Cook County Sheriff's Office v. Cook County Comm'n on Human Rights , 2016 IL App (1st) 150718 ( 2016 )

2016 IL App (1st) 150718Sixth Division
Opinion filed: May 20, 2016
No. 1-15-0718
___________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE COOK COUNTY SHERIFF'S OFFICE, ) Appeal from the
) Circuit Court of
) Cook County
Petitioner-Appellant, )
)
v. ) No. 13 CH 17663
)
THE COOK COUNTY COMMISSION ON )
HUMAN RIGHTS and CYNTHIA WALKER, ) Honorable
) Rodolfo Garcia,
Respondents-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with opinion
Presiding Justice Rochford and Justice Delort concurred in the judgment and opinion.
OPINION
¶1 The petitioner, Cynthia Walker, filed a claim with the Cook County Commission on
Human Rights (Commission), alleging that she was subjected to ongoing sexual and age
discrimination and harassment in violation of section 42-35 of the Cook County Human Rights
Ordinance (Ordinance) (Cook County Code of Ordinances §§ 42-35(b)(1), (e) (amended Nov.
19, 2002), while at her job at the Department of Corrections (DOC). The Commission found in
favor of the petitioner, and the circuit court confirmed the Commission's decision on review
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pursuant to a writ of certiorari. The Cook County Sheriff's Office (Sheriff's Office) now
appeals, raising as issues whether: (1) the Commission's determination that the petitioner was
subjected to sexual harassment was against the manifest weight of the evidence; (2) the
Commission erred in expanding the definition of age discrimination under the Ordinance to
include harassment based upon age, or, alternatively (3) its finding of age-related harassment
was against the manifest weight of the evidence; and (4) the Commission exceeded its authority
under the Ordinance in issuing certain injunctive relief, or (5) the injunctive relief as ordered was
clearly erroneous. For the reasons that follow, we affirm.
¶2 The petitioner filed a complaint with the Commission on March 20, 2008, alleging that,
beginning in April 2004 and continuing through late 2008, her coworker and eventual supervisor,
Antonio Belk, subjected her to ongoing sexual discrimination by engaging in unwanted physical
contact with her and making sexual remarks. The petitioner also alleged that, on numerous
occasions beginning in September 2007 and continuing through 2008, Belk made age-related
jokes and derogatory comments towards her, in many instances in front of colleagues. Belk's
alleged sexual and age-related harassment of the petitioner continued unabated despite her
complaints to the director of her department, Andrew Krok.
¶3 Beginning on December 10, 2010, the matter proceeded to a hearing involving the
testimony of numerous witnesses, including the petitioner and Belk. The petitioner testified that
she was 54 years of age and had been married for 35 years. In April 2004, she began working at
the DOC in the department of Management Information Systems (MIS). The petitioner stated
that she was hired as a computer operator, but that she was subsequently recruited to design
multiple databases for MIS.
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¶4 Shortly after the petitioner began working at MIS, Belk, a jail supervisor, approached her
and requested her help in designing a program services database. Belk worked in a different
office than the petitioner at that time; however, the database project caused the two to come into
fairly regular contact. The testimony of Krok and Belk established that, although Belk had used
computers for work, he had extremely limited knowledge about programming and could not
effectively supervise employees with greater expertise on programming projects.
¶5 The petitioner testified that, on several occasions in 2004 and early 2005, while she was
involved with Belk's database project, he engaged in acts that made her feel very uncomfortable,
including massaging her shoulders, trying to kiss her, touching her face and hair, and hugging
her. She described an incident in May 2004 when Belk was at her desk discussing the database
project, and then walked behind her and began massaging her shoulders and invited her to dinner
twice. The petitioner asked Belk to stop touching her, stating that she was happily married and
was not interested. She also advised Belk that the work he was giving her was causing her to fall
behind in her own job and that he should obtain approval from the MIS supervisor before giving
her additional work.
¶6 During her testimony, the petitioner frequently refreshed her recollection regarding dates
and other details by referring to her personal journal (journal), which she had kept since she
began employment with the DOC. The journal was admitted into evidence by stipulation of the
parties. According to the petitioner, she tried to consistently record events at work that were
upsetting to her. However, although the journal included a description of the incident in May of
2004, it made little or no mention of any other alleged physical advances during the time
between April 2004 and mid-2005. The petitioner testified that, at first, she did not consider
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Belk's contact to be sexual "harassment" because he occasionally hugged other employees in the
department. However, he soon began treating her differently from everyone else in the office.
