                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




              Lynch v. Department of Transportation, 2012 IL App (4th) 111040




Appellate Court            ROBERT D. LYNCH, Plaintiff-Appellant, v. THE DEPARTMENT OF
Caption                    TRANSPORTATION, Defendant-Appellee.–TIMOTHY L. STORM,
                           Plaintiff-Appellant, v. THE ILLINOIS STATE POLICE, Defendant-
                           Appellee.



District & No.             Fourth District
                           Docket Nos. 4-11-1040, 4-11-1048 cons.


Argued                     October 11, 2012
Filed                      November 8, 2012


Held                       In consolidated actions in the circuit court alleging employment
(Note: This syllabus       discrimination under the Illinois Human Rights Act against the Illinois
constitutes no part of     Department of Transportation and the Department of State Police, the
the opinion of the court   claims barred by doctrine of sovereign immunity, since there was no clear
but has been prepared      and unequivocal waiver of the State’s sovereign immunity in the Act,
by the Reporter of         regardless of the Act’s inclusion of the State in the definition of an
Decisions for the          “employer.”
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Sangamon County, Nos. 10-MR-567,
Review                     11-MR-171; the Hon. John W. Belz, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Mary Lee Leahy, of Leahy Law Offices, of Springfield, and Randall D.
Appeal                     Schmidt (argued), of Edwin F. Mandel Legal Aid Clinic, of Chicago, for
                           appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Paul Racette (argued), Assistant Attorney General,
                           of counsel), for appellee.

                           Louis A. Klapp, of Kirkland & Ellis, John A. Knight and Harvey
                           Grossman, both of American Civil Liberties Union of Illinois, and Philip
                           R. Strauss, of Chicago Lawyers’ Committee for Civil Rights, all of
                           Chicago, for amicus curiae American Civil Liberties Union of Illinois.


Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
                           Presiding Justice Turner and Justice Steigmann concurred in the
                           judgment and opinion.



                                             OPINION

¶1           In this consolidated appeal, plaintiffs, Robert D. Lynch and Timothy L. Storm, seek
        review of the Sangamon County circuit court’s orders dismissing their claims under the
        Illinois Human Rights Act (Rights Act) (775 ILCS 5/art. I (West 2010)) pursuant to the
        doctrine of sovereign immunity. Both Lynch and Storm sued the State of Illinois, in its
        capacity as their respective employers, for violations of the Rights Act. Lynch sued the
        Illinois Department of Transportation (IDOT) for unlawful retaliatory conduct. Storm sued
        the Illinois State Police (State Police) for unlawful employment discrimination on the basis
        of age, sex, and sexual orientation. In both cases, the court concluded (1) the Rights Act does
        not contain clear and unequivocal language waiving the State’s sovereign immunity; (2) the
        State’s sovereign immunity is not waived simply because the Rights Act includes the State
        in its definition of “employer”; and (3) the State was not estopped from asserting its
        sovereign immunity despite the letters it sent informing plaintiffs they could “commence a
        civil action in the appropriate state circuit court.”
¶2           We affirm.

¶3                                   I. BACKGROUND
¶4                                        A. Lynch
¶5         On June 16, 2009, Lynch filed his first charge of employment discrimination against
        IDOT (charge No. 2009SF3993) with the Illinois Department of Human Rights (Department)

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       claiming he was denied anger-management classes after an incident with two coworkers and
       was suspended in retaliation for previously opposing racial discrimination against coworker
       Elmer Taborn. On July 2, 2010, the Department notified Lynch by letter it had been unable
       to complete its investigation of his charge within the 365 days permitted by the Rights Act.
       The letter further stated if Lynch “wish[ed] to pursue [his] complaint, [he] must either file
       a complaint with the Human Rights Commission OR commence a civil action in the
       appropriate state circuit court within the 90-day window” beginning June 17, 2010, and
       ending September 14, 2010. (Emphasis in original.)
¶6         On February 22, 2010, Lynch filed his second charge of employment discrimination
       against IDOT (charge No. 2010SF2509) with the Department, claiming IDOT violated the
       Rights Act by unlawfully retaliating against him. On February 23, 2011, the Department
       dismissed this charge for lack of substantial evidence. In its notice of dismissal, the
       Department informed Lynch he could either seek review of the dismissal before the Human
       Rights Commission (Commission) or “commence a civil action in the appropriate state
       circuit court” within 90 days.
¶7         On September 10, 2010, Lynch filed a complaint based on his initial charge (charge No.
       2009SF3993) in the circuit court against IDOT alleging unlawful retaliation in violation of
       the Rights Act. On May 6, 2011, Lynch amended his complaint to include the allegations
       against IDOT in his second charge (charge No. 2010SF2509). IDOT filed a motion to
       dismiss under section 2-619 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-
       619 (West 2010)) and a supporting memorandum of law asserting the circuit court lacked
       subject-matter jurisdiction because the doctrine of sovereign immunity prevented Lynch’s
       suit against the State of Illinois where the legislature had not expressly waived sovereign
       immunity for this type of action.
¶8         On November 8, 2011, the circuit court held a hearing and orally granted IDOT’s motion
       to dismiss, finding (1) the Rights Act does not contain clear and unequivocal language
       waiving the State’s sovereign immunity; (2) the State’s sovereign immunity is not waived
       simply because the Rights Act includes the State in its definition of “employer”; and (3) the
       State is not estopped from asserting its sovereign immunity despite the letter it sent
       informing plaintiff he could “commence a civil action in the appropriate state circuit court.”
       On November 16, 2011, the court entered an order reflecting its prior oral ruling.
¶9         Lynch appeals, docketed No. 4-11-1040.

