Office of Lake County State's Attorney v. Human Rights Com'n, 2-91-1170

• Decision Date: 30 September 1992
• Docket Number: No. 2-91-1170,2-91-1170
• Citation: 601 N.E.2d 1294,176 Ill.Dec. 596,235 Ill.App.3d 1036
• Parties: , 176 Ill.Dec. 596 The OFFICE OF the LAKE COUNTY STATE'S ATTORNEY, Plaintiff-Appellee, v. The HUMAN RIGHTS COMMISSION et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1294

601 N.E.2d 1294

235 Ill.App.3d 1036, 176 Ill.Dec. 596

The OFFICE OF the LAKE COUNTY STATE'S ATTORNEY, Plaintiff-Appellee, v. The HUMAN RIGHTS COMMISSION et al., Defendants-Appellants.

No. 2-91-1170.

Appellate Court of Illinois,

Second District.

Sept. 30, 1992.

Rehearing Denied Nov. 17, 1992.

Marian McElroy, pro se.

Michael J. Waller, Lake County State's Atty., John W. Bartels, IV, Asst. State's Atty. Lake County, Waukegan, for Lake County State's Atty. Office.

Office of Gen. Council, Illinois Human Rights Com'n, Roland W. Burris, Atty. Gen., State of Ill., Chicago, Jan E. Hughes, Asst. Atty. Gen., Robert J. Ruiz, Sol. Gen., Marita C. Sullivan, Asst. Atty. Gen., for Illinois Human Rights Com'n.

Justice NICKELS delivered the opinion of the court:

On December 28, 1988, plaintiff, the office of the Lake County State's Attorney, filed a complaint for an order of prohibition and declaratory judgment in the circuit court, seeking a determination that defendant, the Illinois Human Rights Commission (Commission), lacked jurisdiction to adjudicate a charge of discrimination originally brought by defendant, Marian McElroy (claimant), against plaintiff in December 1985. McElroy was suspended from her position as an assistant State's Attorney in Lake County in December 1985 and was discharged on January 3, 1986.

In October 1988, the Department of Human Rights filed a complaint against plaintiff, alleging that plaintiff discriminated against claimant because of her race and sex and that she was suspended and discharged in contravention of the Illinois Human Rights Act (Act) (Ill.Rev.Stat.1985, ch. 68, par. 1-101 et seq.). Among other things, the Department's complaint alleged that claimant was not given the same number of trial opportunities as similarly situated white male employees; that the State's Attorney informed her that she "was not fitting in with the boys because she did not go out drinking with the boys and that she was not bubbly like another black female attorney"; that she was not promoted to the position of principal assistant State's Attorney because of her lack of experience; that the State's Attorney claimed she was suspended for ignoring the policies and objectives of the office in negotiating criminal cases and for being insubordinate to a supervisor; and that the State's Attorney's reasons for not promoting her, suspending and discharging her were pretextual.

In support of plaintiff's assertion that the Commission was without jurisdiction to adjudicate this claim, plaintiff argued that assistant State's Attorneys are not "employees" and that the office of the State's Attorney is not an "employer" as defined in the Act. See Ill.Rev.Stat.1985, ch. 68, pars. 2-101(A), (B), 1-103(L).

On defendants' motion, the circuit court initially dismissed plaintiff's complaint, finding that the Commission had exclusive jurisdiction of the cause and that plaintiff must exhaust its administrative remedies before the Commission before seeking further review.

Plaintiff then appealed to this court, which concluded that the exhaustion of remedies doctrine did not preclude a challenge in the circuit court to determine the jurisdiction of the Commission and that the circuit court had subject-matter jurisdiction to consider plaintiff's complaint for an order of prohibition and declaratory judgment. Accordingly, the judgment was reversed and the cause remanded for further proceedings. Office of the Lake County State's Attorney v. Illinois Human Rights Comm'n (1990), 200 Ill.App.3d 151, 146 Ill.Dec. 705, 558 N.E.2d 668.

Upon remand, plaintiff filed a motion for summary judgment, again arguing that the Commission had no jurisdiction to adjudicate the claim because plaintiff is not an employer and claimant is not an employee as defined by the Act. Plaintiff prayed for an order of prohibition to prevent defendants from proceeding on this claim. The Commission maintained its position that it had jurisdiction to adjudicate the claim, but otherwise declined to address further, on the merits, the issue whether plaintiff and claimant met the statutory definitions of "employer" and "employee," respectively.