¶7 The petitioner testified that, on more than one occasion, she informed the current MIS
director, Lisa Dowdell, about Belk's behavior and stated that she believed it would continue
unless Dowdell did something about it. The petitioner then spoke to the subsequent MIS
director, Dwayne Peterson, who told her to let him know if Belk approached her again. After the
petitioner finished the database project in August 2005, she had little contact with Belk for over
one year.
¶8 In August 2006, Krok became the director of MIS. Krok testified that, shortly thereafter,
Belk was transferred from the jail into MIS and became his second-in-command, making Belk
the petitioner's direct supervisor. The petitioner testified that she had a meeting with Krok at the
time of Belk's transfer and informed him about her prior issues with Belk, stating that she did not
want to be assigned to work under him. According to the petitioner, Krok assured her that he
would intervene if necessary, and she promised to report to him if the situation with Belk "got
out of hand." Belk formally became the petitioner's supervisor in September or October of 2006.
¶9 The petitioner testified that, almost immediately after Belk's appointment as her
supervisor, Belk's unwanted physical advances and sexual remarks resumed, and continued
through 2007. The petitioner stated that Belk repeatedly tried to hug and kiss her, but she pushed
him away and told him to stop. Belk would massage her shoulders while she was in her chair,
run his hands through her hair, hug her and try to touch her face, despite her ongoing protests.
The petitioner stated that Belk began using profane language during these episodes, and
occasionally made reference to her husband. At one point in December 2006, she knocked
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Belk's hand away and told him to keep his hands off of her. Later in the day, Belk told the
petitioner to "shut up" and sit her "old ass down."
¶ 10 The petitioner also testified that, from late 2006 through 2007, Belk regularly and
persistently made negative comments about her age in front of other MIS employees. Although
the petitioner viewed the comments as childish banter in the beginning and made efforts at
joking responses, she testified that Belk soon got "out of hand." His comments included
referring to the petitioner as the "old dude," and stating that the petitioner was the "oldest ass"
walking around there; she was older than God; older than "motherf*** shit" or older than dirt;
and that she wore "old ass" clothes. The petitioner also stated that, beginning in September of
2007, Belk regularly began the workday by singing "Old Fogey from Musgokee" to her in front
of her coworkers.
¶ 11 In addition, according to the petitioner, Belk frequently gave her programming duties
without following MIS protocol, which required that all work orders go through Krok. The
petitioner described these projects as above and beyond those she was expected to do as part of
her job. One such project was for the petitioner to do Belk's homework for a computer class that
he was taking on his own time. The petitioner testified that she completed homework
assignments for Belk for nearly one year. She complained to Krok about the extraneous projects,
and Belk later confronted her, warning her to watch what she said to Krok about him and that his
"ass was covered."
¶ 12 The petitioner described an incident in January of 2007, during which Belk attempted to
place her into a headlock as she walked down the hallway. The petitioner testified that she felt
like she was being attacked and was initially unable to break free from Belk's grip. When she
did break free, her hair was "all over [her] head." The incident occurred in the presence of other
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coworkers, including LaJuana McRoy. The petitioner reported the occurrence to Dowdell and
Gwen Davis, the supervisor in the employee discipline department, but no action was taken. She
testified that she also attempted to report the matter to Krok, but he dismissed her because he was
too busy.
¶ 13 According to the petitioner, in April or May of 2007, Belk represented to her that they
were going to another area to work on the databases, but instead drove her to a restaurant for
lunch, ignoring her protests and requests to return to work. The petitioner also testified that, as
they were preparing to leave the restaurant, Belk placed his hand on her lower back and stated
that they "should do this more often."
¶ 14 The petitioner's account of her encounters with Belk was corroborated by other witnesses,
including McRoy, who testified that she saw Belk putting the petitioner into a headlock and also
hugging her on several occasions. According to McRoy, she was shocked when Belk placed the
petitioner in a headlock, and the petitioner also appeared shocked. McRoy stated that, as far
back as 2004, the petitioner made it very clear to everyone in the office that she was
uncomfortable with being touched by Belk. McRoy also stated that Belk made remarks mocking
the petitioner's age on a nearly daily basis in the presence of coworkers. McRoy never heard
Belk make reference to anyone's age aside from the petitioner, and did not consider his
comments to the petitioner to be a joke. McRoy believed that Belk created a hostile work
environment for the petitioner.
¶ 15 Belk denied making any of the physical advances claimed by the petitioner, including
allegedly placing her in a headlock. Belk also denied making any comments to the petitioner
about her age other than referring to her as an old fogey or old timer on a few occasions.
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According to Belk, he refrained from making age-related remarks when the petitioner requested
that he stop.
