NO. 4-06-0445 Filed 8/22/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
) Direct Administrative THE SANGAMON COUNTY SHERIFF'S ) Review of the DEPARTMENT, ) Illinois Human Rights Petitioner-Appellant, ) Commission v. ) No. 1999SF0713 THE STATE OF ILLINOIS HUMAN RIGHTS ) COMMISSION; DONNA FELECCIA, and RON ) YANOR, ) Respondents-Appellees. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Petitioner, the Sangamon County Sheriff's Department
(Sheriff's Department), appeals an order of the Illinois Human
Rights Commission (Commission), finding the Sheriff's Department
strictly liable for respondent Ron Yanor's sexual harassment of
respondent Donna Feleccia. We reverse.
I. BACKGROUND
On June 15, 1999, respondent Donna Feleccia filed a
charge of discrimination with the Illinois Department of Human
Rights (Department of Human Rights) alleging she had been
sexually harassed. On August 19, 1999, Feleccia filed an amended
charge alleging (1) sexual harassment on or about February 1,
1999, with a retaliatory motivation; (2) sexual harassment on or
about February 1, 1999, that "created a hostile, embarrassing,
and intimidating work environment"; and (3) "[d]ifferent terms and conditions continuing to August 18, 1999, because of
retaliation," which occurred at such a time to raise the
inference of retaliatory motivation. Feleccia named petitioner
Sheriff's Department and respondent Ron Yanor as respondents in
the amended charge of discrimination.
On July 18, 2000, the Commission filed a four-count
complaint against the Sheriff's Department and Yanor. Count I
alleged that the Sheriff's Department was an "employer" within
the meaning of section 2-101(B)(1)(b) of the Illinois Human
Rights Act (Act) (775 ILCS 5/2-101(B)(1)(b) (West 2000)) and
Yanor was an "employee" within the meaning of section 2-101(A) of
the Act (775 ILCS 5/2-101(A) (West 2000)). Count I further
alleged Feleccia was "aggrieved by practices of retaliation and
sexual harassment discrimination prohibited by [s]ections 6-
101(A) and 2-102(D) of the Act." Specifically, count I alleged
that (1) in December 1998, Feleccia opposed sexual harassment by
declining Yanor's request to have sex with him; (2) that on
February 1, 1999, Yanor wrote a ficticious letter addressed to
Feleccia that stated she may have been exposed to a communicable
or sexually transmitted disease; and (3) the Sheriff's Department
harassed Feleccia in retaliation for opposing sexual harassment,
in violation of section 6-101(A) of the Act. Count II adopted
the same allegations as count I but was directed at Yanor.
Counts III and IV realleged the allegations in count I
- 2 - and alleged Yanor sexually harassed Feleccia by engaging in the
following acts: (1) kissing her on November 19, 1998; (2)
delivering a coffee cup with candy in it to Feleccia's home in
December 1998; (3) asking her if she wanted to have sex with him
in December 1998; and (4) sending Feleccia a ficticious letter
that stated she may have been exposed to a communicable or
sexually transmitted disease. Moreover, counts III and IV
alleged the conduct created a hostile, intimidating, and
offensive work environment. Those counts further alleged the
Sheriff's Department and Yanor sexually harassed Feleccia in
violation of section 2-102(D) of the Act and that the Sheriff's
Department was strictly liable for Yanor's actions because Yanor
was a member of management.
On November 13, 2000, the Sheriff's Department filed
its verified answer. The Sheriff's Department denied it sexually
harassed plaintiff and also denied strict liability should be
imposed. Additionally, the Sheriff's Department set forth the
following two affirmative defenses: (1) Feleccia failed to use
the complaint procedure, i.e., the Sheriff's Department had a
policy against sexual harassment in place at all relevant times
and Feleccia did not initially report any of the first three
incidents alleged in counts III and IV all of which occurred
outside the workplace or were without witness, and (2) the
Sheriff's Department took prompt remedial action, i.e., the
- 3 - Sheriff's Department launched an extensive investigation and took
prompt remedial action against Yanor after learning he authored
the ficticious letter.
