Shadur, Senior District Judge.


This class action (the plaintiff class having been certified on November 5, 1998) arises from recent changes in the procedures used by the Illinois Department of Human Rights ("Department") to evaluate discrimination claims. Class representatives Ricky Cooper, Anna Marie Klups and Chitunda Tillman (because their claims are identical except in one immaterial respect, for simplicity this opinion will most frequently speak of the entire class by personifying it only in terms of "Cooper") assert 42 U.S.C. § 1983 ("Section 1983") claims that four of those procedural changes result in an administrative process that violates Cooper's (meaning the class') Fourteenth Amendment procedural due process rights. At the threshold Cooper seeks entry of a preliminary injunction preventing Department Director Rose Mary Bombela ("Bombela") from continuing to rely on three of those procedural changes. For the reasons set forth in this memorandum opinion and order, that motion is granted to the extent stated in the Conclusion section.*fn1

Department's Procedures

Under the Illinois Human Rights Act ("Act," 775 ILCS 5/1 to 5/10*fn2) any employee who believes that he or she has been discriminated against in his or her employment is provided with an administrative process to enforce the right to be free from such discrimination (Baker v. Miller, 159 Ill.2d 249, 266, 201 Ill.Dec. 119, 636 N.E.2d 551, 559 (1994)). First the complainant files a Charge of Discrimination with Department (Act § 7A-102(A)(1)). Once that charge has been filed, Department must serve the employer and commence a full investigation of the allegations (Act § 7A-102(B) and (C)). Although the investigation is informal, the investigator has the right to subpoena witnesses and documents (Act § 7A-102(C)(2)).

As part of its investigation, Department generally convenes a fact-finding conference to obtain evidence, identify the issues in dispute, ascertain the positions of the parties and explore the possibility of a negotiated settlement (Act § 7A-102(C)(4); 56 Ill.Admin.Code § 2520.440). That conference may not be recorded (56 Ill.Admin.Code § 2520.440(c)), but the parties and the investigator are permitted to take notes. In addition, the investigator may choose to exclude witnesses. While the parties do not question witnesses directly, they may ask the investigator to ask specific questions (id.).

Once the investigation is complete, the investigator submits a written report to Department's Director (Act § 7A-102(D)). Based on that report, the Director determines whether there is "substantial evidence" that a civil rights violation has been committed (Act § 7A-102(D)(2)):

  Substantial evidence is evidence which a
  reasonable mind accepts as sufficient to support a
  particular conclusion and which consists of more
  than a mere scintilla but may be somewhat less
  than a preponderance.

Effective January 1, 1996 the statute was amended to allow the Director to take credibility into account in assessing whether substantial evidence exists (id.; Webb v. Lustig, 298 Ill. App.3d 695, 702, 233 Ill.Dec. 119, 700 N.E.2d 220, 224 (4th Dist. 1998)).*fn3

If the Director finds substantial evidence of a violation, Department attempts to conciliate the charge. If that attempt does not succeed, a Department attorney drafts and files a formal complaint with the Illinois Human Rights Commission ("Commission"), where the claim is adjudicated before an Administrative Law Judge in a formal hearing with counsel representing each party and with the right to engage in motion practice, discovery and cross-examination.

If the Director finds no substantial evidence and therefore recommends dismissal of the charge, the complainant may file a Request for Review (Act § 7-101.1). For charges filed before January 1, 1996 that Request for Review has been decided by the Commission (Act § 8-103), while for charges filed thereafter the Request is decided by Department's Chief Legal Counsel (Act § 7-101.1).

Until December 29, 1997 Department rules allowed complainants preparing Requests for Review to inspect materials obtained by Department during its investigation (2 Ill.Admin.Code § 926.210 (1995); Complaint and Amended Answer ¶ 46). As of that date, however, a new regulation went into effect barring access to all investigative materials except the formal report submitted to the Director until after the case is completely disposed of, such as by a final dismissal after a Request for Review (2 Ill.Adm.Code § 926.210 (1997)).*fn4 Such decisions are reviewable in the state Appellate Courts (Act § 8-111).

