Jones v. Lockard , 2011 IL App (3d) 100535 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Jones v. Lockard, 2011 IL App (3d) 100535Appellate Court KEITH JONES, Petitioner, v. CHERYL LOCKARD, THE HUMAN
Caption RIGHTS COMMISSION, and THE DEPARTMENT OF HUMAN
RIGHTS, Respondents.–FIRST BAPTIST CHURCH, Petitioner, v.
CHERYL LOCKARD, THE HUMAN RIGHTS COMMISSION, and
THE DEPARTMENT OF HUMAN RIGHTS, Respondents.
District & No. Third District
Docket Nos. 3-10-0535, 3-10-0536 cons.
Filed September 8, 2011
Held In an action for sexual harassment and retaliatory discharge, the Human
(Note: This syllabus Rights Commission’s findings that a massage that occurred within the
constitutes no part of 180-day filing deadline was not qualitatively different from petitioner’s
the opinion of the court conduct that occurred outside the deadline and that the massage
but has been prepared contributed to the hostile work environment created by petitioner’s
by the Reporter of unwanted sexual conduct was not against the manifest weight of the
Decisions for the evidence; further, there was no clear error in the finding that respondent’s
convenience of the allegations were timely filed, and the award of attorney fees was affirmed.
reader.)
Decision Under Petition for review of order of Illinois Human Rights Commission, Nos.
Review 2004SN3085, 2004SN3084 cons.
Judgment Affirmed.
Counsel on L. Lee Smith and Garth C.K. Madison (argued), both of Hinshaw &
Appeal Culbertson LLP, of Peoria, for petitioner.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Mary E. Welsh (argued), Assistant Attorney
General, of counsel), for respondent Illinois Human Rights Commission.
M. Michael Waters (argued), of Vonachen, Lawless, Trager & Slevin, of
Peoria, for respondent Cheryl Lockard.
Panel JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Holdridge and Lytton concurred in the judgment and opinion.
OPINION
¶1 On April 20, 2004, respondent Cheryl Lockard filed a charge with the Illinois Department
of Human Rights (Department) of sexual harassment and retaliatory discharge against Keith
Jones and First Baptist Church, respectively (petitioners). Lockard’s charge alleged that
Jones sexually harassed her between August 2000 and April 7, 2004, by inter alia, making
sexually suggestive comments and innuendo, and suggesting she wear miniskirts to work.
The initial charge also alleged that the church discharged her in retaliation for her complaints
of sexual harassment by Jones. The Department found that substantial evidence existed to
support Lockard’s claims and filed complaints against Jones (case No. 3-10-5036) and the
church (case No. 3-10-0536) with the Illinois Human Rights Commission (Commission).
¶2 BACKGROUND
¶3 The complaint to the Commission alleged four incidents of sexual harassment in 2003
and one in 2004, including that:
(1) Jones told Lockard that the dress code required her to wear miniskirts;
(2) Jones told Lockard God would not permit him to have an affair with any of the
beautiful women he worked with;
(3) Jones made a sexual reference about a local man;
(4) Jones discussed extramarital affairs with Lockard;
(5) Jones massaged Lockard’s shoulders without her permission in November 2004.
¶4 The complaint to the Commission also alleged that Jones was a member of the church’s
management, he sexually harassed Lockard, and that an ad hoc committee formed by the
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church to investigate Lockard’s complaints of sexual harassment told Lockard she would
likely lose her job if she continued to oppose Jones’s sexual harassment. The complaint
alleged it did ultimately discharge her for that reason. In August 2007 the Commission
conducted a hearing on the charge before an administrative law judge (ALJ).
¶5 The church hired Lockard as its treasurer in January 2000. Jones became the church’s
pastor in August 2000 and was Lockard’s supervisor. The hearing adduced evidence of
comments concerning extramarital affairs in January 2001, that Jones asked Lockard to view
a sexually explicit picture on his computer in September 2001, and that Jones made the
comment concerning the office dress code in 2002. The ALJ heard testimony concerning
references to oral sex that Jones made to another employee in spring 2001 and again in
summer 2003. There was also testimony that Jones made other anatomical sexual references
in the office.
¶6 In August 2003 Lockard complained to the church’s board chairman, Brad Anderson,
about Jones. Lockard specifically complained to Anderson about Jones’s inappropriate jokes.
