Rozsavolgyi v. City of Aurora

• Decision Date: 27 April 2016
• Docket Number: No. 2–15–0493.,2–15–0493.
• Citation: 405 Ill.Dec. 258,58 N.E.3d 65
• Parties: Patricia ROZSAVOLGYI, Plaintiff–Appellee, v. The CITY OF AURORA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

58 N.E.3d 65

405 Ill.Dec. 258

Patricia ROZSAVOLGYI, Plaintiff–Appellee,

v.The CITY OF AURORA, Defendant–Appellant.

No. 2–15–0493.

Appellate Court of Illinois, Second District.

April 27, 2016.

Rehearing Denied July 6, 2016.

Matthew D. Rose and John B. Murphey, both of Rosenthal, Murphey, Coblentz & Donahue, of Chicago, for appellant.

Glenn R. Gaffney and Jolianne S. Walters, both of Gaffney & Gaffney P.C., of Glendale Heights, for appellee.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Brett E. Legner, Assistant Attorney General, of counsel), amicus curiae.

OPINION

Justice JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Patricia Rozsavolgyi, has a medical history of unipolar depression

, anxiety, panic attacks, and partial hearing loss. Her employer of 20 years, the City of Aurora (the City), terminated plaintiff's employment after she made a statement to a coworker in which she used the word “idiots.” Plaintiff sued the City, alleging violations of the Illinois Human Rights Act (Human Rights Act) (775 ILCS 5/1–101 et seq. (West 2014)), including refusal to accommodate, disparate treatment, retaliation, and hostile work environment. Following several interlocutory trial court orders, the City petitioned for leave to appeal under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) (permissive interlocutory appeals), asking that we answer the following certified questions:

(1) Does section 2–102(A) of the Human Rights Act prohibit “disability harassment” as a civil rights violation? Alternatively, do counts I (refusal to accommodate) and IV (hostile work environment) of plaintiff's complaint state cognizable civil rights violations under that section?

(2) If section 2–102(A) permits a cause of action for disability harassment, does the provision in section 2–102(D) of the Human Rights Act “that an employer shall be held responsible for sexual harassment of the employer's employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures” (775 ILCS 5/2–102(D) (West 2014)) similarly apply to a cause of action for disability harassment brought under section 2–102(A) ? If yes, does the employee or the employer bear the burden of alleging and proving that the employer: (a) is aware of the conduct by its nonmanagerial and nonsupervisory employees; and (b) fails to take reasonable corrective measures? If no, can an employer assert the Faragher–Ellerth¹ affirmative defense to a hostile-work-environment harassment claim brought under section 2–102(A) ?

(3) Does the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1–101 et seq. (West 2014)) apply to a civil action under the Human Rights Act where the plaintiff seeks damages, reasonable attorney fees, and costs? If yes, should this court modify, reject, or overrule its holdings, in People ex. rel. Birkett v. City of Chicago, 325 Ill.App.3d 196, 202 [259 Ill.Dec. 180, 758 N.E.2d 25] (2001), Firestone v. Fritz, 119 Ill.App.3d 685, 689 [75 Ill.Dec. 83, 456 N.E.2d 904] (1983), and Streeter v. County of Winnebago, 44 Ill.App.3d 392, 394–95 [2 Ill.Dec. 928, 357 N.E.2d 1371] (1976), that “the Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations” (Birkett, 325 Ill.App.3d at 202, 259 Ill.Dec. 180, 758 N.E.2d 25 )?

¶ 2 We granted the petition, and, for the reasons set forth herein, we answer the certified questions as follows: (1) section 2–102(A) of the Human Rights Act prohibits hostile-work-environment disability harassment, and a reasonable-accommodation claim may be brought as a separate claim under that provision; (2) section 2–102(D) of the Human Rights Act applies to hostile-work-environment disability-harassment claims brought under section 2–102(A), and the employee always bears the ultimate burden of persuasion in such a case; and (3) the Tort Immunity Act applies to actions under the Human Rights Act; the City thus can assert immunity with respect to plaintiff's request for damages but not to her request for equitable relief; and we acknowledge that the supreme court has impliedly rejected our holdings that the Tort Immunity Act applies only to tort actions and does not apply to constitutional claims and, thus, we do not follow that precedent.