Cooper seeks to enjoin Department from implementing three changes in its process: (1) allowing its investigators to make credibility determinations (with claimants having no right to confront and cross-examine adverse witnesses in the investigator's proceedings); and then, at the Request for Review stage, (2) denying claimants access to investigative files and (3) denying claimants access to witness statements. In the interim, the current preliminary injunction motion urges this Court to require Department to return to its prior procedures until the constitutionality of the new policies can be fully examined.

Younger Abstention

Bombela first responds to Cooper's preliminary injunction motion by urging abstention from assessing the motion on the merits. For that purpose Bombela looks to the principles set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), initially in the context of pending state court criminal proceedings. Post-Younger the Supreme Court has extended its abstention doctrine to both state civil proceedings (see, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)) and state administrative proceedings that are judicial in nature (see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)).*fn5 But it has not done so without limits, and this case falls outside of the boundaries of appropriate application of the Younger doctrine.

Younger abstention is grounded in the premise that federal courts should not interfere with a state's effort to enforce its own laws in an ongoing state proceeding in which the state defendant can fully and fairly litigate the issue it would instead attempt to raise in federal court. Typically Younger abstention applies when a state defendant who could have raised a federal defense to a state judicial proceeding instead files suit in federal court against the state actor pursuing the state enforcement action. Hence the parties in the state action are in an inverse relationship to the parties in the federal action: Whoever is the state defendant becomes the federal plaintiff, and whoever is the state plaintiff becomes the federal defendant. That is not this case, and therein lies the problem with Bombela's argument.*fn6

In an earlier opinion in Lemon v. Tucker, 664 F. Supp. 1143, 1147 (N.D.Ill. 1987), a case very similar to this one also involving a federal court challenge to the constitutionality of previous Department procedures, then Judge Susan Getzendanner provided an extended and insightful — and this Court thinks correct — analysis of the Younger doctrine in the present context:

  The central feature to every Younger case is still
  not present here. The federal plaintiffs in this
  case are not defendants in the state action. They
  therefore cannot raise their federal claims by way
  of defense in the state proceedings. Defendant
  argues that the plaintiffs here are indeed parties
  to a state administrative proceeding in which they
  can obtain all the relief they are seeking here.
  But that pending administrative proceeding is not
  an action brought by a state actor against
  plaintiffs to enforce important state policies. It
  is brought by the same plaintiffs to this action —
  private employees who believe they have been
  discriminated against. True, in that state
  proceeding the plaintiffs argue not only that they
  have been discriminated against, but also that the
  procedures for processing their discrimination
  claims violate due process. That is the same claim
  raised here. But unlike every other Younger case,
  the relationship of the parties to this federal
  action is not an inversion of their relationship in
  the related state action. The relationship is the
  same. This is not a mere technical aberration. It
  means that the fundamental concern of Younger is
  absent here. As already explained, the basic
  principle of Younger is that a federal court should
  not interfere with a state's interest in enforcing
  its own laws when the party defending the state
  enforcement proceeding can obtain all the relief he
  desires by raising his federal claim as a state
  defense. But where, as here, the state is not
  prosecuting any of its laws, and the federal
  plaintiffs are not state defendants but are in fact
  the state plaintiffs, the Younger policy of
  non-interference with state prosecutions is

Indeed, to hold otherwise would flout the Supreme Court's longstanding teaching (see Patsy v. Florida Board of Regents, 457 U.S. 496, 502, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)) that there is no exhaustion requirement for Section 1983 claims (Lemon, 664 F. Supp. at 1147):

  Thus, defendant's request for abstention is really
  based on the argument that since the plaintiffs
  can obtain their desired relief by raising their
  federal claims as state plaintiffs, this court
  should remit the plaintiffs to that forum. But, if
  this court were to abstain in this case merely
  because the state plaintiffs can raise their
  federal claims in state administrative
  proceedings, then the result would essentially be
  a requirement that a federal plaintiff exhaust his
  constitutional claims in a state forum before
  resorting to a federal forum. The Supreme Court in
  Ohio Civil Rights Commission v. Dayton Christian
  Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91
  L.Ed.2d 512 (1986), has explicitly held that such a
  view would be contrary to law.

