Schwartz v. Illinois Human Rights Comm'n

2024 IL App (4th) 231248, 256 N.E.3d 431

• Court: Appellate Court of Illinois
• Decided: December 16, 2024
• Docket: 4-23-1248
• Status: Published

Opinion

2024 IL App (4th) 231248 FILED NO. 4-23-1248 December 16, 2024 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL

OF ILLINOIS

FOURTH DISTRICT

JAMES H. SCHWARTZ, Executor of the Estate of ) Petition for Review of an Jerome H. Schwartz, Deceased, and ASSOCIATED ) Order of the Human Rights INSURANCE GROUP, INC., ) Commission. Petitioners, ) v. ) No. 18-0206C THE ILLINOIS HUMAN RIGHTS COMMISSION, ) THE DEPARTMENT OF HUMAN RIGHTS, and ) KELLY FRANCHINO, ) Respondents. )

JUSTICE DOHERTY delivered the judgment of the court, with opinion. Justices Harris and Grischow concurred in the judgment and opinion.

OPINION

¶1 From August 2016 to February 2017, Kelly Franchino was employed by Associated

Insurance Group, Inc. (AIGI), an insurance agency owned by Jerome H. Schwartz. On Franchino’s

behalf, the Department of Human Rights (Department) filed complaints with the Illinois Human

Rights Commission (Commission) against AIGI and Schwartz (collectively, the employers),

alleging that they committed civil rights violations involving Schwartz’s sexual harassment of

Franchino.

¶2 While the administrative proceeding was pending, the employers failed to comply

with several orders of the administrative law judge (ALJ) assigned to the case. As a sanction, the

ALJ recommended that the Commission hold the employers liable by default. The employers failed to participate in further proceedings before the ALJ, which included a public hearing on

damages, posthearing briefing, and supplemental briefing on the amount of Franchino’s attorney

fees and costs. The ALJ ultimately recommended that the Commission award Franchino a total of

$673,280.73 in monetary relief, before interest.

¶3 At that point, the employers asked the Commission to set aside the ALJ’s

recommendations and remand the case to the ALJ for a full hearing on the merits. Instead, the

Commission declined to review the ALJ’s recommended order, making it the order of the

Commission. Franchino, Ill. Hum. Rts. Comm’n Rep. 2017CN2618, 2023 WL 5428833 (Aug. 15,

2023).

¶4 On review before this court, the employers argue that the Commission’s order is in

error. We hold that (1) the Commission exceeded its statutory authority by finding Schwartz liable

for monetary relief that was not sought in the complaint against him and (2) the Commission’s

award of $325,000 in damages for emotional distress constituted an abuse of discretion.

Accordingly, we affirm the Commission’s order in part, vacate it in part, and remand for further

proceedings before the Commission.

¶5 I. BACKGROUND

¶6 A. The Illinois Human Rights Act

¶7 Under the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2022)),

an employee’s charges of employment-related civil rights violations are initially investigated by

the Department, which determines whether there is substantial evidence to support the charges.

(id. § 7A-102). If the Department concludes that there is substantial evidence, the employee may

ask the Department to “prepare a written complaint, under oath or affirmation, stating the nature

-2- of the civil rights violation substantially as alleged in the charge[s] previously filed and the relief

sought on behalf of the [employee].” Id. § 7A-102(F)(1).

¶8 The complaint is filed in an administrative proceeding before the Commission,

which has the statutory authority to award a variety of remedies to the employee, including back

pay, actual damages, awards of interest, attorney fees, and costs. Id. § 8A-104. The Commission

assigns the case to an ALJ, who takes evidence at a public hearing, makes findings of fact, and

recommends an order for appropriate relief for the employee, if the ALJ finds by the preponderance

of the evidence that the employer has committed a violation of the Act. Id. § 8A-102; see 5 ILCS

100/10-5 (West 2022) (prescribing the procedures for an administrative hearing before an ALJ).

¶9 The employer may ask a three-member panel of the Commission to review the

ALJ’s recommended order. “If the panel declines to review the recommended order, it shall

become the order of the Commission. *** If the panel accepts the case, it shall review the record

and may adopt, modify, or reverse in whole or in part the findings and recommendations of the

[ALJ].” 775 ILCS 5/8A-103(E)(1) (West 2022). The Act provides that “the Commission shall

adopt the [ALJ’s] findings of fact if they are not contrary to the manifest weight of the evidence.”

Id. § 8A-103(E)(2). The three-member panel then files its written order and decision, which is the

order of the Commission. Id. § 8A-103(E)(3). If the employer is dissatisfied with the three-member

panel’s decision, then the employer may seek a rehearing before the full seven-member

Commission. Id. § 8A-103(F)(1). If the full Commission denies rehearing, the three-member

panel’s order remains the order of the Commission; otherwise, the full Commission’s subsequent

order becomes the order of the Commission. Id. § 8A-103(F)(3).

¶ 10 The employer may seek direct review of the Commission’s order in this court. Id.

§ 8-111(B); see Ill. Const. 1970, art. VI, § 6 (“The Appellate Court shall have such powers of

-3- direct review of administrative action as provided by law.”); see also 735 ILCS 5/3-113 (West

2022) (establishing the procedures for statutory direct review). The Commission may stay the

enforcement of its order pending direct review. See 775 ILCS 5/8-111(B) (West 2022); Ill. S. Ct.

R. 335(g) (eff. July 1, 2017).

¶ 11 In these circumstances, the denomination of the parties can create some confusion.

Before the Department and the Commission, the employee is designated the “claimant” and the

employer is designated the “respondent,” i.e., the party responding to the employee’s claim of a

civil rights violation. Before this court, however, the employer is designated the “petitioner” and

the Commission, the Department, and the employee are designated the “respondents,” i.e., the

parties responding to the employer’s argument that the Commission’s order was in error.

¶ 12 In an attempt to lessen that confusion in this case, we will generally refer to the

parties using the designations above (supra ¶ 1), and any reference to a claimant or a respondent

refers to that party’s designation before the Commission. In this case, briefs have been submitted

by (1) Schwartz and AIGI, (2) the Commission and the Department, and (3) Franchino. When

discussing the arguments raised in these briefs, we will attribute those arguments to (1) the

employers, (2) the Commission, and (3) Franchino, respectively.

¶ 13 B. The Complaints

¶ 14 At Franchino’s request, the Department investigated her charges that Schwartz had

sexually harassed her, that AIGI was strictly liable for Schwartz’s sexual harassment because he

held a supervisory position at AIGI, that AIGI retaliated against her by subjecting her to unequal

terms and conditions of employment, and that AIGI further retaliated against her by discharging

her, all of which would constitute civil rights violations under the Act if proven. 775 ILCS 5/2-

102(A), (D) (West 2022); see Geise v. Phoenix Co. of Chicago, 159 Ill. 2d 507, 518 (1994)

-4- (“Where an employee has been sexually harassed by supervisory personnel, *** the Act imposes

strict liability on the employer, regardless of whether the employer knew of the offending

conduct.”). The Department found that these charges were supported by substantial evidence and

filed separate complaints against Schwartz and AIGI in August 2018.

¶ 15 The first count in the complaint against AIGI included the following allegations of

sexual harassment that Franchino found “unwelcome, unwanted, and offensive”:

“(a) On or about September 15, 2016, Schwartz asked [Franchino] to give

him a ride to a doctor’s appointment in Madison, Wisconsin, and during that

subsequent car ride, Schwartz told [Franchino], ‘I will take care of you if you take

care of me[.]’ Also, during that car ride, Schwartz asked [Franchino] to be a stripper

at an upcoming bachelor party that would be attended by his friends and clients,

telling her that ‘those men would hire her but she should make sure that no one

knows that [Schwartz] would be there watching her[,]’ and Schwartz put his hand

on [Franchino’s] thigh;

(b) On or about September 22, 2016, [Franchino] accompanied [Schwartz]

and his daughter, Andrea Gunderman (“Gunderman”), to Madison, Wisconsin

where Schwartz was scheduled for surgery. Prior to the surgery, Gunderson [sic]

asked Schwartz for his credit card, and Schwartz stated that he would only give it

to Gunderson if [Franchino] showed him her breasts. While on that same trip,

Gunderson later showed [Franchino] a picture of Schwartz grabbing [Franchino’s]

boob while [Franchino] was sleeping in the hospital room;

-5- (c) On or about September 29, 2016, while Schwartz was dropping

[Franchino] off at a tire repair shop, Schwartz attempted to forcibly kiss [Franchino]

on the lips as she was exiting the car;

(d) On or about October 11, 2016, Schwartz told [Franchino] that he would

pay her overdue compensation, but said, ‘[Y]ou know you’re going to have to work

this off, don’t you[?]’ and informed her that she would have to go to his house and

allow him to massage her;

(e) On or about October 14, 2016, Schwartz told [Franchino] that he would

always take care of her financially if she treated him right and asked her not to sue

him for sexual harassment;

(f) On or about October 25, 2016, Schwartz commented about [Franchino’s]

breasts in front of clients in the office;

(g) On at least one occasion in October 2016, Schwartz told third parties

that [Franchino] was his girlfriend and asked her to accompany him to a Halloween

party for swingers;

(h) On or about November 1, 2016, Schwartz told her that his son, Jim

Schwartz, told Schwartz to pay [Franchino] off before she sues for sexual

harassment;

(i) On or about November 2, 2016, Schwartz told the attendees at a breakfast

meeting that [Franchino] was his girlfriend;

(j) On or about November 9, 2016, and on or about November 16, 2016,

[Schwartz] called [Franchino] a ‘hooker’ in front of clients;

-6- (k) Throughout [Franchino’s] employment, Schwartz sold Viagra and

Cialis in front of her and expected [Franchino] to sell Viagra and Cialis to clients;

and

(l) Throughout [Franchino’s] employment, when the phone would ring,

Schwartz would state that it was his prostitutes wanting money.”

¶ 16 The second count in the complaint against AIGI alleged that it had engaged in the

following retaliation against Franchino for opposing Schwartz’s sexual harassment:

“[F]rom on or about September 21, 2016, through on or about February 8, 2017,

[AIGI] subjected her to unequal terms and conditions of employment in that:

1) Schwartz stopped the direct deposit of her paycheck on or about September 21,

2016, and on or about October 29, 2016; 2) [AIGI] stopped forwarding her client

leads on or about November 23, 2016; 3) [AIGI] deleted her client list from the

agency computer system on or about December 19, 2016; 4) [AIGI] instructed her

to work from home and not to come into the office on or about January 23, 2017;

and 5) [AIGI] refused to pay her using direct deposit on or about February 8,

2017[.]”