Anderson confronted Jones. Jones denied making requests for oral sex but admitted that a
casual atmosphere existed in the office. The hearing produced evidence that, after Lockard’s
complaint and Anderson’s confronting of Jones in September 2003, Jones made a sexual
reference about a member of the community. Then, in October 2003, he made a sexual
innuendo with regard to a photograph of a man and a horse, made comments regarding
extramarital affairs to Lockard, and displayed a sexually suggestive photograph on another
employee’s computer. Later in October 2003, another female employee submitted her
resignation, and she and Lockard again met with Anderson. Both women informed Anderson
that the office environment had not improved since Anderson spoke to Jones. They described
Jones’s sexual comments and requests for oral sex.
¶7 On November 4, 2003, Lockard was working at her desk and Jones began to rub her
shoulders. She shrugged to remove Jones’s hand and he stopped. Later in November, during
its meeting, the church’s pastoral relations committee discussed Jones’s behavior. A church
member informed the committee that the female employee who resigned did so because of
Jones’s sexual harassment. The committee discussed the casual atmosphere in the office. The
meeting concluded with an admonishment to Jones that the casual atmosphere in the office
had to stop. In January 2004, Barb Grant became chair of the church’s board. She was
informed of the aforementioned committee meeting and the prior complaints. Grant
approached Lockard and asked whether Jones had shown any anger or engaged in any sexual
harassment toward her. Lockard responded that no sexual harassment had occurred since the
November 2003 pastoral committee meeting.
¶8 On April 7, 2004, Jones was present at a test of the church’s new sound system. Jones
wore a wireless microphone and told another member to speak into his cheek. Lockard
interpreted the comments as referencing rubbing the other member’s buttocks cheek. Lockard
reported the incident to Grant and repeated her allegations of Jones’s requests for oral sex
and for an extramarital affair. Grant investigated the allegations but told Lockard that she
could not find anyone to corroborate them. Grant met with the office staff and they discussed
all of the allegations. Lockard explained that Jones’s “cheeks” remark made her
uncomfortable. Jones responded that she had misunderstood him. At the conclusion of that
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meeting, Jones informed Lockard that her job was not in jeopardy but would be if she did not
bring any future concerns to him first.
¶9 On April 15, 2004, the church’s board formed an ad hoc committee to investigate the
complaints against Jones. There was testimony at the hearing before the ALJ that Jones made
offensive or inappropriate remarks once or twice a week. There was also testimony that the
committee met with Lockard. Lockard described the work environment, including Jones’s
temper, to the committee. She did not describe requests for oral sex during that meeting
(because she felt she was not given an opportunity to do so). Grant asked Lockard if she
could continue to work if Jones’s conduct did not change. Grant rephrased the question to
ask whether Lockard could work in what she perceived to be a sexually harassing and hostile
environment. Lockard replied she did not know.
¶ 10 On April 20, 2004, the committee met. Grant did not report to the committee another
former employee’s statement to her in the course of her own investigation that Jones had
requested oral sex from her and Lockard. That employee, Sue Weaver, resigned in September
2001. Grant reported only that Weaver had found some of Jones’s jokes to be inappropriate.
The committee decided that Lockard had a malicious intent to undermine Jones and to make
false statements. The committee recommended discharging Lockard. At a full meeting of the
board, Grant again reported that she could only corroborate that Jones had made some
inappropriate comments but not the cheek incident or Jones’s temper. Jones stated that
Lockard was not cooperative and that he could not get along with her. The board discussed
Lockard’s intent and concluded that Jones needed to be able to work in an environment
where he could trust the staff. The board voted to discharge Lockard and informed her the
following day. The board read Lockard a statement which characterized her complaints
against Jones as false and destructive.
¶ 11 In September 2009, the ALJ found that certain events had occurred between January
2001 and October 2003, that in October 2003 Lockard had informed her employer about
some of those events, and that the employer took certain actions. The ALJ found that
additional events occurred after the employer took those actions, in November 2003 and on
April 7, 2004. The ALJ specifically found, with regard to the timeliness of Lockard’s
allegations, that the November 2003 shoulder massage qualified as sexual harassment and
that it occurred within the same period that Jones had subjected Lockard to a series of
sexually tinged comments and photographs that were demeaning to women. Thus the ALJ
found that the massage and Jones’s conduct outside the 180-day filing window for
complaints of sexual harassment were not qualitatively different. The ALJ also found in
Lockard’s favor on her complaint for retaliation. The ALJ noted that Lockard complained
to the former board chair about Jones’s behavior in August 2003 and October 2003 and asked
the new board chair to investigate. However, the new board chair failed to report allegations
of requests for oral sex from two former employees.
