Villalobos v. F.D.L. Foods
Annotate this Case
No. 2--97--0745
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
EDWARD VILLALOBOS, ) Appeal from the Circuit Court
) of Ogle County.
)
Plaintiff-Appellant, ) No. 96--L--34
)
v. )
)
F.D.L. FOODS, INC., ) Honorable
) John B. Roe,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Plaintiff, Edward Villalobos, appeals from the dismissal of his
complaint in the circuit court of Ogle County. Plaintiff's
complaint sought to enforce an order of the Illinois Human Rights
Commission (Commission) that required defendant, F.D.L. Foods, Inc.,
to pay damages, costs, and fees to plaintiff based on plaintiff's
charge of employment discrimination against defendant. The issues
on appeal are whether plaintiff timely filed his charge against
defendant with the Illinois Department of Human Rights (Department),
and whether plaintiff timely filed his complaint with the
Commission.
The record reveals the following facts. On September 23, 1992,
the Department received and date-stamped a multipage document that
was entitled Illinois Department of Human Rights Employment
Complaint Information Sheet (CIS). The CIS was completed in
handwriting and signed by plaintiff, but was not notarized.
Plaintiff asserts that he mailed the CIS to the Department on
September 21, 1992. Plaintiff supports this assertion with an
affidavit that was signed by his attorney's secretary. The record
contains nothing that shows when the mailing was postmarked. In the
CIS, plaintiff alleged that his civil rights were violated while
he was employed by defendant and that he was improperly terminated
from his employment with defendant. The CIS shows that defendant
terminated plaintiff's employment on March 24, 1992.
Because the CIS was not notarized, the Department deemed it
to be an unperfected charge. After receiving the CIS, the
Department mailed to plaintiff a typewritten formal statement of
charge based on the information supplied by plaintiff in the CIS.
A cover letter dated October 9, 1992, accompanied the formal
statement of charge. The cover letter advised plaintiff that, if
he wished to proceed with the matter, he should sign, notarize, and
return the formal statement of charge to the Department by October
25, 1992.
Plaintiff signed the formal statement of charge in front of a
notary on October 15, 1992. Plaintiff asserts that he mailed the
signed and notarized formal statement of charge to the Department
on the same date. Along with the formal statement of charge, the
record contains a copy of an envelope that bears a postmark dated
October 15, 1992. The envelope is date-stamped showing that it was
received by the Department on October 19, 1992.
In a letter dated October 30, 1992, the Department advised
plaintiff that his charge against defendant had been filed and that
the Department would investigate the charge according to its
procedures. The letter also contained the following:
If the Department does not complete your case within 300 days
from the date you filed your signed and notarized charge (or
within any extension of that time agreed to in writing by you
and the Respondent), you have the right to file your own
complaint with the Human Rights Commission, starting on the
301st day (August 4, 1993) and ending on the 330th day
(September 11, 1993). (Emphasis in original.)
In a letter dated September 9, 1993, that was addressed to the
Commission, plaintiff, through his attorney, requested that an
enclosed complaint of civil rights violation be filed. The
complaint referred to the charge that plaintiff had filed with the
Department and alleged that defendant violated plaintiff's civil
rights when it discharged him on March 26, 1992. Both the letter
and the complaint were date-stamped showing that the Commission
received them on September 14, 1993. In addition, appended to the
date stamp on both the letter and the complaint is the following
notation USP 9-10-93.
On May 5, 1994, an administrative law judge (ALJ) entered an
order stating that defendant had been served with a copy of
plaintiff's complaint of civil rights violation and that defendant
had not answered the complaint or filed any other responsive
pleading. The order granted plaintiff's motion for default and set
a date for a hearing to consider the issue of damages.
In a recommended order and decision dated November 1, 1995,
another ALJ recommended that the Commission enter an order in
plaintiff's favor regarding his complaint. The ALJ made findings
of fact that included a finding that defendant discharged plaintiff
on March 26, 1992. The recommended relief included the payment of
damages, attorney fees, and costs by defendant to plaintiff.
On February 9, 1996, the Commission entered an order and
decision. The Commission's order affirmed and adopted the
recommended order and decision of the ALJ.
On August 22, 1996, plaintiff filed a complaint in the circuit
court. Plaintiff's complaint sought to enforce the terms of the
Commission's order.
Defendant responded by filing a motion to dismiss plaintiff's
complaint. Defendant asserted that the circuit court could not
enforce the Commission's order because the order was void.
Defendant contended that the Commissions's order was void for two
reasons: (1) plaintiff had not timely filed his charge with the
Department, and (2) plaintiff had not timely filed his complaint
with the Commission.
The trial court granted defendant's motion to dismiss
plaintiff's complaint. The court based its decision on its
conclusion that plaintiff did not timely file his complaint with the
Commission. Plaintiff's timely appeal followed.
On appeal, the parties raise both issues that were before the
trial court, i.e., whether plaintiff timely filed his charge against
defendant with the Department, and whether plaintiff timely filed
his complaint with the Commission. Because either issue could be
dispositive of this matter, we will address both issues.
Section 7A--102 of the Illinois Human Rights Act (Act) (775
ILCS 5/7A--102 (West 1992)) sets out the procedures for filing a
charge alleging a civil rights violation based on employment
discrimination with the Department and for filing a related
complaint with the Commission. With respect to a charge filed with
the Department, section 7A--102(A)(1) provides:
1) Within 180 days after the date that a civil rights
violation allegedly has been committed, a charge in writing
under oath or affirmation may be filed with the Department by
an aggrieved party or issued by the Department itself under
the signature of the Director. 775 ILCS 5/7A--102(A)(1)
(West 1992).
Section 2520.40 of Title 56 of the Illinois Administrative Code
(56 Ill. Adm. Code 2520.40 (1994)), one of the Department's
administrative rules (rule 2520.40), governs a determination of when
a charge is deemed filed with the Department. Rule 2520.40
provides as follows:
All documents required to be filed with the Department
shall be deemed filed when received if hand-delivered or
telefaxed. An item received by mail shall be deemed to have
been filed when postmarked, properly addressed and posted for
delivery. 56 Ill. Adm. Code 2520.40 (1994).
In this case, the parties dispute whether plaintiff filed his
charge with the Department within 180 days after the date of the
alleged violation as required by section 7A--102(A)(1). The dispute
stems, in part, from the parties' disagreement as to the date of the
alleged violation and, in part, from the parties' disagreement as
to the proper construction of rule 2520.40.
