Faulkner-King v. Department of Human Rights

• Court: Appellate Court of Illinois
• Writing for the Court: KNECHT
• Citation: Faulkner-King v. Department of Human Rights, 225 Ill.App.3d 784, 587 N.E.2d 599, 167 Ill.Dec. 330 (Ill. App. 1992)
• Decision Date: 06 February 1992
• Docket Number: FAULKNER-KIN,No. 4-91-0301,P,4-91-0301
• Parties: , 167 Ill.Dec. 330, 72 Ed. Law Rep. 975 Vivianetitioner, v. DEPARTMENT OF HUMAN RIGHTS, Illinois Human Rights Commission, and University of Illinois School of Art and Design, Respondents.

Page 599

587 N.E.2d 599

225 Ill.App.3d 784, 167 Ill.Dec. 330,

72 Ed. Law Rep. 975

Vivian FAULKNER-KING, Petitioner, v. DEPARTMENT OF HUMAN RIGHTS, Illinois Human Rights Commission, and University of Illinois School of Art and Design, Respondents.

No. 4-91-0301.

Appellate Court of Illinois Fourth District.

Feb. 6, 1992.

Robert G. Kirchner, Lerner & Kirchner, Champaign, for petitioner.

Michael R. Cornyn, Thomas, Mamer & Haughey, Champaign, for University of Ill. School of Art & Design.

Roland W. Burris, Atty. Gen., Chicago, Rosalyn B. Kaplan, Sol. Gen., Eve Moran, Asst. Atty. Gen., for respondents.

Justice KNECHT delivered the opinion of the court:

Petitioner appeals the decision of the Illinois Human Rights Commission (Commission) (In re Vivian Faulkner-King (December 20, 1990), Ill. Hum. Rights Comm'n Rep. (HRC No. 1988-SF-0345)), affirming the decision of the Department of Human Rights (Department) that it lacked jurisdiction to hear her complaint because she had filed it more than 180 days after the alleged civil rights violation occurred. The complaint alleged the University of Illinois (University) denied her tenure and promotion on the basis of her sex, thereby violating the provisions of the Illinois Human Rights Act (Act) ( Ill.Rev.Stat.1989, ch. 68, par. 1-101 et seq.).

The petitioner had been an assistant professor at the School of Art and Design at the University. In the fall of 1985, she requested tenure and promotion. On November 13, 1985, she received a letter from Director Wicks notifying her the School of Art and Design Personnel Committee (Committee) had voted not to recommend her for tenure and promotion. After receiving the letter from Wicks, petitioner decided she would appeal the Committee's recommendation. The appeal process resulted in Dean McKenzie determining the Committee had been unlawfully constituted and advising Wicks to appoint a new committee to review petitioner's file.

On May 8, 1986, petitioner received a letter from Wicks advising her the new committee had voted to deny her tenure. Later, she notified Wicks she would seek review of the recommendation. On August 11, 1986, Wicks informed her the committee had affirmed its original decision, and he would recommend to the dean that she be issued a notice of nonreappointment and offered a terminal contract. On August 11, 1986, Wicks sent letters to McKenzie and Vice-chancellor Goldwasser informing them of the committee's decision and requesting petitioner be issued a notice of nonreappointment and offered a terminal contract. On August 20, 1986, the board of trustees issued petitioner a terminal contract for the 1986-87 academic year. The contract specified that notice of nonreappointment after completion of the contract was thereby given.

On September 17, 1986, McKenzie responded to her request for an extension and further review by stating he would not change his previous recommendation to the vice-chancellor. On April 7, 1987, the Faculty Advisory Committee (FAC) recommended to Vice-chancellor Berdahl that reconsideration be given to petitioner's denial of tenure. On July 17, 1987, the petitioner was advised that Berdahl supported the University's decision. On August 20, 1987, petitioner's terminal contract expired.

On January 20, 1988, petitioner filed a complaint with the Department. The Department dismissed her complaint as filed more than 180 days after the alleged human rights violation had occurred. (See Ill.Rev.Stat.1989, ch. 68, par. 7A-102(A)(1).) The Department explained that on August 20, 1986, the petitioner was issued a terminal contract, and the statutory limitations period commenced running on that date. Petitioner filed her complaint on January 28, 1988, more than 1 1/2 years after she had received notification of what amounted to her termination. Later, the Commission affirmed the Department's finding of lack of jurisdiction and stated the time for filing a charge had commenced on November 13, 1985, when she was originally informed she was not being recommended for tenure. However, it also stated the time period began to run on the date the board of trustees issued her the terminal contract, i.e., August 20, 1986. The Commission later denied petitioner's petition for rehearing before the entire Commission.

