Dana Tank Container, Inc. v. Human Rights Comm'n

FIRST DIVISION
October 20, 1997


No. 1-96-1374

DANA TANK CONTAINER, INC.,

Petitioner-Appellant,

v.

THE HUMAN RIGHTS COMMISSION and MELVIN
WESLEY,

Respondents-Appellees.)
)
)
)
)
)
)
)
)
)Petition for Review
of an Order Entered
by the Human Rights
Commission.

No. 87 CF 2276
21B871039

 JUSTICE O'BRIEN delivered the opinion of the court:
Petitioner, Dana Container, Inc.,[fn1] employed respondent,
Melvin Wesley, as a tank washer from June 1985 until October 8,
1986. In July 1986, respondent filed a charge of race
discrimination against petitioner with the Illinois Department of
Human Rights. The charge apparently was brought pursuant to
section 2-102 of the Illinois Human Rights Act, which states that
it "is a civil rights violation" for "any employer to refuse to
hire, to segregate, or to act with respect to recruitment, hiring,
promotion, renewal of employment, selection for training or
apprenticeship, discharge, discipline, tenure or terms, privileges
or conditions of employment on the basis of unlawful discrimination
or citizenship status." (Emphasis added.) 775 ILCS 5/2-102(A)
(West 1992). The charge was dismissed for lack of subject matter
jurisdiction because petitioner employed less than 15 persons. See
775 ILCS 5/2-101(B)(1)(a) (West 1992) (defining "employer" as
"[a]ny person employing 15 or more employees within Illinois during
20 or more calendar weeks within the calendar year of or preceding
the alleged violation").
Following the dismissal of respondent's race discrimination
charge, petitioner fired respondent on October 8, 1986. On
February 17, 1987, respondent filed another charge against
petitioner with the Illinois Department of Human Rights (hereafter
the Department), this time alleging that petitioner had fired him
in retaliation for previously filing the charge of race
discrimination. On May 22, 1991, the Department filed a complaint
with the Illinois Human Rights Commission (hereafter the
Commission) based on the retaliation charge.
Petitioner did not defend the retaliation proceeding. On May
20, 1993, the Administrative Law Judge (hereafter the ALJ) issued
an order holding petitioner in default and setting a hearing date
on the issue of damages and other relief.
On September 19, 1995, the ALJ issued an order and decision
recommending that the Commission require petitioner to pay
respondent $51,204, plus interest, as compensation for lost wages.
On October 19, 1995, petitioner filed exceptions to the recommended
order and decision, arguing that the Commission lacked subject
matter jurisdiction over the charge because petitioner employed
less than 15 employees and, therefore, was not an employer under
the Act.
On January 8, 1996, the Commission entered an order and
decision affirming the ALJ's recommended order and decision. The
Commission explained that petitioner's status as an employer was
irrelevant because respondent's retaliation complaint was brought
under section 6-101(A) of the Act (775 ILCS 5/6-101(A)(West 1992)),
which makes it a civil rights violation for a "person" to retaliate
against another "person" for filing a charge of discrimination.
The Commission noted that the Act defines "person" to include one
or more corporations. See 775 ILCS 5/1-103(L) (West 1992).
Petitioner filed a petition for rehearing, which the Commission
denied. Petitioner then filed this timely appeal.
It is undisputed that the Commission lacked subject matter
jurisdiction over respondent's initial claim of race discrimination
because the petitioner employed fewer than 15 persons and therefore
was not an "employer" as defined by the Act. Petitioner contends
that since respondent's subsequent retaliation claim is premised on
the race discrimination charge over which the Commission lacked
jurisdiction, the retaliation claim cannot constitute a civil
rights violation under section 6-101(A) of the Act. Therefore,
petitioner claims that the Commission should have dismissed
respondent's retaliation claim for lack of subject matter
jurisdiction.
The resolution of this issue requires us to construe section
6-101(A) of the Act. Because the construction of a statute is a
matter of law, we may independently construe the Act. See Raintree
Health Care Center v. Human Rights Comm'n, 173 Ill. 2d 469, 479 (1996).
The primary rule of statutory construction is to ascertain and
give effect to the intent of the legislature. Augustus v. Estate
of Somers, 278 Ill. App. 3d 90, 97 (1996). In determining
legislative intent, the court first should consider the statutory
language. Somers, 278 Ill. App. 3d at 97. Where the statutory
language is clear, it will be given effect without resort to other
aids for construction. Somers, 278 Ill. App. 3d at 97.
Section 6-101(A) states in relevant part:
"It is a civil rights violation for a
person, or for two or more persons to
conspire, to:
(A) Retaliation. Retaliate against a
person because he or she *** has made a
charge, filed a complaint, testified,
assisted, or participated in an investigation,
proceeding, or hearing under this Act." 775
ILCS 5/6-101(A) (West 1992).
The clear language of the statute protects a person from
retaliation for making a charge under the Act. There is no
requirement that the charge be meritorious or otherwise able to
survive a motion to dismiss for lack of subject matter
jurisdiction. Once a person has made a charge under the Act,
regardless of the ultimate disposition of that charge, he is
protected from retaliation therefor.
In the present case, respondent filed, in July 1986, a charge
under the Act alleging that petitioner had racially discriminated
against him. Later, in February 1987, respondent filed a charge
alleging that petitioner had discharged him in retaliation for
previously filing the charge of race discrimination. Respondent's
retaliation claim falls within section 6-101(A), regardless of the
fact that the underlying claim of racial discrimination was
dismissed for lack of subject matter jurisdiction. Accordingly, we
reject petitioner's argument that the Commission should have
dismissed respondent's retaliation claim.
Petitioner argues that it "is simply unreasonable to assume
that the legislature would expressly exclude small employers [fewer
than 15 employees] from liability for unlawful discrimination, and
then intend to implicitly make them liable for retaliating against
charges for which they could never have been held liable [in the
first place]." We disagree. Article 2 of the Act, which governs
employment discrimination, expressly prohibits "employers" from
unlawfully discriminating. An "employer" is defined as persons
with 15 or more employees. 775 ILCS 5/2-101(B)(1)(a) (West 1992).
By contrast, section 6-101(A) expressly prohibits a "person" from
retaliating against another person because he made a charge under
the Act. A "person" as defined in the Act can include an employer
with fewer than 15 employees. See 775 ILCS 5/1-103(L) (West 1992).
Where the legislature uses certain words in one instance and
different words in another, it intended different results.
Costello v. Governing Board of Lee County Special Education Ass'n,
252 Ill. App. 3d 547, 558 (1993). Thus, we find that the
legislature intended section 6-101(A) to apply to employers with
fewer than 15 employees.
Petitioner cites federal cases construing a similar provision
under Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C.
2000e-3(a) (1994)). Petitioner claims those cases compel a result
different than the one reached here. We need not delve into an
analysis of those cases, since they are persuasive authority only
and are not binding on us. Habinka v. Human Rights Comm'n, 192
Ill. App. 3d 343, 378-79 (1989). Instead, we rely on the clear
language of section 6-101(A), which compels the conclusion that
respondent's retaliation claim falls within its purview.
For the foregoing reasons, we affirm the Commission.
Affirmed.
CAMPBELL, P.J., and BUCKLEY, J., concur.
[fn1]Although the pleadings in this case refer to petitioner
as Dana Tank Container, Inc., petitioner informs us in its
appellant's brief that its proper name is Dana Container, Inc.