author: PRESIDING JUSTICE FREEMAN PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW COLLINS et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—85—1663, 1—85—1680, 1—85—1975 cons.
    Opinion filed March 22, 1989.
    — Rehearing denied June 21, 1989.—
    Supplemental opinion filed on denial of rehearing June 28,1989.

      Michael J. Goggin, of Oak Park, for appellant Andrew Collins.

      James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant Michael Cantre.
    Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant Darren Ellis.
    Richard M. Daley and Cecil A. Partee, State’s Attorneys, of Chicago (Inge Fryklund, Maureen Hartón, and Catharine M. Forest, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendants, Andrew Collins, Michael Cantre, and Darren Ellis, were charged by indictment with murder, rape, home invasion, residential burglary, and conspiracy to commit home invasion in connection with an incident which occurred on November 25, 1983. The three defendants were tried together at a consolidated jury trial. All three were convicted of all charged offenses except rape. The trial court sentenced each defendant to 40 years’ imprisonment for murder, 15 years for home invasion, and 15 years for residential burglary. The sentences were to run concurrently. All three defendants appeal and raise a number of contentions.

For the reasons stated below, we reverse the judgment of the trial court and remand the matter for further proceedings.

The record indicates that in the early morning hours of November 25, 1983, a neighbor heard noises in the apartment of the victim. The neighbor then heard people running outside and someone falling down while trying to get over a fence. The person falling over the fence said, “Damn,” and the neighbor recognized the voice as that of defendant Ellis. Later that day, Chicago police officer Pontonero received a telephone call from an unidentified woman who said she overheard defendant Ellis bragging about robbing and killing a woman. The police went to the building where the victim lived, and as they were talking to the building’s owner, defendant Ellis walked by. Ellis was taken to a police car and questioned. He admitted breaking into the victim’s house on the night of the murder.

Ellis was taken to the police station. Initially, he named three accomplices. Then, he changed the names and named defendant Collins and “Skoony,” whose real name Ellis believed to be Michael Washington. Police then brought Collins to the police station. On the way to the station, Collins saw defendant Cantre and identified Cantre as “Skoony.”

Defendants Collins and Cantre were questioned by police and denied any knowledge of the victim’s death. When Ellis was told that the others denied knowledge of the offense, Ellis named other accomplices, and Collins and Cantre were released from custody. The next day, Ellis was taken to the crime scene. He saw his grandmother there, and she told him to tell the truth. Ellis then told police that he participated in the killing and that his accomplices were defendant Collins and “Rat.”

At a pretrial motion to quash, Chicago police detective Robert Anderson testified that he and his partner spoke with Doris McCummit, who had telephoned police regarding the offense. McCummit allegedly told Anderson and his partner that at 4:30 a.m. on November 26, 1983, she pulled off to the side of the road in her car near the victim’s house. She saw defendant Collins and “Skoony” run out to the front and a third person run to the rear fence. The defense called Maggie Carr to testify in rebuttal. Carr stated that since 1981, she lived at the address which Doris McCummit gave police. Carr stated that no Doris McCummit lived there.

Detective Anderson further stated that on November 27, 1983, at 1 a.m., he and his partner went to Collins’ home and arrested him. Defendant Cantre was located and arrested one hour later. Anderson questioned Collins and Cantre at the police station. Collins and Cantre gave oral and written statements. After a certain time, Collins told Anderson that he had “nothing else to say.” Cantre also said that he did not wish to speak further. Anderson wrote in his report at 3 a.m. on November 27, 1983, that “at this time, both Collins and Cantre elected not to speak about the death of [the victim].” Anderson then ceased questioning defendants.

At 10 a.m. the same day, Chicago police detective Lawrence Poli questioned Cantre and Collins at the police station, after giving them Miranda rights. Poli had read Detective Anderson’s report. Collins denied to Poli that he participated in the murder. Poli told Collins that Cantre had implicated him. Around 10:30. to 11 a.m., Collins confessed to his participation in the crime and gave a statement in the presence of a court reporter. Collins refused to sign the statement.

Prior to trial, all three defendants presented motions to sever their trials. The trial court denied the motions, on the basis that the confessions of the three defendants were “interlocking” and no severance was required. At trial the evidence included written confessions of all three defendants; testimony by police regarding their investigation; and alibi evidence presented on behalf of each defendant. Defendant Ellis testified at trial. Defendants Collins and Cantre did not.

On appeal all three defendants contend that the trial court committed reversible error in denying their motions for severance. Each defendant asserts that error occurred where the confessions of his co-defendants were admitted at trial and where defendants were denied the right to cross-examine Collins and Cantre, who did not testify at trial.

In Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, the Supreme Court recently held that “where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, see Lee v. Illinois, [(1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056] ***, the Confrontation Clause [of the fourth amendment] bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him.” (Cruz, 481 U.S. at 193, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719.) Cruz provides that a codefendant’s statement must be considered presumptively unreliable when it interlocks with the defendant’s own statement, where the defendant asserts at their joint trial that his own statement is not truthful. (Cruz, 481 U.S. at 193, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718.) Therefore, such a statement by a codefendant is not admissible unless, as stated in Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, there is independent indicia of its reliability. (See People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.) In Lee the Supreme Court stated:

“If those portions of the co-defendant’s purportedly ‘interlocking’ statement which bear to any significant degree on the defendant’s participation in the crime are not thoroughly substantiated by the defendant’s own confession, the admission of the statement poses too serious a threat to the accuracy of the verdict to be countenanced by the Sixth Amendment.” Lee, 476 U.S. at 545, 90 L. Ed. 2d at 529,106 S. Ct. at 2064-65.

Further, in Cruz, the Supreme Court looked to and relied upon its earlier holding in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, in which it held that a defendant’s sixth amendment right of confrontation is violated when the confession of his nontestifying codefendant naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. (Bruton, 391 U.S. at 137, 20 L. Ed. 2d at 485-86, 88 S. Ct. at 1628.) The sixth amendment’s guarantee of the right of a criminal defendant “to be confronted with the witnesses against him” includes the right to cross-examine witnesses. See Richardson v. Marsh (1987), 481 U.S. 200, 206, 95 L. Ed. 2d 176, 185, 107 S. Ct. 1702, 1706.

The trial of the instant cause was held prior to the decision in Cruz, which rejected the analysis and holding, previously set forth by the Court in Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132. In Parker, the Court had held that codefendants’ confessions were admissible when proper limiting instructions were given to the jury where “the defendant himself has confessed and his confession ‘interlocks’ with and supports the confession of his codefendant.” (Parker, 442 U.S. at 64, 60 L. Ed. 2d at 718, 99 S. Ct. at 2135.) In Cruz, the Supreme Court overruled the Parker holding, stating that the admission of a codefendant’s interlocking confession would be “enormously damaging” if it confirms in significant part the defendant’s confession, which the defendant seeks to avoid at trial. (Cruz, 481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718.) The trial court in the instant case denied severance on the ground that the confessions were admissible since they interlocked and were permitted as provided under Parker. Since the trial court denied severance based on grounds later rejected by the Supreme Court in Cruz, defendants’ convictions must be reversed and the cause remanded for a new trial. See People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.

The confessions in the instant case were similar in significant parts. Both Ellis and Collins admitted that they agreed with the others to break into the victim’s apartment. Cantre denied that he agreed to break in, but admitted following the others into the apartment. All three defendants stated their belief that the victim would be home. The statements differ to some extent regarding the participation of each defendant in their actions once inside the apartment, although the actions described are essentially the same. Ellis stated that Collins tackled the victim, pulled up her clothes, and raped her while Ellis put a belt around her neck. Collins stated that Ellis and Cantre pushed the victim to the floor and Cantre raped her while Ellis placed his hands around her neck. Cantre stated that Ellis strangled the victim with a cloth. Further, Cantre stated that he saw Collins standing over the victim, and Cantre saw Collins’ penis and saw Collins then zip up his pants. In addition, Ellis stated that while he and Collins were with the victim, Cantre was looking through the victim’s purse for money. Collins stated that he went through the victim’s dresser drawers looking for something to steal. Cantre stated that he went through the victim’s drawers while the others were with the victim.

Under the sixth amendment analysis, the confessions must have independent indicia of reliability to be admissible since the statements interlocked with each other to a significant degree regarding the culpability of defendants, and since each defendant at trial denied the truth of his own confession by presenting evidence of an alibi. (See Cruz, 481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718.) While the confessions differ as to which defendant performed the alleged rape upon the victim and which defendant searched the victim’s possessions, the confessions describe substantially similar actions. Further, this court cannot be unaware of the motivation for an accused to place the blame for an offense upon another. The State, therefore, would have to show an independent basis for the admission of the codefendants’ statements in any new trial. See Lincoln, 157 Ill. App. 3d at 706.

In addition to a sixth amendment analysis, however, we must also examine the admissibility of defendants’ confessions under Illinois evidentiary law. The Supreme Court has recognized that the sixth amendment analysis is separate from an analysis of admissibility of a codefendant’s confession under the applicable State law. (See Lee v. Illinois (1986), 476 U.S. 530, 539, 90 L. Ed. 2d 514, 525, 106 S. Ct. 2056, 2061.) Under Illinois law, a codefendant’s statements generally are inadmissible as hearsay against a defendant, unless the statements were made in .the presence of the defendant or assented to by him. (People v. Tyner (1964), 30 Ill. 2d 101, 105, 195 N.E.2d 675.) In People v. Duncan (1(988), 124 Ill. 2d 400, 530 N.E.2d 423, the supreme court noted that Illinois courts for a long time have viewed a nontestifying codefendant’s statements which incriminate the defendant as incompetent evidence against the defendant. The court in Duncan stated, “Unless some other exception to the hearsay rule applied, we have allowed admission of such statements at joint trials only reluctantly, only with proper limiting instructions, and only if the statements are cleansed of all references to a nondeclaring defendant.” (Emphasis in original.) (Duncan, 124 Ill. 2d at 414, citing People v. Clark (1959), 17 Ill. 2d 486, 490, 162 N.E.2d 413.) This rule against admissibility of codefendants’ statements has been established in Illinois independent of the Federal constitutional right of confrontation and without express reference to the Illinois Constitution. (See Duncan, 124 Ill. 2d at 415.) The application of the rule involves a determination of whether admission of codefendants’ statements constitutes prejudical error. See Duncan, 124 Ill. 2d at 413, 415; People v. Clark (1959), 17 Ill. 2d 486, 162 N.E.2d 413; People v. Barbaro (1946), 395 Ill. 264, 69 N.E.2d 692.

