Illinois State Board of Elections v. Human Rights Comm'n
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0599
Case Date: 08/19/1997
NO. 4-96-0599
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE ILLINOIS STATE BOARD OF ELECTIONS, ) Administrative
Petitioner, ) Review of the
v. ) Human Rights
THE ILLINOIS HUMAN RIGHTS COMMISSION ) Commission
and CELIA DART, ) No. 1989SF0094
Respondents. )
JUSTICE GREEN delivered the opinion of the court:
On September 1, 1988, respondent, Celia Dart, an
employee of petitioner, the Illinois State Board of Elections
(Board), filed a complaint with respondent, the Illinois Human
Rights Commission (Commission), contending she was discriminated
against by the Board because she, a female, received less pay
than Mark Kloever, a male, for doing similar work. She claimed a
violation of section 2-102(A) of the Illinois Human Rights Act
(Act) (Ill. Rev. Stat. 1987, ch. 68, par. 2-102(A)), which states
as follows:
"It is a civil rights violation:
(A) Employers. For any em-
ployer to refuse to hire, to segre-
gate, or to act with respect to
recruitment, hiring, promotion,
renewal of employment, selection
for training or apprenticeship,
discharge, discipline, tenure or
terms, privileges or conditions of
employment on the basis of unlawful
discrimination." (Emphasis added.)
Section 1-103(Q) of the Act describes "[u]nlawful
discrimination" as:
"[D]iscrimination against a person because of
his or her race, color, religion, national
origin, ancestry, age, sex, marital status,
handicap or unfavorable discharge from mili-
tary service as those terms are defined in
this Section." (Emphasis added.) Ill. Rev.
Stat. 1987, ch. 68, par. 1-103(Q).
After hearing evidence, the Commission issued an order
on June 26, 1996, finding the Board violated the Act by discrimi-
nating against Dart in regard to her salary because of her sex
and awarded her (1) $25,257.42 in back pay, (2) $1,916.89 to be
paid to the Social Security Administration as due from the
additional salary, (3) $2,511.38 to be similarly paid to the
Illinois State Employees Retirement System, and (4) $17,132.50
for attorney fees and $287.63 for court costs. The Board has
taken administrative review to this court. 775 ILCS 5/8-
111(A)(1) (West Supp. 1995).
The parties dispute the allocation of the burden of
proof, but we conclude the Commission found that, even under the
allocation we and the Board deem to be correct, Dart is entitled
to the relief granted. The decision of the Commission was not
contrary to the manifest weight of the evidence regardless of
what allocation was required. We do not find any reversible
error in the introduction of evidence. We disagree with the
Commission in regard to its appraisal of the importance of the
college degree of Board employee Kloever, to whom Dart compared
herself, but also find no reversible error in that regard.
Accordingly, we affirm.
We must first determine what issues are before us. In
the Board's brief it listed three matters as being issues. The
first was whether the Commission's determination that Dart and
Board employee Kloever performed equal work was contrary to the
manifest weight of the evidence. The second such issue was
whether the Commission's determination that the Board's stated
reason for giving Kloever a higher salary than Dart was not
worthy of belief was contrary to the manifest weight of the
evidence. The last stated issue was whether the Commission erred
relative to the equality of work between Dart and Kloever and the
Board's nondiscriminatory reasons for paying Kloever a higher
salary than Dart.
In the Commission's brief, it contended the Board
raised an issue as to whether the Commission applied the proper
formula for the burden of proof. The Board had not referred to
this issue in its statement of issues or its points and authori-
ties. However, in a summary of its argument, the Board stated
that if the complainant establishes that "she is a member of a
protected class, based on gender, that she performs substantially
equal work to a comparator not of the same gender class, and that
she is paid at a rate less than the comparator," she has estab-
lished a prima facie case and the burden shifts to the respondent
to articulate a proper reason for the wage differential.
The summary then stated that if the respondent articu-
lates "one or more defenses the burden of production again shifts
back to the complainant to prove that the reasons offered by the
respondent are pretextual," and Dart failed to make this proof.