¶ 16 The petitioner testified that, in 2007, she met with Krok on at least two occasions to
complain about Belk's conduct. She told Krok that Belk was getting out of hand, and asked him
to intervene. She explained in detail about Belk's unwanted physical contact and his near-daily
derogatory commentary about her age. According to the petitioner, Krok acted as if he didn't
believe her, laughed at one point, and did nothing.
¶ 17 The petitioner stated that, when Belk learned about her meetings with Krok, he
confronted her on numerous occasions and warned her about his power within the DOC. On one
occasion, Belk threw a punch near her face and threatened to knock her teeth out. On another
occasion, Belk approached her and said that whatever she said to Krok about him would get back
to him and that he "owned this *** jail." Belk also told the petitioner to "watch what the f***"
she said and that he was going to "f*** [her] up." The petitioner testified that Belk yelled so
loudly at one point that it drew coworkers to her aid, at which time Belk began hugging her.
¶ 18 Davis testified that she also spoke with the petitioner on numerous occasions regarding
her encounters with Belk. She described the petitioner as becoming increasingly emotional
throughout 2007 and eventually reaching a "panic state." Davis stated that she initially
recommended that the petitioner discuss the situation with her supervisor, but later referred her
to the Employee Assistance Program. According to Davis, the petitioner was naïve with regard
to certain life experiences, and Belk used this to get what he wanted. She acknowledged giving a
prior statement that, based upon her conversations with the petitioner, she believed Belk "came
at [the petitioner] sexually to get her to continue doing work for him so he could make himself
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look good." Davis also confirmed her prior statement that she believed Belk had subjected the
petitioner to a hostile work environment as a result of his conduct.
¶ 19 Near the end of 2007, the petitioner met with a representative from the Employee
Assistance Program who advised her to speak with her supervisor, seek counseling, and report
the situation to the DOC's Office of Professional Review. In January 2008, the petitioner missed
several days of work, and then commenced psychological counseling services provided by the
Employee Assistance Program.
¶ 20 The petitioner testified that, after having cancelled prior meetings, Krok finally met with
her on January 4 and 8, 2008. She told Krok that she feared that Belk would retaliate against her
if her complaints about him became public, and Krok assured her Belk would not find out.
Following the January meetings, Belk was removed as the petitioner's supervisor, although he
continued working in MIS. He was not transferred out of MIS until nearly one month later, after
the petitioner notified Krok about another encounter in which Belk inappropriately gestured to
her and intentionally bumped into her.
¶ 21 In his testimony, Krok admitted that the petitioner told him in October 2006 that she "had
a problem with" Belk. He also testified that he learned in mid-2007 that Belk was giving the
petitioner assignments outside of the normal chain of command in MIS, and that he knew at that
point that there was "more than a mere personality conflict" between them. Nonetheless, Krok
admittedly undertook no further investigation into the petitioner's claims. Krok stated that the
January 2008 meeting was the first time he gave the petitioner a copy of the DOC's sexual
harassment policy. This was also the first time that he informed DOC's first assistant executive
director, Scott Kurtovich, about the matter, describing the petitioner's complaint in a
memorandum to both him and Tom Kinsella in the Office of Professional Review.
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¶ 22 Kurtovich testified that he "assumed" that, after Krok informed him regarding the
petitioner's allegations of sexual and age harassment, he had instructed Krok to follow the
"harassment policy" and report the matter to the Office of Professional Review for an
investigation. However, Kurtovich stated he was not aware Belk and the petitioner had
continued to work together in the same office for one month after the January 8, 2008, meeting.
¶ 23 On January 22, 2008, the petitioner filed a formal complaint with the Office of
Professional Responsibility detailing her allegations of Belk's discriminatory acts and threats
against her. The assigned investigator, Carl Singletary, interviewed several witnesses, including
Belk, and determined that the petitioner's allegations of sexual and age discrimination were not
sustained. However, Singletary acknowledged having found evidence that Belk placed the
petitioner in a head lock and put his hands through her hair. He also admitted obtaining a copy
of the petitioner's journal containing daily notations of Belk's ongoing physical advances and
improper remarks. Singletary believed that, based upon the harassment policy of the Sheriff's
Office, a claim of sexual or age discrimination would require corroboration of the petitioner's
claims.
¶ 24 Dr. Mary Lee, the petitioner's psychologist when she commenced treatment with the
Employee Assistance Program, testified that the petitioner's ongoing experiences with Belk
caused her to suffer acute anxiety, post-traumatic stress disorder and panic attacks. As part of
her treatment, the petitioner was taking multiple anti-anxiety, anti-depression, and sleep
medications. Dr. Lee testified that the petitioner continued to suffer from post-traumatic stress
disorder, which included experiencing flashbacks, nightmares and panic attacks, as a result of
passing encounters with Belk after he was transferred out of MIS. The petitioner remained
under Dr. Lee's care through the time of the hearing.