¶ 10                                          B. Storm
¶ 11       On January 26, 2010, Storm filed a charge of discrimination with the Department (charge
       No. 2010SA2208) asserting the Illinois State Police denied him a promotion to manager
       because of his age (50 years old), his sex (male), and his sexual orientation (heterosexual).
¶ 12       On January 28, 2011, the Department notified Storm by letter the time period for
       investigating his charge had expired and if he “wish[ed] to pursue [his] complaint, [he] must
       either file a complaint with the Human Rights Commission OR commence a civil action in
       the appropriate state circuit court within the 90-day window” beginning January 27, 2011,
       and ending April 26, 2011. (Emphasis in original.)

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¶ 13       On April 25, 2011, Storm filed his complaint in the Sangamon County circuit court
       alleging the Illinois State Police unlawfully discriminated against him on the basis of age,
       sex, and sexual orientation. The Illinois State Police filed a motion to dismiss under section
       2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2010)) and a supporting
       memorandum of law asserting the circuit court lacked subject-matter jurisdiction because the
       doctrine of sovereign immunity prevented Storm’s suit against the State of Illinois where the
       legislature had not expressly waived sovereign immunity for this type of action.
¶ 14       On November 8, 2011, the circuit court held a hearing at the same time as Lynch’s
       hearing and orally granted the Illinois State Police’s motion to dismiss for the same reasons
       expressed in Lynch’s case. On November 16, 2011, the court entered an order reflecting its
       prior oral ruling.
¶ 15       Storm appeals, docketed No. 4-11-1048.

¶ 16                                       II. ANALYSIS
¶ 17       The issue in this consolidated appeal is whether the trial court properly dismissed
       plaintiffs’ Rights Act claims as barred by the doctrine of sovereign immunity. The questions
       posed are whether the legislature waived the State’s sovereign immunity when the Rights Act
       became effective in 1980, and whether it was required to waive the State’s sovereign
       immunity in the 2008 amendments to the Rights Act.

¶ 18                                  A. Standard of Review
¶ 19       Motions to dismiss filed pursuant to section 2-619 of the Procedure Code (735 ILCS 5/2-
       619 (West 2010)) admit the legal sufficiency of the complaint, but assert an affirmative
       defense or other matter to defeat the claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857
       N.E.2d 229, 236 (2006). Section 2-619 motions present a question of law and are subject to
       de novo review. Id. On review, this court accepts all well-pleaded facts as true, draws all
       reasonable inferences in favor of the nonmoving party, and construes all pleadings and
       supporting documents in the light most favorable to the nonmoving party. Stark Excavating,
       Inc. v. Carter Construction Services, Inc., 2012 IL App (4th) 110357, ¶ 36, 967 N.E.2d 465.

¶ 20                                   B. Sovereign Immunity
¶ 21       “ ‘The purpose of sovereign immunity is to protect the state from interference with the
       performance of governmental functions and to preserve and protect state funds.’ ”
       McFatridge v. Madigan, 2011 IL App (4th) 100936, ¶ 46, 962 N.E.2d 1113 (quoting People
       ex rel. Manning v. Nickerson, 184 Ill. 2d 245, 248, 702 N.E.2d 1278, 1280 (1998)).
¶ 22       “Section 2-619(a)(1) of the Procedure Code (735 ILCS 5/2-619(a)(1) (West 2008))
       provides for dismissal of a cause of action due to the trial court’s lack of subject-matter
       jurisdiction.” Sellers v. Rudert, 395 Ill. App. 3d 1041, 1045, 918 N.E.2d 586, 590 (2009).
       Section 4 of article XIII of the Illinois Constitution provides, “[e]xcept as the General
       Assembly may provide by law, sovereign immunity in this State is abolished.” Ill. Const.
       1970, art. XIII, § 4. However, the legislature reinstated the State’s sovereign immunity when

