The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Thomas Durkin, Judge Presiding.
Plaintiff, Dr. Harold Page, filed this appeal of the circuit court's denial of his petition for writ of certiorari of several rulings of the City of Chicago's Commission on Human Relations (Commission). After Patricia Barnes filed a complaint against Page with the Commission alleging sexual harassment, the Commission awarded Barnes compensatory damages, punitive damages, a fine, costs and attorney fees. On appeal, Page asserts the circuit court and Commission erred in holding that: (1) the State Legislature did not preempt the City of Chicago's home rule authority to prohibit sexual harassment and discrimination by small employers; (2) the Commission may award punitive damages; (3) there was sufficient evidence to support a finding of "hostile environment" sexual harassment under the Chicago human rights ordinance; (4) Barnes was entitled to $33,770.03 in attorney fees and $1,282.80 in costs; and (5) the Legal Assistance Foundation was entitled to fees for services provided by paralegal Elizabeth Singer. Page also contends that the circuit court erred in denying his motion to reinstate and amend his petition for certiorari.
On January 2, 1992, Patricia Barnes filed her complaint against Dr. Harold Page with the Commission. She alleged that during her employment with Page, he sexually harassed her in violation of the Chicago human rights ordinance (Ordinance) (Chicago Municipal Code §2-160-020 (1990)).
At an evidentiary hearing before the Commission, Barnes testified that she worked part-time for Page from June 4, 1991, to September 14, 1991, as a medical assistant. In addition to clerical work, she worked with patients doing EKGs and assisted with ultrasound procedures. Page employed two other part-time employees during this period. At first, Page sexually harassed Barnes by telling offensive jokes. Although Barnes objected to the jokes and complained that it upset her, Page continued to tell the jokes. Page also joked about Barnes' relationship with her husband, commented about her appearance and on one occasion said to Barnes, "If you pay me, I'll have sex with you."
Barnes additionally testified that, on one occasion, Page sprayed an air freshener in front of her genital area. On another occasion, in front of a male patient, Page accused Barnes of allowing the patient to look up her skirt. When Barnes denied this, Page stated that Barnes was not wearing anything under her skirt because he could see "the red hairs on [her] vagina." Page also repeatedly called Barnes a lesbian, referred to her as "Patrick" and introduced her to his son by that name and allowed his son to call her "Patrick."
Barnes testified that, in a separate incident, Page improperly touched her shoulders. In addition, two days prior to Page firing Barnes, Barnes questioned why Page was touching an open sore on a patient's back and Page responded "Because you're going to lick it off anyway. Don't you lick your husband, don't you lick his stick?" On her last day of employment, Page and Barnes argued over questions Barnes asked a patient. Page then discharged Barnes.
Barnes testified that Page's actions upset and humiliated her. She described feeling uncomfortable, frightened and threatened. She claimed the remarks made her feel like the patients did not respect her. She was upset about the remarks even when she was away from the job and she testified she had difficulty sleeping. She repeatedly complained to Page about his conduct. Barnes acknowledged that, she could only recall five verbal incidents of sexual harassment and that on the day she was discharged, she allowed Page to treat her daughter for a spinal condition.
Other witnesses testified about Page's improper conduct. Patient Lillette Erby stated that, while Page treated her, he pulled her underwear completely below her buttocks and that, after she pulled the underwear up, he pulled it down again. Erby's daughter testified about this incident and also testified that Page told sexual jokes. Fronnie Echols testified that she was a patient of Page during Barnes' employment. Once, during treatment, she was groaning in pain and Page told her that she sounded like she was having good sex. Echols further heard Page tell Barnes that her skirt was too short even though her skirt fell below her knees.
Dr. Louise Fitzgerald, a psychologist, testified as an expert witness in the area of sexual harassment. She stated that Barnes was experiencing moderate posttraumatic stress disorder related to sexual harassment. According to Dr. Fitzgerald, Page's harassment caused Barnes to sustain emotional distress and depression.
Page testified in his own defense. He denied ever making sexual comments to Barnes or discussing her personal appearance. He also stated that he never told Barnes he could see her pubic hair or joked about Barnes' relationship with her husband. Page further denied spraying Barnes with air freshener. Page testified that Barnes never complained to him about any acts of sexual harassment. Moreover, he denied any inappropriate conduct with Lillette Erby. Page stated that Barnes was fired because she was late, interrupted his treatment with a patient and caused an argument.
