Barnard v. City of Chicago Heights

THIRD DIVISION
March 4, 1998

No. 1--97--0120

JACQUELINE A. BARNARD, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
THE CITY OF CHICAGO HEIGHTS, SERGEANT )
SAMUEL PAVESICH, CHIEF DOUGLAS BARGER ) Honorable
and CAPTAIN SALVATORE VICARI, ) Sophia H. Hall and
) Jacqueline P. Cox,
Defendants-Appellees. ) Judges Presiding.

JUSTICE BURKE delivered the opinion of the court:

Plaintiff Jacqueline Barnard appeals from three orders of the
circuit court granting summary judgment in plaintiff's common law
tort action to defendant City of Chicago Heights, plaintiff's
employer, and defendants Douglas Barger and Salvatore Vicari
(collectively, defendants), granting summary judgment to defendant
Samuel Pavesich (Pavesich) and granting defendants' motion for
leave to amend their affirmative defenses. On appeal, plaintiff
contends that: (1) the trial court erred in granting summary
judgment for defendants and Pavesich based on the exclusive remedy
provision of the Illinois Human Rights Act (775 ILCS 5/1--101 et
seq. (West 1994)) because plaintiff's claims against defendants and
Pavesich were not inextricably linked to acts of sexual harassment;
(2) defendants were not entitled to summary judgment based on any
other ground asserted in their motion for summary judgment because
"the evidence in the record and the reasonable inferences to be
drawn from that evidence" support plaintiff's negligence and
intentional tort claims against defendants, and defendants'
affirmative defenses or "other affirmative matter" failed to
establish that they were entitled to judgment as a matter of law;
and (3) the trial court erred in granting defendants' motion to
amend their affirmative defenses after summary judgment had been
entered in favor of defendants. For the reasons set forth below,
we remand this case for further proceedings.
On September 5, 1989, plaintiff was employed as a desk clerk
by the City of Chicago Heights police department (Department).
According to plaintiff, shortly after she started working,
Pavesich, who was also employed by the Department as a sergeant,
began making sexually offensive comments to her and other female
employees. With respect to plaintiff, these comments included the
use of obscene language and propositions for sexual activity, such
as Pavesich's statements that he was having "wet dreams" about
plaintiff and imagining how plaintiff would "feel inside."
On June 12, 1990, at approximately 1:30 a.m., plaintiff was
off the Department's premises on a permitted break during her
shift; plaintiff had gone to a restaurant to meet her boyfriend.
While plaintiff was driving back to the police station, but before
she had reached the station, Pavesich, who was on duty and driving
his squad car, ordered her to pull her car over and get into his
car. Plaintiff got into the car, but left the door open. Pavesich
then reached over, shut the door and eventually positioned himself
so that he was "like on top of [her]." When plaintiff struggled to
escape and told Pavesich to leave her alone, he held her face,
kissed her with his tongue, opened her uniform shirt, grabbed her
breasts, grabbed her between the legs, tried to stick his hand
inside her pants, and grabbed her hand and rubbed it over his
genitals. Plaintiff continued to struggle, and Pavesich let her
get out of the car after approximately five minutes. Plaintiff
returned to the station, but did not report the incident that day.
From June through August 1990, Pavesich continued to make offensive
comments to plaintiff, and once during August 1990 he came up
behind her in her office, leaned over, put his arm around her and
stuck his tongue in her ear.
Plaintiff reported the June 12, 1990, incident to her desk
supervisor in August 1990, at which time the supervisor suggested
that plaintiff report the incident directly to Captain Vicari.
Approximately two weeks later, Vicari telephoned plaintiff at home
and requested that she come to the station for a meeting. During
the meeting, plaintiff told Vicari and two other captains about the
June 12 occurrence. At the direction of the captains, plaintiff
reduced her complaint to writing on August 27, 1990, in a
departmental memorandum. According to Vicari, Pavesich's
assignment inside the police station as watch commander was
subsequently changed because Chief Barger wanted Pavesich "outside
as much as possible" in order to "keep him outside and away from
[plaintiff]."
In October 1990, Chief Barger and Captain Vicari brought
charges against Pavesich before the Board of Fire and Police
Commissioners of the City of Chicago Heights (the Board), stating
that Pavesich violated various rules and regulations of the
Department, including "unbecoming conduct," "immoral conduct," and
"abuse of position" based on the June 12 incident. After a
hearing, the Board issued a written decision on December 27,
finding that the evidence supported the charges against Pavesich,
and ordering that Pavesich be suspended without pay for 30 days.
In December 1990, plaintiff requested and was granted a
medical leave of absence from the police department because she
claimed the incident with Pavesich caused her "severe emotional
trauma, including a fear of going to work." Plaintiff did not
return to work following the end of her leave, and subsequently
submitted a formal letter of resignation on January 29, 1991.
