{ "id": 2968187, "name": "JOSEPH TREMBCZYNSKI, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees", "name_abbreviation": "Trembczynski v. Human Rights Commission", "decision_date": "1993-08-30", "docket_number": "No. 1-91-3873", "first_page": "966", "last_page": "972", "citations": [ { "type": "official", "cite": "252 Ill. App. 3d 966" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "650 F.2d 823", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1240341 ], "weight": 2, "pin_cites": [ { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/f2d/650/0823-01" ] }, { "cite": "478 U.S. 385", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6208149 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/478/0385-01" ] }, { "cite": "490 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605142 ], "weight": 3, "pin_cites": [ { "page": "911" }, { "page": "975" }, { "page": "2269" } ], "opinion_index": 0, "case_paths": [ "/us/490/0900-01" ] }, { "cite": "525 N.E.2d 1215", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 479", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3617003 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0479-01" ] }, { "cite": "431 U.S. 553", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563 ], "weight": 3, "pin_cites": [ { "page": "558" }, { "page": "578" }, { "page": "1889" } ], "opinion_index": 0, "case_paths": [ "/us/431/0553-01" ] }, { "cite": "643 F. Supp. 209", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3897727 ], "weight": 2, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/f-supp/643/0209-01" ] }, { "cite": "467 N.E.2d 943", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "945" }, { "page": "947" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597059 ], "weight": 4, "pin_cites": [ { "page": "669" }, { "page": "671" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0666-01" ] }, { "cite": "513 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 664", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649016 ], "weight": 5, "year": 1984, "pin_cites": [ { "page": "667" }, { "page": "666" }, { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0664-01" ] }, { "cite": "540 N.E.2d 361", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 356", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639715 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0356-01" ] } ], "analysis": { "cardinality": 717, "char_count": 14448, "ocr_confidence": 0.78, "pagerank": { "raw": 1.0159564363925718e-07, "percentile": 0.543440949646099 }, "sha256": "2dd77c304ce907a94aecf726ad69ca4163a03698596be1beebbe0a1d34267ea2", "simhash": "1:bb3ebd06436fd717", "word_count": 2295 }, "last_updated": "2023-07-14T20:57:45.810281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MANNING, P.J., and O\u2019CONNOR, J., concur." ], "parties": [ "JOSEPH TREMBCZYNSKI, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPetitioner Joseph Trembczynski appeals an order of the Illinois Human Rights Commission (Commission) dismissing his complaint against respondents, the City of Calumet City (City) and the Board of Fire and Police Commissioners of the City of Calumet City (Board), for lack of jurisdiction. On appeal, petitioner contends that (1) the Commission\u2019s finding was in error, and (2) respondents\u2019 alleged vision requirement is not a bona fide occupational qualification. For the following reasons, we affirm the finding of the Commission.\nThe record provides the following relevant facts. On July 24, 1987, petitioner filed a charge with the Dlinois Department of Human Rights (Department) against the City and the Board alleging handicap discrimination. Subsequently, the Department filed charges in the Commission on petitioner\u2019s behalf under section 2 \u2014 -102(A) of the Dlinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 2\u2014 102(A)) alleging discrimination in hiring on the basis of a handicap. Respondents filed a motion to dismiss petitioner\u2019s charge, arguing that the charge was untimely filed with the Department. In reply, petitioner filed an amended complaint, accompanied by his own affidavit and numerous exhibits. The administrative law judge (ALJ) made the following findings of fact based on assertions set forth in petitioner\u2019s affidavit.\nFrom 1979 through May 1, 1986, the City and the Board had a policy in effect requiring all applicants for patrolman or patrolwoman to have at least 20/30 vision in each eye without correction. As part of the application process, applicants were required to undergo written and medical examinations, including a vision examination.