


	No. 3-03-0012



_________________________________________________________________



	IN THE



	APPELLATE COURT OF ILLINOIS



	THIRD DISTRICT



	A.D., 2004 



DENA L. JENKINS,				)	Petition for Review of Order 

)	of Chief Legal Counsel of the

Petitioner-Appellant,	)	Department of Human Rights.

)	

	)	

	)	

JACQUELINE S. LUSTIG, CHIEF	)	

LEGAL COUNSEL OF THE DEPARTMENT	)

OF HUMAN RIGHTS; THE DEPARTMENT	)	Charge No. 2001SF0523.

OF HUMAN RIGHTS; SCHUSTER MEDIA	)

GROUP, INC.; and LEE J. 	)

SCHUSTER;	)

)

Respondents-Appellees.	)	

_________________________________________________________________



JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________



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.  W
e 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.
(footnote: 1)  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 is part of the hostile work environment.

Applying the above rule to this case, we conclude that Jenkins claims of sexual harassment based on allegations of acts that occurred prior to October 28, 2000, were timely.  See 775 ILCS 5/2-101(E) (West 2000).  The acts that occurred both before and after the 180-day filing requirement involved the same employer, were committed by the same person, occurred in similar settings, and continued with relative frequency from August to December 2000.  Although Jenkins did not provide specific dates on which the pre-limitations incidents occurred, the allegations indicated the same offensive conduct, office, and perpetrator as the incidents that occurred within the 180-day time period.  A fact finder could easily conclude that this conduct was part of the same actionable hostile environment claim.  See 
Gusciara
, 346 Ill. App. 3d at 1021-22, 806 N.E.2d at 753.  Accordingly, it was an abuse of discretion to dismiss that portion of Jenkins’ charge.

At this point, we must distinguish between the Illinois statute and its federal counterpart and address the issue of equitable defenses.  The filing period under Title VII is a statute of limitations, and 
Morgan
 allowed for the raising of certain equitable defenses.  Since the Illinois statute is jurisdictional, the equitable defenses of waiver and tolling do not apply.  However, once jurisdiction has been obtained and the parties are properly before the court, a defendant can raise other equitable defenses, 
Christ Hospital and Medical Center v. Human Rights Commission
, 271 Ill. App. 3d 133, 648 N.E.2d 201 (1995); see also, 
Mank v. Board of Fire and Police Commissioners, Granite City
, 7 Ill. App. 3d 478, 288 N.E.2d 49 (1972).  A lengthy period between individual incidents and the filing of a charge increases the likelihood that those acts that occurred within the 180-day filing period will be unrelated to those earlier acts or will not be part of the same hostile work environment.  See 
Gusciara
, 346 Ill. App. 3d at 1020, 806 N.E.2d at 752.  Here, Jenkins avoided these risks by filing her claim within a short period of time.

  	CONCLUSION

That portion of the chief legal counsel's decision sustaining the dismissal of allegations A and B is reversed.  The cause is remanded to the Department for further proceedings.        	Reversed and remanded.

BARRY, J., concurring and SCHMIDT, J., dissenting.

JUSTICE SCHMIDT, dissenting:

The majority relies on 
Gusciara v. Lustwig
, 346 Ill. App. 3d 1012, 806 N.E.2d 746 (2004), which relies on 
National R.R. Passenger Corp. v. Morgan
, 536 U.S. 101, 153 L. Ed. 2d 106, 122 S. Ct. 2061 (2002), in coming to the conclusion that the chief legal counsel erred in sustaining the dismissal of allegations A and B.

In 
Morgan
, a divided Supreme Court, in a 5 to 4 decision, held that a hostile work environment claim under Title VII includes events that occurred prior to and outside of the federal 180-day filing period, as long as at least one act occurred within the 180-day period.  In reaching this decision, the Court specifically noted that the Title VII filing period was 
not a jurisdictional prerequisite
.  Rather, it was a requirement subject to the equitable doctrines of waiver, estoppel, and equitable tolling " 'when equity so requires.' "  
Morgan
, 536 U.S. at 121, 153 L. Ed. 2d at 127, 122 S. Ct. at 2076 (2002), quoting 
Zipes v. Trans World Airlines, Inc.
, 455 U.S. 385, 398, 71 L. Ed. 2d 234, 246, 102 S. Ct. 1127, 1135 (1982).

Whether one agrees or disagrees with 
Morgan
 is irrelevant to our discussion here.  There is a defining and dispositive difference between the filing periods under Title VII and the Act.  As previously stated, under Title VII, the filing period is a statute of limitations, subject to equitable tolling.  "However, courts have uniformly held that the charge-filing time limitations period [of the Act] is jurisdictional."  
Faulkner-King v. Department of Human Rights
, 225 Ill. App. 3d 784, 791, 587 N.E.2d 599, 604 (1992).  

