Crittenden v. Cook Cnty. Comm'n On Human Rights

• Decision Date: 31 July 2012
• Docket Number: No. 1–11–2437.,1–11–2437.
• Citation: 2012 IL App (1st) 112437,362 Ill.Dec. 308,973 N.E.2d 408
• Parties: Jimmy CRITTENDEN and Jimmy's Place, Petitioners–Appellants, v. COOK COUNTY COMMISSION ON HUMAN RIGHTS and Lynita Boyd, Respondents–Appellees.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 112,437
973 N.E.2d 408
362 Ill.Dec. 308

Jimmy CRITTENDEN and Jimmy's Place, Petitioners–Appellants,
v.
COOK COUNTY COMMISSION ON HUMAN RIGHTS and Lynita Boyd, Respondents–Appellees.

No. 1–11–2437.

Appellate Court of Illinois,
First District, Sixth Division.

June 1, 2012.
Rehearing Denied July 31, 2012.

[973 N.E.2d 413]

Lonny Ben Ogus, Chicago, for appellants.

Anita M. Alvarez, State's Attorney, Chicago (Maureen O. Hannon, Assistant State's Attorney, of counsel), for appellees.

OPINION
Presiding Justice R. GORDON delivered the judgment of the court, with opinion.

[362 Ill.Dec. 313]¶ 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

[973 N.E.2d 414]

credibility, [362 Ill.Dec. 314]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.

¶ 2 BACKGROUND

¶ 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 [362 Ill.Dec. 315]

[973 N.E.2d 415]

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 ¹, 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 [362 Ill.Dec. 316]

[973 N.E.2d 416]

“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.” ²

¶ 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,...