Traficano v. Dept. of Human Rights

FIRST DIVISION
June 22, 1998


No. 1-97-0565

JACK A. TRAFICANO,

Petitioner,

v.

THE DEPARTMENT OF HUMAN RIGHTS and
YAMAICHI INTERNATIONAL (AMERICA), INC.,

Respondents.)
)
)
)
)
)
)
)
)
)Petition for Review
of an Order of the
Chief Legal Counsel
of the Illinois
Department of Human
Rights


JUSTICE GALLAGHER delivered the opinion of the court:
Petitioner, Jack A. Traficano, seeks appellate review of the
February 3, 1997, order of the chief legal counsel of the
respondent, the Illinois Department of Human Rights (Department).
The order of the chief legal counsel sustained the Department's
dismissal of petitioner's charge of unlawful discrimination
against the co-respondent, Yamaichi International (America), Inc.
(Yamaichi). The chief legal counsel determined that the charge
was not supported by substantial evidence. We affirm the order
of the chief legal counsel.
Petitioner premised his charge of unlawful discrimination
against Yamaichi on Yamaichi's decision to discharge petitioner
when Yamaichi downsized its Chicago office on February 8, 1996.
In his claim to the Department, petitioner alleged that Yamaichi
unlawfully discriminated against him on the basis of his national
origin because Yamaichi discharged petitioner (a United States
citizen) while it retained Hiromune Takamura (of Japanese origin)
and assigned him the same duties that petitioner had been hired
to perform; petitioner further alleged Takamura was a less able
and less experienced employee.
The Department investigated petitioner's charge, and the
investigator submitted a report that included the following
uncontested facts: Yamaichi hired petitioner on October 19, 1989,
as vice-president and manager of the firm's floor operations at
the Chicago Board of Trade; petitioner was primarily responsible
for the execution of orders submitted by Yamaichi's customers;
Takamura, a senior vice-president, was the only non-American
employee in the Chicago office at the time of the alleged
violation; Yamaichi reorganized and restructured its Chicago
office during early 1996, eliminating several positions; and
Traficano was discharged from the position of vice-president
floor broker on February 8, 1996. Other evidence was submitted
indicating that, at the time of his dismissal, petitioner
received an annual salary of $83,712 while Takamura received
$125,000 in annual salary.
On November 12, 1996, the Department dismissed petitioner's
charge of unlawful discrimination, basing its decision upon the
finding that petitioner lacked substantial evidence to support
his charge. The investigative report found that Takamura was
petitioner's manager and that the two employees were not
similarly situated. Petitioner requested that the chief legal
counsel of the Department review the Department's decision in the
matter. On February 3, 1997, the chief legal counsel issued a
final and appealable order sustaining the Department's dismissal.
Petitioner now seeks review of the chief legal counsel's decision
in this court.
Initially, this court must determine whether it has subject
matter jurisdiction over the present dispute. Final orders of
the chief legal counsel are directly appealable to this court
under sections 7-101.1(A), 7A-102(G)(3) and 8-111(A)(1) of the
Illinois Human Rights Act (775 ILCS 5/7-101.1(A), 7A-102(G)(3),
8-111(A)(1) (West 1996)), as well as Supreme Court Rule 335 (155
Ill. 2d R. 335). As respondents point out, Rule 335 requires
that "[t]he agency and all other parties of record shall be named
respondents" in the petition seeking appellate review. 155 Ill.
2d R. 335(a). Respondents assert that because petitioner failed
to name the chief legal counsel as a respondent in the petition
before us, this court lacks jurisdiction to decide the case.
Under the Human Rights Act, the chief legal counsel of the
Department of Human Rights is the final decision maker in the
administrative process within the Department. 775 ILCS 5/7-
101.1(A), 8-111(A)(1) (West 1996). As such, the chief legal
counsel is a necessary party to this action and should have been
named as a respondent in the petition for judicial review.
Zientara v. Lottery Control Board, 214 Ill. App. 3d 961, 968-69,
574 N.E.2d 747, 751-52 (1991). Previously, our supreme court
held that the failure to name the necessary parties respondent in
a petition for judicial review, as mandated by Rule 335, requires
dismissal. McGaughy v. Human Rights Comm'n, 165 Ill. 2d 1, 15,
649 N.E.2d 404, 411 (1995), vacating 243 Ill. App. 3d 751, 612 N.E.2d 964 (1993). In that case, the petitioner failed to name
the Department of Human Rights as a respondent in the petition
for judicial review. McGaughy, 165 Ill. 2d at 4, 649 N.E.2d at
406. In reaching its decision, the court analogized application
of its Rule 335 to section 3-107(a) of the Administrative Review
Law (735 ILCS 5/3-107(a) (West 1992)), the provision empowering
circuit courts to review certain administrative decisions:
"[T]he joinder requirements of section 3-107 of
the Administrative Review Law and of Supreme Court Rule
335(a) are substantively similar. [Citations.] There
is nothing in the plain language of the statute or the
rule that would justify the development of two
divergent procedural standards for the review of
administrative matters, and we do not believe that the
meanings of these similar requirements should vary,
depending on whether the destination of the case is the
circuit court or the appellate court. [Citation.]"
McGaughy, 165 Ill. 2d at 12-13, 649 N.E.2d at 410.