Under Illinois law, the admission of the codefendants’ statements against the defendants in the instant case constituted prejudicial error. As stated in Duncan, a nontestifying codefendant’s statements incriminating the defendant are incompetent evidence against the defendant. (Duncan, 124 Ill. 2d at 413-14.) In the instant case, only defendant Ellis testified at trial, while defendants Collins and Cantre did not. Therefore, the statements of Collins and Cantre, which in no way were purged of references to Ellis, and implicated each of the other codefendants in the crime, were improperly admitted against Ellis. Similarly, the statement of Collins was improperly admitted against Cantre and Ellis, and the statement of Cantre was improperly admitted against Collins and Ellis. The State provided no exception to the hearsay rule to allow the admission of the defendants’ confessions in the joint trial. Accordingly, the trial court improperly denied defendants’ motions to sever their trials. (See Duncan, 124 Ill. 2d at 412-16.) Defendants’ convictions therefore must be reversed and this cause remanded for new trials.

Defendants raise a number of other issues on appeal. We will address the remaining issues insofar as those issues are likely to recur after remand.

Defendants Collins and Cantre assert that the trial court erred in denying their motions to suppress their confessions, under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, since the confessions were improperly obtained after defendants invoked their right to remain silent. Collins further contends that the confession was involuntarily given, since defendant was a minor and the custodial setting was overly coercive.

There is no per se proscription against the renewal of questioning by police after an in-custody defendant indicates a desire to remain silent. Rather, the admissibility of subsequent statements depends upon whether the defendant’s right to terminate questioning was “scrupulously honored.” (Michigan v. Mosley (1975), 423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326.) In Mosley, the Court found that the defendant’s right to remain silent was scrupulously honored where there was renewed questioning of defendant because the police “immediately ceased the [initial] interrogation, resumed questioning,only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” Mosley, 423 U.S. at 106, 46 L. Ed. 2d at 322, 96 S. Ct. at 327.

In People v. Colley (1980), 83 Ill. App. 3d 834, 404 N.E.2d 378, this court stated that exercise of a defendant’s right to remain silent by declining a request to make a statement “ ‘does not permanently preclude all future inquiries by officers to determine whether he has changed his mind.’ ” (Colley, 83 Ill. App. 3d at 841, quoting People v. Gibson (1977), 55 Ill. App. 3d 929, 371 N.E.2d 341.) The court further provided that “[t]here is a clear distinction between the continuation of ‘interrogation’ and a subsequent request upon fresh Miranda warnings, for reconsideration of an earlier decision to make no statement.” Colley, 83 Ill. App. 3d at 841.

Recently, the Illinois Supreme Court, in People v. Foster (1988), 119 Ill. 2d 69, 518 N.E.2d 82, cert, denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 628, 108 S. Ct. 2044, reh’g denied (1988), _U.S___ 101 L. Ed. 2d 957, 109 S. Ct. 5, found that the defendant’s right to remain silent was “scrupulously honored” under the Mosley test where, after initial questioning by police had ceased, an assistant State’s Attorney spoke with the defendant after three hours had passed. The assistant State’s Attorney gave the defendant fresh Miranda warnings and then told him that a witness had given a statement implicating him and that the police also had talked to another witness. The defendant then provided an oral and later a written statement. On appeal, the defendant argued that his right to remain silent was not “scrupulously honored” since he was questioned again about the same crime, unlike in Mosley, where reinterrogation was made of the defendant regarding a separate offense. The court in Foster held, however, that requestioning a defendant regarding the same offense does not of itself constitute a violation of Miranda rights. (Foster, 119 Ill. 2d at 86.) The court in Foster cites a number of cases in which courts have reached the same conclusion. See Foster, 119 Ill. 2d at 86-87.

In the instant case, the record indicates that defendants’ right to remain silent was “scrupulously honored.” After speaking with police detective Anderson for a certain time after their arrest, both Collins and Cantre stated that they did not wish to speak further, and Anderson ceased questioning them. Around 9 or 10 a.m., six or seven hours later, Detective Poli spoke with each defendant separately, first giving each of them fresh Miranda warnings. Further, the record indicates that defendants had not been interrogated between 3 a.m. and 10 a.m., and the record fails to indicate that the setting during that time was overly coercive.

Both Collins and Cantre initially told Poli that they did not wish to make statements. Poli stated that he then telephoned witness Doris McCummit and asked her to come to the station to view a lineup. Poli returned to the room where Cantre was, advised him of his rights, and told Cantre about his conversation with McCummit. Cantre then provided a statement to Poli. After obtaining Cantre’s statement, Poli gave Collins his rights and told him that Cantre had implicated him in the crime. Collins then confessed to his involvement in the offense. Under these circumstances, we find that defendants’ rights were properly preserved. See People v. Foster (1988), 119 Ill. 2d 69, 518 N.E.2d 82.

Further, we do not find merit in Collins’ assertion that the setting in the police station was overly coercive, in view of the fact that defendant was a minor. Defendant cites People v. Travis (1984), 122 Ill. App. 3d 671, 462 N.E.2d 654, where the court states that special care must be taken in reviewing a record involving a juvenile defendant, since a minor can be an “easy victim of the law” (Haley v. Ohio (1948), 332 U.S. 596, 599, 92 L. Ed. 224, 228, 68 S. Ct. 302, 303-04). (Travis, 122 Ill. App. 3d at 674.) In the instant case, however, the record fails to indicate that defendant Collins’ will was overborne or that the setting under which Collins was held and questioned was overly coercive. The initial questioning of Collins ceased when defendant stated his desire to remain silent, and he was not questioned thereafter for over six hours. When Detective Poli spoke to Collins between 9 and 10 a.m., Poli asked defendant if he needed to use the washroom, and Collins was provided with something to eat. While initially denying his involvement in the offense, Collins later told Poli that he had in fact participated in the murder. We cannot find, under the circumstances, that Collins’ statement was not voluntarily given. See People v. Smith (1988), 165 Ill. App. 3d 603, 518 N.E.2d 1382.

Defendant Ellis also asserts that his waiver of Miranda rights was not knowing and intelligent since the police continued to interrogate him even after an attorney retained by Ellis’ family telephoned police and told police that he was coming to the police station. Ellis contends that his young age made it imperative that police cease questioning him upon learning that defendant’s family retained an attorney.

Ellis’ argument must fail in view of the holding of Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, which was applied by the Illinois Supreme Court in People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270. In Moran, the Supreme Court held that a suspect’s knowing and intelligent waiver of Miranda rights does not require knowledge that an attorney has been retained or information that the attorney has been in contact with the police or has attempted to see the suspect. (Moran, 475 U.S. at 422-23, 89 L. Ed. 2d at 422, 106 S. Ct. at 1141-42.) The Court stated that “[o]nee it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Moran, 475 U.S. at 422-23, 89 L. Ed. 2d at 422,106 S. Ct. at 1142.

In both Moran and Holland, a relative obtained counsel for the suspect, who was unaware that counsel had been retained. Further, the attorney communicated with police and the prosecutors in those cases only by telephone. In Moran and Holland, it was determined that the defendants were given their Miranda rights and understood them, and further, that the waiver of those rights was valid even though the defendants were not told that counsel had been retained for them. See Moran, 475 U.S. at 422-23, 89 L. Ed. 2d at 421-22, 106 S. Ct. at 1142; Holland, 121 Ill. 2d at 153.

In the instant case, defendant apparently was told by the police or State’s Attorney that an attorney had been retained by his family. Defendant therefore had the benefit of knowing that an attorney hired by his relatives was available to him. There is nothing in the record to indicate, even considering defendant’s youth, that the police’s conduct in communicating this information to defendant violated his rights. Even if defendant was not told of the attorney retained by his family, we find no violation here, in view of Moran and Holland.

In addition, defendant Collins asserts that he was not proved guilty beyond a reasonable doubt where his statement to police was the only evidence against him and his alibi defense was uncontradicted. Initially, we note that with regard to this argument, it is important that this court make a finding regarding the sufficiency of the evidence, so that the State is not given a second opportunity to produce evidence it failed to bring forth in the first proceedings, and that defendants are not, thereby, subject to double jeopardy on retrial. People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.

While a defendant cannot be convicted based on a confession alone, the other evidence in the case need not be sufficient in itself to prove the offense. (People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845, cert, denied (1986), 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292, reh’g denied (1986), 479 U.S. 877, 93 L. Ed. 2d 182, 107 S. Ct. 257.) In order to establish both the corpus delicti and the essential trustworthiness necessary to corroborate a confession, there must be some independent evidence (1) tending to prove that an offense occurred, and (2) corroborating the facts contained in the confession. People v. Calhoun (1984), 126 Ill. App. 3d 727, 467 N.E.2d 1037.

