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01/26/89 the State of Illinois, v. the Human Rights

January 26, 1989

THE STATE OF ILLINOIS, DEPARTMENT OF CORRECTIONS, PETITIONER

v.

THE HUMAN RIGHTS COMMISSION ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

534 N.E.2d 161, 178 Ill. App. 3d 1033, 128 Ill. Dec. 141 1989.IL.77

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The Illinois Department of Human Rights filed a complaint with the Illinois Human Rights Commission (Commission) as a result of charges filed with the DHR by respondent Lynda Savage against petitioner the Department of Corrections . The complaint alleged that Savage had been subjected to sexual harassment by her immediate supervisor, Nicholas Howell, and was discharged in retaliation for opposing sexual harassment and for filing charges of unlawful discrimination with the DHR, in violation of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1-101 et seq.). After a hearing, the administrative law Judge recommended that Savage's complaint be sustained on both counts, that she be reinstated to her former position, and that she be awarded damages, attorney fees and costs. Thereafter, DOC filed exceptions to the ALJ's recommended order and decision. Upon review, the Commission affirmed and adopted the findings and recommendations of the ALJ and ruled that Savage had been subjected to sexual harassment in that Howell's conduct was "of a sexual nature" and had the purpose or effect of substantially interfering with Savage's work performance or creating an intimidating, hostile, or offensive working environment within the meaning of the Act. (Ill. Rev. Stat. 1987, ch. 68, pars. 2-102, 2-101 (3).) The Commission further ruled that Savage was discharged in retaliation for opposing the sexual harassment and for filing charges with the DHR. (Ill. Rev. Stat. 1987, ch. 68, par. 6-101.) The Commission ordered that Savage be reinstated to her former position and that she be awarded damages including, inter alia, $81,465.27 in back pay, $23,131.50 for lost benefits, and $2,160 for medical expenses, as well as $18,068.75 for attorney fees, and other costs. The matter is now before this court on administrative review as provided by section 8-111 of the Act. Ill. Rev. Stat. 1987, ch. 68, par. 8-111.

On appeal, DOC contends that the Commission's determination is against the manifest weight of the evidence and that the Commission's award of lost benefits, including sums for sick days, personal days, vacation, and FICA, constitutes double damages. For the reasons set forth below, we affirm.

As this appeal involves questions concerning the sufficiency of the evidence, a fairly detailed Discussion of the testimony presented at the June 25, 1986, hearing in this cause is necessary. Respondent Lynda Savage testified in her own behalf that in August 1978, she became employed with the Illinois Department of Children and Family Services as a public information officer. Her supervisor in that job was Nicholas Howell. Savage worked for DCFS until September 1979, when she became employed with the Illinois Department of Law Enforcement as a public information officer. Savage stated that she transferred to the Department of Law Enforcement because Howell and his supervisor "did not get along well, and it created a lot of office tension that [she] wanted to get away from." She worked for the Department of Law Enforcement until October 1981, at which time she began working for DOC as a public information officer. Her supervisor during her employment with DOC was again Nicholas Howell, who was the chief public information officer for DOC.

In early 1982, Howell prepared an evaluation of Savage's work performance and recommended to DOC Director Michael Lane that she be given a 12% salary adjustment for performing her duties in a superior fashion. The salary increase was approved in June 1982. In the fall of 1983 Howell prepared another performance evaluation, rating Savage's work performance as "more than satisfactory" and requesting that she receive a salary increase. A salary increase of 7% was approved in September 1983.

Savage testified that during her employment with DOC, Howell referred to women in the following manner:

"If he met a [woman] that he was fond of, or that he liked, he would describe her in terms of physical appearance. For instance, he would say she had big boobs, she had a nice round ass that was good for pushing, I like her legs, she had a sensuous mouth, I like her doe eyes. If he was involved or had contact with a woman that he did not like, he would refer to her being on the rag, or raggin', or he would call her a bitch, a cunt or a twat."

Howell made these comments and used terms such as "motherfucker and fuck" on a daily basis. At times, Howell directed such comments and terms at Savage and their secretary Rita Crifasi.

