Rozsavolgyi v. City of Aurora

• Citation: 102 N.E.3d 162,2017 IL 121048
• Decision Date: 19 October 2017
• Docket Number: Docket No. 121048
• Parties: Patricia ROZSAVOLGYI et al., Appellants and Cross–Appellees, v. The CITY OF AURORA, Appellee and Cross–Appellant.
• Court: Supreme Court of Illinois

2017 IL 121048

102 N.E.3d 162

Patricia ROZSAVOLGYI et al., Appellants and Cross–Appellees,

v.The CITY OF AURORA, Appellee and Cross–Appellant.

Docket No. 121048

Supreme Court of Illinois.

Opinion filed October 19, 2017

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

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Brett E. Legner, Deputy Solicitor General, of Chicago, of counsel), for intervenor-appellant.

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

JUSTICE GARMAN delivered the judgment of the court, with opinion.

¶ 1 On November 13, 2012, plaintiff-appellant Patricia Rozsavolgyi filed a charge of discrimination on the basis of disability with the Illinois Department of Human Rights against the city of Aurora (City). Rozsavolgyi had been employed by the City from 1992 until she was involuntarily discharged on or around July 13, 2012. On November 18, 2013, Rozsavolgyi received a letter informing her that the time limitation for the Department of Human Rights to complete its investigation of the charge had expired and that she had the right to commence a civil action in the appropriate state circuit court. 775 ILCS 5/7A–102(G) (West 2014). On January 22, 2014, Rozsavolgyi filed a four-count complaint in the circuit court of Kane County for civil rights violations in employment under the Illinois Human Rights Act. ( 775 ILCS 5/1–101 et seq. (West 2014)). On the basis of three interlocutory orders, the circuit court certified three questions for permissive interlocutory review to the appellate court under Illinois Supreme Court Rule 308 (eff. Jan 1, 2016). The appellate court allowed permissive interlocutory review and addressed each question.

2016 IL App (2d) 150493, 405 Ill.Dec. 258, 58 N.E.3d 65. Rozsavolgyi petitioned for rehearing or, alternatively, for a certificate of importance under Rule 316 as to only the third certified question. The appellate court denied Rozsavolgyi's petition for rehearing but granted her request for a certificate of importance to the Illinois Supreme Court. Ill. S. Ct. R. 316 (eff. Dec. 6, 2006). The Illinois Department of Human Rights (Department) was permitted leave to intervene as an additional appellant and to file a brief instanter . 735 ILCS 5/2–408(a)(2) (West 2014).

¶ 2 BACKGROUND

¶ 3 Rozsavolgyi's claims are brought under the provisions of the Human Rights Act. 775 ILCS 5/1–101 et seq. (West 2014). The City is an "employer" under the Human Rights Act. See 775 ILCS 5/2–101(B)(1)(c) (West 2014). Count I of Rozsavolgyi's complaint alleges that the City refused to accommodate Rozsavolgyi's disability. Count II alleges disparate treatment. Count III alleges retaliation by the City for Rozsavolgyi's request for a reasonable accommodation. Count IV alleges a hostile work environment on the basis of Rozsavolgyi's disability.

¶ 4 The City's answer raised six affirmative defenses and sought the striking and dismissal of counts I through IV. On October 17, 2014, the circuit court struck and dismissed counts I and IV of Rozsavolgyi's complaint for failure to state a cause of action, "finding that disability harassment is not a cause of action under the Illinois Human Rights Act." The City voluntarily withdrew its affirmative defenses aimed at counts I and IV. However, on January 23, 2015, the circuit court granted plaintiff's motion to reconsider, reinstated counts I and IV, and gave the City leave to file amended affirmative defenses.

¶ 5 Relevant here, the City's third, fourth, and fifth affirmative defenses are based on the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). 745 ILCS 10/1 et seq. (West 2014). The City is a "local public entity" for purposes of the Tort Immunity Act. 745 ILCS 10/1–206 (West 2014). The City's third affirmative defense invokes supervisory immunity under section 3–108 of the Tort Immunity Act as to counts I and IV. 745 ILCS 10/3–108 (West 2014). The City's fourth affirmative defense asserts discretionary immunity under section 2–201 of the Tort Immunity Act as to counts I and IV. 745 ILCS 10/2–201 (West 2014). The City's fifth affirmative defense asserts immunity as to all counts based on section 2–103 of the Tort Immunity Act, which provides that "[a] local public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law." 745 ILCS 10/2–103 (West 2014).