We first address the construction of rule 2520.40. The parties
do not cite any authority that construes rule 2520.40. Citing the
rule's language, defendant posits that a mailing to the Department
is deemed filed with the Department on the date it is postmarked,
properly addressed and posted for delivery. 56 Ill. Adm. Code
2520.40 (1994). Defendant construes this language to require a
showing of when a mailing was postmarked in order to show when it
was filed with the Department. Plaintiff responds that rule 2520.40
requires only proof that a mailing was mailed within the requisite
filing period to establish that it was timely filed with the
Department.
Rule 2520.40 clearly governs determinations of the timing of
filings with the Department. Rules promulgated by an administrative
agency have the force and effect of law, are presumed to be valid,
and are construed by the same standard as statutes. Granite City
Division of National Steel Co. v. Illinois Pollution Control Board,
155 Ill. 2d 149, 162 (1993). In construing a statute, a court
should first look to the language of the statute to determine the
intent of the drafters. In re Marriage of Mitchell, 181 Ill. 2d.
169, 173 (1998). The express language of the drafters is the best
indication of their intent, and, if possible, the court should
construe the statute by giving the language its plain and ordinary
meaning without resorting to other interpretive aids. See R.W.
Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164 (1998).
Here, as defendant correctly notes, the express language of
rule 2520.40 indicates that the drafters of the rule intended that
a mailing be deemed filed with the Department when it is
postmarked, properly addressed and posted for delivery. 56 Ill.
Adm. Code 2520.40 (1994). This language plainly indicates that a
necessary part of a determination of when a mailing was filed with
the Department is a determination of when it was postmarked.
Although posting the mailing for delivery is also a requirement, the
plain language of the rule indicates that merely showing when a
mailing was posted is not, by itself, sufficient to establish when
the mailing was filed. Thus, under the rule's plain language, a
determination of when a mailing was filed with the Department
requires a showing of when the mailing was postmarked.
The Commission's orders and decisions consistently support this
construction of rule 2520.40. See, e.g., In re Eash & Header Die
& Tool, Inc. (March 19, 1996), ___ Ill. Hum. Rights Comm'n Rep. ___
(HRC No. 1993--CF--3205); In re Berchiolly & United Beechcraft
(February 23, 1996), ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No.
1993--CN--2357); In re Ognar & Forest City Management, Inc., D/B/A
The Pavilion (December 5, 1995), ___ Ill. Hum. Rights Comm'n Rep.
___ (HRC No. 1994--CF--0509) (charge deemed filed on date of
postmark); In re Harbin & Allstate Insurance Co. (December 13,
1993), ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No. 1992--CF--1763)
(filing date of charge is date postmarked).
An agency's interpretation of a statute is not binding on a
reviewing court and will be rejected when it is erroneous. City of
Decatur v. American Federation of State, County, & Municipal
Employees, Local 268, 122 Ill. 2d 353, 361 (1988). However, a
reviewing court should give considerable deference to an agency's
interpretation of a statute that is administered by the agency.
Denton v. Civil Service Comm'n, 176 Ill. 2d 144, 148 (1997).
With these principles in mind, and in view of the plain
language of the rule, we conclude that rule 2520.40 requires a party
to prove the date that a mailing was postmarked in order to prove
when the mailing was filed with the Department. As to the filing
of a charge with the Department, rule 2520.40, in conjunction with
section 7A--102(A)(1) of the Act, requires that a charge that is
mailed to the Department be postmarked no later than the 180th day
following the date of the alleged violation.
We now turn to the questions of the date of the alleged
violation and whether plaintiff timely filed his charge with the
Department. Plaintiff's charge against defendant alleged that
plaintiff's civil rights were violated during a period of time prior
to his discharge and when he was discharged by defendant. In such
cases, the 180-day period within which a charge may be filed begins
to run on the date that the complainant is notified of his
termination. In re Fang & Village of Oak Park (September 9,
1996), ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No. 1986--CN--
3233).
Both on appeal and in his complaint filed with the Commission,
plaintiff asserts that he was discharged from his employment with
defendant on March 26, 1992. However, in the handwritten
unperfected charge that plaintiff filed with the Department, he
indicated that he was discharged on March 24, 1992. Defendant notes
this inconsistency and asserts that the discharge date should be
considered to be March 24, 1992.
Plaintiff responds that in using the date of March 26, 1992,
he is merely relying on defendant's own statements regarding the
date of his discharge. In support of his position, plaintiff points
to documents written by defendant that use that date.
The record contains a letter dated March 26, 1992, from
defendant to plaintiff. The letter is signed by defendant's
personnel director. The letter notifies plaintiff that he is being
dropped from the payroll, effective March 26, 1992. The record
also contains a verified response by defendant to plaintiff's
charge. The verified response is signed by defendant's vice-
president and general counsel and states that plaintiff was hired
on December 6, 1990, and terminated on March 26, 1992.
In the ALJ's recommended order and decision that was adopted
and affirmed by the Commission, the ALJ found that plaintiff was
discharged by defendant on March 26, 1992. In the trial court order
that plaintiff appeals from, the trial judge stated that [t]he
facts indicate that the Plaintiff was officially discharged on March
26, 1992.
This record sufficiently establishes that plaintiff was
officially terminated by defendant on March 26, 1992. Therefore,
March 26, 1992, was the date that the alleged civil rights violation
was committed for purposes of the 180-day period within which
defendant could file his charge against defendant.
We now turn to the question of whether plaintiff filed his
charge with the Department within 180 days after March 26, 1992.
It is undisputed that if, as has now been determined, the alleged
violation was committed on March 26, 1992, then the 180th day after
that date was September 22, 1992. Under section 7A--102(A)(1) of
the Act, plaintiff must have filed his charge with the Department
by that date in order for the charge to have been timely filed.
Under rule 2520.40, because plaintiff mailed the charge to the
Department, plaintiff's mailing must have been postmarked no later
than September 22, 1992, in order for the charge to have been deemed
filed with the Department by that date.
The record shows that the Department received plaintiff's
charge in the mail on September 23, 1992. Plaintiff has shown that
his charge was mailed on September 21, 1992. Plaintiff has not
shown when the mailing was postmarked. Nonetheless, we believe that
the record sufficiently establishes that plaintiff's charge was
postmarked no later than September 22, 1992. If the mailing was
postmarked later than September 22, 1992, the Department would have
received plaintiff's mailing on the same day that it was postmarked.