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       it passed the State Lawsuit Immunity Act (Immunity Act) (745 ILCS 5/0.01 to 1.5 (West
       2010)), which provides as follows:
           “Except as provided in the Illinois Public Labor Relations Act, the Court of Claims Act,
           the State Officials and Employees Ethics Act, Section 1.5 of this Act, and, except as
           provided in *** the Clean Coal FutureGen for Illinois Act, the State of Illinois shall not
           be made a defendant or party in any court.” 745 ILCS 5/1 (West 2010).
¶ 23       In addition to the acts specifically expressed in the Immunity Act, the legislature may,
       by statute, consent to suit and waive sovereign immunity. See People ex rel. Madigan v.
       Excavating & Lowboy Services, Inc., 388 Ill. App. 3d 554, 560, 902 N.E.2d 1218, 1225
       (2009) (citing In re Special Education of Walker, 131 Ill. 2d 300, 303, 546 N.E.2d 520, 522
       (1989)). However, the State’s consent to be sued must be clear and unequivocal. Lowboy,
       388 Ill. App. 3d at 563, 902 N.E.2d at 1228; see also Walker, 131 Ill. 2d at 304, 546 N.E.2d
       at 522 (any waiver of sovereign immunity must appear in affirmative statutory language); In
       re M.K., 284 Ill. App. 3d 449, 454 n.1, 672 N.E.2d 271, 275 n.1 (1996) (same). Only the
       legislature has the power to waive sovereign immunity–an officer or agency of the State,
       such as the Department, lacks the authority to do so. See Brucato v. Edgar, 128 Ill. App. 3d
       260, 266-67, 470 N.E.2d 615, 619-20 (1984) (Secretary of State could not waive sovereign
       immunity on behalf of the State).

¶ 24                                       C. The Rights Act
¶ 25       Plaintiffs contend the legislature waived sovereign immunity when it initially enacted the
       Rights Act in 1980, by including the State in its definition of “employer” and, thus, making
       the State eligible to be sued by its employees for violations of the Rights Act. Plaintiffs assert
       the legislature did not need to waive sovereign immunity again when it amended the Rights
       Act in 2008. We disagree.
¶ 26       The Rights Act provides it is a civil rights violation “[f]or any employer to refuse to hire,
       to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment,
       selections for training or apprenticeship, discharge, discipline, tenure or terms, privileges or
       conditions of employment on the basis of unlawful discrimination or citizenship status.” 775
       ILCS 5/2-102(A) (West 2010). “Employer” is defined in relevant part as “[t]he State and any
       political subdivision, municipal corporation or other governmental unit or agency, without
       regard to the number of employees.” 775 ILCS 5/2-101(B)(1)(c) (West 2010).
¶ 27       Prior to the 2008 amendments to the Rights Act, the Commission was vested with the
       exclusive jurisdiction to hear civil rights claims under the Rights Act after administrative
       remedies before the Department were exhausted. See 775 ILCS 5/7A-102(F), (G)(2) (West
       2006); Dilley v. Americana Healthcare Corp., 129 Ill. App. 3d 537, 547, 472 N.E.2d 596,
       603 (1984). Because both the Department and the Commission are administrative agencies,
       not courts, the legislature would have had no reason to waive the State’s sovereign immunity
       because sovereign immunity does not apply to administrative agencies. See 745 ILCS 5/1
       (West 2010) (“State of Illinois shall not be made a defendant or party in any court”). As this
       court has stated before, “[a]s a matter of pure logic, it is impossible for Illinois to have
       consented to defending itself against a claim in its courts if Illinois has withheld, from its

