author: GETZENDANNER, District Judge:

text:
    Michael and Sheri LANGENDORF, Plaintiffs, v. TRAVELERS STATE INSURANCE COMPANY, Defendant.
    No. 85 C 5134.
    United States District Court, N.D. Illinois, E.D.
    Sept. 30, 1985.

      Mark D. DeBofsky, DeBofsky & DeBofsky, Chicago, 111., for plaintiffs.
    H. Patrick Morris, Johnson, Cusack & Bell, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Michael and Sheri Langendorf, plaintiffs, have brought this six-count diversity action challenging the refusal by its insurer, Travelers State Insurance Company (“Travelers”) to pay health insurance benefits under a group insurance policy. Travelers is alleged to be organized under the laws of Connecticut, where it has its principal place of business. The Langendorfs are alleged to be residents of Illinois. The amount in controversy, exclusive of interest and costs, exceeds $10,000.00.

Plaintiffs have alleged the following facts which, for purposes of the present motion to dismiss, the court accepts as true. On September 16, 1983, Travelers issued a group insurance policy to the Oak Park Therapeutic School, Inc. Sheri Langendorf was a member of the group covered by this plan. On September 16, 1983, Sheri Langendorf gave birth to a daughter. Shortly thereafter she suffered severe complications due to her pregnancy which required extensive medical treatment. She was rehospitalized for approximately six months, incurring hospital and medical expenses of approximately $115,000.00. Pursuant to the insurance policy which provided for unlimited medical and hospital care benefits, the Langendorfs requested that Travelers pay the expenses of the hospital stay. Travelers stated they would pay only $50,000 of the expenses incurred, claiming there was a $50,000 limit on the benefits payable. The Langendorfs made further demands on Travelers for payment of the $65,000 balance, all of which have remained unfulfilled. Presently before the court is Travelers’ motion to dismiss Counts II, V and VI of the complaint.

Count II

In Count II, the Langendorfs claim that Travelers’ refusal to pay was an “improper claims practice” proscribed by Section 154.6 of the Illinois Insurance Code, 111. Rev.Stat. ch. 73, ¶ 766.6. The Langendorfs urge that any conduct in violation of the practices described in § 154.6 entitles them to recover for their damages, costs, attorneys’ fees and receive any other appropriate relief. In relevant part, the statute provides that:

Any of the following acts by a company, if committed without just cause and [committed knowingly or frequently,] constitutes an improper claims practice:
(d) Not attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear;
(h) refusing to pay claims without conducting a reasonable investigation based on all available information.

Ill.Rev.Stat. ch. 73, 11766.6.

Travelers argues that this count should be dismissed because § 154.6 provides no private right of action but simply defines those practices for which the Illinois Director of Insurance may issue a cease and desist order under § 154.8 of the Insurance Code, Ill.Rev.Stat. ch. 73, ¶ 766.-8. The Illinois Supreme Court has not yet decided this issue. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), in a diversity action, when the highest state court has not yet spoken on an issue, a federal district court is obligated to predict what that court would do if presented with the issue. See White v. United States, 680 F.2d 1156, 1161 (7th Cir.1982); McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3rd Cir.) cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980); Barr Co. v. Safeco Insurance Co., 583 F.Supp. 248, 252 (N.D.Ill.1984). Accordingly, the court observes that all Illinois appellate courts agree that § 154.6 provides no private right of action. It is a public remedy to be pursued only by the Director of Insurance. See, e.g., Tobolt v. Allstate Insurance Co., 75 Ill.App.3d 57, 30 Ill.Dec. 824, 393 N.E.2d 1171 (1st Dist.1979); Hamilton v. Safeway Insurance Co., 104 Ill.App.3d 353, 60 Ill.Dec. 97, 432 N.E.2d 996 (1st Dist.1982); Hoffman v. Allstate Insurance Co., 85 Ill.App.3d 631, 40 Ill.Dec. 925, 407 N.E.2d 156, appeal denied, 81 Ill.2d 602 (1980); Van Vleck v. Ohio Casualty Insurance Co., 128 Ill.App.3d 959, 84 Ill.Dec. 159, 471 N.E.2d 925 (3d Dist.1984). Under these circumstances, the court finds itself compelled to adopt this view as it assumes the Illinois Supreme Court would follow the approach consistently taken by its appellate courts. See West v. American Telephone and Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940) (Federal courts should not disregard uniform state appellate court results absent persuasive data that the highest state court would decide otherwise.)

The Langendorfs argue that this court should not conclude that the Illinois Supreme Court would in fact approve of the approach that its appellate courts have repeatedly taken. They argue that an implied private cause of action is maintainable under Sawyer Realty Group Inc. v. Jarvis Corp., 89 Ill.2d 379, 59 Ill.Dec. 905, 432 N.E.2d 849 (1982). In Sawyer, the Illinois Supreme Court recognized an implied private right of action for violations of the Brokers Licensing Act, Ill.Rev.Stat. ch. Ill, ¶ 5701 et seq. Specifically, the court stated that Illinois “courts have continuously demonstrated a willingness to imply a private remedy where there exists a clear need to effectuate the purpose of an act.” 89 Ill.2d 379, 389, 59 Ill.Dec. 905, 432 N.E.2d 849. Sawyer, however, is inapposite to the case here. As Sawyer itself stated, Illinois courts will imply a private right of action only where it is necessary to achieve the aims of the statute. Since the Insurance Code, in § 154.8, empowers the Director of Insurance to issue cease and desist orders against any insurer that commits an act proscribed by § 154.6, an implied private right of action is not necessary. See Abbott Laboratories v. Granite State Insurance Co., 573 F.Supp. 193, 196 (N.D.Ill.1983); UNR Industries Inc. v. Continental Insurance Co., 607 F.Supp. 855 (N.D.Ill.1984). The Langendorfs’ suggestion that, to their knowledge, there are no reported cases brought by the Director of Insurance against insurers does not in itself suggest the public remedy is inadequate. Even if this lack of prosecution were true and without justification, it would seem to this court that the proper solution would be to replace the lax Insurance Director. While it might be easier on plaintiffs to ask this court to imply a private cause of action than to seek replacement of the director, the court has no power to do this in light of the consistent holdings of the Illinois appellate courts denying the private claim and the absence of any evidence that the Illinois legislature wanted the “private attorney general” concept extended to the Insurance Code. Accordingly, the court dismisses Count II.

Count V

Count V is somewhat difficult to evaluate on this motion to dismiss because of the way it is drafted and the way the parties have argued it. Taken at face value, the count alleges that Travelers’ refusal to pay resulted in “numerous and repeated demands for payment from health providers” and caused the Langendorfs severe and extreme emotional distress and humiliation. Furthermore, Travelers’ refusal to pay was “extreme and outrageous in that it was reasonably calculated to cause” the Langendorfs severe distress. As a result of the distress, the Langendorfs have suffered “loss of sleep, appetite, anxiety and distress.”