Respondents acknowledge that section 3-107 of the
Administrative Review Law has been amended since the supreme
court's decision in McGaughy. The statute now provides as
follows:
"No action for administrative review shall be dismissed
for lack of jurisdiction based upon the failure to name
an employee, agent, or member, who acted in his or her
official capacity, of an administrative agency, board,
committee, or government entity, where the
administrative agency, board, committee, or government
entity, has been named as a defendant as provided in
this Section." 735 ILCS 5/3-107(a) (West 1996).

This court has previously held that the amended version of the
statute applies retroactively. Rhoads v. Board of Trustees of
the City of Calumet City Policemen's Pension Fund, 293 Ill. App.
3d 1070, 689 N.E.2d 266 (1997). Indisputably, the chief legal
counsel of the Department was an employee or agent of the
Department acting in her official capacity. Nevertheless,
respondents argue that section 3-107 does not apply to the
present case, as Supreme Court Rule 335 explicitly exempts
application of section 3-107 from proceedings to review agency
decisions in the appellate court. We disagree. The "explicit
exemption" argument has already been rejected by our supreme
court. McGaughy, 165 Ill. 2d at 13-14, 649 N.E.2d at 411.
Moreover, the language used in the McGaughy opinion manifests the
supreme court's intent that Rule 335 be read in harmony with
section 3-107 of the Administrative Review Law. 165 Ill. 2d at
12-13, 649 N.E.2d at 410. Due to the amended language of section
3-107, and the supreme court's intent that judicial review of
administrative decisions be subject to uniform procedures, we
find that this court enjoys jurisdiction to review the order of
the chief legal counsel.
We now proceed to the merits of the case. As a prefatory
matter, we note that the Human Rights Act provides that, for
causes of action filed on or after January 1, 1996, a complainant
whose charge has been dismissed by the Department may seek review
of that decision with the chief legal counsel. 775 ILCS 5.7-
101.1 (West 1996). Prior to January 1, 1996, a complainant
seeking review of the Department's decision to dismiss a charge
would submit his or her cause to the Illinois Human Rights
Commission. 775 ILCS 5/7A-102(D) (West 1994). Decisions of this
court under the earlier statutory scheme applied an abuse of
discretion standard when reviewing a decision by the Commission
to dismiss a charge under the Human Rights Act for lack of
substantial evidence. Marinelli v. Human Rights Comm'n, 262 Ill.
App. 3d 247, 253, 634 N.E.2d 463, 468 (1994); Motley v. Human
Rights Comm'n, 263 Ill. App. 3d 367, 371, 636 N.E.2d 100, 102
(1994); McGaughy v. Human Rights Comm'n, 243 Ill. App. 3d 751,
759, 612 N.E.2d 964, 969 (1993), vacated on other grounds, 165 Ill. 2d 1, 649 N.E.2d 404 (1995). Moreover, a reviewing court
presumes to be true and correct the findings and conclusions of
an administrative agency with respect to questions of fact. 735
ILCS 5/3-110 (West 1996). We therefore hold that the abuse of
discretion standard applies to the present case, where the chief
legal counsel sustained the Department's decision to dismiss
petitioner's charge for lack of substantial evidence.
To establish a prima facie case of discrimination,
petitioner needed to show (1) he was a member of a group
protected under the law; (2) he was performing satisfactorily;
(3) he was discharged despite his adequate performance; and (4) a
similarly situated employee was not discharged. Marinelli, 262
Ill. App. 3d at 253, 634 N.E.2d at 469. In the present case, the
chief legal counsel found that the Department properly dismissed
petitioner's charge because petitioner and Takamura were not
similarly situated employees. As a result, petitioner failed to
establish a prima facie case of discrimination. We find that the
chief legal counsel did not abuse her discretion in making her
decision. Accordingly, we affirm the order of the chief legal
counsel.
For the aforementioned reasons, the decision below is
affirmed.
BUCKLEY, P.J., and CAMPBELL, J., concur.