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¶ 25 On December 30, 2011, the hearing officer issued his recommended decision and order
which was adopted in its entirety by the Commission. The Commission determined that the
petitioner sufficiently proved Belk had subjected her to sexual and age-related harassment
beginning from the time he was appointed as her supervisor in September 2006. However, the
Commission declined to find that Belk's conduct rose to the level of sexual harassment during
the period from April 2004 through March 2005. Although the Commission found the
petitioner's overall testimony to be credible, it noted that her account of Belk's physical advances
during the period of 2004-05 seemed a bit "overstated," as evidenced by a lack of corresponding
entries in her journal. The Commission further noted that, although Krok had been aware of the
petitioner's issues with Belk since prior to Belk's appointment as the petitioner's supervisor, he
ignored the petitioner's ongoing complaints until January of 2008 when she was "close to an
emotional breakdown" and had been referred to the Employee Assistance Program.
Accordingly, the Commission awarded the petitioner $75,000 in damages for emotional distress
and also imposed extensive injunctive relief under section 42-34(c) of the Ordinance. In
ordering the injunctive relief, the Commission noted that such relief was essential because "the
evidence in this case reveals that any enforcement mechanism" that the DOC allegedly had in
place to protect employees from sexual or age-related harassment "is broken and needs to be
repaired."
¶ 26 The circuit court confirmed the decision of the Commission, and the instant appeal
followed.
¶ 27 The authority of the Commission is derived from the Illinois Human Rights Act (Act)
(775 5/1-101 et seq. (West 2012)). As the Act has not expressly adopted the Administrative
Review Law (735 ILCS 5/3-101 et seq. (West 2012)), or provided for other forms of review, the
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review of the Commission's decision in this case was by way of the common law writ of
certiorari. Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 333 (2009).
The standards of review applicable upon a writ of certiorari are the same as those applied to
review under the Administrative Review Law. Landers v. Chicago Housing Authority, 404 Ill.
App. 3d 568, 571 (2010). On appeal from a circuit court's decision, we review the determination
of the administrative agency, not that of the circuit court. Id.¶ 28 In an appeal from an administrative decision, "[t]he applicable standard of review
depends upon whether the question presented is one of fact, one of law, or a mixed question of
fact and law." (Internal quotation marks omitted.) Cinkus v. Village of Stickney Municipal
Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). On questions of fact, the Board's findings
are deemed prima facie true and correct and will not be reversed unless they are against the
manifest weight of the evidence. Id. In making this determination, this court will not weigh the
evidence or substitute its judgment for that of the agency. Id. An administrative agency's factual
determinations are against the manifest weight of the evidence only if the opposite conclusion is
clearly apparent. Id. In contrast, an agency's decision on a purely legal issue is entitled to no
deference by this court and is reviewed under the de novo standard. Id. Finally, where there is a
mixed question of law and fact, we review the agency's determination under the clearly
erroneous standard. Mixed questions are those "in which the historical facts are admitted or
established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory
standard, or to put it another way, whether the rule of law as applied to the established facts is or
is not violated.” (Internal quotation marks omitted.) Id. at 211. Under the clearly erroneous
standard, we reverse only where we are left with the "definite and firm conviction that a mistake
has been committed." (Internal quotation marks omitted.) Id.- 11 -
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¶ 29 The language and purpose of the Ordinance essentially parallels that of the Act with
regard to the prohibition against employment discrimination and sexual harassment. See 775
ILCS 5/2-102(A), 1-103 (West 2012). In reviewing sexual harassment cases under the
Ordinance, we are guided by analogous decisions arising under the Act, and may also consider
cases determined under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000a et seq.
(2012)). See Zaderaka v. Illinois Human Rights Comm'n¸ 131 Ill. 2d 172, 178 (1989); Powell v.
City of Chicago Human Rights Comm'n, 389 Ill. App. 3d 45, 52 (2009).
¶ 30 As its initial assignment of error, the Sheriff's Office makes several arguments which it
claims demonstrate that the Commission's determination that the petitioner suffered sexual
harassment at the hands of Belk in the period after September 2006 was against the manifest
weight of the evidence. We address each in turn.