The court perceives three possible interpretations of this count and will therefore assess the count's ability to survive the motion to dismiss under each interpretation. The first interpretation is simple: Travelers breached its contract with the Langendorfs by refusing to pay benefits when it was supposed to; the damages that the Langendorfs suffered include not merely the denial of the $65,000 contractual benefits, but also the consequential injury of emotional distress. The court does not now decide whether, under Illinois law, the consequential injury of emotional distress is compensable on an insurance contract claim. At this point, the court simply considers the contract-based consequential injury of emotional distress to have been well pled by the plaintiffs. If, on a later motion, Travelers wishes to argue that this sort of injury is not recognized as a compensable consequential remedy, then the court will consider arguments at that time.

The second possible interpretation of Count Y is that the count purports to state a claim under the tort of intentional infliction of emotional distress. This interpretation cannot survive Travelers’ motion to dismiss because this court follows the reasoning of Anderson v. Mutual of Omaha Insurance Co., 594 F.Supp. 726 (S.D.Ill.1984), where it was held that § 155 of the Illinois Insurance Code preempts the tort of intentional infliction of emotional distress resulting from an insurer’s outrageous delay in settling a claim.

Section 155 of the Illinois Insurance Code provides in relevant part that

In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorneys fees, other costs, plus an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of costs;
(b) $5,000;
(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.

Ill.Rev.Stat. ch. 73, ¶ 767. Anderson considered the effect of § 155 on the tort of intentional infliction of emotional distress in light of the Illinois Supreme Court holding in Robertson v. Travelers Insurance Co., 95 Ill.2d 441, 69 Ill.Dec. 954, 448 N.E.2d 866 (1983). Robertson held that the provisions of the Illinois Workmen’s Compensation Statute barred tort claims for intentional infliction of emotional distress which resulted from an insurer’s outrageous conduct in delaying the payment of a worker’s claim. The Illinois Supreme Court reasoned that the legislature, anticipating that bad faith in delaying payments of benefits would occur on occasions, provided a quick and readily accessible method of resolving disputes over such delayed payments. The court held that the term “vexatious”, as used in the statute, encompassed both ordinary and malicious delay, thereby precluding any common law tort based on malicious delay. Anderson analogized from the Illinois Supreme Court’s interpretation of the Workmen’s Compensation Statute and held that the terms “vexatious and unreasonable” as used in § 155 also encompass ordinary as well as malicious delay, thereby preempting the tort of intentional infliction of emotional distress from delayed payments. Thus, to the extent that Count V attempts to state a claim for the intentional infliction of emotional distress, it is preempted by § 155 which provides the exclusive remedy for that tort, and is therefore dismissed.

Even if Anderson did not, as a matter of law, bar the Langendorfs from stating the common law tort of intention infliction of emotional distress, this court would still dismiss this interpretation of Count V because the count, on its face, fails to allege the essential elements of a claim for emotional distress. To state a cause of action for the tort of intentional infliction of emotional distress, a plaintiff must allege facts which demonstrate (1) that the defendant’s conduct was extreme and outrageous; (2) that plaintiff’s emotional distress was severe; and (3) defendant’s condut was such that defendant knew that severe emotional distress would be certain or substantially certain to result. Smith v. Metropolitan Life Insurance Co., 550 F.Supp. 896, 901 (1982), citing Public Finance Corp. v. Davis, 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765 (1976).

The allegations in the Langendorfs’ complaint do not meet the first element of this tort because they do not describe conduct on Travelers’ part which is “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency.” Restatement (Second) of Torts, § 46 comment d. Essentially, the complaint here alleges nothing more than a dispute regarding coverage of an insurance policy. To be sure, that dispute may have caused the Langendorfs extreme grief. But Travelers may honestly have believed that it had no obligation to pay what the Langendorfs demanded, and the Langendorfs do not allege otherwise anywhere in their complaint. In the absence of an alleged breach by Travelers where Travelers knew that it had an obligation to pay but nevertheless maliciously and unjustifiably chose not to pay, this court cannot see how the first element of the tort of intentional infliction of emotional distress in this context can be satisfied.

The third and final interpretation of count V is that the count purports to state a claim for the breach of the implied duty of good faith and fair dealing and, as a result of the breach of this duty, the Langendorfs have suffered severe emotional distress. Before deciding whether plaintiffs’ pleadings properly allege the elements of the tort of breach of the duty of good faith dealing, the court notes defendant’s argument that this tort, whatever its elements, is preempted by § 155 of the Insurance Code. This court has recently held in Sheinfeld v. American Family Mu tual Insurance Co., 624 F.Supp. 698 (1985), that § 155 only preempts a recovery for punitive damages from a breach of that duty. Therefore, the Langendorfs’ claim for punitive damages is dismissed. Their claim for compensatory damages, however, survives Travelers’ motion to dismiss if and only if the elements of the tort are correctly alleged.

Courts have not been particularly clear about what is required to state a claim for the breach of the duty of good faith dealing. The duty was originally recognized in the context of a “duty to settle” where an insurer has undertaken the defense of a suit against the insured and the damages sought in the suit are in excess of policy limits. In such a situation, the insurer “cannot arbitrarily refuse a settlement within policy limits” without being “guilty of bad faith in failing to effect a settlement for a smaller sum.” Krutsinger v. Illinois Casualty Co., 10 Ill.2d 518, 141 N.E.2d 16 (1957).

The tort has also been recognized where the insurer, after paying an insured for a loss incident to damaged property, physically prevented the insured from getting an independent appraisal of the property by hiding the damaged property. Hoffman v. Allstate Insurance Co., 85 Ill.App.3d 631, 40 Ill.Dec. 925, 407 N.E.2d 156 (2d Dist.1980). Hoffman referred to Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp., 29 Ill.App.3d 339, 350, 330 N.E.2d 540 (1975), which, while cited by the Illinois Supreme Court with approval in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 187, 23 Ill.Dec. 559, 566, 384 N.E.2d 353, 360 (1978), did not clearly spell the elements that constitute the tort of bad faith. Ledingham did, however, suggest that false statements and maliciousness were needed. 330 N.E.2d at 549.