Later, in the Board's detailed argument portion of its brief, the
Board stated the Commission "appears to have ignored the require-
ment that the complainant prove by a preponderance of the evi-
dence that the non-discriminatory reason articulated by the
respondent for the difference in salary was a mere pretext." The
argument then stated the Commission appears to have required the
Board to "bear the burden of proof that its hiring decision was
non-discriminatory." The Board then raised this issue in more
detail in its reply brief. Dart maintains that because the
question of the allocation of burden of proof was not raised in
the Board's statement of issues, it is not properly before us.
Because of the importance of the allocation of burden
of proof, we examine the question of whether it was properly
raised in detail. Supreme Court Rule 335(i)(1) states, in part,
that "[i]nsofar as appropriate, the provisions of [Supreme Court]
Rules 301 through 373 (except for Rule 326) are applicable" for
proceedings in the appellate court for administrative review.
155 Ill. 2d R. 335(i)(1). Supreme Court Rule 341(e) concerns
appellant's briefs and subsection 7 therein states, in part:
"[p]oints not argued are waived and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing."
155 Ill. 2d R. 341(e)(7); see Dunn v. Baltimore & Ohio R.R. Co.,
162 Ill. App. 3d 97, 105, 515 N.E.2d 1027, 1033 (1987); Gale v.
Hoekstra, 59 Ill. App. 3d 400, 410, 375 N.E.2d 456, 464 (1978).
In People v. Saulsburry, 178 Ill. App. 3d 857, 864, 533
N.E.2d 1154, 1158 (1989), the Second District Appellate Court
stated:
"Finally, defendant 'notes' in a curso-
ry, one-page argument in his brief that the
prosecutor made improper comments in his
closing arguments. Contrary to Supreme Court
Rule 341(e) (113 Ill. 2d R. 341(e)), the
issue was not listed in the statement of
issues presented portion of the brief or
mentioned in the caption of the issues in the
argument portion of the brief, and is there-
fore waived. Further, the issue is also
waived for failure to raise the issue in the
written post-trial motion. People v. Enoch
(1988), 122 Ill. 2d 176, 186, 522 N.E.2d
1124[, 1129-30]."
The foregoing is the only authority we have found to deem an
issue before this court waived when, as here, it is not set forth
in the statement of issues or captioned in regard to the argu-
ment. In other cases, such as Dunn (162 Ill. App. 3d at 105, 515
N.E.2d at 1033) and Gale (59 Ill. App. 3d at 410, 375 N.E.2d at
464), the court speaks of waiver occurring when the issue is not
raised in any portion of the appellate brief. We conclude the
latter is the rule. Stating the points to be relied upon for
reversal in the statement of issues in the brief is highly
desirable and makes the argument of the brief more logical and
persuasive, but we deem the Board's brief here barely sufficient
to raise the issue of the allocation of burden of proof.
The particulars of Dart's complaint before the Commis-
sion were as follows: (1) Dart was hired in December 1973; (2)
since December 1984 and continuing, Dart had not received pay
equal to Kloever for the performance of her duties as an "Elec-
tion Specialist II"; (3) Dart's supervisor was a female and her
division included five election specialists--three female and two
male; (4) Mark Kloever (a male) and Dart were "Election Special-
ist IIs" (at the time the complaint was filed) and performed the
same duties; (5) Kloever was hired as a trainee in 1984 with a
beginning salary of $19,000; (6) Kloever had been with the Board
for four years and Dart had been with the agency for eight years;
(7) Kloever made $4,000 to $5,000 per year more than Dart; and
(8) Dart's employer did not give her special assignments, which
would have helped in her evaluations.
The evidence was heard before an administrative law
judge (ALJ). Dart testified (1) she completed high school in
1947 and took a six-month course at Universal Career College; (2)
she took a refresher business course in 1971; (3) her work
experience included a bookkeeping job for 1
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