Feleccia and Yanor settled; however the case against the
Sheriff's Department continued.
The record reveals the following. Feleccia, now known
as Donna Scroggin, has worked at the Sheriff's Department since
1992. Feleccia is a clerk in the records department, and in 1998
and 1999, her job was to enter data on warrants and orders of
protection into the computer system. Lieutenant Sandra Hinsey,
the highest ranking individual in the records department, was
Feleccia's supervisor.
Feleccia met Yanor in 1992. Feleccia testified at the
hearing before the administrative law judge (ALJ) that Yanor
first sexually harassed her in November 1998 when he called her
to go to Chantilly Lace, a local bar, after the annual "cigar
dinner" the sheriff holds each year. Yanor allegedly stated a
group of people were going to Chantilly Lace. Feleccia agreed to
go because "we were friends" and she mistakenly thought Yanor's
wife would be with him. Yanor picked her up and when they got to
the bar no one else Feleccia knew was there. Only one other
person Feleccia knew showed up, and Feleccia became uncomfortable
and asked Yanor to take her home. Yanor agreed to take her home.
When Feleccia tried to get out of the car, Yanor grabbed her arm
- 4 - and asked for a kiss. Feleccia responded "no, you're married."
Yanor asked again and would not let go of her arm. Feleccia told
Yanor "we're just friends." Again, Yanor would not let go of her
arm, so she gave him a kiss and she then went up to her house.
Feleccia stated the next time Yanor harassed her was in December
1998, when Yanor showed up to her house with a Christmas cup with
candies in it. Feleccia's children answered the door and let him
in. Yanor was on duty at the time.
The next incident occurred at Feleccia's friend
MerriEllen King's December 1998 office Christmas party held at
Chantilly Lace. Yanor was at the bar and Feleccia just said "hi"
to him. Both Feleccia and King testified that Yanor glared at
Feleccia while they danced. Eventually Yanor asked Feleccia if
she wanted to dance with him, to which she responded "no."
According to King, she and Feleccia left because Feleccia felt
uncomfortable. Later, Feleccia told King that Yanor had been
stopping by her desk at work and asking her to go out with him.
According to Feleccia, the next incident, also in December 1998,
occurred when Yanor stopped by her desk when she was by herself
and asked if she "would like to go to a motel with him for the
night." Feleccia said "no" and told him "[w]e will always just
be friends" and "you're married. I've always told you just
friends."
On February 5, 1999, Feleccia received a envelope on
- 5 - her desk. The envelope contained a letter, dated January 29,
1999, which stated the following:
"This is to inform you that you may have
recently been exposed to a communicable or
sexually transmitted disease. A confidential
source who has tested positive has brought
this matter to our attention.
To insure your privacy, your file has
been assigned a control number of #A23759.
Please refer to this in future
correspondence.
It is important that you schedule a
screening within the next 7 days. Please
contact your local public health office for
an appointment. This service is provided at
no cost to you."
The letter appeared to be on Illinois Department of Public Health
letterhead.
Feleccia "read it, and *** started shaking. And [she]
didn't want anybody to see [her] cry, so [she] went to ***
Lieutenant [Hinsey]" and handed her the letter. As stated,
Hinsey was Feleccia's supervisor. She was also one of two
individuals in the office whom employees were to go to for
complaints of sexual harassment.
- 6 - Hinsey and Feleccia left the office and took the letter
to the Department of Public Health, where they learned the letter
did not come from there. On their way back to their office,
Hinsey asked Feleccia if it could have been Deputy Dale Newsome
or Yanor who wrote the letter. Feleccia did not think it was
either of them. Feleccia mentioned no previous history with
Yanor other than joking around at the office. Upon returning to
the office, they showed the letter to Chief Tony Sacco, who said
there would be an investigation. Hinsey told Feleccia to act
normal and not say anything about the matter until the
investigation was completed. Following an investigation by
internal affairs, it was determined that Yanor was the author of
the letter. Yanor later admitted writing the letter but claimed
it was a practical joke. Sergeant Stephen Meyer, who conducted
the investigation for the Sheriff's Department, informed Sheriff
Neil Williamson of his conclusion that the complaint of sexual
harassment had been substantiated. Nobody discussed the letter
with Feleccia between February 5, 1999, the day she received the
letter, and May 25, 1999, the day she was informed the author of
the letter had been identified.