Page called three additional witnesses to support his testimony. Cheran Isaac, a part-time employee of Dr. Page, testified that she never saw Page act inappropriately or commit any acts of sexual harassment. Angelo Donegan, a patient of Page, also denied witnessing any sexual harassment of Barnes. Ruth Morton, a friend of Page, testified that Page always acted professionally with his patients and employees. She, however, admitted that she had minimal contact with Page since the early eighties.
The Commission found that "hostile environment" sexual harassment had occurred, but "quid pro quo" harassment had not occurred. The Commission held that Barnes was subject to a hostile working environment and offensive acts. As a result, Page had violated section 2-160-040 of the Chicago human rights ordinance. The Commission awarded Barnes $5,000 in compensatory damages and $1,000 in punitive damages. The Commission also fined Page and ordered him to pay Barnes' attorney fees and costs. Barnes then submitted a petition for attorney fees and costs to the Commission. Barnes sought fees based on representation by two attorneys, Bridget Arimond and Elizabeth Singer. After a hearing, the Commission ordered Page to pay $38,785.50 in attorney fees for both of Barnes' attorneys and $1,282.80 in costs.
On February 18, 1994, Page filed a petition for writ of certiorari in the circuit court of Cook County. In a February 10, 1995, order, the circuit court affirmed all of the rulings of the Commission except for an award of attorney fees to Elizabeth Singer. The circuit court vacated the attorney fees awarded to Singer and remanded the issue of her fee award to the Commission. The court noted that during Singer's representation of Barnes before the Commission, she was not licensed to practice law in Illinois but was a member of the Maryland bar.
On remand, the Commission granted Barnes' motion to supplement the record with Singer's affidavit and to admit her as an attorney in this case retroactively. Therefore, on May 15, 1996, the Commission found that Singer properly appeared as an attorney during her representation of Barnes and ordered her compensated as previously determined. In the alternative, the Commission set an hourly rate for her compensation as a paralegal if the circuit court found that she could not appear as an attorney.
On June 14, 1996, the circuit court granted Page leave to file an amended petition for writ of certiorari to contest the Commission's award of attorney fees to Singer. On October 15, 1996, the circuit court ruled that the Commission improperly held that Singer was entitled to fees as an attorney and that the Commission erred in retroactively admitting her in this case. The circuit court then ordered the Commission on remand to calculate "a final determination" of fees for Singer.
On February 17, 1997, the Commission ordered Singer compensated as a paralegal. Relying on its previous determination, the Commission ordered that Singer's hourly rate for her work should be $75 an hour and awarded her total fees of $10,378.37. The Commission recalculated its total attorney fees award for Barnes to $33,770.03. On March 19, 1997, Page filed a motion in the circuit court to reinstate his previous filed writ of certiorari and for leave to file an additional count to his petition. Page sought to challenge the fee award to Singer as a paralegal. On March 27, 1997, the circuit court denied both motions and entered a final order in this case. On April 18, 1997, Page filed his notice of appeal.
Both the City of Chicago (the City) and Barnes argue that this court lacks appellate jurisdiction of all the Commission and circuit court holdings. Barnes contends that the circuit court's October 15, 1996, remand order was a final order. Therefore, after the Commission entered its fee order on February 19, 1997, Page was required to file a new petition for writ of certiorari in the circuit court to preserve all issues for appellate review.
The City asserts that the circuit court's order of October 15, 1996, was substantively final and appealable. Therefore, the City contends that Page was required to file an appeal within 30 days of this order. Because Page failed to file a timely appeal, the City asserts that the only issue properly before this court is the circuit court's denial of Page's motion to reinstate the certiorari proceedings.
To obtain appellate jurisdiction, a party must file a notice of appeal within 30 days of the judgment challenged. 155 Ill. 2d R. 303; Martin v. Cajda, 238 Ill. App. 3d 721, 728, 606 N.E.2d 566 (1992). The order appealed from must be final. Wilkey v. Illinois Racing Board, 96 Ill. 2d 245, 249, 449 N.E.2d 843 (1983). A court's order of remand to a lower court or an agency does not automatically render that order non-final. Wilkey, 96 Ill. 2d at 249. Rather, to determine the finality of an order, the court must examine " 'whether the judgment fully and finally disposes of the rights of the parties to the cause so that no ...