That rule of nonexhaustion is precisely why the Supreme Court, when it extended Younger abstention to state administrative proceedings, required that those proceedings be coercive rather than remedial in nature (see Dayton Christian Schools, 477 U.S. at 627-28 n. 2, 106 S.Ct. 2718).*fn7 In Dayton Christian Schools the Court applied Younger because the state had already initiated a state proceeding to enforce state law, a coercive process. By contrast, here the federal plaintiffs have earlier brought a remedial action in state administrative proceedings to vindicate their own state law rights. This Court is not about to impose a requirement of exhaustion of their federal constitutional claims in the face of the uniform Section 1983 jurisprudence that rejects such a requirement. Younger abstention does not apply to this case.

Merits of the Preliminary Injunction Motion

To resolve the merits of Cooper's motion, this Court must determine whether the entry of a preliminary injunction is appropriate at this early stage of the proceedings. This Court's exercise of its discretion to that end requires Cooper to satisfy each of the standards identified in Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir. 1984):*fn8

1. a likelihood of success on the merits;

2. the inadequacy of any remedy at law;

    3. irreparable harm to Cooper (and the
  represented class) if the preliminary injunction
  were to be denied;

    4. the balancing of that harm if preliminary
  injunctive relief were wrongfully denied against
  the harm to Bombela if such preliminary relief
  were wrongfully granted; and

    5. the absence of disservice to the public
  interest if the preliminary injunction is granted.

This opinion addresses those standards in turn.

Likelihood of Success

In light of the "sliding scale" hurdle that a preliminary injunction plaintiff must also overcome (Roland Machinery, 749 F.2d at 387-88), the plaintiffs required probability of success has understandably been framed in undemanding terms. That calls for determining whether Cooper's procedural due process argument has "a better than negligible chance of succeeding on the merits" (Boucher v. School Bd. of the Sch. Dist. of Greenfield, 134 F.3d 821, 824 (7th Cir. 1998) (citations omitted)).

Procedural due process analyses involve two steps: identifying an underlying property right and assessing what process is due to protect that right (Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)). To start with, Cooper has a property interest in the underlying claim of discrimination. In evaluating the predecessor statute to Illinois' Human Rights Act, Logan, 455 U.S. at 428-33, 102 S.Ct. 1148 held that a cause of action — a claim such as those at issue here — is a form of property protected by the Due Process Clause (see also two decisions finding such a property interest in the right to file a claim under the Act when plaintiff alleged that Department processes were inadequate: Lemon, 695 F. Supp. at 967-68 and Jabbari v. Illinois Human Rights Comm'n, 173 Ill. App.3d 227, 232, 123 Ill.Dec. 17, 527 N.E.2d 480, 483 (1st Dist. 1988)).

What process is due for the protection of such a property interest — a cause of action or claim? To be sure, claimants such as Cooper may not have the right to full trial-like procedures at Department's preliminary investigative stage (see Webb, 298 Ill. App.3d at 703, 233 Ill.Dec. 119, 700 N.E.2d at 225). If a claimant passes muster at that investigative stage, he or she receives such a formal adjudication at the Commission — and as Bombela points out, it makes no sense to hold a formal hearing to determine whether to hold a formal hearing.

It takes only a moment's thought, however, to see the fallacy in using that last point as the basis for rejecting Cooper's claim — a fallacy demonstrated by the "if" clause with which the last sentence begins. In that respect it is no accident that the definitive caselaw teaches that even at a preliminary investigative stage that may result in the loss of a property interest, complainants have the right to core procedural due process requirements — notice and an opportunity to be heard — in an appropriately informal form (Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). Here the question is whether the class is likely to succeed with its argument that due process requires a claimant's access to investigative files and witness statements when preparing Requests for Review, and also requires the reservation of credibility determinations for the Director rather than the investigator.

