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10/17/97 RADA MAKSIMOVIC v. WILLIAM T. TSOGALIS

October 17, 1997

RADA MAKSIMOVIC, APPELLANT,
v.
WILLIAM T. TSOGALIS, ET AL., APPELLEES.



Petition for Leave to Appeal from the Circuit Court of Cook County. Hon. Jacqueline P. Cox, Trial Judge. Case Numbers: AC1-95-3791, TR94L02797.

The Honorable Justice Heiple delivered the opinion of the court.

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

Must a claim of intentional tort related to allegations of sexual harassment be litigated before the Illinois Human Rights Commission (the Commission), or, stated differently, does the exclusive remedy provision of the Illinois Human Rights Act (Act) (775 ILCS 5/8-111(C) (West 1994)) divest the circuit court of jurisdiction to adjudicate such common law tort claims? This court visited this question in Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 517, 203 Ill. Dec. 454, 639 N.E.2d 1273 (1994), and held that where a tort claim is "inextricably linked" to claims of sexual harassment such that there is "no independent basis for imposing liability" apart from the Act itself, those claims must be litigated before the Commission--and only before the Commission. We allowed the instant plaintiff leave to appeal (155 Ill. 2d R. 315) so that we could clarify the scope of this court's holding in Geise as it regards tort claims which, though related to sexual harassment, have an independent basis in the common law.

We conclude that the plaintiff's common law tort claims of assault, battery and false imprisonment are not inextricably linked with claims of sexual harassment, because the plaintiff has established the necessary elements of each tort independent of any legal duties created by the Act. The plaintiff has established a basis for imposing liability on the defendant independent of any statutory cause of action under the Act, and therefore the circuit court does have jurisdiction to adjudicate the plaintiff's common law tort claims. We reverse and remand. *fn1

I

This case comes to us on a grant of summary judgment, so our review is de novo. McInerney v. Charter Golf, Inc., 176 Ill. 2d 482, 484, 223 Ill. Dec. 911, 680 N.E.2d 1347 (1997). From October 1992 until August 1993, Rada Maksimovic worked as a waitress at a restaurant owned and operated by William T. Tsogalis located in Des Plaines, Illinois. Maksimovic quit her job after Tsogalis allegedly made repeated sexual advances towards her.

Subsequently, Maksimovic filed a complaint with the Illinois Human Rights Commission in November 1993, alleging that she was the victim of sexual harassment at the hands of her former manager, Tsogalis, and she sought backpay and reinstatement. Several months later, Maksimovic filed an action for damages in the circuit court of Cook County against defendants William T. Tsogalis, William T. Inc., d/b/a Tiffany's Restaurant, and P.C. Partners, d/b/a Comfort Inn. In the three counts of the complaint relevant to this appeal, the plaintiff alleged that Tsogalis committed the intentional torts of assault, battery and false imprisonment. In the assault count, Maksimovic alleged that Tsogalis threatened to "give her a stiff one up the ass," ordered her to perform oral sex on him, made comments about her breasts and accused her of being too friendly with the customers. In the battery count, the plaintiff alleged that Tsogalis placed his hand under her skirt and grabbed her leg, grabbed her buttocks and touched her while attempting to kiss her. In the false imprisonment count, the plaintiff alleged that Tsogalis confined her in a walk-in cooler where he made sexual advances toward her.

The circuit court held that it lacked subject matter jurisdiction to adjudicate the plaintiff's case because her tort claims were in the nature of sexual harassment and granted summary judgment for the defendants. The appellate court affirmed and held that the circuit court was without jurisdiction to adjudicate claims of intentional tort related to allegations of sexual harassment: "Because the fundamental nature of plaintiff's claims are offensive touchings of a sexual nature and she cannot support a cause of action independent of these allegations, her claims for assault, battery, and false imprisonment are barred by the Act and Geise." 282 Ill. App. 3d 576, 586, 218 Ill. Dec. 3, 668 N.E.2d 166.

II

Our analysis of whether the Act precludes the circuit court from adjudicating common law tort claims related to allegations of sexual harassment naturally begins with a careful reading of the statute. The Act provides in relevant part:

"Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act." 775 ILCS 5/8-111(C) (West 1994).

The Act goes on to state that it is a "civil rights violation" for any employer or employee "to engage in sexual harassment." 775 ILCS 5/2-102(D) (West 1994). Sexual harassment is defined as:

"any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when *** such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or ...


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