This case is different from Hoffman and Krutsinger because here the Langendorfs are claiming that the simple breach of contract itself amounted to a breach of the duty of good faith dealing. Hoffman and Krutsinger involved conduct, other than a refusal to pay on a contract, which injured the plaintiffs. In Hoffman, the plaintiff was prevented from confirming whether the contract payment was legitimate. In Krutsinger, the defendant paid on the contract but caused the plaintiff to pay a third party more than it should have had to. Therefore, this court must determine whether a mere breach of contract payment terms, as is all that has been alleged here, is enough to amount to the tort of bad faith dealing, or whether more is required. In doing so, the court bears in mind that a motion to dismiss for failure to state a claim should be granted only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In deciding the motion, the court must presume all factual allegations of the complaint to be true and make all reasonable inferences in favor of the non-movant. 2A Moore’s Federal Practice, ¶ 12.07[2.-5] (2d ed. 1985). Nonetheless, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

The case authority appears to suggest that a mere innocent breach of contract — where the party in breach innocently, albeit erroneously, believes that he has no obligation to pay — is not sufficient to state a claim under the tort of the duty of good faith dealing. Florsheim v. Travelers Indemnity Co., 75 Ill.App.3d 298, 310, 30 Ill.Dec. 876, 886, 393 N.E.2d 1223, 1233 (1st Dist.1979). Instead, at least two further elements must be alleged. First, the insurer must have known it was liable on the contract but nonetheless refused to pay. See Barr v. Safeco Insurance Co. of America, 583 F.Supp. 248, 259 (N.D.Ill.1984); UNR Industries, Inc. v. Continental Insurance Co., 607 F.Supp. 855 (N.D.Ill.1984) (allegations of insurers misleading the insured as to the availability of full indemnification under the policies). Second, the insurer must also know that if it did not pay on its policy, substantial damage and injury would likely befall the insured. See Barr v. Safeco Insurance Co., 583 F.Supp. at 259; Urfer v. Country Mutual Insurance Co., 60 Ill.App.3d 469, 17 Ill.Dec. 744, 376 N.E.2d 1073 (4th Dist.1978).

Here, the Langendorfs have failed to allege at least the first of these two elements. Nowhere in their complaint have they claimed that Travelers knew it was liable on the contract but nevertheless refused to pay. The Langendorfs allege only that “Travelers imposed an interpretation of the policy to place a $50,000.00 limit on the benefits payable.” Complaint at ¶ 12. Absent an allegation to the effect that Travelers knew that its interpretation was wrong, the first element of the bad faith tort cannot be gleaned from this complaint.

The second element of the tort has been more successfully alleged, albeit in conclusory form. In paragraph 16 of the complaint, the Langendorfs state that Travelers’ denial of the claim “was reasonably calculated to cause” the Langendorfs severe emotional distress. This suggets that Travelers knew that nonpayment would cause the Langendorfs great injury. While the form of this allegation may be too conclusory to survive a motion to dismiss, the court need not decide this because the first element of the tort is totally absent.

In sum, Count V is dismissed to the extent that it attempts to state a claim for the tort of breach of the duty of good faith dealing. Even if both elements of that tort were stated, the prayer for punitive, though not compensatory, damages would be preempted by § 155. Count V is fully dismissed to the extent that it states a claim for the intentional infliction of emotional distress. The only way in which Count V survives under the complaint as it is now written is as a claim for consequential damages arising from the breach of contract. Because this issue has not been argued, ths court considers it unresolved.

Count VI

Count VI alleges that as “a direct and proximate result of” Travelers nonpayment “plaintiffs have been injured in their credit standing and reputation, which was previously excellent, due to suit for collection and reporting of debts to credit agencies and bureaus.” Complaint at 1115. Similar to its analysis of Count V, the court perceives two possible interpretations of this count. First, it purports to state another consequential damage from the breach of contract, and second, it purports to state another injury incurred as a consequence of the breach of the duty of good faith and fair dealing.

As to the first interpretation, the court once again simply states that the issue has not been argued, and reserves for another day decision on whether loss of credit can be recovered as a consequential damage to the breach of an insurance contract in the context of this case.

On the second interpretation, the court finds that the Langendorfs have failed to allege either of the two elements of the tort of bad faith dealing identified in the court’s discussion of Count V. Specifically, the Langendorfs do not allege in any fashion, conclusory or otherwise, that Travelers knew of its liability on the contract or that Travelers knew that a loss of credit would result from nonpayment of the claim. Even if the insurance company is to be put on constructive notice that nonpayment leads to a credit loss, an issue which the court does not now decide, the absence of an allegation of Travelers’ subjective knowledge of liability is fatal to this count, as it was to Count V. However, as in the case of Count V, if the Langendorfs had properly alleged the elements of the tort, then the court would follow its holding in Sheinfeld v. American Family Mutual Insurance Co. and allow the Langendorfs to seek compensatory damages arising out of that breach, but not punitive damages.

CONCLUSION

In accordance with the qualifications noted above, the court grants defendant’s motion to dismiss Counts II, V, and VI.

It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Stewart LEMON and William Ward, etc., Plaintiffs, v. Joyce E. TUCKER, etc., et al., Defendants.
    No. 84 C 4021.
    United States District Court, N.D. Illinois, E.D.
    Oct. 8, 1985.
    On Motion for Reconsideration Nov. 18, 1985.
    Gary H. Palm, Chris Gair, Senior Law Student, Mandel Legal Aid Clinic, Chicago, 111., for plaintiffs.

      Jeffrey Finke, Asst. Atty. Gen., State of Illinois, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This action is brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiffs Stewart Lemon and William Ward sue on their own behalf and on behalf of a class of individuals similarly situated, charging that certain provisions of the Illinois Human Rights Act (“IHRA”), Ill.Rev.Stat. ch. 68, TÍ1T1-101 to 9-102 (1983), are unconstitutional. Defendant Joyce Tucker, Director of the Illinois Department of Human Rights (“Department”) moves to dismiss this action for failure to state a claim upon which relief can be granted. In an earlier motion to dismiss this action on other grounds, the then co-defendant Department was dismissed on the ground of sovereign immunity. See Memorandum Opinion and Order from this court dated November 19, 1984. For the reasons stated below, the motion to dismiss for failure to state a claim is denied in part and granted in part.

The IHRA creates a state cause of action for various “civil rights violations” amounting to discrimination based on race, sex, handicap, religion, age, unfavorable military discharge, marital status, and other factors. Ill.Rev.Stat. ch. 68, ¶ 1-103(Q). Plaintiffs claim that the procedures used to determine the validity of discrimination violate plaintiffs’ fourteenth amendment due process and equal protection rights.

Under the IHRA, a person who believes that she or he is the victim of a civil rights violation may file a charge with the Department within 180 days of the alleged violation. 117-102(A)(l). When filing a charge, the complainant must state with particularity the time, place, event and other facts concerning the occurrence of the alleged discrimination. II 7-102(A)(2). Once a charge has been filed, the Department is then required to serve the responding party and commence a “full investigation” of the allegations set forth in the charge. 117-102(B)-(C). During this investigation, the Department has the authority, but not the duty, to compel the production of documents and the testimony of witnesses. 117-102(C)(2). The Department also has the discretion to convene a fact-finding conference. ¶ 7-102(C)(3). Upon conclusion of the investigation, the Department must prepare a report which the director of the Department reviews to determine whether there is substantial evidence that a civil rights violation has occurred. 117-102(D)(l)-(2). If such evidence is determined to exist, the director must appoint a Department attorney to endeavor to eliminate the effect of the alleged violation through “conciliation.” 117-102(D)(2)(b). If conciliation efforts fail, the Department must file a formal complaint with the Illinois Human Rights Commission (“Commission”), 117-102(F), and a full adversarial hearing on the merits of the complaint follows. 118-106. Upon a finding of a civil rights violation, the Commission is authorized to provide a broad panoply of remedies, including actual damages, cease and desist orders, reinstatement, and attorneys’ fees. If 8-108.