We may take judicial notice of the fact that such an occurrence is
extremely unlikely. See Carrizales v. Rheem Manufacturing Co., 226
Ill. App. 3d 20, 26 (1991)(judicial notice may be taken of matters
that everyone knows to be true ). This is particularly so where,
as here, the record indicates that the charge was mailed and,
presumably, postmarked in Winnebago County and delivered to the
Department in Chicago. For these reasons, we conclude that
plaintiff's mailing of his charge to the Department was postmarked
no later than September 22, 1992, and therefore satisfied the
requirement that the mailing be postmarked within 180 days after the
date that the alleged violation was committed.
Defendant next contends that, even if plaintiff's unperfected
charge is deemed to have been filed with the Department within the
requisite 180-day period, it does not satisfy the statutory
requirement that a charge in writing under oath or affirmation
be filed within 180 days (775 ILCS 5/7A--102(A)(1) (West 1992)).
Defendant recognizes that the first, fourth, and fifth districts of
the Illinois Appellate Court have resolved this and similar issues
in ways favorable to plaintiff by deciding that, if a party files
an unperfected charge with the Department within the 180-day period
and later files a perfected charge after the 180-day period has
elapsed, the perfected charge is deemed to relate back to the date
that the unperfected charge was filed and the Department therefore
has jurisdiction. See Maliszewski v. Human Rights Comm'n, 269 Ill.
App. 3d 472 (5th Dist. 1995) (applying Gonzalez principle to
complaint filed with Commission); Phelps v. Human Rights Comm'n, 185
Ill. App. 3d 96 (4th Dist. 1989); Gonzalez v. Human Rights Comm'n,
179 Ill. App. 3d 362 (1st Dist. 1989). However, defendant argues
that these opinions were incorrectly decided and that this district
should not follow them.
We believe that Maliszewski, Phelps, and Gonzalez were
correctly decided and should therefore be followed. When an issue
involves the jurisdiction of an administrative agency in matters
from which all the districts of the appellate court sit in
administrative review, a difference in controlling precedent is very
undesirable. Phelps, 185 Ill. App. 3d at 98. Acting in comity, we
choose to follow Maliszewski, Phelps, and Gonzalez.
Accordingly, when plaintiff filed his perfected charge against
defendant on October 15, 1992 (as shown by the postmark on the
mailing), it related back to September 22, 1992, the date that
plaintiff filed his unperfected charge. We have already established
that September 22, 1992, was the 180th day after the date of the
alleged violation. Plaintiff is therefore deemed to have filed his
perfected charge with the Department within the 180 days following
the date of the alleged violation. For all these reasons,
defendant's contention that the Commission's order was void and
unenforceable because plaintiff did not timely file his charge with
the Department fails.
Next, we turn to the question of whether plaintiff timely filed
his complaint with the Commission. Section 7A--102(G) of the Act
(775 ILCS 5/7A--102(G) (West 1992)) sets out the procedures for
filing a complaint with the Commission. Section 7A--102(G)
provides, in relevant part, as follows:
(1) When a charge of a civil rights violation has been
properly filed, the Department, within 300 days thereof or
within any extension of that period agreed to in writing by
all parties, shall either issue and file a complaint in the
manner and form set forth in this Section or shall order that
no complaint be issued. Any such order shall be duly served
upon both the complainant and the respondent.
(2) Within 30 days of the expiration of the 300-day
period or such longer period as shall have been agreed upon
pursuant to subparagraph (1), the aggrieved party may file a
complaint with the Commission, if the Department has not
sooner filed a complaint or ordered that no complaint be
issued. 775 ILCS 5/7A--102(G)(1), (G)(2) (West 1992).
In this case, although not clearly established by the record,
the Department apparently never issued and filed a complaint or
ordered that no complaint be issued as required by section 7A--
102(G). Moreover, there is nothing in the record that indicates
that the parties agreed to any extension of the 300-day period.
The trial court construed section 7A--102(G) as requiring
plaintiff to file his complaint with the Commission within the 30-
day period that followed the expiration of the 300-day period
following the date that plaintiff filed his unperfected charge with
the Department. The trial court ruled that plaintiff did not file
his complaint with the Commission within that 30-day period, that
the Commission therefore did not have jurisdiction over plaintiff's
complaint, and that plaintiff's complaint in the circuit court
should therefore be dismissed.
On appeal, plaintiff contends that the trial court erred in its
ruling because the 300-day period does not start until a perfected
charge is filed with the Department. Plaintiff maintains that the
300-day period began to run in this case on the day after he filed
his perfected complaint with the Department. More specifically,
plaintiff asserts that he filed his perfected complaint with the
Department on October 15, 1992, when he mailed the formal statement
of charge to the Department, and that the 300-day period therefore
began to run on October 16, 1992, and ended on August 11, 1993. In
plaintiff's view, the 30-day period within which he could properly
file his complaint ran from August 12, 1993, through September 10,
1993. Plaintiff argues that he filed his complaint with the
Commission within this 30-day period by mailing it to the Commission
on September 10, 1993, and that the filing was therefore timely.
Defendant responds that the trial court was correct in using
the date that plaintiff filed his unperfected charge with the
Department as the date marking the start of the 300-day period and
in concluding that plaintiff therefore did not timely file his
complaint with the Commission. Defendant also contends that even
if the date that the perfected charge was filed was the correct date
for determining the start of the 300-day period plaintiff's filing
was still untimely because the Commission did not receive it until
September 14, 1993, a date beyond the 30-day period following the
300-day period even by plaintiff's reckonings.
Thus, two issues are before us: (1) whether the 300-day period
begins to run when an unperfected or perfected charge is filed with
the Department, and (2) if the 300-day period begins to run when a
perfected charge is filed, whether plaintiff's filing of his
complaint was timely.
We will first address the issue of whether the 300-day period
begins to run when an unperfected or perfected charge is filed with
the Department. In support of his position that the period begins
when a perfected charge is filed, plaintiff points to a line of the
Commission's decisions that have construed the 300-day period to
begin to run when a perfected charge is filed with the Department.
These cases construe the 300-day period in this way even though an
unperfected charge may also have been filed and even when the
perfected charge was not filed until after the 180-day period for
filing the charge had elapsed. See, e.g., In re Eash & Header Die
& Tool, Inc. (March 16, 1996), ___ Ill. Hum. Rights Comm'n Rep. ___
(HRC No. 1993--CF--3205); In re Marten & State of Illinois (May 22,
1991) ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No. 1988--SF--0322);
In re Bailey & Board of Education, Peoria School District No. 150,
55 Ill. Hum. Rights Comm'n Rep. 425, (1990).
In response, defendant cites no authority holding that the 300-
day period begins to run when an unperfected charge is filed.
