Appeal from the Circuit Court of Cook County. No. 11 CH 2719 Honorable Sophia Hall, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Garcia and Lampkin concurred in the judgment and opinion.
¶ 1 Respondent Lynita Boyd claimed that she was sexually harassed by petitioner Jimmy Crittenden while at work as a bartender at petitioner Jimmy's Place, where Crittenden was the manager. Respondent Cook County Commission on Human Rights (the Commission) agreed, awarding Boyd $41,670 in lost wages, $5,000 as compensatory damages, and $5,000 as punitive damages. Petitioners appealed the decision by petitioning for a writ of certiorari with the circuit court of Cook County, and the circuit court denied the petition and affirmed the Commission's decision. Petitioners now appeal to the appellate court, challenging Boyd's credibility, the Commission's purported consideration of hearsay evidence, and the damages award. For the reasons that follow, we affirm in part and reverse in part.
¶ 3 On November 15, 2006, Boyd filed a verified complaint with the Commission, alleging that she had been sexually harassed by Crittenden on July 19, 2006, in violation of the Cook County Human Rights Ordinance (the Ordinance) (Cook County Code of Ordinances § 42-30 et seq. (amended Nov. 19, 2002)). Boyd served as a bartender at Jimmy's Place in Riverdale from August 2003 through July 19, 2006, and performed her job duties satisfactorily. She alleges that on July 19, 2006, Crittenden sexually harassed her, including "asking [her] to have sex with [Jimmy's Place] customer Rachel (last name unknown), touching [her] and asking [her] to touch Rachel in a sexually explicit manner." Boyd attempted to ignore and discourage Crittenden's behavior, but Crittenden persisted. Boyd alleges that she has not worked at Jimmy's Place since the incident and filed a police report against Crittenden, resulting in criminal charges and a criminal trial on October 27, 2006.
¶ 4 On December 27, 2006, a response was filed by Amelia Crittenden on behalf of Jimmy's Wife's, Inc., the owner of Jimmy's Place. According to the response, Boyd did not complain to management about any sexual harassment, worked for three shifts following the harassment, and then failed to report for work without notice. Additionally, Crittenden and other people present at the time of the harassment testified at the criminal trial, denying the events alleged to have taken place, and Crittenden was found not guilty. Attached to the response was a copy of Jimmy's Place's policy against sexual harassment, which the response stated was furnished to employees.
¶ 5 On June 1, 2007, a Commission investigator issued a report recommending a finding of "Substantial Evidence" of the charges and the Commission entered an order finding substantial evidence of a violation of the Cook County Human Rights Ordinance.
¶ 6 On July 9, 2008, the parties appeared before a hearing officer for a hearing on the complaint. Boyd was the sole witness testifying on her behalf. She testified that Jimmy's Place closed at 2 a.m., but "regulars" often remained and talked, which often included sexual conversations; Crittenden participated in the conversations. When asked to provide specifics as to inappropriate sexual activities that took place at Jimmy's Place, Boyd testified that "[t]he only evening that I can really specify is the evening that everything happened to me. The only thing that I can say is that I seen Rachel lap dancing one of the patrons."
¶ 7 Boyd testified that she had never seen a sexual harassment policy at Jimmy's Place and had never been provided with one. She further testified that Crittenden had made inappropriate comments to her, such as "you look good," "[w]hen can I get some," and "I've been looking at you, I've been wanting you." After such comments, Boyd told Crittenden that she was "not here for that" and that she was "not thinking about" him, and further testified that Crittenden's behavior "slowed down" after that, but did not stop.
¶ 8 Boyd testified that on the night of the alleged harassment, prior to closing, Rachel came behind the bar area and walked toward Boyd, with Crittenden following Rachel. As she was walking toward Boyd, Rachel called Boyd "fine" and "sexy." Rachel attempted to "grab" Boyd, but Boyd caught Rachel's arms and wrestled her to the floor. Crittenden was close enough that when Boyd wrestled Rachel to the floor, he straddled Rachel's back, "riding her like a pony." Boyd stepped back and Rachel stood up; Boyd told them to leave and Rachel and Crittenden left the bar area.
¶ 9 After Jimmy's Place closed at 2 a.m., Boyd was cleaning the bar while a number of people remaining engaged in activities such as dancing on tables and "humping." At approximately 2:10 a.m., Boyd took her tip jar and sat on the bar to begin counting her tips. Crittenden and Rachel were beside Boyd and she felt someone's hand tugging at her pants; Boyd did not know whether the person tugging her pants was Crittenden or Rachel. Boyd jumped up and told them to stop. Boyd then went behind the bar, where her manager was counting money in the cash register, and noticed that she had forgotten to retrieve napkins and straws from the storage area, located in the back of the establishment.
¶ 10 Boyd went to the storage area and obtained an armful of supplies. When she turned around, Boyd observed Rachel walking toward her from the direction of the building's back door. Boyd told Rachel to "[g]o on," but Rachel kept telling Boyd to "come on." Boyd again told Rachel to go ahead of her. Boyd then testified:
"While I am going back and forth with her telling her to go ahead, Jimmy [Crittenden] comes in the backroom. And I am wrestling going back and forth with her. I didn't see Jimmy walking up. And the next thing you know, Jimmy walks up and takes her blouse and her bra and flips it up and says, 'Touch them, touch them. You know you want them, touch them.'