The third count alleged that AIGI had further retaliated against Franchino by discharging her on

or about February 15, 2017.

¶ 17 In the complaint against AIGI, the Department’s prayer for relief sought the

following remedies that are relevant here:

“(a) That [AIGI] pay [Franchino] a sum equal to any loss of wages she may

have suffered as a result of the civil rights violations committed against her by

[AIGI];

-7- (b) That [Franchino] be made whole as to all benefits and seniority status

that would have accrued to her but for the civil rights violations committed against

her by [AIGI];

(c) That [AIGI] pay to [Franchino] a sum equal to the damages she may

have suffered because of embarrassment, humiliation, insult and emotional

suffering as a result of the civil rights violations committed against her by [AIGI];

(d) That [AIGI] pay to [Franchino] reasonable attorney’s fees and costs

incurred as a result of the civil rights violations alleged herein;

***

(k) That such further relief be granted as may be necessary to make

[Franchino] whole.”

¶ 18 The complaint against Schwartz consisted of a single count of sexual harassment

incorporating the same allegations above with minor changes in wording. Supra ¶ 15. The prayer

for relief sought the following remedies:

“(a) That [Schwartz] pay to [Franchino] a sum equal to the damages she

may have suffered because of embarrassment, humiliation, insult and emotional

distress as a result of the civil rights violation committed against her by [Schwartz];

(b) That [Schwartz] pay to [Franchino] reasonable attorney’s fees and costs

incurred as a result of the civil rights violation alleged herein;

(c) That [Schartz] be referred to the Department’s Human Rights Training

Institute or similar training program to participate in such training as is necessary

to prevent future civil rights violations; and

-8- (d) That such further relief be granted as may be necessary to make

¶ 19 The complaints were served on the employers via first-class mail to their attorney,

Charles J. Prorok, who had appeared on behalf of the employers while Franchino’s charges were

pending with the Department. See 56 Ill. Adm. Code 5300.560(a) (2022) (providing that “[a]n

appearance by *** counsel with the Department prior to issuance of the Complaint shall constitute

an appearance before the Commission, except” in circumstances not present here).

¶ 20 C. Proceedings Before the ALJ

¶ 21 1. Prehearing Proceedings

¶ 22 The Commission opened a case for each complaint and assigned the cases to an

ALJ (the prior ALJ), who scheduled a hearing in October 2018 at which both parties failed to

appear without explanation. The prior ALJ scheduled a telephonic status hearing for May 21, 2019.

The employers moved for the status hearing to be continued “to some other time that is convenient

for the [prior ALJ] and the parties.” Although the record does not reflect when this hearing was

held, the prior ALJ entered an order on June 3, 2019, stating that “[t]hese causes c[ame] on to be

heard on the parties’ joint oral motion to consolidate” and that the motion was granted.

¶ 23 For reasons unclear from the record, the consolidated case then languished on the

prior ALJ’s docket for 32 months. In February 2022, the ALJ, recently assigned to the case, ordered

the parties to file a joint status report by March 4, 2022, and to appear for a virtual status hearing

on March 8, 2022. The order was sent by first-class mail to Prorok’s office.

¶ 24 In lieu of a joint status report, Franchino filed a unilateral status report explaining

that Prorok had died of liver cancer in late 2020 but that Franchino’s counsel and Prorok had

agreed that there would be no need for discovery in this strict liability matter. After receiving the

-9- ALJ’s order, Franchino’s counsel contacted Schwartz to ask if he had obtained new counsel;

Schwartz said that he had hired Alexander Loftus and provided Loftus’s phone number.

Franchino’s counsel left a voicemail for Loftus but did not receive a response before filing the

status report.

¶ 25 Franchino appeared at the virtual status hearing through her counsel, but neither

Schwartz nor Loftus appeared. The ALJ subsequently entered an order (1) closing discovery,

(2) directing AIGI to have an attorney appear on its behalf by March 22, 2022, because a corporate

entity could not represent itself in the case, (3) directing the parties to submit a joint prehearing

memorandum by April 22, 2022, and to submit any motions in limine by May 6, 2022, (4) setting

a virtual prehearing conference for May 17, 2022, and (5) setting an in-person public hearing on

liability and damages for May 25 and 26, 2022.

¶ 26 The order explained:

“If a new attorney of record fails to enter an appearance on behalf of [AIGI]

on or before March 22, 2022, or if either [employer] subsequently declines to

participate in the preparation of materials necessary to satisfy any deadline

contemplated by this order, I will entertain any appropriate motion from

[Franchino] for a default judgment. If a default judgment is granted, the public

hearing scheduled for May 25-26, 2022, will convert to a damages hearing for the

purposes of assessing [Franchino’s] damages.”

¶ 27 The order was served on the employers via first-class mail to AIGI’s address,

although the ALJ also directed Franchino’s counsel to provide a copy to the employers by e-mail

if she had an e-mail address for Schwartz. All of the ALJ’s future orders and all of Franchino’s

filings while the case was before the ALJ were mailed to AIGI’s address.

- 10 - ¶ 28 No attorney entered a written appearance on AIGI’s behalf by March 22, 2022. See

id. (requiring an appearance to be in writing and served on all parties). On April 22, 2022,

Franchino submitted a prehearing memorandum in accordance with the ALJ’s standing order, in

which Franchino’s counsel explained that she had received no communication about the case from

Schwartz or Loftus despite e-mailing the draft prehearing memorandum to Schwartz on April 20,

2022.

¶ 29 In the section of the prehearing memorandum directing the parties to provide an

“[i]temization of damages and other relief sought, including a summary of attorney’s fees and

costs to date,” Franchino sought the following remedies that are relevant here:

“A. The [employers] pay to [Franchino] a sum equal to the damages she

may have suffered because of embarrassment, humiliation, insult and emotional

distress as a result of the civil rights violation committed against her by [the

employers].

Suggested: $200,000.00.

D. Lost wages: $45,000.00 per year x 2 years ($90,000.00).

K. Such further relief be granted as may be necessary to make [Franchino]

whole.”

The prehearing memorandum did not specifically mention an award of interest.

¶ 30 After reviewing the prehearing memorandum, the ALJ entered an order on April

29, 2022, stating:

- 11 - “Because [the employers] have failed to substantially comply with my

directives for the assembly of the prehearing memorandum—and because [the

employers] have declined to substantively participate in this case in any other

way—I am exercising my authority under 56 Ill. Admin. Code § 5300.710(b) to

entertain a motion from [Franchino] for an order of default.

*** Where *** Schwartz fails to appear at the default judgment hearing, he

will be subjected to an order of default, which means that all allegations of

[Franchino’s] complaint against *** Schwartz will be deemed to be true.

*** Similarly, where *** [AIGI] fails to appear at the default judgment

hearing through counsel, the company will be subjected to an order of default,

which means that all allegations of [Franchino’s] complaint against [AIGI] will be

deemed to be true.

*** While this order makes no finding as to the proper damages or

attorneys’ fees at issue, [the employers] are warned in the strongest possible terms

that an order of default will foreclose the option to oppose or refute the allegations

[Franchino] has made against them in this case.”

¶ 31 The ALJ converted the prehearing conference to a default judgment hearing and

stated that, if the ALJ issued a recommended order of default, the hearing on liability and damages

would “focus solely and exclusively on the issue of damages and attorneys’ fees.” The ALJ ordered

“[a]ll parties to this case (or their counsel) *** to be present by phone or by Webex” at the default

judgment hearing.

¶ 32 2. The Hearings

- 12 - ¶ 33 Because the unusual nature of the default judgment hearing is central to this case,

we reproduce the ALJ’s narrative of the hearing in full:

“This consolidated sexual harassment case came before me for a default

judgment hearing on May 17, 2022. [Franchino] appeared through counsel. An

attorney by the name of Alexander Loftus (of the law firm of Loftus Eisenberg,

Ltd.) appeared at the start of the hearing and announced to both this administrative

court and [Franchino’s] counsel that he represented [Schwartz and AIGI]. Mr.

Loftus had not filed an appearance in this matter, although I took him at his word

(as an officer of the court) that he represented both [employers]. This declaration

by Mr. Loftus would later change as the hearing progressed (and as the matter

became contentious).

As noted above, Mr. Loftus appeared at today’s status hearing and advised

both this administrative court and [Franchino’s] counsel that he represented both

[employers]. Despite not filing his appearance before the Commission, I took Mr.

Loftus at his word and extended him the professional courtesy of allowing him to

appear and speak for his clients. I did this because I assumed Mr. Loftus would file

his appearance posthaste, and because a default judgment is ‘drastic measure’ that

is typically only applied as a ‘last resort.’ [Citation.] Notwithstanding these

concessions, I advised Mr. Loftus that this case was scheduled for a public hearing

starting on May 25, 2022, at 9:30 a.m., and that his opponent had already submitted

a sizable prehearing memorandum.

- 13 - Mr. Loftus responded by stating that he was unable to appear for trial on

May 25, 2022, and that because this matter had originally been scheduled for a

public hearing that might last up to two days, he would prefer to begin the public

hearing on May 26, 2022. I explained that this would not be possible for two

reasons: (1) [Franchino’s] counsel (assuming this matter would be uncontested) had

already made arrangements to have her witnesses appear on May 25, 2022; and

(2) if this matter was now going to be contested, the parties might need the two full

days to hold their public hearing. While I would have been happy to allow [the

employers’] counsel to present his own witnesses on May 26, 2022, the issue was

that Mr. Loftus himself could not be present in court on May 25, 2022.

Bizarrely, Mr. Loftus then asked me to enter a default judgment against his

clients, announcing that my entry of a default judgment (today) would better

position him for the appeal he intended to file. When I questioned why any attorney

would ever ask for a default judgment to be entered against his or her client, Mr.