After learning the identity of the author of the letter
had been discovered, Feleccia went to Sergeant Meyer to find out
who it was. He informed her that it was Yanor. When asked by
Feleccia what kind of discipline Yanor received, Meyer told
- 7 - Feleccia she would have to go to Sheriff Williamson. Feleccia
went to Sheriff Williamson, who informed her that "he gave him as
many days as he could without the merit board finding out." On
May 18, 1999, Sheriff Williamson had informed Yanor that he was
suspended for four days without pay to be served consecutively by
June 11, 1999. Williamson had also talked to the Department of
Public Health. Feleccia perceived that Sheriff Williamson talked
to the Department of Public Health so that it would not press
charges. However, the Department of Public Health did refer the
matter to the Sangamon County State's Attorney's office for
possible prosecution, but no prosecution ever occurred.
According to Feleccia, Williamson also told her not to go to the
media, bring sexual-harassment charges, or to go anywhere near
Yanor or talk to him. After the meeting with Williamson,
Lieutenant Hinsey and Feleccia went back to the office, where
Feleccia informed Hinsey she was not happy with the discipline
Yanor received. She felt he should have been punished more
severely. Feleccia "felt insignificant and not important"
because nothing more was done. She and Hinsey went to talk to
Sacco to see if anything else could be done, but Sacco said they
could not discipline Yanor twice.
Feleccia stated Deputy Newsome had called her and told
her that he heard her affair with Yanor went wrong. She said he
was wrong but she could not discuss this. This supposedly
- 8 - occurred within 24 hours of receiving the purported Department of
Public Health letter that was actually from Yanor. Feleccia
stated that on that same day, her coworker Janet Edwards heard
Deputy McNamara say he heard Feleccia got a disease and he wanted
to know what it was.
Feleccia remarried and her new husband's ex-wife worked
for the city. The ex-wife went to Feleccia's husband's home one
day and told him and his daughter that Feleccia had acquired AIDS
from a deputy at her job. Feleccia went to the Sheriff and he
said there was nothing he could do about the rumors. This
occurred in the summer of 2000.
According to a June 15, 1999, memo from Mike Walton,
the director of support services at the Sheriff's Department,
Chief Sacco met with Feleccia and Walton on June 10, 1999. At
that meeting, Feleccia advised them she was not happy with the
discipline imposed on Yanor and that she believed more should
have been done to punish Yanor as the incident was being talked
about by people throughout the Sheriff's Department. Sacco
advised Feleccia that nothing more could be done as far as the
Sheriff's Department punishing Yanor went, and the incident had
been reported to the Sangamon County State's Attorney by the
Illinois Department of Public Health. Feleccia informed Sacco
that this had been going on with Yanor since 1998 and there have
been several incidents. Sacco stated she should have come
- 9 - forward at the time of the incidents and made the Sheriff's
Department aware of them so actions could have been taken to stop
the behavior. Sacco asked Feleccia to document all the previous
incidents in writing and send them to him. According to Sacco's
testimony before the ALJ, Feleccia never documented these
incidents in writing to him.
The evidence showed that in 1998 and 1999, Yanor was
one of two sergeants on the second shift. His duties were to
assist the lieutenant when he was there in the overall operation
of the second shift in relation to making service calls and
things of that nature. Yanor or the other sergeant was in charge
of the shift when the lieutenant was not on duty, at which times
they were in charge of 10 deputies. Only Lieutenant Hinsey made
decisions regarding Feleccia's duties or had control over her
working conditions. Yanor did not have any supervisory
responsibilities over Feleccia, nor did he have the ability to
impact her working conditions. Moreover, Yanor did not have any
role in Lieutenant Hinsey's appraisal reports on Feleccia's job
performance.
Feleccia continued to work in her job throughout all of
the alleged incidents. Her working conditions did not change.