If the director determines, after the original investigation, that there is no substantial evidence to support the charge of a civil rights violation, the charge is • dismissed. 117-102(D)(2)(a). The complainant may, however, seek review of the dismissal by the Commission. Id. When reviewing a dismissal, the Commission may, but is not required to, consider the Department’s report, any argument and supplemental evidence timely submitted, and the results of any additional investigation conducted by the Department in response to the request for review. ¶ 8-103(B). Also, in its discretion, the Commission may designate a hearing officer to conduct a hearing into the “factual basis of the matter at issue.” Id. Finally, if the Commission upholds the Department’s dismissal, the complainant may seek judicial review. 118-lll(A)(l). The court must uphold the Commission’s order unless it is “contrary to the manifest weight of the evidence” in the record. ¶ 8-lll(A)(2). The court does not make a de novo determination of whether substantial evidence itself exists.

Hence, the victim of a civil rights violation has the right to file a charge with a state agency, assert facts that make out a ease for discrimination, and have that charge, if supported by substantial evidence, pursued through conciliation and, if necessary, formal hearing and administrative relief. However, the complainant does not have the right to require the Department, when investigating a charge for substantial evidence, to exercise its compulsory process or fact-finding powers, or even, it would appear, to listen to the complainant’s proffered reasons for why substantial evidence exists. Similarly, the complainant does not have the right to require the Commission, on review of a finding of no substantial evidence, to hold a fact-finding hearing on the charge, or even to consider the Department’s report, the complainant’s arguments, or additional evidence or investigative results. Finally, there is no de novo judicial review of the evidence in the record. In short, a complainant has the right to file and describe a civil rights charge and have the IHRA machinery arbitrate and if necessary adjudicate the charge if it is supported by substantial evidence. But the complainant has no right to have the Department or Commission consider any evidence or reasons she or he offers to support a finding of substantial evidence. And though the reviewing court is presumably required to consider any evidence entered into the record, the court does not review the record to determine if there is substantial evidence. Rather, the court is permitted to review the record only to determine if the finding of no substantial evidence is contrary to the manifest weight of the evidence.

Plaintiffs’ primary constitutional argument is that the procedures used to determine whether the Department and Commission will pursue a charge of a civil rights violation through conciliation and adjudication violate due process. Plaintiffs argue that the right to use the IHRA administrative and adjudicatory machinery is a property right; as a property right, it may not be terminated without due process of law. Plaintiffs do not dispute the constitutional validity of the substantive standard for terminating one’s IHRA rights — i.e., the lack of substantial evidence. Instead, plaintiffs contend that the procedures for determining the existence of substantial evidence fall below the minimum required by due process.

The Due Process Claim

It is a familiar precept of constitutional law that a state may not deprive a person of property without due process of law. In order for plaintiffs to prevail in their claim that the procedures of the IHRA deprive them of property without due process, they must establish that the IHRA gives them something cognizable as property, and that the procedure which deprives them of that property is not due process.

The United States Supreme Court, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), held that a claim under the Illinois Fair Employment Practices Act (“FEPA”) — the predecessor to the IHRA and the substantive rights of which are now incorporated in IHRA — is a property right. The court observed that “[t]he hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” 455 U.S. at 431, 102 S.Ct. at 1155. A claim under FEPA, and now under IHRA, cannot be dismissed by the Department unless there is no substantial evidence to support it. This, the Court held, is in essence a “for cause” standard. Id. Thus, since both FEPA and IHRA give a victim of discrimination the right to use administrative and adjudicative procedures absent a lack of substantial evidence to support the charge, both acts give Illinois residents a property right in her or his charge of discrimination. See id.

Once it has been determined, as it has, that plaintiffs possess a property right, the inquiry shifts to “what process is due” the possessor of that right. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The starting point for this inquiry is the constitutional benchmark that a deprivation of property must “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). Here, because there is obviously no question that the plaintiffs have notice of their own charges, the question becomes whether the IHRA procedures for determining the substantiality of evidence (Department investigation, Commission review, and judicial review) provide plaintiffs with the process that is their due before their charges are dismissed with finality.

The governing approach for determining what process is due was laid down by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The nature of the hearing required prior to the termination of the property right “will depend on the appropriate accommodation of the competing interests involved.” Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975):

[Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). See also Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (random termination of property interest in using adjudicatory procedures violated procedural due process); Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (informal procedures before a foster child may be removed from foster home satisfies due process, assuming a liberty interest was involved); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (before municipal utility may cut off services to customer, it must afford customer opportunity to meet with an employee authorized to settle billing disputes).

A careful balancing of these interests leads this court to conclude that the minimal nature of procedures guaranteed to complainants for investigating charges for substantial evidence and review of dismissals under the IHRA is sufficiently offensive to due process to survive defendant’s motion to dismiss. First, the interests of the victim of a civil rights violation are substantial. They are based on the victim’s interest in the “property rights” provided by the IHRA — conciliation efforts, followed if necessary by adjudication and relief — rights which remain vested after the filing of a charge unless there is a determination of no substantial evidence. The rights of conciliation and hearing both offer the complainant substantial possibilities that the victim’s discrimination will be redressed with damages, reinstatement, or some other form of relief.

The interests of the government are also important. The government is interested in the expeditious dismissal of nonmeritorious claims not only so as to reduce its own administrative costs but also to reduce the burden on innocent respondents. An administrative investigation which can quickly clear a respondent of an unmeritorious charge will well serve that respondent’s, and therefore the government’s, interests. The government is also interested in expeditious dismissals of non-meritorious claims so as to assure that meritorious claims are attentively and purposefully processed thereby vindicating one of the purposes of the IHRA.

Because the individual’s and government’s interests are both significant, the critical factor here in applying the Eldridge formula is the likelihood that, under existing procedures for investigating a charge of a violation, one’s right to the IHRA machinery (conciliation, hearing and relief) will be erroneously terminated, and the possibility that additional procedures will enhance accuracy. The substantive standard for terminating the property right is the lack of substantial evidence. The question, therefore, is whether the procedures for investigating for substantial evidence pose an unreasonably high risk of error.

It has already been observed that the IHRA investigative procedures do not, as written, guarantee a complainant normal adjudicative rights. Although the Department has the power to use compulsory process, compel production of documents and employ a fact-finding conference, it need not do so. Ill.Rev.Stat. ch. 68, 1Í 7-102(C)(2), Illinois Department of Human Rights (IDHR) Rules and Regulations 4.3 (1983). The Department has plenary control over the evidence it will receive and so the complainant has no right to present her or his case to the Department. Id.

When a complainant requests Commission review of a dismissal, she or he does not have the right to require the Commission to review the Department’s report, to consider additional evidence, arguments or investigation, or hold a hearing. II8103(B). These powers are all within the discretion of the Commission. On judicial review of a Commission’s order upholding dismissal, there is no de novo review. The court does not undertake to determine if the record contains substantial evidence, but only to determine if a finding of no substantial evidence is contrary to the manifest weight of the evidence in the record. Thus, even if a complainant on Commission review has put substantial evidence in the record, the Commission in its discretion may refuse to consider it, ordering dismissal instead. The reviewing court is powerless to reverse the Commission’s dismissal if the dismissal is not contrary to the manifest weight of the evidence in the record.