¶ 12 The ALJ issued a recommended decision and order recommending that petitioners be
found liable on both charges and that Lockard be awarded damages. Lockard filed a motion
for attorney fees and costs. The ALJ also recommended awarding Lockard attorney fees and
costs. Petitioners filed exceptions with the Illinois Human Rights Commission
(Commission). In May 2010, the Commission declined further review and entered a final
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order adopting the ALJ’s recommended decision and order.
¶ 13 This appeal followed.
¶ 14 ANALYSIS
¶ 15 The dispositive statutory provision is section 7A-102(A)(1) of the Illinois Human Rights
Act (Act) (775 ILCS 5/7A-102(A)(1) (West 2004)). Section 7A-102(A)(1) provides:
“Within 180 days after the date that a civil rights violation allegedly has been committed,
a charge in writing under oath or affirmation may be filed with the Department by an
aggrieved party or issued by the Department itself under the signature of the Director.”
775 ILCS 5/7A-102(A)(1) (West 2004).
¶ 16 But the first issue we must address is the appropriate standard of review. In Gusciara v.
Lustig, 346 Ill. App. 3d 1012, 1017-18 (2004), while addressing the timeliness of a complaint
pursuant to section 7A-102(A)(1) of the Act, the court held that “to the extent that our review
hinges on the interpretation of the Act, it raises a question of law that we review de novo.”
We find that the appropriate standard of review is for clear error of the Commission’s orders,
which involved mixed questions of law and fact. 520 South Michigan Avenue Associates v.
Department of Employment Security, 404 Ill. App. 3d 304, 313 (2010) (citing Cinkus v.
Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008)). The de
novo review in Gusciara went only to the construction of the statute and whether it contained
an exception to the 180-day jurisdictional deadline for “related” allegations. Gusciara, 346
Ill. App. 3d at 1018. The Gusciara court then applied the appropriate construction of the
statute to the facts as found by the Commission. Gusciara, 346 Ill. App. 3d at 1021.
¶ 17 In this case, clear error review is appropriate because whether a series of acts
cumulatively contributed to a hostile work environment is a question of fact reviewed under
the manifest weight of the evidence standard. See Sangamon County Sheriff’s Department
v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 143 (2009) (“The Commission’s finding
that Yanor committed a variety of sexually harassing acts that cumulatively constituted a
hostile work environment was not against the manifest weight of the evidence.”). At the
same time, that factual determination must be applied under the interpretation of the statute
which holds that “a charge is timely as long as it is filed within 180 days of any act that is
part of the hostile work environment.” Sangamon County Sheriff’s Department, 233 Ill. 2d
at 142.
¶ 18 With the appropriate standard of review in mind, we next turn to petitioners’ sole
argument on appeal: that Lockard’s charge of discrimination was not timely filed. The
earliest date for considering whether acts lead to a hostile work environment was October
23, 2003.
“[T]he Illinois [Human Rights] Act is governed by the Morgan rule. [National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002).] It held that a charge of sexual
harassment based on a hostile work environment is timely as long as any of the acts that
contributed to the hostile environment occurred no more than 180 days before the
claimant filed her charge.” Jenkins v. Lustig, 354 Ill. App. 3d 193, 196 (2004).
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Petitioners concede that the acts leading up to the shoulder massage would state a claim of
a hostile work environment, but argue that all of those acts occurred outside the 180-day
window that the work environment was actionable, based on Lockard’s filing date.
“The 180-day filing requirement is mandatory in order to vest the Commission with
subject matter jurisdiction of the charge. [Citations.] ***
A sexual harassment claim based on a hostile work environment generally is made
up of a series of events rather than a single event. *** Provided that an act contributing
to the claim occurs within 180 days of the filing date, a fact finder may consider all of
the conduct that makes up the hostile environment claim. [Citation.]” Sangamon County
Sheriff’s Department, 233 Ill. 2d at 141.