Loftus appears to have realized what he was requesting, as he immediately

reminded all parties present that he had not filed an appearance in this matter

(effectively suggesting that his lack of an appearance could subsequently exculpate

his client from the request he had just made). In response, I informed Mr. Loftus

that at the start of the hearing, he had expressly stated that he represented both

[employers]. I further explained to Mr. Loftus that he had just consumed over 20

minutes of a hearing in which this administrative court and [Franchino’s] counsel

had relied on his word that he was authorized to speak for [the employers]. Mr.

Loftus’ response was simply, ‘No, it’s just like we’re two guys talking here.’

- 14 - At the conclusion of today’s hearing, I informed Mr. Loftus that I would be

entering a default judgment against both [employers]. If Mr. Loftus does not

represent [them], then his presence at today’s hearing is a nullity that resulted in

neither [employer] participating in the proceeding. If Mr. Loftus does represent

[them], then I find that he (as their attorney) affirmatively requested me to enter a

default judgment against his clients. Either way, the entry of a default against [the

employers] is appropriate. My decision is based not only Mr. Loftus’ equivocation,

but also on the fact that [the employers] have: (1) ignored every order issued by this

administrative court to date; (2) failed to attend the last two status hearings; and

(3) declined to willingly engage in any discussions with [Franchino’s] counsel

regarding the impending public hearing in this matter. The Illinois Human Rights

Act authorizes an administrative law judge of this Commission to enter an order of

default for failure to file required pleadings, failure to appear at a hearing, or failure

to comply with a previous order of this administrative court. [Citation.] [The

employers] are accountable for all three lapses in the instant case.”

¶ 34 In a footnote, the ALJ added:

“It should be noted that despite engaging with any party to this case for the

first time earlier today, Mr. Loftus has been aware of these proceedings for several

months. [Franchino’s] counsel explained at today’s default judgment hearing that

as early as March 3, 2022, *** Schwartz had advised that Mr. Loftus would be [the

employers’] new attorney in these matters. But when [Franchino’s] counsel

attempted to contact Mr. Loftus by leaving him a voicemail, that message was never

returned. This sequence of events was summarized in [Franchino’s] prior status

- 15 - report on March 4, 2022. [Citation.] I therefore find that Mr. Loftus had every

opportunity to file his appearance and actively participate in these proceedings for

months rather than reveal his existence one week before this case is scheduled to

go to trial.”

¶ 35 The ALJ entered the recommended order of default against both employers and

deemed the facts pled in both complaints admitted as true.

¶ 36 At the public hearing on damages, the sole witness was Franchino, who testified

about Schwartz’s sexual harassment, AIGI’s retaliation, and the impact that their conduct had on

her. Franchino’s testimony regarding the employers’ conduct was consistent with the allegations

in the complaints; in addition, she testified that Schwartz promised her that she would make at

least $100,000 per year working at AIGI and that in 2017, she had taken out $17,500 in personal

loans to make up for her lost income. Franchino’s counsel stated that “in terms of the compensation

for the humiliation, embarrassment, and emotional distress that Ms. Franchino has gone through,

we’d ask for the maximum amount allowed under the law. We had suggested an amount of

$200,000 in the prehearing memo.”

¶ 37 3. Posthearing Proceedings

¶ 38 After the hearing, the ALJ entered an order granting Franchino leave to file a

posthearing brief before July 30, 2022, and providing that the employers could “seek leave (on or

before August 15, 2022) to file responsive briefs,” although no submissions would be accepted

from AIGI except through an attorney who properly filed an appearance.

¶ 39 In Franchino’s posthearing brief, she again provided itemized damages, stating that

she found it “difficult to quantify the extreme, lasting, and continuing impact of the [employers’]

conduct committed against her” but that she “request[ed] the sum of $200,000.00 to make her

- 16 - whole and compensate for the embarrassment, humiliation, insult and emotion[al] distress she

ha[d] endured as a direct result of the [the employers’] conduct.” Franchino sought back pay,

computed by subtracting her actual income from the $100,000 per year that the employers had

promised her when she started at AIGI, up until the point in 2021 at which Franchino’s actual

income reached $100,000. Franchino’s request included actual damages of $8,726.89 in interest

that Franchino had paid on her personal loans. Franchino again failed to request an award of

interest on back pay but “request[ed] such further relief be granted as may be necessary to make

[her] whole.” The employers did not respond to Franchino’s posthearing brief.

¶ 40 The ALJ decided to issue a single ruling on both damages and attorney fees and

ordered Franchino to file a petition for attorney fees by January 20, 2023, with the employers

allowed to respond by February 10, 2023. In Franchino’s petition for attorney fees, she specifically

requested “that [the employers] be required to pay” both pre and postjudgment “interest applicable

to the award of damages set forth in the Recommended Order and Decision and the Final Order.”

The employers did not respond to the petition.

¶ 41 The ALJ issued its recommended order and decision on February 17, 2023. The

ALJ ultimately recommended that the Commission award Franchino (1) $305,804.30 in back pay,

with pre and postjudgment interest computed according to the Commission’s rule governing

awards of interest (56 Ill. Adm. Code 5300.1145 (1996)), (2) $8,720.89 in actual damages for the

interest on the personal loans Franchino had taken out because of the employers’ conduct,

(3) $325,000 in actual damages for humiliation, embarrassment, and emotional distress,

(4) $33,332 in attorney fees, and (5) $423.54 in litigation costs—a total of $673,280.73 in

monetary relief before interest. The ALJ assessed all of these remedies against both employers

jointly and severally.

- 17 - ¶ 42 D. Proceedings Before the Commission

¶ 43 On March 8, 2023, a new attorney filed an appearance on behalf of the employers

and timely moved for a 15-day extension of time to file exceptions to the ALJ’s recommended

order and decision, representing that he had been retained on March 2, 2023. Over Franchino’s

objection, the Commission granted the motion.

¶ 44 The employers filed exceptions with the Commission, raising the issues we will

address in the Analysis section. In their exceptions, counsel for the employers made several factual

representations, including that “[w]hen Schwartz began receiving orders and notices from the

Commission by mail, he forwarded them to Loftus without taking the time to determine the

contents of the orders and notices.” Although it is clear from the employers’ exceptions that they

intended to submit 18 documentary exhibits supporting these representations, it is also clear from

Franchino’s response to the exceptions that the exhibits were not served on her. Furthermore, the

exhibits are absent from the record on review, which the Commission has certified is complete.

See Ill. S. Ct. R. 324 (eff. July 1, 2017).

¶ 45 The employers also filed a “motion for leave to file supplemental exhibits to their

exceptions.” The supplemental exhibits consist of two photographs of Schwartz and Franchino

that were taken by Andrea Gunderman on September 22, 2016, and provided to the employers’

new counsel on April 28, 2023. In both photographs, Schwartz is lying in a hospital bed facing the

camera with Franchino standing next to him. In one photograph, Franchino is posed kissing

Schwartz’s head with his hand on her breast; in the other, Franchino is bending down so that her

smiling face is next to Schwartz’s. The employers asserted that “[t]his is by no means sexual

harassment” and that “[t]he photographs also call [Franchino’s] credibility concerning her other

- 18 - allegations of sexual harassment into serious question, as well as her claim that she has suffered

resulting emotional distress warranting an award of $325,000.”

¶ 46 A panel of the Commission denied the employers’ motion and declined to review

the ALJ’s decision, making the ALJ’s recommended order the order of the Commission. The

Commission declined to grant the employers’ petition for rehearing before the entire Commission.

¶ 47 E. Appellate Proceedings

¶ 48 The employers timely filed a petition for statutory direct review with this court. See

735 ILCS 5/3-113 (West 2022) (establishing the procedures for statutory direct review). On the

employers’ motion, the Commission stayed enforcement of its order pending review, conditioned

on the filing of a bond in the amount of $875,000. See Ill. S. Ct. R. 335(g) (eff. July 1, 2017)

(providing for such a stay).

¶ 49 Before filing their opening brief, the employers filed a motion with this court to

supplement the record on review with the 18 exhibits they had attempted to submit, along with

their exceptions. Franchino and the Commission objected on the basis that exhibits 4, 7, 8, 9, 11,

and 13 were never filed with the Commission and the remaining 12 exhibits were copies of

documents already in the record. Accordingly, we denied the motion. See Ill. S. Ct. R. 335(d) (eff.

July 1, 2017) (“The entire record before the administrative agency shall be the record on review

unless the agency and the [party seeking review] stipulate to omit portions.” (Emphasis added.));

735 ILCS 5/3-110 (West 2022) (“No new or additional evidence in support of or in opposition to

any finding, order, determination or decision of the administrative agency shall be heard by the

court.”).

¶ 50 While briefing was pending, Schwartz passed away, so we granted the employers’

unopposed motion to substitute the executor of Schwartz’s estate for Schwartz. See Ill. S. Ct. R.

- 19 - 366(a)(2) (eff. Feb. 1, 1994) (providing that this court may allow substitution of a deceased party);

Ill. S. Ct. R. 335(i)(1) (eff. July 1, 2017) (providing that Rule 366 is applicable to this proceeding

insofar as appropriate). We note that none of the parties have suggested that Schwartz’s death

should affect our analysis of the issues in this appeal.

¶ 51 II. ANALYSIS

¶ 52 A. Legal Standard

¶ 53 Although several aspects of proceedings before the Commission do resemble civil

lawsuits, the parties in this administrative appeal have borrowed language and concepts from civil

appeals a bit too freely, so we will first examine the applicable framework and then recast their

arguments under that framework.

¶ 54 1. Remand vs. Review

¶ 55 In this case, the ALJ made factual findings and recommended based on those

findings that (1) the Commission should enter a default against the employers and (2) the

Commission should award Franchino monetary relief that included interest and $325,000 in

damages for emotional distress. Once the ALJ filed the recommended order with the Commission,

the hearing record was closed and the ALJ’s role was fulfilled. See McQueary, Ill. Hum. Rts.

Comm’n Rep. 1996CF0009, 1998 WL 937866, at *8 (Nov. 20, 1998) (“We review the

Recommended Order and Decision in light of the evidence presented to the Administrative Law

Judge at the hearing.”); see also 56 Ill. Adm. Code 5300.530(b) (1996) (“The Administrative Law

Judge shall rule on all proper motions and objections by any party from the time the Judge is

assigned the matter *** until the Judge’s recommended decision and/or Final Order is filed with

the Commission or issued to the Parties.”).

