dissenting:
I respectfully dissent. Under section 2520.360(a) of the Department rules, “[a] charge may be amended to cure technical defects or to set forth additional facts or allegations related to the subject matter of the original charge, and such amendments shall relate back to the original fifing date.” 56 Ill. Adm. Code § 2520.360(a) (eff. November 4, 1994). The majority found that the amended retaliation charge did not relate back to the timely filed discrimination charge because the retaliation charge alleged that petitioner was fired in retaliation for complaining to an ITT director that she was treated differently from a fellow white employee, while in the discrimination charge, even though petitioner complained about this disparate treatment, she failed to alleged that she complained to anyone at ITT about the treatment or that she was fired in retaliation for making such a complaint. Therefore, the majority concludes that the retaliation charge does not relate back to the discrimination charge because the subject matter of the discrimination charge was race discrimination whereas the subject matter of the retaliation charge was retaliation. The majority’s finding is based upon its conclusion that a charge that an employee was fired in retaliation for complaining about race discrimination is unrelated to a charge that the employee was fired because of race discrimination. I disagree. A comparison of these two charges clearly shows that the amended retaliation charge set forth additional allegations related to the subject matter of the original discrimination charge — race discrimination.
The problem in this case, as Justice Wolfson pointed out at oral argument, is with the time line. Petitioner’s discrimination charge was based upon disparate treatment in that she was terminated for violating a work-related policy by ordering a calculator, whereas a white co-employee who falsified her time card was not fired. In the retaliation charge, petitioner claimed that she was fired in retaliation for complaining about this disparate treatment. However, when the petitioner complained about her coworker, she had already been fired. In essence, the disparate treatment was the firing itself. Thus, the retaliation charge was a phantom charge that should never have been filed. A person cannot be fired in retaliation for complaining about being fired.
The only thing ostensibly separating the two charges is the Department investigator’s erroneous introduction of the idea of retaliation, which implies two incidents. Here, there was only one incident — the termination. There was no previous act upon which a retaliatory charge could be based. Consequently, it is impossible for the retaliation charge not to relate back to the discrimination charge since they are actually the same charge. A comparison of the discrimination and retaliation charges clearly shows that they are related to the same subject matter of race discrimination.
When the petitioner followed the Department investigator’s advice to withdraw her discrimination charge after the 180-day limitation period had expired, she lost her right to obtain redress under the Human Rights Act. See Pace v. Human Rights Comm’n, 187 Ill. App. 3d 16, 19-20, 542 N.E.2d 1277 (1989). I believe that equitable principles should be applied in this case to enable petitioner’s claim to go forward and be heard on the merits. Specifically, equitable estoppel should be applied. The determination that a statute of limitations is jurisdictional does not preclude application of equitable estoppel under Illinois law. In re Joseph B., Jr., 258 Ill. App. 3d 954, 630 N.E.2d 1180 (1994); Faulkner-King v. Department of Human Rights, 225 Ill. App. 3d 784, 587 N.E.2d 599 (1992); Lee v. Human Rights Comm’n, 126 Ill. App. 3d 666, 669, 467 N.E.2d 943 (1984).
Based upon the interrelationship between the Department and the Commission (Gonzalez v. Human Rights Comm’n, 179 Ill. App. 3d 362, 370, 534 N.E.2d 544 (1989)), the Commission should be estopped from raising the jurisdictional 180-day limitations period as a defense where an unrepresented complainant’s decision to follow the advice of a Department investigator causes the complainant to permanently lose his or her right to file a complaint with the Commission. Therefore, I would reverse and vacate the Commission’s decision to dismiss this action for want of jurisdiction and remand the matter to the Commission for a full hearing on the merits.