In the instant case, evidence was presented which corroborated Collins’ confession and tended to prove that an offense occurred. For instance, police officers testified to the condition of the victim’s home after the crime occurred. Further, the police testified regarding their investigation of the incident and the information they received from a neighbor who heard the sound of breaking glass in the victim’s apartment and the woman who telephoned the police station to report that she saw three people running from the victim’s house on the night of the offense.

Further, with regard to the alibi presented by Collins, the trial court was not bound, to accept the evidence, but could properly consider it in relation to other evidence adduced at trial. (People v. Worthen (1982), 105 Ill. App. 3d 386, 434 N.E.2d 423; see also In re Willis (1980), 89 Ill. App. 3d 347, 411 N.E.2d 1126.) We find that there was sufficient evidence to support the verdict against Collins to permit retrial on the offenses charged. (See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.) We point out that this court’s finding regarding the sufficiency of the evidence for purposes of double jeopardy does not imply any binding holding regarding the guilt or innocence of defendants on retrial. See People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026.

Defendant Ellis also contends that his waiver of his presence during a portion of the hearing on his motion to suppress evidence was not made knowingly and intelligently. Ellis asserts that he was excused from the courtroom after the trial court told him that only legal argument would follow, where in fact further testimony, that is, a completion of the cross-examination testimony of Detective Gaudio, was given during defendant’s absence.

A criminal defendant has a right to be present during every stage of the trial against him. (People v. Woods (1963), 27 Ill. 2d 393, 189 N.E.2d 293.) That right to be present is violated only when the defendant is excluded at a time when a hearing is being conducted which involves his substantial rights. (People v. Miller (1958), 13 Ill. 2d 84, 112, 148 N.E.2d 455, cert. denied (1958), 357 U.S. 943, 2 L. Ed. 2d 1556, 78 S. Ct. 1394, reh’g denied (1958), 358 U.S. 859, 3 L. Ed. 2d 94, 79 S. Ct. 18.) The purpose of “the general rule giving an accused the right to be present at a criminal prosecution, is to allow him to meet the witnesses face to face and sift the testimony produced against him.” People v. Hirschberg (1951), 410 Ill. 165, 168, 101 N.E.2d 520; see also People v. Marline (1985), 106 Ill. 2d 429, 478 N.E.2d 262.

In the instant case, defendants were excused from the courtroom, at the suggestion of the trial court, during the cross-examination of Detective Gaudio by counsel for defendant Cantre. Counsel for defendant Collins already had cross-examined Gaudio on behalf of his client. Counsel for defendant Ellis was not given the opportunity to cross-examine Gaudio until after defendants had been excused from the courtroom, and therefore, Ellis was not present during his counsel’s cross-examination of Gaudio.

Gaudio was one of the investigating police officers who went to the victim’s apartment after learning of the offense and who obtained information regarding the alleged participation of Ellis in the incident. Gaudio helped to locate Ellis and conducted the initial questioning of Ellis, during which Ellis admitted that he had participated in a burglary. Gaudio therefore provided testimony which was important for the State’s case against defendant, and accordingly, important for defendant to be aware of. Under these circumstances, we find that defendant Ellis was absent at a portion of the hearing which involved his substantial rights. People v. Miller (1958), 13 Ill. 2d 84, 112, 148 N.E.2d 455, cert, denied (1958), 357 U.S. 943, 2 L. Ed. 2d 1556, 78 S. Ct. 1394, reh’g denied (1958), 358 U.S. 859, 3 L. Ed. 2d 94, 79 S. Ct. 18.

The next issue for our determination, then, is whether defendant waived his right to be present during Gaudio’s testimony. The State points out that Ellis and his counsel failed to object when the court asked if defendants wished to be excused from the courtroom. The record also indicates, however, that the trial court stated, “This is only dealing with legal arguments, if you go back into custody, or do you want to stay right here and listen to the legal argument.” The trial court failed to state that further questioning of the witness would be allowed.

In order for a waiver of the right to be present to be valid, the waiver must be voluntary, knowing, intelligent, and “done with sufficient awareness of the relevant circumstances and likely consequences.” (Brady v. United States (1970), 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469, cited in People v. Johnson (1979), 75 Ill. 2d 180, 187, 387 N.E.2d 688; see also People v. Marline (1985), 106 Ill. 2d 429, 478 N.E.2d 262.) Under the circumstances here, defendant was not able to provide an effective waiver. (See People v. Mallett (1964), 30 Ill. 2d 136, 195 N.E.2d 687.) Defendant was not informed that testimony would be provided by Gaudio. Defendant therefore effectively was denied an opportunity to “meet the witness[ ] face to face and sift the testimony produced against him.” (People v. Hirsehberg (1951), 410 Ill. 165, 168, 101 N.E.2d 520.) That defense counsel was present in the courtroom during the entire proceeding does not change the result, as an attorney cannot waive the right to be present on behalf of a defendant. (Mallett, 30 Ill. 2d at 142.) Accordingly, defendant is entitled to a new hearing on his motion to suppress evidence.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded to allow for separate new trials of defendants and for a new hearing on defendant Ellis’ motion to suppress evidence.

Judgment reversed and cause remanded.

McNAMARA and RIZZI, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff has filed a petition for rehearing, asserting that, in accord with Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, and Gibson v. Illinois (1986), 476 U.S. 1167, 90 L. Ed. 2d 974, 106 S. Ct. 2886, this court must determine: (1) whether the record shows that there was an independent basis for the admission of the codefendants’ statements under the “sufficient indicia of reliability” test; and (2) even assuming that this court finds the indicia of reliability insufficient, whether the admission of the codefendants’ statements was harmless beyond a reasonable doubt.

In the original opinion in this case, this court cited People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026, in which the defendant’s conviction was reversed and the cause remanded for a new trial where the trial court denied severance based on grounds subsequently rejected in Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714. The appellate court in Lincoln held that at the new trial, the State would be required to show an independent basis for admitting the codefendants’ statements, which incriminated the defendant.

Plaintiff asserts in its petition for rehearing that contrary to the directive in Lincoln, the question of whether there is an independent basis for the admission of the codefendants’ confessions is one for the appellate court to determine rather than the trial court upon remand. Plaintiff cites Gibson v. Illinois (1987), 476 U.S. 1167, 90 L. Ed. 2d 974, 106 S. Ct. 2886, in which the Supreme Court directed that remandment be made to the Illinois Appellate Court for further consideration in view of the recently filed decision in Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056. On remandment from the Supreme Court, the appellate court in People v. Gibson (1987), 156 Ill. App. 3d 459, 509 N.E.2d 563, found that the defendant’s confession had sufficient “indicia of reliability” to meet the Lee requirement. The court’s decision upholding the defendant’s conviction was based, however, on the court’s finding that admission of the codefendants’ statements was harmless error beyond a reasonable doubt. Gibson, 156 Ill. App. 3d at 464.

Similarly, in People v. Mahaffey (1989), 128 Ill. 2d 388, People v. Smith (1988), 172 Ill. App. 3d 94, 526 N.E.2d 849, and People v. Dixon (1988), 169 Ill. App. 3d 959, 523 N.E.2d 1160, the supreme and appellate courts of this State have applied the analysis set forth in Cruz and Lee based on the records before them, rather than remanding the cases to the trial court for those determinations. Accordingly, in the instant case we will address the questions raised in Lee and Cruz before remanding this case for further proceedings.

In the instant case, while the confessions of the codefendants “interlock” with regard to many of the actions that took place, the statements differ regarding the participation of each defendant in those actions. For instance, Ellis stated that Collins tackled the victim and raped her while Ellis put a belt around her neck. Cantre stated that Ellis strangled the victim. Cantre stated that Collins stood over the victim and that he saw Collins zipping up his pants. Ellis stated that while he and Collins were with the victim, Cantre looked through the victim’s purse. Collins stated that he looked through the victim’s belongings, while Cantre stated that he checked the victim’s dresser while the other defendants were with the victim. The defendants thus “pointed the finger” at their codefendants with regard to participation in certain of the acts.

In addition, we must consider the circumstances surrounding the taking of the statements. The defendants provided oral statements'to the police upon being questioned. Defendants Collins and Cantre were arrested after being implicated in the offenses by defendant Ellis. Defendant Collins helped police to locate defendant Cantre, and identified Cantre as “Skoony,” the person to whom Ellis referred in his statement to the police. Each defendant knew that the others were being held and questioned by police.

Further, there was limited corroborating evidence. While the State presented evidence that a woman named Doris McCummit had observed Collins, “Skoony,” and a third person near the victim’s home, the defense presented evidence that there was no Doris Mc-Cummit living at the address McCummit allegedly gave police. Further, all three defendants presented alibi evidence at trial, thereby denying the truth of the pretrial statements. Our review of the record as a whole fails to show that the statements of the nontestifying codefendants had sufficient independent “indicia of reliability” to withstand the presumption that a codefendant’s statement implicating a defendant is unreliable and that, absent the opportunity for cross-examination, its admission against the defendant violates the confrontation clause. See Lee, 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; Cruz, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714; People v. Dixon (1988), 169 Ill. App. 3d 959, 523 N.E.2d 1160.

Further, we find that even in view of a violation of the confrontation clause, admission of the codefendants’ statements was not harmless beyond a reasonable doubt. (See Lee, 476 U.S. 530, 547, 90 L. Ed 2d 514, 530, 106 S. Ct. 2056, 2065-66.) The evidence against the defendants included the police testimony regarding their investigation and the transcribed confessions of the defendants. Each of the defendants, however, presented alibi evidence in his defense at trial. Further, the defense impeached the State’s evidence, given through the testimony of a police officer, that Doris McCummit saw Collins, “Skoony,” and a third person run out from the victim’s yard. There were no other eyewitnesses and the victim was unavailable. In view of the evidence provided, and the limited amount of evidence corroborating the defendants’ confessions, we must conclude that the admission of the codefendants’ statements was prejudicial to each of the other defendants, such that their admission was not harmless beyond a reasonable doubt.

