Board of Education of the City of Chicago v. Cady

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-1741 Rel

Case Date: 12/13/2006

Preview:THIRD DIVISION December 13, 2006

No. 1-05-1741

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Petitioner, v. DAVID CADY, NORTHEASTERN ILLINOIS UNIVERSITY, and THE ILLINOIS HUMAN RIGHTS COMMISSION, Respondents.

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Petition for Review of an Order of the Illinois Human Rights Commission.

PRESIDING JUSTICE THEIS delivered the opinion of the court: This case is before us for direct review of an order of the Illinois Human Rights Commission (Commission). The Commission adopted the recommended order and decision of an administrative law judge (ALJ) finding that the Board of Education of the City of Chicago (the Board)1 engaged in racial discrimination against the complainant, David Cady, in violation of section 2-102(A) of the Illinois Human Rights Act (the Act) (775 ILCS 5/2-102(A) (West 1996)), and that Northeastern Illinois University (NEIU) aided and abetted the Board in violation of

Effective May 30, 1995, the Board was statutorily changed to the Chicago School Reform Board of Trustees, but no motion to change the name has been made. We will refer to the Board as named in the caption.

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1-05-1741 section 6-101(B) of the Act (775 ILCS 5/6-101(B) (West 1996)).2 The Commission awarded Cady $2,000 in actual damages for emotional distress and awarded other equitable relief. On appeal, the Board contends that: (1) the Commission lacked jurisdiction over Cady's charge of racial discrimination because it was filed beyond the time permitted by statute; (2) the finding of direct evidence of discriminatory intent was against the manifest weight of the evidence and based upon mere speculation; (3) the Commission erred as a matter of law in finding that Cady was qualified for the position advertised; and (4) the Commission erred in awarding damages for emotional distress and prejudgment interest for Cady's one-time viewing of a notice of a job vacancy for which he was not qualified. For the following reasons, we reverse the order of the Commission. BACKGROUND This action arose out of a job advertisement posted at NEIU's career placement office in September 1996. Cady went to the placement office seeking employment leads and viewed a posting for a full-time, certified or immediately certifiable music teacher at Taft High School in Chicago. The posting was handwritten on a job intake form, and named Thomas Cunningham, the principal of Taft High School, as the contact person. The form further listed the job requirements as follows: "[M]ust conform to Bd of Ed. Need to [b]e minority." Cady, who was white, did not apply for the position. On February 4, 1997, Cady filed a Complainant Information Sheet (CIS) with the Department of Human Rights (Department). Therein, he alleged that he had suffered racial

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NEIU has not filed a petition for review of the Commission's final order. -2-

1-05-1741 discrimination by NEIU because he was not considered or hired for the music instructor position. He further alleged that it would be futile to apply for the position because a minority person was specified for the job. He also attached the job intake form that he had seen in the NEIU career placement office, indicating that the job was for a position at Taft High School and that the contact person was Cunningham. A detailed recitation of the procedural history of this case is necessary for a disposition of the jurisdictional issue. On April 7, 1997, the Department sent Cady a notice of an unperfected charge, which named NEIU as the sole respondent. Thereafter on April 17, 1997, Cady perfected the charge by signing and notarizing it, and attaching a document requesting an amendment to the charge, indicating that in addition to NEIU, the respondent "should also be Taft High School." On April 29, 1997, the Department sent Cady a copy of the perfected charge, but failed to make the requested amendments. Subsequently, on May 28, 1997, the record reflects that Cady had a conversation with the Department, again requesting that it add "the Board - Taft High School" as a respondent. An investigator informed him by letter dated June 27, 1997, that the Board could not be charged because Cady did not apply for the teaching position and that NEIU could not be charged because it only posted the job announcement. Thereafter, Cady sent a letter to the Department requesting that it explain why NEIU had not aided and abetted Taft High School's discriminatory practices. On October 28, 1997, the Department held a fact-finding conference with Cady and NEIU. The Board had not been named or notified by the Department as a respondent and, therefore, did not participate in this fact-finding conference. The Department concluded that Cady could not have been discriminated against by being denied a position that he

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1-05-1741 did not apply for, and dismissed his charges. Thereafter, Cady sought review of the dismissal from the Department's Chief Legal Counsel. On April 6, 1998, the Chief Legal Counsel vacated the dismissal, reinstated Cady's charge and remanded it to the Department's charge processing division for additional investigation. Thereafter, the Department sent Cady an amended charge, adding the Board as an additional respondent. On May 28, 1998, Cady perfected the amended charge and on June 3, 1998, the Board was notified for the first time of Cady's amended charge of discrimination. The notice indicated that "the investigator will schedule a fact finding conference and advise you of the scheduled date." The record reflects that no fact-finding conference was held with the Board or Taft High School. Subsequently, on July 9, 1998, the Board filed a motion to dismiss the charges against it, asserting that the Department lacked jurisdiction to hear the charge as the alleged discrimination occurred 19 months before the Board was added to the charge as a respondent. The Department did not respond to the Board's motion. On July 30, 1998, the Department notified the Board of substantial evidence of a civil rights violation, and on September 11, 1998, the Department filed a complaint of civil rights violation with the Commission on Cady's behalf. Therein, the Department alleged that Cady was discouraged from applying for the music position based upon the wording of the advertisement, and that the Board discriminated against him by failing to hire him based on his race. Cady sought damages for "embarrassment, humiliation, insult, and emotional suffering." On October 14, 1998, the Board filed a renewed motion to dismiss the complaint for lack

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1-05-1741 of jurisdiction before the Commission, again asserting that Cady amended his charge19 months after the alleged discrimination. On December 7, 1998, Cunningham, Taft High School's principal, died. Thereafter, the Board filed an amended motion to dismiss, noting the Board had been prejudiced by the unreasonable delay in notifying it of Cady's allegations of discrimination due to the death of its chief witness, and the destruction of documentation. On May 8, 2000, an ALJ denied the motion to dismiss, finding that Cady's charge was timely filed. A hearing was held on Cady's complaint before another ALJ on June 3 and 4, 2004. Cady represented himself at the hearing. Becky Kallem testified that she was a full-time secretary in the placement office at NEIU in September 1996. As part of her duties, she was responsible for answering telephones and filling out job intake forms from employers seeking to fill various vacancies. She recalled that she received a telephone call from Cunningham. He was seeking to post a teacher vacancy at the school. He "wanted to mention in a way that he wanted to encompass looking for minorities as teachers or wanted to open to minorities or something like that." She further recalled that she "summarized instead of minority encouraged to apply, I think I put minority need to apply, and I believed that is why we are all here today, but I'm not so sure that that

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