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Ferrari v. Illinois Dep't of Human Rights

August 04, 2004

[5] NANCY FERRARI, PETITIONER-APPELLANT,
v.
THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS; ROCCO J. CLAPS, DIRECTOR; ALICE M. RALPH, ACTING CHIEF LEGAL COUNSEL; THE ILLINOIS DEPARTMENT OF CORRECTIONS; ROGER E. WALKER, JR., DIRECTOR; AND LOIS COOPER-SHIELDS, CHIEF INVESTIGATOR, RESPONDENTS-APPELLEES.



[6] Direct Appeal from General Counsel of Illinois Department of Human Rights No. 2002SF3265.

[7] The opinion of the court was delivered by: Justice McCULLOUGH.

[8]  Petitioner, Nancy Ferrari, appeals the decision of the acting chief legal counsel (Chief Legal Counsel) of the Illinois Department of Human Rights (Department) affirming the Department's dismissal of her sex-discrimination complaint filed pursuant to the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 through 10-103 (West 2002)). We reverse and remand with directions.

[9]  On June 26, 2002, petitioner filed a verified charge with the Department, alleging that respondent, the Illinois Department of Corrections (DOC), sexually discriminated against her on January 31, 2002, by discharging her from her job as an educator because of her gender. Specifically, she stated that DOC claimed the discharge was necessitated by inappropriate conduct of a sexual nature but that objective investigation would reveal DOC was aware similarly employed males had engaged in such conduct but remained employed.

[10]   On September 26, 2002, the Department issued notice of a fact-finding conference scheduled for November 20, 2002. A fact-finding conference is "an investigative forum intended to define the issues, determine which facts are undisputed, obtain evidence and ascertain whether there is a basis for a negotiated settlement of the charge." The notice indicated that a complainant's failure to attend the conference could result in dismissal of the charge.

[11]   On September 30, 2002, petitioner's counsel sent the Department a letter, stating she was reiterating her request that the Department issue a notice to show cause why DOC should not be held in default for failing to file a timely verified response in accordance with section 7A-102(B) of the Act (775 ILCS 5/7A-102(B) (West 2002)). The letter referenced a September 23, 2003, phone conversation between petitioner's counsel and Department investigator Annette VanHooser, where VanHooser told petitioner's counsel that she had asked respondent why it had not filed a verified response but was not given a reason why it was not filed. Petitioner's counsel further stated that investigative activities, including the November 20 fact-finding conference, should not continue where, if DOC does not show good cause, all allegations would be deemed admitted pursuant to statute.

[12]   On October 30, 2002, petitioner's counsel sent the Department another letter, noting that settlement negotiations were ongoing. It also stated that she could not recommend that petitioner attend the fact-finding conference unless and until the Department complied with its statutory duty to address DOC's failure to file a verified response within the 60-day time period and to issue DOC a notice to show cause.

[13]   On November 4, 2002, DOC sent a copy of its verified response (dated October 1, 2002) to petitioner's counsel. On November 7, 2002, VanHooser sent a letter to the parties, noting that DOC had by that date submitted a verified response and served a copy on petitioner. She also reminded the parties of the November 20 hearing. On November 8, 2002, petitioner filed a motion to strike DOC's verified response, arguing that DOC failed to file and serve it within the statutorily mandated 60-day period (775 ILCS 5/7A-102(B) (West 2002)) following receipt of notice of the charge. Petitioner argued that such failure required the Department to issue a notice to show cause. Absent a showing of good cause, petitioner stated that all allegations were to be deemed admitted by DOC. See 775 ILCS 5/7A-102(B) (West 2002). On November 18, 2002, petitioner sent another letter to the Department, requesting a response to her motion to strike the verified response, again citing the need to rule on such motion before the fact-finding conference. She formally requested that the conference be cancelled or postponed.

[14]   In a November 19, 2002, letter that was faxed to petitioner, VanHooser stated that "the Department is not a motion entertaining body and therefore cannot respond to Complainant's Motion to Strike Respondent's Verified Answer. The motion has been noted and place [sic] in Complainant's file and will be given the weight it is due when the report is written." The letter further denied petitioner's request to continue the fact-finding conference.

[15]   On November 19, 2002, petitioner's counsel sent a letter to VanHooser in reply, stating that "[o]ther than a motion, I am not sure how a complainant can raise procedural issues to the Department before the conclusion of the Department's investigation or how to terminate an 'investigation' when the respondent does not act in accordance with its statutory obligations." She reiterated that she had made four requests prior to the conference that it be postponed or cancelled. She stated that petitioner would not be attending the fact-finding conference because no factual issues remained to be addressed in light of the Department's failure to comply with its statutory duties.

[16]   On November 20, 2002, the Department held a fact-finding conference with witnesses for DOC in attendance. Neither petitioner nor her counsel attended. Besides the list of witnesses present, no record was made of the proceedings.

[17]   On December 26, 2002, the Department dismissed the complaint, finding that on September 25, 2002, petitioner agreed to attend the fact-finding conference on November 20, 2002, but did not in fact attend. It also noted that on November 19, 2002, petitioner's counsel contacted the Department and indicated that petitioner would not attend the conference because no factual questions remained to be addressed and petitioner had a resolution agreement pending that would result in petitioner withdrawing her charge from the Department. The dismissal order made mention neither of petitioner's motion and requests to strike DOC's verified response nor her request for default judgment.

[18]   Petitioner filed a timely request for review with the Chief Legal Counsel, requesting that the charge be reinstated and a notice to show cause issue in light of the Department's noncompliance with section 7A-102(B) of the Act in failing to address DOC's late-filed verified response. On July 28, 2003, the Chief Legal Counsel affirmed the dismissal order on the grounds of failure to proceed. See 56 Ill. Adm. Code §2520.560(b)(2) (Conway Greene CD-ROM March 2002). In affirming the dismissal, the Chief Legal Counsel reasoned as follows:

[19]   "[T]he record demonstrates that Complainant elected not to attend the fact finding conference because Complainant disagreed with the Department's decision to accept Respondent's verified response. However, the Department notified Complainant on November 7, 2002, and again on November 19, 2002, that Respondent's verified ...


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