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Jaqueline Watkins, As Personal Representative of Edward A. Watkins, Sr., Deceased v. Office of the State

August 3, 2012

JAQUELINE WATKINS, AS PERSONAL REPRESENTATIVE OF EDWARD A. WATKINS, SR., DECEASED,
PLAINTIFF-APPELLANT,
v.
OFFICE OF THE STATE APPELLATE DEFENDER,
DEFENDANT-APPELLEE.
ALICE WASHINGTON AND NATHANIEL WASHINGTON,
PLAINTIFFS-APPELLANTS,
v.
OFFICE OF THE APPELLATE DEFENDER, AND MICHAEL J. PELLETIER, STATE APPELLATE DEFENDER.
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, No. 10 L 4586 The Honorable Bill Taylor, Judge Presiding. Appeal from the Circuit Court of Cook County, No. 10 L 007586 Honorable Raymond Mitchell, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

(consolidated)

JUSTICE McBRIDE delivered the judgment of the court, with opinion.*fn1

Presiding Justice Epstein and Justice Howse*fn2 concurred in the judgment.

OPINION

¶ 1 Nature of the Case

¶ 2 Plaintiffs Edward Watkins and Alice and Nathaniel Washington appeal from orders from the circuit court of Cook County dismissing with prejudice their complaints against defendant, the Office of the Appellate Defender, and Alice and Nathaniel Washington's complaint against Michael Pelletier, the State Appellate Defender, for lack of subject matter jurisdiction. The complaint was brought against the State, Watkins' and Alice Washington's employer, under the Illinois Human Rights Act (Human Rights Act) (775 ILCS 5/1-101 et seq. (West 2010)) for retaliation, as well as race and disability discrimination. The circuit court found that it lacked subject matter jurisdiction over those matters on the grounds that the State Lawsuit Immunity Act (Immunity Act) (745 ILCS 5/1 (West 2010)) in conjunction with the Court of Claims Act (705 ILCS 505/8(a) (West 2010)) provide that the exclusive forum for claims against the State of Illinois under the Human Rights Act rests in the Court of Claims. Plaintiffs now contend that the State has waived immunity under the Immunity Act to claims brought under the Human Rights Act and alternatively, that their complaint should have been dismissed without prejudice so they could amend the complaint, such that it would fall under one of the exceptions to the Immunity Act. For the reasons discussed below, we affirm the decision of the circuit court.

¶ 3 BACKGROUND

¶ 4 We have not been provided with a transcript of the proceedings at the trial level, and plaintiffs have provided only a sparse common law record. Based on that common law record, with regard to plaintiff Alice Washington and her husband Nathaniel Washington, it appears that on June 30, 2010, they filed a five-count complaint, alleging racial and disability discrimination and seeking damages for intentional infliction of emotional distress and loss of consortium. It is undisputed that Alice Washington (hereinafter Alice) was a former investigator for the Office of the State Appellate Defender, where defendant Michael Pelletier was a Deputy Defender.

¶ 5 Those plaintiffs alleged in their complaint that Alice was hired on January 2, 1997. According to the complaint, Pelletier was appointed State Appellate Defender on January 1, 2008, and on January 16, 2008, while Alice was on medical leave, he reduced her salary from $60,400 to $49,400 per year. Alice, who is African American, then filed a grievance, alleging race and/or disability discrimination as the reason for her salary reduction. It appears that Alice's alleged disability consists of breast cancer, which caused her to go on medical leave at some point prior to January 2008. On February 4, 2008, Pelletier informed Alice that she had the option to resign from her position with benefits, or to be discharged for failure to complete a office survey on how much time she spent doing each of her tasks and for failing to complete a "notes" section of a "calendaring program." The complaint does not explain what the calendaring program entails or what information the "notes" section would contain. Plaintiffs allege that Alice was on medical leave when she was required to complete the office survey, and that the reason why she had not completed the "notes" section of the program was that her supervisor had consolidated instructed investigators not to complete it "at the request of attorneys [in her office] who feared the information could potentially be subpoenaed." Alice then resigned. Plaintiffs further alleged that about the time that Alice resigned, two other investigators who, like her, were African American, were given the option to resign or be discharged. In contrast, two investigators who were not African American were not asked to resign, even though they, like Alice, had not completed the "notes" section of the calendar program.

¶ 6 The complaint noted that on February 21, 2008, Alice filed a charge of discrimination with the Illinois Department of Human Rights (Department) alleging, inter alia, that the Office of the State Appellate Defender forced her to resign in retaliation for opposing unlawful discrimination because of her race, African American, and her disability, breast cancer. On February 16, 2010, the Department dismissed Alice's charge for "lack of substantial evidence." Alice filed a request for review with the Illinois Human Rights Commission (Commission), and on April 26, 2010, the Commission reinstated Alice's charges and remanded them to the Department for entry of a finding of "substantial evidence" on Alice's charge of retaliation for opposing discrimination, as well as on her charges of racial and disability discrimination.

¶ 7 Accordingly, in their complaint filed at the circuit court, plaintiffs claimed that defendants violated Alice's civil rights, in contravention of the provisions of the Human Rights Act, by: (1) retaliating against her for filing a grievance opposing what she believed to be unlawful discrimination (count I); (2) asking her to resign on the basis of racial discrimination (count II); and (3) asking her to resign on the basis of her disability without attempting to accommodate to her medical condition (count III). In addition, plaintiffs allege intentional infliction of emotional distress against Pelletier (count IV), and plaintiffs jointly allege loss of consortium against both defendants (count V).

¶ 8 We further note that defendants allege, and plaintiffs do not dispute, that on January 4, 2011, the Equal Employment Opportunity Commission (EEOC) issued Alice a "right-to-sue letter" with regard to her salary-reduction claim, which stated that any complaint brought under certain federal statutes, including Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (West 2006)), must be brought within 90 days of her receipt of that notice, or her right to sue defendant on that charge would be lost. It does not appear, however, that Alice was issued a similar right-to-sue letter with respect to her charge of constructive discharge.

ΒΆ 9 With regard to plaintiff Watkins, it appears that on April 19, 2010, he filed a complaint against the Office of the State Appellate Defender, where he had been employed for three years as chief investigator, alleging racial discrimination. Similarly to Washington's complaint, Watkins alleged that on January 18, 2008, Pelletier approached him and asked Watkins to resign and informed Watkins that if he refused, he would be discharged for allegedly signing into work and submitting a travel voucher for a time period when Watkins had not worked. Watkins refused to resign, and on February 4, 2008, he received a notice of discharge, which stated ...


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