- 20 - ¶ 56 If the employers were dissatisfied with the hearing record as it stood at that time,

their remedy was to file a written request for the Commission to remand the case to the ALJ for

the purpose of hearing additional evidence. 775 ILCS 5/8A-103(D)(1) (West 2022). The

Commission has established the following procedure for such a request:

“[The] request shall be supported by a statement specifying in detail the evidence

which [the party] proposes to present, its relevance, and the reasons why such

evidence was not presented at the hearing. A request to present additional evidence

shall be granted by the Commission or a three-member panel only if it determines

that substantial justice so requires. In general, such a request will be viewed with

disfavor by the Commission.” 56 Ill. Adm. Code 5300.1010 (1985).

¶ 57 Alternatively, on the existing hearing record, the employers could have “file[d] with

the Commission any written exceptions to any part of the order,” “supported by argument and

served on all parties.” 775 ILCS 5/8A-103(A) (West 2022); 56 Ill. Adm. Code 5300.920 (1992).

They could also have filed a written request for a rehearing of all or any portion of the evidence in

the existing hearing record “before the same or a different Administrative Law Judge,” “supported

by a statement of the reasons why [they] believe[d] that a rehearing [wa]s necessary.” 56 Ill. Adm.

Code 5300.1020 (1985); 775 ILCS 5/8A-103(D)(1) (West 2022); see Barnes, Ill. Hum. Rts.

Comm’n Rep. 1988CN2251, 1992 WL 722709 at *1 (Dec. 23, 1992) (noting that a party bringing

such a motion faces a “very heavy burden”).

¶ 58 The employers could not, however, expand the hearing record by submitting new

exhibits directly to the Commission in conjunction with their exceptions. See Chen, Ill. Hum. Rts.

Comm’n Rep. 1986CF1519, 1998 WL 603519, at *5 (July 24, 1998) (“We are not the finders of

fact. That is the role of the Administrative Law Judge.”); Irick v. Illinois Human Rights Comm’n,

- 21 - 311 Ill. App. 3d 929, 935 (2000) (“Findings of fact made at the administrative level are those made

by the ALJ, except for those which the Commission has found to be contrary to the manifest weight

of the evidence.”). In the absence of a proper request to present additional evidence, the

Commission is entitled to disregard such exhibits and any allegations based on them, as it has done

in prior cases. See, e.g., McQueary, Ill. Hum. Rts. Comm’n Rep. 1996CF0009, 1998 WL 937866,

at *8 (Nov. 20, 1998); Simmons, Ill. Hum. Rts. Comm’n Rep. 1996CF2705, 1998 WL 834687, at

*4 (Sept. 2, 1998); Chen, Ill. Hum. Rts. Comm’n Rep. 1986CF1519, 1998 WL 603519, at *5 (July

24, 1998).

¶ 59 2. The Employers’ Request for Review

¶ 60 Here, the employers attempted to submit six new exhibits in conjunction with their

exceptions, but those exhibits were never served on Franchino or filed with the Commission, so

the exhibits themselves clearly formed no part of the Commission’s decision, nor are they a part

of the record on review. See Ill. S. Ct. R. 335(d) (eff. July 1, 2017) (“The entire record before the

administrative agency shall be the record on review unless the agency and the [party seeking

review] stipulate to omit portions.”). Accordingly, the exhibits themselves will not be considered

on review before this court. See Lipscomb v. Housing Authority of the County of Cook, 2015 IL

App (1st) 142793, ¶ 11 (“When a court reviews the decision of an administrative agency, the court

must review only the record of the administrative proceedings.” (Internal quotation marks

omitted.)).

¶ 61 That said, the employers’ unsupported allegations regarding Schwartz’s lack of

knowledge do appear in the record, and the Commission’s procedural rules do not explicitly

impose an affidavit requirement for exceptions. Compare 56 Ill. Adm. Code 5600.920 (1992)

(providing that written exceptions must be “supported by argument”), with 56 Ill. Adm. Code

- 22 - 5300.765(a) (1996) (providing that a petition for fees and/or costs must be “supported by argument

and affidavits”). Moreover, it appears from the Commission’s precedents that it will consider new

allegations made in exceptions to a recommended order of default, although it is unclear whether

the Commission requires those allegations to be supported by an affidavit or exhibit. See, e.g.,

Perry, Ill. Hum. Rts. Comm’n Rep. 1990CN2389, 1995 WL 714296, at *1 (June 29, 1995) (setting

aside a recommendation of default when “[t]he respondent, in his exceptions, argue[d] that he was

wrongly held in default”); Prince, Ill. Hum. Rts. Comm’n Rep. 1996CF2534, 1997 WL 377153,

at *1 (May 5, 1997) (declining to set aside a recommendation of default based on the respondent’s

“assert[ion] that notice of this pending proceeding was concealed by a former employee”); see also

Wheeler, Ill. Hum. Rts. Comm’n Rep. 1993SF0540, 1995 WL 716896, at *1 (July 12, 1995)

(declining to set aside a notice of default by the Department when “[t]he owner of the respondent

ha[d] submitted an affidavit which state[d] that he personally did not receive notices from the

Department”).

¶ 62 It would behoove the Commission to establish a clear policy regarding the

allegations and materials it will consider when a respondent files exceptions to a recommended

order of default. When the Commission grants a request to set aside a recommended order of

default, the Commission is essentially granting a remand “for purposes of a rehearing to reconsider

evidence or hear additional evidence in the matter,” and must “issue and serve on all parties a

written order remanding the cause and specifying the additional evidence.” 775 ILCS 5/8A-

103(D)(1) (West 2022). To specify the additional evidence, the Commission must have some idea

of what that evidence will be, so it makes sense for the Commission to consider additional

materials or unsupported allegations in reaching its decision.

- 23 - ¶ 63 In contrast, when the Commission denies a request to set aside a recommended

order of default, it must still “decide whether to accept the case for review,” and if it does, it must

“adopt the [ALJ’s] findings of fact if they are not contrary to the manifest weight of the evidence.”

Id. § 8A-103(E)(1)-(2). Assuming without deciding that the Commission would be entitled to deny

review based on factual allegations that were never before the ALJ, our own review would

nevertheless be hindered in such circumstances because the Commission’s reasoning and the

ALJ’s reasoning would not truly be the same. Therefore, we caution the Commission against

collapsing these two inquiries into one. See, e.g., French, Ill. Hum. Rts. Comm’n Rep.

2007CN0661, 2008 WL 5611701, at *1 (Aug. 5, 2008) (referring to “exceptions, in the form of a

motion to vacate the order of default and the recommended order and decision”).

¶ 64 In any event, the issue is academic here because the employers’ unsupported

allegation that Schwartz lacked actual knowledge of the proceedings is irrelevant, as we will

explain and as the Commission has recognized in prior cases. See, e.g., Wheeler, Ill. Hum. Rts.

Comm’n Rep. 1993SF0540, 1995 WL 716896, at *1 (July 12, 1995) (“The owner of the respondent

has submitted an affidavit which states that he personally did not receive notices from the

Department of Human Rights concerning the fact-finding conference. The representations made

by the owner do not indicate, however, that the said notices were not properly served on the

respondent. Accordingly, the respondent’s motion to vacate default is denied.”).

¶ 65 3. The Employers’ Request for Remand

¶ 66 In addition to attempting to attach 18 exhibits to their exceptions, the employers

also filed a motion to supplement the record with two additional exhibits, which the Commission

denied. As a result, those two exhibits are not a part of the hearing record on which the

Commission based its findings of fact (see 5 ILCS 100/10-35(c) (West 2022); 56 Ill. Adm. Code

- 24 - 5300.760(b) (1996)), but they were properly included in the record on review for the limited

purpose of enabling this court to determine whether the Commission’s denial of the employers’

motion was erroneous, akin to an offer of proof, which “enables a reviewing court to determine

whether exclusion of the [proffered] evidence was proper.” People v. Way, 2017 IL 120023, ¶ 33;

see 5 ILCS 100/10-35(a)(4) (West 2022) (“The record in a contested case shall include *** [a]ny

offers of proof, objections, and rulings thereon.”). That said, we agree with Franchino and the

Commission’s view that the reproduction of these images in the employers’ opening brief was

gratuitous, so we strike them. Rather than require the employers to refile their brief without the

offending images, however, we simply admonish counsel that an “appropriate reference to the

pages of the record on appeal” will ensure this court’s review of the referenced exhibits. Ill. S. Ct.

R. 341(h)(6) (eff. Oct. 1, 2020).

¶ 67 4. The Employers’ Argument

¶ 68 Properly construed, the employers’ challenge to the Commission’s decision is an

argument that the Commission abused its discretion by (1) adopting the ALJ’s recommendation of

default, (2) adopting the ALJ’s recommended award of interest and $325,000 in damages for

emotional distress, and (3) denying the employers’ motion to present additional evidence. We

address these issues in turn.

¶ 69 B. The Commission’s Order of Default

¶ 70 The Act provides that

“[t]he [ALJ] may issue *** a recommended order of default as a sanction for the

failure of a party to prosecute [the party’s] case, file a required pleading, appear at

a hearing, or otherwise comply with this Act, the rules of the Commission, or a

previous order of the [ALJ].” 775 ILCS 5/8A-102(I)(6) (West 2022).

- 25 - ¶ 71 The Commission has supplemented this section of the Act with two procedural

rules that are relevant here. See Chicago Transit Authority v. Department of Human Rights, 169

Ill. App. 3d 749, 753 (1988) (noting that an administrative agency has “authority to regulate and

execute the provisions of the statute and to carry out the powers conferred upon it”). Section

5300.710(b) of the Illinois Administrative Code provides:

“Should a party fail substantially to comply with the directions set out for the pre-

hearing memorandum or fail to appear at a scheduled pre-hearing conference, the

Administrative Law Judge, on motion, may file a recommendation of *** default

*** or other appropriate Order imposing sanctions as justice may require.” 56 Ill.

Adm. Code 5300.710(b) (1996).

Section 5300.750(e) provides:

“Should a Party fail to appear at a scheduled hearing without requesting a

continuance reasonably in advance, or unreasonably refuse to comply with any

Order entered under this Part, or otherwise engage in conduct which unreasonably

delays or protracts proceedings, the Administrative Law Judge may file a

recommendation of dismissal with prejudice or default or other appropriate Order

imposing sanctions as justice may require, including requiring the offending Party

or attorney to pay the reasonable expenses and attorney’s fees incurred by any other

Party as a result of the misconduct.” 56 Ill. Adm. Code 5300.750(e) (1998).