\nIn March 1980, petitioner became a member of the reserve police division of the Calumet City police department (Police Department). In November 1980, petitioner took a written examination as an applicant for a permanent position in the Police Department. However, petitioner\u2019s name was struck from the preliminary eligibility list because he wore glasses.\nIn 1982, the City conducted another examination for appointment of police officers. Petitioner was advised by Edward J. Fitzgerald, a member of the Board, that he should not bother to take the test because he wore glasses.\nOn March 8, 1986, petitioner took the written examination as an applicant for the position of patrolman in the Police Department. On March 10, petitioner was informed in writing that he had passed the written examination and that an oral examination was scheduled for March 18. Subsequently, petitioner scheduled a vision examination with the Hammond Clinic, Munster, Indiana, for April 28, 1986.\nOn April 14, 1986, petitioner was notified in writing that he had received a score of 106, which placed him within the top 10 candidates for a patrolman position. On the same day, the Board posted a police preliminary eligibility list. Petitioner\u2019s name did not appear on the list. Petitioner telephoned Guy Eveland, a Board member, and Eveland told-petitioner to proceed with his vision examination on April 28, as scheduled, because the final eligibility list would probably not be ready prior to that date.\nOn April 25, 1986, the Board posted the final eligibility list. Petitioner\u2019s name did not appear on the list. Petitioner\u2019s vision examination was conducted as scheduled on April 28, 1986. The results indicated that petitioner had 20/50 vision in his left eye and 20/80 vision in his right eye, correctable to 20/20 with glasses. Petitioner did not receive written notice regarding his exclusion from the final eligibility list, but suspected his exclusion was related to the fact that he wore glasses.\nOn May 1, 1986, the Board issued new eligibility standards for patrolmen/patrolwomen, requiring applicants to have only 20/40 vision in each eye, without correction. The Board refused petitioner\u2019s request to retest under the new standard.\nOn or about July 15, 1986, the Board issued a revised police eligibility list. Petitioner\u2019s name did not appear on the list and he was not advised of the reason for his exclusion.\nBetween January 26 and January 29, 1987, petitioner had conversations with Eveland wherein he asked Eveland for a written explanation for his exclusion from the revised eligibility list. Eve-land told petitioner that a written explanation was not necessary because petitioner failed the vision examination.\nAfter reviewing petitioner\u2019s assertions, the ALJ dismissed petitioner\u2019s charge as untimely because it was not filed within 180 days of the alleged discriminatory act as required by section 7A\u2014 102(A)(1) of the Human Rights Act. (Ill. Rev. Stat. 1989, ch. 68, par. 7A\u2014 102(A)(1) (formerly Ill. Rev. Stat. 1985, ch. 68, par. 7\u2014 102(A)(1)).) The ALJ found that petitioner had knowledge of the facts necessary to make a timely charge on July 15, 1986, but failed to file his charge in the Department until July 24, 1987.\nPetitioner filed exceptions to the recommendation with the Commission, arguing that the ALJ\u2019s decision was in error because respondents\u2019 conduct was \u201ccontinuous and ongoing.\u201d Petitioner claimed that each day that the Board refused to hire him should be considered a new act of discrimination and should initiate a new 180-day filing period. After reviewing the administrative record, a three-member panel of the Commission issued an order on October 3, 1991, adopting the decision of the ALJ and dismissing the complaint with prejudice. Petitioner\u2019s subsequent petition for rehearing before the full Commission was denied on November 27, 1991. Petitioner now appeals directly to this court under Supreme Court Rule 335 (134 Ill. 2d R. 335).\nOn appeal, petitioner contends that the Commission erred in dismissing his complaint for lack of jurisdiction.\nSection 7A\u2014 102(A)(1) of the Illinois Human Rights Act provides:\n\u201cWithin 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department by an aggrieved party or issued by the Department itself under the signature of the Director.