Filed:  January 16, 2002

NO. 4-00-0925

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In this judicial review proceeding pursuant to section 8-111(A)(1) of the Illinois Human Rights Act (Act) (775 ILCS 5/8-111(A)(1) (West 2000)) and Supreme Court Rule 335 (155 Ill. 2d R.335), petitioner Michelle Graves seeks judicial review of a portionof the decision of the chief legal counsel of the IllinoisDepartment of Human Rights (Department). The chief legal counseldetermined that the Department did not have jurisdiction of sexualharassment claims for actions occurring more than 180 days prior topetitioner filing charges against respondent Larry Lancaster. Petitioner does not seek review of similar determinations by thechief legal counsel concerning the limitations period on claimsagainst respondent Shop 'N Save Warehouse Foods, Inc. (Shop 'NSave), the employer of petitioner and Lancaster. Shop 'N Save hasnot filed a written appearance and is not a party in this appeal. 155 Ill. 2d R. 335(c). Nor does petitioner seek review of thedismissal of a claim against Lancaster for retaliation that thechief legal counsel upheld because Lancaster was not her employer. Finally, not at issue in this case is the chief legal counsel'sfindings of substantial evidence with regard to the petitioner'sclaims against Lancaster for actions occurring within 180 days ofthe filing of the charges. Petitioner challenges the propriety ofthe chief legal counsel's findings of lack of subject-matterjurisdiction of claims arising from the actions of Lancaster thatoccurred more than 180 days prior to filing the charges. Weaffirm.

The parties suggest that the proper standard of review iswhether the chief legal counsel's decision is "clearly erroneous." We disagree. The chief legal counsel's decision to sustain adismissal of a human rights violation charge will not be disturbedunless it is arbitrary, capricious, or an abuse of discretion. Webb v. Lustig, 298 Ill. App. 3d 695, 704, 700 N.E.2d 220, 226(1998). The chief legal counsel's determination is not a quasi-judicial decision. In Webb v. Lustig, this court discussed atlength the statutory procedure for pursuing a claim of discrimination. Webb, 298 Ill. App. 3d at 702-03, 700 N.E.2d at 225. Thiscourt noted that, before the Department issues a formal complaint,the proceedings are investigatory, not adjudicatory, and thedismissal of the charge by the Department occurs at the investigatory stage, including the chief legal counsel's determination ofwhether to uphold the dismissal. Webb, 298 Ill. App. 3d at 703,700 N.E.2d at 225. The Department and chief legal counsel'sdeterminations are prosecutorial, i.e., whether to prosecute aclaim, and the standard applicable to reviewing decisions on mixedquestions of law and fact in judicial decisions simply does notapply here.

Where an administrative agency's decision involves amixed question of law and fact, the "clearly erroneous" standardmay no longer be the appropriate standard to apply even though thatwas the standard that was applied by the supreme court in City ofBelvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191,205, 692 N.E.2d 295, 302 (1998). The supreme court in cases sinceBelvidere has broken the question down into its fundamental parts,reviewing questions of fact at the appropriate standard, such asmanifest weight, and questions of law de novo. See People v.Crane, 195 Ill. 2d 42, 51-52, 743 N.E.2d 555, 562 (2001) (whenreviewing the propriety of the trial court's determination of aspeedy-trial claim, factual determinations are reviewed on amanifest weight standard and thereafter the court considers de novothe application of the balancing tests); In re G.O., 191 Ill. 2d37, 50, 727 N.E.2d 1003, 1010 (2000) (applying manifest weightstandard to factual findings in a suppression hearing but decidingde novo the ultimate question of whether the question was voluntary).

Section 7A-102(A)(1) of the Act provides that, "[w]ithin180 days after the date that a civil rights violation allegedly hasbeen committed, a charge in writing under oath or affirmation maybe filed with the Department." 775 ILCS 5/7A-102(A)(1) (West2000). The claim must be in such detail as to substantiallyapprise the concerned parties of the time, place, and factssurrounding the alleged violation. 775 ILCS 5/7A-102(A)(2) (West2000). The 180-day requirement in section 7A-102(A)(1) ismandatory (Lipsey v. Human Rights Comm'n, 267 Ill. App. 3d 980,992, 642 N.E.2d 746, 755 (1994)), and compliance is jurisdictional(Faulkner-King v. Department of Human Rights, 225 Ill. App. 3d 784,792, 587 N.E.2d 599, 604 (1992)).

Petitioner made six allegations of sexual harassment,three against Lancaster and three against Shop 'N Save. She alsomade two allegations of retaliation, one against each respondent. The Department dismissed four of the sexual harassment claims forlack of jurisdiction and the other two for lack of substantialevidence. The Department also dismissed the retaliation claimagainst Shop 'N Save for lack of substantial evidence and theretaliation claim against Lancaster for lack of jurisdiction. Petitioner sought review by the chief legal counsel, challengingonly the dismissal of the claims against Lancaster. The chieflegal counsel sustained the dismissal of two claims of sexualharassment and the claim for retaliation against Lancaster on theground of lack of jurisdiction but vacated the dismissal of thethird claim of sexual harassment, finding there was substantialevidence. In this appeal, petitioner does not challenge thepropriety of the chief legal counsel's ruling that the retaliationclaim against Lancaster could not be maintained because he was notan "employer" within the meaning of the statute.

The chief legal counsel found that claimant filed hercharge on June 10, 1999, and amended it on September 22, 1999. TheDepartment broke down the allegations by grouping the first set ofallegations of sexual harassment against Lancaster to have occurredbetween June 1997 and August 13, 1998, more than 300 days prior tothe filing of the charge; the second group of allegations of sexualharassment against Lancaster on August 14, 1998, to December 11,1998, more than 180 days prior to the filing of the charge but lessthan 300 days prior to the filing of the charge; and the thirdgroup from and after December 12, 1998, within 180 days of thefiling of the charge. The petitioner's charge alleged that thesexual harassment consisted of sexual comments, sexual innuendos,requests for sex, and touching of her body, specifically herbreasts. The importance of the 300-day period apparently refers tothe jurisdiction of the Equal Employment Opportunity Commissionunder federal law. See 42 U.S.C.