These rules are controlling on the Commission. See Tolliver v. Housing Authority of the County of

Cook, 2017 IL App (1st) 153615, ¶ 33.

¶ 72 Although the Act and the Administrative Code expressly authorize the ALJ to

recommend a default for (1) a failure to substantially to comply with the directions set out for the

- 26 - prehearing memorandum, (2) a failure to appear at a scheduled prehearing conference, or

(3) several forms of unreasonable conduct, the employers argue that a higher showing was

necessary before the ALJ could recommend a default, namely, that their “conduct showed a

deliberate, contumacious, or unwarranted disregard for the ALJ’s authority.” MIFAB, Inc. v.

Illinois Human Rights Comm’n, 2020 IL App (1st) 181098, ¶ 47. When this quote is viewed in

context, it is clear that MIFAB stands for no such thing:

“Although we believe that the [Administrative] Code expressly authorized

the Commission to enter a default against [the respondent], if we were to apply

Rule 219(c) to the facts of this case, we would still find that the Commission did

not err by entering default against [the respondent] because its conduct showed a

deliberate, contumacious, or unwarranted disregard for the ALJ’s authority.”

(Emphasis added.) Id.

Nevertheless, we will follow MIFAB’s lead and address both the Administrative Code and this

higher standard because the result will be the same either way. As explained in MIFAB,

“we review the Commission’s decision to adopt the ALJ’s recommendation to enter

a default as a sanction against [a respondent] under an abuse of discretion standard.

[Citation.] A sanction will be found to be an abuse of discretion if it is arbitrary and

capricious, or if the sanction is overly harsh in view of the mitigating circumstances.

[Citation.]” (Internal quotation marks omitted.) Id. ¶ 41.

¶ 73 Here, the employers do not dispute that Loftus failed substantially to comply with

the directions set out for the prehearing memorandum, failed to attend hearings, and failed to enter

a written appearance on the docket as required by the Commission’s rules and the ALJ’s order.

Instead, the employers argue that Loftus’s misconduct should not be held against them because

- 27 - they reasonably believed that Loftus was handling the matter on their behalf. Because the

employers’ conduct was reasonable, they argue, sanctions against them were improper under any

of the standards above. See 56 Ill. Adm. Code 5300.710(b) (1996); 56 Ill. Adm. Code 5300.750(e)

(1998); MIFAB, 2020 IL App (1st) 181098, ¶ 47.

¶ 74 The problem with this argument is that the filings in the case were being served on

the employers themselves, not Loftus, and the employers have never alleged that they failed to

receive those filings. While the employers may have believed that Loftus was handling the case

on their behalf, that belief was no longer reasonable after they received the April 29, 2022, order

in which the ALJ stated that no one acting on their behalf had substantively participated in the case

in any way. At that point, they had been notified that Loftus was utterly failing to represent them,

so when they sent him to represent them at the May 17, 2022, hearing, they ran the obvious risk

that he would again fail to attend, file an appearance, advocate for their interests, substantively

participate in the case, or otherwise show respect for the ALJ’s authority. Loftus’s behavior at the

hearing, while bizarre, was par for the course.

¶ 75 The employers argue that their belief was nevertheless reasonable because

Schwartz forwarded the letter to Loftus without reading it, meaning the employers lacked actual

knowledge of Loftus’s misconduct. The chief problem with this argument is that it would enable

employers to escape responsibility for sexual harassment by refusing to open mail from the

Commission. See CitiMortgage, Inc. v. Lewis, 2014 IL App (1st) 131272, ¶ 39 (“ ‘If the proper

giving of the notice can now be frustrated by the mere allegation of the defendant that he did not

receive it, then the giving of notice by mail cannot be relied upon even though the rules specify

such a method.’ ” (quoting Bernier v. Schaefer, 11 Ill. 2d 525, 529 (1957))). Requiring a claimant

- 28 - seeking a default to prove that a notice was not just delivered but also opened and read would

create an insurmountable obstacle to obtaining relief.

¶ 76 Even if actual knowledge were the standard, however, we would sustain the

Commission’s finding of actual knowledge unless it was clearly evident from the record that the

employers lacked actual knowledge of Loftus’s misconduct. The evidence overwhelmingly

suggests that the employers had actual knowledge: the ALJ had certificates of service of the prior

filings from Commission staff and Franchino’s counsel; statements from Franchino’s counsel that

she had reached Schwartz by phone, Loftus was his attorney, she left Loftus a voicemail, and she

sent Schwartz an e-mail; and statements from Loftus that he represented the employers. Assuming

the employers’ unsupported allegations of Schwarz’s ignorance were a proper subject for the

Commission’s consideration, the Commission was free to conclude that they did not warrant

setting aside the ALJ’s recommendation of default. See Wheeler, Ill. Hum. Rts. Comm’n Rep.

1993SF0540, 1995 WL 716896, at *1 (July 12, 1995).

¶ 77 Ultimately, the employers’ argument boils down to a claim that Loftus’s conduct

at the hearing was so bizarre, and his representation so patently deficient, that the ALJ should have

inferred from Loftus’s conduct alone that the employers “could not have known that Loftus would

request that a default order enter against [them] and then retract the request and deny that he

represented them.” But this request, retraction, and denial came only after Loftus attempted to

delay the hearing on the employers’ behalf. The ALJ could just as easily have inferred that Loftus’s

bizarre conduct was part of a calculated effort by the employers to test the waters and comply with

the ALJ’s order only if it favored them—in other words, another example of their deliberate,

contumacious, and unwarranted disregard for the ALJ’s authority. “Where the evidence permits

- 29 - multiple reasonable inferences, the reviewing court will accept those inferences that support the

*** order.” In re Marriage of Bates, 212 Ill. 2d 489, 516 (2004).

¶ 78 Indeed, the employers fail to suggest what alternative course of action the ALJ

should have taken in response to Loftus’s bizarre conduct. The implication of their argument seems

to be that the ALJ should have contacted the employers directly and informed them that their

attorney, if he even was their attorney, was incompetent. This course of action might have been

appropriate if there had been some indication that the employers were unaware of Loftus’s actions

so far, say if prior notices had been served on Loftus instead of the employers themselves. See

Jacobson v. Ashkinaze, 337 Ill. 141, 148 (1929) (“[A] party is not chargeable with notice to an

attorney when the relation of attorney and client does not exist between them.”). But the ALJ had

already communicated with the employers directly about Loftus’s conduct; the ALJ was under no

obligation to afford them another prehearing conference at which they could again disregard the

ALJ’s authority.

¶ 79 In short, the Commission’s adoption of the ALJ’s recommendation of default was

not arbitrary and capricious or unduly harsh in light of the mitigating circumstances. See MIFAB,

2020 IL App (1st) 181098, ¶ 47.

¶ 80 C. The Commission’s Authority to Award the Chosen Remedies

¶ 81 The employers raise several challenges to the Commission’s award of interest and

damages for emotional distress. The employers’ argument on this point, while perfunctory, blends

three different issues, one of which goes to the Commission’s discretion, which we examine in a

later section. The other two issues go to the Commission’s authority, namely, (1) whether the

Commission denied the employers their constitutional right to due process of law and (2) whether

the Commission exceeded its statutory authority in awarding the remedies in this case.

- 30 - ¶ 82 1. Due Process

¶ 83 It is well established that “[a]dministrative hearings, like judicial proceedings, are

governed by fundamental principles and requirements of due process.” Scatchell v. Board of Fire

& Police Commissioners for Melrose Park, 2022 IL App (1st) 201361, ¶ 116. “Whether an

administrative hearing complied with due process is a question of law [that] will be reviewed

de novo.” MIFAB, 2020 IL App (1st) 181098, ¶ 81.

“In administrative hearings, due process of law specifically requires a

definite charge, adequate notice, and a full and impartial hearing. [Citation.] That

said, charges in administrative proceedings do not need to be as precisely worded

as the pleadings in a judicial proceeding, provided the respondent is adequately

advised of the charges so that he may intelligently prepare a defense.” Scatchell,

2022 IL App (1st) 201361, ¶ 120.

“Adequacy of notice is determined by whether the party receiving notice should have anticipated

the effects and orders possible under an adverse ruling.” Florsheim Shoe Co. v. Illinois Fair

Employment Practices Comm’n, 99 Ill. App. 3d 868, 871 (1981); see Grimm v. Calica, 2015 IL

App (2d) 140820, ¶ 15, aff’d, 2017 IL 120105 (“[D]ue process mandates notice sufficient to allow

the person whose interest is at risk to decide how to respond.”).

¶ 84 With respect to notice that the Commission might award interest, the employers

focus on the complaints, but this focus is myopic. “In determining whether [a party] has adequate

notice of charges brought by an administrative agency, ‘the court may consider the discovery and

other materials available to the [party].’ ” Morgan v. Department of Financial & Professional

Regulation, 388 Ill. App. 3d 633, 666 (2009) (quoting Siddiqui v. Department of Professional

Regulation, 307 Ill. App. 3d 753, 760 (1999)). Here, the employers were properly served by mail

- 31 - with Franchino’s petition for fees and costs seeking interest and the ALJ’s order stating that the

employers could file written objections to that petition. Even if the employers failed to actually

read these documents, they had constitutionally sufficient notice of their contents. See

CitiMortgage, 2014 IL App (1st) 131272, ¶ 39 (explaining that notice is satisfied by the use of

regular mail even if the recipient fails to receive actual notice); see also Tulsa Professional

Collection Services, Inc. v. Pope, 485 U.S. 478, 490 (1988) (“We have repeatedly recognized that

mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide

actual notice.”).