I've got my arm in between her breasts at this time, pushing them both back off of me, telling them get back off me. At this time I'm hollering for Lois, calling, 'Lois, Lois, come get them, come get them.'
And Lois finally came back there, and told them leave that girl alone. 'Lynita, come on, let's go.' They moved out of the way at that time. I went on about my business, put the stuff down, got my purse, and I left. So that's what happened there."
¶ 11 Boyd then went home, where she was "a nervous wreck" and talked to her husband about the incident the next day, which was a Thursday. On Friday, Boyd returned to work. Boyd testified that she returned "[b]ecause I needed my job, but I just didn't feel comfortable there anymore. I didn't feel safe there anymore when I went there." In response to questions from the hearing officer, Boyd testified that she went into work on the Friday after the incident and told Lois*fn1 , the manager, that she was no longer comfortable there, did not feel safe, and that would be her last day. Boyd testified that she worked her entire shift on Friday before Lois arrived and that she told Lois that she did not feel comfortable speaking with Crittenden. Crittenden was not present while Boyd was working on Friday.
¶ 12 Boyd also testified that she was scheduled to work Saturday, but did not have a way of communicating with anyone at Jimmy's Place, so she went in and spoke to a maintenance person to obtain a phone number so that she could speak with somebody to tell them she was leaving. Boyd additionally testified that her family "came down there and supported [her]" and, in the process, her son"acted a fool" and "knocked some chairs down" because "[h]e was mad. He is young, teenage. *** But nothing happened to anybody."
¶ 13 Boyd testified that there was a criminal trial resulting from the incident and that there were witnesses to the events of the evening, but the State did not call any of them to testify on her behalf. On cross-examination, Boyd recalled testifying at the criminal trial that the events occurred on July 26, 2006. When defense counsel reminded her that the complaint in the instant case stated that the incident occurred on July 18 and 19, Boyd responded: "Well, yes, it must be my mistake, but I know the week before my husband's birthday. His birthday is August 4." Boyd acknowledged filing a sworn complaint stating that the incident occurred on July 19. Boyd's counsel interrupted to say that she would "be happy" to amend the complaint to change the date to the 26th and that "[w]e realized at some point subsequent the date was incorrect. We did not amend it but we will amend it."*fn2
¶ 14 Defense counsel again questioned Boyd about filing a sworn complaint stating that the date of the incident was July 19. Boyd testified: "It was a week before my husband's birthday because it was his 50th birthday, and I was giving him a big 50th birthday party at Jimmy's Place. So it was a week before that." Boyd ultimately did not hold her husband's party at Jimmy's Place.
¶ 15 On redirect, Boyd testified that she was not consulting a calendar when she filled out the complaint. She testified that "[t]he week before the 4th would have been the end of the month, that Wednesday. I don't know the correct date, but it had to be in the late 20s. Because the 4th was that Friday, next Friday or something like that. But I do know it was a week before my husband's 50th birthday." She testified that when she filed the complaint, she did not knowingly state any false information.
¶ 16 Boyd also testified to the effect the incident had on her. There were no bruises or other physical evidence of the incident, but her "nerves [were] shot," her "hair came out," and her psoriasis "flared up really bad." She testified that when she left Jimmy's Place, she did not have another job, but found new employment approximately a week and a half later as a bartender. When she stopped working at Jimmy's Place, she was making approximately $120 per week plus tips, which typically amounted to between $650 and $700.
¶ 17 On cross-examination, Boyd testified that she was paid in cash and did not have anything to substantiate her figures. She further admitted that she did not declare her tips on her income tax return that year.
¶ 18 Boyd testified that her new position was only one day per week, and she remained there for approximately a year and a half before she found a second job to supplement her income. Boyd left the one-day-a-week job in March 2008 and was still employed by the second employer at the time of the hearing. Boyd testified that her base income was approximately $400 to $500 a week, including tips.
¶ 19 The first witness to testify on behalf of the defense was Rachel Thomas. Thomas testified that she visited Jimmy's Place frequently and was present on the evening of July 26, 2006. Thomas denied any events occurring between midnight and 1:30 a.m. in which she had her blouse or bra pulled up, nor did she do so herself. Thomas also denied lap dancing with anyone and testified that Crittenden never pushed her into Boyd or told Boyd to touch Thomas' breasts. Thomas testified that she was a former employee of Jimmy's Place and last worked there in 2003 or 2004. She testified that she frequented Jimmy's Place "to have a good time. I know the people that work there. They know me. I used to work with them. They are like my family." On cross-examination, Thomas denied staying at Jimmy's Place past closing and testified that she only did so if she was waiting in the parking lot for a ride.
