2024 IL App (1st) 221497-U No. 1-22-1497 Order filed May 17, 2024 Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ WALTER WALCZAK, ) Petition for Direct ) Administrative Review of a Petitioner-Appellant, ) Decision of the Human Rights ) Commission. v. ) ) Charge No. 2020 CR 1788 THE HUMAN RIGHTS COMMISSION, THE ) DEPARTMENT OF HUMAN RIGHTS, and ) WOODWARD MPC, INC., ) ) Respondents-Appellees. )

JUSTICE C.A. WALKER delivered the judgment of the court. Justices Hyman and Tailor concurred in the judgment. ORDER ¶1 Held: We affirm the decision of the Human Rights Commission sustaining the Department of Human Rights’ dismissal of petitioner’s discrimination charge for lack of jurisdiction where petitioner failed to submit the Equal Employment Opportunity Commission’s determination within the time allowed by the Illinois Human Rights Act (775 ILCS 5/1 et seq. (West 2018)). ¶2 Petitioner Walter Walczak appeals pro se from a final decision of the Human Rights Commission (Commission) pursuant to the Illinois Human Rights Act (Act) (775 ILCS 5/1 et seq. No. 1-22-1497 (West 2018)) concerning his age discrimination charge against his former employer, Woodward MPC, Inc. (Woodward). Following petitioner’s request that the Commission review the Department of Human Rights’ (Department) initial dismissal of his charge for lack of substantial evidence, the Commission remanded the matter to the Department. On remand, the Department dismissed the charge for lack of jurisdiction, and the Commission sustained that dismissal in a final order. On appeal, petitioner argues the Commission’s order sustaining the Department’s dismissal for lack of jurisdiction should be reversed because he complied with the Act’s 30-day time limit for submitting the Equal Employment Opportunity Commission’s (EEOC) findings, or, alternatively, that such time limit should be tolled on equitable grounds. For the following reasons, we affirm. ¶3 Because the question before us concerns the Department’s jurisdiction over the charge, we provide only a limited summary of the facts. On December 3, 2019, petitioner filed with the EEOC a pro se charge alleging that on June 7, 2019, Woodward terminated his employment based on his age—then 41 years—and replaced him with a younger person and failed to consider petitioner for reemployment. ^[1] On the charge form, petitioner identified an address in Niles, Illinois, as his address of record. ¶4 The charge was dual filed with the Department by operation of statute on December 3, 2019. 775 ILCS 5/7A-102(A-1) (1) (West 2018) (“If a charge is filed with the [EEOC] within 180 days after the alleged civil rights violation, the charge shall be deemed filed with the Department on the date filed with the EEOC.”). Also on that date, the Department mailed a letter to petitioner

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would have 30 days after service of the EEOC’s findings to submit a copy to the Department and request that it investigate the charge.^[2]

¶5 On December 13, 2019, the EEOC issued, and mailed to petitioner at his Niles address, a notice dismissing his charge and stating the EEOC did not find any violation of law. On January

25, 2020, petitioner mailed to the Department the EEOC’s dismissal notice with a letter asking the Department to investigate the charge. ^[3]

¶6 The Department commenced an investigation, which included interviews with the petitioner and others. In a final report, the Department investigator concluded that Woodward terminated petitioner pursuant to a layoff resulting from the cancellation of a project to which he had been assigned and that he was unable to rebut this legitimate, nondiscriminatory reason for his termination. The investigator therefore recommended a finding of lack of substantial evidence.

¶7 On May 4, 2021, the Department issued a notice of dismissal of petitioner’s charge, citing a lack of substantial evidence. ^[4] On July 1, 2021, the Department issued an “amended” dismissal notice that was substantively identical to the original. ^[5]

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¶8 On September 10, 2021, petitioner timely filed with the Commission a request to review

the Department’s dismissal. In response, the Department asked the Commission to vacate the Department’s dismissal order and remand to the Department to allow it to investigate its jurisdiction. On December 28, 2021, the Commission entered an order vacating the Department’s dismissal order, reinstating petitioner’s charge, and remanding to the Department for further proceedings.

¶9 On January 7, 2022, the Department issued an “Investigation Report Addendum” recommending dismissal of petitioner’s charge for lack of jurisdiction on the ground that petitioner had failed to submit to the Department the EEOC’s findings within 30 days after service on him as required by the Act. See 775 ILCS 5/7A-102(A-1) (1)(iv) (West 2018).