¶ 31 Under the Ordinance, it is unlawful for employers to engage in discriminatory conduct
"against any individual in hiring *** or other term, privilege, or condition of employment on the
basis of unlawful discrimination." Cook County Code of Ordinances § 42-35(b)(1) (amended
Nov. 19, 2002). "Unlawful discrimination" is defined under section 42-31 as any discrimination
based upon, inter alia, an individual's race, sex, or age. In addition, section 42-35(e) of the
Ordinance prohibits employers or their agents or employees from engaging in "sexual
harassment" in the workplace. Sexual harassment is defined as "any unwelcome sexual advance,
request for sexual favors, or any conduct of a sexual nature" that, in relevant part, "has the
purpose or effect of substantially interfering with an individual's work performance or creating
an intimidating, hostile, or offensive working environment." (Emphasis added.) Cook County
Code of Ordinances § 42-35(e) (amended Nov. 19, 2002) An employer is liable for the acts of
its supervisory personnel which constitute sexual harassment, regardless of whether the acts were
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forbidden by the employer or even whether the employer knew or should have known of their
occurrence. Sangamon County Sheriff's Department v. Illinois Human Rights Comm'n, 233 Ill.
2d 125, 141 (2009).
¶ 32 In determining what sexual conduct creates a "hostile work environment" sufficient to
sustain a finding of sexual harassment, our courts have adopted the two-part test established in
the Title VII case of Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); see Geise v. Phoenix
Co. of Chicago, Inc., 159 Ill. 2d 507, 517 (1994). In particular, the aggrieved employee must
present evidence that the respondent engaged in behavior (1) that was severe or pervasive
enough to create a work environment that a reasonable person would find to be "hostile or
abusive"; and (2) that the employee herself subjectively perceived to be hostile or abusive.
Harris, 510 U.S. at 21-22. In determining whether both of these elements have been met, the
court considers "the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance." Harris, 510 U.S. at 22-23; Crittenden v. Cook County
Comm'n on Human Rights, 2012 IL App (1st) 112437, ¶ 55. Although the employee need not
prove that she suffered tangible psychological injury or a "nervous breakdown," the "mere
utterance of an … epithet which engenders offensive feelings" is insufficient to constitute
harassment. (Internal quotation marks omitted.) Harris, 510 U.S. at 21-22.
¶ 33 The Sheriff’s Office first contends that the petitioner failed to demonstrate that she
"subjectively" perceived her work environment to be hostile or abusive as a result of Belk’s
conduct. It points to the Commission’s finding that Belk's conduct did not rise to the level of
sexual harassment during the period of April 2004 through March 2005, and asserts that there
was no significant difference between Belk’s "sexual touchings" of the petitioner in that period
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as compared to the period after he became her supervisor in September 2006. Therefore,
according to the Sheriff's Office, the Commission’s finding of sexual harassment for the period
after September 2006 cannot be reconciled with its finding of no harassment during the 2004-05
time period, and is, accordingly, against the manifest weight of the evidence.
¶ 34 We find the analysis offered by the Sheriff’s Office to be misplaced. Indeed, the
petitioner testified that, while she found Belk’s acts of hugging her and massaging her shoulders
in 2004 to be unwelcome, she did not initially consider them to be sexual harassment. However,
it was not the nature of these acts per se, but rather, their pervasiveness and severity that formed
the basis for the Commission’s determination. It was clear from both the petitioner's testimony
and her journal entries that, once Belk was transferred into her department and became her direct
supervisor, his physical advances and comments escalated in frequency and intensity and,
importantly, began to significantly impair her ability to perform her job. The petitioner's
ongoing efforts to stop Belk's sexual advances were often met with profanity and physically
threatening behavior on his part, including his act of pushing her on at least one occasion. Her
mental state eventually declined to the point that Davis felt it necessary to refer her to the DOC's
Employee Assistance Program. The petitioner commenced treatment with a psychologist and
was diagnosed with post-traumatic stress disorder, among other issues, all the undisputed result
of Belk’s conduct. In light of these circumstances, we are unable to conclude that the
Commission's finding that the petitioner subjectively experienced a hostile work environment as
a result of Belk's sexual advances was against the manifest weight of the evidence.
¶ 35 The Sheriff's Office also argues that the evidence does not support a finding of sexual
harassment under the objective test in Harris. As an apparent alternative argument to that raised
above, it maintains that Belk's physical advances were not sufficiently sexual in nature, and that
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conduct such as placing the petitioner in a headlock was, "at worst[,] unprofessional,
disrespectful and sometimes threatening." We disagree.
¶ 36 Alleged discriminatory conduct is often comprised of a series of incidents and cannot be
considered in a vacuum. Sangamon County, 233 Ill. 2d at 141-42; Jenkins v. Lustig, 354 Ill.