On June 11, 1991, plaintiff filed a complaint against the same
defendants in the case at bar, in the U.S. District Court for the
Northern District of Illinois, based on the June 12 incident, as
well as other alleged acts of Pavesich which plaintiff claimed
amounted to "sexual harassment." Counts I through IV of
plaintiff's complaint were brought pursuant to title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e--2 (1988)); counts I and
II alleged equal protection claims, and counts III and IV alleged
due process violations. Count V alleged sexual harassment claims
in violation of title VII, counts VI and VII alleged assault and
battery claims, counts VIII and IX alleged intentional infliction
of emotional distress claims, and count X alleged negligent
supervision against defendants, except for Pavesich. The district
court dismissed plaintiff's complaint on October 20, 1992.
On February 24, 1993, plaintiff filed a complaint in the
circuit court of Cook County and, on February 1, 1994, she filed a
six-count amended complaint. Counts I and III were directed
against Pavesich, and alleged claims of assault and battery and
intentional infliction of emotional distress, respectively. Counts
II, IV, V and VI were directed against the other defendants, and
alleged claims of assault and battery, intentional infliction of
emotional distress, negligent retention, training and supervision
of Pavesich and willful and wanton retention and failure to
supervise Pavesich, respectively.
On July 17, 1996, defendants filed a motion for summary
judgment, arguing that: (1) the exclusivity provisions of the Human
Rights Act barred the trial court's jurisdiction; (2) plaintiff's
claims were barred under the Workers' Compensation Act because they
occured during the course of plaintiff's and Pavesich's mutual
employment; (3) defendants were not vicariously liable for
Pavesich's alleged sexual assault; (4) plaintiff was unable to
prove the requisite notice element for all of her claims against
defendants; (5) defendants were immune from liability for their
discretionary employment decisions; (6) plaintiff failed to allege
facts establishing defendants' negligence or willful and wanton
conduct; (7) plaintiff failed to plead facts that defendants'
retention of Pavesich proximately caused her injury; and (8)
plaintiff's constructive discharge claim was "inapplicable to the
facts of this case." Specifically, with respect to the Human
Rights Act, defendants relied on Geise v. Phoenix Co. of Chicago,
Inc., 159 Ill. 2d 507, 515-16, 639 N.E.2d 1273 (1994), arguing
that the trial court lacked jurisdiction over the subject matter of
plaintiff's complaint because the facts alleged fit the definition
of a "civil rights violation" under the Human Rights Act,
notwithstanding that plaintiff "attempt[ed] to frame her claims
against *** [her] employer in terms of recognized common law tort
claims." In her response to defendants' motion, plaintiff argued
that the record contained sufficient evidence to support her causes
of action, thereby precluding summary judgment for defendants.
Plaintiff specifically argued that the acts complained of in Geise
were distinguishable from those in the case at bar because they
were not "violent and brutal." Plaintiff also argued that our
court in Maksimovic v. Tsogalis, 282 Ill. App. 3d 576, 668 N.E.2d 166 (1996), "misread" Geise to hold that "sexual harassment" under
the Human Rights Act "include[s] any physical assault and battery,"
and that "every claim involving physical touching" should be barred
under the Human Rights Act. (Emphasis in original.) On October
17, the trial court granted defendants' motion for summary judgment
on all counts against them based on its determination that "the
exclusivity of the remedies of the Illinois Human Rights Act"
barred it from exercising jurisdiction.
Pavesich also filed a motion for summary judgment, arguing
that plaintiff's common law tort claims against him were barred by
the Human Rights Act. On December 5, 1996, the trial court granted
Pavesich's motion based upon the exclusive remedy provision of the
Human Rights Act. This appeal followed.
Plaintiff first contends that the trial court erred in
granting summary judgment to defendants and Pavesich based on the
exclusive remedy provision of the Human Rights Act (Act) (775 ILCS
5/1--101 et seq. (West 1994), arguing that Pavesich's conduct
toward plaintiff on June 12, 1990, constituted a "violent, physical
attack" that was "purely and simply a physical assault and battery"
and not a sexually-harassing type touching encompassed within the
definition of "sexual harassment" under the Act. Plaintiff
maintains that her negligence and intentional tort claims against
defendants and Pavesich based on Pavesich's conduct before, on and
after June 12, therefore, do not depend on allegations of sexual
harassment and do not fall under the Act. Plaintiff further argues
that since Pavesich's acts cannot be defined as sexual harassment,
"Pavesich is liable for the assault and battery as the perpetrator
and the City defendants are liable as the facilitators."
