Lemon v. Tucker

• Decision Date: 21 September 1988
• Docket Number: No. 84 C 4021.,84 C 4021.
• Citation: 695 F. Supp. 963
• Parties: Stewart LEMON and Steve Luckett, Plaintiffs, v. Joyce E. TUCKER, Defendant.
• Court: U.S. District Court — Northern District of Illinois

695 F. Supp. 963

Stewart LEMON and Steve Luckett, Plaintiffs, v. Joyce E. TUCKER, Defendant.

No. 84 C 4021.

United States District Court, N.D. Illinois, E.D.

September 21, 1988.

Jonathan K. Baum, Gary H. Palm, Edwin F. Mandel Legal Aid Clinic, Chicago, Ill., for plaintiffs.

Herbert A. Bates, Chicago, Ill., for amicus curiae Legal Redress Committee, NAACP.

Jeffrey W. Finke, Asst. Atty. Gen. of State of Ill., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

MAROVICH, District Judge.

This is a class action suit challenging the constitutionality of procedures for processing charges under the Illinois Human Rights Act, Ill.Rev.Stat. ch. 68, paras. 1-101, et seq. ("IHRA" or "the Act"). Plaintiffs in this 42 U.S.C. Section 1983 suit seek declaratory and injunctive relief against defendant Joyce Tucker individually and in her official capacity as Director of the Illinois Department of Human Rights ("IDHR" or "the Department"). Plaintiffs' essential claim is that Tucker is depriving them of their state-created property interests in their IHRA causes of action without due process of law in violation of the Fourteenth Amendment to the United States Constitution. Tucker denies that procedures under the IHRA deny plaintiffs procedural due process, especially in light of new amendments to the Act giving claimants more procedural protections. Defendant brought a motion to dismiss this lawsuit which was denied as to the due process claims by Judge Getzendanner of this court in 1985. Lemon v. Tucker, 625 F.Supp. 1110 (N.D.Ill.1985). The parties have engaged in discovery and now bring cross motions for summary judgment.

I. Background

A. Illinois Human Rights Act Procedures.

The IHRA was enacted by the State of Illinois pursuant to a declared public policy:

To secure for all individuals within Illinois the freedom from discrimination because of race, color, religion, sex, national origin, ancestry, age, marital status, physical or mental handicap, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations, and to prevent sexual harassment in employment and sexual harassment in higher education.

Ill.Rev.Stat. ch. 68, para. 1-102(A). The Act entitles a person who believes he has been the victim of discrimination ("the complainant") to file a charge with the Illinois Department of Human Rights. Ill.Rev. Stat. ch. 68, para. 7-102. The complainant has a cause of action based on a list of discriminatory acts prohibited by the IHRA. Id. at paras. 2-102, 4-102, 5-102, 6-101. During the pendency of the instant lawsuit, Illinois twice amended the Act. One set of amendments took effect on September 16, 1985 and the second on September 24, 1987.

Under the original Act, the complainant began by filing a charge containing allegations about the time, place, and facts surrounding the alleged violation. The amendments taking effect September 24, 1987 provide for a more extensive "pleading" procedure. Thus, in addition to complainant filing a charge, the respondent must file a response to the allegations in the charge. Further, the complainant has the opportunity to reply to the response. Both parties have the right to supplement their response or reply at any time during the investigation. Ill.Rev.Stat. ch. 68, para. 7-102(B).

Once the complainant has filed a charge, the Department conducts an investigation to determine whether substantial evidence of an IHRA violation exists. The Department is authorized, but not required, to compel the attendance of witnesses and the production of documents. Ill.Rev.Stat. ch. 68, para. 7-102(C).

In many cases, the parties are entitled to an informal fact-finding conference in front of a Department investigator. This conference is not a formal hearing and no cross-examination of witnesses is provided. Under the version of the Act that was in effect when this suit was filed, the IDHR had the discretion to conduct a fact-finding conference within the first 120 days after the charge was filed and thereafter if the parties consented. Under the 1987 amendments, the IDHR must provide a fact-finding conference on all charges that have been pending longer than 210 days. Ill. Rev.Stat. ch. 68, para. 7-102(C)(4).

