Mendez v. The Town of Cicero

2016 IL App (1st) 150791, 57 N.E.3d 614

• Court: Appellate Court of Illinois
• Decided: June 29, 2016
• Docket: 1-15-0791
• Status: Unpublished

Opinion

2016 IL App (1st) 150791 THIRD DIVISION June 29, 2016

No. 1-15-0791

ELIZABETH MENDEZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 12 L 9049 ) THE TOWN OF CICERO, ) Honorable ) Thomas R. Mulroy, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.

OPINION

¶1 Plaintiff-appellee Elizabeth Mendez filed suit against her employer, defendant-appellant

the Town of Cicero when Cicero retaliated against her for reporting alleged sexual harassment by

the deputy police superintendant towards a subordinate. Specifically, Mendez alleged that she

was transferred from her position as the executive administrative assistant to the police

superintendant to a clerk position in the building department. A jury agreed with Mendez that the

transfer was retaliatory, but did not award monetary relief for Mendez’s alleged emotional

distress and lost future earnings. The court separately ruled on Mendez’s equitable claims that

she was entitled to reinstatement and granted her motion for attorney fees under the Illinois

Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2014)). Cicero contends that the award

of $330,412.09 in attorney fees was excessive given the jury’s determination that Mendez was

not entitled to damages. Finding no error, we affirm. No. 1-15-0791

¶2 Mendez began working for Cicero in 1989, and in 2010, she was employed as executive

administrative assistant to the police superintendant. On May 21, 2010, she observed the deputy

superintendant sexually harass a coworker. She reported what she had seen on May 24, 2010,

and in September of that year, she received a letter indicating that the town had investigated and

had taken appropriate action. Approximately three months later, the new police superintendant,

who took office in November 2010, informed Mendez that she was being transferred to the

building department as a clerk, where she would continue to receive the same salary and

benefits.

¶3 Mendez filed a complaint with the Illinois Department of Human Rights (IDHR) in

January 2011, alleging sexual harassment and retaliation in the form of a disciplinary warning

and a transfer. The IDHR dismissed the sexual harassment and retaliatory discipline claims for

lack of jurisdiction, but recommended a finding of substantial evidence for the retaliatory

transfer claim.

¶4 In August 2012, Mendez filed suit against Cicero, along with town president Larry

Dominick, police superintendant Bernard Harrison, and human resources director Derek

Dominick (Larry’s son), alleging sexual harassment and retaliation in violation of the Act, as

well as a violation of the Whistleblower Act (740 ILCS 174/15) (West 2014)). She sought

punitive and compensatory damages as well as back pay, front pay, lost future wages,

prejudgment interest and attorney fees and costs. In addition to monetary damages, Mendez also

sought reinstatement to her former position.

¶5 Mendez amended her complaint in October 2012 to include allegations of harassment and

a hostile work environment in her new position in the building department, allegations which

were also pending before the IDHR as of October 15, 2012.

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¶6 As the parties began to litigate these issues, they simultaneously embarked on settlement

negotiations. Mendez initially proposed two options: (1) monetary relief of $200,000, along with

removal of all “disciplinary documents” from Mendez’s personnel file, and a return to either her

previous position or a comparable position within the police department with a salary of

$60,000; or (2) damages of $550,000, along with removal of “disciplinary documents” from

Mendez’s personnel file and maintenance of Mendez’s current work schedule in the building

department. Cicero countered with an offer of $10,000, which Mendez rejected.

¶7 Negotiations resumed shortly before trial in July 2014. Cicero offered $75,000 without

Mendez’s resignation or $150,000 with her resignation, while Mendez’s final demand was

$300,000 for a release of all claims, or $1 million for her resignation. As the parties did not reach

an agreement, trial proceeded in August 2014, at which point the only charge pending was

against Cicero for the retaliatory transfer. (The other counts and defendants had been dismissed

either voluntarily or involuntarily).

¶8 At trial, the issues of liability as well as compensatory damages for emotional harm and

lost wages were presented to the jury and Mendez’s claim for equitable relief in the form of

reinstatement was reserved for the court. Mendez asked the jury for damages in the amount of

$150,000 for emotional distress and $30,000 for lost future earnings. The jury found in favor of

Mendez on the retaliation claim, but declined to award monetary damages for emotional distress

or long-term economic injury.