Defendants and Pavesich contend that the trial court properly
granted summary judgment to them based on the exclusive remedy
provision of the Act because plaintiff's claims against defendants
are based upon alleged occurrences which took place in an
employment setting and depend upon prohibitions against sexual
harassment for their viability. More specifically, defendants and
Pavesich argue that the fundamental nature of the June 12 incident
as alleged by plaintiff is sexual and cannot be described in any
other way. Defendants further argue that "the Act constitutes the
sole remedy for all sexual harassment in the employment context,"
including "minor" incidents of sexual harassment. (Emphasis in
original.) Therefore, defendants and Pavesich argue that because
plaintiff's intentional tort claims of assault, battery and
intentional infliction of emotional distress were based on facts
identical to a sexual harassment claim, i.e., an offensive touching
of a sexual nature, plaintiff's common law tort claims are barred
by the Act.
It is well settled that appellate review of an order granting
summary judgment is de novo. Lajato v. AT&T, Inc., 283 Ill. App.
3d 126, 134, 669 N.E.2d 645 (1996). A motion for summary judgment
should be granted only if the pleadings, depositions, and
affidavits on file demonstrate that no genuine issues of material
fact exist and the movant is entitled to judgment as a matter of
law. Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639, 645,
569 N.E.2d 579 (1991). In determining whether a genuine issue as
to any material fact exists, a reviewing court must view the
evidence in a light most favorable to the nonmoving party. Smith
v. St. Therese Hospital, 106 Ill. App. 3d 268, 270, 435 N.E.2d 939
(1982).
The Act provides that no Illinois court "shall have
jurisdiction over the subject of an alleged civil rights violation
other than as set forth in [the] Act." 775 ILCS 5/8--111(C) (West
1994). Section 5/2--102(D) of the Act states that it is a "civil
rights violation" for "any employer, employee, agent of any
employer, *** to engage in sexual harassment." 775 ILCS 5/2--
102(D). The Act defines "sexual harassment" as
"any unwelcome sexual advances or requests for
sexual favors or any conduct of a sexual
nature when *** such conduct has the purpose
or effect of substantially interfering with an
individual's work performance or creating an
intimidating, hostile or offensive working
environment." 775 ILCS 5/2--101(E).
If a common law tort claim is construed as a civil rights
violation because it falls under the definition of sexual
harassment as set forth in the Act, there is no dispute that the
circuit court will not have original jurisdiction to consider it.
In such a case, the plaintiff's common law tort claims will be
barred by the exclusive remedy provisions of the Act because the
claims will be "construed as seeking redress for a 'civil rights
violation' within the meaning of [the Act]." Geise, 159 Ill. 2d
at 515-16.
We find Maksimovic v. Tsogalis, 177 Ill. 2d 511, 687 N.E.2d 21 (1997), dispositive of the issue of whether the trial court
erred in granting summary judgment for defendants and Pavesich in
the case at bar. In Maksimovic, the plaintiff alleged that the
defendant, a co-employee, made verbal threats and sexually
offensive comments to her; placed his hand under her skirt and
grabbed her leg; grabbed her buttocks; attempted to kiss her; and
confined her in a walk-in cooler where he made sexual advances to
her, including touching her body. The plaintiff filed a complaint
with the Human Rights Commission based on a claim of sexual
harassment and, later, an action for damages in the circuit court
based on intentional tort claims of assault, battery and false
imprisonment. The circuit court subsequently granted summary
judgment to the defendants, holding that it lacked subject matter
jurisdiction because the plaintiff's "tort claims were in the
nature of sexual harassment." Maksimovic, 177 Ill. 2d at 514-15.
This court, relying on Geise, affirmed the circuit court in
Maksimovic v. Tsogalis, 282 Ill. App. 3d 576, 668 N.E.2d 166
(1996), on the basis of lack of subject matter jurisdiction to
adjudicate the plaintiff's claims of intentional torts related to
sexual harassment, stating that " '[b]ecause the fundamental
nature of plaintiff's claims are offensive touchings of a sexual
nature and she cannot support a cause of action independent of
these allegations, her claims for assault, battery and false
imprisonment are barred by the Act and Geise.' " Maksimovic, 282
Ill. App. 3d at 586. This court further concluded that any
intentional tort claim factually related to allegations of sexual
harassment barred the circuit court from exercising jurisdiction
over those claims. Maksimovic, 282 Ill. App. 3d at 585-86.
