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Graves v. Chief Legal Counsel of the Illinois Department of Human Rights

January 16, 2002

MICHELLE GRAVES, PETITIONER
v.
CHIEF LEGAL COUNSEL OF THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS; THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS; SHOP 'N SAVE WAREHOUSE FOODS, INC., D/B/A SHOP 'N SAVE; AND LARRY LANCASTER, RESPONDENTS



Direct Review of the Chief Legal Counsel of the Illinois Department of Human Rights No. 1999SF0703

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

Released for publication February 25, 2002.

MICHELLE GRAVES, PETITIONER
v.
CHIEF LEGAL COUNSEL OF THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS; THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS; SHOP 'N SAVE WAREHOUSE FOODS, INC., D/B/A SHOP 'N SAVE; AND LARRY LANCASTER, RESPONDENTS

Direct Review of the Chief Legal Counsel of the Illinois Department of Human Rights No. 1999SF0703

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

PUBLISHED

 In this judicial review proceeding pursuant to section 8-111(A)(1) of the Illinois Human Rights Act (Act) (775 ILCS 5/8-111(A)(1) (West 2000)) and Supreme Court Rule 335 (155 Ill. 2d R. 335), petitioner Michelle Graves seeks judicial review of a portion of the decision of the chief legal counsel of the Illinois Department of Human Rights (Department). The chief legal counsel determined that the Department did not have jurisdiction of sexual harassment claims for actions occurring more than 180 days prior to petitioner filing charges against respondent Larry Lancaster. Petitioner does not seek review of similar determinations by the chief legal counsel concerning the limitations period on claims against respondent Shop 'N Save Warehouse Foods, Inc. (Shop 'N Save), the employer of petitioner and Lancaster. Shop 'N Save has not filed a written appearance and is not a party in this appeal. 155 Ill. 2d R. 335(c). Nor does petitioner seek review of the dismissal of a claim against Lancaster for retaliation that the chief legal counsel upheld because Lancaster was not her employer. Finally, not at issue in this case is the chief legal counsel's findings of substantial evidence with regard to the petitioner's claims against Lancaster for actions occurring within 180 days of the filing of the charges. Petitioner challenges the propriety of the chief legal counsel's findings of lack of subject-matter jurisdiction of claims arising from the actions of Lancaster that occurred more than 180 days prior to filing the charges. We affirm.

The parties suggest that the proper standard of review is whether the chief legal counsel's decision is "clearly erroneous." We disagree. The chief legal counsel's decision to sustain a dismissal of a human rights violation charge will not be disturbed unless it is arbitrary, capricious, or an abuse of discretion. Webb v. Lustig, 298 Ill. App. 3d 695, 704, 700 N.E.2d 220, 226 (1998). The chief legal counsel's determination is not a quasi-judicial decision. In Webb v. Lustig, this court discussed at length the statutory procedure for pursuing a claim of discrimination. Webb, 298 Ill. App. 3d at 702-03, 700 N.E.2d at 225. This court noted that, before the Department issues a formal complaint, the proceedings are investigatory, not adjudicatory, and the dismissal of the charge by the Department occurs at the investigatory stage, including the chief legal counsel's determination of whether to uphold the dismissal. Webb, 298 Ill. App. 3d at 703, 700 N.E.2d at 225. The Department and chief legal counsel's determinations are prosecutorial, i.e., whether to prosecute a claim, and the standard applicable to reviewing decisions on mixed questions of law and fact in judicial decisions simply does not apply here.

Where an administrative agency's decision involves a mixed question of law and fact, the "clearly erroneous" standard may no longer be the appropriate standard to apply even though that was the standard that was applied by the supreme court in City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998). The supreme court in cases since Belvidere has broken the question down into its fundamental parts, reviewing questions of fact at the appropriate standard, such as manifest weight, and questions of law de novo. See People v. Crane, 195 Ill. 2d 42, 51-52, 743 N.E.2d 555, 562 (2001) (when reviewing the propriety of the trial court's determination of a speedy-trial claim, factual determinations are reviewed on a manifest weight standard and thereafter the court considers de novo the application of the balancing tests); In re G.O., 191 Ill. 2d 37, 50, 727 N.E.2d 1003, 1010 (2000) (applying manifest weight standard to factual findings in a suppression hearing but deciding de novo the ultimate question of whether the question was voluntary).

Section 7A-102(A)(1) of the Act provides that, "[w]ithin 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department." 775 ILCS 5/7A-102(A)(1) (West 2000). The claim must be in such detail as to substantially apprise the concerned parties of the time, place, and facts surrounding the alleged violation. 775 ILCS 5/7A-102(A)(2) (West 2000). The 180-day requirement in section 7A-102(A)(1) is mandatory (Lipsey v. Human Rights Comm'n, 267 Ill. App. 3d 980, 992, 642 N.E.2d 746, 755 (1994)), and compliance is jurisdictional (Faulkner-King v. Department of Human Rights, 225 Ill. App. 3d 784, 792, 587 N.E.2d 599, 604 (1992)).

Petitioner made six allegations of sexual harassment, three against Lancaster and three against Shop 'N Save. She also made two allegations of retaliation, one against each respondent. The Department dismissed four of the sexual harassment claims for lack of jurisdiction and the other two for lack of substantial evidence. The Department also dismissed the retaliation claim against Shop 'N Save for lack of substantial evidence and the retaliation claim against Lancaster for lack of jurisdiction. Petitioner sought review by the chief legal counsel, challenging only the dismissal of the claims against Lancaster. The chief legal counsel sustained the dismissal of two claims of sexual harassment and the claim for retaliation against Lancaster on the ground of lack of jurisdiction but vacated the dismissal of the third claim of sexual harassment, finding there was substantial evidence. In this appeal, petitioner does not challenge the propriety of the chief legal counsel's ruling that the retaliation claim against Lancaster could not be maintained because he was not an "employer" within the meaning of the statute.

The chief legal counsel found that claimant filed her charge on June 10, 1999, and amended it on September 22, 1999. The Department broke down the allegations by grouping the first set of allegations of sexual harassment against Lancaster to have occurred between June 1997 and August 13, 1998, more than 300 days prior to the filing of the charge; the second group of allegations of sexual harassment against Lancaster on August 14, 1998, to December 11, 1998, more than 180 days prior to the filing of the charge but less than 300 days prior to the filing of the charge; and the third group from and after December 12, 1998, within 180 days of the filing of the charge. The petitioner's charge alleged that the sexual harassment consisted of sexual comments, sexual innuendoes, requests for sex, and touching of her body, specifically her breasts. The importance of the 300-day period apparently refers to the jurisdiction of the Equal Employment Opportunity Commission under federal law. See 42 U.S.C. §2000e-5(e)(1) (1994). In upholding the dismissals, the chief legal counsel relied solely on the 180-day condition precedent contained in section 7A-102(A)(1) of the Act.

In this appeal, petitioner argues that, although some of the acts of sexual harassment may have occurred more than 180 days prior to the filing of the charge, the sexual harassment was continuous and the "continuing violation doctrine" should be employed to find jurisdiction of all the alleged incidents.

Lancaster argues that this issue is waived. He fails to discuss how waiver applies at the investigatory stage of a discrimination proceeding. None of the cases he cites on the issue of waiver involve a proceeding under the Act. The petition for review by the chief legal counsel does not employ the term "continuing violation doctrine." That petition does nevertheless ...


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