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       courts, subject-matter jurisdiction over that type of claim.” Brewer v. Board of Trustees of
       the University of Illinois, 339 Ill. App. 3d 1074, 1078, 791 N.E.2d 657, 660 (2003),
       overruled on other grounds by Blount v. Stroud, 232 Ill. 2d 302, 904 N.E.2d 1 (2009).
       Contrary to plaintiffs’ contention, in order for state employees to be able to sue their state
       employers in circuit court under the Rights Act, the 2008 amendment must include a clear
       and unequivocal waiver of sovereign immunity.
¶ 28       The 2008 Rights Act amendments at issue, enacted by Public Act 95-243, section 5,
       effective January 1, 2008, provide complainants may either seek review before the
       Commission or commence a civil action in the circuit court. Pub. Act 95-243, § 5 (eff. Jan.
       1, 2008) (amending 775 ILCS 5/7A-102(D)(3), (D)(4), (F)). As the State points out, the first
       time sovereign immunity could have become an issue for Rights Act claims was on January
       1, 2008, the effective date of the amendment, because this is the first time complaints could
       be filed in the circuit court. We note plaintiffs do not assert the 2008 Rights Act amendments
       waive the State’s sovereign immunity because they are adamant the State’s sovereign
       immunity was effectively waived in 1980. We find it was impossible for the State to consent
       to being sued in an Illinois court prior to the 2008 amendments.
¶ 29       The First District Appellate Court recently addressed this issue in Watkins v. Office of the
       State Appellate Defender, 2012 IL App (1st) 111756. In Watkins, the plaintiffs brought suit
       against the State under the Rights Act for retaliation, race and disability discrimination.
       Watkins, 2012 IL App (1st) 111756, ¶ 2. On appeal, the plaintiffs argued the circuit court
       erred in dismissing their complaints because a 2008 Rights Act amendment allowed them
       to file suit in the circuit court, which they contended amounted to a waiver of the State’s
       sovereign immunity under the Rights Act. Watkins, 2012 IL App (1st) 111756, ¶ 17. The
       plaintiffs asserted the 2008 Rights Act amendment was part of a “ ‘comprehensive statutory
       scheme’ ” allowing all complainants, even State employees, to bring their complaints in the
       circuit court. Watkins, 2012 IL App (1st) 111756, ¶ 22. The Watkins court noted the same
       argument was recently rejected by the federal district court in Harris v. Illinois, 753 F. Supp.
       2d 734 (N.D. Ill. 2010). The Harris court found “nothing in the [Rights Act] evinces an
       intent to override the Immunity Act. While suits brought under the [Rights Act] may now
       proceed in circuit court, there is no clear, affirmative declaration in the [Rights Act] or the
       Immunity Act that the State has waived its sovereign immunity for [Rights Act] claims.”
       Harris, 754 F. Supp. 2d at 741. The Watkins court agreed with Harris and rejected the
       plaintiffs assertion the 2008 Rights Act amendment waived the State’s sovereign immunity.
       Watkins, 2012 IL App (1st) 111756, ¶ 23.
¶ 30       We agree with Watkins and Harris and conclude the legislature did not clearly,
       unequivocally, or affirmatively waive the State’s sovereign immunity in the 2008 Rights Act
       amendments. Further, we do not find a waiver of sovereign immunity when reading the
       Rights Act as a whole. The amended language of section 7A-102(G)(2) states, “[i]f the
       Department has not issued its report within 365 days after the charge is filed, or any such
       longer period agreed to in writing by all the parties, the complainant shall have 90 days to
       either file his or her own complaint with the Human Rights Commission or commence a civil
       action in the appropriate circuit court.” 775 ILCS 5/7A-102(G)(2) (West 2010). Likewise,
       section 7A-102(D)(3) states, “[i]f the Director determines that there is no substantial

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       evidence, the charge shall be dismissed *** and the Director shall give the complainant
       notice of his or her right to seek review of the dismissal order before the Commission or
       commence a civil action in the appropriate circuit court” within 90 days of the Director’s
       notice. 775 ILCS 5/7A-102(D)(3) (West 2010). Further, while not at issue here, section 7A-
       102(D)(4) states upon a finding of substantial evidence, “[t]he Director shall *** notify the
       parties that the complainant has the right to either commence a civil action in the appropriate
       circuit court or request that the Department of Human Rights file a complaint with the
       Human Rights Commission on his or her behalf” within 90 days after receipt of the
       Director’s notice. 775 ILCS 5/7A-102(D)(4) (West 2010). The language used by the
       legislature in these sections of the Rights Act is somewhat ambiguous, as it can be read in
       more than one way. First, one could read these sections to mean a complainant has the choice
       to file a complaint with the Commission or commence a civil action in the circuit court.
       Second, one could read these sections to mean a complainant may either commence a civil
       action in the circuit court when appropriate (i.e., when sovereign immunity does not apply)
       or file a complaint with the Commission when an action in circuit court is not the proper
       forum (i.e., against state employers who have sovereign immunity). The ambiguity in the
       statute alone lends sufficient support for finding the legislature did not clearly,
       unequivocally, or affirmatively waive sovereign immunity.
¶ 31       State employees still have a remedy for violations of the Rights Act. They must seek that
       remedy with the Commission rather than in the circuit courts. We express no opinion on
       whether a remedy with the Commission is still available in these cases. If the legislature
       intended to waive the State’s sovereign immunity for claims brought under the Rights Act,
       then legislative action is required to make such waiver clear and unequivocal. The State’s
       sovereign immunity has not been waived, and plaintiffs cannot proceed in circuit court.

¶ 32                                  III. CONCLUSION
¶ 33      We affirm the circuit court’s judgment.

¶ 34      Affirmed.




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