NO. 4-03-0737

Petitioner, Nancy Ferrari, appeals the decision of the acting chief legal counsel (Chief Legal Counsel) of the IllinoisDepartment of Human Rights (Department) affirming the Department'sdismissal of her sex-discrimination complaint filed pursuant to theIllinois Human Rights Act (Act) (775 ILCS 5/1-101 through 10-103 (West2002)). We reverse and remand with directions.

On June 26, 2002, petitioner filed a verified charge with theDepartment, alleging that respondent, the Illinois Department ofCorrections (DOC), sexually discriminated against her on January 31,2002, by discharging her from her job as an educator because of hergender. Specifically, she stated that DOC claimed the discharge wasnecessitated by inappropriate conduct of a sexual nature but thatobjective investigation would reveal DOC was aware similarly employedmales had engaged in such conduct but remained employed.

On September 26, 2002, the Department issued notice of afact-finding conference scheduled for November 20, 2002. A fact-finding conference is "an investigative forum intended to define theissues, determine which facts are undisputed, obtain evidence andascertain whether there is a basis for a negotiated settlement of thecharge." The notice indicated that a complainant's failure to attendthe conference could result in dismissal of the charge.

On September 30, 2002, petitioner's counsel sent theDepartment a letter, stating she was reiterating her request that theDepartment issue a notice to show cause why DOC should not be held indefault for failing to file a timely verified response in accordancewith section 7A-102(B) of the Act (775 ILCS 5/7A-102(B) (West 2002)). The letter referenced a September 23, 2003, phone conversation betweenpetitioner's counsel and Department investigator Annette VanHooser,where VanHooser told petitioner's counsel that she had asked respondentwhy it had not filed a verified response but was not given a reason whyit was not filed. Petitioner's counsel further stated that investigative activities, including the November 20 fact-finding conference,should not continue where, if DOC does not show good cause, allallegations would be deemed admitted pursuant to statute.

On October 30, 2002, petitioner's counsel sent the Departmentanother letter, noting that settlement negotiations were ongoing. Italso stated that she could not recommend that petitioner attend thefact-finding conference unless and until the Department complied withits statutory duty to address DOC's failure to file a verified responsewithin the 60-day time period and to issue DOC a notice to show cause.

On November 4, 2002, DOC sent a copy of its verified response(dated October 1, 2002) to petitioner's counsel. On November 7, 2002,VanHooser sent a letter to the parties, noting that DOC had by thatdate submitted a verified response and served a copy on petitioner. She also reminded the parties of the November 20 hearing. On November8, 2002, petitioner filed a motion to strike DOC's verified response,arguing that DOC failed to file and serve it within the statutorilymandated 60-day period (775 ILCS 5/7A-102(B) (West 2002)) followingreceipt of notice of the charge. Petitioner argued that such failurerequired the Department to issue a notice to show cause. Absent ashowing of good cause, petitioner stated that all allegations were tobe deemed admitted by DOC. See 775 ILCS 5/7A-102(B) (West 2002). OnNovember 18, 2002, petitioner sent another letter to the Department,requesting a response to her motion to strike the verified response,again citing the need to rule on such motion before the fact-findingconference. She formally requested that the conference be cancelled orpostponed.

In a November 19, 2002, letter that was faxed to petitioner,VanHooser stated that "the Department is not a motion entertaining bodyand therefore cannot respond to Complainant's Motion to StrikeRespondent's Verified Answer. The motion has been noted and place[sic] in Complainant's file and will be given the weight it is due whenthe report is written." The letter further denied petitioner's requestto continue the fact-finding conference.

On November 19, 2002, petitioner's counsel sent a letter toVanHooser in reply, stating that "[o]ther than a motion, I am not surehow a complainant can raise procedural issues to the Department beforethe conclusion of the Department's investigation or how to terminate an'investigation' when the respondent does not act in accordance with itsstatutory obligations." She reiterated that she had made four requestsprior to the conference that it be postponed or cancelled. She statedthat petitioner would not be attending the fact-finding conferencebecause no factual issues remained to be addressed in light of theDepartment's failure to comply with its statutory duties.

On November 20, 2002, the Department held a fact-findingconference with witnesses for DOC in attendance. Neither petitionernor her counsel attended. Besides the list of witnesses present, norecord was made of the proceedings.

On December 26, 2002, the Department dismissed the complaint,finding that on September 25, 2002, petitioner agreed to attend thefact-finding conference on November 20, 2002, but did not in factattend. It also noted that on November 19, 2002, petitioner's counselcontacted the Department and indicated that petitioner would not attendthe conference because no factual questions remained to be addressedand petitioner had a resolution agreement pending that would result inpetitioner withdrawing her charge from the Department. The dismissalorder made mention neither of petitioner's motion and requests tostrike DOC's verified response nor her request for default judgment.

Petitioner filed a timely request for review with the ChiefLegal Counsel, requesting that the charge be reinstated and a notice toshow cause issue in light of the Department's noncompliance withsection 7A-102(B) of the Act in failing to address DOC's late-filedverified response. On July 28, 2003, the Chief Legal Counsel affirmedthe dismissal order on the grounds of failure to proceed. See 56 Ill.Adm. Code