¶ 19 According to petitioners, the Commission’s findings of fact left the incident where Jones
rubbed Lockard’s shoulders as “the one possible act of harassment within the 180-day
period.” However, petitioners argue that the shoulder rub is not related to the prior
allegations and is the only act to have occurred within the 180-day period and, therefore,
Lockard’s complaint of a hostile work environment based on those prior acts was not timely.
Alternatively, petitioners assert that Lockard’s complaint was not timely filed because the
only two acts that occurred less than 180 days before she filed the charge with the
Department occurred after certain intervening action by the employer and, therefore, are not
components of the actionable hostile environment that may have existed before the
intervention.
¶ 20 In Jenkins, the court held that the Morgan rule applies “unless (1) the acts within the
jurisdictional period have no relation to those outside the period or (2) are no longer part of
the same hostile environment claim. [Citation.]” Jenkins, 354 Ill. App. 3d at 196. In support
of their argument that the shoulder rub had no relation to the prior acts, petitioners argue that
the cessation of the allegedly harassing conduct, ending in a single, isolated event, broke the
chain of discrete discriminatory events that formed a single campaign of discrimination and
prevents the use of the “continuing violation” theory to save Lockard’s complaint based on
conduct occurring outside the filing period. See Fitzgerald v. Henderson, 251 F.3d 345, 364-
65 (2d Cir. 2001).
¶ 21 Lockard, the Commission, and the Department (respondents) agree that the Commission
found that the November 2003 shoulder massage was the only possible act of sexual
harassment that clearly occurred within the 180-day period, but argue that the Commission
correctly found that the massage was the last in a series of acts that, together, created a
hostile work environment. Initially, however, the state respondents question whether the
“relation exception” to the Morgan rule applies in Illinois.
¶ 22 SCOPE OF MORGAN RULE
¶ 23 Respondents concede that Gusciara adopted the exception to the Morgan rule, which
provides that an act within the 180-day period will not save an untimely claim of a hostile
work environment based on a series of acts extending outside the 180-day period, if the
timely act is not related to the acts occurring outside the filing window. They note, however,
that when our supreme court similarly held that a charge is timely so long as it is filed within
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180 days of any act that is part of the hostile work environment, our supreme court cited
Gusciara but did not expressly mention or adopt Morgan’s exceptions for “unrelatedness”
or intervening employer actions. See Sangamon County Sheriff’s Department, 233 Ill. 2d at
142. Respondents argue that to construe the Morgan rule to include the “no relation” and
“intervening action” exceptions would be inconsistent with the rule requiring liberal
construction of the Act to achieve its goals.
¶ 24 We find that both exceptions to the Morgan rule apply. This court has expressly found
that the exceptions apply. Jenkins, 354 Ill. App. 3d at 196. The supreme court’s silence on
the specific and narrow exceptions to the Morgan rule is insufficient to overcome our courts’
express adoption of the Morgan rule without modification or limitation. See Gusciara, 346
Ill. App. 3d at 1019-20 (“We hold that, with one exception to be noted, Morgan’s
construction of Title VII’s limitations provision applies to the interpretation of section 7A-
102(A)(1) of the Act.”)1.
¶ 25 RELATED CONDUCT
¶ 26 Returning to the question of whether the shoulder rub had “no relation” to the prior acts,
petitioners argue that the shoulder rub was an isolated example of nonsexual physical
conduct that is distinct from the series of “sexually tinged comments and photographs” that
the Commission found created the hostile work environment. Further, petitioners argue, even
if the shoulder massage was sexual in nature, the shoulder rub was of a different character
than the prior acts.
¶ 27 Lockard responds the timeliness of the charge hinges on the Commission’s factual
determination that the massage incident was part of her sexual harassment claim. Lockard
suggests this court must give deference to that finding of fact by the Commission, and she
argues that finding must be affirmed unless it is contrary to the manifest weight of the
evidence. Thus, all of the prior conduct may be considered because the massage incident
occurred within the 180-day period and it was part of the same hostile environment created
by Jones’s earlier conduct. Lockard relies on the Commission’s determination that the
massage was not qualitatively different to support the proposition that the massage incident
was, independently, sexual in nature, and, for timeliness purposes, was “an act contributing
to the *** hostile environment.” Morgan, 536 U.S. at 117.
