Moss-American, Inc. v. Fair Employment Practices Commission

• Court: Appellate Court of Illinois
• Writing for the Court: CARTER; GEORGE J. MORGAN, P.J., and CREBS
• Citation: Moss-American, Inc. v. Fair Employment Practices Commission, 22 Ill.App.3d 248, 317 N.E.2d 343 (Ill. App. 1974)
• Decision Date: 24 September 1974
• Docket Number: INC,MOSS-AMERICA,No. 73--149,73--149
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1445, 8 Empl. Prac. Dec. P 9756 , Plaintiff-Appellee, v. FAIR EMPLOYMENT PRACTICES COMMISSION, State of Illinois, et al., Defendants-Appellants.

Page 343

317 N.E.2d 343

22 Ill.App.3d 248, 16 Fair Empl.Prac.Cas. (BNA) 1445,

8 Empl. Prac. Dec. P 9756

MOSS-AMERICAN, INC., Plaintiff-Appellee, v. FAIR EMPLOYMENT PRACTICES COMMISSION, State of Illinois, et al., Defendants-Appellants.

No. 73--149.

Appellate Court of Illinois, Fifth District.

Sept. 24, 1974.

Cohn, Carr, Korein, Kunin & Brennan, East St. Louis (Rex Carr, East St. Louis, of counsel), William J. Scott, Atty. Gen., Chicago (Paul J. Bargiel, A. Zola Groves, and Robert G. Epsteen, Asst. Attys. Gen., Chicago, of counsel), for defendants-appellants.

George S. Hecker, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for plaintiff-appellee.

CARTER, Justice.

This is an appeal from an order of the Circuit Court of St. Clair County, dismissing a complaint of the appellant, the Fair Employment Practices Commission of the State of Illinois, which had been issued by it against the appellee, Moss-American, Inc., under the Illinois Fair Employment Practices Act, Ill.Rev.Stat. (1967), ch. 48, para. 858. The complaint had been issued on behalf of Joe W. Fenton and Kenneth Baker, employees of Moss-American, who claimed that Moss-American had been guilty of an unfair employment practice in violation of the Illinois Fair Employment Practices Act.

The trial court's order of dismissal of February 28, 1973, was based upon the grounds that: 1) the Commission failed to dismiss the complaint of appellant Baker in accordance with Section 8 of the Act, 2) the decision of the Commission was arbitrary and unreasonable, 3) the Commission and the Circuit Court are bound by prior arbitration decisions on the matters of seniority, etc., as alleged in the complaint, and 4) the Commission had no jurisdiction to hear the complaint. The specific order of the Circuit Court fails to mention the disposition of Fenton's complaint. Neither appellee nor appellants have noted this in their briefs, and all parties take the position that the Circuit Court by its revised order, dismissed the complaints filed on behalf of Baker And Fenton.

The three issues to be resolved are:

1) Did the Fair Employment Practices Commission of Illinois have jurisdiction to hear the complaints of appellants, Joe W. Fenton and Kenneth Baker, under Section 8 of the Fair Employment Practices Act of Illinois, Ill.Rev.Stat. (1967), ch. 48, sec. 858?

2) Does arbitration of a grievance relative to seniority rights under a collective bargaining agreement deprive the Fair Employment Practices Commission of jurisdiction to determine charges of racial discrimination filed with it?

3) Was the decision of the Fair Employment Practices Commission of Illinois arbitrary and unreasonable?

After a brief history of the case, we will treat the issues in the order presented. Appellants Fenton and Baker were black employees working as laborers by appellee since May, 1966, and January, 1966, respectively. A vacancy in a job classification 'mechanic' occurred in March, 1968, and both appellants bid for the position. However, they lost to the only other applicant, Walter Schlemmer, a white laborer. The appellants immediately filed grievances through their union representative, charging that, since each of them had been employed longer than Schlemmer, each therefore had greater 'seniority' than Schlemmer. The grievance was arbitrated in accordance with the collective bargaining provision between the appellee and District 50 of the United Mine Workers of America. The arbitrator found that the company did not violate the seniority provisions of the collective bargaining agreement and that there was no evidence that the management acted in an arbitrary, capricious or discriminatory manner.

