specially concurring:
I concur with the majority in affirming the judgment of the trial court and reversing the order of attorney’s fees. I do not believe, however, that the majority adopted the appropriate standard of review in evaluating the findings of the Fair Employment Practices Commission. I must also question the majority’s remand of the case to the Commission to determine the actual pecuniary loss suffered by complainant Tieman.
The majority holds that in reviewing an order of the Fair Employment Practices Commission, the preponderance of the evidence standard must be adopted. It is clear that in making the determination, the majority considered only section 8.01(c) of the Fair Employment Practices Act which states that the hearing examiner or commissioner is to determine whether the respondent has engaged or is engaging in an unfair employment practice with respect to the complainant based on a preponderance of the evidence. (Ill. Rev. Stat. 1975, ch. 48, par. 858.01(c).) However, review of this determination is not to be made by a court, but rather by the Commission itself. Section 8.02 of the Act provides that the Commission shall review the record and may adopt, modify, or reverse in whole or in part the findings and recommendations of the hearing examiner. (Ill. Rev. Stat. 1975, ch. 48, par. 858.02(c).) This section further provides that “[t]he Commission shall adopt the hearing examiner’s findings of fact if they are not contrary to the manifest weight of the evidence.” (Ill. Rev. Stat. 1975, ch. 48, par. 858.02(d).) Section 10 of the Act provides for judicial review of the order of the Commission pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 48, par. 860). Under the Administrative Review Act, “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1975, ch. 110, par. 274.) In accordance with this section it has long been held that findings of fact by an administrative agency may not be set aside unless they are against the manifest weight of the evidence. (Logan v. Civil Service Com., 3 Ill. 2d 81, 119 N.E.2d 754.) Under the terms of the Fair Employment Practices Act, then, the standard of judicial review should be the manifest weight of the evidence standard.
The majority is holding that in fair employment practice cases the review by a court is from the hearing examiner’s findings rather than from the order of the Commission. In addition, it confuses the standard to be applied by the hearing examiner in determining whether a complaint is to be sustained with that which should be used by a reviewing court.
The majority also suggests that the Commission improperly awarded compensatory damages and has remanded the case to the Commission to determine the actual amount of pecuniary loss suffered by complainant. The Commission awarded Tiernan an amount equal to what she would have earned as a fifth grade teacher during the period in question less any amount actually earned with 7 percent interest on the balance. This order states the appropriate formula for determining the exact amount of compensatory damages due complainant. The majority states that the Commission is limited to awarding damages equivalent to the actual pecuniary loss suffered by the victim of an unfair employment practice. This is exactly what the Commission did in this case in prescribing a formula for determining the exact pecuniary loss suffered and I believe the remand in this case will serve no useful purpose, but will in fact delay further an award of just compensation to Linda Tiernan.