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Pinkerton Security and Investigation Services v. Illinois Department of Human Rights

May 26, 1999

PINKERTON SECURITY AND INVESTIGATION SERVICES, PETITIONER-APPELLANT,
v.
ILLINOIS DEPARTMENT OF HUMAN RIGHTS, ILLINOIS HUMAN RIGHTS COMMISSION, THE DIRECTOR OF THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS, ROSE MARY BAMBALA, CHIEF LEGAL COUNSEL FOR THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS, JACKIE LUSTIG, AND KIMBERLY JENKINS, RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Justice McBRIDE

No. 1997 CF 2776

Petition for Review of Order of the Illinois Department of Human Rights.

Petitioner, Pinkerton Security and Investigation Services (Pinkerton), appeals from an order of the Chief Legal Counsel of respondent, Illinois Department of Human Rights (Department) which sustained the finding of default against Pinkerton in the sexual discrimination charge filed by co-respondent Kimberly Jenkins (Jenkins) under the Human Rights Act (Act) 775 ILCS 5/7-101 et seq. (West 1996). Petitioner claims that the Act violates due process by authorizing the Department to issue final default orders and that the default order entered in this case was improper and should be vacated.

Co-respondent, Illinois Human Rights Commission (Commission), has filed a motion to dismiss Pinkerton's appeal for lack of jurisdiction. We agreed to consider this motion with the case, and for the reasons set forth below, we grant the motion and dismiss the appeal.

On May 13, 1997, Jenkins filed a discrimination charge against her employer, Pinkerton, alleging that her suspension and discharge were based on her sex as related to pregnancy. Pinkerton filed its response on July 23, 1997 and denied her allegations.

On August 13, 1997, Pinkerton's human resources director notified the Department that he was no longer working for Pinkerton and that Mark Motylinski would be the new contact person. Motylinski requested a new date for the conference which had previously been set for August 14. The Department offered a one week extension. Motylinski stated that he could not attend because he would be out of town.

On the same date, the Department sent Motylinski a fax requesting a 60-day extension of the one-year time limit for investigating the charges. The Department requested Motylinski to sign the enclosed extension form and return it to the Department as soon as possible. The fax transmittal sheet which accompanied that request stated that the Department was trying to reschedule the fact-finding conference, that it needed both parties to sign an extension in order to do so, and that the extension had to be signed and faxed to the Chicago office by 4 p.m. that day or Pinkerton would have to be present at the hearing as scheduled. Motylinski responded by fax that Pinkerton would not authorize the extension request and that he was awaiting written notification of the fact-finding conference tentatively scheduled for August 21, 1997.

The fact-finding conference was held on August 14, 1997. Jenkins was present, but Pinkerton was not; as a result, the Department issued a Rule to Show Cause why a notice of default should not be issued against Pinkerton for its non-attendance. Pinkerton filed a timely response setting forth the series of events leading to August 14, 1997, and attempted to explain how the personnel change made it extremely difficult to coordinate the attendance of six individuals for the conference in less than 24 hours. Pinkerton also rescinded its previous denial of the extension request and signed the extension document.

On September 12, 1997, the Department issued a Notice of Default against Pinkerton for its failure to attend the fact-finding conference "despite the reasonable requests made by the Department." Pinkerton filed a timely request for review. The Department's Chief Legal Counsel sustained the finding of default expressing regret that Pinkerton had several representatives in the case, but that it had not shown good cause sufficient to vacate the Department's decision. Pinkerton was advised that this was a final order and this petition for review followed. We first address the jurisdictional issue posed by the Commission in its motion to dismiss the appeal.

The Illinois Constitution provides in relevant part that the appellate court has powers of direct review of administrative action as provided by law. Ill. Const. 1970, art. VI, §6. In reviewing an administrative order, the appellate court exercises special statutory jurisdiction, and the power of the court is limited by the language of the act conferring the jurisdiction. McGaughy v. Illinois Human Rights Comm'n., 165 Ill. 2d 1, 6-7, 649 N.E.2d 404 (1995).

The statutory source of this court's power to hear the present case is under section 8-111(A)(1) of the Act. McGaughy, 165 Ill. 2d at 7; 775 ILCS 5/8-111(A)(1) (West 1996). That section provides that: "Any complainant or respondent may apply for and obtain judicial review of any final order entered under this Act by filing a petition for review in the Appellate court within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." (emphasis added) 775 ILCS 5/8-111(A)(1) (West 1996). The Act does not define "final order" and the parties differ on its meaning in this context.

Section 7-101.1(A) of the Act provides in pertinent part that the Chief Legal Counsel of the Department has jurisdiction to "hear and determine requests for review of (1) decisions of the Director to dismiss a charge; (2) notices of default issued by the Director; and (3) dismissals for refusal to accept a settlement offer. Any final order entered by the Chief Legal Counsel under this Section is appealable in accordance with paragraph (A)(1) of Section 8-111." 775 ILCS 5/7-101.1(A) (West 1996).

Petitioner contends that the default order entered by the Chief Legal Counsel in this case was a final order under this section and therefore appealable. Although a decision of the Chief Legal Counsel sustaining a dismissal of a complaint under 775 ILCS 7-101.1(A) (West 1996) is considered a final order, (Kalush v. Department of Human Rights, 298 Ill. App. 3d 980, 988-99, 700 N.E.2d 132 (1998)), we have found no decisions interpreting whether review of a default order entered under this same section is a final order for purposes of appeal.

The Department, like petitioner, contends that the default order was final and maintains that this construction is supported by the definition of final agency decision in the Administrative Review Law of the Code of Civil Procedure. (emphasis added) 735 ILCS 5/3-101 et seq. (West 1996). This law is incorporated in Supreme Court Rule 335 (155 Ill. 2d ...


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