Cooper first contends that denying claimants access to investigative files and notes about witness statements while they prepare for their administrative appeal violates due process.*fn9 This Court finds that Cooper has at least met the threshold "likelihood of success" standard on that score. Loudermill, 470 U.S. at 546, 105 S.Ct. 1487 holds that an opportunity to respond to evidence is a basic component of procedural due process. If claimants do not have access to their investigative files while preparing Requests for Review, it is difficult to see how they can have a meaningful opportunity to respond to the record against them before their charges are dismissed from the administrative process altogether. Although Bombela does provide such claimants with their Investigative Reports, those Reports are only as detailed and as informative as particular investigators may choose to make them. Given the fact that any sensitive materials can be removed from the investigative files in accordance with the exceptions to disclosure in the pre-1997 regulation (2 Ill.Admin.Code § 926.210), Department bears little if any burden in providing access to investigative files before rather than after claimants make their Requests for Review. It goes without saying that claimants who can fully examine (and can hence respond to) what the investigator considers to be the evidence against them are likely to have a better chance of prevailing on administrative appeal. In sum, Cooper has shown the requisite "likelihood of success" with regard to those aspects of his request for preliminary injunctive relief.

Cooper further urges that allowing investigators to use credibility determinations as the basis for their recommendations to the Director denies claimants due process.*fn10 That argument is grounded in the idea that credibility determinations should be made only with certain procedural safeguards in place in the interests of accuracy. According to Lemon, 695 F. Supp. at 972, a prior Department policy guide acknowledged that issues of credibility should be resolved only after a full evidentiary hearing that includes cross-examination, and accordingly it forbade credibility determinations at the investigative stage. Brock v. Roadway Express, Inc., 481 U.S. 252, 266, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987) has also recognized (albeit in a different context) that credibility determinations should not be made without appropriate procedural safeguards:

  [T]he primary function of the investigator is not
  to make credibility determinations, but rather to
  determine simply whether reasonable cause exists
  to believe that the employee has been discharged
  for engaging in protected conduct. Ensuring the
  employer a meaningful opportunity to respond to
  the employee's complaint and supporting evidence
  maintains the principal focus on the employee's
  conduct and the employer's reason for his
  discharge. Final assessments of the credibility of
  supporting witnesses are appropriately reserved
  for the administrative law judge, before whom an
  opportunity for complete cross-examination of
  opposing witnesses is provided.

Under the low threshold ("better than negligible") recently reconfirmed by Boucher (following the prescription in Roland Machinery, 749 F.2d at 387) for the likelihood of success factor, this Court finds that factor satisfied to the extent described at the outset of this paragraph.*fn11

That said, it is important to explain what this opinion does not address. This Court is not holding, at this stage of the case, that due process necessarily requires investigators to employ formal procedural safeguards (most importantly by allowing cross-examination by claimants) in their initial investigations. Nor does this opinion essay to resolve the question whether an adverse decision by Director on credibility grounds after having received an investigator's report (one that is neutral on that score) requires the conferring of a right to cross-examination in conjunction with the claimant's Request for Review. To impose the former obligation would likely involve major administrative burdens, so much so that deferring the issue for future determination makes eminently good sense. And deferring any present consideration of imposing the latter obligation will permit that issue to be examined later in a more informed context, in terms of administrative burdens and otherwise.

Inadequacy of Remedy at Law, and Irreparable Harm to Plaintiff

Roland Machinery, 749 F.2d at 383 and 386 made the perceptive point — not really recognized in earlier cases and frequently missed in later cases (even in the Court of Appeals) — that the absence of an adequate remedy at law and irreparability of harm are separate factors entering into the granting or denial of preliminary injunctive relief, though there are circumstances in which the two requirements merge (a lawsuit in which the sole remedy sought at trial is an award of damages presents the obvious merger situation, id. at 386). Here the action is one in which the ultimate as well as the preliminary relief sought is injunctive in nature, so that the inadequacy of a remedy at law is at the lawsuit's core. And as for the necessary showing of irreparable harm if preliminary relief were to be denied, that requirement is obviously met because even should this Court ultimately decide that current Department procedures violate due process, in all likelihood that decision would not retroactively apply to reopen old cases. Another opinion in the earlier challenge to Department procedures in Lemon v. Tucker held on reconsideration (1989 WL 20832 (N.D.Ill. March 9, 1989)) that despite the existence of constitutional violations, Department did not have to reopen its past cases because that would impose such a substantial administrative burden. Luckett, 966 F.2d at 214 approved that decision. That being so, members of the plaintiff class would face irreparable harm if their claims were to be disposed of while Department uses current procedures that are later found to be unconstitutional.