Lieutenant Hinsey did not notice any changes in Feleccia's work
habits or performance, nor did she receive any complaints from
Feleccia about having difficulty with her work.
- 10 - According to Feleccia, she had been seeing a
psychiatrist since 1996. She took Paxil "for anxiety, for work
stress." After receiving Yanor's letter, Feleccia increased the
frequency of her visits to the psychiatrist and the dosage of her
medication was doubled. Her psychiatrist instructed her to begin
seeing another psychiatrist because he worked for the county.
The new psychiatrist changed her medication because she "couldn't
control the anxiety and paranoia at work" and also put her on
sleeping medication. Feleccia was relieved when she found out
the letter was not true but stated "it was horrible." She lost
sleep and missed days of work because of the incident. Feleccia
admitted she had a panic attack at work prior to receiving the
letter from Yanor and that was when she first sought treatment by
a psychiatrist.
Following a hearing, the ALJ issued a decision
recommending that both the sexual harassment and retaliation
claims be dismissed with prejudice. The ALJ concluded Feleccia
"failed to establish a prima facie case of sexual harassment in
that [she] failed to show the conduct at issue had the purpose or
effect of substantially interfering with [her] work performance
or created an intimidating, hostile[,] or offensive working
environment." The ALJ also concluded Feleccia "failed to
establish a prima facie case of retaliation in that the record
did not establish either an actual 'protest' of sexual harassment
- 11 - or a causal link between any alleged complaint of harassment and
any adverse act." As part of his decision, the ALJ found Yanor
never held supervisory duties over Feleccia. He "had no role in
giving [Feleccia] orders as to how she should perform her work in
hiring, firing, demoting[,] or disciplining any of the civilian
employees in the records department." The ALJ also found the
November and December 1998 incidents were outside the 180-day
period for reporting incidents of sexual harassment.
On November 3, 2003, Feleccia filed exceptions to the
ALJ's recommended order and decision. The Commission filed its
initial decision on August 31, 2004, and a modified order and
decision on November 22, 2004. The Commission disagreed with the
ALJ's finding that the November and December 1998 incidents were
barred and thus not able to be viewed as part of Feleccia's proof
and reversed the ALJ's recommendation to dismiss the sexual-
harassment charge. As to the specific incidents, the Commission
concluded the following. The November 1998 incident where Yanor
grabbed Feleccia's arm and did not let her exit the vehicle was
"a sexual request by a supervisor tied with a physical threat of
force; an action clearly sufficient to establish sexual
harassment." Moreover, "Yanor's December 1998 request to spend
the night in a motel with [Feleccia] clearly implies a request to
have sexual intercourse. These acts, namely, the forcible
request for a sexual favor and the motel request, constitute
- 12 - sexual harassment." The Commission further stated "[w]e find
that Yanor's conduct, specifically his unwelcome sexual advances
and forged Department of Public Health letter, had the effect of
substantially interfering with [Feleccia's] work performance and
created an intimidating, hostile[,] and offensive working
environment." The Commission sustained the recommendation that
the retaliation charge be dismissed, finding that Feleccia did
not present "evidence of adverse employment actions in
retaliation for opposing sexual harassment." The Commission
noted Sheriff Williamson told Feleccia not to go to the media and
not to press sexual-harassment charges or go near Yanor. The
Commission also noted Chief Sacco told Feleccia the punishment
was complete and Yanor could not be punished twice after Feleccia
replied she thought the punishment was too light. The Commission
found the Sheriff's Department's "conduct reprehensible, where
they not only failed to take reasonable corrective action, but
also where [it] told [Feleccia] not to press charges or go near
Yanor." Finally, the Commission also remanded the matter for a
determination of damages, attorney fees, and costs.