App. 3d 193, 196 (2004). It must be evaluated from the perspective of a reasonable person in the
plaintiff's position in the context of the situation in which the conduct arose. Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81 (1998). Further, as observed by the
Commission, sexual discrimination or harassment "is often motivated by issues of power and
control" (Tanner v. Prima Donna Resorts, Inc., 919 F. Supp. 351, 355 (D. Nev. 1996)), and, for
this reason, need not necessarily be found to have been motivated by sexual desire. Oncale, 523
U.S. at 80.
¶ 37 While it is true that Belk subjected the petitioner to a range of demeaning and coercive
acts, he also engaged in acts that were undeniably sexual in nature, including attempting to kiss
her, massaging her shoulders, running his hands through her hair and touching her face, and
pressuring her for dates. Such contact was exacerbated by the fact that it was often combined
with profane language and physical threats. In addition, for over one year, Belk persisted in
these sexual advances notwithstanding the petitioner's obvious discomfort and demands that he
stop, and her efforts to report him to supervisors. We find that these circumstances sufficiently
constituted sexual misconduct giving rise to a work environment that a reasonable person would
consider hostile and abusive, as contemplated under the second prong of the test in Harris, 510
U.S. at 22-23.
¶ 38 The Sheriff's Office next argues that the petitioner's account of events was not credible,
because she relied too much upon her journal throughout her testimony rather than testifying
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from her own memory. It further asserts that the Commission placed too much emphasis on the
evidence in the petitioner's journal and suggests that the journal's contents were not accurate or
reliable. We reject both contentions.
¶ 39 The question of whether the petitioner excessively relied upon her journal goes merely to
the weight to be afforded her testimony, rather than its admissibility. See Corrales v. American
Cab Co., 170 Ill. App. 3d 907, 911 (1988). Determinations as to the credibility of witnesses and
the weight to be given their testimony are reserved for the Commission; it is not this court's
function to substitute its judgment on those issues. Christ Hospital & Medical Center v. Human
Rights Comm'n, 293 Ill. App. 3d 105, 109-10 (1997). Although the petitioner frequently looked
to her journal to refresh her recollection as to particular dates or specific details of conversations,
we see no basis to discount her testimony. The Commission found the petitioner to be credible,
and we are unable to conclude that this finding was against the manifest weight of the evidence.
¶ 40 To the extent that the Sheriff's Office seeks to challenge the competency of the evidence
contained in the journal, its argument comes too late. Evidentiary rulings may not be challenged
on appeal if they have not been properly preserved. See Babikian v. Mruz, 2011 IL App (1st)
102579, ¶ 13 (citing Thornton v. Garcini, 237 Ill. 2d 100, 106 (2009)). Here, not only did the
Sheriff's Office fail to raise any objection to the admission of the journal before the Commission,
it acquiesced in its admission by its joint stipulation. It cannot now be heard to contest the
competency of the journal. Based upon the foregoing analysis, we conclude that the evidence
sufficiently demonstrated that Belk's conduct created an "intimidating, hostile or offensive work
environment" so as to constitute sexual harassment under section 42-35(e) of the Ordinance.
¶ 41 Next, the Sheriff's Office argues that the Commission erred in granting the petitioner
relief based upon alleged age-related harassment because the Ordinance does not specifically
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include such a prohibition within its provisions. As this issue involves a matter of statutory
construction, we review it under the de novo standard. Crittenden v. Cook County Comm'n of
Human Rights, 2013 IL 114876, ¶ 46.
¶ 42 The Ordinance, similar to the Act, bars employers from discriminating against
individuals with regard to discipline, terms, privileges, or conditions of employment on the basis
of "unlawful discrimination," which includes discrimination based upon an individual's age, if
over 40 years. Cook County Code of Ordinances §§ 42-35(b)(1), 42-31 (amended Nov. 19,
2002). Although it allows for claims based upon sexual harassment, there is no specific
provision for harassment based upon age or any of the other protected classes.
¶ 43 Our research has failed to uncover any case law directly addressing the question of
whether the Ordinance's prohibition against age-related discrimination also encompasses age-
related harassment. However, this court has recognized a claim for harassment under the Act in
cases involving other protected classes. See, e.g., Village of Bellwood Board of Fire & Police
Commissioners v. Human Rights Comm'n, 184 Ill. App. 3d 339, 350 (1989) (racial harassment
actionable under the Act). Further, it is well-established that, under Title VII,1 freedom from
workplace "discrimination" also encompasses the protection against a hostile work environment
or workplace harassment. Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996).