Savage then described several specific incidents involving Howell. Howell once brought a lingerie catalog containing "push-up bras, garter belts, and crotchless panties" to the office and asked Savage and Crifasi to help him select an outfit for his wife. He also asked Crifasi to make a long distance phone call to a pornographic service from his office. Further, Howell showed a picture around the office of himself with "a large-busted woman under each of his arms [and] he had his [hands] cupped over their breasts." Similarly, Howell brought a slide he had taken of "an inmate holding a cucumber coming out of his pants [that] looked like a large penis." On another occasion, Crifasi was discussing a television program she had seen about a baby born with a "forked tongue" and Howell remarked, "[How] would you like to french that baby?" Savage testified that Howell also referred to her daughter in a "derogatory" fashion, stating on one occasion that Savage should "buy her [daughter] a dildo for Christmas." On a subsequent occasion Howell saw a picture of Savage's daughter and asked Savage if she was raising her daughter to be a "porno star."

In January of 1984, Savage informed Howell that she and Crifasi had discussed the situation and if he did not refrain from using foul language, making sexually derogatory remarks, and making obscene pornographic references to her baby, she would take legal action against him. Howell told Savage to "go right ahead" and walked out of the room. Savage stated that Howell continued to use the language and make the remarks. Savage then met with William Craine, the Deputy Director of DOC's Bureau of Employee and Inmate Services. Savage informed Craine of various incidents involving Howell, and told him that the working situation was "very uncomfortable and intolerable, . . . hoping that he could tell [her] some way to relieve the situation." Craine told Savage that "there wasn't much that [she] could do about the situation, that [she] just had to put up with it." Savage asked Craine if it would help to speak with Director Lane. Craine responded, "[Whatever] you do don't go talk to Director Lane" because it would anger Lane as "he does not want to hear what is going on between his employees." Craine informed Savage that he would talk to Howell and see what he could do. To Savage's knowledge, Craine did nothing about the situation.

Shortly thereafter Savage again spoke with Howell and asked him to stop using the foul language and stop making the sexually derogatory comments. The situation did not improve, rather "the language became worse in that it became more repetitive throughout the day." Savage testified that the situation continued to deteriorate and on March 30, 1984, she met with Lynnette Jones, the assistant to the Director of DOC. Savage informed Jones of the incidents and asked to be assigned to a different position or office. Jones indicated that she was aware of the tension in the Public Information Office but did not know what had been causing it. Jones appeared sympathetic and concerned and informed Savage that she would discuss the situation with Director Lane that evening. Jones called Savage the next day and informed her that Director Lane would meet with her the following Monday. However, Lane did not meet with Savage at that time or anytime thereafter.

In March 1984, Savage spoke briefly with Jerry Butler, the Chief of DOC's Labor Relations Office, describing some of the incidents. Butler informed Savage that he was not surprised as his office was once located next to Howell's and he knew that Howell used such language and made such remarks. On April 3, 1984, Savage again asked Howell to refrain from making the objectionable comments and remarks.

Savage testified that prior to May 1984, she had never been disciplined in regard to her employment. Savage acknowledged that she was absent from work on May 4, 1984. According to Savage, she had advised Crifasi on May 3 that she would not be at work the following day. In a memo dated May 7, 1984, Howell informed Savage that her absence on May 4 was considered unauthorized because she had not notified the office that she would be absent that day. The unauthorized absence was placed in Savage's personnel file and she was docked a day's pay.

On May 7, 1984, Savage again spoke with Jerry Butler informing him of the various incidents and the disciplinary action taken against her and seeking his advice in rectifying the situation. Butler told Savage to first write a memo to Howell to see if they could work out an arrangement between the two of them. If this did not work, he suggested that she file a grievance with the DOC's Equal Employment Opportunity Commission Affirmative Action Office or file a complaint with the DHR. According to Savage, she filed a grievance against Howell for the unauthorized absence and met with him on May 10, 1984. During this meeting, Howell did not rule on the grievance but informed her that he had reviewed the information she presented, that he would consider her attitude adjustment over the next several months and might rescind the disciplinary action. Savage called Butler on May 17, 1984, to inform him of what had transpired. Butler told Savage that she had followed the proper procedure.

Savage testified that on May 25, 1984, she brought a tape recorder into the office and placed it uncovered on the middle of her desk. After this date, Howell discontinued his use of foul language and sexually derogatory remarks in Savage's presence. Savage testified that she never recorded any office conversations with the tape recorder.

On May 29, 1984, Savage filed a charge of sexual harassment with the DHR. DOC had notice of the charge, through its affirmative action officer, on or before June 5, 1984. On June 8, 1984, a DOC internal affairs investigator, David Brubaker, came to her office to question her and she asked his permission to tape-record their conversation. According to Savage, Brubaker "grabbed" the tape recorder out of her hand and stated, "[This] is what I want to talk to you about." Brubaker then took the cassette ...


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