¶ 6 Rozsavolgyi filed a motion to strike the City's amended affirmative defenses, and the City filed a motion for a Rule 308(a) finding. The circuit court ordered the parties to brief both motions and scheduled a hearing for April 22, 2015. On April 22, 2015, the circuit court denied Rozsavolgyi's motion to strike the City's first and second affirmative defenses (subject-matter jurisdiction and existence of employer policy) but granted the motion to strike the third, fourth, fifth, and sixth affirmative defenses. The circuit court, however, granted the City's motion for a Rule 308(a) finding and stayed counts II and III pending the interlocutory appeal. On April 29, 2015, the circuit court entered an order finding that the prior interlocutory orders dated October 17, 2014, January 23, 2015, and April 22, 2015, involved questions of law as to which there were substantial grounds for difference of opinion and that an appeal from these orders may materially advance the ultimate termination of the litigation. The circuit court certified the following questions for permissive interlocutory appellate review under Illinois Supreme Court Rule 308 :

"1. Does section 2–102(A) of the Illinois Human Rights Act prohibit ‘disability harassment’ as a civil rights violation? Alternatively, do counts I & IV of Plaintiff's Complaint state cognizable civil rights violations under section 2–102(A) of the Illinois Human Rights Act ?

2. If section 2–102(A) of the Illinois Human Rights Act permits a cause of action for disability harassment, does the statutory provision contained in section 2–102(D) of the Illinois 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’ similarly apply to a cause of action for disability harassment brought under section 2–102(A) of the Illinois Human Rights Act ?

If yes, does the employee or the employer bear the burden of alleging and proving that the employer is: (a) 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–Ellerth ’ affirmative defense to a hostile work environment harassment claim brought under section 2–102(A) of the IHRA?

3. Does the Local Government[al] and Governmental Employees Tort Immunity Act, 745 ILCS 10/1, et seq. , apply to a civil action under the Illinois Human Rights Act where the plaintiff seeks damages, reasonable attorneys' fees and costs?

If yes, should this Court modify, reject or overrule its prior holdings in Streeter v. County of Winnebago , 44 Ill. App. 3d 392, 394–95 [2 Ill.Dec. 928, 357 N.E.2d 1371] (2nd Dist. 1976), Firestone v. Fritz , 119 Ill. App. 3d 685, 689 [75 Ill.Dec. 83, 456 N.E.2d 904] (2nd Dist. 1983), and People ex rel. Birkett v. City of Chicago , 325 Ill. App. 3d 196, 202 [259 Ill.Dec. 180, 758 N.E.2d 25] (2nd Dist. 2001) that ‘the Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations’?"

¶ 7 The appellate court allowed the City's Rule 308 petition for leave to appeal. A divided panel answered 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, and the City can assert immunity with respect to plaintiff's request for damages but not to her request for equitable relief. 2016 IL App (2d) 150493, ¶¶ 77, 95, 115, 405 Ill.Dec. 258, 58 N.E.3d 65. The appellate majority also noted "that the supreme court has impliedly rejected our holdings that the Tort Immunity Act applies only to tort actions" and does not apply to other types of claims in Raintree Homes, Inc. v. Village of Long Grove , 209 Ill. 2d 248, 261, 282 Ill.Dec. 815, 807 N.E.2d 439 (2004). 2016 IL App (2d) 150493, ¶ 97, 405 Ill.Dec. 258, 58 N.E.3d 65. Therefore, the majority did not follow appellate precedent in answering the third certified question.

¶ 8 Justice McLaren concurred in part and dissented in part, opining that the legislature did not intend for section 2–102(A) of the Human Rights Act to include any or all types of harassment beyond sexual harassment ( id. ¶¶ 121–24 ) and that the third certified question was not a proper question ( id. ¶¶ 125–28 ). Justice McLaren did not find reasonable grounds for a difference of opinion as to whether the Tort Immunity Act applies to a Human Rights Act claim and that the form of the question implies that the appellate court would be effectively overruling three of its prior decisions. The only reason to depart from appellate court precedent, according to Justice McLaren, would be if the Illinois Supreme Court overruled those actions. Justice McLaren disagreed that this court's opinion in Raintree Homes impliedly rejected previous holdings of the appellate court but that it rather declined to adopt or approve of the appellate court's reasoning. Id. ¶ 127 (c...