On May 6, 1968, the Springfield office of the Illinois Fair Employment Practices Commission (hereinafter referred to as the Commission) received on printed forms provided by the United States Government certain documents in duplicate entitled 'Charge of Discrimination' signed under oath by Fenton and Baker. The documents so received contained on their face printed instructions to mail them to the regional office of the United States Equal Employment Opportunity Commission, a Federal agency. The Springfield office of the Commission, a state agency, forwarded one copy of each document to the Chicago regional office of the United States Equal Employment Opportunity Commission and retained the duplicate copies of each document and assigned them numbers 68--S--15 (Fenton) and 68--S--16 (Baker), respectively, on May 6, 1968. On May 13, 1968, a copy of each document which had been so forwarded to the Chicago regional office of the United States Equal Employment Opportunity Commission was returned to the Springfield office of the Commission by the Chicago office pursuant to the Civil Rights Act of 1964, 42 U.S.C.A., sec. 2000e--5(b), (c). Upon receipt of these documents, which contained charges of racial discrimination against appellee, the Springfield office re-docketed the documents as 68--SF--18 (Fenton) and 68--SF--19 (Baker), respectively. The Commission on October 29, 1968, ordered the charges set forth in the documents originally received by it on May 6, 1968, 68--S--15 (Fenton) and 68--S--16 (Baker) dismissed for lack of jurisdiction. On November 8, 1968, complaints were issued and filed by the Commission on charge numbers 68--SF--18 (Fenton) and 68--SF--19 (Baker) against Moss-American. On August 8, 1969, the Honorable Prentice A. Marshall, Hearing Examiner for the Commission, after a lengthy two-day hearing, made his report and recommended an order sustaining the complaints of Fenton and Baker. The Hearing Examiner's recommended order included the following:

1) that Moss-American cease and desist from discrimination against its employees because of their race or color in affording them opportunities to seek promotion in employment with respondent;

2) that Baker and Fenton each receive as compensatory back wage award that amount each would have received had he been promoted to the job classification of mechanic on March 27, 1968, and that thereafter each be compensated by Moss-American at the mechanic rate of pay until such time as employment of each is terminated or until each is afforded a non-discriminatory opportunity to bid for the position of mechanic pursuant to the collective bargaining agreement between Moss-American and District 50 of the United Mine Workers.

The Commission, after considering appellee's petition for review and Fenton's and Baker's rejoinder for petition for review, affirmed the Hearing Examiner's report and adopted his recommended order.

Appellee instituted an administrative review action in the Circuit Court of St. Clair County, and appellants filed their answers thereto. On November 13, 1972, the Circuit Court entered an order finding that the Commission had no jurisdiction to hear the complaints of the appellants on the ground that prior arbitration of the matter constituted an election of remedies which was binding on the appellants. On February 27, 1973, the Circuit Court of St. Clair County entered its revised order dismissing the appellants' complaints.

The appellee contends that the Illinois Fair Employment Practices Commission lacked subject matter jurisdiction over the complaints of the appellants for the reason its Commission failed to issue and serve the complaints within 180 days from the date on which appellants' charges of unfair employment practices were properly filed as required by Section 8(c) of the Illinois Fair Employment Practices Act, which provides in part:

'(c) Whenever a charge of unfair employment practice has been properly filed, the Commission, within 180 days thereof, shall either issue and serve complaint in a manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served on both the complainant and the respondent.'

It should be noted that the 180-day period provided for in Section 8(c) would have expired on November 2, 1968, if such period began to run as of May 6, 1968. However, the 180-day period would not have expired until November 9, 1968, if such 180-day period did not begin to run until May 13, 1968. It must be remembered that the complaints which are the subject of this case (68--SF--18 and 68--SF--19) were issued by the Commission on November 8, 1968. Appellee contends that the 180-day period commenced on May 6, 1968, and expired on November 2, 1968. Appellants contend on the other hand that the period expired on November 9, 1968, one day after the complaints were issued by the Commission. The most important question concerns when the appellants' charges were properly filed. The Commission determined that the return of duplicate copies of the charges from the United States Equal Employment Opportunity Commission constitute a proper filing before the Commission on May 13, 1968. The Hearing Examiner took the position that the Illinois Commission did not have jurisdiction over charges sent directly to it by the complainants on Federal forms but could assume jurisdiction over the matter when the Federal agency referred copies of the charges to the Springfield office. It should also be noted that in the first instance the determination of a proper filing is to be made by the Commission.

Throughout its argument about the 180-day period as set forth in Section 8(c) of the 1967 Fair Employment Practices Act, appellee takes the position that the 180-day period is a jurisdictional requirement. This is erroneous. If there is a jurisdictional statute of limitations in proceedings before the Commission, it should be the time period that runs between the act complained of and the date on which the charges are filed before the Commission by the person. To hold that an aggrieved party who timely files his charges with the Commission with regard to discrimination of employment will be barred from a remedy simply because the Commission fails to act timely with...