Cigna v. Ill. Human Rights Comm'n
| Citation | 165 N.E.3d 964,2020 IL App (1st) 190620,445 Ill.Dec. 112 |
| Decision Date | 21 May 2020 |
| Docket Number | Nos. 1-19-0620,1-19-1010 (cons.),s. 1-19-0620 |
| Parties | Paul CIGNA and Professional Consultants, Inc., Petitioners, v. The ILLINOIS HUMAN RIGHTS COMMISSION, The Department of Human Rights, and Lois Owen, Respondents. |
| Court | United States Appellate Court of Illinois |
Robert M. Winter, Richard Lee Stavins, and Christine R. Walsh, of Robbins, Salomon & Patt, Ltd., of Chicago, for petitioners.
Kelli Dudley and Paul Luka, both of Chicago, for respondent Lois Owen.
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis, Assistant Attorney General, of counsel), for other respondents.
¶ 1 The instant consolidated appeals arise on a petition for review of a decision of the Illinois Human Rights Commission (Commission), which found that petitioner Paul Cigna sexually harassed respondent Lois Owen when Owen was an employee of Cigna's company, Professional Consultants, Inc. (PCI). After a two-day hearing, an administrative law judge (ALJ) recommended that the Commission find that Cigna had sexually harassed Owen and mailed a copy of the recommendation and proposed order to the parties. Cigna and PCI filed objections to the ALJ's recommendation and proposed order. However, the Commission found that the objections were not timely filed and, consequently, adopted the ALJ's recommendation and proposed order. Cigna and PCI then filed a motion to vacate the Commission's decision, claiming that the objections were timely filed, which was denied. They now appeal both the finding that the objections were untimely and the denial of the motion to vacate. For the reasons that follow, we affirm.
¶ 3 On December 3, 2013, Owen filed two charges with the Department of Human Rights (Department), alleging that Cigna and PCI subjected her to sexual harassment and a hostile work environment based on her sex in violation of section 2-102(D) of the Illinois Human Rights Act (Act) ( 775 ILCS 5/2-102(D) (West 2012)). The Department entered a finding of substantial evidence on the charges on May 30, 2014, and Owen requested that the Department file complaints on her behalf with the Commission, which it did on August 14, 2014.
¶ 4 Owen alleged that she was employed by PCI1 from October 15, 2005, through July 3, 2013, and that Cigna was a member of management and was Owen's direct supervisor. Owen further alleged that from the time of her hire until July 2013, Cigna sexually harassed her and created a hostile work environment based on her sex, including calling Owen a "b***" on a daily basis, having a picture of a woman with her breasts exposed hanging in Cigna's office, making sexual comments to Owen, and sending e-mails of photos and videos depicting nude women or women in suggestive poses. Owen alleged that she "refused Cigna's sexual advances and found them unwelcome, unwanted, and offensive." Among other relief, Owen sought damages for emotional distress, as well as attorney fees.
¶ 5 On September 8, 2014, both Cigna and PCI filed answers to the Department's complaints, denying that Cigna made any sexual advances to Owen and denying that any of Cigna's conduct was unwelcome, unwanted, or offensive. Both answers alleged that Owen's conduct in the workplace "demonstrated that [Owen] initiated and welcomed communications of a sexual nature." The answers also set forth four affirmative defenses: (1) that Owen's conduct "evidenced that she initiated, welcomed and found inoffensive communication of the nature which she now claims in her complaint constituted a sexually hostile environment," (2) that the alleged conduct was not severe and pervasive and therefore did not rise to the level of actionable sexual harassment, (3) that the prayer for relief sought remedies beyond those supported by the facts, and (4) that the complaints alleged violations outside the time period covered by the Act. On October 31, 2014, the Commission entered an agreed order consolidating the two cases.
¶ 6 On November 20, 2014, Cigna and PCI filed a motion for a summary decision, claiming that the documented conduct of Owen, including e-mails authored by Owen and distributed to Cigna and other coworkers, demonstrated that Owen "welcomed, relished and initiated office communication of a sexual nature." The motion argued that the complaints should therefore be dismissed since Commission decisions established that a complainant could not show that conduct of an employer was "unwelcome" in circumstances where the complainant engaged in conduct demonstrating that the complainant welcomed the same sort of conduct of which the complainant complained. Attached to the motion for summary disposition was the affidavit of Cigna, as well as copies of a number of e-mails sent by Owen to Cigna and other PCI employees. On April 16, 2015, an ALJ denied the motion for a summary decision, finding the presence of a genuine issue of material fact concerning the sexual harassment charges.