In sum, although the Department and Commission may provide complainants with trial-type rights to determine whether substantial evidence exists, they need not. The only right of input in the process of determining whether substantial evidence exists that a complainant is guaranteed occurs at the time a charge is filed. At that point the complainant may assert facts concerning the allegedly discriminatory incident. But this does not necessarily include the critical right to present reasons why there exists substantial evidence to support these facts. Therefore, it is conceivable, if the Department and Commission streamline their procedures to the statutory minimum, that a complainant will find her or his charge dismissed for lack of substantial evidence without ever having been afforded an opportunity to call to the Department’s, Commission’s, or a court’s attention reasons why such evidence exists.

If such streamlining of procedures is the actual practice of the Department and Commission, then the IHRA falls short of the minimum procedural rights required by due process. “The opportunity to present reasons, either in person or in writing, why proposed action [dismissal of a charge] should not be taken is a fundamental due process requirement.” Cleveland Board of Education v. Loudermill, - U.S. -, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). In completing the Eldridge analysis here, this court concludes that the fundamental due process requirement of an opportunity to present reasons applies here as well. First, if complainants are assured some opportunity to present reasons why their charges are supported by substantial evidence, the accuracy of decisions will significantly improve. For example, if complainants were given the right to indicate to the Department, and have the Department consider, the availability of witnesses and their anticipated testimony, documents, or other reasons why substantial evidence exists, the Department’s ability to accurately assess the merits of a charge would be substantially enhanced. Second, it is certainly conceivable that plaintiff can show that the burden the government would face in allowing the mere presentment of reasons is hardly the sort of imposition that would force the investigative process to come to a grinding halt, or indeed even noticeably slow it down.

On a motion to dismiss for failure to state a claim, the court must deny the motion “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Carl Sandburg Village Condominium Association v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir.1985). The question here is the adequacy of the IHRA investigative procedures. Under a literal reading of the relevant statutory and regulatory provisions, at no time during investigative proceedings is a complainant assured the right to present reasons against dismissal. It is therefore conceivable that plaintiffs will be able to prove that this procedural inadequacy is not only permitted by statute, but actually implemented by Department and Commission practice. It is also conceivable that plaintiffs will be able to show that the burden on the government of allowing complainants to present reasons is insubstantial. Because of the conceivability of this set of facts, the proof of which would establish a due process violation under Eldridge, the defendant’s motion must be denied. Of course, if defendant can show that the IHRA has been interpreted and implemented so as to afford each complainant with this fundamental procedural protection, then due process has not been violated. For example, defendant may be able to show that when complainants file charges, the Department considers itself obligated to ask complainants to supply the Department with any reasons why the complainants believe there is substantial evidence to support the charges. Alternatively, if defendant can show that the burden of allowing complainants to present reasons is substantial, Eldridge may no longer require this court to guarantee the process of presentment of reasons. Finally, defendant may be able to show that the Commission, on review of a Department dismissal, considers itself obligated to perform a de novo review of all the evidence available, including all the evidence and arguments timely submitted by complainants pursuant to 118-103(B).

Defendant contends that a contrary result is required by several intermediate state decisions such as Board of Education v. Eckmann, 103 Ill.App.3d 1127, 59 Ill.Dec. 714, 432 N.E.2d 298 (2nd Dist.), petition for leave to appeal denied, 91 Ill.2d 567 (1982), Chambers v. Illinois Fair Employment Practices Commission, 96 Ill.App.3d 884, 52 Ill.Dec. 449, 422 N.E.2d 130 (1st Dist.1981) and Klein v. Fair Employment Practices Commission, 31 Ill.App.3d 473, 334 N.E.2d 370 (1st Dist.1975). These cases, defendant argues, hold that a complainant has no due process rights in an investigatory, as opposed to adjudicatory, proceeding. Thus a complainant under IHRA has no due process rights in the investigation conducted by the Department in response to a charge of a civil rights violation.

Defendant has read the holdings in these cases far too broadly. All three cases just cited are the progeny of Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). In Hannah, the Supreme Court held that a person whose conduct is under investigation by a government agency — i.e., an IHRA respondent —is not entitled to the full panoply of due process protections, such as knowledge of identity of complainant, cross-examination, and other procedures that normally accompany adjudication. 363 U.S. at 441-42, 80 S.Ct. at 1514. In arriving at this holding, the Court balanced the burden that would befall the investigative process if trial-type rights were given to persons under investigation against the benefits that those persons would realize from such rights. Thus Hannah is entirely different from the case at bar. Hannah balanced a respondent’s need for procedural trappings against the government’s need for efficient and undisrupted investigations. Here, the Court must balance against administrative expediency a complainant’s need to apprise an agency of relevant information. Under IHRA, all respondents who are the subject of an unfavorable investigative report are guaranteed a full trial-type hearing before actual liability attaches. Consequently, the respondent’s need for trial-type protections at the investigative stage is minimal, if not nonexistent. By contrast, a complainant is never guaranteed an opportunity to present her or his case to the Department on investigation or have it considered by the Commission on review of a dismissal. Thus, the complainant’s need for some sort of input at either the investigative or review stage is much greater than that of the Hannah respondent. Because defendants have not argued that the imposition on the government in allowing a complainant to present reasons against dismissal is greater at the investigation stage than at the review stage, this court holds the right to present reasons and have them heard should be provided at the investigative stage.

The facts in Eckmann are similar to Hannah in that respondents’, not complainants’, rights were at issue and therefore Eckmann can be distinguished from this case for the same reason that Hannah was. The defendant’s reliance on Chambers is also misplaced. Chambers did not involve a constitutional challenge to administrative procedures. The one statement of constitutional law appearing in that opinion is therefore dictum. Only the Klein case, cited by defendants, involved a complainant — as opposed to a respondent — who constitutionally challenged the absence of extensive due process procedures available during an administrative investigation. The challenge was unsuccessful in Klein, but that result is of little relevance here. Aside from the fact that Klein was decided seven years before the Logan court’s holding that an IHRA charge is a property right protected by due process, the court in Klein held only that the complainant was not entitled to a full hearing during an investigation. This court does not go as far as Klein refused to go, but merely holds that an investigative procedure may be constitutionally defective if the investigative tribunal, as part of its procedure for determining whether substantial evidence exists, does not guarantee complainants an opportunity to present to that tribunal, and require that tribunal to consider, reasons why such substantial evidence exists. In order for plaintiffs to survive defendant’s motion to dismiss it is not necessary for this court to hold that more process is required. Therefore, at this time the court intimates no view on whether more process is in fact required.

The Equal Protection Claim

Plaintiffs also argue that the IHRA violates the equal protection clause. The court can more easily dispose of this claim. Essentially, plaintiffs contend that IHRA violates their equal protection rights because they, as IHRA complainants, are not guaranteed a full hearing on their claims prior to dismissal, while all other plaintiffs, under either a common law, statutory, or administrative causes of action, are guaranteed a hearing upon the filing of a complaint before their complaints are dismissed. Thus, IHRA plaintiffs do not necessarily receive hearings while non-IHRA plaintiffs necessarily do.