Once the investigation is concluded, the Department prepares a written report which is sent to the Director of the Department of Human Rights, defendant Tucker. After reviewing the report, defendant makes a determination whether there is substantial evidence that a civil rights violation has occurred. Ill.Rev.Stat. ch. 68, para. 7-102(D)(2). If defendant finds substantial evidence of a violation, she designates a Department attorney to attempt to settle the matter through conference and conciliation. If no settlement is effected, the Department files a complaint with the Illinois Human Rights Commission ("IHRC" or "Commission"). The Commission will then conduct a full evidentiary hearing on the matter and award such relief as is appropriate.

If the Director determines that no substantial evidence of a violation exists, she dismisses the charge. Within 30 days of the dismissal, the complainant can file a request for review with the Commission. Upon review, the Commission "may consider the Department's report, any argument and supplemental evidence timely submitted, and the results of any additional investigation conducted by the Department...." Ill.Rev.Stat. ch. 68, para. 8-104(B). In its discretion, the Commission may also designate a hearing officer to conduct a hearing into the factual basis for the matter at issue.

If the Commission denies the complainant's request for review the complainant can take an appeal to the Illinois Appellate Court. The appellate court's review is limited in scope and the Commission's findings of fact are sustained unless contrary to the manifest weight of the evidence. Ill.Rev. Stat. ch. 68, para. 8-111. The appellate court also has discretionary judicial remand authority if the court feels that the administrative record needs to be supplemented.

B. History of This Litigation.

This action was commenced as a class action on June 5, 1984. By order dated July 16, 1987, Judge Getzendanner certified the plaintiffs' proposed class. The class consists of:

all persons who currently have charges of discrimination pending with the Illinois Department of Human Rights ("IDHR") or requests for review pending before the Illinois Human Rights Commission ("IHRC"). The class further consists of all persons who will file charges with the IDHR after commencement of this action (dated June 5, 1984). The class does not include those persons whose charges have been disposed of by a finding of substantial evidence.

Memorandum Opinion and Order, No. 84 C 4021, slip op. at pp. 1, 2, July 16, 1987. The class description was later modified to take into account amendments to the Act which provide that after September 16, 1985, all claimants whose claims have been on file with the Department for more than 300 days with no disposition are entitled to a full evidentiary hearing before the Commission. Judge Getzendanner excluded from the class all persons who are entitled to that full evidentiary hearing, that is, "those persons who filed charges after September 16, 1985 and whose charges were not fully processed within 300 days of their filing." Order of Judge Getzendanner, No. 84 C 4021, August 10, 1987. In sum, the plaintiff class includes all persons who had charges or requests for review pending at the time this action was commenced and all those who subsequently filed such actions, excluding those who filed after September 16, 1985 and whose claims were still pending after 300 days, and excluding any claimants whose charges were disposed of on findings of substantial evidence.

Plaintiffs filed a two-count complaint. The first count alleged a procedural due process violation while the second count alleged an equal protection violation. Pursuant to a motion to dismiss filed by the defendant, Judge Getzendanner dismissed Count II, the equal protection count. In a published opinion Judge Getzendanner declined to dismiss the due process claim, Count I, finding that the count does state a cause of action. Lemon v. Tucker, 625 F.Supp. 1110 (N.D.Ill.1985).

Count I alleges that plaintiffs possess a property right in their IHRA cause of action. Plaintiffs claim that the Department deprives plaintiffs of this property right without due process of law by dismissing their charges for lack of substantial evidence without sufficient procedural protections. Specifically, plaintiffs allege that the Department's procedures are deficient in the following respects:

(a) Complainants do not have the right to have an adjudicatory hearing.

(b) Complainants do not have the right to know the evidence against them.

(c) Ex parte contacts are permitted.

(d) Complainants do not have the right to cross-examine respondent's witnesses.

(e) Complainants do not have the right to present all evidence in their favor.

(f) Complainants do not have the right to make or have made a verbatim record of testimony or to have a decision made solely on the basis of the record.

(g) Complainants do not have the right to compulsory process for the production of witnesses or documents.

(h) Complaints do not have the right to notice of their rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, under the Illinois Human Rights Act, under IDHR Rules and Regulations, and under IDHR policies and practices.

Second Amended Complaint, Count I, ¶¶ 10(a)-(h).

Judge Getzendanner concluded that the procedures guaranteed to complainants for investigating charges for substantial evidence and review of dismissals under the IHRA were sufficiently offensive to due process to survive a motion to dismiss. After evaluating plaintiffs' claims under the ruberic of Mathews v....