¶ 28 The Commission’s finding that the shoulder massage was related to the acts occurring
outside the 180-day filing period, and thus was an act contributing to and part of Lockard’s
claim of a hostile work environment based on Jones’s acts occurring outside the 180-day
1
The one exception to the court’s full adoption of the Morgan rule, including its
exceptions, was as follows:
“We do diverge from Morgan in one important respect. The Supreme Court
held that because Title VII’s limitations provision is not jurisdictional, it is subject
to equitable doctrines such as waiver, estoppel, and tolling. [Citation.] Because
section 7A-102(A)(1)’s time limit is jurisdictional, we do not incorporate such
equitable defenses into section 7A-102(A)(1).” Gusciara, 346 Ill. App. 3d at 1020.
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filing period, is not against the manifest weight of the evidence. Based on that finding, we
hold that Lockard’s complaint was timely.
¶ 29 As grounds for our decision we first note that the Act does not distinguish different
“types” of acts, be they verbal, visual, or physical, to determine whether harassment has
occurred. Stated differently, whether the act that causes the harassment is physical or not is
irrelevant. The Act broadly defines “sexual harassment” as “any conduct of a sexual nature
[that] *** has the purpose or effect of substantially interfering with an individual’s work
performance.” (Emphases added.) 775 ILCS 5/2-101(E) (West 2004). We also find that the
change in Jones’s conduct from verbal to physical is not relevant to the determination of
whether his conduct within the 180-day period is “related,” for Morgan purposes, to his
conduct outside the 180-day period.
¶ 30 Lockard correctly argues that Sangamon County Sheriff’s Department does not support
the proposition that a single act of a different character from earlier acts can not be
considered part of the same hostile environment created by the earlier acts, and in fact stands
for the contrary proposition. Under Sangamon County Sheriff’s Department, the alleged
“character” of the prior acts is not determinative of whether an act occurring within the filing
period bears “no relation” to acts occurring outside the filing period and contributed to the
same hostile work environment.
¶ 31 In Sangamon County Sheriff’s Department, the act occurring within the filing period was
a letter which, the court found, “communicated a humiliating and false allegation of a sexual
nature.” Sangamon County Sheriff’s Department, 233 Ill. 2d at 143. The acts occurring
outside the filing period included physical confrontations and verbal requests for sexual
favors. See Sangamon County Sheriff’s Department, 233 Ill. 2d at 134-35. Our supreme court
held that “[t]he Commission’s finding that [respondent] committed a variety of sexually
harassing acts that cumulatively constituted a hostile work environment was not against the
manifest weight of the evidence.” (Emphasis added.) Sangamon County Sheriff’s
Department, 233 Ill. 2d at 143.
¶ 32 Lockard also argued that the massage incident was an act contributing to the hostile
environment where she continued to work at the same location under the same supervisor
who engaged in all of the harassing conduct. We agree. The court has specifically looked to
the “offensive conduct, office, and perpetrator [of] the incidents that occurred within the 180-
day time period” (Jenkins, 354 Ill. App. 3d at 197) to determine whether conduct outside that
period contributed to the same hostile environment (id.). The court held that the “timely” act
by the same perpetrator in the same office was part of the claim based on earlier acts by the
same perpetrator in the same office. Jenkins, 354 Ill. App. 3d at 197.
¶ 33 In Jenkins, the court wrote:
“Although Jenkins did not provide specific dates on which the pre-limitations incidents
occurred, the allegations indicated the same offensive conduct, office, and perpetrator as
the incidents that occurred within the 180-day time period. A fact finder could easily
conclude that this conduct was part of the same actionable hostile environment claim.
[Citation.] Accordingly, it was an abuse of discretion to dismiss that portion of Jenkins’
charge.” Jenkins, 354 Ill. App. 3d at 197 (citing Gusciara, 346 Ill. App. 3d at 1021-22).
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¶ 34 EMPLOYER INTERVENTION
¶ 35 Alternatively, petitioners argue that the Commission erroneously failed to consider the
employer’s intervention to determine whether any of the subsequent acts were related to the
prior acts, choosing instead to assume a continuum of conduct based on proximity in time.