On September 9, 1991, the circuit court granted plaintiff's motion for summary judgment, finding that, for purposes of proceeding on the discrimination charge, claimant was not a covered employee and plaintiff was not an employer as defined by the Act. Therefore, the Commission had no authority to adjudicate the civil rights complaint. As a result of its findings, the court issued a writ of prohibition preventing defendants from proceeding on the discrimination charges.

Claimant appeals from this order, arguing that the circuit court erred in granting summary judgment for plaintiff by ruling as a matter of law that (1) she was not an "employee" as defined by the Act; and (2) the plaintiff was not an "employer" as defined by the Act. This court has treated the question as jurisdictional in Lake County State's Attorney (200 Ill.App.3d at 156, 146 Ill.Dec. 705, 558 N.E.2d 668), and the precise question of the employer-employee relationship now presented is one of first impression in this court as it has never been answered (see Joliet Mass Transit District v. Illinois Fair Employment Practices Comm'n (1978), 66 Ill.App.3d 296, 23 Ill.Dec. 24, 383 N.E.2d 791).

One of the stated purposes of the Illinois Human Rights Act is 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 in higher education. (Ill.Rev.Stat.1985, ch. 68, par. 1-102(A).) The Act is intended to implement State constitutional guarantees against discrimination and to assure "that all State departments, boards, commissions and instrumentalities rigorously take affirmative action to provide equality of opportunity and eliminate the effects of past discrimination in the internal affairs of State government and in the relations with the public." ." Ill.Rev.Stat.1985, ch. 68, pars. 1-102(C), (D).

The present dispute centers on whether plaintiff is an "employer" and claimant is an "employee" covered by the Act. The pertinent provisions of the Act defining covered employers state:

"(B) Employer. (1) 'Employer' includes:

(a) Any person employing 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation;

* * * * * *

(c) The State and any political subdivision, municipal corporation or other governmental unit or agency, without regard to the number of employees." (Ill.Rev.Stat.1985, ch. 68, par. 2-101(B).)

A "person" is defined as "one or more individuals, partnerships, associations or organizations, * * * the State of Illinois and its instrumentalities, political subdivisions, units of local government, legal representatives, [and] trustees in bankruptcy or receivers." Ill.Rev.Stat.1985, ch. 68, par. 1-103(L).

The pertinent provisions of section 2-101(A) of the Act define "employee" in the following terms:

"(A) Employee. (1) 'Employee' includes:

(a) Any individual performing services for remuneration within this State for an employer;

(b) An apprentice;

* * *

(2) 'Employee' does not include:

(a) Domestic servants in private homes;

(b) Individuals employed by persons who are not 'employers' as defined by this Act;

(c) Elected public officials or the members of their immediate personal staffs;

(d) Principal administrative officers of the State or of any political subdivision, municipal corporation or other governmental unit or agency." (Emphasis added.) Ill.Rev.Stat.1985, ch. 68, par. 2-101(A).

We address first the question whether the office of the State's Attorney is an "employer" under the Act. Plaintiff argues that it is neither a "person" defined by the Act, nor a legal representative, or a unit of (local) government. Further, plaintiff argues, in a non sequitur and without explanation, that, because the State's Attorney is a constitutional officer of the State, he is not an employer pursuant section 2-101(B) of the Act. Plaintiff appears to avoid arguing specifically whether it is the legal equivalent of the State itself. The thrust of plaintiff's argument appears to be that it is not specifically enumerated as an employer by the Act (and somehow falls through the cracks).

In general support of its position, plaintiff cites Morton v. Hartigan (1986), 145 Ill.App.3d 417, 99 Ill.Dec. 424, 495 N.E.2d 1159, an irrelevant case dealing with the common-law immunity defense applicable in tort law; there, the plaintiff mistakenly sued the Attorney General and three other officials in their individual capacities rather than suing the employer, the real party in interest--the State of Illinois. The common-law immunities of public officials described in Morton have nothing to do with the statutory cause of action under consideration here, where, pursuant to the State Constitution (see Dilley v. Americana Healthcare Corp. (1984), 129 Ill.App.3d 537, 84 Ill.Dec. 636, 472 N.E.2d 596; see also Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill.App.3d 953, 959-60, 123 Ill.Dec. 506, 527 N.E.2d 1281), the legislature has specifically authorized a cause of action against the sovereign State, its political subdivisions, municipal corporations, or governmental units and agencies. The claimant here has sued the office of the State's Attorney as an entity of the State. The question before us does not concern the absolute immunity doctrine discussed in Morton, and we need not discuss it further. Indeed, the State's Attorney specifically argued at the hearing on his motion for summary judgment that he was...