¶ 10 On March 27, 2022, petitioner timely filed his request to the Commission for review of the Department’s second dismissal. He argued that he met the Act’s 30-day deadline and, alternatively, that the deadline should be extended on equitable and due process grounds. He was “unsure exactly when” the EEOC’s notice “arrived” by mail at his Florida address. He flew to Chicago on

December 20, 2019, and, on December 23, 2019, hand-delivered at the EEOC office in Chicago a letter addressed to “Director Bowman.” A copy of Julianne Bowman’s response is appended to defendant’s request to the Commission. Dated December 31, 2019, Bowman’s response letter acknowledges petitioner’s “dissatisfaction with the results of the processing of [his] charge,” but states that information he provided “would not alter the final action taken” and that “[t]he final dismissal notice [petitioner] received described [his] right to pursue the matter in court by filing a lawsuit within 90 days of [his] receipt of the [EEOC’s] dismissal notice.”

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¶ 11 Petitioner further represented that on a date he cannot recall, but “assume[s]” was “still narrowly within *** the 30-day deadline,” he called the Department and was informed that his request to the Department to investigate the charge “‘did not need to be long; one sentence w[ould] suffice.’” He “struggled with the task” before calling the Department a second time, “most likely immediately after January 18, 2020, but possibly before.” During that call, he “clarified” his intent to file a new charge, because, although he was “still within the 300-day deadline for filing a complaint,” he believed he had already missed the 30-day deadline for submitting the EEOC’s determination to the Department. The Department’s representative instructed petitioner to submit the EEOC’s determination “as soon as possible.” Petitioner did not file a new charge, but on

January 25, 2020, mailed to the Department the EEOC’s determination and his request to investigate the charge.

¶ 12 In response, the Department recommended that the Commission sustain the Department’s dismissal owing to petitioner’s failure to submit the EEOC’s dismissal notice within the 30-day period specified in the Act. See 775 ILCS 5/7A-102(A-1) (1)(iv) (West 2018). In reply, petitioner

argued that the Department’s letter of December 3, 2019, did not clearly convey the deadline for submitting the EEOC’s determination, that he could not recall the date he received it, and that he believed his mail was delayed around the time the EEOC mailed it.

¶ 13 On September 13, 2022, the Commission entered its final order sustaining the Department’s dismissal. The Commission found, inter alia, that petitioner filed his charge with the EEOC on December 3, 2019, and on the same date the Department informed him in writing that after the EEOC issued its determination he would have 30 days to submit it to the Department if he wanted the Department to take further action. The Commission further found that the EEOC

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a copy of the EEOC’s determination [to the Department] within 30 days after service of the determination by the EEOC on [the] complainant.” Id. The Commission found that “[b]ecause

[petitioner] did not submit a copy of the EEOC’s findings to the [Department] within 30 days, the [Department] d[id] not have jurisdiction over his cause of action.” The Commission further found

“[t]he Act *** does not provide for the application of equitable principles, and courts have determined that equitable principles should not toll the Act’s jurisdictional time limits.”

¶ 14 On October 4, 2022, petitioner filed in this court a timely petition for direct review of the Commission’s order.

¶ 15 On appeal, petitioner argues that the Commission’s order sustaining the Department’s dismissal for lack of jurisdiction should be reversed because he complied with the Act’s 30-day time limit for submitting the EEOC’s findings to the Department, or, alternatively, that such time limit should be tolled on equitable grounds.

¶ 16 The Act provides that it is a civil rights violation for an employer, based on “unlawful discrimination,” to “refuse to hire,” or to “act with respect to,” inter alia, discharge from employment. 775 ILCS 5/2-102(A) (West 2018). “[U]nlawful discrimination” includes discrimination against a person who is at least 40 years old based on his or her actual or perceived age. 775 ILCS 5/1-103(A), (Q) (West 2018). The Act is the “exclusive source for redress of civil rights violations.” Village of Maywood Board of Fire & Police Commissioners v. Department of 221502

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Human Rights, 296 Ill. App. 3d 570, 581 (1998). The Department, as an administrative agency, is authorized to act only as specified by statute. Ferrari v. Department of Human Rights, 351 Ill.

App. 3d 1099, 1103 (2004).

¶ 17 Where a complainant timely files an employment-related charge with the EEOC, it is also, on the same date, “deemed filed” with the Department. 775 ILCS 5/7A-102(A-1) (1) (West 2018).

