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Barnard v. City of Chicago Heights

March 04, 1998

JACQUELINE A. BARNARD, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO HEIGHTS, SERGEANT SAMUEL PAVESICH, CHIEF DOUGLAS BARGER AND CAPTAIN SALVATORE VICARI, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Sophia H. Hall and Jacqueline P. Cox, judges Presiding.

The opinion of the court was delivered by: Justice Burke delivered the opinion of the court:

Plaintiff Jacqueline Barnard appeals from three orders of the circuit court granting summary Judgement in plaintiff's common law tort action to defendant City of Chicago Heights, plaintiff's employer, and defendants Douglas Barger and Salvatore Vicari (collectively, defendants), granting summary Judgement to defendant Samuel Pavesich (Pavesich) and granting defendants' motion for leave to amend their affirmative defenses. On appeal, plaintiff contends that: (1) the trial court erred in granting summary Judgement for defendants and Pavesich based on the exclusive remedy provision of the Illinois Human Rights Act (775 ILCS 5/1--101 et seq. (West 1994)) because plaintiff's claims against defendants and Pavesich were not inextricably linked to acts of sexual harassment; (2) defendants were not entitled to summary judgment based on any other ground asserted in their motion for summary judgment because "the evidence in the record and the reasonable inferences to be drawn from that evidence" support plaintiff's negligence and intentional tort claims against defendants, and defendants' affirmative defenses or "other affirmative matter" failed to establish that they were entitled to Judgement as a matter of law; and (3) the trial court erred in granting defendants' motion to amend their affirmative defenses after summary Judgement had been entered in favor of defendants. For the reasons set forth below, we remand this case for further proceedings.

On September 5, 1989, plaintiff was employed as a desk clerk by the City of Chicago Heights police department (Department). According to plaintiff, shortly after she started working, Pavesich, who was also employed by the Department as a sergeant, began making sexually offensive comments to her and other female employees. With respect to plaintiff, these comments included the use of obscene language and propositions for sexual activity, such as Pavesich's statements that he was having "wet dreams" about plaintiff and imagining how plaintiff would "feel inside."

On June 12, 1990, at approximately 1:30 a.m., plaintiff was off the Department's premises on a permitted break during her shift; plaintiff had gone to a restaurant to meet her boyfriend. While plaintiff was driving back to the police station, but before she had reached the station, Pavesich, who was on duty and driving his squad car, ordered her to pull her car over and get into his car. Plaintiff got into the car, but left the door open. Pavesich then reached over, shut the door and eventually positioned himself so that he was "like on top of ." When plaintiff struggled to escape and told Pavesich to leave her alone, he held her face, kissed her with his tongue, opened her uniform shirt, grabbed her breasts, grabbed her between the legs, tried to stick his hand inside her pants, and grabbed her hand and rubbed it over his genitals. Plaintiff continued to struggle, and Pavesich let her get out of the car after approximately five minutes. Plaintiff returned to the station, but did not report the incident that day. From June through August 1990, Pavesich continued to make offensive comments to plaintiff, and once during August 1990 he came up behind her in her office, leaned over, put his arm around her and stuck his tongue in her ear.

Plaintiff reported the June 12, 1990, incident to her desk supervisor in August 1990, at which time the supervisor suggested that plaintiff report the incident directly to Captain Vicari. Approximately two weeks later, Vicari telephoned plaintiff at home and requested that she come to the station for a meeting. During the meeting, plaintiff told Vicari and two other captains about the June 12 occurrence. At the direction of the captains, plaintiff reduced her complaint to writing on August 27, 1990, in a departmental memorandum. According to Vicari, Pavesich's assignment inside the police station as watch commander was subsequently changed because Chief Barger wanted Pavesich "outside as much as possible" in order to "keep him outside and away from ."

In October 1990, Chief Barger and Captain Vicari brought charges against Pavesich before the Board of Fire and Police Commissioners of the City of Chicago Heights (the Board), stating that Pavesich violated various rules and regulations of the Department, including "unbecoming conduct," "immoral conduct," and "abuse of position" based on the June 12 incident. After a hearing, the Board issued a written decision on December 27, finding that the evidence supported the charges against Pavesich, and ordering that Pavesich be suspended without pay for 30 days.

In December 1990, plaintiff requested and was granted a medical leave of absence from the police department because she claimed the incident with Pavesich caused her "severe emotional trauma, including a fear of going to work." Plaintiff did not return to work following the end of her leave, and subsequently submitted a formal letter of resignation on January 29, 1991.

On June 11, 1991, plaintiff filed a complaint against the same defendants in the case at bar, in the U.S. District Court for the Northern District of Illinois, based on the June 12 incident, as well as other alleged acts of Pavesich which plaintiff claimed amounted to "sexual harassment." Counts I through IV of plaintiff's complaint were brought pursuant to title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e--2 (1988)); counts I and II alleged equal protection claims, and counts III and IV alleged due process violations. Count V alleged sexual harassment claims in violation of title VII, counts VI and VII alleged assault and battery claims, counts VIII and IX alleged intentional infliction of emotional distress claims, and count X alleged negligent supervision against defendants, except for Pavesich. The district court dismissed plaintiff's complaint on October 20, 1992.