¶ 20 The defense's second witness was Rick Howard, a patron of Jimmy's Place who was present on the evening of July 26, 2006; Howard also occasionally worked at Jimmy's Place when he was asked to "help out." Howard testified that he left Jimmy's Place between 1:30 and 1:45 a.m. and did not observe any woman bare-breasted that evening, nor did he observe Crittenden push Thomas into Boyd. Howard testified that he was never shown a sexual harassment policy. Howard further testified that to his knowledge, everybody usually left prior to the 2 a.m. closing time.
¶ 21 The defense's third witness was Crittenden, who testified that he was present on July 26, 2006. Crittenden denied that Thomas was bare-breasted, denied pulling up her blouse or bra, and denied pushing Thomas into Boyd. Crittenden testified that Boyd did not work on Thursday, but worked a full shift on Friday and came in for a few hours on Saturday; she did not make any complaints to him about any incidents occurring on July 26, nor was Crittenden informed of her making any complaints to anyone else. Crittenden testified that he was not present when Boyd worked on Friday, July 28. On Saturday, Crittenden received a telephone call at his home at approximately 2 p.m. saying that "Boyd's family was down there tearing my place up, throwing the chairs and different stuff. I know I heard her brother he want to kill me about something." When Crittenden arrived at Jimmy's Place, they were gone.
¶ 22 Crittenden testified that Jimmy's Place had a written sexual harassment policy and that he was "pretty sure they was [sic] out" for employees. Crittenden testified that Jimmy's Place closed at 2 a.m. during the week and that nobody was permitted to remain past that time; it was "a policy" that "[w]e have to be out of the bar at 2:00," including patrons and employees, and he was informed of that requirement by the police department. The bartenders began "breaking down" the bar at approximately 1:30, and "[a]t 2:00 my bartenders, my help, they be gone."
¶ 23 Crittenden testified that Boyd was a very good employee and came to work on time. Crittenden further testified that Boyd was paid $45 per day and generally worked three to four days a week. She received tips, but since she usually worked during the day, "lucky if you get $20 in tips" and not $650 to $700 per week. The typical amount of tips she could have expected on a weekday evening in July 2006 would have been approximately $70.
¶ 24 On February 27, 2009, the hearing officer issued a recommended decision, to which the parties had the opportunity to file written exceptions. The hearing officer recommended a finding of liability in favor of Boyd against Jimmy's Place. The recommended order included the following footnote:
"The record includes much contradictory testimony as to whether the July 26, 2006 date is the accurate date. Complainant's original Complaint alleged July 19, 2006 as the relevant date. After reviewing the testimony within the record, the Hearing Officer concludes that the likeliest date is July 26, 2006 and that Complainant's failure to accurately recall that date at the time of filing of her Complaint is immaterial to the truth of her allegations."
The recommended order concluded that Boyd had proven by a preponderance of the evidence that she was sexually harassed during her employment in that she was subjected to a hostile work environment. It further concluded that Boyd had proven that the incidents of sexual harassment amounted to constructive discharge, and that she was entitled to an award of compensatory damages, including back pay, attorney fees, and costs.
¶ 25 The order stated that the conduct complained of by Boyd was "certainly sufficient" to establish a hostile working environment "based upon any reasonable standard" and that "[s]he credibly testified to a history of sexually suggestive remarks directed toward her by Mr. Crittenden, culminating in the events of the evening of July 26, 2006, which by any measure were extreme in nature and sufficient to reach the 'sever[e] and pervasive' standard articulated by this Commission and the courts."
¶ 26 The hearing officer found the defense's witnesses "simply not credible." Thomas was a regular patron of Jimmy's Place and a former employee and stated that she was close to the people there. Howard was also a regular patron and occasional employee and had left prior to the time Boyd testified the incidents took place. Finally, concerning Crittenden, the hearing officer found:
"Throughout his testimony, Mr. Crittenden's demeanor was peculiar. He appeared extremely nervous and continually swiveled his chair sharply while he testified. In [a]ddition he proffered other testimony that Ms. Boyd credibly disputed, such as his inherently difficult-to-believe claim that the bar is vacant, under local law, by 2:00 a.m. each evening. Ms. Boyd testified that it was common for both employees and patrons to be inside the establishment past 2:00 a.m., and given her description of the many duties necessary to close the bar for the evening, it is simply not credible that the establishment is always vacant by 2:00 a.m."
¶ 27 The hearing officer found that there was no basis in the record to dispute Boyd's testimony. While she worked for an additional day, Crittenden was not present for that shift. "Further, both Ms. Boyd and Mr. Crittenden testified that when she returned the following day, along with her family, to announce her resignation, her son was exhibiting a great deal of anger and overturned some furniture. Had the sexual harassment of which Ms. Boyd complains not occurred at all-as Mr. Crittenden testified-there is no logical reason why Ms. Boyd would return to the bar with family members nor why an angry encounter would develop."
¶ 28 In determining that Crittenden's conduct constituted actionable harassment, the hearing officer noted: "Though this case deals almost exclusively with comments and behavior that occurred on one night, there was a demonstrated history of similar behavior over the course of Ms. Boyd's employment." Consequently, the hearing officer found ...