\u201d (Ill. Rev. Stat. 1989, ch. 68, par. 7A \u2014 102(A)(1).)\nThis 180-day filing requirement is jurisdictional. (Whitaker v. Human Rights Comm\u2019n (1989), 184 Ill. App. 3d 356, 540 N.E.2d 361; Polacek v. Human Rights Comm\u2019n (1987), 160 Ill. App. 3d 664, 513 N.E.2d 1117.) Failure to file a charge within the prescribed time deprives the Department and the Commission of jurisdiction to proceed further. Polacek, 160 Ill. App. 3d at 667; Lee v. Human Rights Comm\u2019n (1984), 126 Ill. App. 3d 666, 669, 467 N.E.2d 943, 945.\nPetitioner contends that a \u201ccontinuing violation\u201d exists for purposes of tolling the running of the 180-day limitations period. Petitioner argues that the Board\u2019s discriminatory vision \u201cpolicy\u201d was \u201capplied\u201d each time the Board hired from the eligibility list an individual who had scored lower than petitioner on the police examinations. Petitioner argues that because the vision policy was in effect through January 29, 1987, the date on which petitioner last spoke with Eveland to request reasons for his exclusion from the revised eligibility list, the filing period was tolled to that time.\nWe reject petitioner\u2019s claim based on Polacek v. Human Rights Comm\u2019n (1987), 160 Ill. App. 3d 664, 513 N.E.2d 1117. There, the petitioner was laid off from Amex, Inc., because he was unable to perform the duties of his position. Polacek filed a charge with the Department more than 180 days after the date of his layoff, and Polacek\u2019s action was dismissed by the Commission for lack of jurisdiction. Polacek, 160 Ill. App. 3d at 666.\nOn appeal, Polacek asserted that a continuing violation existed for purposes of staying the running of the limitations period, because other individuals had been hired by Amex, Inc., in deference to Polacek\u2019s \u201cright to be rehired.\u201d This court found Polacek\u2019s claim meritless, stating that \u201c[i]f it were the case that so long as an act remains unrevoked the limitation period continues to run, the Human Rights Act\u2019s 180-day limitation period would have no meaning.\u201d (Polacek, 160 Ill. App. 3d at 669.) This court noted that, for the same reason, the petitioner\u2019s argument was rejected in EEOC v. Cushman & Wakefield, Inc. (S.D.N.Y. 1986), 643 F. Supp. 209, where the court stated:\n\u201cUnder counsel\u2019s argument, any time an employee is improperly dismissed, the employer would have a continuing duty to reinstate the employee, and the statute of limitations would never begin to run. In essence, the statute of limitations would become a nullity. *** The 300 day statutory period can be tolled only if the alleged discriminatory practice proved to be a continuing violation. \u2018[AJcts concerning hiring and termination do not constitute continuing violations, while policies concerning promotion and pay generally qualify to toll the statutory period.\u2019 [Citations.]\u201d (Emphasis added.) Cushman, 643 F. Supp. at 214.\nThis court considered a similar argument in Lee v. Human Rights Comm\u2019n (1984), 126 Ill. App. 3d 666, 467 N.E.2d 943. There, Lee alleged a \u201ccontinuing violation\u201d because he unsuccessfully attempted on four occasions to gain reinstatement to his job after he was laid off. The court initially determined that in resolving the issue of whether or not a charge was timely filed, the critical question is whether any present violation exists. (Lee, 126 Ill. App. 3d at 671, citing United Air Lines v. Evans (1977), 431 U.S. 553, 558, 52 L. Ed. 2d 571, 578, 97 S. Ct. 1885, 1889 (title VII case).) The court found that the alleged discrimination occurred on the day Lee\u2019s employment was terminated; thus, the employer\u2019s subsequent refusals to reinstate Lee did not constitute a \u201ccontinuing violation.\u201d The court concluded that Lee\u2019s attempts to regain his job could not be viewed as independent act's of discrimination for purposes of triggering the 180-day limitations period and therefore, affirmed the decision of the Commission that jurisdiction was lacking because the charge had not been timely filed. Lee, 126 Ill. App. 3d at 672, 467 N.E.2d at 947.\nWe find petitioner\u2019s argument that Cushman creates a distinction between discriminatory \u201cacts\u201d and discriminatory \u201cpolicies\u201d unavailing. Petitioner argues that he was refused eligibility as the result of a discriminatory \u201cpolicy,\u201d rather than an \u201cact of discrimination,\u201d and therefore the violation is continuing. We believe that petitioner has misread Cushman. In defining a continuing violation, Cushman specifically distinguishes between issues of \u201chiring and termination\u201d versus issues of \u201cpromotion and pay,\u201d not \u201cacts\u201d versus \u201cpolicies.