Our supreme court specifically allowed the Maksimovic
plaintiff's petition for leave to appeal for the purpose of
clarifying its holding in Geise, i.e., "that where [a plaintiff's]
tort claim is 'inextricably linked' to claims of sexual harassment
such that there is 'no independent basis for imposing liability'
apart from the Act itself" (Maksimovic, 177 Ill. 2d at 513, citing
Geise, 159 Ill. 2d at 516-18), the plaintiff is actually seeking
redress for a civil rights violation as defined by the Act and,
therefore, the circuit court will lack original jurisdiction to
hear the claims (Geise, 159 Ill. 2d at 516-18). In Geise, the
plaintiff had alleged that during her employment, the company
manager made numerous sexual advances, including trying to kiss
and touch her, dropping things down the front of her blouse, and
misleading her into believing that various lunch meetings were
business-oriented when they were actually intended for the purpose
of his making sexual advances to her. In holding that the
plaintiff's claims against the defendants were for a civil rights
violation within the meaning of the Act, the Geise court found it
relevant that the plaintiff originally filed her cause of action
pursuant to title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e--2 (1988)) in the federal district court, and noted that
the definition of sexual harassment set forth in title VII is
virtually identical to the one in the Act. The Geise court
observed that therefore it would be contradictory for the
plaintiff to argue that the same conduct she pled as "sexual
harassment" in the district court complaint did not constitute a
claim for "sexual harassment" under the Act. Geise, 159 Ill. 2d
at 517.
In reversing this court, our supreme court in Maksimovic
explained that "[t]he rule from Geise is not that the Act
precludes the circuit court from exercising jurisdiction over all
tort claims related to sexual harassment. Rather, whether the
circuit court may exercise jurisdiction over a tort claim depends
upon whether the tort claim is inextricably linked to a civil
rights violation such that there is no independent basis for the
action apart from the Act itself." (Emphasis in original.)
Maksimovic, 177 Ill. 2d at 517. The Maksimovic court determined
that the plaintiff's claims of assault, battery and false
imprisonment "clearly," under the Geise standard, were not
inextricably linked to her claim of sexual harassment; rather,
"[t]he sexual harassment aspect of *** [the plaintiff's] case is
merely incidental to what are otherwise ordinary common law tort
claims *** which exist wholly separate and apart from a cause of
action for sexual harassment under the Act." The Maksimovic court
concluded that "[t]o the extent that the plaintiff has alleged the
elements of each of those torts without reference to legal duties
created by the Act, she has established a basis of imposing
liability on the defendants independent of the Act." Maksimovic,
177 Ill. 2d at 517. In so holding, the Maksimovic court relied on
the language of the Act and the policy underlying it, explaining
that common law rights and remedies are in full force in Illinois
unless clearly and plainly repealed by the legislature or modified
by court decision, the express language of the Act indicates an
intent that the Act provide an exclusive remedy for " 'civil
rights violations' " related to sexual harassment in the
workplace, the Act "makes no mention of common law actions," and
an intent by the legislature "to abolish all common law torts
factually related to sexual harassment is not apparent from a
plain reading of the statute." Maksimovic, 177 Ill. 2d at 517-18.
The Maksimovic court further distinguished the purpose of an
action to redress a civil rights violation from that of a common
law tort action, stating that the grant of exclusive jurisdiction
to the Human Rights Commission over sexual harassment claims
amounting to civil rights violations "was intended to promote the
efficient and uniform processing of state civil rights claims" and
"[a] civil rights action under the Act is designed, in part, to
eradicate sexual harassment in the workplace," whereas assault,
battery and false imprisonment are "long-recognized tort actions"
for the redress of bodily integrity and personal liberty
violations, the adjudication of which "has traditionally been
within the province of our courts." Maksimovic, 177 Ill. 2d at
517-18. Accordingly, the Maksimovic court concluded that the
circuit court is not precluded from "exercising jurisdiction over
all tort claims related to incidents of sexual harassment"; if a
plaintiff can establish the necessary elements of a common law
tort independent of any statutory cause of action under the Act,
and thus a tort claim not inextricably linked with a civil rights
violation, the circuit court has jurisdiction to adjudicate that
tort claim. (Emphasis added.) Maksimovic, 177 Ill. 2d at 518-19.
In the present case, it is undisputed that the trial court
granted summary judgment to defendants and Pavesich based solely
on its determination that it lacked jurisdiction over plaintiff's
common law tort claims because of "the exclusivity of the remedies
of the *** Act." However, it is unclear from the record whether
the trial court based its ruling solely on this court's decision
in Maksimovic, now reversed, holding that the Act bars any common
law tort claim related to sexual harassment, or if the court
considered and determined that plaintiff's tort claims were
inextricably linked to her claims of sexual harassment, thereby
lacking an independent basis for their viability. Accordingly, we
remand this case to the trial court for reconsideration of
defendants' and Pavesich's motions for summary judgment in light
of our supreme court's decision in Maksimovic. Because we are
remanding this case, we need not address plaintiff's remaining
arguments.
Remanded, with directions.
CERDA and WOLFSON, JJ., concur.