Petitioners argue that because all of the acts alleged to have occurred within the 180-day
period occurred after the employer’s intervention in November 2003, none of those acts may
be considered part of any allegations of an unlawful employment practice that may have
resulted from acts that occurred prior to the employer’s intervention. Petitioners argue that
the church’s intervening actions on October 29 and in November 2003 interrupted the hostile
environment and broke any connection to the earlier conduct.
¶ 36 Lockard first questions whether the intervening action exclusion to the Morgan rule
applies, where no Illinois court has expressly adopted it and its inclusion in the Act would
not be consistent with a liberal interpretation of the Act to achieve its purpose of preventing
sexual harassment. For the reasons discussed above, we hold that, to the extent the Morgan
rule incorporates an exclusion to application of the rule when the timely act occurs after
intervention by the employer, the exclusion applies in Illinois. Illinois has recognized:
“The [Morgan] Court qualified [its] holding by specifying that an act that occurs
within the prescribed period will not enable an employee to recover for acts occurring
outside the period if the later act ‘had no relation to the [earlier] acts’ or if, ‘for some
other reason, such as certain intervening action by the employer,’ the more recent act was
‘no longer part of the same hostile environment claim.’ [Citation.]” Gusciara, 346 Ill.
App. 3d at 1019 (citing Morgan, 536 U.S. at 118).
¶ 37 The Gusciara court found as follows:
“Were there some compelling reason to interpret the Act inconsistently with the federal
courts’ construction of Title VII, we might do so. However, just as the Supreme Court
saw no compelling need ***, neither do we.
We hold that, with one exception [not applicable here], Morgan’s construction of
Title VII’s limitations provision applies to the interpretation of section 7A-102(A)(1) of
the Act. Thus, a charge of sexual harassment based on a hostile work environment is
timely as long as any of the acts that contributed to the hostile environment occurred no
more than 180 days before the claimant filed her charge unless (1) the acts within the
jurisdictional period had no relation to those outside the period; or (2) for some other
reason, the later act was no longer part of the same hostile environment claim.” Gusciara,
346 Ill. App. 3d at 1019.
¶ 38 Nonetheless, the employer’s intervention in this case did not create a break in the series
of events creating a hostile working environment for Lockard. See Sangamon County
Sheriff’s Department, 233 Ill. 2d at 141. Lockard points this court to Williams v. City of
Chicago, 325 F. Supp. 2d 867, 874-75 (N.D. Ill. 2004), for the proposition that only an action
that actually results in a significant change in working conditions will be considered an
“intervening action” for purposes of the exclusion to the Morgan rule. We have held that
“Illinois courts ought to construe the Act, including section 7A-102(A)(1), in harmony with
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the federal courts’ construction of Title VII.” Gusciara, 346 Ill. App. 3d at 1019 (citing
Graves v. Chief Legal Counsel of the Department of Human Rights, 327 Ill. App. 3d 293,
297 (2002) (“Illinois courts have looked to federal decisions involving Title VII of the Civil
Rights Act of 1964 [citation] in evaluating the merits of discrimination claims under the
Act.”)).
¶ 39 In Williams, the court recognized that “[a]n ‘intervening action’ by an employer *** can
break the relation between time-barred and timely acts. [Citation.]” Williams, 325 F. Supp.
2d at 874. There, the employer, relying on a previous federal decision, argued that its transfer
of the employee from one work team to a different work team was a “Morgan ‘intervening
action.’ ” Williams, 325 F. Supp. 2d at 875. The court distinguished the previous decision on
the grounds that, in the prior case, the court had found that “the plaintiff’s transfer ‘clearly
changed’ [the employee’s] working conditions and that the time-barred acts had no relation
to the timely acts. [Citation.]” Williams, 325 F. Supp. 2d at 875.
¶ 40 Following the federal court’s earlier decision, the Williams court found the City of
Chicago’s transfer was not a “Morgan ‘intervening action’ ” because the transfer “did not
significantly change [the] working conditions.” Id. The court noted that the harassing conduct
that occurred before and after the transfer was related. Id. The Williams court held,
“[a]ccordingly, [that] the time-barred acts [were] sufficiently related to the timely acts to
preclude [the] transfer *** from being a Morgan ‘intervening action.’ ” Williams, 325 F.
Supp. 2d at 875.