Balancing of Harms

With the irreparability of harm to Cooper and the plaintiff class thus having been established if their motion for a preliminary injunction were to be wrongfully denied, the necessary balancing process (Roland Machinery, 749 F.2d at 386) calls for an evaluation of the burden that would be borne by Bombela should Cooper's motion be wrongfully granted. In that respect Bombela's primary burden would be the administrative hassle of reverting to its prior policies. That burden is minimal, however, considering the nature of the few practices that Department would have to change.

Turning over the investigative file and witness notes before a claimant makes a Request for Review is simply a change in timing, for under current policy Bombela already allows access to those materials after the Request for Review process is over and a claim has been dismissed. As for the imposition of a prohibition on credibility determinations by her investigators, Bombela has not explained precisely how that change would burden her. Bombela does argue that the right to cross-examination would be overly burdensome at the investigative stage, but that argument overstates the relief Cooper seeks. Once again, although the new Illinois statute confers the ability to make credibility determinations on the Director, the relief addressed by this Court in likelihood-of-success terms simply requires investigators to refrain from making such credibility determinations in their reports and recommendations. Because investigators have in the recent past refrained from relying in credibility in making their recommendations as to the existence or nonexistence of substantial evidence (apparently without overwhelming the Commission with vast numbers of cases), nothing suggests that it would be unduly burdensome for Bombela to return to that policy.

In summary, Cooper and the plaintiff class face potentially great harm — the erroneous dismissals of their discrimination claims — without the preliminary injunction now under consideration, while Bombela's burden in reverting to previous policies is slight. Hence the required balancing of harms tips the scales heavily in favor of the granting of such preliminary injunctive relief.

Public Interest

This Court's final inquiry is whether granting the preliminary injunction would not result in any disservice to the public interest, a factor clarified in Roland Machinery, 749 F.2d at 388 as calling for a determination that no others who are not before the court — those other than the immediate parties — will suffer consequences from the granting of interim relief that should be taken into account. No such disservice has been identified by Bombela.

And even in the less precise sense in which "public interest" may be equated with overall societal good as a policy matter, it is plain that providing fair procedures to those who believe that they face discrimination in the workplace is in the "public interest." To be sure, if the initial investigation of such claims by Department were to become too formalistic and adversarial, claimants might be forced to consult attorneys just to bring their charges in the first place (see Lemon, 695 F. Supp. at 968-69). Those who could not afford attorneys or who did not have the resources equivalent to those of their employers would be at a disadvantage, something that the Act's administrative scheme was designed to avoid. But as already explained, what is now at issue does not create overly formal or complex procedures at the investigative level, but rather simply returns to the earlier procedures used by Department.

In sum, any fair reading of the "public interest" concept leads to the same conclusion. Granting preliminary injunctive relief will not generate any disservice to the public interest.


For the reasons set forth above, Cooper's motion for a preliminary injunction is granted. In particular Bombela is ordered:

    1. to provide access to claimants' investigative
  files, including notes about witness statements,
  to claimants who are pursuing Requests for Review,
  but to withhold sensitive materials as outlined in
  the pre-1997 regulation (2 Ill.Admin.Cod §
  926.210); and

    2. to preclude her investigators from relying on
  their assessments of the credibility of witnesses
  in fashioning their reports and their
  recommendations as to whether or not there is
  substantial evidence that discrimination occurred.

This action is set for a status hearing at 9 a.m. February 11, 1999 to discuss further proceedings in the case.

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