\u201d\nAs such, the cases cited by petitioner are inapplicable to the present case, as they relate to employment policies affecting individuals who are currently employed, and regarding such matters as promotions, rate of pay or the application of a seniority system. See, e.g., Northtown Ford v. Human Rights Comm\u2019n (1988), 171 Ill. App. 3d 479, 525 N.E.2d 1215 (female employee paid less than male predecessor allowed to recover back pay for the discriminatory salary limited to a period of 180 days prior to the filing of her charge; every time the petitioner received a paycheck, a new act of discrimination occurred); Lorance v. A T & T Technologies, Inc. (1989), 490 U.S. 900, 911, 104 L. Ed. 2d 961, 975, 109 S. Ct. 2261, 2269 (limitations period commenced at the point where a facially nondiscriminatory seniority system produced a change in petitioners\u2019 contractual seniority rights, the point at which respondents adopted a new system); Bazemore v. Friday (1986), 478 U.S. 385, 92 L. Ed. 2d 315, 106 S. Ct. 3000 (title VII requires discriminatory practices in effect prior to existence of title VII to be eliminated, i.e., defendant\u2019s practice of paying less money to a black than to a similarly situated white because of race).\nPetitioner\u2019s further reliance on Roberts v. North American Rockwell Corp. (6th Cir. 1981), 650 F.2d 823, is similarly unavailing. There, the court found Rockwell\u2019s alleged policy of not hiring women to be a clear, continuing violation of title VII (42 U.S.C. \u00a72000e et seq. (1988)): \u201c[W]hen a company fails to hire or promote someone because of their race or sex *** courts do not hesitate to apply what has been termed the continuing violation doctrine. [Citations.]\u201d (Emphasis added.) (Roberts, 650 F.2d at 826.) Here, petitioner does not allege discrimination in hiring based on his race or sex.\nIn the present case, the record shows that petitioner discovered on July 15, 1986, that he was excluded from the revised eligibility list for the position of patrolman. The record further reveals that petitioner did not file his charge in the Department until July 24, 1987. There is nothing in the record that prevented petitioner from filing his charge within the required 180 days following the posting of the revised eligibility list. Since petitioner filed his charge more than 180 days after his dismissal, we find that the charge was untimely filed and therefore properly dismissed by the Commission for lack of jurisdiction.\nPetitioner\u2019s further argument that the Board\u2019s vision requirement was not a bona fide occupational qualification need not be addressed by this court. As this case was dismissed on respondents\u2019 motion prior to hearing, it is improper for petitioner to argue the merits of his claim at this time.\nFor the above reasons, we affirm the finding of the Commission.\nAffirmed.\nMANNING, P.J., and O\u2019CONNOR, J., concur.\nThe record indicates that petitioner filed a lawsuit in the United States District Court for the Northern District of Illinois against respondents on February 3, 1987, alleging violations of due process and equal protection under the fourteenth amendment. The Federal magistrate issued a report and recommendation to dismiss petitioner\u2019s suit on June 30, 1987. The court adopted the magistrate\u2019s recommendation and dismissed petitioner\u2019s suit on August 31, 1987. Petitioner did not appeal the Federal court\u2019s decision.", "type": "majority", "author": "JUSTICE CAMPBELL" } ], "attorneys": [ "Louis V. Kiefor, of Calumet City, for petitioner.", "Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines (Elizabeth A. Knight and Janella L. Barbrow, of counsel), for respondents." ], "corrections": "", "head_matter": "JOSEPH TREMBCZYNSKI, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.\nFirst District (1st Division)\nNo. 1\u201491\u20143873\nOpinion filed August 30, 1993.\nLouis V. Kiefor, of Calumet City, for petitioner.\nKnight, Hoppe, Fanning & Knight, Ltd., of Des Plaines (Elizabeth A. Knight and Janella L. Barbrow, of counsel), for respondents." }, "file_name": "0966-01", "first_page_order": 984, "last_page_order": 990 }