The majority here "agree[s] with the sound reasoning in 
Gusciara
."  Slip op. at 5.  I find the reasoning in 
Gusciara
 to be seriously flawed.  
Gusciara
 acknowledges that state courts are not required to interpret our statutes in lockstep with the federal courts' interpretation of cognate federal statutes, but then finds no "compelling reason to interpret the Act inconsistently with the federal courts' construction of Title VII."  
Gusciara
, 346 Ill. App. 3d at 1019, 806 N.E.2d at 751.  There is nothing sound about this reasoning, which sees no compelling reason to treat a statute of limitations any differently than a jurisdictional filing period.  

After finding no compelling reason not to follow 
Morgan
, the 
Gusciara
 court continues:

     "We do diverge from 
Morgan
 in one important

respect.  The Supreme Court held that because Title

VII's limitations provision is not jurisdictional,

it is subject to equitable doctrines such as waiver,

estoppel, and tolling. [Citation.]  Because

section 7A-102(A)(1)'s time limit is jurisdictional,

we do not incorporate such equitable defenses into

section 7A-102(A)(1).  Nonetheless, we are confident

that 
Morgan
's holding will discourage potential

claimants from undue delay in filing charges.
"  

Gusciara
, 346 Ill. App. 3d at 1020, 806 N.E.2d at 

752.  

With all due respect, this makes absolutely no sense in light of 
Gusciara
's holding.  It was precisely the fact that Title VII's limitations provision was not jurisdictional and therefore subject to equitable doctrines such as waiver, estoppel and tolling that was the 
sine qua non
 of the 
Morgan
 decision.  A reading of 
Gusciara
 and the majority opinion here shows a misapprehension by the two courts of the effect that a jurisdictional filing period has on equitable defenses.  Every Illinois case before 
Gusciara
 has made it clear that since the filing period under the Illinois statute is jurisdictional, equitable defenses of waiver, estoppel and tolling are 
unavailable to the claimant
.  
Board of Governors of State Colleges & Universities for Northeastern Illinois University v. Rothbardt
, 98 Ill. App. 3d 423, 424 N.E.2d 742 (1981); 
Larrance v. Human Rights Comm'n
, 166 Ill. App. 3d 224, 519 N.E.2d 1203 (1988).  Both 
Gusciara
 and the majority here speak of that concept as though equitable defenses are not available to the 
employer
.  This basic misapprehension is apparently what allows the courts in these two opinions to acknowledge that equitable defenses do not apply and then turn around and create an equitable defense to the filing period for acts alleged to constitute part of a judicially created hostile work environment claim. 	

One need only study 
Gusciara
 to understand that the judicial rewrite of the Act will be the rule that ate the law, at least the 180-day filing period.  In 
Gusciara
, as here, there were discrete and egregious acts of sexual harassment alleged that occurred outside of the 180-day jurisdictional filing period.  Up until this time, Illinois courts understood that any claim which might be actionable under the Act was lost if not filed within 180 days.  Now, if a claimant fails to file a claim within 180 days of any violation, he or she need only allege even rather innocuous violations of the Act within the 180 days and thereby reach back beyond the 180 days to resuscitate claims that the legislature declared to be "DOA."

More importantly, the majority here, as in 
Gusciara
, ignores the principles of separation of powers fundamental to our system of government.  The court has rewritten the Human Rights Act.  This is judicial legislation, pure and simple. 

The Human Rights Act creates rights not afforded by the Illinois Constitution.  
Pickering v. Human Rights Comm'n
, 146 Ill. App. 3d 340, 496 N.E.2d 746 (1986).  It creates rights and causes of action that did not exist at common law.  Therefore, the duty of the courts is to strictly construe the statute.  
Adams v. Northern Illinois Gas Co.
, 211 Ill. 2d 32, 809 N.E.2d 1248 (2004); 
Bush v. Squellati
, 122 Ill. 2d 153, 522 N.E.2d 1225 (1988).  It has long been held that "in construing statutes in derogation of the common law, it will not be presumed that an innovation thereon was intended further than that which is specified."  
Walter v. Northern Insurance Co. of New York
, 370 Ill. 283, 288, 18 N.E.2d 906, 908-09 (1938).  If there are to be exceptions to the jurisdictional filing period, our tripartite form of government requires that they come not from the courts, but from those whose role it is to make the laws: the legislature.

I respectfully dissent.

FOOTNOTES
1:  In a state having an entity authorized to grant relief regarding an alleged unlawful practice, an employee must file the charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the employment practice.  In all other states, the charge must be filed with the EEOC within 180 days.  42 U.S.C. §2000e-5(e)(1) (1994).  


