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Baksh v. Human Rights Commission

May 07, 1999

KARIM BAKSH, PETITIONER-APPELLANT,
v.
THE HUMAN RIGHTS COMMISSION, COMMISSIONER ROSE M. JENNINGS, COMMISSIONER MATHILDA A. JAKUBOWSKI, COMMISSIONER GRACE KAMINKOWITZ, COMMISSIONER RANDALL C. RAYNOLDS, COMMISSIONER SYLVIA NEIL, COMMISSIONER VIVIAN STEWART TYLER, COMMISSIONER RUDOLPH S. SHOULTZ, COMMISSIONER JANE YAYES RADER, COMMISSIONER CLYDE H. BROOKS, COMMISSIONER ISIAH THOMAS, AND THE ESTATE OF G.S., BY ITS EXECUTOR, S.A.B., RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Buckley

Petition for review of order of HRC

This is a direct administrative review action in which a dentist seeks review of an order and decision of the Illinois Human Rights Commission (the Commission). The Commission found that the dentist violated the Illinois Human Rights Act (the Human Rights Act)(775 ILCS 5/1-101 et seq. (West 1996) when he referred an HIV-positive patient (G.S.) to another facility for routine dental care. The Commission awarded the following: $48 in actual damages; $8,000 for emotional distress; $339,609 in attorney fees; and $8,146.32 for costs. The dentist (petitioner) petitioned this court for direct review and raises the following issues: (1) whether the Commission properly allowed G.S.'s estate to substitute for G.S. as complainant in the action following G.S.'s death; (2) whether a dental office is a place of public accommodation under the Human Rights Act; (3) whether petitioner discriminated against G.S. when he referred G.S. to another facility for routine dental care; (4) whether the charge was timely filed; (5) whether the awards for actual damages and emotional distress were proper; (6) whether petitioner was denied due process; and (7) whether the award of attorney fees was proper. We reach only issues (1), (2) and (4) and we reverse.

In September 1986, petitioner Karim Baksh, D.D.S., was in private practice of limited-general dentistry and provided regular examinations and teeth cleaning as well as doing crowns, caps, bridges, root canal work, and simple extractions. G.S. had been a regular patient of petitioner for over 10 years prior to September 1986. Since at least September 1986, G.S. had been infected with the human immunodeficiency virus (HIV), the causative agent of the acquired immune deficiency syndrome (AIDS).

G.S. filed a charge with the Department of Human Rights on March 20, 1987, and a complaint with the Commission on February 11, 1988, alleging that in September 1986 petitioner refused to treat him after being informed by him that he had tested positive for HIV and that petitioner's actions in so refusing constituted illegal discrimination on the basis of handicap by a place of public accommodation under the Human Rights Act. On May 23, 1988, G.S. was granted leave to file an amended complaint. An evidentiary hearing was held before administrative law Judge (ALJ) Patricia A. Patton, which began on October 30, 1989, and ended on November 2, 1989.

The following testimony, relevant for purposes of this opinion, was adduced at the hearing. G.S. testified that he telephoned petitioner on September 5, 1986, a few days before a scheduled appointment for routine dental cleaning and examination. G.S. told petitioner that he had a sore throat, which was probably due to a herpetic lesion on the uvula of his mouth and that he wanted to reschedule his September 9 appointment. During this call, G.S. also told petitioner that he was HIV positive but that there should be no difficulty providing him with care since Darla, one of petitioner's hygienist, always wore gloves and a face mask. According to G.S., petitioner responded by saying that G.S. should reschedule his appointment when he felt better.

G.S. further testified that he next spoke with petitioner on September 22, 1986. G.S. telephoned petitioner in response to a message left by petitioner at G.S.'s place of business for S.B., G.S.'s live-in companion and business partner. During the call, petitioner asked him if S.B. was "safe to treat." G.S. responded that petitioner would have to ask S.B. that question. G.S. stated that petitioner then told him that he could not treat him in his office anymore and that G.S. would have to go elsewhere. Petitioner told him there was a Peter "someone" at Northwestern University who could treat him. G.S. asked for this doctor's telephone number but petitioner did not have it. G.S. later spoke with his doctor, Doctor Norman, who told G.S. he could see Dr. Peter Hurst at Northwestern. Subsequently, G.S. sent a letter to petitioner requesting that petitioner forward his dental records to Dr. Hurst. G.S. made an appointment at Northwestern and, on September 29, 1986, had his teeth cleaned and examined by Dr. John Davis.

Petitioner also testified at the hearing. Petitioner stated that during the first week of September 1986 he spoke with G.S. on the telephone. During this call, G.S. told petitioner that he would like to postpone his appointment because he had a herpetic lesion in his mouth. G.S. also told him that he had tested positive for HIV. Petitioner transferred the call to the receptionist so that G.S. could make another appointment. After the call, petitioner spoke with Lynette Lueker, the dental hygienist scheduled to clean G.S.'s teeth, and told her that G.S. was HIV positive. Petitioner asked the hygienist how she felt about cleaning G.S.'s teeth. The hygienist responded that she did not know much about treating people with HIV and that she was reluctant to do so.

Petitioner further testified that he subsequently telephoned his friend, Dr. Akal, who was chairman of the Illinois State Dental Society Peer Review Committee, and asked his advice. Dr. Akal told petitioner he would call him back and did so later that same day. During the later telephone conversation, Dr. Akal told petitioner that there was a clinic at Northwestern University Dental School specially set up to treat patients with HIV and that Peter Hurst was the doctor in charge. According to petitioner, Dr. Akal suggested that petitioner refer G.S. to the clinic as it was only one block away from petitioner's office.