¶ 3 I. BACKGROUND

¶ 4 A. Plaintiff's Complaint

¶ 5 Plaintiff sued the City on January 22, 2014. She had worked for the City from 1992 to July 13, 2012, most recently as a property maintenance compliance officer (reporting to Dave Dykstra and Mark Anderson). Plaintiff alleged that she had a medical history of unipolar depression

, anxiety, panic attacks, and partial hearing loss, which together constituted a “disability” under section 1–103(I) of the Human Rights Act (775 ILCS 5/1–103(I) (West 2014)). Her conditions did not prevent her from performing her job duties. However, when she was provoked, she was particularly likely to react strongly, though never in a physical manner. Plaintiff would speak loudly or in a fast-paced manner, especially when provoked or agitated.

¶ 6 Plaintiff further alleged that she notified the City of her medical conditions, asking it to take them into consideration in her requests and attempts to maintain a reasonable and professional work environment. The City “failed and refused to take any action.” According to plaintiff, her coworkers engaged in an intentional pattern and practice to “agitate, embarrass, humiliate, degrade, harass, discriminate and provoke” her, creating a hostile and offensive work environment. This conduct included name-calling (e.g., cuckoo, Shutter's Island, prostitute, bitch, ignorant, nuts, crazy, weird, whacko), notes, spitting on her car window, and creating false rumors. Plaintiff alleged that this was a purposeful effort to cause her em otional distress and agitate her. She also alleged that certain staff and coworkers falsely claimed that plaintiff was a physical threat even though she was not, and never had been, violent.

¶ 7 Plaintiff alleged that she repeatedly complained to the City (specifically, to Dykstra and Anderson) and her union representative, but they “failed and refused to take any action” to stop the behavior. As a result, plaintiff sustained further emotional harm and aggravation of her medical conditions. Also, the behavior impacted her ability to concentrate at work. She suffered from depression, including fatigue, sadness, helplessness, irritability, restlessness, anxiety, sleep disorders, and body aches.

¶ 8 The City asked the union president to guarantee that plaintiff would not engage in physical violence in the workplace and the union responded that plaintiff's counselors and doctors did not deem her to be a physical threat but that the union could never guarantee that anyone would never commit an act of physical violence in the workplace.

¶ 9 As of July 2012, a counselor had diagnosed plaintiff as being in the throes of depressive and panic disorders

. On July 3, 2012, plaintiff made a statement to a coworker, using the word “idiots.” The City then terminated her employment. Plaintiff alleged that other employees had used far worse words and had not been disciplined. She argued that, if the City had taken reasonable steps to prevent the harassment, she would not have been in a vulnerable position. Also, the City perceived plaintiff as being a risk or a threat to her coworkers and she was discriminated against based on this and her medical history.

¶ 10 Plaintiff's four-count complaint alleged: (1) refusal to accommodate; (2) disparate treatment; (3) retaliation; and (4) hostile work environment. She sought back pay, front pay, the value of lost benefits, compensatory damages, reinstatement with full seniority, attorney fees, and the costs of her suit.²

¶ 11 In answers to interrogatories, plaintiff responded that she never filed a harassment complaint pursuant to the City's anti-harassment policy³ or initiated with the City's human resources department a request for a reasonable accommodation under the City's reasonable-accommodations policy.⁴ However, she stated that she made numerous oral complaints to the City about the harassment. In count I, she alleged that she reasonably communicated to the City that she was seeking an accommodation due to her medical conditions and that she made repeated requests to management to take action to stop the harassing and demeaning conduct. According to plaintiff, she and her union representative were told that plaintiff had to “ live with it,” “deal with it,” and “ignore it.” They were also told, “I don't think that's harassment” and “do what you gotta do.”

¶ 12 B. The City's Answer and Affirmative Defenses

¶ 13 The City admitted that, prior to July 2012, it had received documentation that reflected that plaintiff had been diagnosed with unipolar depression

, anxiety, panic attacks, and partial hearing loss. However, it denied most of plaintiff's allegations, including that her medical conditions constituted a disability or that they caused her difficulty at work.

¶ 14 The City also raised several affirmative defenses: (1) lack of subject matter jurisdiction (all counts); (2) the existence of a policy prohibiting discrimination, harassment, and retaliation on the basis of disability (per its collective bargaining agreement with the union and its employee handbook) and plaintiff's failure to pursue corrective opportunities thereunder, to request an accommodation, or to report any harassment; and the lack of any harassment by any supervisory or managerial employee, and the City's lack of knowledge about any harassment by nonsupervisory, nonmanagerial coworkers (counts I and IV); (3) supervisory immunity under section 3–108 of the Tort Immunity Act (745 ILCS 10/3–108 (West 2014) ) (counts I and IV); (4) discretionary immunity under section 2–201 of the Tort Immunity Act (...