¶9 Following the conclusion of trial, on August 27, 2014, Mendez moved for equitable relief

from the court, asking to be reinstated to her former position as executive administrative assistant

to the police superintendant, and for back pay in the amount of $34,982, which represented the

amount she earned in overtime or “additional pay” per year in her former position. The court

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ordered briefing on the motion and further instructed the parties to discuss the practicability of

reinstating Mendez to her former position.

¶ 10 While briefing proceeded on Mendez’s motion for equitable relief, on November 13,

2014, Cicero, without consulting Mendez, unilaterally transferred her not to her former position,

but to the position of executive assistant to the commander of the gang crime tactical unit,

effective November 17. The position offered the same salary and benefits as her current position

in the building department. Cicero explained that Mendez’s former position as executive

administrative assistant to the police superintendant had been filled by the former executive

assistant to the commander in the gang crime unit, who happened to be the sister of the police

superintendant. The next day, Mendez filed an emergency motion to maintain the status quo,

which the trial court granted, ordering that Cicero allow Mendez to remain in her current position

in the building department until Mendez’s motion for equitable relief was decided.

¶ 11 The court held a hearing on Mendez’s motion in December 2014 and ultimately held that

Mendez was entitled to reinstatement as executive administrative assistant to the police

superintendant. However, as that position was currently held by the police superintendant’s

sister, the parties reached an agreement that Mendez would instead be transferred to the position

of executive assistant to the commander in the gang crime unit, the same position to which

Cicero unilaterally proposed to transfer Mendez earlier. The court denied Mendez’s request for

back pay, as well as her request that she receive a $10,000 salary increase in her new position,

commensurate with what the current executive administrative assistant to the police

superintendent was currently earning.

¶ 12 Following the court’s resolution of all claims, Mendez’s counsel filed a petition for

attorney fees in the amount of $346,337 and costs of $20,198. After briefing by the parties and a

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hearing, the circuit court awarded Mendez’s counsel $314,489 in fees and $15,923.09 in costs,

deducting (1) costs of $4274.91 for in-house copying, in-house faxes, and the use of Westlaw;

(2) fees of $15,993.50 for various depositions in support of Mendez’s 2012 IDHR charge of

continuing harassment and a hostile work environment in the building department; and (3) fees

of $15,854.50 for litigating claims against Larry and Derek Dominick as individual defendants

and the claim arising out of the Whistleblower Act. The trial court denied Cicero’s request to

reduce the fees by 90% to account for what the town characterized as Mendez’s “nominal”

success.

¶ 13 ANALYSIS

¶ 14 The sole issue on appeal is the reasonableness of the circuit court’s award of attorney

fees. Pursuant to the Act, a court may, in its discretion, award attorney fees and costs to the

prevailing party. 775 ILCS 5/10-102(C)(2) (West 2014). The purpose of this provision is to

ensure proper representation of complainants and to enforce the important public policies in the

Act. See Rackow v. Human Rights Comm’n, 152 Ill. App. 3d 1046, 1064 (1987); see also Mathur

v. Board of Trustees of Southern Illinois University, 317 F.3d 738, 743 (7th Cir. 2003) (“Fee-

shifting statutes in civil rights legislation are intended to allow litigants access to attorneys who

would otherwise be inaccessible, given the low retainers many plaintiffs can afford.”).

¶ 15 Initially, the parties dispute the standard of review. The Act provides that the allowance

of attorney fees and costs is in the discretion of the court (775 ILCS 5/10-102(C)(2) (West

2014)), and indeed, our supreme court has applied an abuse of discretion standard when

reviewing a fee award (Raintree Health Care Center v. Illinois Human Rights Comm’n, 173 Ill.

2d 469, 494 (1996)). A court abuses its discretion if its decision is arbitrary, fanciful, or

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unreasonable. Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 61 (quoting

Schmitz v. Binette, 368 Ill. App. 3d 447, 452 (2006)).

¶ 16 Nevertheless, Cicero asks us to review the court’s decision de novo, arguing that the court

failed to consider relevant legal principles, specifically, the Supreme Court decisions of Farrar v.