The statute further provides:

“If the EEOC is the governmental agency designated to investigate the charge first, the Department shall take no action until the EEOC makes a determination on the charge and after the complainant notifies the Department of the EEOC’s determination. In such cases, after receiving notice from the EEOC that a charge was filed, the Department shall notify

the parties that (i) a charge has been received by the EEOC and has been sent to the Department for dual filing purposes; (ii) the EEOC is the governmental agency responsible for investigating the charge and that the investigation shall be conducted pursuant to the rules and procedures adopted by the EEOC; (iii) it will take no action on the charge until the EEOC issues its determination; (iv) the complainant must submit a copy of the EEOC’s determination within 30 days after service of the determination by the EEOC on the complainant; and (v) that the time period to investigate the charge *** is tolled from the date on which the charge is filed with the EEOC until the EEOC issues its determination.” Id.

Where the Department dismisses a charge, a petitioner may request that the Commission review the Department’s decision. Id. § 8-103(A)(1).

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¶ 18 A complainant may file a petition in this court for direct administrative review of a final

decision by the Commission. Id. § 8-111(B)(1). Administrative review involves the exercise of “special statutory jurisdiction,” which “is limited to the language of the act conferring it.” People ex rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370, 387 (2008). This court may not review the findings of the Department. Peck v. Department of Human Rights, 234 Ill. App. 3d 334, 338 (1992).

¶ 19 This court affords deference to an administrative agency’s decision, but the amount of deference given depends on the nature of the question presented. Marconi v. Chicago Heights

Police Pension Board, 225 Ill. 2d 497, 532 (2006). An administrative conclusion on a question of law is reviewed de novo, although the agency’s interpretation of a statute “remains relevant where there is a reasonable debate about the meaning of the statute.” Comprehensive Community

Solutions, Inc. v. Rockford School District 205, 216 Ill. 2d 455, 471 (2005).

¶ 20 In contrast, the Commission’s findings of fact “shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence.” 775 ILCS 5/8-

111(B)(2) (West 2022). Thus, this court substantially defers to the agency on questions of fact.

Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 180 (1989); see also All Purpose

Nursing Service v. Illinois Human Rights Comm’n, 205 Ill. App. 3d 816, 826 (1990) (an administrative agency’s decision is not contrary to the manifest weight of the evidence, and must be sustained on judicial review, if any evidence in the record supports the agency’s decision).

¶ 21 Finally, we review for clear error a mixed question of fact and law, i.e., one which “‘asks the legal effect of a given set of facts,’ under which ‘a reviewing court must determine whether established facts satisfy applicable legal rules.’” People v. Johnson, 2022 IL App (1st) 201371, 221504

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¶ 81 (quoting Comprehensive Community Solutions, Inc., 216 Ill. 2d at 471-72); see also Cook

County Republican Party v. Illinois State Board of Elections, 232 Ill. 2d 231, 245 (2009) (under

the clear error standard, reversal is warranted only when the reviewing court has a definite and firm conviction that a mistake has been made).

¶ 22 Depending on the nature of the case, whether an administrative agency has jurisdiction

over a matter may be a question of law reviewed de novo (Board of Education of the City of Chicago v. Cady, 369 Ill. App. 3d 486, 493 (2006)), or a mixed question of law and fact reviewed for clear error (Jones v. Lockard, 2011 IL App (3d) 100535, ¶¶ 16-17).

¶ 23 Here, the relevant factual findings of the Commission include that (1) on December 3, 2019, the Department mailed petitioner a letter notifying him that he must send the Department the EEOC’s findings within 30 days if he wanted the Department to take further action on his

charge; (2) on December 13, 2019, the EEOC dismissed petitioner’s charge; (3) on January 25, 2020, petitioner wrote a letter to the Department requesting an investigation into his charge; and (4) petitioner did not submit the EEOC’s findings to the Department within 30 days after service of the EEOC’s determination on him as required by section 7A-102(A-1)(1)(iv).

¶ 24 Of these findings, petitioner disputes only the fourth, contending that “service” of the EEOC’s determination occurred upon his actual receipt and, alternatively, that equitable principles

should be applied to toll the 30-day deadline for submitting the EEOC’s findings to the Department. However, these are purely legal questions, as they concern the proper interpretation of the Act and applicable regulations and as petitioner does not contest the dates of the relevant

mailings. See Cigna v. Human Rights Comm’n, 2020 IL App (1st) 190620, ¶ 23 (“The interpretation of statutes and regulations is a question of law, which we review de novo.”); Jones, 221505

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2011 IL App (3d) 100535, ¶ 16 (noting de novo review applies where “‘our review hinges on the interpretation of the Act’” alone) (quoting Gusciara v. Lustig, 346 Ill. App. 3d 1012, 1017-18

(2004)). Thus, our review in this case is de novo.

