Jabbari v. Illinois Human Rights Com'n

• Decision Date: 18 July 1988
• Docket Number: No. 87-1761,87-1761
• Citation: 173 Ill.App.3d 227,527 N.E.2d 480,123 Ill.Dec. 17
• Parties: , 123 Ill.Dec. 17 Habibeh JABBARI, Complainant-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION, Illinois Department of Human Rights and Ethyl Corporation, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 480

527 N.E.2d 480

173 Ill.App.3d 227, 123 Ill.Dec. 17

Habibeh JABBARI, Complainant-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION, Illinois Department of Human Rights and Ethyl Corporation, Respondents-Appellees.

No. 87-1761.

Appellate Court of Illinois First District, First Division.

July 18, 1988.

Rehearing Denied Sept. 8, 1988.

Alan Rhine, Chicago, for complainant-appellant.

Neil F. Hartigan, Atty. Gen., Shawn W. Denney, Sol. Gen. (Deborah L. Ahlstrand, Asst. Atty. Gen., of counsel), Chicago, for respondents-appellees.

Presiding Justice CAMPBELL delivered the opinion of the court.

Complainant, Habibeh Jabbari, filed a charge of unlawful discrimination on the basis of a physical disability against her former employer, Ethyl Corporation ("Ethyl"), before the Illinois Human Rights Commission (the "HRC"). The HRC adopted and affirmed the decision of the Department of Human Rights (the "Department") and dismissed complainant's charge for lack of substantial evidence. For the following reasons, we affirm the decision of the HRC.

The record indicates that on August 19, 1985, complainant, a machine operator, was fired for failing to obey a work order issued by her supervisor. There is conflicting testimony as to the reasons for complainant's failure to obey the order. Initially, in October, 1985, complainant filed a grievance form with her union requesting reinstatement with no loss of benefits or back pay. On the grievance form, complainant stated that she had been asked to work next to a member of her family "who she did not get along with," refused to do so, and was terminated. There is no mention in the grievance form of a physical disability which would have prevented her from doing the assigned work.

Subsequently, in January, 1986, complainant filed a charge with the HRC, alleging that, in terminating her employment, Ethyl had discriminated against her on the basis of her physical handicap, i.e., orthopedic impairment to her neck, left arm and right shoulder incurred in 1979 and 1981 when a machine fell against her while working at Ethyl. In her charge, complainant alleged that on August 19, 1985, her supervisor told her to work on a machine which her disability prevented her from operating. Complainant further alleged that she had showed her supervisor a doctor's letter regarding her condition, which he just ripped up and threw away. He then fired her for refusing to work on the machine.

At the fact-finding conference held by the Department, complainant stated that because the machine she was asked to work on (machine 201) did not have an automatic door like the machine to which she was normally assigned (machine 202), she could not operate it because of the pain in her arm and neck. Complainant's supervisor stated that he had asked her to work on machine 201, which requires two operators, because machine 202, on which she usually works, would not start. Complainant allegedly refused to operate machine 201 because she did not get along with the other operator of machine 201, her sister-in-law. When the supervisor told complainant that if she refused to operate machine 201, he would fire her, she still refused. He then asked Betty Wright, the union steward, to join them to explain to complainant that if she did not follow orders, she would be fired. Complainant again refused to work at machine 201 and was fired.

Betty Wright testified at the fact-finding conference that she had heard complainant tell her supervisor that she would not work at machine 201 because she did not want to work with her sister-in-law. Wright explained that when employees were hired, they were told that if they refused to perform a job, they would be fired. Dennis Mascolo, union business agent, testified at the conference that during the grievance hearing, complainant had stated that she had refused to work on machine 201 because she did not get along with her sister-in-law.

Following the fact-finding conference, the Department issued its Investigative Report to the HRC, recommending that the charge be dismissed for lack of substantial evidence. The following exhibits were attached to the Report: (1) Respondent's EEO-1 Report; (2) complainant's union grievance; and (3) numerous medical reports. Subsequently, the Department issued its Notice of Dismissal, which informed complainant that she could seek review of the dismissal before the HRC by filing a Request for Review with the HRC within 30 days.