For the foregoing reasons, we adhere to judgment previously entered by this court in the instant cause.

McNAMARA and RIZZI, JJ., concur.

       Justice McNamara participated in the decision of this appeal prior to his assignment to the sixth division.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE VILLAGE OF BELLWOOD BOARD OF FIRE AND POLICE COMMISSIONERS, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    First District (3rd Division)
    No. 1—88—2081
    Opinion filed June 28, 1989.

      Staehlin, Jantorni & Sullivan, of Chicago (John M. Sullivan and Susan L. Jantorni, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Paul J. Morency and Elizabeth M. Streit, both of Mayer, Brown & Platt, of Chicago, for respondent Craig Kincaid.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Village of Bellwood Board of Fire and Police Commissioners (Bellwood), appeals from the orders of the Illinois Department of Human Rights (Commission) finding that respondent, Craig Kincaid, proved his allegations of racial harassment and discriminatory discharge and ordering that Bellwood pay back pay, damages, attorney fees, and costs. Bellwood initially maintains that the Commission lacked authority to review its final decision to terminate the employment of a probationary police officer. Bellwood contends that in the event the Commission’s review was proper, the decision of the Board must be upheld unless it is against the manifest weight of the evidence; that the findings that Kincaid was subject to racial harassment and that his discharge was racially motivated are against the manifest weight of the evidence; that the award of $10,000 in damages for emotional suffering was erroneous; and that the Commission abused its discretion in awarding attorney fees and costs.

On May 10, 1982, Kincaid filed a charge of discrimination with the Commission against the Bellwood board, alleging racial discrimination in his discharge as a probationary police officer. Kincaid’s charge was based on the following facts. Kincaid, a black male, was hired by Bellwood in March 1981, to serve as a probationary patrolman. He completed his preliminary training and began on June 11,1981.

The probationary period in the Bellwood police department is one year. During that time, probationary officers receive on-the-job training from experienced sergeants and patrolmen. Lieutenants and sergeants solicit reviews from these supervising officers and incorporate them with their own observations into periodic written evaluations. The chief of police reviews the evaluations. If the probationer is working satisfactorily, he will be retained automatically and will become a full-time officer at the end of the probationary year.

At the time Kincaid began his probationary period, he was the second black police officer to join the department. The first officer, Jesse Williams, was hired in 1978 and successfully completed his probationary year.

Williams testified that when he arrived on the force in 1978, many of the officers refused to speak to him. During his probationary year, he heard various officers telling racially derogatory jokes. He did not report these incidents to his superiors. Williams also testified that twice during his probationary year, he found racially derogatory materials in his mailbox at the department. The materials were entitled “Nigger Application for Employment” and made numerous racial slurs. Again, he did not report these incidents to his superiors. Chief of Police Eastham testified, however, that he was aware of the circulation of such materials.

Kincaid testified that when he arrived on the force in 1981, he was subjected to numerous racial slurs. He stated that racially derogatory materials circulated around the department on a regular basis. Offensive cartoons routinely were tacked on bulletin boards in the roll-call room. These cartoons depicted blacks in various degrading situations. One such cartoon showed a black man discovering his wife making love with a cockroach. Kincaid indicated that several white officers watched him when he encountered such cartoons and laughed at his reaction to them. Furthermore, on at least one occasion, a racially derogatory poster was displayed in the locker room. The poster, approximately two feet by three feet in size, advertised a movie entitled “Ragtime.” The words “lock the nigger up” and “one less nigger off the street” had been -written on the poster in large letters. New captions derogatory to blacks were added on succeeding days. Supervising officers read these captions aloud and laughed at them in Kincaid’s presence. Kincaid complained about the poster to his supervisors and asked that it be removed on two separate occasions. The poster remained on display for a week or more after Kincaid’s complaints.

Kincaid additionally testified that the white officers with whom he was supposed to train refused to speak to him and that a number of these officers freely engaged in jokes and slurs derogatory to blacks. One sergeant in particular was especially active in the use of these comments. This officer periodically interrupted other sergeants or lieutenants who were conducting roll call to insert racially derogatory jokes.

Kincaid intimated that the racial slurs pervaded his working environment. One of the officers with whom he frequently rode, and who was supposed to be training him, made the statement that “all blacks look alike” and that he would “like to bash their heads in.”

Kincaid complained to his supervising officers about the racially derogatory jokes, comments, cartoons and poster. One supervising officer told Kincaid that he had been afraid that something like this would happen and that he would have preferred to hire a Mexican rather than another black. This officer, however, took no action to stop the harassment.

In the fall of 1981, Sergeant Howard had the opportunity to evaluate Kincaid. Howard’s evaluation of Kincaid was very favorable. He indicated that at that time it was his belief that Kincaid would make a very good police officer. Howard testified, however, that Kincaid’s attitude and performance deteriorated in the period subsequent to that evaluation. Other officers also had the opportunity to evaluate Kincaid in the fall of 1981. The majority of these evaluations reflected that the reviewing officers believed that Kincaid had an attitude problem; that he displayed a lack of enthusiasm for his job; that he was unable to learn how to accomplish various tasks such as filling out police reports and performing desk duty when called upon to do so; and that he displayed racial prejudice in that he favored blacks over whites. The testimony of various of these officers corroborated what they had stated in the evaluations.

Upon receipt of these evaluations, Kincaid protested to Chief Eastham that these evaluations were not accurate. Kincaid indicated that he believed he was the victim of racial discrimination. Eastham responded that Kincaid had to lodge these complaints with the evaluating officers.

Kincaid testified that he attempted to determine the reasons for the untrue evaluations. When confronted, Sergeant Mangano told him that he would just have to “take it.” Sergeant DeBaro refused to speak to him at all. Kincaid again appealed to Eastham regarding the evaluations. Eastham indicated that he had read the evaluations and warned Kincaid that he needed to improve the evaluations or he would not become a permanent member of the department. Eastham did not discuss what aspects of Kincaid’s performance needed improvement. In the past, when white probationary officers were perceived to be in trouble, they received citations, warnings, suspensions, and counseling prior to a termination decision being rendered.

Eastham testified on behalf of Bellwood. He stated that in October or November of 1981, he had the opportunity to review Kincaid’s evaluations. He stated that when Kincaid approached him to discuss the evaluations, he told Kincaid that pursuant to department procedures, Kincaid first would have to speak to the evaluating officers. Eastham testified that this was the regular procedure to be followed for lodging complaints even when the complaint is about the evaluating officer.

Eastham testified that he next had the opportunity to review Kincaid’s evaluations in December 1981. At that time, Eastham told Kincaid the evaluations were poor and that if Kincaid did not improve his performance in the next three months, he would recommend termination. Eastham stated that as of December 1981, he had not received any complaints from Kincaid regarding unfair treatment, nor had he heard about any complaints of racial discrimination from the sergeants or lieutenants. Furthermore, Eastham stated that although he rarely went into either the roll-call room or the locker room, on those occasions when he did, he did not see any cartoons or posters.

On March 17, 1982, Eastham recommended to the Bellwood board that Kincaid’s employment be terminated prior to the end of his probationary year. The board informed Kincaid that his employment was terminated effective March 19, 1982. Subsequently, the board recalled Robert Johnston, a white male, from layoff status. Eastham testified that prior to Johnston’s layoff, he had received very poor evaluations and likely would have been terminated.

After a hearing, the administrative law judge (ALJ) found in favor of Kincaid. Bellwood filed a statement of exceptions and request for oral argument before the Commission. The Commission, with minor alterations, adopted the order and decision of the ALJ.

Bellwood first contends that the Commission has no legal authority to review its final decision to terminate the employment of a probationary police officer. Bellwood claims that Kincaid’s proper recourse was review under the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.). Kincaid counters that Bellwood has waived its right to raise this issue by its failure to file a motion to dismiss Kincaid’s complaint and by its failure to raise the issue in its statement of exceptions.

We believe Bellwood sufficiently raised the issue by challenging the authority of the Commission to review the board’s decision in its various pleadings and motions before the Commission. Moreover, the Commission addressed the issue in its decision. Accordingly, we will address the issue that Kincaid should have sought review under the Administrative Review Law.

There is no dispute that Bellwood is subject to the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 1—1 et seq.). The Municipal Code provides for the establishment of the board of fire and police commissioners (Ill. Rev. Stat. 1981, ch. 24, par. 10— 2.1 — 1), and grants the board the exclusive authority to appoint all members of the police department (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—4), and to make all rules for appointments and removal (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—5). The Code further provides for specific procedures in the event removal or discharge of an officer or member is sought. (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17.) Judicial review of the final administrative decisions of the board is governed by the Administrative Review Law. An administrative decision is one rendered by any administrative agency which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency. Ill. Rev. Stat. 1981, ch. 110, par. 3-101.

The Illinois Human Rights Act (HRA) vests the Human Rights Commission with exclusive jurisdiction to adjudicate cases brought pursuant to the HRA. (Ill. Rev. Stat. 1981, ch. 68, par. 8— 111(D).) It is clear that the HRA, which contains a comprehensive scheme of remedies and administrative procedures, is meant to be the exclusive source for redress of civil rights violations. (See Mein v. Masonite Corporation (1985), 109 Ill. 2d 1, 485 N.E.2d 312; Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, 458 N.E.2d 985; Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, 446 N.E.2d 296.) Moreover, the HRA gives the Commission subject matter jurisdiction concerning claims of unlawful discrimination by employers because of race. (Ill. Rev. Stat. 1985, ch. 68, pars. 1 — 102(A), 1 — 103(D), 2 — 102(A), 7 — 101(B).) Accordingly, the issue which we must consider is whether the Commission has the legitimate authority to proceed on Kincaid’s discrimination complaint.

