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

Illinois Appellate Court


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 R. 335(i)(2)) which governs direct review of administrative orders by the appellate court.

Under section 3-101 "administrative decision" or "decision" is defined as "any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency." 735 ILCS 5/3-101 (West 1996).

Under the facts of this case the Department argues that the order of the Chief Legal Counsel in this case satisfies the criteria of Section 3-101 and is therefore reviewable. 735 ILCS 5/3-101 (West 1996). The Commission disputes that Conclusion asserting that the proceedings in this default matter did not terminate at that level. In support of its argument, the Commission cites section 7-101.1(C) of the Act which provides that when "the default is sustained on review, the Commission shall enter a default order and set a hearing on damages." 775 ILCS 5/7-101.1(C) (West 1996). Based on the continuity of action set forth in this section, the Commission argues that the administrative decision is not complete or "final" for purposes of appeal until both steps have been accomplished.

We find the Commission's argument persuasive for several reasons. Before beginning our analysis, however, a review of the functions of the Department and the Commission under the Human Rights Act 775 ILCS 5/7-101 et. seq. (West 1996) is relevant. Under the Human Rights Act the Department has the power to investigate charges in order to determine whether a complaint should be filed with the Commission. See 775 ILCS 5/7-101 (B) and (D) (West 1996). Section 7A-102 of the Human Rights Act further provides that the Department "shall conduct a full investigation of the allegations set forth in the charge." 775 ILCS 5/7A-102(C)(1) (West 1996). As part of the investigation, and after reasonable notice to the parties, the Department may conduct a fact-finding conference. 775 ILCS 5/7A-102(C)(4) (West 1996). The purpose of the fact-finding conference is to obtain evidence, identify issues in dispute, ascertain the positions of the parties, and explore the possibility of reaching a negotiated settlement. Jabbari v. Human Rights Comm'n, 173 Ill. App. 3d 227, 231, 527 N.E.2d 480 (1988). The failure of any party to attend the fact-finding conference without good cause will result in either a dismissal or a default. See 775 ILCS 5/7A-102(C)(4) (West 1996).

In contrast, under the Human Rights Act, only the Commission has the authority to hear and decide complaints. See 775 ILCS 5/8-102 (G) (West 1996). And, until a complaint is issued by the Department, the proceedings are investigatory and not adjudicatory. See Webb v. Lustig, 298 Ill. App. 3d 695, 703, 700 N.E.2d 220 (1998). Although the Human Rights Act assigns separate functions to the Department and the Commission in processing the type of default matter here, we do not interpret that as an intent to permit separate appeals from each step in the process thereby contravening the general rule which limits review to final orders. See Kvidera v. Board of Fire and Police Comm'rs. of the Village of Schiller Park, 168 Ill. App. 3d 380-82, 522 N.E.2d 757 (1988); see also Butler Enterprises #662, Inc. v. Underwriters at Lloyds, London, 100 Ill. App. 3d 681, 686, 427 N.E.2d 312 (1981).

Even though the Administrative Review Act does not define final order, judicial review can only be undertaken where there has been a final agency determination. Jagielnik v. Board of Trustees, 211 Ill. App. 3d 26, 32, 569 N.E.2d 1293 (1991) citing Taylor v. State University Retirement System, 159 Ill. App. 3d 372, 512 N.E.2d 399 (1987). A final agency determination occurs only after an adversarial proceeding with a hearing on the controverted facts resulting in a decision being rendered by an impartial fact finder. Margaret Manor Inc. v. Lumpkin, 279 Ill. App. 3d 776, 780, 665 N.E.2d 318 (1996).

The fact-finding conference that took place in the underlying proceedings was not an adversarial proceeding where contested facts were heard. Instead, at the conference, one party (Jenkins) appeared and the other (Pinkerton) did not. An order of default was subsequently entered by the Department against Pinkerton for its failure to appear. Thus, the default order was not the result of a decision after a hearing on the merits. As mentioned above, under the current statutory scheme the default order that was entered was a permissible sanction. See 775 ILCS 5/7A-102 (West 1996). However, we do not find that the entry of the order changes the nature of the proceedings from investigatory to adjudicatory. See Folbert v. Department of Human Rights, ______Ill. App. 3d ______, 707 N.E.2d 590, 595 (1998), (holding that amendment allowing review by Chief Legal Counsel, instead of Commission, does not change the nature of investigative proceedings before the Department or investigative role of the Department). Accordingly, we find that the entry of the default order standing alone, was not an adjudication and was not a final order for purposes of appeal.