The essential feature to any equal protection violation is that one class is burdened relative to another class on the basis of a distinguishing characteristic that is constitutionally irrelevant. Whether a characteristic that distinguishes one class from another is irrelevant depends, in part, on how closely a court must scrutinize the justification for the distinction. In some cases, distinguishing characteristics are irrelevant and therefore impermissible if they are not rationally related to a legitimate state interest; other cases require that the classifications be necessary to a compelling state interest in order to be constitutionally relevant. See generally, L. Tribe, American Constitutional Law, §§ 16-2, 16-6 (1978). Thus, this court’s inquiry begins with identifying the appropriate level of scrutiny for examining whether the distinction between IHRA plaintiffs and non-IHRA plaintiffs is constitutionally irrelevant.

Plaintiffs suggest that Hunter v. Ericksen, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1965) compels this court to apply strict scrutiny. Plaintiffs’ reliance on Hunter is misplaced. In Hunter, a city charter amendment reduced the rights of racial minorities by burdening their access to the political process. There, in order for racial minorities to enjoy anti-discrimination housing regulations, it was not enough that they got the city council to pass such measures, as would be the case for any other sort of municipal legislation. The minorities also had to get a majority of city voters to approve the legislation by referendum.

Here, by contrast, the state action of the IHRA is not reducing rights enjoyed by minorities, be they characterized as adjudicative or political. Indeed, the IHRA gives minorities a new legal cause of action that supplements, and is in addition to, all of the other state recognized legal claims that have always been equally available to both minorities and nonminorities. Simply put, the IHRA is an additional state benefit for minorities. True, it may not be as much of a benefit as some might like. It does not guarantee complainants a hearing. But the IHRA does not in any way burden any rights. If anything, it enhances adjudicative rights. Thus, Hunter cannot be used to suggest that strict scrutiny should be applied here.

The assertion that the IHRA has not reduced the bundle of state rights diseriminatees have previously enjoyed, and in fact has enhanced that bundle, is amply demonstrated by Illinois state law. For example, in the employment context, the longstanding Illinois rule has always been that a discharged employee had no civil cause of action against the employer for the summary termination of a job in an “at will” employment contract. Roemer v. Zurich Insurance Co., 25 Ill.App.3d 606, 323 N.E.2d 582 (1st Dist.1975). While surveying the Illinois law in Carrillo v. Illinois Bell Telephone Co., 538 F.Supp. 793 (N.D.Ill.1982), this court observed that

[t]he one recognized exception [to the absence of a cause of action for summary discharge] is the relatively new tort of retaliatory discharge, which was judicially created in 1978. The Illinois Supreme Court, however, has thus far only applied this tort in two situations, where the discharge stems from an employee’s filing of a workman’s compensation claim, Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978); and where the discharge is for cooperating with a local law enforcement agency’s prosecution of another employee, Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981).

538 F.Supp. at 799. The court concluded its opinion in Carrillo by expressing strong doubts that Palmateer could be read to apply the tort of retaliatory discharge to allegedly discriminatory discharges. 538 F.Supp. at 799. Those doubts were just recently vindicated by the Illinois Supreme Court in Mein v. Masonite Corp., 109 Ill.2d 1, 92 Ill.Dec. 501, 485 N.E.2d 312 (1985), where the court rejected the plaintiff’s argument that the tort of retaliatory discharge included a civil cause of action for age discrimination. The court observed that “the legislature intended the [IHRA], with its comprehensive scheme of remedies and administrative procedures, to be the exclusive source for redress of alleged human rights violations.” 109 Ill.2d at 7, 92 Ill.Dec. 501, 485 N.E.2d 312. The court also observed that a proposed but rejected amendment to the bill that became the IHRA in 1979 would have created a civil cause of action in addition to or in lieu of the administrative remedies of the IHRA. Id. Thus, the tort of retaliatory discharge has not and still does not include a civil cause of action for discrimination. Accord Manuel v. International Harvester Co., 502 F.Supp. 45 (N.D.Ill.1980) (no civil cause of action for discharge based on race discrimination under the tort of breach of the duty of good faith and fair dealing in an employment contract). The IHRA, therefore, now provides discriminatees with more legal rights than they had prior to the enactment of that Act and certainly no less.

Although not argued by plaintiffs, one further issue of sufficient importance to warrant discussion is whether the IHRA has in some way reduced the federal rights that discriminatees would otherwise enjoy in the absence of the IHRA. It is clear that in the absence of any state statute respecting human rights, Title VII guarantees Title VII plaintiffs a full de novo hearing in federal court on their claims. Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). An unsuccessful IHRA complainant whose charge is dismissed without a hearing, may find, upon becoming a Title VII plaintiff on the same charge, that her or his de novo hearing rights have been negatively influenced by the state dismissal. This is a legitimate concern since the existence of the IHRA means that Title VII charges of discrimination must initially be deferred to that Act’s state agency. 42 U.S.C. § 2000e-5(c).

Upon close scrutiny, the court is satisfied that the effect of an IHRA dismissal on a Title VII court hearing is either negligible or nonexistent and concludes that the IHRA does not impinge on subsequent Title VII rights. The court reaches this conclusion by first examining whether an IHRA dismissal without a hearing has any issue or claim preclusion effect on a Title VII federal court hearing. The answer, quite clearly, is that the state agency dismissal has no such preclusive effects. “Since it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a state’s own courts.” Kremer v. Chemical Construction Corp., 456 U.S. 461, 470 & n. 7, 102 S.Ct. 1883, 1891 & n. 7, 72 L.Ed.2d 262. Kremer does hold, however, that a court-reviewed state agency determination has a preclusive effect on a federal court action. 456 U.S. at 485, 102 S.Ct. at 1899. However, the state agency involved in Kremer, unlike the Illinois Human Rights Commission and Department of Human Rights, did provide for hearing-type rights at the administrative stage, 456 U.S. at 483, 102 S.Ct. at 1898, and the Court found this fact to be highly relevant to its holding. See 456 U.S. at 481-82, 102 S.Ct. at 1897-98. Furthermore, and this is critical, unsuccessful IHRA complainants can always assure themselves of their full, totally unprecluded Title VII hearing rights by declining to seek state judicial review of agency decisions. 456 U.S. at 504, 102 S.Ct. at 1909 (Blackmun, J., dissenting). Unlike initial resort to state administrative remedies, state judicial review of state agency decisions is not a prerequisite to the exercise of Title VII hearing rights. See 42 U.S.C. § 2000e-5(c). Thus, the IHRA does not reduce one’s Title VII hearing rights in federal court; the state complainant can avail himself or herself of the state agency proceeding and then later receive a full, undiminished hearing in federal court, a hearing identical to what would have been received in the absence of the IHRA.