¶ 25 Because the Department is an administrative agency, its authority to act is derived solely from statute. Ferrari, 351 Ill. App. 3d at 1103. Stated differently, the Department, as an administrative agency, exceeds its jurisdiction where it acts beyond the scope of its statutorily derived authority. Id.; see also Pickering v. Human Rights Comm’n, 146 Ill. App. 3d 340, 352

(1986) (an administrative agency can act only “pursuant to the authority conferred on it by statute”).

¶ 26 Here, petitioner concedes that the EEOC issued its determination, and mailed it to him at his Niles address, on December 13, 2019, and that he submitted it by mail to the Department on

January 25, 2020. However, he argues the Commission’s order should be reversed because the 30-

day deadline under section 7A-102(A-1) (1)(iv) was triggered on the date of his actual receipt of the EEOC’s determination. He argues the winter holidays and his then-recent move to Florida

likely occasioned a delay of his mail, such that “it is reasonable to conclude” he received the EEOC’s determination no earlier than January 1, 2020. On this basis, he argues his mailing of the EEOC’s determination to the Department on January 25, 2020, was within the 30-day period as prescribed by section 7A-102(A-1) (1)(iv), thus, the Department had jurisdiction to review his charge.

¶ 27 In support of his position that the date of his actual receipt of the EEOC’s determination triggered the 30-day period for submitting it to the Department, petitioner notes that both section

7A-102(A-1) (1)(iv) and the Department’s December 3, 2019, letter specify that “service” of the - 10 - No. 1-22-1497 EEOC’s determination “on” the complainant, rather than “to” him, triggers the 30-day time limit. Petitioner argues such language implies the 30-day period is triggered by the complainant’s actual receipt of the EEOC’s determination when such is sent to the complainant by mail. Petitioner also quotes a Department regulation, titled “EEOC Dual Filed Charges,” which provides that the Department “may” dismiss a dual filed charge for lack of jurisdiction “[i]f the complainant fails to submit a copy of the EEOC’s final determination to the Department within 30 days after receipt of the EEOC’s final determination.” (Emphasis added.) Ill. Admin. Code tit. 56, § 2520.490(d) (eff. Apr. 21, 2014). ¶ 28 After examining the record, we find that the Commission did not err in sustaining the Department’s dismissal of petitioner’s charge for lack of jurisdiction. Contrary to petitioner’s argument, the language of section 7A-102(A-1) (1)(iv) is mandatory and does not permit an extension of the 30-day period. The statute provides that “the complainant must submit a copy of the EEOC’s determination within 30 days after service of the determination by the EEOC on the complainant.” (Emphasis added.) 775 ILCS 5/7A-102(A-1) (1)(iv) (West 2018). The Department regulation governing service in effect when petitioner filed his charge stated that “[s]ervice by mail shall be deemed complete five days after mailing of the document, properly addressed and posted for delivery to the person to be served.” Ill. Admin. Code tit. 56, § 2520.30 (eff. Dec. 28, 2004). ¶ 29 Here, the record shows that petitioner received the EEOC’s determination on December 18, 2019. This date of receipt triggered section 7A-102(A-1) (1)(iv), such that petitioner had until January 17, 2020—the 30th day—to “submit” a copy of the EEOC’s determination to the - 11 - No. 1-22-1497 Department. ^[6] However, because he waited until January 25, 2020, to do so, he did not meet the statutory deadline. As noted, the language of section 7A-102(A-1) (1)(iv) is mandatory, and nothing in the Act authorizes the Department to excuse the requirement or to exercise jurisdiction where the deadline is missed. See Pickering, 146 Ill. App. 3d at 352 (“An administrative agency is analogous to a court of limited jurisdiction and can act only pursuant to the authority conferred on it by statute.”) (citing City of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 112-13 (1976)). ¶ 30 Petitioner does not dispute that the EEOC mailed its determination to his address of record on December 13, 2019. Rather, he states he cannot recall details of the potential general delay in his mail and does not recall the date he received the EEOC’s determination. ¶ 31 These vague and unsupported representations fail to rebut the regulatory presumption that he received the EEOC’s determination on December 18, 2019, and therefore had until January 17, 2020, to submit a copy of the determination to the Department. Because he waited until January 25, 2020, to do so, he did not meet the statutory deadline. As previously noted, the language of section 7A-102(A-1) (1)(iv) is mandatory, and nothing in the Act authorizes the Department to excuse the requirement or to exercise jurisdiction where the deadline is missed. See Pickering, 146 Ill. App. 3d at 352. ¶ 32 Nevertheless, petitioner argues that equitable principles should be applied to toll the deadline to allow the Department to consider his charge. He alleges that during his second phone call with the Department, the representative “misled [petitioner] to believe that [his] request for