The rationale underlying this principle was stated in Harris, wherein the Court observed that
Title VII's phrase barring employers from discriminating regarding the "terms, conditions, or
privileges of employment" evinces a congressional intent "to strike at the entire spectrum of
1
Title VII precludes employers from discriminating against any individual with respect
to the "terms, conditions, or privileges of employment" based upon race, color, religion,
sex, or national origin. 42 U.S.C. § 2000e-2(a)(1) (Supp. I 2012). It does not expressly
bar discrimination based upon age. See Williams v. Department of Veterans Affairs, No.
12-CV-8400, 2016 WL 946903, at *7 (N.D. Ill. Mar. 14, 2016).
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disparate treatment of men and women in employment, which includes requiring people to work
in a discriminatorily hostile or abusive environment." (Internal quotation marks omitted.)
Harris, 510 U.S. at 21. Title VII is violated whenever the workplace is permeated with
discriminatory "intimidation, ridicule, and insult" that is severe or pervasive enough to "alter the
conditions of the victim's employment and create an abusive working environment." (Internal
quotation marks omitted.) Id. at 21 (citing cases).
¶ 44 Like the Ordinance, the Age Discrimination in Employment Act (ADEA) (29 U.S.C. §
623 (2012)) prohibits an employer from discriminating against any individual with respect to his
"terms, conditions, or privileges of employment, because of such individual's *** age." It is
well-recognized that "the ADEA and Title VII share common substantive features and also a
common purpose," which is the "elimination of discrimination" in the workplace. Crawford, 96
F.3d at 834 (quoting McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 357 (1995));
see also Lorillard v. Pons, 434 U.S. 575, 584 (1978) (noting "the prohibitions of the ADEA were
derived in haec verba from Title VII"); c.f. Zaderaka, 131 Ill. 2d at 178 (adopting the analytical
framework utilized by the United States Supreme Court in cases under both Title VII and
ADEA). Given these similarities, and the established recognition that proof of a hostile work
environment forms a valid basis for relief under Title VII, the court in Crawford found it a
"relatively uncontroversial proposition" that such a theory would also constitute a viable claim
under the ADEA. Crawford, 96 F.3d at 834. Nearly all federal courts of appeals, as well as the
federal district courts, have also held that hostile work environment claims are viable under the
ADEA. Alexander v. CIT Technology Financing Services, Inc., No. 01 CV 7217, 2002 WL
69493, at *3 (N.D. Ill. Jan.18, 2002); see also Ellison v. Brady, 924 F.2d 872, 876 (9th Cir.
1991).
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¶ 45 We find the rationale advanced in Crawford to be applicable to age-discrimination claims
under the Ordinance. It is readily apparent that, where an employer subjects an employee to a
work environment sufficiently hostile or abusive, it is "acting with respect to" the "terms,
privileges, or conditions" of that individual's employment under § 42-35(b)(1). Where an
employee can prove that her age was used as a basis to create such a hostile work environment,
she proves unlawful discrimination under the Ordinance. Therefore, we conclude that a showing
of a hostile work environment based upon age-related harassment constitutes discrimination
within the meaning of the Ordinance.
¶ 46 In the alternative, the Sheriff's Office contends that the Commission's finding that Belk
subjected the petitioner to age-related harassment is against the manifest weight of the evidence,
because certain entries in her journal suggest that she considered Belk's comments about her age
to be merely jokes. In addition, the Sheriff's Office points to the accounts of some witnesses,
whom it does not name, who allegedly testified that they considered Belk's comments to be
jokes.
¶ 47 The position of the Sheriff's Office on this issue merely reflects its own perception of the
evidence. Not only did the petitioner repeatedly deny that she considered Belk's age-related
comments a joke, but McRoy also testified that no one could have considered them as such. The
Commission found this testimony credible, and specifically rejected the testimony of other
witnesses, some of whom were impeached, trying to downplay Belk's near-daily comments,
insults and profanity with regard to the petitioner's age. Accordingly, we are unable to conclude
that the Commission's finding of age-related harassment was against the manifest weight of the
evidence.
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¶ 48 Finally, the Sheriff's Office urges that the Commission's award of prospective injunctive
relief be vacated because it exceeded the Commission's authority as set forth under section 42-
34(c) of the Ordinance. Alternatively, it contends that the injunctive relief was excessive and
onerous and that it therefore must be reversed as unreasonable and arbitrary.