Upon remand, the ALJ recommended an award of $10,000
damages from which $3,500 would be deducted because of Feleccia's
settlement with Yanor and $11,137.50 in attorney fees, $1,593.75
in paralegal fees, and costs of $685.03. On January 3, 2006, the
Commission adopted this recommendation and entered a final order
- 13 - in which it concluded Feleccia timely filed her charge, she
established "that Yanor committed a variety of sexually harassing
acts that cumulatively constitute[d] a hostile work environment,"
and the Sheriff's Department was strictly liable for Yanor's
conduct because he was a supervisor even though he was not
Feleccia's supervisor and he did not have the authority to affect
the terms or conditions of Feleccia's work. The order listed the
Department of Human Rights as an additional party of record and a
copy of the order was delivered to the Department of Human
Right's chief legal counsel.
The Sheriff's Department filed an application for
rehearing. The Commission denied the application, again listing
the Department of Human Rights as an additional party of record.
Thereafter, the Sheriff's Department timely filed its petition
for review with this court. The petition named the Commission,
Feleccia, and Yanor as respondents to the action but did not name
the Department of Human Rights.
II. ANALYSIS
The Sheriff's Department argues that the Commission
erred by (1) imposing strict liability on the Sheriff's
Department for Yanor's conduct, (2) considering unreported acts
by Yanor that occurred outside the 180-day jurisdictional period,
and (3) finding Feleccia established actionable sexual
harassment. The Commission responds that (1) this action should
- 14 - be dismissed because the Sheriff's Department failed to name the
Department of Human Rights as a respondent in its petition for
review; (2) the Commission correctly concluded that Feleccia
established sexual harassment in violation of the Act; and (3)
the Sheriff's Department is strictly liable for Yanor's sexual
harassment of Feleccia.
A. Should This Action Be Dismissed for Failure To Name the Commission on the Petition for Review?
The Commission correctly notes that petitioners must
strictly comply with statutory requirements for seeking review of
administrative decisions or their appeals may be dismissed. Our
supreme court has held that administrative-review actions involve
the exercise of "special statutory jurisdiction." ESG Watts,
Inc. v. Pollution Control Board, 191 Ill. 2d 26, 30, 727 N.E.2d
1022, 1025 (2000). "When a court is exercising special statutory
jurisdiction the language of the act conferring jurisdiction
delimits the court's power to hear the case. A party seeking to
invoke special statutory jurisdiction thus 'must strictly adhere
to the prescribed procedures' in the statute." ESG Watts, Inc.,
191 Ill. 2d at 30, 727 N.E.2d at 1025, quoting McGaughy v
Illinois Human Rights Comm'n, 165 Ill.2d 1, 12, 649 N.E.2d 404,
410 (1995).
Supreme Court Rule 335 sets forth the procedures for a
statutory direct review of an order by an administrative agency.
155 Ill. 2d R. 335. Rule 335(a) states "[t]he petition for
- 15 - review shall be filed in the Appellate Court and shall specify
the parties seeking review and shall designate the respondent and
the order or part thereof to be reviewed. The agency and all
other parties of record shall be named respondents." 155 Ill. 2d
R. 335(a). The Commission argues the Sheriff's Department did
not comply with Rule 335 because it did not designate the
Department of Human Rights as a respondent in the petition for
review. The Sheriff's Department responds that the Department of
Human Rights is not a party of record in this case. We agree
with the Sheriff’s Department.
The Commission relies on a number of statutes and
administrative rules, along with our supreme court's decision in
McGaughy, 165 Ill. 2d 1, 649 N.E.2d 404, as support that this
appeal must be dismissed for the Sheriff Department's failure to
name the Department of Human Rights on the petition for review.
See 775 ILCS 5/8-105(A)(3) (West 2004) (approval of a settlement
shall be accomplished by an order, served on the parties and the
Department); 56 Ill. Adm. Code §§5300.640(b), 5300.730(a)(3)(A)
(Conway Greene CD-ROM June 2003) (an answer, supplemental answer,
or motion to dismiss or response thereto shall be served on the
Department); 56 Ill. Adm. Code §5300.730(a)(3)(B) (Conway Greene
CD-ROM June 2003) (a motion to amend the pleadings must be served
on Department). The Commission also notes that in situations
where the Department of Human Rights filed the complaint, it may
- 16 - file a motion with the Commission seeking leave to amend the
complaint (56 Ill. Adm. Code §5300.650(a) (Conway Greene CD-ROM
June 2003)) and may move for entry of an order permitting it to
file a response to a motion to dismiss (56 Ill. Adm. Code
§§5300.640(b), 5300.730(b) (Conway Greene CD-ROM June 2003)).