Rather, defendant maintains that plaintiff used inconsistent dates
to suit his convenience as to the filing of his charge with the
Department, i.e., plaintiff asserts that he filed his charge on
September 22, 1992, for purposes of the 180-day filing period, but
plaintiff also asserts that he filed his charge on October 15, 1992,
for purposes of the 300-day period. Defendant contends that the
Commission's decisions relied on by plaintiff were incorrectly
decided. Defendant argues that plaintiff's use of inconsistent
dates thwarts the time line set out in the Act by permitting
plaintiff to determine when the 300-day period begins and thereby
rendering the Act's deadlines meaningless.
In Bailey, the Commission addressed a question that had been
certified to the Commission by an ALJ. The certified question was:
Where a charging party has filed an unperfected charge and a
charge is later perfected, does the 300-day period she must
wait before filing her own complaint under Section 7-102(G)(2)
of the Act [now see section 7A--102(G)] begin on the date the
unperfected charge was filed or on the date it was perfected?
Bailey, 55 Ill. Hum. Rights Comm'n Rep. at 426.
In Bailey, the respondent argued that the unperfected filing
date should be used to denote the start of the 300-day period
because of the rationale propounded in Gonzalez that a perfected
charge relates back to the date of the filing of an unperfected
charge. The Commission rejected that argument on the ground that
it would be unfair to penalize a complainant who timely filed an
unperfected charge but was not allowed to proceed merely because of
a minor technical defect such as failing to notarize the charge.
Bailey, 55 Ill. Hum. Rights Comm'm Rep. at 432. The Commission then
stated:
The purpose behind the 300-day investigation period on the
other hand is to give the Department of Human Rights a full
opportunity to investigate the charge and to determine whether
there is any merit to the claim. It is only after the
Department has failed to act within the 300-day period that
the complainant is allowed to file his or her own charge.
Although it would be unfair to the complainant to block the
filing of his charge because of some minor, easily correctible
[sic] defect, such a defect does prevent the Department of
Human Rights from investigating the charge. If the defect is
not corrected on a timely basis, the unperfected charge will
be considered a nullity. Thus, as a practical matter, the
Department's time for investigating the charge begins on the
date that a formal charge, signed under oath, is received.
The Administrative Law Judge found, and we agree, that holding
that the 300-day investigation period begins on the date that
the unperfected charge is filed would give the Department of
Human Rights less than 300 days to investigate the case, and
this would be contrary to the intent of the General Assembly.
Section 7-102(G) states that the 300-day investigation
period begins only after the charge has been 'properly' filed.
It is the holding of the full Commission that a charge has not
been 'properly' filed within the meaning of Section 7-102(G)
until a perfected charge has been submitted. Bailey, 55 Ill.
Hum. Rights Comm'n Rep. at 432-433.
As noted previously , we are not bound to follow an agency's
interpretation of a statute. City of Decatur, 122 Ill. 2d at 361.
However, we should give considerable deference to an agency's
interpretation of a statute that it administers. Denton, 176 Ill. 2d at 148.
Because the Commission's interpretation in Bailey of language
now found in section 7A--102(G) is well reasoned, we elect to follow
it. Therefore, in this case, the 300-day period for the Department
to investigate plaintiff's charge began to run the day following the
date that plaintiff filed his perfected charge with the Department,
i.e., October 16, 1992, and ended on August 11, 1993. The ensuing
30-day period within which plaintiff could file his own complaint
with the Commission then ran from August 12, 1993, through September
10, 1993.
The trial court's ruling that the 300-day period began when
plaintiff filed his unperfected charge with the Department is
clearly erroneous. However, we still must determine whether
plaintiff filed his complaint within the 30-day period.
Defendant contends that plaintiff's filing of his complaint was
untimely because plaintiff failed to file the complaint within the
30-day period ending on September 10, 1993. Defendant argues that
Plaintiff's complaint was not received by the Commission until
September 14, 1993, and that plaintiff has not produced evidence
that the complaint was postmarked on or before September 10, 1993,
as required by rule 2520.40.
We note that defendant's reliance on rule 2520.40 as authority
regarding the date of a filing with the Commission is misplaced.
Rule 2520.40 governs a filing with the Department, but a different
provision, section 5300.40 (56 Ill. Adm Code 5300.40 (1992)),
governs a filing with the Commission.
Prior to June 1, 1992, section 5300.40 contained language that
was virtually identical to rule 2520.40 as to determining the filing
date of mailings. Both provisions provided that a mailing was
deemed to have been filed when postmarked, properly addressed and
posted for delivery. However, effective June 1, 1992, prior to the
date that plaintiff filed his complaint, section 5300.40 was amended
to add the following language:
An item properly received by mail shall be deemed to have
been filed on the date specified in the applicable proof of
mailing. Proof of mailing shall be made by filing with the
Commission a certificate of the attorney or the affidavit of
a person who is not an attorney, stating the date and place of
mailing and the fact that proper postage was prepaid. The
certificate or affidavit shall be filed with the Commission at
the same time the item to which it refers is filed. If the
certificate or affidavit does not accompany an item filed by
mail, an item received by mail shall be deemed to have been
filed when postmarked, properly addressed and posted for
delivery. 16 Ill. Reg. 7841 (adopted May 22, 1992).
In this case, a document entitled Proof of Service was
attached to plaintiff's complaint. The document states that it was
prepared by plaintiff's attorney. The document also contains the
notarized signature of plaintiff's attorney's secretary. The
document certifies that plaintiff's complaint was mailed to the
Commission at its Chicago office by mailing the complaint with
postage fully prepaid in Loves Park, Illinois, on September 10,
1993. We believe that this document is a sufficient proof of
mailing to satisfy section 5300.40. We also note that the record
contains evidence that plaintiff's mailing of his complaint was
postmarked on September 10, 1993. This evidence is in the form of
a notation appended to the date stamp showing that the complaint was
received by the Commission on September 14, 1993. The appended
notation states USP September 10, 1993.
This record establishes that plaintiff mailed his complaint to
the Commission on September 10, 1993, and that the mailing was
postmarked on the same date. Because September 10, 1993, was within
the 30-day period that followed the expiration of the 300-day period
that followed the filing of plaintiff's perfected charge with the
Department, plaintiff's filing of his complaint with the Commission
was timely.
The order of the circuit court of Ogle County dismissing
plaintiff's complaint on the ground that plaintiff's filing of his
complaint with the Commission was untimely is reversed. This cause
is remanded to the circuit court for further proceedings consistent
with this opinion.
Reversed and remanded.
INGLIS and McLAREN, JJ., concur.