On February 24, 1993, plaintiff filed a complaint in the circuit court of Cook County and, on February 1, 1994, she filed a six-count amended complaint. Counts I and III were directed against Pavesich, and alleged claims of assault and battery and intentional infliction of emotional distress, respectively. Counts II, IV, V and VI were directed against the other defendants, and alleged claims of assault and battery, intentional infliction of emotional distress, negligent retention, training and supervision of Pavesich and willful and wanton retention and failure to supervise Pavesich, respectively.

On July 17, 1996, defendants filed a motion for summary judgment, arguing that: (1) the exclusivity provisions of the Human Rights Act barred the trial court's jurisdiction; (2) plaintiff's claims were barred under the Workers' Compensation Act because they occurred during the course of plaintiff's and Pavesich's mutual employment; (3) defendants were not vicariously liable for Pavesich's alleged sexual assault; (4) plaintiff was unable to prove the requisite notice element for all of her claims against defendants; (5) defendants were immune from liability for their discretionary employment decisions; (6) plaintiff failed to allege facts establishing defendants' negligence or willful and wanton conduct; (7) plaintiff failed to plead facts that defendants' retention of Pavesich proximately caused her injury; and (8) plaintiff's constructive discharge claim was "inapplicable to the facts of this case." Specifically, with respect to the Human Rights Act, defendants relied on Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 515-16, 639 N.E. 2d 1273 (1994), arguing that the trial court lacked jurisdiction over the subject matter of plaintiff's complaint because the facts alleged fit the definition of a "civil rights violation" under the Human Rights Act, notwithstanding that plaintiff "attempt to frame her claims against *** employer in terms of recognized common law tort claims." In her response to defendants' motion, plaintiff argued that the record contained sufficient evidence to support her causes of action, thereby precluding summary Judgement for defendants. Plaintiff specifically argued that the acts complained of in Geise were distinguishable from those in the case at bar because they were not "violent and brutal." Plaintiff also argued that our court in Maksimovic v. Tsogalis, 282 Ill. App. 3d 576, 668 N.E.2d 166 (1996), "misread" Geise to hold that "sexual harassment" under the Human Rights Act "include any physical assault and battery," and that "every claim involving physical touching" should be barred under the Human Rights Act. (Emphasis in original.) On October 17, the trial court granted defendants' motion for summary Judgement on all counts against them based on its determination that "the exclusivity of the remedies of the Illinois Human Rights Act" barred it from exercising jurisdiction.

Pavesich also filed a motion for summary judgment, arguing that plaintiff's common law tort claims against him were barred by the Human Rights Act. On December 5, 1996, the trial court granted Pavesich's motion based upon the exclusive remedy provision of the Human Rights Act. This appeal followed.

Plaintiff first contends that the trial court erred in granting summary Judgement to defendants and Pavesich based on the exclusive remedy provision of the Human Rights Act (Act) (775 ILCS 5/1--101 et seq. (West 1994), arguing that Pavesich's conduct toward plaintiff on June 12, 1990, constituted a "violent, physical attack" that was "purely and simply a physical assault and battery" and not a sexually-harassing type touching encompassed within the definition of "sexual harassment" under the Act. Plaintiff maintains that her negligence and intentional tort claims against defendants and Pavesich based on Pavesich's conduct before, on and after June 12, therefore, do not depend on allegations of sexual harassment and do not fall under the Act. Plaintiff further argues that since Pavesich's acts cannot be defined as sexual harassment, "Pavesich is liable for the assault and battery as the perpetrator and the City defendants are liable as the facilitators."

Defendants and Pavesich contend that the trial court properly granted summary Judgement to them based on the exclusive remedy provision of the Act because plaintiff's claims against defendants are based upon alleged occurrences which took place in an employment setting and depend upon prohibitions against sexual harassment for their viability. More specifically, defendants and Pavesich argue that the fundamental nature of the June 12 incident as alleged by plaintiff is sexual and cannot be described in any other way. Defendants further argue that "the Act constitutes the sole remedy for all sexual harassment in the employment context," including "minor" incidents of sexual harassment. (Emphasis in original.) Therefore, defendants and Pavesich argue that because plaintiff's intentional tort claims of assault, battery and intentional infliction of emotional distress were based on facts identical to a sexual harassment claim, i.e., an offensive touching of a sexual nature, plaintiff's common law tort claims are barred by the Act.

It is well settled that appellate review of an order granting summary Judgement is de novo. Lajato v. AT&T, Inc., 283 Ill. App. 3d 126, 134, 669 N.E. 2d 645 (1996). A motion for summary Judgement should be granted only if the pleadings, depositions, and affidavits on file demonstrate that no genuine issues of material fact exist and the movant is entitled to Judgement as a matter of law. Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639, 645, 569 N.E. 2d 579 (1991). In determining whether a genuine issue as to any material fact exists, a reviewing court must view ...


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