The Commission further points out that its final order
and the order denying rehearing both named the Department of
Human Rights as a party of record. However, the Department of
Human Rights does not become a party of record solely because the
Commission’s final order states the Department of Human Rights
was an additional party of record. See Burgess v. Board of Fire
& Police Commissioners of the City of Quincy, 209 Ill. App. 3d
821, 829, 568 N.E.2d 430, 435 (1991). "An administrative agency,
such as the Commission, obtains its power to act from the
legislation creating it and its power is strictly confined to
that granted in its enabling statute." Gilchrist v. Human Rights
Comm'n, 312 Ill. App. 3d 597, 601, 728 N.E.2d 566, 570 (2000).
Neither the Commission or Feleccia, nor our independent research,
has led us to a statute that gives the Commission the power to
make the Department of Human Rights a party of record. In fact,
the cases and administrative rules cited by the Commission and
Feleccia lead us to conclude the Department of Human Rights is
not a party of record.
In McGaughy, our supreme court consolidated two cases
- 17 - involving appeals from the Commission's review of decisions by
the Department of Human Rights to dismiss charges. McGaughy, 165
Ill. 2d at 4-6, 649 N.E.2d at 406-07. In each of the cases
before the court, the petitions for review failed to name the
Department of Human Rights as a respondent. The supreme court
concluded that "neither petitioner fully complied with the
requirement of Rule 335(a)." McGaughy, 165 Ill. 2d at 8, 649
N.E.2d at 408. In coming to its conclusion to dismiss both
appeals, the court noted that Rule 335(a) was made applicable to
the cases before it by section 8-103 (775 ILCS 5/8-103 (West
2004)) of the Human Rights Act, which requires the Department of
Human Rights to be named as a respondent when the Commission
reviews the Department of Human Rights' decision to dismiss a
charge. McGaughy, 165 Ill. 2d at 7, 649 N.E.2d at 408. The case
before us does not involve the review of the Department of Human
Rights’ decision to dismiss a case. Thus, McGaughy and the
statute that made Rule 335 applicable to it are not instructive
in this case.
The Sheriff's Department contends the case of In re
Toledo, 312 Ill. App. 3d 131, 726 N.E.2d 43 (2000), supports its
position. In Toledo, the Attorney General contended the
Department of Human Rights should be dismissed from that appeal
because it was neither the agency whose order was the subject of
the appeal nor a party of record to the proceedings before the
- 18 - Commission. Toledo, 312 Ill. App. 3d at 136, 726 N.E.2d at 47.
The court dismissed the Commission from the appeal because "the
Commission was the final decision maker who acted as the
'administrative agency' whose order both affected 'the legal
rights, duties[,] or privileges of parties' and terminated the
proceedings before it (735 ILCS 5/3-101 (West 1998)), and *** the
Department [of Human Rights] was not a party of record to the
proceedings before the Commission." (Emphasis in original.)
Toledo, 312 Ill. App. 3d at 136, 726 N.E.2d at 47-48. The
Commission distinguishes Toledo from the case before us on the
ground that in Toledo the Commission did not name the Department
of Human Rights as a party of record as it did here. However, we
have already stated that the Commission does not have the
authority to do that. Moreover, we note the Commission’s form
entitled "Information for litigants before the Human Rights
Commission" states the following:
"Any answer, supplemental answer, motion to
dismiss or response thereto, motion to amend
the complaint and motion to allow a
Department employee to testify at hearing
must be served on the Department of Human
Rights (which is a separate state agency from
the Commission) as well as upon the parties.
Copies of other motions and all discovery
- 19 - requests and responses need not and should
not be sent to the Department, unless the
Department is a named party on the
complaint." (Emphasis in original.)