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
EDWARD VILLALOBOS, ) Appeal from the Circuit Court
) of Ogle County.
)
Plaintiff-Appellant, ) No. 96--L--34
)
v. )
)
F.D.L. FOODS, INC., ) Honorable
) John B. Roe,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Plaintiff, Edward Villalobos, appeals from the dismissal of his
complaint in the circuit court of Ogle County. Plaintiff's
complaint sought to enforce an order of the Illinois Human Rights
Commission (Commission) that required defendant, F.D.L. Foods, Inc.,
to pay damages, costs, and fees to plaintiff based on plaintiff's
charge of employment discrimination against defendant. The issues
on appeal are whether plaintiff timely filed his charge against
defendant with the Illinois Department of Human Rights (Department),
and whether plaintiff timely filed his complaint with the
Commission.
The record reveals the following facts. On September 23, 1992,
the Department received and date-stamped a multipage document that
was entitled Illinois Department of Human Rights Employment
Complaint Information Sheet (CIS). The CIS was completed in
handwriting and signed by plaintiff, but was not notarized.
Plaintiff asserts that he mailed the CIS to the Department on
September 21, 1992. Plaintiff supports this assertion with an
affidavit that was signed by his attorney's secretary. The record
contains nothing that shows when the mailing was postmarked. In the
CIS, plaintiff alleged that his civil rights were violated while
he was employed by defendant and that he was improperly terminated
from his employment with defendant. The CIS shows that defendant
terminated plaintiff's employment on March 24, 1992.
Because the CIS was not notarized, the Department deemed it
to be an unperfected charge. After receiving the CIS, the
Department mailed to plaintiff a typewritten formal statement of
charge based on the information supplied by plaintiff in the CIS.
A cover letter dated October 9, 1992, accompanied the formal
statement of charge. The cover letter advised plaintiff that, if
he wished to proceed with the matter, he should sign, notarize, and
return the formal statement of charge to the Department by October
25, 1992.
Plaintiff signed the formal statement of charge in front of a
notary on October 15, 1992. Plaintiff asserts that he mailed the
signed and notarized formal statement of charge to the Department
on the same date. Along with the formal statement of charge, the
record contains a copy of an envelope that bears a postmark dated
October 15, 1992. The envelope is date-stamped showing that it was
received by the Department on October 19, 1992.
In a letter dated October 30, 1992, the Department advised
plaintiff that his charge against defendant had been filed and that
the Department would investigate the charge according to its
procedures. The letter also contained the following:
If the Department does not complete your case within 300 days
from the date you filed your signed and notarized charge (or
within any extension of that time agreed to in writing by you
and the Respondent), you have the right to file your own
complaint with the Human Rights Commission, starting on the
301st day (August 4, 1993) and ending on the 330th day
(September 11, 1993). (Emphasis in original.)
In a letter dated September 9, 1993, that was addressed to the
Commission, plaintiff, through his attorney, requested that an
enclosed complaint of civil rights violation be filed. The
complaint referred to the charge that plaintiff had filed with the
Department and alleged that defendant violated plaintiff's civil
rights when it discharged him on March 26, 1992. Both the letter
and the complaint were date-stamped showing that the Commission
received them on September 14, 1993. In addition, appended to the
date stamp on both the letter and the complaint is the following
notation USP 9-10-93.
On May 5, 1994, an administrative law judge (ALJ) entered an
order stating that defendant had been served with a copy of
plaintiff's complaint of civil rights violation and that defendant
had not answered the complaint or filed any other responsive
pleading. The order granted plaintiff's motion for default and set
a date for a hearing to consider the issue of damages.
In a recommended order and decision dated November 1, 1995,
another ALJ recommended that the Commission enter an order in
plaintiff's favor regarding his complaint. The ALJ made findings
of fact that included a finding that defendant discharged plaintiff
on March 26, 1992. The recommended relief included the payment of
damages, attorney fees, and costs by defendant to plaintiff.
On February 9, 1996, the Commission entered an order and
decision. The Commission's order affirmed and adopted the
recommended order and decision of the ALJ.
On August 22, 1996, plaintiff filed a complaint in the circuit
court. Plaintiff's complaint sought to enforce the terms of the
Commission's order.
Defendant responded by filing a motion to dismiss plaintiff's
complaint. Defendant asserted that the circuit court could not
enforce the Commission's order because the order was void.
Defendant contended that the Commissions's order was void for two
reasons: (1) plaintiff had not timely filed his charge with the
Department, and (2) plaintiff had not timely filed his complaint
with the Commission.
The trial court granted defendant's motion to dismiss
plaintiff's complaint. The court based its decision on its
conclusion that plaintiff did not timely file his complaint with the
Commission. Plaintiff's timely appeal followed.
On appeal, the parties raise both issues that were before the
trial court, i.e., whether plaintiff timely filed his charge against
defendant with the Department, and whether plaintiff timely filed
his complaint with the Commission. Because either issue could be
dispositive of this matter, we will address both issues.
Section 7A--102 of the Illinois Human Rights Act (Act) (775
ILCS 5/7A--102 (West 1992)) sets out the procedures for filing a
charge alleging a civil rights violation based on employment
discrimination with the Department and for filing a related
complaint with the Commission. With respect to a charge filed with
the Department, section 7A--102(A)(1) provides:
1) Within 180 days after the date that a civil rights
violation allegedly has been committed, a charge in writing
under oath or affirmation may be filed with the Department by
an aggrieved party or issued by the Department itself under
the signature of the Director. 775 ILCS 5/7A--102(A)(1)
(West 1992).
Section 2520.40 of Title 56 of the Illinois Administrative Code
(56 Ill. Adm. Code 2520.40 (1994)), one of the Department's
administrative rules (rule 2520.40), governs a determination of when
a charge is deemed filed with the Department. Rule 2520.40
provides as follows:
All documents required to be filed with the Department
shall be deemed filed when received if hand-delivered or
telefaxed. An item received by mail shall be deemed to have
been filed when postmarked, properly addressed and posted for
delivery. 56 Ill. Adm. Code 2520.40 (1994).
In this case, the parties dispute whether plaintiff filed his
charge with the Department within 180 days after the date of the
alleged violation as required by section 7A--102(A)(1). The dispute
stems, in part, from the parties' disagreement as to the date of the
alleged violation and, in part, from the parties' disagreement as
to the proper construction of rule 2520.40.
