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Gusciara v. Lustig

March 26, 2004

[5] BONNIE GUSCIARA, PETITIONER,
v.
JACQUELINE LUSTIG, CHIEF LEGAL COUNSEL OF THE DEPARTMENT OF HUMAN RIGHTS; THE DEPARTMENT OF HUMAN RIGHTS; CORPORATE EXECUTIVE OFFICES, INC.; AND JOSEPH BLANK, RESPONDENTS.



[6] Petition for review of order of Chief Legal Counsel of Department of Human Rights. Charge No. 01-CF-1667

[7] The opinion of the court was delivered by: Justice Kapala

[8]  Petitioner, Bonnie Gusciara, appeals an order of respondent Jacqueline Lustig, chief legal counsel of the Illinois Department of Human Rights (Department), dismissing part of petitioner's charge against her employer, Corporate Executive Offices, Inc. (CEO), and its president, Joseph Blank (collectively respondents). As pertinent here, petitioner's charge alleged that respondents subjected her to sexual harassment by engaging in acts that had the purpose or effect of substantially interfering with her work performance or creating a hostile working environment (see 775 ILCS 5/2--101(E) (West 2000)). The chief legal counsel ruled that these allegations were barred by section 7A--102(A)(1) of the Illinois Human Rights Act (Act) (775 ILCS 5/7A--102(A)(1) (West 2000)) because the charge was filed more than 180 days after the alleged civil rights violation was committed.

[9]  On appeal, petitioner argues that the sexual harassment claims were timely because the alleged hostile work environment resulted in part from acts that occurred within the 180-day period of section 7A--102(A)(1). Petitioner asserts that because sexual harassment that causes a hostile work environment is a single prohibited practice, a charge based on that practice is timely if any of the harassment that contributed to the hostile work environment occurred no more than 180 days before the charge was filed. Petitioner relies on National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 153 L. Ed. 2d 106, 122 S. Ct. 2061 (2002), which, she claims, establishes a similar construction of the limitations provision for "hostile work environment" claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (2003)).

[10]   We agree with petitioner that Morgan's construction of Title VII should govern the construction of the Act and that under Morgan, the chief legal counsel erred in dismissing petitioner's sexual harassment claims. Therefore, we reverse the dismissal and remand the cause.

[11]   On January 12, 2001, petitioner filed her charge. She alleged that since 1999, CEO had employed her as a receptionist. As "[p]rima facie allegations of sexual harassment," the charge stated that during 2000, Blank repeatedly made provocative remarks and touched her; that his advances were unwelcome and that petitioner told him so; and that because Blank was CEO's sole director and shareholder, there was no one else in the company to whom she could complain. As "[p]rima facie allegations of retaliation," the charge repeated the previous assertions and added that on August 21, 2000, petitioner wrote Blank demanding that he stop his harassment because it was causing a hostile work environment; that Blank retaliated by changing petitioner's job duties; and that in December 2000, petitioner learned that she would be demoted and her salary reduced. Finally, as "[p]rima facie allegations of aid and abet liability [sic] of Joseph Blank," the charge stated that Blank personally engaged in the harassment and retaliation.

[12]   On January 7, 2002, the Department issued a notice that, after receiving the report from its investigator, it had decided to dismiss petitioner's charge. The notice reorganized the charge into six "allegations." Allegations A and B were based on petitioner's claims that CEO and Blank, respectively, had sexually harassed her between January and June 2000. Allegations C and D were based on petitioner's claims that CEO and Blank, respectively, had sexually harassed her on August 16, 2000. Allegation E was based on the retaliation claim. Allegation F was based on the "aiding and abetting" claim against Blank. The Department ruled that the first two allegations were barred by section 7A--102(A)(1), which requires that a charge be filed "[w]ithin 180 days after the date that a civil rights violation allegedly has been committed." 775 ILCS 5/7A--102(A)(1) (West 2000). The Department held that the four remaining allegations were unsupported by substantial evidence.

[13]   The Department explained its decision as follows. On March 7, 2001, petitioner sued respondents in the circuit court of Du Page County. The complaint sounded in sexual assault and battery and alleged that the acts of sexual harassment took place from January to June 2000. Therefore, the Department had "corrected" petitioner's charge "to indicate that the alleged sexual harassment occurred between January and June, 2000." Because the charge was filed January 12, 2001, more than 180 days after June 2000, allegations A and B were untimely and the Department lacked the jurisdiction to consider them.

[14]   The Department dismissed allegations C and D for lack of substantial evidence but not for untimeliness. While the Department's investigation report noted numerous specific incidents of alleged harassment, it stated that petitioner had not clarified the dates of most of these incidents and that her civil complaint alleged that they occurred between January and June 2000. However, there were two exceptions:

[15]   "[Petitioner] stated that on August 16, 2000, Joseph Blank put his hands on her hips as he moved her away from the laser printer instead of asking her to move and that on the above date, Joseph Blank commented[,] 'Yeah, maybe if I have Bonnie *** stand out side [sic] in the front of the building, instead of putting the new sign out next week, then maybe we will start getting more tenants.' "

[16]   According to the report, these two incidents "did not rise to the level of sexual harassment."

[17]   On February 13, 2002, petitioner filed a request for review. In contending that allegations A and B were timely, she argued as follows. On October 31, 2001, petitioner's attorney sent the Department's investigator a letter stating that documents indicated that Blank was at CEO's main office on at least four days in July 2000 and three days in August 2000. The letter claimed that acts of sexual harassment creating a hostile work environment would have occurred "during some (if not most) of these dates." Also, on August 21, 2000, petitioner faxed Blank her letter demanding that he cease harassing her.

[18]   Respondents filed a response. They argued in part that in January 2001, petitioner had not been able to allege any incidents of sexual harassment occurring after July 16, 2000 (and thus within 180 days of when she filed her charge) other than the "hands on hips" incident, the "stand in front of the building" comment, and some unspecified "subtle remarks." The response attached a copy of petitioner's affidavit, which was dated January 19, 2001. The affidavit stated in part that between June 2000 and August 21, 2000, Blank made "subtle remarks, none of which [petitioner] can specifically recall"; that once "in approximately August 2000," Blank grabbed petitioner's hips and moved her away from a document scanner; and that during the week of August 16, 2000, after Blank met with a maintenance man about a sign outdoors, Blank told petitioner, "Maybe you should stand out there and we would get more tenants."

[19]   The response also attached a copy of petitioner's civil complaint and some of petitioner's answers to interrogatories in the civil suit. The complaint alleged that from "January, 2000 through June, 2000," Blank committed various "acts of assault and battery." In her answers to the interrogatories, petitioner stated that a temporary worker was present during the August 16, 2000, "hands on hips" incident and that a maintenance man was present on August 16, 2000, when Blank made his "stand in front of the building" comment.

[20]   On August 12, 2002, the Department vacated the dismissal of all the allegations--now denominated "counts"--except count F and remanded the cause to its charge processing division "for further work as necessary" on counts A through E. The Department explained that it had not sufficiently investigated several aspects of the case, including when the sexual harassment allegedly occurred and whether the incidents "constituted a continuing violation." However, on August 16, 2002, the Department issued a notice that it was dismissing the five remaining counts because counts A and B were time-barred and counts C through E were unsupported by substantial evidence. The Department attached ...


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