Here, the Department of Human Rights filed the
complaint but is not a named party on the complaint. Further, a
review of the record shows the Department of Human Rights did not
have anything to do with the case after filing the complaint, and
previous Commission orders reflect that by not listing the
Department of Human Rights as a party of record or serving copies
of its orders upon it (see November 30, 2000, February 28, 2001,
May 23, 2001, August 15, 2001, September 4, 2002, October 10,
2002, April 30, 2003, and December 1, 2004, orders). We do
acknowledge that several orders were served on the Department of
Human Rights, including at least two that named it and its chief
counsel as additional parties of record (January 3, 2006, order
and decision and April 26, 2006, denial of petition for
rehearing). We also note the Commission’s order and decision of
August 31, 2004, and modified order and decision from November
22, 2004, do not name the Department of Human Rights as a party
of record but copies of the orders were delivered to its chief
legal counsel. The caption on all of these orders does not list
the Department of Human Rights as a party.
We find further support for rejecting the Commission's
- 20 - reliance on the numerous above-cited statutes and regulations for
support of its argument that the Department of Human Rights is a
party of record in the administrative rules and statutes
themselves. For example, the administrative rules provide for
the Department of Human Rights to submit a brief "in a matter
where it is not a party." 56 Ill. Adm. Code §5300.980 (Conway
Greene CD-ROM June 2003). Thus, the rules recognize the
Department of Human Rights is not always a party. Moreover, as
the Sheriff's Department notes, many of the rules cited by the
Commission as support for finding the Department of Human Rights
was a party of record distinguish between parties and the
Department of Human Rights by requiring certain pleadings to be
served on both the parties and the Department of Human Rights.
If the Department of Human Rights is already considered a party,
the remaining language is meaningless. See Mora v. Industrial
Comm'n, 312 Ill. App. 3d 266, 272, 726 N.E.2d 650, 654-55 (2000)
(When construing an administrative rule, the court stated "[i]t
is a basic tenet of statutory construction that a statute should
be construed so that no word or phrase is rendered superfluous or
meaningless").
B. Is the Sheriff's Department Strictly Liable for Yanor's Sexual Harassment of Feleccia?
"Section 2-102(D) of the Act provides that an employer
is liable for (1) a supervisor's sexual harassment of an employee
and (2) a nonsupervisory employee's sexual harassment of an
- 21 - employee 'if the employer becomes aware of the conduct and fails
to take reasonable corrective measures.'" Pinnacle Limited
Partnership v. Human Rights Comm'n, 354 Ill. App. 3d 819, 829,
820 N.E.2d 1206 (2004), quoting 775 ILCS 5/2-102(D) (West 2002).
The Sheriff's Department contends it cannot be held strictly
liable because Yanor was not Feleccia's supervisor and he did not
have the authority to affect the terms or conditions of
Feleccia's employment. Feleccia and the Commission respond that
because Yanor was a supervisor with the Sheriff's Department, it
is immaterial that he was not Feleccia's supervisor. We agree
with the Sheriff's Department.
The specific statute at issue is section 2-102(D) of
the Act (775 ILCS 5/2-102(D) (West 2004)). That section makes it
a civil rights violation for:
"any employer, employee, agent of any
employer, employment agency or labor
organization to engage in sexual harassment;
provided, that an employer shall be
responsible for sexual harassment of the
employer's employees by nonemployees or
nonmanagerial and nonsupervisory employees
only if the employer becomes aware of the
conduct and fails to take reasonable
corrective measures." 775 ILCS 5/2-102(D)
- 22 - (West 2004).
The parties do not cite, nor has our research led us to, a
provision in the Act defining who is a managerial or supervisory
employee.
The Commission and Feleccia cite Board of Directors,
Green Hills Country Club v. Human Rights Comm'n, 162 Ill. App. 3d
216, 221, 514 N.E.2d 1227, 1230-31 (1987), and Geise v. Phoenix
Co. of Chicago, Inc., 159 Ill. 2d 507, 518, 639 N.E.2d 1273, 1277
(1994), for the proposition that section 2-102(D) of the Act
imposes strict liability on employers when an employee has been
sexually harassed by a supervisor regardless of whether the
employer knew of the offending conduct. This proposition is
correct. However, in both those cases, the supervisor who
harassed the employee was the employee's supervisor who had
control over the employee. In Green Hills Country Club, the
harasser was the club manager who had the power to change the
complainant from a salaried employee to an hourly employee,
relieve her of her position, and reduce her hours of employment.
