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Jenkins v. Lustig

December 14, 2004

DENA L. JENKINS, PETITIONER-APPELLANT,
v.
JACQUELINE S. LUSTIG, CHIEF LEGAL COUNSEL OF THE DEPARTMENT OF HUMAN RIGHTS; THE DEPARTMENT OF HUMAN RIGHTS; SCHUSTER MEDIA GROUP, INC.; AND LEE J. SCHUSTER; RESPONDENTS-APPELLEES.



Petition for Review of Order of Chief Legal Counsel of the Department of Human Rights. Charge No. 2001SF0523.

The opinion of the court was delivered by: Justice Lytton

PUBLISHED

The petitioner, Dena L. Jenkins, filed a discrimination charge with the Department of Human Rights (Department) against the respondents, Schuster Media Group, Inc. (Media Group) and Lee J. Schuster (Schuster). The charge included allegations that the respondents subjected her to sexual harassment by engaging in acts that created a hostile work environment. The chief legal counsel of the Department 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 occurred. We find that the chief legal counsel erred in dismissing Jenkins' sexual harassment claims. Accordingly, we reverse and remand for further proceedings.

On April 26, 2001, Jenkins filed a discrimination charge against the respondents with the Department. In her charge, Jenkins alleged that she had been sexually harassed by Schuster from August to December 5, 2000. Jenkins claimed that the harassment consisted of "offensive questions and comments" about her personal life, "sexually graphic and offensive language, name calling and sexual references regarding [herself] and other females including 'bitch' and 'slut', and requests that [Jenkins] engage in a sexual relationship with him." Jenkins also alleged that she was retaliated against for protesting the harassment from December 2000 until the time she filed her charge.

The Department held a fact-finding conference, and the investigator prepared a report that reorganized Jenkins' charge into 10 allegations (allegations A-J). Allegations A and B were based on Jenkins' claims that Media Group and Schuster had sexually harassed her between August and October 28, 2000. Allegations C and D were based on the incidents of sexual harassment that occurred between October 28, 2000, and April 26, 2001.

On April 16, 2002, the Department issued a notice that it was dismissing allegations A and B for lack of jurisdiction under section 7A-102(A)(1) of the Act, which states that a charge must be filed within 180 days after the date that a civil rights violation has been committed. 775 ILCS 5/7A-102(A)(1) (West 2000). The Department held that allegations C and D were supported by substantial evidence. In support of its ruling, the Department noted several specific instances of harassment that occurred after October 28, 2000.

Jenkins filed a request for review of the dismissal of allegations A and B. Specifically, she alleged that the Department erred in dismissing them because Schuster's sexually offensive behavior was a course of continuing and uninterrupted conduct between August and December of 2000. She stated that Schuster engaged in sexually offensive conduct on every occasion he was in her presence. His sexually offensive conduct included sexually oriented and derogatory name calling, sexually offensive comments, and repeated reference to women as "fat f***ing bitches." The chief legal counsel upheld the Department's dismissal of allegations A and B for lack of jurisdiction (775 ILCS 5/7A-102(A)(1) (West 2000)).

We will not disturb the chief legal counsel's decision to dismiss a charge unless the chief legal counsel abused her discretion. Kalush v. Department of Human Rights Chief Legal Counsel, 298 Ill. App. 3d 980, 700 N.E.2d 132 (1998). However, where, as here, our review hinges on the interpretation of a provision within the Act, it raises a question of law that we review de novo. Gusciara v. Lustig, 346 Ill. App. 3d 1012, 806 N.E.2d 746 (2004).

ANALYSIS

Jenkins claims that the chief legal counsel erred in ruling that the Department lacked jurisdiction to consider the claims outside the 180-day time period because she failed to follow National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed. 2d 106, 122 S.Ct. 2061 (2002). She maintains that we should interpret the filing limitation of section 7A-102(A)(1) in lockstep with the United States Supreme Court's interpretation of the time limitation in Title VII under Morgan. See Gusciara, 346 Ill. App. 3d 1012, 806 N.E.2d 746.

In Morgan, the Supreme Court interpreted the statute of limitations filing requirement in Title VII (42 U.S.C. §2000e-5(e)(1) (1994)). Morgan, 536 U.S. 101, 153 L.Ed. 2d 106, 122 S.Ct. 2061. The Court held that a hostile work environment claim under Title VII includes events that occurred prior to and outside the 180 or 300-day limitations period, as long as at least one act occurred within the applicable filing period.*fn1 The Court noted that a hostile work environment results from the cumulative effect of individual acts. Therefore, an employee need only file a charge within 180 or 300 days of "any act that is part of the hostile work environment." Morgan, 536 U.S. at 118, 153 L.Ed. 2d at 125, 122 S.Ct. at 2075.

In construing and apply section 7A-102(A)(1) of the Act, Illinois courts have followed federal cases interpreting Title VII. See Gusciara, 346 Ill. App. 3d 1012, 806 N.E.2d 746; Graves v. Chief Legal Counsel of the Department of Human Rights, 327 Ill. App. 3d 293, 762 N.E.2d 722 (2002). In Gusciara, the petitioner filed a charge against her employer alleging that during 2000, her employer repeatedly made sexual advanced toward her. The charge was filed on January 12, 2001. The Department issued a notice that reorganized the charge into separate allegations. Allegations A and B were based on claims of harassment between January and June of 2000. Allegations C and D were based on acts of harassment that occurred in August 2000. The Department dismissed allegations A and B, ruling that they were barred by section 7A-102(A)(1) because the acts within those allegations did not fall within the 180-day requirement. The chief legal counsel sustained the dismissal.

On appeal, the court ruled that section 7A-102(A)(1) of the Illinois Act is governed by the Morgan rule. It held that a charge of sexual harassment based on a hostile work environment is timely as long as any of the acts that contributed to the hostile environment occurred no more than 180 days before the claimant filed her charge. This rule applies unless (1) the acts within the jurisdictional period have no relation to those outside the period or (2) are no longer part of the same hostile environment claim. Gusciara, 346 Ill. App. 3d 1012, 806 N.E.2d 746.

We agree with the sound reasoning in Gusciara. A charge of sexual harassment is timely if the petitioner files a charge within 180 days of any act that ...


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