¶ 41 The federal court decisions teach us that the action by the employer must significantly
change the working conditions complained of to constitute a “Morgan ‘intervening action’ ”
and that the determination of whether there has been a significant change rests on the factual
question of whether any subsequent acts are related to earlier acts. As discussed above,
Illinois has held that the question of whether subsequent acts are related to earlier acts
depends not only on the nature of the offensive conduct, but also on whether they are
perpetrated in the same office, and by the same perpetrator. Jenkins, 354 Ill. App. 3d at 197.
Thus, under Williams and Jenkins, we find that any alleged “intervening action” which does
not remove an employee from the complained-of workplace, nor changes the employment
relationship between the employees involved in the hostile working environment, does not
constitute a “Morgan ‘intervening action’ ” such that the employer’s “intervention” creates
a break between the previous conduct and the subsequent conduct.
¶ 42 Applying those standards to the facts here, we find that the shoulder massage contributed
to the hostile environment because it involved an unwanted touching during a time when
Jones had subjected Lockard to a series of sexually tinged comments and photographs that
were demeaning to women. That is, the conduct was perpetrated by the same person in the
same workplace as the previous conduct.
¶ 43 There is no dispute that the previous conduct was sufficient to support Lockard’s
complaint of a hostile work environment. The Commission’s finding that the massage, which
occurred within the 180-day filing deadline, contributed to Lockard’s hostile work
environment created by Jones’s series of acts of unwanted sexual conduct is not against the
manifest weight of the evidence. For all of the foregoing reasons, we can find no clear error
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in the finding that all of the allegations in the complaint were timely filed.
¶ 44 ATTORNEY FEES
¶ 45 Next, petitioners argue that the Commission erroneously adopted a rule whereby the
“prevailing community rate” used to determine the hourly rate for an award of attorney fees
can be different based on whether the attorney is representing employees or employers. The
Commission accepted Lockard’s attorney’s evidence as to his rate as the prevailing rate upon
which to base the attorney fee award.
“It is well established that it is within the discretion of the trier of fact to determine
the reasonableness of the attorney fees requested, and a court of review should not make
a de novo decision as to the appropriate award of attorney fees.” Raintree Health Care
Center v. Illinois Human Rights Comm’n, 173 Ill. 2d 469, 494 (1996).
“[W]e review the decision to award attorney fees under an abuse of discretion standard.”
Grate v. Grzetich, 373 Ill. App. 3d 228, 231 (2007).
¶ 46 We affirm the Commission’s award of attorney fees. The Commission did not base its
award on the nature of the client, although such consideration is not wholly inappropriate.
See Mathur v. Board of Trustees of Southern Illinois University, 317 F.3d 738, 743 (7th Cir.
2003) (“Fee-shifting statutes in civil rights legislation are intended to allow litigants access
to attorneys who would otherwise be inaccessible, given the low retainers many plaintiffs can
afford.” (citing City of Riverside v. Rivera, 477 U.S. 561, 576 (1986))). Regardless,
respondents correctly argue that petitioners’ affidavits (two of three of which came from their
own attorneys and only represented the hourly rate charged to petitioners) are not sufficient
to rebut evidence of Lockard’s attorney’s actual hourly rate (when the case began), which is
presumptive evidence of the appropriate market rate. Mathur, 317 F.3d at 743 (“[t]he
attorney’s actual billing rate for comparable work is presumptively appropriate to use as the
market rate” (internal quotation marks omitted)).
¶ 47 Petitioners’ arguments do not dispute the existence of evidence to support the
Commission’s exercise of its discretion to determine the appropriate attorney fee award.
Petitioners expressly asked this court to use the rate their attorney charged as the prevailing
community rate and to lower the award of attorney fees accordingly. Petitioners’ arguments
amount to no more than a request to weigh that evidence differently and to make a new
determination of the appropriate level of fees. This court may not engage in such an exercise.
“It is well established that it is within the discretion of the trier of fact to determine
the reasonableness of the attorney fees requested, and a court of review should not make
a de novo decision as to the appropriate award of attorney fees.” Raintree Health Care
Center, 173 Ill. 2d at 494.
In this case, the Commission’s award is supported by competent evidence of the prevailing
community rate. The fact that petitioners would have considered other evidence, or would
have weighed the evidence differently, does not demonstrate error in the Commission’s
award.
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¶ 48 CONCLUSION
¶ 49 The order of the Illinois Human Rights Commission is affirmed.
¶ 50 Affirmed.
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