On January 21, 1987, complainant filed a Request for Review with the HRC which stated only that: "The decision is wrong." The Department timely responded to complainant's Request for Review, stating that complainant has been "unable to show how her handicap was a factor in respondent's decision to discharge her or that she was denied an accommodation." Thereafter, the HRC entered its order dismissing complainant's charge for lack of substantial evidence.

Complainant's timely appeal followed. On appeal, complainant contends that the procedures followed by the Department to investigate and to dismiss her charge as set forth in the Illinois Human Rights Act (the "Act") (Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.) denied her her constitutional rights to due process and equal protection.

The Act creates a state cause of action for various discriminatory practices based on race, color, sex, handicap, marital status, religion, national origin, age, ancestry, or unfavorable military discharge. (Par. 1-103(Q).) In order to effectuate the goals of the Act, which include equal employment opportunity for employees and protection for employers against unwarranted claims, the legislature established the following procedures to determine the validity of a complainant's charge. Initially, the complaining party must file a charge of discrimination with the Department within 180 days of the alleged discriminatory act by the employer or the charge must be issued by the Department itself under the signature of the Director. (Par. 7-102(A).) After notice to the employer, the Department then conducts an investigation of the charge with the power to subpoena witnesses and documents. (Par. 7-102(C)(1), (C)(2).) In addition, upon reasonable notice to all parties, the Department conducts a fact-finding conference. (Par. 7-102(C)(4).) The specific 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 a negotiated settlement of the controversy. (Chicago Transit Authority v. Ill. Dept. of Human Rights (1988), 169 Ill.App.3d 749, 120 Ill.Dec. 197, 523 N.E.2d 1108.) The failure to attend the conference without good cause may result in dismissal of the charge or default against the employer. (Par. 7-102(C)(4).) However, such dismissal or default does not bar a party from seeking review before the HRC. (Par. 8-103.) The notice of dismissal or default is issued by the Director, who notifies the relevant party that a request for review may be filed in writing with the HRC within 30 days of receipt of such notice. (Par. 7-102(C)(4).) Each investigated charge is subject to a confidential report to the Director. (Par. 7-102(D).) Further statutory provisions provide for a formal conciliation conference if the Director determines there is substantial evidence of a violation of the Act (Par. 7-102(E)) and, upon failure to settle or adjust any charge, the Department then prepares and files a written complaint with the HRC. Par. 7-102(F).

Once a complaint is filed with the HRC, the statute provides for notice of a hearing before a hearing officer, amendment of and answer to the complaint, hearing procedures, written findings of fact, decision by the hearing officer and review and rehearing by the HRC. (Pars. 8-103 through 8-107.) The HRC's final order is subject to judicial review in accordance with the provisions of the Administrative Review Law (the "ARL"). Upon review, the HRC's findings of fact are to be held prima facie correct and its decision sustained unless the court determines that the findings are contrary to the manifest weight of the evidence. Par. 8-111.

In the present case, complainant contends that the procedures utilized by the Department to investigate and dismiss her charge of discrimination deprived her of her property rights without the opportunity to be heard in a manner appropriate to the nature of the case. Specifically, complainant argues that the right to cross examination, the right to a transcript of the fact-finding conference, and the right to compel production of documents should attach to the fact-finding conference. In response, respondents contend that the changes in procedure sought by complainant would turn every investigation into an adversarial proceeding. In reaching a determination as to any due process claim, the court must address a two-part inquiry: whether the plaintiff has a protectible property interest and, if so, what process is due. (Lemon v. Tucker (N.D.Ill.1985), 625 F.Supp. 1110.) With respect to the first part of the inquiry, in Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265, the Supreme Court held that an employee's right to use the Fair Employment Practices Act's ¹ administrative and adjudicative procedures was a property right protected by the due process clause which could not be dismissed by the Department unless there was no substantive evidence to support it. Having determined that the complainant possessed a property right in the right to file a claim under the Act, the next inquiry is what process is due to complainant.

It is well-recognized that until a complaint is issued by the Department, the proceedings are investigatory and not adjudicatory. (Board of Governors of State Colleges and Universities v. Illinois Human Rights Comm. (1982), 109 Ill.App.3d 946, 65 Ill.Dec. 478, 441 N.E.2d 391.) Courts have defined the distinction between the...