On appeal, petitioner contends (1) the Department lacked subject-matter jurisdiction to hear the complaint; (2) the complaint was filed timely; (3) the 180-day filing period is not jurisdictional, and therefore, the respondents should be estopped from asserting that her claim was untimely filed; and (4) the charge-filing limitations period is unconstitutional.

The Act prohibits "employers" from basing employment decisions on unlawful discrimination. (Ill.Rev.Stat.1989, ch. 68, par. 2-102(A).) The prohibition extends only to employers as defined by the Act. (Ill.Rev.Stat.1989, ch. 68, par. 2-101(B)(1).) Based on the definitions contained in the Act, petitioner first argues that the term "employer" does not include the University because it is a public corporation separate and distinct from the State and, therefore, asks this court to vacate the decision of the Commission and dismiss her appeal.

The petitioner evidently wants us to determine the Department did not have jurisdiction, not because her complaint was untimely but because the University is not an "employer." This is an absurd argument for petitioner to advance because, were we to accept her argument, we could not grant her any substantive relief.

Petitioner cites People ex rel. Board of Trustees of the University of Illinois v. Barrett (1943), 382 Ill. 321, 46 N.E.2d 951, to support her assertion the University is not part of the State. However, in Barrett, the supreme court was faced with the question of whether the Attorney General, by virtue of his office, was a legal advisor for the university and its board of trustees. After viewing the status of the university as a corporate entity, its relation to the State, and the powers vested in the Attorney General, the court concluded the university was a public corporation, and its trustees were entitled to select their own legal counsel. Barrett, 382 Ill. at 347, 46 N.E.2d at 964.

Although the University is not part of the State for purposes of being represented by the Attorney General, it does not follow that the University is not part of the State for purposes of the Act. Although the University is not an administrative division of the State and is not an agency or instrumentality of the State in the sense it is a department or branch of the State government, it nevertheless is a State institution. It was established by the State; it has no employees, but rather the employees are State employees and are paid by State funds, the property of the University belongs to the State, the State retains some control over its operation, and all money derived from interest on funds invested rents, tuition, et cetera, belong to the State. (Barrett, 382 Ill. at 338-47, 46 N.E.2d at 960-64.) Further, Barrett asserted the university functioned solely as an agency of the State for the operation and administration of the university. (Barrett, 382 Ill. at 343, 46 N.E.2d at 962.) Therefore, a significant connection exists to the State to consider it a part of the State for purposes of the Act. Moreover, the public policy of Illinois is to protect the fundamental employment rights of the citizens with respect to nondiscriminatory opportunity and employment. The definitions in the Act are broad to encompass many types of employers so as to effectively carry out this policy. To exclude the University from coverage under the Act would require that we give the term "State" an unnecessarily narrow interpretation in light of the policy of Illinois. We decline to do so, and therefore reject petitioner's first argument.

Next, she argues the discriminatory act occurred on August 20, 1987, when her contract ended and no extension was provided, and hence, her complaint was timely filed within the meaning of section 7A-102(A)(1) of the Act. To support her argument, she contends that because of the continuing review process, even after the terminal contract was issued, it was not until August 20, 1987, that she became aware that her request for tenure and promotion had been finally decided.

Section 7A-102(A)(1) of the Act states:

"Within 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 * * *." (Ill.Rev.Stat.1989, ch. 68, par. 7A-102(A)(1).)

An argument that the language of the 180-day charge-filing provision of a predecessor section of the Illinois Fair Employment Practices Act (Ill.Rev.Stat.1975, ch. 48, par. 858) was permissive, rather than mandatory, was rejected in Lee v. Human Rights Comm'n (1984), 126 Ill.App.3d 666, 669, 81 Ill.Dec. 821, 823, 467 N.E.2d 943, 945.

In determining the day upon which the allegedly discriminatory act occurred, the decision in Delaware State College v. Ricks (1980), 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431, is instructive. It is appropriate to examine Federal decisions in the fair employment field because of the similarities between the Federal and Illinois enactments. Lee, 126 Ill.App.3d at 672, 81 Ill.Dec. at 825, 467 N.E.2d at 947.

In Ricks, the Supreme Court reviewed a decision under title VII of the Federal Civil Rights Act (42 U.S.C. § 2000e-5(e) (Supp. IV 1974)) and held the limitations period commenced when the board of trustees notified respondent he would be offered a terminal contract.

In February 1973, the tenure committee there had recommended Ricks not receive tenure. The committee agreed to reconsider its recommendation but affirmed its original decision. Subsequently, he filed a grievance with the grievance committee. On June 26, 1974, the trustees informed him that he would be offered a terminal contract which would expire on ...