FIRST DIVISION

FEBRUARY 1, 1999

No. 1-97-4482

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Petitioner, Grette Folbert, appeals from a final order issued by the chief legal counsel of the Illinois Department of Human Rights (Department) sustaining the Department's dismissal of her charge of age discrimination against Courtesy Manufacturing Company (Courtesy) for lack of substantial evidence.

Petitioner filed a two-count charge of discrimination based on her discharge by Courtesy. The first count alleged age discrimination and the second count alleged sex discrimination. The Department's investigator found in her favor on the sex discrimination count, but ruled against her on the age discrimination count. Petitioner appealed from the "lack of substantial evidence" finding on the age discrimination count to the chief legal counsel, who affirmed the investigator's finding and indicated that this determination was a "final order." The final order regarding the age discrimination count is the subject of this appeal.

On appeal, petitioner challenges the constitutionality of recent amendments to the Illinois Human Rights Act (Act)(Pub. Act 89-370, eff. August 18, 1995 (amending 775 ILCS 5/7-101.1) (West 1996))). Under Public Act 89-370, the Department's dismissal of a discrimination claim for lack of substantial evidence is no longer reviewed by the Illinois Human Rights Commission but is now reviewed by the chief legal counsel of the Department. Pub. Act 89-370, eff. August 18, 1995 (amending 775 ILCS 5/7-101.1 (West 1996)). Petitioner also asserts that the chief legal counsel's dismissal of her age discrimination charge for lack of substantial evidence was arbitrary and capricious.

I. FACTSPetitioner was employed at Courtesy from August 1980 until her dismissal on September 22, 1995. At the time of her dismissal, petitioner was 43 years old and a materials manager. Prior to July 1995, petitioner was both an engineering and materials manager and her responsibilities included overseeing how price quotes were generated and cost estimating in support of submitting bids for work.

On February 28, 1996, petitioner filed a two-count charge of age and sex discrimination with the Department against Courtesy. After Courtesy denied petitioner's allegations, the Department conducted an investigation of Courtesy's charges. The Department interviewed several witnesses and reviewed Courtesy's policies and petitioner's work evaluations. During its investigation, the Department considered numerous exhibits which included Courtesy's 1994 equal employment opportunity report; a memorandum regarding petitioner's work performance dated July 19, 1995; petitioner's evaluation for the period of August 8, 1994, to August 7, 1995; Courtesy's written procedure for quote processing; and the termination notices for several employees. In addition, the Department interviewed petitioner; Guy Lombardo, chairman; Brad Enslin, former president; Carl Jelinek, former sales manager; John Curcio, former general manager; and "Confidential Witness A."

Courtesy's employees, whom the Department interviewed, including the company's owner and members of management, reported that in 1995 petitioner began to produce unreliable cost estimates. A memorandum Courtesy submitted to the Department regarding petitioner's work performance discussed how petitioner resisted management's efforts to install the new EZ quote system. The memorandum further reported that petitioner criticized employees responsible for installing the new EZ quote system, undermined management's reliance on the EZ quote system and threatened the success of the system.

Moreover, in the spring of 1995, Guy Lombardo, chairman of Courtesy, stated that petitioner contacted some of Courtesy's competitors about purchasing another company to compete with Courtesy. According to Lombardo, in July of 1995 petitioner's duties as an engineering manager were removed because she presented a poor price quote to one of Courtesy's clients. In September 1995, Lombardo chose to discharge petitioner because, in his opinion, she was untrustworthy. He indicated that some of petitioner's actions appeared questionable, she began to misquote Courtesy's costs for running its presses and she presented varying prices for running the same press. Lombardo further stated that Dawn Schrimsher, who was 13 years older than petitioner, took over petitioner's responsibilities as materials manager.

In rebuttal to Courtesy's witnesses, petitioner denied that she ever attempted to undermine the EZ quote system, but contended that she only expressed an opinion to management that this system would not increase revenue. Petitioner further denied responsibility for producing unreliable or inaccurate quotes. Petitioner claimed that her firing was part of a pattern of discharging older employees. She alleged that John Curio, who was hired as president in 1995, was responsible for a series of dismissals of older employees throughout 1995. Petitioner additionally claimed that Curio replaced her with Derrin Taylor, who was 30 years old. According to petitioner, many of the errors that management blamed petitioner for were in fact committed by Taylor.