We first address the construction of rule 2520.40. The parties
do not cite any authority that construes rule 2520.40. Citing the
rule's language, defendant posits that a mailing to the Department
is deemed filed with the Department on the date it is postmarked,
properly addressed and posted for delivery. 56 Ill. Adm. Code
2520.40 (1994). Defendant construes this language to require a
showing of when a mailing was postmarked in order to show when it
was filed with the Department. Plaintiff responds that rule 2520.40
requires only proof that a mailing was mailed within the requisite
filing period to establish that it was timely filed with the
Department.
Rule 2520.40 clearly governs determinations of the timing of
filings with the Department. Rules promulgated by an administrative
agency have the force and effect of law, are presumed to be valid,
and are construed by the same standard as statutes. Granite City
Division of National Steel Co. v. Illinois Pollution Control Board,
155 Ill. 2d 149, 162 (1993). In construing a statute, a court
should first look to the language of the statute to determine the
intent of the drafters. In re Marriage of Mitchell, 181 Ill. 2d.
169, 173 (1998). The express language of the drafters is the best
indication of their intent, and, if possible, the court should
construe the statute by giving the language its plain and ordinary
meaning without resorting to other interpretive aids. See R.W.
Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164 (1998).
Here, as defendant correctly notes, the express language of
rule 2520.40 indicates that the drafters of the rule intended that
a mailing be deemed filed with the Department when it is
postmarked, properly addressed and posted for delivery. 56 Ill.
Adm. Code 2520.40 (1994). This language plainly indicates that a
necessary part of a determination of when a mailing was filed with
the Department is a determination of when it was postmarked.
Although posting the mailing for delivery is also a requirement, the
plain language of the rule indicates that merely showing when a
mailing was posted is not, by itself, sufficient to establish when
the mailing was filed. Thus, under the rule's plain language, a
determination of when a mailing was filed with the Department
requires a showing of when the mailing was postmarked.
The Commission's orders and decisions consistently support this
construction of rule 2520.40. See, e.g., In re Eash & Header Die
& Tool, Inc. (March 19, 1996), ___ Ill. Hum. Rights Comm'n Rep. ___
(HRC No. 1993--CF--3205); In re Berchiolly & United Beechcraft
(February 23, 1996), ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No.
1993--CN--2357); In re Ognar & Forest City Management, Inc., D/B/A
The Pavilion (December 5, 1995), ___ Ill. Hum. Rights Comm'n Rep.
___ (HRC No. 1994--CF--0509) (charge deemed filed on date of
postmark); In re Harbin & Allstate Insurance Co. (December 13,
1993), ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No. 1992--CF--1763)
(filing date of charge is date postmarked).
An agency's interpretation of a statute is not binding on a
reviewing court and will be rejected when it is erroneous. City of
Decatur v. American Federation of State, County, & Municipal
Employees, Local 268, 122 Ill. 2d 353, 361 (1988). However, a
reviewing court should give considerable deference to an agency's
interpretation of a statute that is administered by the agency.
Denton v. Civil Service Comm'n, 176 Ill. 2d 144, 148 (1997).
With these principles in mind, and in view of the plain
language of the rule, we conclude that rule 2520.40 requires a party
to prove the date that a mailing was postmarked in order to prove
when the mailing was filed with the Department. As to the filing
of a charge with the Department, rule 2520.40, in conjunction with
section 7A--102(A)(1) of the Act, requires that a charge that is
mailed to the Department be postmarked no later than the 180th day
following the date of the alleged violation.
We now turn to the questions of the date of the alleged
violation and whether plaintiff timely filed his charge with the
Department. Plaintiff's charge against defendant alleged that
plaintiff's civil rights were violated during a period of time prior
to his discharge and when he was discharged by defendant. In such
cases, the 180-day period within which a charge may be filed begins
to run on the date that the complainant is notified of his
termination. In re Fang & Village of Oak Park (September 9,
1996), ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No. 1986--CN--
3233).
Both on appeal and in his complaint filed with the Commission,
plaintiff asserts that he was discharged from his employment with
defendant on March 26, 1992. However, in the handwritten
unperfected charge that plaintiff filed with the Department, he
indicated that he was discharged on March 24, 1992. Defendant notes
this inconsistency and asserts that the discharge date should be
considered to be March 24, 1992.
Plaintiff responds that in using the date of March 26, 1992,
he is merely relying on defendant's own statements regarding the
date of his discharge. In support of his position, plaintiff points
to documents written by defendant that use that date.
The record contains a letter dated March 26, 1992, from
defendant to plaintiff. The letter is signed by defendant's
personnel director. The letter notifies plaintiff that he is being
dropped from the payroll, effective March 26, 1992. The record
also contains a verified response by defendant to plaintiff's
charge. The verified response is signed by defendant's vice-
president and general counsel and states that plaintiff was hired
on December 6, 1990, and terminated on March 26, 1992.
In the ALJ's recommended order and decision that was adopted
and affirmed by the Commission, the ALJ found that plaintiff was
discharged by defendant on March 26, 1992. In the trial court order
that plaintiff appeals from, the trial judge stated that [t]he
facts indicate that the Plaintiff was officially discharged on March
26, 1992.
This record sufficiently establishes that plaintiff was
officially terminated by defendant on March 26, 1992. Therefore,
March 26, 1992, was the date that the alleged civil rights violation
was committed for purposes of the 180-day period within which
defendant could file his charge against defendant.
We now turn to the question of whether plaintiff filed his
charge with the Department within 180 days after March 26, 1992.
It is undisputed that if, as has now been determined, the alleged
violation was committed on March 26, 1992, then the 180th day after
that date was September 22, 1992. Under section 7A--102(A)(1) of
the Act, plaintiff must have filed his charge with the Department
by that date in order for the charge to have been timely filed.
Under rule 2520.40, because plaintiff mailed the charge to the
Department, plaintiff's mailing must have been postmarked no later
than September 22, 1992, in order for the charge to have been deemed
filed with the Department by that date.
The record shows that the Department received plaintiff's
charge in the mail on September 23, 1992. Plaintiff has shown that
his charge was mailed on September 21, 1992. Plaintiff has not
shown when the mailing was postmarked. Nonetheless, we believe that
the record sufficiently establishes that plaintiff's charge was
postmarked no later than September 22, 1992. If the mailing was
postmarked later than September 22, 1992, the Department would have
received plaintiff's mailing on the same day that it was postmarked.