In support of its contention that the Commission does not have the legitimate authority to proceed, Bellwood relies on this court’s decision in Board of Trustees of the Police Pension Fund v. Human Rights Comm’n (1986), 141 Ill. App. 3d 447, 490 N.E.2d 232. In Urbana, the court carved out a narrow exception to the Commission’s authority to consider civil rights violations. Complainant, an insulin-dependent diabetic, applied to participate in the Police Pension Fund of Urbana. After complainant’s appointment as a policeman for the city, the board of the Police Pension Fund held a hearing on his application to participate in the fund. The board denied complainant’s application, noting that he could become disabled, and thus eligible for disability benefits, at any time.

Complainant in Urbana filed a charge of handicap discrimination with the Commission. The board filed a motion to dismiss the complaint alleging that the Commission did not have jurisdiction or authority to decide the issue. The Commission denied the board’s motion to dismiss. The board then filed a complaint in the circuit court seeking an order of prohibition to prevent the Commission from proceeding on the discrimination complaint. The trial court dismissed the complaint. On appeal, this court reversed and remanded with directions to enter an order of prohibition. The court noted that the Commission had subject matter jurisdiction over the claim, but that the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 1 — 101 et seq.), which gave the board the exclusive power and duty to manage the pension fund, implicitly vested the board with jurisdiction over the subject matter of certain alleged civil rights violations. The court noted that the board necessarily was required to consider an applicant’s medical' condition because it was vested with the exclusive authority to determine eligibility to participate in the fund; the primary reason for denying an application to participate in the fund is medical problems. Because the board was vested with authority over such matters, the court found that the provisions of the Illinois Pension Code which grant such authority were a legal exception to the exclusivity provisions of the HRA. Board of Trustees of the Police Pension Fund v. Human Rights Comm’n, 141 Ill. App. 3d 447, 490 N.E.2d 232; Ill. Rev. Stat. 1981, ch. 108½, par. 3 — 132; Ill. Rev. Stat. 1981, ch. 68, par. 8-111(D).

The Bellwood board, however, is vested with no such authority. The Municipal Code, which governs the board, does not grant it the exclusive power and duty to manage the policy department. Moreover, the board’s decisions do not of necessity include consideration of matters within the jurisdiction of the Commission. Thus, there is nothing in the Municipal Code which conflicts with the exclusive authority of the Commission to hear matters involving civil rights violations.

Furthermore, although the Municipal Code provides for administrative review of all final decisions of the board (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17; People ex rel. Smith v. Board of Fire & Police Commissioners (1977), 51 Ill. App. 3d 221, 366 N.E.2d 554), we do not believe that this provision bars access to the Commission. The Administrative Review Law provides as follows:

“[T]his Act shall apply to and govern every action to review judicially a final decision of any administrative agency ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 102.)

Thus, if an individual seeks judicial review of an administrative decision subject to the Administrative Review Law, his only recourse is to that act. We, however, do not construe the filing of a petition with the Commission as an action to review judicially a decision of an administrative agency. (See Johnson v. Human Rights Comm’n (1988), 173 Ill. App. 3d 564, 527 N.E.2d 883 (noting that the HRA in general, and article 8 specifically, differentiates between the courts of our judicial system and the Commission). See also City of Cairo v. Fair Employment Practices Comm’n (1974), 21 Ill. App. 3d 358, 315 N.E.2d 344.) Rather, we construe the filing of such a petition as a separate action specifically authorized by the HRA.

Moreover, the interpretation which is suggested by Bellwood would contravene legislative intent by barring certain government employees from seeking redress under the provisions of the HRA. We do not believe the legislature intended to bar access to that remedy when a governmental administrative body has committed an unfair employment practice. Accordingly, we find that the Commission had the authority to consider Kincaid’s charge of discrimination against Bellwood.

Bellwood next contends that the ALJ improperly applied a preponderance of the evidence standard of review when considering Kincaid’s charge of discrimination. Bellwood asserts that the decision of its board must be upheld unless it is against the manifest weight of the evidence.

Bellwood correctly states that a court’s scope of review of an administrative agency’s decision regarding discharge is a two-step process. First, the court must determine whether the agency’s findings of fact are contrary to the manifest weight of the evidence. Second, the court must determine whether the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. (Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) As we have indicated, however, a proceeding pursuant to the HRA is not equivalent to judicial review of a decision of an administrative agency. It is an entirely separate proceeding, governed by the statutory parameters of the HRA.

The HRA provides that after the taking of all testimony in an HRA proceeding, the hearing officer shall determine whether a civil rights violation has occurred based upon a preponderance of the evidence. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 106(F)(1).) The findings and recommended order of the hearing officer are then reviewed by the Commission. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 107(E)(1).) The Commission must adopt the hearing officer’s findings if they are not contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 107(e)(2).) Thus, we find that the ALJ correctly used the preponderance standard when considering Kincaid’s charge of discrimination.

Bellwood next contends that the Commission’s findings that Kincaid was subject to racial harassment, that the reasons articulated by Bellwood for Kincaid’s discharge are pretextual, and that Kincaid’s discharge was racially motivated are against the manifest weight of the evidence.

Initially we note that under the HRA, the Commission’s findings of fact shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(A)(2).) Moreover, judicial review under the HRA is to be in accordance with the provisions of the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(A)(1).) Under the Administrative Review Law, the agency’s findings of fact shall be held to be prima facie true. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110.) The decision of the administrative agency is not to be overturned unless contrary to the manifest weight of the evidence. Loyola University v. Human Rights Comm’n (1986), 149 Ill. App. 3d 8, 500 N.E.2d 639.

The HRA prohibits any employer from making employment decisions on the basis of “unlawful discrimination.” (Ill. Rev. Stat. 1981, ch. 68, par. 2 — 102(A).) “Unlawful discrimination” is defined to include discrimination against a person because of his or her race. (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 103(Q).) In analyzing claims of discrimination under the HRA, Illinois courts have looked to the standards applicable to analogous Federal claims. (Valley Mould & Iron Co. v. Human Rights Comm’n (1985), 133 Ill. App. 3d 273, 478 N.E.2d 449.) Initially, the employee has the burden of proving by a preponderance of the evidence a prima facie case of unlawful discrimination. This creates a rebuttable presumption. (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) The employer then must clearly set forth a legitimate, nondiscriminatory reason for its employment decision to successfully rebut the presumption of unlawful discrimination. (Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) If the employer is successful, the presumption of unlawful discrimination no longer is present in the case. (Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) The employee then must prove by a preponderance of the evidence that the legitimate reason offered by the employer was not the true reason underlying its employment decision and that it is only a pretext. This burden merges with the employee’s ultimate burden of proving whether the employer engaged in unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089; Village of Oak Lawn v. Human Rights Comm’n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.

Thus, our initial determination must be whether the Commission’s decision that Kincaid had established a prima facie case of discrimination by a preponderance of the evidence is contrary to the manifest weight of the evidence. We believe the Commission’s decision was correct.

Kincaid has alleged that he suffered discrimination based on race, that he was the victim of racial harassment and that his discharge was racially motivated. We first will discuss Kincaid’s claim of racial harassment.

Racial harassment has been defined to include a steady barrage of opprobrious racial comment. (Johnson v. Bunny Bread Co. (8th Cir. 1981), 646 E2d 1250.) More than a few isolated incidents of harassment, however, must have occurred; racial comments that are merely part of casual conversation, are accidental, or are sporadic do not trigger civil rights protective measures. (Equal Employment Opportunity Comm’n v. Murphy Motor Freight Lines, Inc. (D. Minn. 1980), 488 F. Supp. 381.) Moreover, the employer is not automatically liable for the harassment of its employees. (See generally DeGrace v. Rumsfeld (1st Cir. 1980), 614 F.2d 796; Equal Employment Opportunity Comm’n v. Murphy Motor Freight Lines, Inc., 488 F. Supp. 381.) Nonetheless, an employer may not stand by and allow an employee to be subjected to a course of racial harassment by co-workers; an employer must accept responsibility for its supervisors’ derelictions in responding to racial problems. DeGrace v. Rumsfeld, 614 F.2d 796.

Here, the ALJ heard the conflicting evidence offered by the parties and found that there was a pervasive, hostile working environment for black officers in Bellwood’s employ. The first black officer on the force found documents labeled “Nigger Application for Employment” in his mailbox at the police station. The chief of police was aware of these documents but took no action. Moreover, racially derogatory cartoons frequently were posted on the bulletin boards in the roll-call room. These cartoons were in the plain sight of the chief of police and other supervisory officers, but no action was taken. Additionally, a poster with racially derogatory comments written on it was displayed for several weeks in the locker room. Despite Kincaid’s complaints, the poster remained up.

The ALJ found that the racially hostile atmosphere prevented Kincaid from getting needed guidance from his fellow officers. It was the duty of Bellwood’s patrolmen and officers to teach police skills to probationary officers. Nonetheless, several white members of the police force refused to ride with Kincaid. The ALJ also found that Kincaid was denied credit for arrests, with this credit instead being given to white officers. Finally, the ALJ determined that Kincaid received unjustly poor evaluations from three sergeants because of his race. The ALJ noted that despite Kincaid’s complaints to Eastham about these evaluations, Eastham took no action. The ALJ concluded that the racially charged atmosphere at the Bellwood police department amounted to racial harassment, and thus, constituted discrimination based upon race within the meaning of the HRA.