We also find that a final administrative decision as defined in 735 ILCS 5/3-101 (West 1996) was not rendered in this case because the default order did not terminate the proceedings before the administrative agency. See Kvidera, 168 Ill. App. 3d at 382, (holding that an order by the trial court remanding the cause to the agency to impose a sanction other than the one imposed by the agency is not a "final and appealable" order because it does not terminate the litigation between the parties on the merits); see also Mitrenga v. Martin, 110 Ill. App. 3d 1006, 1008, 443 N.E.2d 268 (1982), (holding the appellate court lacked jurisdiction to hear an appeal where the circuit court had the power to remand the agency decision for further proceedings.)

Here, the proceedings are continuing because the Commission is required to hold a hearing on damages. Were we to affirm the order of the Chief Legal Counsel sustaining the default, the proceedings would not terminate. Either Pinkerton or Jenkins could conceivably again appeal the decision of the Commission on the issue of damages. Thus, since the Commission has the power to determine damages in further proceedings, no final agency determination was made and we lack jurisdiction to hear this case.

Alternatively, even if we were to examine the default order under Supreme Court Rule 304(a) *fn1 (134 Ill. 2d R 304(a)), we would still conclude that the order was not final. In Smith v. Goldstick, 110 Ill. App. 3d 431, 436-37, 422 N.E.2d 551 (1982), a final order for purposes of Supreme Court Rule 304(a) (134 Ill. 2d R 304(a)) was described as one which "disposes of the entire controversy on the merits, so that, if affirmed, the trial court need only proceed with execution of judgment" (see also Factor v. Factor, 27 Ill. App. 3d 594, 596, 327 N.E.2d 396 (1975)), stating there is no finality "if the court retains jurisdiction for future determinations of matters of substantial controversy" (Smith v. Interstate Fire & Casualty Co., 47 Ill. App. 3d 555, 558, 362 N.E.2d 38 (1977)). Therefore, to be appealable under 304(a), not only must the order contain this express finding, but it must be final in character. Smith, 110 Ill. App. 3d at 436.

Looking at the character of the default order entered in this case, we find it lacked finality, because the order did not include the Commission's determination of damages. (See Shrypek v. Mazzochi, 227 Ill. App. 3d 1, 7, 590 N.E.2d 990 (1992), holding a default judgment becomes a final order after damages are set, thereby fixing the rights of the parties.)

As noted earlier, once an order of default is sustained upon review by the Chief Legal Counsel, the statute requires the Commission to "enter a default order and set a hearing on damages." 775 ILCS 5/7-101.1(C) (West 1996). The Commission still has jurisdiction to determine damages. We believe damages are matters of substantial controversy since Pinkerton is contesting and continues to contest the default order entered in this case. In addition, until damages have been determined, Jenkins has not been granted complete relief and the entire controversy has not been decided on the merits. Accordingly, there is no finality to the order entered by the Chief Legal Counsel sustaining the notice of default and this court is without proper subject matter jurisdiction to hear this case.

The fact that the Chief Legal Counsel characterized the default order in this case as "final" cannot confer jurisdiction on this court where the order was not final in substance. Smith, 110 Ill. App. 3d at 436 (1982). When looking at the default order entered in this case, we conclude that it was not final in character or substance for all of the reasons stated earlier.

Lastly, it should also be noted that in construing paragraphs (A) & (C) of section 7-101, this court is guided by the cardinal rule of statutory construction that requires sections of a statute to be read with reference to one another so that both may be given "harmonious effect." Galvin v. Galvin, 72 Ill. 2d 113, 118, 378 N.E.2d 510 (1978); 775 ILCS 5/7-101(A)(C) (West 1996). Reading paragraphs (A) and (C) of section 7-101 as a whole, we find that the proceedings before the administrative agency terminate and become final for purposes of appeal only after the Commission enters the default order and considers the issue of damages. 775 ILCS 5/7-101(A)(C) (West 1996).

Appeal dismissed.

CAHILL, P.J., and BURKE, J., concur.


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