Hobby, 506 U.S. 103 (1992), and Hensley v. Eckerhart, 461 U.S. 424 (1983). But a court’s

failure to apply correct legal principles does not preclude us from reviewing for an abuse of

discretion. See, e.g., Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d 15, 24 (2009)

(“A circuit court abuses its discretion when it makes an error of law.”). And in any event, there

was no such failure here. In its written decision, the court cited Hensley, as well as Briggs v.

Marshall, 93 F.3d 355, 361 (7th Cir. 1996), which in turn cited Farrar. It does not follow that

because the court did not explicitly outline its application of the principles detailed in Farrar and

Hensley, the court ignored them. Thus, we reject Cicero’s request for de novo review and instead

review for an abuse of discretion.

¶ 17 Cicero contends that the court’s award was unreasonable given that Mendez obtained

what Cicero characterizes as “nominal” or de minimis relief and seeks vacatur of the court’s

order, or, alternatively, a reduction of 80% to 90% in the fees awarded. According to Cicero, a

nominal victor is entitled to, at most, a minimal fee award, and may not be entitled to attorney

fees at all. See Farrar, 506 U.S. at 114-15 (degree of a plaintiff’s success is most important

factor in determining reasonableness of attorney fees). 1 We disagree.

¶ 18 First, the Seventh Circuit recently observed that the argument that fees should be

proportional to the plaintiff’s damages is “losing favor.” Anderson v. AB Painting &

1 Mendez correctly notes that we are not bound by federal decisions, but they can provide guidance and serve as persuasive authority. See People v. Haywood, 407 Ill. App. 3d 540, 546 (2011). Indeed, we have routinely looked to federal law in reviewing a circuit court’s award of attorney fees. See, e.g., Brewington v. Illinois Department of Corrections, 161 Ill. App. 3d 54, 63-65 (1987); Becovic v. City of Chicago, 296 Ill. App. 3d 236, 240-42 (1998); Country Mutual Insurance Co. v. Styck’s Body Shop, Inc., 396 Ill. App. 3d 241, 252-54 (2009).

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Sandblasting Inc., 578 F.3d 542, 545 (7th Cir. 2009). The court explained that fee-shifting

provisions are meant to ensure that “even small violations of certain laws” are checked through

private litigation. Id. And given that litigation is expensive, “it is no surprise that the cost to

pursue a contested claim will often exceed the amount in controversy.” Id. But that is the purpose

of fee-shifting: it ensures that meritorious claims are not abandoned because of the prospect of

obtaining minimal monetary damages. Id. In other words, “fee-shifting ‘helps to discourage petty

tyranny.’ ” Id. (quoting Barrow v. Falck, 977 F.2d 1100, 1103 (7th Cir. 1992)).

¶ 19 Second, and more importantly, we do not agree that Mendez, like the Farrar plaintiffs,

obtained only a nominal victory. The plaintiffs in Farrar sought $17 million in damages but

ultimately obtained only $1 after a jury found that the defendant had committed an unspecified

violation of the plaintiffs’ civil rights. Farrar, 506 U.S. at 106-07. In contrast, here a jury

specifically found that Cicero transferred Mendez in retaliation for reporting sexual harassment

of another employee. Then, the court ordered her reinstated from her position as a “clerk” in the

building department to her prior position as executive administrative assistant to the police

superintendant. Ultimately, Mendez accepted the position of executive assistant to the

commander of the gang crime unit. This was a significant boon, as she was restored to her

former title in a position comparable to that which she occupied prior to her retaliatory transfer.

While Mendez did not obtain a money judgment, the Commission has previously noted that the

purpose of the Act is not necessarily to provide monetary relief (see Brewington, 161 Ill. App. 3d

at 66-67), and Mendez’s reinstatement vindicated her right under the Act to be free from

retaliation for reporting sexual harassment. See 775 ILCS 5/6-101 (West 2014).

