Lead Opinion
delivered the opinion of the court:
This is an appeal from a decision of the circuit court of Will County which granted a motion to dismiss a first amended complaint of the Joliet Mass Trаnsit District, an Illinois Municipal corporation.
Harvey Ferguson filed a charge with the Illinois Fair Employment Practices Commission (hereinafter IFEPC) alleging that the Joliet Mass Transit District (hereinafter JMTD) had acted in violation of the Fair Employment Practices Act (Ill. Rev. Stat. 1977, ch. 48, par. 851 et seq.) by discharging him оn the basis of his race. Upon receipt of the charge, the IFEPC, acting pursuant to its legislatively prescribed duties, began its investigation. (Ill. Rev. Stat. 1977, ch. 48, par. 856.07.) The JMTD responded by a judicial attack on the IFEPC’s authority. First, it filed a declaratory judgment action alleging inter alia that the IFEPC had no authоrity over it because it was a municipal governmental body. When the trial court rejected this argument on October 3,1977, the JMTD filed a first amended complaint. This complaint challenged the jurisdiction of the IFEPC to entertain the charge filed by Ferguson before the IFEPC, because he was allegеdly not an employee, but rather, a chief administrative officer and thus outside the scope of IFEPC authority. A motion to dismiss pursuant to section 48 оf the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48) was filed on behalf of the IFEPC in response to the first amended complaint. The trial court heard orаl argument on December 6, 1977, and took the cause under advisement. On December 16, 1977, the trial court entered its order granting the motion to dismiss, based uрon its finding that the IFEPC did have authority over the JMTD with regard to the charge filed by Ferguson. The present appeal ensued.
The Fair Employment Practiсes Act defined “employee” as “any individual performing services for remuneration within this State for an employer 0 0 0 except that the term ‘employee’ does not include 000 any elected public official or the members of his immediate personal staff or the principal аdministrative officers of the State of Illinois or of any political subdivision, municipal corporation or other governmental unit or agenсy thereof.” (Ill. Rev. Stat. 1977, ch. 48, par. 852(c).) The quoted section of the Fair Employment Practices Act is merely definitional and does not purport to establish the jurisdiction of the IFEPC. Nowhere in the Act is the term “employee,” as defined, used to limit the power of the agency. Nor does the Act mandate that only “employees,” as defined, can bring complaints of unfair employment practices.
The term “employee” or its plurаl is used but five times in the Act outside of the paragraph that defines it. (Ill. Rev. Stat. 1977, ch. 48, par. 852(d)(ii), par. 852(e), par. 853(c), par. 856.03, par. 858.) In each instance where the term “employee” or “employees” is used, the effect is not to limit certain persons from filing complaints under the Fair Employment Practices Act. The Act provides that charges shall be filed by a “complainant.” (Ill. Rev. Stat. 1977, ch. 48, par. 858.) A “complainant” is defined as, “any individual charging on his own behalf to have been personally aggrieved by an unfair employment practice.” (Ill. Rev. Stat. 1977, ch. 48, par. 852(b).) The court has been referred to no authority for plaintiff-appellant’s contention that the IFEPC has no jurisdiction to hear a complaint filed by administrative persоnnel, nor, has the court’s further research revealed such authority. If the language of a statute is certain and unambiguous as the language in the Aсt before us, the proper function of the courts is to enforce the statute as enacted. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 3d 366,
Since one needs only to be a complainant in order to file a charge under the Fair Employment Practices Act it is immateriаl whether or not said individual qualifies as an employee. Having reached the conclusion that the first amended complaint did not effectively place the jurisdiction of the IFEPC in question and therefore the trial court was correct in granting the motion to dismiss the same, the decision of the trial court is accordingly affirmed.
Affirmed.
STENGEL, J., concurs.
Concurrence Opinion
specially concurring:
I believe the majority opinion’s reasoning rests to too great an extent upon the fact that the term' “еmployee,” as defined by the Act, is not specifically utilized in the definition of complainant. Since the Act addresses itself to the unfair emplоyment practices of employment agencies and labor organizations as well as employers, one need not, of course, be an employee of the employment agency or the labor organization to complain of unfair employment practices. Nor does one have to be a current employee of the “employer” to complain of unfair hiring practices. (See Ill. Rev. Stаt. 1977, ch. 48, par. 853(a).) Therefore, the definition of “employee” is of no value in determining whether a person employed by a municipal govеrnmental body fits the definition of “complainant” as defined by the Act. Nor does the definition of employee or complainant affect thе authority or subject matter jurisdiction of the FEPC to consider the complaint.
An employee may be a complainant, but a complainаnt need not be an employee. The definitions are addressed to two different relationships. When the present complainant was fired he was no longer an employee but could be a complainant. Yet he is complaining of a practice which occurred while hе was an employee and therefore, unless he fits the definition of employee, the FEPC has no authority to render a determination adverse to the employer. However, merely because anyone can complain should not allow the policy considerations presented by the section 2(c) (Ill. Rev. Stat. 1977, ch. 48, par. 852(c)) definition of employee to be ignored by the FEPC.
Underlying the definition of employer, at least аs it affects this case, is the realization by the legislature that government executives, State or municipal, require persons in key administrative рositions who will carry through the policies of the executive without delay. In such situations personalities and the relationship of the administratоr to the executive is of overriding importance. The principal administrative officers of municipal governing bodies are not emplоyees for the purpose of activating the authority of the FEPC to deal with the governmental body for any employment practices direсted at the administrator.
We are agreed that, as yet, there has been no determination of whether the complainant is or is not an “employee.” That is for the FEPC, and a declaratory judgment proceeding can not be utilized to divest this administrative agency of its statutory authority while thе administrative proceeding is pending. (See Salk v. Department of Registration & Education (1st Dist. 1970),