¶ 85 The Commission’s publicly available procedural rules provided the employers

notice of the formula by which an award of interest would be calculated (56 Ill. Adm. Code

5300.1145 (1996)) and allowed for the employers to request additional time to respond, if

necessary, and to seek a hearing where the ALJ could “resolve contested issues and *** take other

steps to produce a complete record” (56 Ill. Adm. Code 5300.765(d)-(e) (1996)). See Mercury

Sightseeing Boats, Inc. v. County of Cook, 2019 IL App (1st) 180439, ¶ 89 (“[D]ue process does

not require the government to explain the available remedies or procedures to internally challenge

an administrative action, as long as those remedies are provided in publicly available sources such

as statutes, rules, or the like.” (citing City of West Covina v. Perkins, 525 U.S. 234, 240-41 (1999),

and M.A.K. Investment Group, LLC v. City of Glendale, 897 F.3d 1303, 1318-19 (10th Cir. 2018))).

¶ 86 As such, the employers received notice that an award of interest was possible, and

they were afforded a meaningful opportunity to respond to Franchino’s request for interest,

including by arguing that interest had not been specifically requested in the Department’s

complaints. “ ‘Due process is not denied when a party fails to avail himself of the opportunity to

be heard after it is offered to him.’ ” Zale v. Moraine Valley Community College, 2019 IL App

- 32 - (1st) 190197, ¶ 39 (quoting In re E.L., 152 Ill. App. 3d 25, 33 (1987)); see MIFAB, 2020 IL App

(1st) 181098, ¶ 81 (“The law is clear. There is no due process violation in an administrative agency

proceeding where the negligence or intentional conduct of a party results in *** the entry of a

default judgment against the party.”).

¶ 87 With respect to Franchino’s suggestion in the prehearing memorandum that she be

awarded $200,000 in damages for emotional distress, the question is whether the employers had

adequate notice that if they failed to participate in the damages hearing or file a posthearing brief,

a greater award of damages was still possible. See Florsheim Shoe, 99 Ill. App. 3d at 871. Here

again, we find that the notice was adequate; Franchino’s language was equivocal, and a suggestion

is by definition a nonbinding proposal. See Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/suggest (last visited Dec. 4, 2024)

[https://perma.cc/FQ7C-ZSQB] (defining “suggest” as “propose as desirable or fitting”). For that

matter, a prehearing memorandum is only an administrative convenience for the Commission (see

56 Ill. Adm. Code 5300.710(a) (1996)); to treat a suggestion of relief in the prehearing

memorandum as controlling over the prayer for relief in the complaint would render the suggestion

a de facto amendment to the complaint, circumventing the statutory process for making such

amendments. 775 ILCS 5/8A-102(C) (West 2022); see 56 Ill. Adm. Code 5300.650 (1996). The

employers not only had an opportunity to argue that the $200,000 suggestion was excessive, they

could have also asserted that the $200,000 “suggestion” should be treated as a suggestion that no

more than $200,000 would be appropriate. They did neither.

¶ 88 In sum, we find that the employers were given adequate notice that the Commission

might award interest and additional damages for emotional distress, and the employers had a

meaningful opportunity to be heard on these remedies before they were awarded. The employers’

- 33 - failure to avail themselves of that opportunity, whether negligent or intentional, was not a denial

of due process.

¶ 89 2. Statutory Authority

¶ 90 The employers argue that notice and an opportunity to be heard were not enough

and that the Commission lacks the statutory authority to award remedies against a defaulting party

unless those remedies are specifically requested in the complaint. Although the employers focus

only on interest, we must broaden the inquiry slightly because of our independent duty to consider

whether the Commission exceeded its statutory authority, also known as its jurisdiction. Gilchrist

v. Human Rights Comm’n, 312 Ill. App. 3d 597, 600 (2000); see Delgado v. Board of Election

Commissioners of Chicago, 224 Ill. 2d 481, 485 (2007) (“Any action or decision taken by an

administrative agency in excess of or contrary to its authority is void.”). We first address the scope

of the Commission’s authority under the Act and then consider whether the agency exceeded that

authority by awarding the remedies in this case. We review de novo whether an agency exceeded

its statutory authority. Gilchrist, 312 Ill. App. 3d at 602.

¶ 91 a. The Complaint Requirement

¶ 92 “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.”

Id. at 601. There is no dispute that the relief awarded in this case falls within the legislature’s

express grant of authority for the Commission to remedy civil rights violations. See 775 ILCS

5/8A-104 (West 2022); Village of Bellwood Board of Fire & Police Commissioners v. Human

Rights Comm’n, 184 Ill. App. 3d 339, 355 (1989) (noting that section 8A-104 of the Act authorizes

damages for emotional distress). Contra Crittenden v. Cook County Comm’n on Human Rights,

2013 IL 114876, ¶ 34 (finding that the Cook County Commission on Human Rights had no

- 34 - authority to award punitive damages absent express authorization by the legislature or the Cook

County Board). However, an agency’s statutory authority can be subject to procedural as well as

substantive constraints. See Walsh v. Champaign County Sheriff’s Merit Comm’n, 404 Ill. App.

3d 933, 940 (2010) (finding that an administrative agency “exceeded its statutory authority by

entering an order *** dismissing the charges *** without considering, in any manner, the merits

or substance of the charges”). Here, the question is more procedural than substantive, namely, is

the Commission authorized to award remedies against a defaulted party when those remedies were

not specifically requested in the complaint?

¶ 93 The Act provides:

“When the complainant requests that the Department file a complaint with the

Commission on his or her behalf, the Department shall prepare a written complaint,

under oath or affirmation, stating the nature of the civil rights violation

substantially as alleged in the charge previously filed and the relief sought on behalf

of the aggrieved party.” (Emphases added.) 775 ILCS 5/7A-102(F)(1) (West 2022).

The Act also establishes a specific procedure for amending complaints:

“(1) A complaint may be amended under oath by leave of the presiding

[ALJ], for good cause shown, upon timely written motion and reasonable notice to

all interested parties at any time prior to the issuance of a recommended order

pursuant to Section 8A-102(I) or 8B-102(J). The amended complaint shall be

served upon all parties of record and the Department of Human Rights by the

complainant, or by the Department if it prepared and filed the amended complaint,

within 7 days of the date of the order permitting its filing or such additional time as

the [ALJ] may order. Amendments to the complaint may encompass any unlawful

- 35 - discrimination which is like or reasonably related to the charge and growing out of

the allegations in such charge, including, but not limited to, allegations of

retaliation.

(2) A motion that the complaint be amended to conform to the evidence,

made prior to the close of the public hearing, may be addressed orally on the record

to the hearing officer, and shall be granted for good and sufficient cause.” Id. § 8A-

102(C).

¶ 94 When making a decision on the merits, the ALJ must “determine whether the

respondent has engaged in or is engaging in the civil rights violation with respect to the person

aggrieved as charged in the complaint. A determination sustaining a complaint shall be based upon

a preponderance of the evidence.” (Emphasis added.) Id. § 8A-102(I)(1). “The [ALJ] shall make

findings of fact in writing and, if the finding is against the respondent, shall issue and cause to be

served on the parties and the Department a recommended order for appropriate relief as provided

by this Act.” (Emphasis added.) Id. § 8A-102(I)(2). The Act provides, “Upon finding a civil rights

violation, [an ALJ] may recommend and the Commission or any three-member panel thereof may

provide for any relief or penalty identified in this Section, separately or in combination ***.”

(Emphases added.) Id. § 8A-104.

¶ 95 Putting these sections together suggests that the remedies requested in the

complaint do not limit the remedies available when a case is adjudicated on the merits. See 56 Ill.

Adm. Code 5300.760(e)(1) (1996) (adopting this approach). Section 2-604.2(a), (c) of the Code of

Civil Procedure establishes a similar rule for civil lawsuits (735 ILCS 5/2-604.2(a), (c) (West

2022)):

- 36 - “(a) *** [E]very count in every complaint and counterclaim must request

specific remedies the party believes it should receive from the court.

(c) Except in the case of default, the remedies requested from the court do

not limit the remedies available. Except in the case of default, if a party seeks

remedies other than those listed in the complaint or counterclaim, the court may,

by proper order, and upon terms that may be just, protect the adverse party against

prejudice by reason of surprise.

In the case of default, if a remedy is sought in the pleading, whether by

amendment, counterclaim, or otherwise, that is beyond what the defaulted party

requested [sic], notice shall be given to the defaulted party as provided by Illinois

Supreme Court Rule 105 [(eff. Jan. 1, 2018)].”

¶ 96 However, the Act is silent on the remedies available in the case of default. Contra

id. To the extent the Act addresses remedies in general, it is at best ambiguous on this point. To be

sure, the ALJ is expressly authorized to issue “a recommended order of default as a sanction” when

it finds a party has failed to “comply with th[e] Act, the rules of the Commission, or a previous

order of the [ALJ]” (775 ILCS 5/8A-102(I)(6) (West 2022)), and the ALJ may issue “a

recommended order for appropriate relief” (see id. § 8A-102(I)(2)). However, it is not exactly the

case that the ALJ’s recommended order of default constitutes “[a] determination sustaining a

complaint” (id. § 8A-102(I)(1)) or a “finding [of] a civil rights violation” (id. § 8A-104).

¶ 97 Therefore, the question of what constitutes “appropriate relief” in the case of a

default could arguably mean either (1) the remedy is appropriate because it is authorized by section

8A-104 of the Act or (2) the remedy is appropriate to the case because it is both authorized by the

- 37 - Act and was specifically requested in the complaint. As such, the statute is ambiguous. See Miller

v. Department of Agriculture, 2024 IL 128508, ¶ 30 (“A statute is ambiguous if it is capable of

being understood by reasonably well-informed persons in two or more ways.”).

¶ 98 b. Constitutional Avoidance

¶ 99 To determine which of these interpretations is correct, we turn to the canon of

constitutional avoidance. The Illinois Supreme Court’s “long-standing rule is that ‘cases should be

decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a

last resort.’ ” The Carle Foundation v. Cunningham Township, 2017 IL 120427, ¶ 34 (quoting

In re E.H., 224 Ill. 2d 172, 178 (2006)). This canon “rest[s] on the reasonable presumption that

[the legislature] did not intend the [interpretation] which raises serious constitutional doubts.”

Clark v. Martinez, 543 U.S. 371, 381 (2005). Employing this canon here, we conclude that

“appropriate relief” in the case of a default includes only those remedies that are both authorized

by the Act and specifically requested in the complaint, either as initially filed under section 7A-

102(F)(1) or by an amendment in accordance with section 8A-102(C).