Green Hills Country Club, 162 Ill. App. 3d at 218, 514 N.E.2d at
1229. In Geise, the harasser was the employer's national sales
manager and Geise alleged she was fired "'as a measure by [the
national sales manager] to retaliate against [Geise] for her
failure to submit to his sexual advances and her attempts to
inform [the employer] of his actions.'" Geise, 159 Ill. 2d at
- 23 - 511, 639 N.E.2d at 1274. That is not the case here. Here, the
evidence shows Yanor did not have any authority over Feleccia or
the conditions of her employment. In their appellate briefs
submitted prior to oral argument, neither the Commission nor
Feleccia cited a case or statute that dictates an employer is
strictly liable when an employee is sexually harassed by a person
who holds a supervisory position, albeit a position in a
different department where that person does not have any
supervisory control or authority over the employee alleging
harassment. Our research has not led us to such a case.
As stated, the Act does not provide guidance as to who
is a manager or supervisor for purposes of imposing strict
liability on an employer for the actions of a managerial or
supervisory employee. Thus, "it is assumed that words used in
the statute were intended to have their ordinary and popularly
understood meaning." Winks v. Board of Education of Normal
Community Unit School District No. 5 of McLean County, 78 Ill. 2d
128, 137, 398 N.E.2d 823, 827 (1979). When seeking to ascertain
the ordinary and popularly understood meaning of words used in a
statute it is helpful to refer to dictionary definitions. Winks,
78 Ill.2d at 137, 398 N.E.2d at 827. Black's Law Dictionary
defines "supervisor" as "any individual having authority to hire,
transfer, suspend, lay off, recall, promote, discharge,
discipline, and handle grievances of other employees, by
- 24 - exercising independent judgment." Blacks Law Dictionary 1452
(7th ed. 1999). A "manager" is "[a] person who administers or
supervises the affairs of a business, office, or other
organization." Black's Law Dictionary 972 (7th ed. 1999). Yanor
did not possess any of these powers as they relate to Feleccia
and thus the Sheriff's Department is not strictly liable for his
actions. Instead, Yanor was a coemployee of Feleccia's. As
such, the Sheriff's Department is only liable for his harassment
of Feleccia if the Sheriff's Department knew or should have known
about the harassment and failed to take reasonable corrective
measures. See 775 ILCS 5/2-102(D) (West 2004). Here, the
evidence shows the Sheriff's Department took corrective measures
upon learning of Yanor's harassment of Feleccia. It launched an
investigation into who wrote the ficticious Department of Public
Health letter. Upon learning Yanor was the author of the letter,
the Sheriff's Department suspended Yanor for four days without
pay and issued Yanor a letter of reprimand.
The parties do not dispute that there would be no
strict liability had this been a federal lawsuit. Moreover, at
oral argument, we asked the parties whether they were aware of
any other court in any jurisdiction that has held an employer
strictly liable under facts similar to this case, i.e., where the
harasser had managerial or supervisory control over some
employees but had no control over the person allegedly harassed.
- 25 - Neither party was aware of such a case. We gave the parties
additional time to research the issue and submit supplemental
briefs to this court. The parties have done so. Our review of
the supplemental briefs and the cases cited therein, in addition
to our own research, reveals no cases where strict liability was
imposed when (1) the statute at issue had similar language to
section 2-102(D) of the Act and (2) the facts were similar to
those present in this case. We are unwilling to stretch the
language of section 2-102(D) to impose strict liability on the
Sheriff's Department for Yanor's conduct.
Because we have concluded the Sheriff's Department is
not strictly liable for Yanor's conduct and the Sheriff's
Department took corrective measures upon learning of that
conduct, we need not address the other issues involved in this
case.
III. CONCLUSION
For the reasons stated, we reverse the Commission's
order.
Reversed.
STEIGMANN, P.J., and COOK, J., concur.
- 26 -