We may take judicial notice of the fact that such an occurrence is
extremely unlikely. See Carrizales v. Rheem Manufacturing Co., 226
Ill. App. 3d 20, 26 (1991)(judicial notice may be taken of matters
that everyone knows to be true ). This is particularly so where,
as here, the record indicates that the charge was mailed and,
presumably, postmarked in Winnebago County and delivered to the
Department in Chicago. For these reasons, we conclude that
plaintiff's mailing of his charge to the Department was postmarked
no later than September 22, 1992, and therefore satisfied the
requirement that the mailing be postmarked within 180 days after the
date that the alleged violation was committed.
Defendant next contends that, even if plaintiff's unperfected
charge is deemed to have been filed with the Department within the
requisite 180-day period, it does not satisfy the statutory
requirement that a charge in writing under oath or affirmation
be filed within 180 days (775 ILCS 5/7A--102(A)(1) (West 1992)).
Defendant recognizes that the first, fourth, and fifth districts of
the Illinois Appellate Court have resolved this and similar issues
in ways favorable to plaintiff by deciding that, if a party files
an unperfected charge with the Department within the 180-day period
and later files a perfected charge after the 180-day period has
elapsed, the perfected charge is deemed to relate back to the date
that the unperfected charge was filed and the Department therefore
has jurisdiction. See Maliszewski v. Human Rights Comm'n, 269 Ill.
App. 3d 472 (5th Dist. 1995) (applying Gonzalez principle to
complaint filed with Commission); Phelps v. Human Rights Comm'n, 185
Ill. App. 3d 96 (4th Dist. 1989); Gonzalez v. Human Rights Comm'n,
179 Ill. App. 3d 362 (1st Dist. 1989). However, defendant argues
that these opinions were incorrectly decided and that this district
should not follow them.
We believe that Maliszewski, Phelps, and Gonzalez were
correctly decided and should therefore be followed. When an issue
involves the jurisdiction of an administrative agency in matters
from which all the districts of the appellate court sit in
administrative review, a difference in controlling precedent is very
undesirable. Phelps, 185 Ill. App. 3d at 98. Acting in comity, we
choose to follow Maliszewski, Phelps, and Gonzalez.
Accordingly, when plaintiff filed his perfected charge against
defendant on October 15, 1992 (as shown by the postmark on the
mailing), it related back to September 22, 1992, the date that
plaintiff filed his unperfected charge. We have already established
that September 22, 1992, was the 180th day after the date of the
alleged violation. Plaintiff is therefore deemed to have filed his
perfected charge with the Department within the 180 days following
the date of the alleged violation. For all these reasons,
defendant's contention that the Commission's order was void and
unenforceable because plaintiff did not timely file his charge with
the Department fails.
Next, we turn to the question of whether plaintiff timely filed
his complaint with the Commission. Section 7A--102(G) of the Act
(775 ILCS 5/7A--102(G) (West 1992)) sets out the procedures for
filing a complaint with the Commission. Section 7A--102(G)
provides, in relevant part, as follows:
(1) When a charge of a civil rights violation has been
properly filed, the Department, within 300 days thereof or
within any extension of that period agreed to in writing by
all parties, shall either issue and file a complaint in the
manner and form set forth in this Section or shall order that
no complaint be issued. Any such order shall be duly served
upon both the complainant and the respondent.
(2) Within 30 days of the expiration of the 300-day
period or such longer period as shall have been agreed upon
pursuant to subparagraph (1), the aggrieved party may file a
complaint with the Commission, if the Department has not
sooner filed a complaint or ordered that no complaint be
issued. 775 ILCS 5/7A--102(G)(1), (G)(2) (West 1992).
In this case, although not clearly established by the record,
the Department apparently never issued and filed a complaint or
ordered that no complaint be issued as required by section 7A--
102(G). Moreover, there is nothing in the record that indicates
that the parties agreed to any extension of the 300-day period.
The trial court construed section 7A--102(G) as requiring
plaintiff to file his complaint with the Commission within the 30-
day period that followed the expiration of the 300-day period
following the date that plaintiff filed his unperfected charge with
the Department. The trial court ruled that plaintiff did not file
his complaint with the Commission within that 30-day period, that
the Commission therefore did not have jurisdiction over plaintiff's
complaint, and that plaintiff's complaint in the circuit court
should therefore be dismissed.
On appeal, plaintiff contends that the trial court erred in its
ruling because the 300-day period does not start until a perfected
charge is filed with the Department. Plaintiff maintains that the
300-day period began to run in this case on the day after he filed
his perfected complaint with the Department. More specifically,
plaintiff asserts that he filed his perfected complaint with the
Department on October 15, 1992, when he mailed the formal statement
of charge to the Department, and that the 300-day period therefore
began to run on October 16, 1992, and ended on August 11, 1993. In
plaintiff's view, the 30-day period within which he could properly
file his complaint ran from August 12, 1993, through September 10,
1993. Plaintiff argues that he filed his complaint with the
Commission within this 30-day period by mailing it to the Commission
on September 10, 1993, and that the filing was therefore timely.
Defendant responds that the trial court was correct in using
the date that plaintiff filed his unperfected charge with the
Department as the date marking the start of the 300-day period and
in concluding that plaintiff therefore did not timely file his
complaint with the Commission. Defendant also contends that even
if the date that the perfected charge was filed was the correct date
for determining the start of the 300-day period plaintiff's filing
was still untimely because the Commission did not receive it until
September 14, 1993, a date beyond the 30-day period following the
300-day period even by plaintiff's reckonings.
Thus, two issues are before us: (1) whether the 300-day period
begins to run when an unperfected or perfected charge is filed with
the Department, and (2) if the 300-day period begins to run when a
perfected charge is filed, whether plaintiff's filing of his
complaint was timely.
We will first address the issue of whether the 300-day period
begins to run when an unperfected or perfected charge is filed with
the Department. In support of his position that the period begins
when a perfected charge is filed, plaintiff points to a line of the
Commission's decisions that have construed the 300-day period to
begin to run when a perfected charge is filed with the Department.
These cases construe the 300-day period in this way even though an
unperfected charge may also have been filed and even when the
perfected charge was not filed until after the 180-day period for
filing the charge had elapsed. See, e.g., In re Eash & Header Die
& Tool, Inc. (March 16, 1996), ___ Ill. Hum. Rights Comm'n Rep. ___
(HRC No. 1993--CF--3205); In re Marten & State of Illinois (May 22,
1991) ___ Ill. Hum. Rights Comm'n Rep. ___ (HRC No. 1988--SF--0322);
In re Bailey & Board of Education, Peoria School District No. 150,
55 Ill. Hum. Rights Comm'n Rep. 425, (1990).
In response, defendant cites no authority holding that the 300-
day period begins to run when an unperfected charge is filed.