¶ 100 It is true that the pleading and notice requirements of section 2-604.2 of the Code

of Civil Procedure do not apply to administrative proceedings and that “charges in administrative

proceedings do not need to be as precisely worded as the pleadings in a judicial proceeding,

provided the respondent is adequately advised of the charges so that he may intelligently prepare

a defense.” Scatchell, 2022 IL App (1st) 201361, ¶¶ 116-117, 120. However, the rule that a

plaintiff should recover only the relief requested in its complaint has its roots in the “fundamental

principles and requirements of due process.” Id. ¶ 116; see Klehm v. Klehm, 41 Ill. App. 2d 423,

427 (1963) (“It is fundamental in our system of jurisprudence that a defendant is entitled to know

the precise charge that is laid at his door, the nature and the extent of the relief sought, the property

- 38 - that is or may be affected and an opportunity to be heard.”). Indeed, a key component of

“intelligently prepar[ing] a defense” is knowing what is at stake if no defense is prepared at all.

See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“ ‘The fundamental

requisite of due process of law is the opportunity to be heard.’ [Citation.] This right to be heard

has little reality or worth unless one is informed that the matter is pending and can choose for

himself whether to appear or default, acquiesce or contest.”).

¶ 101 Therefore, section 2-604.2 of the Code of Civil Procedure provides a mechanism

for ensuring the defendant’s right to due process is satisfied in a civil case. Cf. In re Genesys Data

Technologies, Inc., 18 P.3d 895, 900 (Haw. 2001) (noting that a similar rule limiting relief in the

cases of default “implicates the defendant’s right to due process”). We conclude that the Act’s

requirement for a complaint to state the relief sought on behalf of the aggrieved party, along with

the specific notice requirements for amendments to the complaint, were similarly intended to

ensure the respondent’s right to due process is satisfied in administrative proceedings. Cf. Ryan v.

Miller, 58 Ill. App. 3d 283, 286 (1978) (“Although [section 2-604.2] is not applicable to small

claims cases in specific terms, it sets forth a principle of justice and fairness which should be

equally applicable to small claims.”).

¶ 102 Finally, we note that although the employers here received constitutionally

adequate notice and an opportunity to be heard on the remedies awarded against them in this case,

that fact alone does not mean that the Act should be interpreted to authorize an award of relief

beyond what is requested in the complaint. Clark, 543 U.S. at 380-81 (“If one [plausible statutory

construction] would raise a multitude of constitutional problems, the other should prevail—

whether or not those constitutional problems pertain to the particular litigant before the [c]ourt.”).

- 39 - We express no opinion as to whether such an approach would be consistent with due process if the

legislature had chosen to pursue it.

¶ 103 c. The Present Case

¶ 104 Having concluded that the prayer for relief in the complaint limits the relief

available, we find that the validity of an award of relief should be determined by a fair reading of

the complaint, “in view of the nature of the [allegation] pleaded, the notice in the complaint [of

the award] being sought, and the size of the final award.” Kaput v. Hoey, 124 Ill. 2d 370, 382

(1988).

¶ 105 With respect to the complaint against Schwartz, the nature of the allegation is

sexual harassment. Nothing in the complaint mentions Franchino’s discharge or subsequent loss

of pay, and the prayer for relief does not mention back pay or the interest on Franchino’s personal

loans. Even under the most liberal reading of the complaint, we find that it fails to provide notice

that the Commission might find Schwartz jointly and severally liable for the loan interest or an

award of back pay with or without interest. Because the Commission exceeded its statutory

authority by awarding these remedies in the absence of a request, we vacate its finding of liability

as to Schwartz only. See Crittenden, 2013 IL 114876, ¶ 1 (overturning the portion of an award not

authorized by statute).

¶ 106 Turning to the complaint against AIGI, Franchino’s allegation of retaliation clearly

contemplates an award of back pay, which she specifically requests, although no specific mention

is made of Franchino’s personal loans. However, Franchino’s general prayer for relief takes its

language directly from the language of the Act, which provides that the Commission may “[t]ake

such action as may be necessary to make the individual complainant whole, including, but not

- 40 - limited to, awards of interest on the complainant’s actual damages and backpay from the date of

the civil rights violation.” (Emphases added.) 775 ILCS 5/8A-104(J) (West 2022).

¶ 107 While in civil cases, it may be that a general prayer for unlimited “further relief” is

insufficiently specific in the case of a default (see Safety-Kleen Corp. v. Canadian Universal

Insurance Co., 258 Ill. App. 3d 298, 305-06 (1994)), in this administrative proceeding, we find

that despite the complaint’s failure to include the emphasized language above, AIGI was afforded

adequate notice that it might be assessed awards of interest. The fact that this “further relief” was

not limited to awards of interest is immaterial to this case, where the only further relief awarded

was specifically authorized by the relevant portion of the statute; we decline to impose a technical

pleading requirement that we would likely not impose on a formal civil pleading. See Secrest v.

Department of Corrections, 64 Ill. App. 3d 458, 459 (1978) (“[C]harges filed before an

administrative agency need not be drawn with the refinements and subtleties of pleadings before

a court.”); cf. Norman A. Koglin Associates v. Valenz Oro, Inc., 176 Ill. 2d 385, 395 (1997)

(“ ‘Pleadings are not intended to create obstacles of a technical nature to prevent reaching the

merits of a case,’ but instead are intended ‘to facilitate the resolution of real and substantial

controversies.’ ”). Nevertheless, we express no opinion as to what “further relief,” in addition to

awards of interest, might have been authorized here.

¶ 108 D. The Commission’s Choice of Remedies

¶ 109 We review the Commission’s choice of remedies for an abuse of discretion.

“Under this standard, the Commission’s award will not be disturbed unless it is

arbitrary or capricious, or unless no reasonable person would agree with the

Commission’s position. [Citation.] A decision is arbitrary and capricious if it

contravenes legislative intent, fails to consider a critical aspect of the matter, or

- 41 - offers an explanation so implausible it cannot be considered an exercise of the

agency’s expertise. [Citation.] In determining whether there has been an abuse of

discretion, this court may not substitute its judgment for that of the agency, or even

determine whether the agency exercised its discretion wisely. [Citation.]” Windsor

Clothing Store v. Castro, 2015 IL App (1st) 142999, ¶ 48.

¶ 110 1. The Commission’s Award of “Unrequested” Remedies

¶ 111 AIGI argues that the Commission’s award of interest and damages in excess of

$200,000 was arbitrary and capricious because the Commission failed to consider that Franchino

had not requested these remedies in every filing. This argument overlooks that “failed to consider”

means what it says: “failed to consider.” See, e.g., Burlington Truck Lines, Inc. v. United States,

371 U.S. 156, 167 (1962) (setting aside a decision of the Interstate Commerce Commission when

“[t]here [we]re no findings and no analysis *** to justify the choice made, no indication of the

basis on which the Commission exercised its expert discretion”). Here, the Commission

specifically considered that these remedies had not been requested at certain points but “cogently

explain[ed] why it *** exercised its discretion in a given manner.” Motor Vehicle Manufacturers

Ass’n of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 48

(1983). With respect to the awards of interest, AIGI takes no issue with the Commission’s

explanation, so we find no abuse of discretion and affirm the awards of interest as to AIGI only.

See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited ***.”).

¶ 112 With respect to the $125,000 in damages for emotional distress in excess of the

$200,000 suggested in both pre and posthearing submissions, we agree that this 62.5% increase is

eye-catching. However, we reject the employers’ argument that such a suggestion functions as a

cap on the Commission’s award. As noted above, a prehearing memorandum is only an

- 42 - administrative convenience for the Commission; it is not a formal amendment to the complaint,

nor is it evidence. To give a prehearing memorandum conclusive weight would render it a de facto

amendment to the complaint and excuse the Commission from its obligation to make its findings

based on the hearing record. See 5 ILCS 100/10-35(c) (West 2022). On review, we must treat the

Commission’s findings, not the complainant’s suggestion, as prima facie correct. Raintree Health

Care Center v. Illinois Human Rights Comm’n, 173 Ill. 2d 469, 479 (1996).

¶ 113 Furthermore, requiring the Commission to treat a suggestion in the claimant’s

prehearing memorandum as a cap on damages would disincentivize claimants’ attorneys from ever

making good-faith suggestions out of the possibility that their clients might not be awarded a full

recovery. A litigant’s suggestion for the proper damage award is neither a floor nor a ceiling that

binds the Commission. Accordingly, we decline to overturn the Commission’s award on the basis

that it exceeded Franchino’s suggestion.

¶ 114 2. The Amount of Damages for Emotional Distress

¶ 115 The employers argue that the Commission’s award of damages for emotional

distress was both unwarranted and excessive. “The amount of damages awarded to a prevailing

claimant by the Commission will not be disturbed on review absent an abuse of discretion.”

Windsor Clothing, 2015 IL App (1st) 142999, ¶ 48; see 775 ILCS 5/8A-104(B) (West 2022)

(providing that actual damages must be “reasonably determined by the Commission”). An award

of damages is “excessive only if it is unfair and unreasonable, if it results from passion or prejudice,

or it is so excessively large that it shocks the conscience.” Donnellan v. First Student, Inc., 383 Ill.

App. 3d 1040, 1063 (2008).

¶ 116 Although damages for emotional distress are difficult to quantify, the award must

nevertheless be supported by the evidence presented at the hearing. See MIFAB, 2020 IL App (1st)

- 43 - 181098, ¶ 76; 5 ILCS 100/10-35(c) (West 2022); see also Donnellan, 383 Ill. App. 3d at 1064

(emphasizing that an “award for noneconomic damages *** still must be a product of the

evidence”). However, the Commission may award damages for emotional distress based on a

claimant’s testimony alone, despite the employers’ argument that evidence from a mental health

professional was required. See Thornton v. Garcini, 237 Ill. 2d 100, 108 (2009) (“The absence of

medical testimony does not preclude recovery for emotional distress.”).

¶ 117 Initially, the employers argue that Franchino failed to overcome the presumption

that the award of back pay was adequate to make her whole. This presumption has a long pedigree

in the Commission’s employment cases:

“The Commission will presume that the recovery of all pecuniary losses (such as

back pay) fully compensates an aggrieved party for his or her losses.