¶ 7 The matter proceeded to a hearing before the ALJ on February 14 and 15, 2017. In her case-in-chief, Owen called as witnesses (1) Cigna, as an adverse witness; (2) John Parkhurst, a former independent contractor with PCI; (3) Ronald Petty, Owen's fiancé; and (4) Owen. In their case-in-chief, PCI and Cigna called as witnesses (1) Owen, as an adverse witness, and (2) Cigna. On September 11, 2017, the ALJ issued a recommended liability determination, finding that Owen was hired by PCI as a commercial service representative, office manager, and assistant to Cigna, her supervisor, and was employed with PCI from 2005 through July 2, 2013, when she resigned. The ALJ found that both Owen and Cigna engaged in the exchange of "sexually explicit emails, banter, and comments" until December 2011 or January 2012, when Owen communicated her wish that such behavior cease to Cigna. The ALJ found that Owen testified that a number of incidents occurred since the end of 2011 or beginning of 2012, including (1) a painting of a woman with partially exposed breasts was hanging in Cigna's office throughout Owen's employment despite Owen's indicating that the painting was inappropriate, (2) Cigna made several public comments to Owen suggesting sexual activities, (3) Cigna sent several e-mails to Owen containing sexual images or sexual content, (4) Cigna regularly referred to Owen and other women as " ‘b***,’ " (5) Cigna occasionally told Owen about his infidelities and desires to be with younger women, and (6) Cigna intentionally frightened Owen by sneaking up on her on occasion. The ALJ found that Owen had established by a preponderance of the evidence that she was a victim of sexual harassment and that she had suffered emotional distress from the actions of Cigna and PCI.
¶ 8 The ALJ found that "[t]he parties were straightforward about their mutual involvement in inter-office antics prior to December 2011" and that there was "little to suggest that Cigna stopped his behavior after that date," especially given the e-mails that were admitted into evidence. Accordingly, the ALJ found that Owen's listing of events was "true and credible." The ALJ further found that "[t]his behavior is not only unprofessional in the extreme, but it is charged with harsh sexual innuendo aimed against women, especially this woman," which was exacerbated by the fact that Cigna was the owner and general manager of the business, meaning that he had authority over Owen. The ALJ found that, "under the totality analysis, the incidents permeated the work environment to a degree that it was sufficiently severe and pervasive as to alter the conditions of employment and create a continuing intimidating, hostile or offensive working environment."
¶ 9 The ALJ also found the "continuing violation" doctrine applicable, permitting consideration of actions taking place more than 180 days prior to the date of the charge. The ALJ found that Finally, the ALJ found that while an award for back wages was not supported, an award of damages for emotional distress was warranted and found that an award of $25,000 was "fair and reasonable under all of the circumstances presented by this case." The ALJ also recommended the award of attorney fees and costs, as provided by the Act.
¶ 10 After Owen's attorneys filed fee petitions, on April 24, 2018, the ALJ issued a recommended order and decision, which recommended a total award of $27,545.78 in attorney fees in addition to the relief recommended in the September 11, 2017, recommended liability determination. A memorandum of service certified that the ALJ's recommended order and decision was served on the attorneys by mailing it on April 24, 2018.
¶ 11 On May 30, 2018, PCI and Cigna filed exceptions to the recommended order and decision, claiming that the ALJ erred in considering allegations of sexual harassment preceding the 180 days prior to the filing of the charge and that the remaining allegations were insufficient to establish sexual harassment under the Act. PCI and Cigna also challenged the ALJ's recommendations concerning the awards for emotional distress and attorney fees. Attached to the exceptions was a copy of the envelope in which the ALJ's recommended order and decision was sent to PCI and Cigna's attorney, which indicates that it was mailed on April 25, 2018.
¶ 12 On February 22, 2019, the Commission entered an order in which it found that PCI and Cigna's objections were filed untimely. The Commission found that, "due to [PCI and Cigna's] untimely filed Exceptions to the Recommended Order and Decision, the Commission lacks jurisdiction to hear and entertain this matter." Accordingly, the Commission's order provided that the Commission declined further review in the matter pursuant to section...
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