Rather, defendant maintains that plaintiff used inconsistent dates
to suit his convenience as to the filing of his charge with the
Department, i.e., plaintiff asserts that he filed his charge on
September 22, 1992, for purposes of the 180-day filing period, but
plaintiff also asserts that he filed his charge on October 15, 1992,
for purposes of the 300-day period. Defendant contends that the
Commission's decisions relied on by plaintiff were incorrectly
decided. Defendant argues that plaintiff's use of inconsistent
dates thwarts the time line set out in the Act by permitting
plaintiff to determine when the 300-day period begins and thereby
rendering the Act's deadlines meaningless.
In Bailey, the Commission addressed a question that had been
certified to the Commission by an ALJ. The certified question was:
Where a charging party has filed an unperfected charge and a
charge is later perfected, does the 300-day period she must
wait before filing her own complaint under Section 7-102(G)(2)
of the Act [now see section 7A--102(G)] begin on the date the
unperfected charge was filed or on the date it was perfected?
Bailey, 55 Ill. Hum. Rights Comm'n Rep. at 426.
In Bailey, the respondent argued that the unperfected filing
date should be used to denote the start of the 300-day period
because of the rationale propounded in Gonzalez that a perfected
charge relates back to the date of the filing of an unperfected
charge. The Commission rejected that argument on the ground that
it would be unfair to penalize a complainant who timely filed an
unperfected charge but was not allowed to proceed merely because of
a minor technical defect such as failing to notarize the charge.
Bailey, 55 Ill. Hum. Rights Comm'm Rep. at 432. The Commission then
stated:
The purpose behind the 300-day investigation period on the
other hand is to give the Department of Human Rights a full
opportunity to investigate the charge and to determine whether
there is any merit to the claim. It is only after the
Department has failed to act within the 300-day period that
the complainant is allowed to file his or her own charge.
Although it would be unfair to the complainant to block the
filing of his charge because of some minor, easily correctible
[sic] defect, such a defect does prevent the Department of
Human Rights from investigating the charge. If the defect is
not corrected on a timely basis, the unperfected charge will
be considered a nullity. Thus, as a practical matter, the
Department's time for investigating the charge begins on the
date that a formal charge, signed under oath, is received.
The Administrative Law Judge found, and we agree, that holding
that the 300-day investigation period begins on the date that
the unperfected charge is filed would give the Department of
Human Rights less than 300 days to investigate the case, and
this would be contrary to the intent of the General Assembly.
Section 7-102(G) states that the 300-day investigation
period begins only after the charge has been 'properly' filed.
It is the holding of the full Commission that a charge has not
been 'properly' filed within the meaning of Section 7-102(G)
until a perfected charge has been submitted. Bailey, 55 Ill.
Hum. Rights Comm'n Rep. at 432-433.
As noted previously , we are not bound to follow an agency's
interpretation of a statute. City of Decatur, 122 Ill. 2d at 361.
However, we should give considerable deference to an agency's
interpretation of a statute that it administers. Denton, 176 Ill. 2d at 148.
Because the Commission's interpretation in Bailey of language
now found in section 7A--102(G) is well reasoned, we elect to follow
it. Therefore, in this case, the 300-day period for the Department
to investigate plaintiff's charge began to run the day following the
date that plaintiff filed his perfected charge with the Department,
i.e., October 16, 1992, and ended on August 11, 1993. The ensuing
30-day period within which plaintiff could file his own complaint
with the Commission then ran from August 12, 1993, through September
10, 1993.
The trial court's ruling that the 300-day period began when
plaintiff filed his unperfected charge with the Department is
clearly erroneous. However, we still must determine whether
plaintiff filed his complaint within the 30-day period.
Defendant contends that plaintiff's filing of his complaint was
untimely because plaintiff failed to file the complaint within the
30-day period ending on September 10, 1993. Defendant argues that
Plaintiff's complaint was not received by the Commission until
September 14, 1993, and that plaintiff has not produced evidence
that the complaint was postmarked on or before September 10, 1993,
as required by rule 2520.40.
We note that defendant's reliance on rule 2520.40 as authority
regarding the date of a filing with the Commission is misplaced.
Rule 2520.40 governs a filing with the Department, but a different
provision, section 5300.40 (56 Ill. Adm Code 5300.40 (1992)),
governs a filing with the Commission.
Prior to June 1, 1992, section 5300.40 contained language that
was virtually identical to rule 2520.40 as to determining the filing
date of mailings. Both provisions provided that a mailing was
deemed to have been filed when postmarked, properly addressed and
posted for delivery. However, effective June 1, 1992, prior to the
date that plaintiff filed his complaint, section 5300.40 was amended
to add the following language:
An item properly received by mail shall be deemed to have
been filed on the date specified in the applicable proof of
mailing. Proof of mailing shall be made by filing with the
Commission a certificate of the attorney or the affidavit of
a person who is not an attorney, stating the date and place of
mailing and the fact that proper postage was prepaid. The
certificate or affidavit shall be filed with the Commission at
the same time the item to which it refers is filed. If the
certificate or affidavit does not accompany an item filed by
mail, an item received by mail shall be deemed to have been
filed when postmarked, properly addressed and posted for
delivery. 16 Ill. Reg. 7841 (adopted May 22, 1992).
In this case, a document entitled Proof of Service was
attached to plaintiff's complaint. The document states that it was
prepared by plaintiff's attorney. The document also contains the
notarized signature of plaintiff's attorney's secretary. The
document certifies that plaintiff's complaint was mailed to the
Commission at its Chicago office by mailing the complaint with
postage fully prepaid in Loves Park, Illinois, on September 10,
1993. We believe that this document is a sufficient proof of
mailing to satisfy section 5300.40. We also note that the record
contains evidence that plaintiff's mailing of his complaint was
postmarked on September 10, 1993. This evidence is in the form of
a notation appended to the date stamp showing that the complaint was
received by the Commission on September 14, 1993. The appended
notation states USP September 10, 1993.
This record establishes that plaintiff mailed his complaint to
the Commission on September 10, 1993, and that the mailing was
postmarked on the same date. Because September 10, 1993, was within
the 30-day period that followed the expiration of the 300-day period
that followed the filing of plaintiff's perfected charge with the
Department, plaintiff's filing of his complaint with the Commission
was timely.
The order of the circuit court of Ogle County dismissing
plaintiff's complaint on the ground that plaintiff's filing of his
complaint with the Commission was untimely is reversed. This cause
is remanded to the circuit court for further proceedings consistent
with this opinion.
Reversed and remanded.
INGLIS and McLAREN, JJ., concur.
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