The absence of a preclusive effect from state agency proceedings does not address the court’s second concern — the evidentiary effect of a state agency dismissal without a hearing on one’s Title VII rights. A state agency’s determination is, by statute, entitled to “substantial weight” during an Equal Employment Commission (EEOC) investigation of a discrimination charge. 42 U.S.C. § 2000e-5(b). Furthermore, the findings of the EEOC, and presumably the state agency’s decision, are admissible in the ultimate federal court hearing. Heard v. Mueller Co., 464 F.2d 190 (6th Cir.1972); Turna v. American Can Co., 367 F.Supp. 1178 (D.N.J.1973); Gillin v. Federal Paper Board Co., 52 F.R.D. 383 (D.Conn.1970). However, the admissibility of an agency’s determination of a discrimination charge

is based upon a federal business records statute that allows admission of such evidence so long as it meets the tests of need, reliability, and trustworthiness. Thus, where an EEOC decision is not truly necessary or relevant to the litigation and is prejudicial to an adverse party, its admission may be prohibited [footnote omitted].

A. Larson & L. Larson, Employment Discrimination § 49.87 at p. 9B-213 (1985). Thus, an IHRA dismissal which can be shown to be based on excessively streamlined and questionable procedures, such as may indeed be the case with the IHRA, will either be excluded from evidence entirely, or if not excluded, accorded extremely minor weight by the federal judge. In view of this minor, if not nonexistent, role that an adverse IHRA proceeding will play in a federal court action, the court finds that any IHRA dismissal has a negligible negative evidentiary impact on a federal hearing. The court is therefore confident of its conclusion that the IHRA does not burden the rights of discriminatees relative to what their rights would be in the absence of an IHRA. If anything, the IHRA gives IHRA plaintiffs something more and nothing less than they would have without the Act.

Plaintiffs raise one final argument in support of their claim that the IHRA legislation warrants strict scrutiny. Specifically, they argue that IHRA plaintiffs are primarily members of racial minorities and so the IHRA classification is a racial one and subject to strict scrutiny. See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1962); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). The court rejects this contention. It is simply inaccurate to characterize the IHRA as having an exclusive or even primary impact on racial minorities. The IHRA prohibits not only racial discrimination but discrimination based on sex, age, handicap, religion, unfavorable military discharge, marital status and others. Never has the Supreme Court held that all, or even most of the classes named here are suspect and therefore entitled to strict scrutiny. Thus, the IHRA plaintiff class is not a racial one and strict scrutiny is not appropriate.

However, even if this court were to view the IHRA classification as an entirely racial one, strict scrutiny would still be inappropriate. It is axiomatic that an equal protection violation cannot exist unless the classification which treats one group (the IHRA plaintiffs) differently also causes that group to be worse off than the alternative class. When legislative classifications benefit the class created by the legislation, no equal protection burden is imposed on that class. As was just explained above, the IHRA provides a class— discriminatees — with something they would not and did not have in the absence of the IHRA — a cause of action for discrimination. The IHRA has not worsened the position of discriminatees. Not only has the IHRA enhanced the legal position of discriminatees relative to their position pri- or to the IHRA, but because of the very existence of the IHRA discriminatees now have more legal tools available to them than nondiscriminatees. Without legislation burdening a class, no equal protection question is raised. The court need not even inquire into which level of scrutiny is appropriate because the scrutiny inquiry presupposes that the class challenging a classification has been burdened relative to the alternative class. Here, discriminatees enjoy all the legal cause of actions that non-discriminatees enjoy, plus the IHRA cause of action. Therefore, this court doubts whether any equal protection scrutiny of this legislation is required. In any event, plaintiffs’ arguments for applying strict scrutiny have certainly failed. Even if this court is required to apply a rational relation scrutiny to the classification created by the IHRA, plaintiffs’ equal protection claim must be dismissed. Defendant suggests at least two rational bases for state’s decision to create the IHRA claim without a hearing guaranteed. Plaintiffs do not deny the legitimacy of these bases.

First, the state could have decided that claims of discrimination were so important that they were best handled by a supportive state agency rather than by the individual in a private lawsuit, unaided by state resources. As part of that decision, the state might have rationally determined that in order for the agency to function properly, a full hearing at the investigation stage in every case might not be feasible. Indeed, defendant argues that a full hearing at the investigative stage will destroy the agency’s ability to expeditiously screen out baseless charges of discrimination in order to permit careful processing of more substantial charges. Alternatively, the state might have rationally reasoned that a non-adversarial investigation might better serve the interests of innocent respondents than would a hearing. See Ill.Rev.Stat. ch. 68, ¶ 1-102(E) (one of the purposes of IHRA is to protect citizens against unfounded charges of unlawful discrimination). Given the legitimacy of these two purposes (agency efficiency and protecting innocents) and the rationality of the relationship of the no-hearing provision to these purposes, there is no equal protection violation.

CONCLUSION

The motion to dismiss the complaint for failure to state a claim for which relief can be granted is denied as to the due process count and granted as to the equal protection count.

It is so ordered.

On Motion for Reconsideration

On October 8, 1985, this court denied defendant’s motion to dismiss plaintiffs’ claim that certain provisions of the Illinois Human Rights Act (IHRA), Ill.Rev.Stat. ch. 68, H111-101 to 9-102 (1983) violate plaintiffs’ procedural due process rights. Specifically, the court held that the IHRA might be constitutionally defective if the administrators investigating whether substantial evidence exists to support a civil rights charge do not, in fact, guarantee complainants an opportunity to present reasons why such substantial evidence exists. In explaining this ruling the court pointed out that to prevail plaintiffs must prove that this procedural defectiveness, which is permitted by the language of the IHRA, is actually implemented by the practices of the Illinois Human Rights Commission and Illinois Human Rights Department.

Defendant now moves for a reconsideration of the October 8 order. In so moving, defendant basically raises two arguments. First, the Illinois Supreme Court has recently held, in Rossetti Contracting Co., Inc. v. Court of Claims, 485 N.E.2d 332 (1985), that a state agency may not interpret a statute so as to deprive a person of an opportunity to be heard on his or her claims. Therefore, defendant maintains, complainants do have an opportunity to present reasons in support of a finding of substantial evidence. Defendant’s second argument is that even if the Department and Commission fail to permit a complainant to present reasons against dismissal of a civil rights charge, the Illinois state courts, on judicial review of a dismissal, are required to see that a complainant has been guaranteed procedural due process. The implication, presumably, that defendant would have the court make from this general proposition is that if a complainant has not been afforded an opportunity to present reasons against dismissal, a reviewing court will necessarily order a remand and require that the complainant be given such an opportunity.

As to defendant’s first argument, its reliance on the Rosetti case is misplaced. The proposition set forth in that decision— that state agencies cannot interpret statutes so as to deny claimants an opportunity to be heard — is completely consistent with the October 8 ruling. The question presented here is whether, as a matter of fact, the Department and the Commission are providing complainants with their constitutional right, acknowledged by Rosetti, of an opportunity to be heard. The October 8 ruling held that the “opportunity to be heard” in this context includes at least an opportunity to present reasons why substantial evidence exists to support a civil rights charge. Therefore, whether the Department and Commission are providing this opportunity to complainants is a question of fact for trial or a motion for summary judgment. No ruling of law can resolve such a question.