We have reviewed the record and find that there is adequate support for the ALJ’s conclusions. Kincaid was subjected to a continuous stream of racially derogatory comment, in one form or another, from the officers at the Bellwood police department. The supervising officers were aware of the problem, but took no action to correct it, and, in fact, on some occasions contributed to it. We believe this is exactly the type of racial harassment which the HRA seeks to prevent.

Kincaid’s inability to recall specifically the jokes which he heard or the details of the cartoons which were posted does not defeat his claim that he was the victim of racial harassment. Nor does the fact that the cartoons were not posted on a daily basis or that the offensive “Ragtime” poster eventually was removed mitigate the racially hostile atmosphere engendered by their presence. Finally, we are unpersuaded by Bellwood’s claim that racial discrimination cannot be found where a black officer, Williams, did successfully complete the probationary period. Williams testified that he chose not to report the racially derogatory comments which he heard. Moreover, Williams had the benefit of several years’ experience with a different police department. The Bellwood officers’ “silent treatment” of Williams did not substantially impair his ability to become a capable police officer. Williams’ tolerance of the racially derogatory atmosphere does not alone disprove Kincaid’s allegations that the atmosphere was discriminatory.

As the Commission noted in its order and decision, resolution of this case turned on a determination of credibility. We believe the ALJ was in the best position to evaluate the credibility of the witnesses. If the issue before the trier of fact turns on conflicting testimony and the credibility of witnesses, its determination should be sustained. (Brewington v. Illinois Department of Corrections (1987), 161 Ill. App. 3d 54, 513 N.E.2d 1056.) The ALJ chose to accept Kincaid’s version of the facts, and we do not believe that decision is contrary to the manifest weight of the evidence. Thus, Kincaid established a prima facie case by establishing by a preponderance of the evidence that Bellwood engaged in racial harassment.

We additionally believe that Kincaid sufficiently proved a prima facie case of discrimination based on racially motivated discharge. A prima facie case of discrimination based on race may be established by showing that similarly situated employees of a different race were treated more favorably. (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) What constitutes that prima facie case will vary according to the specific claim. (McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) We are not concerned with the harshness of the discipline in itself; rather, we are concerned with whether the discipline was harsher than that imposed on comparable persons of other races. An employer cannot impose different standards of discipline on different races. Loyola University v. Human Rights Comm’n, 149 Ill. App. 3d 8, 500 N.E.2d 639.

Here, Kincaid established that he received disparate treatment from Bellwood. Kincaid was discharged without previous suspension and without any counseling regarding improving his performance. The testimony of various officers established that white officers who were discharged from their probationary positions were given counseling and suspensions before a final determination regarding termination was rendered. In fact, during Eastham’s tenure as chief of police, there had been only three probationary officers other than Kincaid who failed to pass their probationary period, and each of them was treated more favorably then Kincaid before a decision was made to discharge the officer. Thus, Kincaid established a prima facie case of racially motivated discharge by proving by a preponderance of the evidence that he is a member of a protected class who was disciplined in a harsher manner than comparably situated persons of a different race. See Loyola University v. Human Rights Comm’n, 149 Ill. App. 3d 8, 500 N.E.2d 639.

Bellwood claims to have discharged Kincaid for poor report-writing skills, poor attitude toward the public and other officers, inability to find the streets in Bellwood, and inability to perform desk duties. Consequently, Bellwood has successfully articulated a legitimate, reasonable explanation for its discharge of Kincaid and, therefore, has successfully rebutted the presumption of discrimination.

At this point, Kincaid must show that Bellwood’s stated reasons for discharging him are pretextual. Pretext can be demonstrated by showing that a discriminatory motive likely influenced the employer or that the reasons stated by the employer are incredible. (Board of Education v. Illinois Human Rights Comm’n (1985), 135 Ill. App. 3d 206, 481 N.E.2d 994.) We briefly will address each of Bellwood’s stated reasons.

Bellwood claimed that Kincaid was incapable of writing reports which met the department’s standards. Kincaid testified that he rewrote several reports and received compliments on his improved writing skills. After the fall of 1981, Kincaid was not asked to rewrite any report which he filed. It is apparent, therefore, that his report-writing skills had improved to an acceptable level. Moreover, the evidence demonstrated that many members of the department had experienced problems with report writing.

Bellwood also stated that Kincaid was discharged because of his inability to locate streets in Bellwood. Kincaid admitted that when he first started riding in a patrol car, he was not familiar with some of the remote side streets. Nonetheless, when Lieutenant Howard rode with Kincaid, he noted no inefficiency in this area of Kincaid’s performance. Moreover, Kincaid regularly was assigned to ride alone in a patrol car as early as September 1981. It is the policy of Bellwood to prohibit assigning a patrolman to ride alone if that patrolman is not capable of handling the job. Thus, it is reasonable to conclude that Kincaid’s knowledge of the streets of Bellwood was acceptable.

Bellwood additionally indicated that Kincaid often displayed a poor attitude toward the public in that he discriminated on the basis of race when he made traffic stops and when conducting other police business. Kincaid was assigned to patrol a predominantly white area of Bellwood and, accordingly, the majority of his traffic tickets were written for white people. Kincaid used a radar detection system to make many of these traffic stops and could not have detected race when making his initial stop.

Bellwood finally asserted that Kincaid was unable to perform desk duties when required to do so. This inability, however, was mentioned only twice in Kincaid’s written evaluations. Kincaid testified that although he had a few difficulties with desk duties when he first was assigned to the task, he learned the job and was able to handle desk duty as well as any other patrolman.

We believe that Kincaid has adequately refuted each reason articulated by Bellwood. We find that the Commission could reasonably conclude that the ALJ’s finding of pretext was not contrary to the manifest weight of the evidence.

Moreover, we believe that Kincaid has sustained his overall burden of establishing that Bellwood engaged in unlawful discrimination. The record amply reflects an atmosphere charged with racism, ultimately resulting in the racially motivated discharge of Kincaid.

Bellwood finally challenges the propriety of the Commission’s award of damages in the amount of $10,000, attorney fees in the amount of $57,457.60, and costs in the amount of $3,318.37.

We first will address the Commission’s award of damages. Absent an express grant of power, an administrative agency has no power and may not determine damages and award a personal money judgment therefor. (1 Am. Jur. 2d Administrative Law §184, at 988 (1962). See, e.g., Zurek v. Cook County Police & Corrections Merit Board (1976), 42 Ill. App. 3d 1044, 356 N.E.2d 1079.) The ERA provides that, upon finding a civil rights violation, the Commission may direct the respondent to pay actual damages for injury or loss suffered by the complainant. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 108(B).) Although Illinois courts have not directly addressed the issue of the propriety of awarding compensation for nonpecuniary harm in civil rights cases, the language of the statute would seem to permit such damages. Illinois courts have long recognized that actual damages may include compensation for mental suffering. See, e.g., Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157 (damages recoverable for mental anguish occasioned by death threat); Lorillard v. Field Enterprises, Inc. (1965), 65 Ill. App. 2d 65, 213 N.E.2d 1 (actual damages in libel action included damages for mental suffering); Shelton v. Barry (1946), 328 Ill. App. 497, 66 N.E.2d 697 (damages for humiliation recoverable in action for false imprisonment).

Moreover, courts in other States with civil rights legislation similar to that found in Illinois have awarded compensation for such harm. (See, e.g., Buckley Nursing Home, Inc. v. Massachusetts Comm’n Against Discrimination (1985), 20 Mass. App. 172, 478 N.E.2d 1292 (Massachusetts); Joplin v. Missouri Comm’n on Human Rights (Mo. 1982), 642 S.W.2d 370 (Missouri); Rogers v. Campbell Foundry Co. (1982), 185 N.J. Super. 109, 447 A.2d 589 (New Jersey); State Division of Human Rights v. State (1982), 90 A.D.2d 51, 456 N.Y.S.2d 63 (New York); Fred Meyer, Inc. v. Bureau of Labor (1979), 39 Or. App. 253, 592 P.2d 564 (Oregon).) Additionally, Federal courts considering analogous claims have awarded such damages. (See, e.g., Hunter v. Allis-Chalmers Corp. (7th Cir. 1986), 797 F.2d 1417; Carter v. Duncan-Huggins, Ltd. (D.D.C. 1984), 727 F.2d 1225.) In view of these decisions and our own jurisprudence in the area of damages, we find that the term “actual damages” in the context of the HRA contemplates compensation for emotional harm and mental suffering caused by a violation of the HRA. We caution, however, that an award of damages under such circumstances must be kept within reasonable parameters.

We find that the $10,000 award here was not unreasonable. The conduct demonstrated was opprobrious, continuous, and outrageous. The Commission had ample evidence before it to show that Kincaid was deprived of employment and sustained much emotional harm as a result of that conduct. Accordingly, we hold that the award of $10,000 was not excessive, and we will not disturb it.

Bellwood finally contends that the Commission erred in its award of attorney fees and costs. Bellwood maintains that the hourly rate charged by Kincaid’s attorney is excessive based upon the prevailing market rates in the relevant community.

The HRA provides that, upon the finding of a civil rights violation, the Commission may order the respondent to pay to the complainant all or a portion of the costs of maintaining the suit, including reasonable attorney fees. (Ill. Rev. Stat. 1983, ch. 68, par. 8 — 108(G).) A reviewing court will not vacate an award of attorney fees absent a showing of abuse of discretion in making the award. Loyola University v. Human Rights Comm’n, 149 Ill. App. 3d 8, 500 N.E.2d 639; Lurie v. Canadian Javelin Ltd. (1982), 93 Ill. 2d 231, 443 N.E.2d 592.