¶ 20 In an attempt to minimize the significance of Mendez’s victory, Cicero argues that

Mendez initially refused to accept its unilateral decision, in November 2014, to transfer her to

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the gang crime unit, and it was only after the court ordered reinstatement that Mendez accepted

the same position. But contrary to Cicero’s contention, we do not view this as an attempt by

Mendez to obtain “exorbitant” attorney fees. Indeed, by the time Cicero attempted to short-

circuit the hearing on Mendez’s request for reinstatement, Mendez had already succeeded at trial

in proving that her transfer was retaliatory and it is apparent that the vast majority of Mendez’s

fees had already been accrued. Thus, Mendez’s refusal to accede to the town’s unilateral and

belated effort to transfer her had little effect on the fee award to which she was entitled.

¶ 21 Significantly, in her motion to obtain equitable relief, Mendez did not solely seek

reinstatement, but also back-pay, which Cicero’s attempt to transfer her did not address. Mendez

also sought a salary commensurate with that paid to the current executive administrative assistant

to the police superintendant. By rejecting Cicero’s unilateral transfer decision and proceeding to

an evidentiary hearing, Mendez had the opportunity to argue for these additional benefits. While

the court ultimately declined to provide her with that relief, she successfully negotiated the

movement of her workspace from “a cubicle in a closet” to an office next to the deputy

superintendant. Transferring an employee from a position carrying the title executive

administrative assistant to one denoted as a “clerk,” and from an office to a “cubicle in a closet”–

even if the new position entails no change in pay–is precisely the type of “petty tyranny” that the

Act is designed to discourage. See Barrow, 977 F.2d at 1103. Thus, we cannot conclude that

Mendez’s refusal to accept Cicero’s unilateral decision to transfer her was a pretext to inflate

attorney fees and costs.

¶ 22 Nor do we agree with Cicero that this case is akin to Buckhannon Board & Home Care,

Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). There,

the Court held that the plaintiff was not entitled to attorney fees because the West Virginia

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legislature voluntarily made changes that remedied the Fair Housing Act and Americans with

Disabilities Act violations the plaintiff alleged in its suit. Id. at 604-05. In other words, because

the court did not provide the plaintiff with any relief, the plaintiff was not a prevailing party

entitled to fees and costs. Id. at 605. Here, however, Mendez, having proved her retaliatory

transfer claim, was clearly a prevailing party, and Cicero’s unilateral decision to transfer her to

the position of executive assistant to the commander of the gang crime unit still did not provide

Mendez with all the relief she sought, which included back-pay, a salary increase, and relocation

of her workspace. See supra ¶ 21.

¶ 23 Of course, the fact that Mendez obtained more than a de minimis victory does not

necessarily mean she is entitled to the entire amount of fees claimed. Rather, after calculating the

amount of hours spent on the litigation and multiplying by the reasonable hourly rate, the court

may consider other factors, such as the novelty and difficulty of the legal question, the time and

labor required, the skill necessary to perform the legal services properly, the plaintiff’s failure to

prevail on claims unrelated to the successful claims, and the amount involved and the results

obtained. Hensley, 461 U.S. at 437; see also Brewington, 161 Ill. App. 3d at 64-66; Berlak v.

Villa Scalabrini Home for the Aged, Inc., 284 Ill. App. 3d 231, 242-43 (1996). Here, the court

carefully considered these factors and reduced the fees claimed by 10%, specifically deducting

fees for time expended on litigating claims against defendants that were ultimately dismissed

from the action prior to trial. The court noted that although the plaintiff was unsuccessful in

obtaining monetary relief, Cicero’s violation of the Act, the court’s award of reinstatement, and

the thorough 3½ years of litigation all supported the remaining $330,412.09 in fees and costs.

Our review of the record confirms the circuit court’s conclusion. Cicero pursued numerous

dispositive motions, filed no less than 10 motions in limine prior to trial, and pursued a motion

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for judgment notwithstanding the verdict following the jury’s adverse judgment on liability. A

defendant who elects to aggressively litigate a claim under the Act is not well-positioned to

criticize the correspondingly greater fees a plaintiff is required to incur to pursue her claims.

¶ 24 We cannot say that the fee award was either arbitrary or fanciful, or that no reasonable

person would agree with the result. See Maggi, 2011 IL App (1st) 091955, ¶ 61. Thus, the trial

court did not abuse its discretion in awarding Mendez fees and costs of $330,412.09, and its

judgment is, therefore, affirmed.

¶ 25 Affirmed.

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