Defendant’s second argument is slightly more complex. The basic proposition is that circuit court review of administrative action will cure any procedural defectiveness in the IHRA because if a complainant is indeed deprived of an opportunity to present reasons against dismissal, the circuit court will order a remand so as to provide the complainant with that opportunity. In support of this argument, defendant first cites to Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), which this court relied on in the October 8 opinion. Defendant cites Logan to support its contention that the judicial review provisions of the IHRA are adequate to protect a complainant’s due process rights. Defendant overlooks the critical fact that the version of the IHRA applicable at the time Logan was decided required that the Commission hold a fact-finding conference within a 120-day period. Logan v. Zimmerman Brush Co., 455 U.S. at 427, 102 S.Ct. at 1153, citing to Zimmerman Brush Co. v. Fair Employment Practices Comm’n, 82 Ill.2d 99, 44 Ill.Dec. 308, 411 N.E.2d 277 (1980). Given this requirement, it is not surprising that the Supreme Court found no reason to criticize the judicial review provisions as not protecting a complainant’s due process rights. Justice Blackmun, in his majority opinion, was careful to point out that the current IHRA, providing for only a discretionary fact-finding conference, presents an entirely different constitutional question, one not presented by or decided in the Logan case itself:

After the inception of the present litigation, the Illinois Legislature repealed the FEPA [Illinois Fair Employment Practices Act], and put in its place the ... Illinois Human Rights Act____ The new Act modifies a number of the FEPA’s procedural provisions; most important for present purposes, it commits to the Department’s discretion the decision whether to hold a factfinding conference. ¶17-102(c)(3).
These revisions have no effect on Logan’s case, however, for the Illinois Supreme Court has ruled that the Human Rights Act is not to be applied retroactively.

Logan v. Zimmerman Brush Co., 455 U.S. at 425, n. 1,102 S.Ct. at 1152, n. 1 (citations omitted; emphasis original). The question not addressed in Logan — whether a complainant has a constitutional right to more than discretionary fact-finding procedures — is precisely the question raised by this case. Logan, therefore, does not itself determine for this court whether judicial review of agency action can cure the procedural inadequacy of failing to guarantee a complainant a right to present reasons against dismissal.

Perhaps recognizing that Logan is itself inadequate authority, defendant refers the court to Illinois law for the proposition that circuit courts have a mandatory obligation to remand a case to an administrative agency for the taking of evidence where the record from that agency is “inadequate.” Defendant argues that this authority leads to the conclusion that where the Department or Commission has failed to provide a complainant with an opportunity to present reasons in favor of a finding of substantial evidence, a circuit court will necessarily remand the case to afford the complainant with that opportunity.

The law defendant cites simply does not support the conclusion it advances. The power to remand a case is defined by 111. Rev.Stat. ch. 110, ¶ 3-311(a)(7) which provides that the “Circuit Court has power where a hearing has been held by the agency, to remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just.” Thus, the circuit court’s remand authority is not mandatory by statute — the circuit court merely has the “power” to remand. Further, that power is authorized only when the agency has already held a hearing. It is true, however, that Illinois case law has added a judicial gloss to the remand statute that is more favorable to defendant. Sahara Coal Co., Inc. v. Department of Mines & Minerals, 103 Ill.App.3d 115, 124, 59 Ill.Dec. 109, 116, 431 N.E.2d 394, 401 (5th Dist.1982) held that “the powers of remandment granted to the circuit court ... may be exercised even if no hearing has been held by the agency involved in the proceedings.” However, even this gloss still leaves to the circuit court discretionary remand authority. Unless the complainant is assured of a remand as a matter of right, and unless that remand requires the agency to hear the complainant’s evidence or other reasons against dismissal, the procedural defect in the IHRA procedure is not cured by judicial review.

Defendant argues that an additional gloss has been read onto the remand statute and this gloss does in fact require circuit courts to remand a civil rights case to the IHRA administrative network when a complainant has not been given a chance to present reasons against dismissal. In support of its argument, defendant cites Board of Education of Minooka Community v. Ingels, 75 Ill.App.3d 335, 337, 31 Ill.Dec. 153, 156, 394 N.E.2d 69, 72 (3d Dist.1979), which held that “[wjhere the record of an administrative hearing is clearly inadequate, the case should be remanded even though the power to remand under the Administrative Review Act is discretionary rather than mandatory.” In-gels does not support defendant’s position because the concept of “inadequacy” that Ingels takes requiring a remand is not the same as the inadequacy of failing to guarantee the complainant an opportunity to present reasons against dismissal. Rather, Ingels held that an inadequacy occurs when an agency “applies the wrong standard to the evidence before it,” so that “any resulting finding is invalid,” and therefore cannot be judicially reviewed. Ingels, 31 Ill.Dec. at 155, 394 N.E.2d at 71. Nothing in Ingels discusses whether the procedures of the IHRA are inadequate. Ingels pertains only to an agency’s failure to apply the correct evidentiary standard to the evidence before it. Ingels, and the other authority defendant cites, say nothing about whether an agency’s failure to give a complainant an opportunity to present reasons why her or his charge should not be dismissed is “inadequate” under Illinois law. Therefore, there is no reason to believe that a complainant who has been denied an opportunity to present reasons against dismissal will be guaranteed a remand on review.

Of course, it is certainly plausible that a circuit court would consider itself obligated to remand an IHRA dismissal if the IHRA agency’s record was empty. But an empty record is not plaintiffs’ concern. Plaintiffs are objecting to the lack of an opportunity to present, on their own behalf, evidence or reasons against dismissal. As stated in the October 8 ruling, the IHRA requires the Department and Commission to investigate a civil rights charge. In investigating a charge, the IHRA agencies may compel the production of documents and the testimony of witnesses. It may even convene a fact-finding conference. In the course of exercising its discretionary powers during the investigation, a record is sure to develop. The constitutional inadequacy with this procedure is not that an empty record is possible, but that nothing in the language of the IHRA requires that the IHRA administrators guarantee complainants the right to put into the record their own evidence and arguments — i.e., reasons— against dismissal of the charge. This infirmity was and is significant enough to survive defendant’s motion to dismiss, and so this court held on October 8. It is now incumbent upon plaintiffs to prove that the IHRA administrators, in implementing the IHRA, are in fact denying some or all complainants this vital opportunity. No procedure for terminating a property right — which a civil rights charge clearly is — can ever pass constitutional muster if the holder of that right is not given an opportunity to say something to the authority that has the power to take the right away.

Finally, the fact that plaintiffs did not allege in their complaint that they were denied an opportunity to present reasons against dismissal is immaterial. The federal rules require notice, not fact, pleading. Plaintiffs satisfied this requirement by alleging that the IHRA denied them due process by not giving them an opportunity to be heard.

Conclusion

Defendant’s motion for reconsideration of the October 8 ruling which denied in part defendant’s motion to dismiss is hereby denied.

It is so ordered.