Here, Kincaid’s counsel provided competent evidence of its actual rate as well as the actual hours which it devoted to this case. Bellwood’s counsel provided evidence of countervailing market rates. The ALJ considered this evidence and, after certain adjustments, awarded Kincaid’s counsel the requested fees. The Commission found that the amount which the ALJ ordered Bellwood to pay to Kincaid for his attorney fees is not unreasonable. In view of the success of the claim, the benefit to Kincaid, and the nature of the controversy, we believe the Commission’s award of fees was proper. We agree with its decision insofar as it directs Bellwood to pay attorney fees and costs for the preappeal work.

Kincaid requests this court to additionally award him appellate attorney fees and costs. This court held in Johnson v. Human Rights Comm’n (1988), 173 Ill. App. 3d 564, 527 N.E.2d 883, that under the pre-1987 HRA, an award of fees and costs for appellate representation is not authorized. We adhere to that holding, and accordingly, deny Kincaid’s request for fees and costs of appellate representation.

For the foregoing reasons, the decision of the Commission is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.

       Justice McNamara participated in this opinion prior to his assignment to the Sixth Division.


author: JUSTICE LINN

text:
    FAITH WHITAKER, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    First District (4th Division)
    No. 1—88—1804
    Opinion filed April 13, 1989.
    — Rehearing denied June 28, 1989.

      Arvey, Hodes, Costello & Burman, of Chicago (Rosemarie J. Guadnolo and Joseph J. Hahn, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield, and Siegan, Barbakoff & Gomberg, of Chicago (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, and Norman P. Jeddeloh, of counsel), for respondents.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner, Faith Whitaker, filed a charge with the Illinois Department of Human Rights challenging her termination from employment with the University of Illinois (the University). Following a hearing, the administrative law judge (ALJ) recommended dismissal of the complaint on the grounds that it was not timely filed. The Human Rights Commission (Commission) adopted the ALJ’s recommendations and dismissed the complaint. Subsequently, the Commission denied Whitaker’s request for rehearing before the full Commission. Whitaker then filed the pending petition for review with this court.

Whitaker challenges the dismissal on several grounds. She asserts that the Commission erred in finding the 180-day filing requirement to be jurisdictional. She urges this court to construe the requirement as a statute of limitations subject to a discovery rule and other equitable tolling doctrines. In addition, Whitaker contends that the ALJ’s conclusions of law are inconsistent with her findings of fact and therefore are arbitrary and against the manifest weight of the evidence.

We affirm the decision of the Human Rights Commission.

Background

Faith Whitaker, a black woman, began working for the University of Illinois in Chicago in 1976, starting as a clerk typist II. In the next few years she received promotions and favorable work evaluations.

In 1980 Faith Whitaker was again promoted, this time to a position titled “Housing Administrator II.” She worked at the University’s student housing office, assigning students to rooms, supervising the clerical staff in the housing office, establishing procedures and advising students regarding matters handled by the housing office. Her duties were 50% administrative and 50% clerical.

In July 1982 William Schnackel became the University’s director of housing and Whitaker’s supervisor. In September of that year Schnackel hired Jo Ann Campbell as resident director. Campbell is white. Whitaker trained Campbell to perform most of the duties that she had been performing. Campbell was additionally responsible for all, aspects of residents’ lives in the women’s residence hall and student residence hall. In the fall of 1982, Schnackel reassigned the duty of making room assignments from Whitaker to Campbell. In April 1983 Schnackel reassigned the remainder of Whitaker’s administrative duties to Campbell and directed Whitaker to perform clerical functions.

In early 1983 Whitaker responded to a confidential questionnaire, stating that she was dissatisfied with the general climate of racism in the housing office and also expressing dissatisfaction with the reduction of her administrative duties.

On June 23, 1983, Schnackel told Whitaker that she was to be laid off in 30 days because of budgetary problems and because her position was no longer “appropriate.” Whitaker could find no comparable job opportunities at the University’s personnel office. Accordingly, Whitaker submitted her letter of involuntary resignation on June 29, 1983.

On July 19, 1983, Campbell was named area director of the housing office. With that position she was given responsibility for the single student residence hall, a hall previously managed by a person who had served as a part-time housing administrator II.

In July 1983 Whitaker described her termination to the Chicago office of the Equal Employment Opportunity Commission (EEOC). An intake clerk told her that the University acted within its rights in phasing out her position and that the computer would not accept her complaint.

In September 1983 Whitaker learned from former coworkers that Campbell had been named area director on July 19, 1983. In January 1984, "Whitaker learned that Campbell’s title had been changed again, to area coordinator.

According to Schnackel, even before he came to the University he had determined that a live-in professional staffer, titled “Resident Director,” would be necessary to improve the living situation in the residence halls. He was looking for certain qualifications, such as a degree and education in counseling, student personnel or business administration. Schnackel stated that the change in staffing was part of his reorganization of the housing office.

Neither the ALJ nor the Commission reached the merits of Whitaker’s discrimination charge because they believed that the charge was not timely filed under the 180-day filing provision of the Human Rights Act. (Ill. Rev. Stat. 1983, ch. 68, par. 7 — 102(A)(1).) Under this provision, “[w]ithin 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the [Illinois Department of Human Rights] by an aggrieved party or issued by the Department itself under the signature of the Director.” Ill. Rev. Stat. 1983, ch. 68, par. 7 — 102(A(1).

Opinion

I

A

Whitaker involuntarily resigned on June 23, 1983, but did not file her charge with the Department until February 16, 1984, nearly eight months later. If the 180-day period is read as an absolute deadline Whitaker’s filing is obviously untimely. Even if the 180-day period is subject to a discovery rule, estoppel, or other equitable doctrine, the record must contain sufficient supporting facts to toll the filing period.

Under existing Illinois law, the 180-day period in section 7— 102(A)(1) has been deemed to be jurisdictional, which means that filing within 180 days after the date of the alleged discrimination is a prerequisite for maintaining suit. (Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746; cf. Gonzalez v. Human Rights Comm’n (1989), 179 Ill. App. 3d 362, 369 n.2.) If the section were construed as a statute of limitations instead of a jurisdictional prerequisite, equitable tolling, waiver, and estoppel would be available under appropriate circumstances to excuse or extend the filing time period. (Gonzalez (1989), 179 Ill. App. 3d 362; Zipes v. Trans World Airlines, Inc. (1982), 455 U.S. 385, 393, 71 L. Ed. 2d 234, 243, 102 S. Ct. 1127, 1132.) Even under the Pickering rationale, which holds the time limit to be jurisdictional, a narrow exception is recognized where the agency’s misleading conduct causes the claimant to miss the deadline. (See also Lee v. Human Rights Comm’n (1984), 126 Ill. App. 3d 666, 467 N.E.2d 943.) Hence, estoppel has been recognized as a valid exception to the 180-day requirement.

Both the ALJ and the Commission followed Pickering insofar as it held the statute to be jurisdictional. Both further found that Whitaker did not present facts to sustain an estoppel exception because she had knowledge of the facts necessary to make her charge within the 180-day period and therefore was not misled by the University. Accordingly, they held that her filing was untimely and dismissed the complaint.

On appeal, Whitaker contends that Pickering’s statutory construction of section 7 — 102(A)(1) is erroneous. Nevertheless, she attempts to distinguish or harmonize the decision with her theory that she had no charge to file until she discovered all of the pertinent facts surrounding her discharge. Whitaker contends that she “faced the paradoxical requirement” in section 7 — 102 of filing a sufficiently detailed charge (because she lacked certain information at the time of discharge) and at the same time meeting the 180-day period. She asserts that she could not, as required by section 7 — 102(A)(2), “apprise any party properly concerned as to the time, place and facts surrounding the alleged civil rights violation” unless she first had knowledge of these facts. She claims that she was unaware of the full facts until September 1983 or later. Accordingly, she timely filed her charge within 180 days from her discovery of the pertinent facts.

Although discovery rules have been applied to statutes of limitation, we need not debate the merits of such a rule because we believe that Whitaker has failed to establish that there were any material facts of which she lacked knowledge at the time of her discharge. Indeed, the transfer of her duties to Campbell had been completed before Whitaker left the University. Moreover, the pleading requirement of the Act is quite liberal in that the Department rules and regulations allow amendments to “clarify or amplify allegations made therein” and such amendments “relate back to the original filing date.” (Gonzalez v. Human Rights Comm’n (1989), 179 Ill. App. 3d 362, 370.) Hence, if she had pleaded the facts as she knew them upon her discharge and timely filed a charge, she could have later amended it to add those facts that she felt amplified her claim.

In the pending case, to establish the four elements of a prima facie case of discrimination Whitaker would have to prove that she is a member of a minority group; had been performing her job satisfactorily; was terminated; and was replaced by a white person. (See Pioneer Life Insurance Co. v. Woodard (1987), 152 Ill. App. 3d 236, 242-43, 504 N.E.2d 230, 235.) Whitaker admits that she could have stated the first three elements but argues that she lacked knowledge that she was replaced by a white person until September 1983 or January 1984.

We cannot agree. After the evidentiary hearing the ALJ found, in essence, that Whitaker was on notice that Campbell was taking over substantially all of her duties before she left. The ALJ found immaterial the mere fact that Campbell was given different titles after Whitaker left because it was Campbell’s function, not title, that determined whether and when she had replaced Whitaker.

The ALJ found that Whitaker knew that her administrative functions were being transferred to Campbell as early as the fall of 1982. Whitaker’s training of Campbell and the transfer of her duties continued throughout the spring of 1983. By the time of her termination in June, all of these duties had been transferred and Whitaker’s position had become superfluous.