Petitioner testified that he next spoke with G.S. on or before September 9, 1986, and told G.S. that the hygienist was reluctant to clean his teeth. He further told G.S. that he would like to refer him to a clinic at Northwestern University, which was specially set up to treat patients who had tested positive for HIV. Petitioner told G.S. that, Dr. Peter Hurst was in charge of the clinic and he gave G.S. the telephone number and directions. G.S. responded that he did not see any problem with being treated at petitioner's office since Darla, the hygienist who treats him, always wears gloves and a mask and that all they would have to do is wipe the instruments with Clorox. Petitioner told G.S. that Darla would be out of town. Petitioner also told G.S. that he did not know much about the virus and that he felt it would be safer for G.S. to receive treatment at the clinic as it is more knowledgeable than petitioner. Petitioner later received a letter from G.S. requesting that his X rays be sent to Northwestern University.

Petitioner further testified that he next spoke with G.S. on September 22, 1986. Petitioner's office had called S.B.'s place of business to confirm S.B.'s appointment for the next day. G.S. asked to speak with petitioner, believing that petitioner was calling to cancel S.B.'s appointment.

A little more than two years after the hearing in February 1992, ALJ Patton died prior to issuing a decision. On August 20, 1992, a supplemental hearing was held before Chief Judge Jane Bularzik and additional testimony was provided. By agreement of the parties, the factual record from both hearings was submitted to Chief Judge Bularzik. On July 8, 1994, Chief Judge Bularzik issued her recommended liability determination, recommending $48 in actual damages and $8000 in emotional damages. On August 3, 1995, Chief Judge Bularzik issued her recommended order and decision on attorney fees and costs suggesting an award of $347,755.32 in fees and costs. G.S. died on October 28, 1995. The estate of G.S., by its executor, S.A.B. (respondent), was substituted as complainant by order of the Commission on February 6, 1996. On June 27, 1996, the Commission issued its order and decision affirming Chief Judge Bularzik's determinations. On September 6, 1996, the Commission denied petitioner's petition for rehearing and he now appeals.

I. STANDARD OF REVIEW

It is well established that when reviewing a decision of an administrative agency "[t]he findings and Conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct." 735 ILCS 5/3-110 (West 1994). We must sustain the Commission's findings of fact unless we determine that such findings are against the manifest weight of the evidence. Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 180 (1989). We are not bound, however, to give similar deference to the Commission's Conclusions of law or statutory construction because this court exercises independent review over such questions. Raintree Health Care Center v. Illinois Human Rights Comm'n, 173 Ill. 2d 469 (1996). Because the construction of a statute is a question of law, the standard of review on this issue is de novo. Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997).

II. SURVIVABILITY OF CLAIM

G.S. died on October 28, 1995, before the Commission issued its Order and Decision on June 27, 1996. Petitioner argues that as a result, G.S.'s cause of action has abated.

The Commission's procedural rules explicitly provide that, "[i]f a Party to a Complaint dies, the proper Party or Parties may be substituted upon motion." 56 Ill. Adm. Code, §5300.660(b) (1996). The definition section explains that "[t]he term 'Party' shall refer to a Person designated as Complainant or Respondent in a Charge or Complaint." 56 Ill. Adm. Code, §5300.10 (1996). In the instant case, the Commission noted that "[i]t is clear that the complainant's estate can be substituted for the complainant upon his death, [for such substitution] is provided for in the Commission's rules and has been a practice of this Commission."

Nevertheless, petitioner argues that the statutory cause of action for the alleged violation of the Human Rights Act does not survive the death of G.S. because no specific provision for such survival is provided in the Illinois Survival Act (the Survival Act) (755 ILCS 5/27-6 (West 1992)).

While the Human Rights Act may not provide for the survival of G.S.'s cause of action upon his death, "[i]t is well-established that the Illinois survival statute allows a decedent's representa-tive to maintain those common law or statutory actions which had already accrued to the decedent prior to his death. [Citations.]" Wasleff v. Dever, 194 Ill. App. 3d 147, 152 (1990). The Survival Act provides in pertinent part:

"In addition to the actions which survive by the common law, the following also survive: *** actions to recover damages for an injury to real or personal property ***." 755 ILCS 5/27-6 (West 1992). Illinois courts have repeatedly held that the term "personal property" as used in the Survival Act includes intangible property, such as rights of action under statutes or the common law that had accrued prior to the decedent's death. See McDaniel v. Bullard, 34 Ill. 2d 487 (1966); Stonestreet v. Iroquois County Sheriff's Merit Comm'n, 150 Ill. App. 3d 1092 (1986); Bryant v. Kroger Co., 212 Ill. App. 3d 335 (1991).

In the instant case, petitioner argues that G.S.'s action did not accrue prior to his death because the Commission's order and decision was not entered until eight months after G.S.'s death. Petitioner asserts that G.S. was not entitled to any damages as of the date of his death. To counter this argument, respondents assert that, G.S.'s cause of action for compensatory damages accrued in September 1986 when petitioner unlawfully discriminated against G.S. We agree with respondents.

Respondents rely, in part, on three cases in which causes of action survived. First, in McDaniel v. Bullard, 34 Ill. 2d 487 (1966), the Illinois Supreme Court considered the issue of whether a statutory cause of action under the Wrongful Death Act (Ill. Rev. Stat. 1963, ch. 70, par. 1) survived the death of the plaintiff, a child whose parents had been killed in a car accident, which occurred after the complaint had been filed. The court held that, the ...


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