Carl Jelinek, a former manager, reported to the Department that petitioner was hard working and a loyal employee. Jelinek believed the petitioner's quotes were outbid because of Courtesy's high gross margin requirement within the quote. Jelinek reported that Lombardo would routinely pressure his employees until they resigned to lower the payroll. Jelinek, however, did not believe that petitioner was discharged because of her sex or age. The Department further interviewed "Confidential Witness A." This witness stated that she had no evidence that petitioner's age was a factor in her dismissal. However, this witness reported that she overheard John Curio, the former president of Courtesy, tell petitioner that she had too much power in the company for a woman. Witness A believed that Courtesy's reasons for discharging petitioner were pretextual.

On January 16, 1997, the Department concluded that there was a lack of substantial evidence to support petitioner's age discrimination charge and thus dismissed it. However, the Department concluded that there was substantial evidence to support petitioner's charge of sex discrimination.

On February 13, 1997, petitioner filed a request for review with the chief legal counsel of the Department. Petitioner contended that the Department failed to interview several witnesses and further contended that she presented sufficient evidence to support a pattern of age discrimination at Courtesy. On May 20, 1997, after reviewing the Department's report and other evidence submitted by the parties, the chief legal counsel vacated the dismissal of petitioner's age discrimination charge and ordered further investigation by the Department.

As a result of this renewed investigation, the Department reviewed the job descriptions of engineering manager and scheduling and materials manager and the termination notices for two employees. The Department additionally interviewed Gordon Skidmore, a former part owner of Courtesy. The Department attempted to contact another witness, Donald Denny, but this witness failed to respond to the Department's investigators. The Department found that Courtesy articulated a legitimate nondiscriminatory reason for discharging petitioner and petitioner failed to show that this reason was a pretext. On June 23, 1997, the Department again concluded that there was a lack of substantial evidence to support the age discrimination charge and dismissed it. On July 28, 1997, petitioner filed a second request for review with the chief legal counsel. To support her claim, petitioner submitted her affidavit, two affidavits from Skidmore, a list of her responsibilities and a brief from a different age discrimination case filed against Courtesy. Courtesy filed its response, which included the order dismissing the other age discrimination case that petitioner relied on in her request for review. On December 8, 1997, the chief legal counsel affirmed the Department's dismissal of petitioner's age discrimination claim. The chief legal counsel found that neither petitioner nor her witnesses presented evidence of age discrimination. The chief legal counsel found that petitioner's own witness, Brad Enslin, stated that her discharge was probably due to a personal vendetta, that Gordon Skidmore failed to provide any evidence to support his conclusion that age was a factor and that petitioner's responsibilities were divided among two employees, one of whom was a female older than petitioner, Dawn Schrimsher. On December 15, 1997, petitioner sought review of the chief legal counsel's decision with the court pursuant to section 8-111(A)(1) of the Act. 775 ILCS 5/8-111(A)(1) (West 1994).

Prior to the amendments within Public Act 89-370, a claimant sought review of the Department's dismissal of a discrimination charge for lack of substantial evidence with the Illinois Human Rights Commission (Commission). 775 ILCS 5/8-103(A) (West 1994). Under the prior law, a claimant, however, was not afforded a full hearing before the Commission. After filing a request for review, the Commission was authorized to consider the Department's report and investigation and any additional evidence timely submitted, and the Commission had discretion to appoint a hearing officer to conduct a hearing on a factual dispute. 775 ILCS 5/8-103(B) (West 1994).

As a result of the amendments within Public Act 89-370, the Department's dismissal of a discrimination claim is no longer reviewed by the Commission but is now reviewed by the chief legal counsel of the Department. Pub. Act 89-370, eff. August 18, 1995 (amending 775 ILCS 5/7-101.1(A) (West 1996)). However, similar to the pre-1996 Act, a claimant is not afforded a full hearing before the chief legal counsel. After filing a request for review, the chief legal counsel, performing the same function formerly executed by the Commission, may consider the Department's report and investigate any additional evidence timely submitted. The chief legal counsel has discretion to appoint a staff attorney to conduct an investigation into a disputed factual issue. 775 ILCS 5/7-101.1(B) (West 1996). The chief legal counsel performs the same procedural function in reviewing a dismissal of a claim as was formerly delegated to the Commission. Roedl v. Midco International, 296 Ill. App. 3d 213, 218, 694 N.E.2d 179 (1998). In changing who has authority to hear requests for review, the 1995 amendments did not change the extent of that authority or otherwise change the type of review proceeding that a complainant received when filing such a request.

Petitioner first argues that Public Act 89-370's amendments to the Act violate her constitutional rights to equal protection and due process under the fourteenth amendment of the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I