In unusual circumstances, however, where the Complainant has set forth

facts which clearly and unmistakeably show a violation of the Act and where it is

absolutely clear from the record that the recovery of the Complainant’s pecuniary

loss will not adequately compensate the Complainant for his or her actual damages,

the Commission will award, as compensation, an amount of money which is

adequate to make up for the humiliation and embarrassment caused by the violation

of the Human Rights Act. The measure of damages should be whether the amount

of the award is appropriate in light of the nature and duration of the suffering

experienced by the Complainant. [Citation.] The amount of damages awarded is

appropriate if it is sufficient to ‘ease one’s feelings’ regarding the humiliation

occasioned by the civil rights violation. [Citations.]” Smith, Ill. Hum. Rts. Comm’n

Rep. 1982CF1564, 2005 WL 3452447, at *6 (Oct. 31, 1985).

- 44 - See, e.g., Stewart, Ill. Hum. Rts. Comm’n Rep. 2007CF2704, 2023 WL 8192594, at *22 (Nov. 21,

2023) (“Therefore, to recover emotional distress damages, Complainant must prove that he has

experienced emotional distress significantly over and above that which is to be expected from a

mere violation of the Act.”).

¶ 118 The procedural requirements for overcoming this presumption are not spelled out

in the Commission’s rules, nor is it immediately clear what basis this heightened burden of proof

has in the Act itself, which does not provide for “mere” violations in the context of employment

but simply defines what “is a civil rights violation” (775 ILCS 5/2-102 (West 2022)), with no

expressed preference for any particular remedy (see id. § 8A-104(B) (providing that “actual

damages *** for injury or loss suffered by the complainant” are one of several potential remedies);

id. § 8A-102(I)(2) (allowing the Commission to choose “appropriate relief as provided by this

Act”)). Indeed, the Act affords no refuge for employers who engage in sexual harassment but pay

their employees well. See id. §§ 2-101(E)(3), 2-102(D); see also id. § 1-102 (“It is the public policy

of this State *** [t]o prevent sexual harassment in employment *** [and to] promote the public

health, welfare and safety by protecting the interest of all people in Illinois in maintaining personal

dignity ***.”).

¶ 119 Because the parties do not address this issue, we assume for the sake of argument

that Franchino was required to overcome the Commission’s presumption that the award of back

pay was adequate to make her whole. Cf. Board of Education of the City of Chicago v. Moore,

2021 IL 125785, ¶ 59 (emphasizing that an agency had flexibility in choosing how to implement

a remedial discipline system under the authorizing statute). We have no trouble sustaining the

Commission’s conclusion that Franchino met this burden.

- 45 - ¶ 120 First, the award of back pay and interest made Franchino whole with respect to her

retaliation claims against AIGI, but it afforded her no additional relief for Schwartz’s harassment.

It was eminently reasonable for the Commission to conclude that some form of compensation for

Schwartz’s conduct would still be necessary to make Franchino whole, particularly given

Schwartz’s violations of Franchino’s bodily integrity. Assuming the harassment and retaliation

were grouped together as a single violation, the Commission could still have reasonably concluded

that this was no “mere” violation to be remedied with back pay alone. Even if the employers had

paid Franchino the $100,000 per year that Schwartz had promised her, that would only have made

her an insurance agent, not Schwartz’s “girlfriend,” “stripper,” or “prostitute” that he could ask for

massages and harass with impunity. Furthermore, Schwartz’s sexual harassment had ramifications

beyond the workplace, leading to embarrassment and humiliation of Franchino in front of clients

and third parties as well as her coworkers. An award of damages for her emotional distress was

more than reasonable.

¶ 121 Turning to the amount of the emotional distress award, the employers allege that

$325,000 is the largest such award in the Commission’s history, an allegation that the Commission

does not dispute. See Hobby Lobby Stores, Inc. v. Sommerville, 2021 IL App (2d) 190362, ¶ 13,

50 (upholding an award of $220,000 for emotional distress made after a full adversarial

proceeding). Although some degree of comparison is unavoidable when emotional distress is

quantified, we have repeatedly cautioned against the use of other damages awards as the

determining factor. Windsor Clothing, 2015 IL App (1st) 142999, ¶ 47. Instead, our overarching

consideration is whether the award is “within reasonable parameters.” Bellwood Board of Fire &

Police Commissioners, 184 Ill. App. 3d at 355. While the size of the award here may be greater

than in prior cases, we cannot conclude on that basis alone that it is excessive.

- 46 - ¶ 122 The employers also point to the fact that the $325,000 award of emotional distress

damages is higher than the $200,000 that Franchino indicated she was seeking in the prehearing

memorandum. We have already decided, above, that a damage estimate in the prehearing

memorandum does not act as a legal cap on the claimant’s recovery of emotional distress damages,

but we understand that the employers’ argument here is slightly different, i.e., that the upward

departure from Franchino’s own request is an indication of the excessiveness of the ultimate award.

Recalling that the award in question was made in a nonadversarial default situation, it may well be

surprising to see the ALJ’s award exceed Franchino’s prehearing request by approximately 63%.

Still, we cannot conclude on this basis alone that the award is excessive.

¶ 123 Despite the above concerns, we have not found the emotional damages award to be

suspect because Franchino did not seek treatment, because it appears to set a new high for the

Commission, or because Franchino initially requested a lower amount. While none of these

concerns provides a basis to set aside the award in question, they do underscore the necessity that

the amount settled on by the ALJ and adopted by the Commission must have a firm basis in the

evidence, which here consisted only of Franchino’s testimony. Such concerns simply draw into

acute focus the question of whether the award resulted from passion or prejudice. See Donnellan,

383 Ill. App. 3d at 1063. On that score, we cannot look beyond the ALJ’s reasoning in the written

findings required by the Act and adopted by the Commission in full. See 775 ILCS 5/8A-102(I)(2),

8A-103(A) (West 2022). Indeed, the Commission itself has recognized that specific findings by

the ALJ are critical for evaluating an award in these circumstances. See Sommerville, Ill. Hum.

Rts. Comm’n Rep. 2011CN2993, 2019 WL 2024088, at *31 (July 28, 2017) (remanding to the

ALJ for further findings to support the award of $220,000 in damages for emotional distress), aff’d,

- 47 - Hobby Lobby Stores, 2021 IL App (2d) 190362. Here, careful scrutiny of the ALJ’s findings

suggests that both passion and prejudice factored into the recommended award.

¶ 124 First, the ALJ stated that “a higher figure for emotional distress damages than

[Franchino] ha[d] requested *** did not arise in principal measure from the verbal testimony

[Franchino] offered at the public hearing,” but from her “carriage and demeanor” while testifying.

While it is true that a witness’s demeanor while testifying can bolster the believability of her verbal

testimony, it is not the case that her emotional distress while testifying is evidence in and of itself.

Instead, sympathy for a testifying witness is an improper consideration. Cf. Illinois Pattern Jury

Instructions, Civil, No. 1.01(A)(3) (rev. Nov. 2023). Therefore, the ALJ’s explanation that

Franchino’s testimony was “unquestionably distressing and heartbreaking to watch” suggests that

the Commission’s award was the product of passion based on her presentation rather than a

dispassionate assessment of the proper amount of damages.

¶ 125 Second, an award of noneconomic damages is intended to make the claimant whole,

not to penalize the respondent, so the egregiousness of Schwartz’s conduct is relevant only to the

extent it affected the severity of Franchino’s emotional distress. This principle is one reason why

quantitative comparisons from case to case are so unhelpful; the same egregious conduct may have

a different effect on different claimants. However, the ALJ’s statement that “this case represents

many of the most egregious and repugnant examples of sexual harassment” suggests that the

Commission’s award of the largest amount of emotional distress damages in its history was the

product of prejudice borne from its reaction to Schwartz’s conduct, not the effect it had on

Franchino. The award of damages is intended to compensate, not to punish.

¶ 126 For these reasons, we conclude that the Commission’s award of $325,000

constituted an abuse of discretion.

- 48 - ¶ 127 E. Remand

¶ 128 The employers ask us either to remand for a hearing on the amount of emotional

distress damages or to remit the $325,000 award to the $200,000 Franchino requested. For her

part, Franchino asks us to remand so she can request the additional attorney fees and costs she has

incurred since the entry of the ALJ’s initial recommendation. See Hobby Lobby, 2021 IL App (2d)

190362, ¶ 58 (entering such a remand). We conclude that the best course of action under these

circumstances is to remand for the Commission to hold a hearing on a redetermination of a

reasonable amount of emotional distress damages, as well as to consider Franchino’s request.

¶ 129 Because we are remanding for an evidentiary hearing, the employers’ challenge to

the Commission’s refusal to reopen the hearing record is now moot. The employers may raise any

outstanding evidentiary matters on remand; however, the employers may not challenge their

liability for emotional distress damages. Although we have found that $325,000 was excessive on

the existing hearing record, we express no opinion as to what amount of damages may be

appropriate after remand except to reiterate the principles outlined above. Finally, we express no

opinion as to whether Franchino’s request for additional attorney fees and costs should be granted.

¶ 130 III. CONCLUSION

¶ 131 For the reasons stated, we vacate the Commission’s order outright to the extent it

found Schwartz liable for back pay, interest, and the interest on Franchino’s personal loans; we

affirm the Commission’s findings regarding liability in all other respects. We vacate the

Commission’s award of $325,000 in damages for emotional distress; we affirm the Commission’s

award in all other respects. We remand this matter to the Commission so that it may conduct a

hearing on the amount of damages for emotional distress and consider Franchino’s request for the

- 49 - additional attorney fees and costs she has incurred since the entry of the ALJ’s initial

recommendation.

¶ 132 Affirmed in part and vacated in part; cause remanded with directions.

- 50 - Schwartz v. Illinois Human Rights Comm’n, 2024 IL App (4th) 231248

Decision Under Review: Review of order of the Illinois Human Rights Commission, No. 18-206C.

Attorneys Christopher J. Drinkwine, of Heyl, Royster, Voelker & Allen, for P.C., of Rockford, for appellants. Appellant:

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Nancy Jack, Assistant Attorney General, Appellee: of counsel), for the Illinois Human Rights Commission and the Illinois Department of Human Rights.

Amit Bindra, of The Prinz Law Firm, P.C., of Chicago, and Penelope M. Lechtenberg, of Lechtenberg & Associates LLC, of Rockford, for other appellee. .

- 51 -