Wanless v. Human Rights Comm'n

April 28, 1998

No. 4--97--0480
_________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT


FRANK M. WANLESS, ) Petition for Review of the
) Order of the Illinois
Complainant-Appellant, ) Human Rights Commission
)
v. )
)
THE ILLINOIS HUMAN RIGHTS )
COMMISSION, THE ILLINOIS )
DEPARTMENT OF HUMAN RIGHTS, )
and TREMONT SAVINGS BANK and )
its BOARD OF DIRECTORS. ) Charge No. 1995SA0438
Respondents-Appellees. )
_________________________________________________________________

JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:
_________________________________________________________________

We are presented here with the issue of whether the Illinois
Human Rights Commission erred in dismissing petitioner's complaint
for lack of jurisdiction by determining that the petitioner, was
not an "employee" under the Act. For the following reasons, we
affirm the decision of the Commission.
Frank Wanless appeals from a decision of the Illinois Human
Rights Commission (Commission) finding that it did not have
jurisdiction over his claim of age discrimination against the
Tremont Savings Bank when he was forced to leave the Board of
Directors upon attaining the age of 75 years. Wanless filed a
charge of unlawful employment discrimination under the Illinois
Human Rights Act. 775 ILCS 5/1-101 et seq. (Michie 1994)(the Act).
The Commission determined that the Act's prohibition against age
discrimination in employment did not apply to Wanless as neither
his membership on the Board of Directors, nor his appointment as
Vice-President of the Bank, nor his performance of legal services
at the Bank's attorney in certain loan transactions met the
definition of an "employee" under the Act.
The facts in this matter are relatively straightforward and
largely uncontested. Wanless served for over 25 years as a member
of the board of directors of the Tremont Savings Bank, and its
predecessors institutions. Upon reaching his seventy-fifth
birthday, Wanless was informed by representatives of the Bank that
certain federal regulations governing savings institutions did not
permit individuals 75 or older to serve on the board of directors.
During the last two years of his tenure on the board, Wanless was
given the title of Vice President of the bank, occasionally signing
documents on behalf of the bank in that capacity. He never
received a wage or salary for service while on the board, nor for
his services as vice-president, although he did receive a meeting
attendance fee for each meeting of the board he attended.
During his tenure on the Board, Wanless was an attorney
engaged full-time in the practice of law. His professional
corporation performed legal services for the bank, typically title
work and legal services in connection with loans and foreclosures.
His corporation billed the bank for those services.
Wanless filed a charge of age discrimination with the Illinois
Department of Human Rights alleging that his removal from the Board
of Directors constituted unlawful employment discrimination based
upon age. The Department conducted two separate fact-finding
investigations of the charge and issued a report in which it
determined and recommended a finding of lack of jurisdiction based
upon its finding that Wanless was not an "employee" of the Bank as
defined in section 2-101A of the Act.
The Commission concurred in the Department's conclusion that
Wanless did not meet the statutory definition of "employee" and
entered an order dismissing Wanless' complaint. Wanless appealed
directly to this court.
Where the Commission construes a statute, a reviewing court is
not bound by the Commission's legal conclusion and reviews the
decision de novo. Tate v. American General Life & Accident
Insurance Co., 274 Ill. App. 3d 769, 774 (1995). However, the
Commission's interpretation of a statutory provision of the Act
will be accorded substantial weight and deference by the reviewing
court. River Bend Community Unit School Dist. No. 2 v. Human
Rights Comm'n, 232 Ill. App. 3d 838, 843 (1992). This is so
because the Commission's interpretation of the Act flows directly
from its expertise and experience with the statute that it
administers and enforces. Illinois Consolidated Telephone Co. v.
Illinois Commerce Comm'n, 95 Ill. 2d 142 (1983).
The Act defines an "employee" as "any individual performing
services for remuneration within this State for an employer." (775
ILCS 5/2-101A (Michie 1994)). Wanless maintains that he performed
services for the Bank as a Vice-President, a member of the Board of
Directors, and as an attorney for which he received "remuneration"
in the form of director fees and attorney fees. We agree with the
Commission's finding that the compensation Wanless received is
outside that intended to be included in within the jurisdiction of
the Act.
First, the record clearly supports a conclusion that Wanless'
compensation for services rendered as an attorney at law where for
the services of an independent contractor, not an employee. It is
undisputed that Wanless maintained a full-time practice of law in
Morton, Illinois. Wanless practiced as a professional corporation,
and the Bank retained Wanless Professional Corporation to perform
particular legal services. The Bank paid the Wanless Professional
Corporation, not Wanless personally, for the legal services
performed by Wanless and billed to the Bank. Thus, legal fees paid
by the Bank to Wanless Professional Corporation cannot be
considered remuneration for services performed for an employer.
In addition, the record indicates that Wanless had other
clients in addition to the Bank, and that he controlled both the
means and the methods of the performance of legal services on
behalf of the Bank. Thus, Wanless' role as an attorney was that of
an independent contractor, not an employee. See, Bob Neal Pontiac-
Toyota, Inc. v. Illinois Industrial Comm'n, 89 Ill. 2d 403, 412
(1982).
Wanless next maintains that his receipt of director's fees
for attending the meetings of the Bank's board of directors
constitutes "remuneration" under the act. We agree with the
Commission's finding to the contrary and affirm its holding that
fees paid to an individual for services performed solely as a
director of the corporation or association cannot constitute
"remuneration" of an employee for purposes of the Act.
Generally, a director of a corporation or association is
considered an employer rather than an employee. See, EEOC v. First
Catholic Slavak Ladies Assoc., 694 F.2d 1068, 1069 (6th Cir. 1982).
We also note that directors are not considered employees under
federal discrimination laws. See, McGraw v. Warren County Oil Co.,
707 F.2d 990, 991 (8th Cir. 1983); Zimmerman v. North American
Signal Co., 704 F.2d 347, 351-52 (7th Cir. 1983). When analyzing
claims of discrimination under the Act, Illinois courts have looked
to the standards applicable to analogous federal claims. See,
Valley Mould & Iron Co. v. Illinois Human Rights Comm'n, 133 Ill.
App. 3d 273 (1985).
Wanless lastly maintains that his appointment to the Board and
the Banks retention of his professional corporation for legal
services constituted remuneration for his services as a vice-
president. We view this argument as merely a restatement of the
previous arguments.
As we have found that the Commission was correct in its
determination that none of the compensation received by Wanless
constituted remuneration under the Act, we affirm the decision of
the Commission finding that it lacked jurisdiction over the charge
of discrimination.
Affirmed.
BRESLIN and HOMER, JJ., concurred.