¶ 49 In its injunctive order, the Commission required that the DOC: (1) adopt a policy making
age harassment as defined under the Ordinance a violation of the DOC's employment policies;
(2) arrange a meeting with Belk to inform him that his conduct constituted a violation of the
Ordinance and would not be permitted to recur without severe disciplinary consequences; (3) bar
Belk from all future contact with the petitioner; (4) adopt procedures making it clear to persons
who have been subjected to age or sexual harassment that they should report those claims, and
directing all supervisors who have learned of potential claims to report such information to the
Office of Professional Services; (5) retain a consultant to extensively train directors, managers
and other supervisory personnel regarding the elements of sex and age harassment, and methods
to protect against such conduct and properly investigate it if it occurs; (6) distribute a written
manual detailing the terms and enforcement of the new policies and procedures that will be
adopted to prevent sex or age harassment, and that will preclude retaliatory action against
persons making harassment claims; (7) take immediate action to ensure that the petitioner is not
subjected to any further sex or age harassment or other negative treatment; and (8) certify its
compliance with the injunction to the executive director of the Commission.
¶ 50 The Act sanctions the creation of the Commission and enactment of the Ordinance for the
purpose of "secur[ing] for all individuals *** freedom from unlawful discrimination [and] sexual
harassment in employment." 775 ILCS 5/7-108(A) (West 2012). To accomplish this end,
section 42-34(c) of the Ordinance enumerates 12 forms of remedy which may be imposed by the
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Commission upon a finding of unlawful discrimination under the Ordinance. Section 42-34(c)
states, in relevant part, as follows:
"(1) Relief may include, but is not limited to, an order to:
a. Cease the illegal conduct complained of and to take steps to alleviate the effect
of the illegal conduct complained of;
***
h. Take such action as may be necessary to make the complainant whole ***;
i. File with the Commission a report as to the manner of compliance;
j. Post in a conspicuous place notices which the Commission may publish or
cause to be published setting forth requirements for compliance with this article or other
relevant information which the Commission determines necessary to explain this article
***." (Emphasis added.) Cook County Code of Ordinances § 42-34(c) (amended Nov.
19, 2002).
¶ 51 The Sheriff's Office contends that the injunctive relief ordered by the Commission does
not fall within any of the above enumerated categories, and is therefore invalid. We disagree.
¶ 52 The plain and unambiguous language of section 42-34(c) vests the Commission with
broad authority to fashion a remedy which "may include" but "is not limited to" 12 categories of
relief. When the legislature employs a phrase such as "including but not limited to" preceding a
list of things, the phrase is interpreted to mean that the ensuing list is merely illustrative rather
than exhaustive. People v. Perry, 224 Ill. 2d 312, 330 (2007). Moreover, the language of some
of the above remedies is expansive, authorizing the Commission itself to publish or "cause to be
published" notices "setting forth requirements for compliance" with the Ordinance, or to compel
wrongdoers to "take steps" necessary "to alleviate the effect of the illegal conduct." Construed
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as a whole, this language reflects an intention that the Commission employ its discretion to
devise a plan to effectively address and prevent discriminatory activity based upon the
circumstances of each particular case.
¶ 53 The Sheriff's Office argues that it already had an anti-discrimination policy in place and
that the one imposed under the injunction is "unreasonable and onerous." It fails to sufficiently
argue, however, how the relief imposed was unduly onerous, and we consider this assertion to be
without merit. As for the existing policy, the Commission noted that there was no such
document introduced into evidence and that, in any event, any policy with regard to enforcement
of discrimination claims was "broken." We see no reason to disturb this finding. It was
undisputed that the petitioner attempted for over one year to seek help from several sources in
addressing Belk's increasingly improper and threatening conduct. However, her complaints were
essentially ignored by Krok until January of 2008, when he was alerted to the fact that the
petitioner had been referred to the Employee Assistance Program and also told to report the
matter to the DOC's Office of Professional Responsibility. Even after the seriousness of the
petitioner's situation was recognized, Belk was allowed to continue working with her for another
month and to continue his contact with her for the ensuing months. Further, it appears that her
complaint with the Office of Professional Responsibility was not given due consideration, as it
was held to be without merit and without "corroboration" in the face of substantial evidence to
the contrary, and in reliance upon statements by Belk which, according to the Commission,
investigators understood to be false. As the DOC appeared to lack an adequate understanding of
anti-discrimination law or the mechanism necessary for its enforcement, the Commission
appropriately detailed steps to rectify Belk's wrongdoing, and to ensure the DOC's future
compliance with the Ordinance. We will not interfere with the Commission's discretion in
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issuing the injunctive relief it did.
¶ 54 For the foregoing reasons, we affirm the judgment of the circuit court which confirmed
the decision of the Commission.
¶ 55 Affirmed.
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