Under these facts Whitaker cannot reasonably deny that she was aware of what was happening. Schnackel openly hired Campbell and transferred Whitaker’s duties to her. Further, Whitaker had complained in the questionnaire of what she perceived to be an atmosphere of racial discrimination. We cannot speculate whether Schnackel’s actions were racially discriminatory or whether, assuming Whitaker established a prima facie case, Schnackel could have justified his actions to defeat the assertion that the reasons for her termination were a pretext for discrimination. We do find, however, that Whitaker had all of the material facts relating to her claim by the time she was discharged. In fact, the ALJ found that “the crux of [her] case, as presented at hearing, was that she was a good employee who was not given an opportunity by a new administrator, Mr. Schnackel, before being replaced by a white employee, Ms. Campbell.”

The Commission adopted the ALJ’s factual findings as not being against the manifest weight of the evidence. Additionally, the Commission considered her legal arguments to the effect that Pickering misconstrued the law and that Federal court decisions give a more liberal interpretation to the analogous filing provisions under the EEOC. Significantly, the Commission noted that “in light of the factual findings of the [ALJ], [Whitaker’s] case would have to be dismissed even if the more liberal standards of the federal law were applied.” The Commission further agreed with the ALJ that Whitaker failed to come within Pickering’s estoppel exception to the 180-day jurisdictional deadline.

We have reviewed the record, including the lengthy legal arguments presented by the parties. We find ample support for the ALJ’s findings and conclusions and agree with the Commission that they are not against the manifest weight of the evidence.

B

Because most of the legal argument concerning Pickering’s interpretation of section 7 — 102(A)(1) is collateral to the issue before us, we decline to rule that the filing period is either jurisdictional or a statute of limitations. (See Gonzalez v. Human Rights Comm’n (1989), 179 Ill. App. 3d 362.) Our decision in the pending case does not mean that a discovery rule or other equitable doctrine could never be applied to toll the 180-day period of the Act. We simply find no basis in this case to apply such a doctrine.

II

Whitaker also contends that the ALJ’s findings were inconsistent with her legal conclusions and therefore were arbitrary. Whitaker states that three findings of the ALJ conflict with one another: (1) that Whitaker had trained Campbell over a period of months before Whitaker’s discharge; (2) that one month after her termination she attempted to file a charge with the EEOC but was told that she had no claim; and (3) that Schnackel told Whitaker that she was fired due to budgetary constraints. Whitaker asserts that if she had had sufficient facts to file a proper charge with the EEOC she would have disclosed these facts and, presumably, the EEOC would then have accepted her charge.

It is unclear how these findings of the ALJ are inconsistent or conflicting. Moreover, we find no particular significance in the fact that Whitaker unsuccessfully attempted to file a charge with the EEOC shortly after her termination. The crux of her charge then — that her duties were transferred to a white woman — could not have been significantly different from the charge she attempted to assert after the 180-day filing period under the Elinois Act. Her argument that she was not actually “replaced” until after she was terminated is strained, at best.

We conclude that Whitaker received a full evidentiary hearing on the question of whether she had sufficient facts at her disposal to file a timely charge with the Illinois Department of Human Rights. Under the facts presented, Whitaker’s complaint was properly dismissed because of her unexcused failure to file her charge within the statutory time limit. Accordingly, we affirm the order of the Commission.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE McMORROW

text:
    THE BOARD OF TRUSTEES OF PRAIRIE STATE COMMUNITY COLLEGE, DISTRICT 515, Plaintiff-Appellant, v. PRAIRIE STATE COLLEGE FEDERATION OF TEACHERS, LOCAL 3816, IFT-AFT, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—86—3527
    Opinion filed April 20, 1989.
    — Modified on denial of rehearing June 29, 1989.

      David P. Kula and Joann P. Schochat, both of Scariano, Kula, Ellch & Himes, of Chicago Heights, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Randi C. Hammer, of Illinois Educational Labor Relations Board, and Gilbert Feldman, of Cornfield & Feldman, both of Chicago (Grace Allen Newton, Assistant Attorney General, of Chicago, of counsel), for appellees.
    Winston & Strawn, of Chicago, for amicus curiae.

   JUSTICE McMORROW

delivered the opinion of the court:

Citing economic necessity for a reduction in faculty personnel in accordance with section 3B — 5 of the Public Community College Act (Ill. Rev. Stat. 1985, ch. 122, par. 103B — 5), the Board of Trustees of Prairie State Community College, District 515 (the Trustees) honorably discharged Lee Albrecht and Al Bieker from employment as faculty members at the college at the end of the 1985-86 school year. In an attempt to regain their employment or similar relief, both teachers unsuccessfully pursued the grievance procedures set forth in the collective bargaining agreement between the Trustees and the Prairie State College Federation of Teachers (the Union). Thereafter the Trustees refused the Union’s demand that the grievances be submitted to binding arbitration, and the Union filed an unfair labor practice charge with the Illinois Educational Labor Relations Board (the Board), alleging that the Trustees’ refusal to submit the matters to binding arbitration was an unfair labor practice under the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1700 et seq.).

The Trustees filed suit in the circuit court of Cook County against the Union, the two faculty members, and the Board, seeking a judicial determination that the Trustees’ collective bargaining agreement with the Union did .not provide for binding arbitration of the faculty members’ grievances. The Trustees also sought an injunction to preclude the Board from proceeding on the Union’s charge that the Trustees’ refusal to submit the faculty members’ grievances to binding arbitration amounted to an unfair labor practice under the Illinois Educational Labor Relations Act. The trial court dismissed the Trustees’ complaint on the ground that the court lacked subject matter jurisdiction over the questions raised in the Trustees’ complaint and the Trustees appeal. We affirm.

The question presented in this appeal — whether the Illinois Educational Labor Relations Act divests the circuit court, and confers upon the Board, the jurisdiction to determine whether an employment dispute is arbitrable under a public educational collective bargaining agreement — was recently resolved by the Illinois Supreme Court in Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 50U (1989), 128 Ill. 2d 155. In Warren Township, the court determined, in accordance with its reasoning in Board of Education v. Compton (1988), 123 Ill. 2d 216, that under the Act, it is the Board, rather than the circuit court, that has exclusive jurisdiction to determine whether a teacher’s grievance is subject to arbitration under a collective bargaining agreement.

Based upon the Illinois Supreme Court’s decision in Warren Township, we must conclude herein that the Illinois legislature intended to place in the Educational Labor Relations Board exclusive jurisdiction to determine the arbitrability of a grievance pursuant to a public educational collective bargaining agreement. One of the foremost purposes for adoption of the Act, and thus the creation of the Board, is “to regulate labor relations between educational employers and educational employees, including *** resolution of disputes arising under collective bargaining agreements.” (Ill. Rev. Stat. 1985, ch. 48, par. 1701.) Under the Act, educational employees now have the explicit right to organize and bargain collectively with educational employers. Ill. Rev. Stat. 1985, ch. 48, par. 1703.

This right to collective bargaining includes entitlement to a written collective bargaining agreement that contains “a grievance resolution procedure which shall apply to all employees in the unit and shall provide for binding arbitration of disputes concerning the administration or interpretation of the agreement.” (Ill. Rev. Stat. 1985, ch. 48, par. 1710(c).) The wrongful failure to submit a matter to binding arbitration, and the improper refusal to abide by a binding arbitration award, may both be unfair labor practices. See Ill. Rev. Stat. 1985, ch. 48, par. 1715; Warren Township, 128 Ill. 2d at 162.

Although public employees generally are accorded similar rights in the Public Labor Relations Act, their collective bargaining agreements “shall provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless mutually agreed otherwise.” (Ill. Rev. Stat. 1985, ch. 48, par. 1608.) Under these circumstances, the Uniform Arbitration Act applies, unless otherwise agreed by the parties. (Ill. Rev. Stat. 1985, ch. 48, pars. 1606, 1607.) Also, the Public Labor Relations Act states that upon the exhaustion of the nonjudicial remedies of grievance and binding arbitration, public employees may apply to the circuit court for redress for breach of the collective bargaining agreement. (Ill. Rev. Stat. 1985, ch. 48, par. 1616; see also Ill. Rev. Stat. 1985, ch. 48, par. 1610 (unfair labor practices).) Under the Illinois Educational Labor Relations Act, however, “the circuit courts’ only roles *** are to enforce Board-issued subpoenas [citation], to enjoin or prevent strikes by educational employees where such strikes pose a danger to the public health or safety [citation], and to enforce Board orders during and after unfair labor practice hearings [citation].” Warren Township, 128 Ill. 2d at 165.

Policy considerations for the creation of the Illinois Educational Labor Relations Board and the scope of its powers enumerated in the Act, which recognize the need for certain limitations upon administrative review of the Board’s decisions as well as judicial resolution of the extent of the Board’s authority, are also significant to this conclusion. As the court stated in Warren Township, “To allow the parties in school labor disputes to freely seek circuit court intervention would disrupt the statutory scheme. In fact, the dangers of such intervention are apparent ***. Conflicts [such as an] unseemly tug-of-war between the Board and the circuit court for jurisdiction ***, culminating in a final injunction against the Board proceeding, cannot and should not be encouraged.” 128 Ill. 2d at 165.

The instant cause could have resulted in similar circumstances had the able circuit court judge not dismissed the Trustees’ complaint in this matter. We would also note that the dispute between the parties in the case at bar has been subject to appellate review in another district with respect to the Board’s determination that the teachers’ grievances here are subject to binding arbitration; the appellate court concluded in that appeal that the circuit court lacks jurisdiction to determine the arbitrability of the teachers’ grievances under the public educational collective bargaining agreement at issue here. Board of Trustees, Prairie State College v. Illinois Educational Labor Rela tions Board (1988), 173 Ill. App. 3d 395, 527 N.E.2d 538.

For the reasons stated, the order of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.

      Following oral argument in the case at bar, the Illinois Supreme Court allowed the petition for leave to appeal in Warren Township. We therefore entered a hold order in this appeal pending the supreme court’s decision in that cause.