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Pinkerton Security and Investigation Services v. Dept. of Human Rights, No. 1-98-0339

1st District, December 21, 1999

SECOND DIVISION

MODIFIED OPINION UPON DENIAL OF REHEARING

JUSTICE McBRIDE delivered the opinion of the court:

Petitioner, Pinkerton Security and Investigation Services (Pinkerton), appeals from an order of the Chief Legal Counsel of respondent, Illinois Department of Human Rights (Department), which sustained the finding of default against Pinkerton in the sexual discrimination charge filed by co-respondent Kimberly Jenkins (Jenkins) under the Human Rights Act (Act) 775 ILCS 5/7-101 et seq. (West 1996). Petitioner claims that the Act violates due process by authorizing the Department to issue final default orders and that the default order entered in this case was improper and should be vacated.

Co-respondent, Illinois Human Rights Commission (Commission), has filed a motion to dismiss Pinkerton's appeal for lack of jurisdiction. We agreed to consider this motion with the case, and, for the reasons set forth below, we grant the motion and dismiss the appeal.

On May 13, 1997, Jenkins filed a discrimination charge with the Department against her employer, Pinkerton, alleging that her suspension and discharge were based on her sex as related to pregnancy. Pinkerton filed its response on July 23, 1997, and denied her allegations.

On August 13, 1997, Pinkerton's human resources director notified the Department that he was no longer working for Pinkerton and that Mark Motylinski would be the new contact person. Motylinski requested a new date for a fact-finding conference which had previously been set by the Department for August 14. The Department offered a one-week extension. Motylinski stated that he could not attend because he would be out of town.

On the same date, the Department sent Motylinski a fax requesting a 60-day extension of the one-year time limit for investigating the charges. The Department requested that Motylinski sign the enclosed extension form and return it to the Department as soon as possible. The fax transmittal sheet which accompanied that request stated that the Department was trying to reschedule the fact-finding conference, that it needed both parties to sign an extension in order to do so, and that the extension had to be signed and faxed to the Chicago office by 4 p.m. that day or Pinkerton would have to be present at the hearing as scheduled. Motylinski responded by fax that Pinkerton would not authorize the extension request and that he was awaiting written notification of the fact-finding conference tentatively scheduled for August 21, 1997.

The fact-finding conference was held on August 14, 1997. Jenkins was present, but Pinkerton was not; as a result, the Department issued a Rule to Show Cause why a Notice of Default should not be issued against Pinkerton for its non-attendance. Pinkerton filed a timely response setting forth the series of events leading to August 14, 1997, and attempted to explain how the personnel change made it extremely difficult to coordinate the attendance of six individuals for the conference in less than 24 hours. Pinkerton also rescinded its previous denial of the extension request and signed the extension document.

On September 12, 1997, the Department issued a Notice of Default against Pinkerton for its failure to attend the fact-finding conference "despite the reasonable requests made by the Department." Pinkerton filed a timely request for review. The Department's Chief Legal Counsel sustained the finding of default, expressing regret that Pinkerton had several representatives in the case, but finding that Pinkerton had not shown good cause sufficient to vacate the Department's decision. Pinkerton was advised that the Chief Legal Counsel's order was a final order and this petition for review followed. We first address the jurisdictional issue posed by the Commission in its motion to dismiss the appeal.

The Illinois Constitution provides that the appellate court has powers of direct review of administrative action as provided by law. Ill. Const. 1970, art. VI,