Maksimovic v. Tsogalis

Maksimovic v. Tsogalis, No. 81493 (10/17/97)

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advance sheets following final action by the Court.

Docket No. 81493--Agenda 18--March 1997.
RADA MAKSIMOVIC, Appellant, v. WILLIAM T. TSOGALIS et
al., Appellees.
Opinion filed October 17, 1997.

JUSTICE HEIPLE delivered the opinion of the court:
Must a claim of intentional tort related to
allegations of sexual harassment be litigated before the
Illinois Human Rights Commission (the Commission), or,
stated differently, does the exclusive remedy provision
of the Illinois Human Rights Act (Act) (775 ILCS 5/8--
111(C) (West 1994)) divest the circuit court of
jurisdiction to adjudicate such common law tort claims?
This court visited this question in Geise v. Phoenix Co.
of Chicago, Inc., 159 Ill. 2d 507, 517 (1994), and held
that where a 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, those claims must be litigated before the
Commission--and only before the Commission. We allowed
the instant plaintiff leave to appeal (155 Ill. 2d R.
315) so that we could clarify the scope of this court's
holding in Geise as it regards tort claims which, though
related to sexual harassment, have an independent basis
in the common law.
We conclude that the plaintiff's common law tort
claims of assault, battery and false imprisonment are not
inextricably linked with claims of sexual harassment,
because the plaintiff has established the necessary
elements of each tort independent of any legal duties
created by the Act. The plaintiff has established a basis
for imposing liability on the defendant independent of
any statutory cause of action under the Act, and
therefore the circuit court does have jurisdiction to
adjudicate the plaintiff's common law tort claims. We
reverse and remand.

I
This case comes to us on a grant of summary
judgment, so our review is de novo. McInerney v. Charter
Golf, Inc., 176 Ill. 2d 482, 484 (1997). From October
1992 until August 1993, Rada Maksimovic worked as a
waitress at a restaurant owned and operated by William T.
Tsogalis located in Des Plaines, Illinois. Maksimovic
quit her job after Tsogalis allegedly made repeated
sexual advances towards her.
Subsequently, Maksimovic filed a complaint with the
Illinois Human Rights Commission in November 1993,
alleging that she was the victim of sexual harassment at
the hands of her former manager, Tsogalis, and she sought
backpay and reinstatement. Several months later,
Maksimovic filed an action for damages in the circuit
court of Cook County against defendants William T.
Tsogalis, William T. Inc., d/b/a Tiffany's Restaurant,
and P.C. Partners, d/b/a Comfort Inn. In the three counts
of the complaint relevant to this appeal, the plaintiff
alleged that Tsogalis committed the intentional torts of
assault, battery and false imprisonment. In the assault
count, Maksimovic alleged that Tsogalis threatened to
"give her a stiff one up the ass," ordered her to perform
oral sex on him, made comments about her breasts and
accused her of being too friendly with the customers. In
the battery count, the plaintiff alleged that Tsogalis
placed his hand under her skirt and grabbed her leg,
grabbed her buttocks and touched her while attempting to
kiss her. In the false imprisonment count, the plaintiff
alleged that Tsogalis confined her in a walk-in cooler
where he made sexual advances toward her.
The circuit court held that it lacked subject matter
jurisdiction to adjudicate the plaintiff's case because
her tort claims were in the nature of sexual harassment
and granted summary judgment for the defendants. The
appellate court affirmed and held that the circuit court
was without jurisdiction to adjudicate claims of
intentional tort related to allegations of sexual
harassment: "Because 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." 282 Ill. App. 3d 576, 586.

II
Our analysis of whether the Act precludes the
circuit court from adjudicating common law tort claims
related to allegations of sexual harassment naturally
begins with a careful reading of the statute. The Act
provides in relevant part:
"Except as otherwise provided by law, no
court of this state shall have jurisdiction
over the subject of an alleged civil rights
violation other than as set forth in this
Act." 775 ILCS 5/8--111(C) (West 1994).
The Act goes on to state that it is a "civil rights
violation" for any employer or employee "to engage in
sexual harassment." 775 ILCS 5/2--102(D) (West 1994).
Sexual harassment is defined 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)
(West 1994).
Thus, this court has held that if a common law action is
in essence one which seeks redress for a "civil rights
violation" as defined by the Act and there is no basis
for the action other than the Act, the circuit court
lacks jurisdiction to adjudicate the claim. Geise, 159 Ill. 2d at 516; Mein v. Masonite Corp., 109 Ill. 2d 1, 7
(1985).
But does the Act preclude the circuit court from
exercising jurisdiction over all tort claims factually
related to incidents of sexual harassment? Our appellate
court answered "yes," construing Geise as barring the
circuit court from hearing any claim of intentional tort
related to allegations of sexual harassment. 282 Ill.
App. 3d at 585. The appellate court's reading of Geise,
however, is overly broad.
In Geise, the plaintiff alleged that her employer
negligently hired and retained a manager who sexually
harassed the plaintiff. Geise, 159 Ill. 2d at 511-12.
This court observed that, but for the Act's proscription
against sexual harassment, the plaintiff would have had
no legally cognizable claim against her employer. Geise,
159 Ill. 2d at 517. Although the plaintiff in Geise
dressed her claims as "negligent hiring" and "negligent
retention," the allegations of negligence on the part of
the employer were premised on the allegation that the
employer hired and retained a manager who engaged in
sexual harassment. Geise, 159 Ill. 2d at 518. Absent the
Act's prohibition of sexual harassment, the employer's
hiring and retention of an employee whose conduct created
a hostile work environment would not have been an
actionable tort. That is to say, in Geise the Act
furnished the legal duty that the defendant was alleged
to have breached. This court held that such tort claims
were in essence claims of a "civil rights violation" and,
accordingly, could only be brought before the Commission.
Geise, 159 Ill. 2d at 518. The 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.
The issue in this case then is whether the
plaintiff's claims of assault, battery and false
imprisonment are inextricably linked to her claim of
sexual harassment. Clearly under the standard of Geise
they are not. The sexual harassment aspect of this case
is merely incidental to what are otherwise ordinary
common law tort claims. The plaintiff here has alleged
facts sufficient to establish the elements of assault,
battery and false imprisonment. These are long-recognized
tort actions which exist wholly separate and apart from
a cause of action for sexual harassment under the Act. To
the extent that the plaintiff has alleged the elements of
each of these torts without reference to legal duties
created by the Act, she has established a basis for
imposing liability on the defendants independent of the
Act. Therefore, the plaintiff's tort claims are not
inextricably linked to a civil rights violation and the
circuit court may exercise jurisdiction over these tort
claims.
Our holding here, as in Geise, rests squarely on the
language of the Act and the policy underlying it. Common
law rights and remedies are in full force in this state
unless repealed by the legislature or modified by the
decision of our courts. 5 ILCS 50/1 (West 1994); People
v. Gersch, 135 Ill. 2d 384, 395-97 (1990). A legislative
intent to abrogate the common law must be clearly and
plainly expressed, and such an intent will not be
presumed from ambiguous or doubtful language. Barthel v.
Illinois Central Gulf R.R. Co., 74 Ill. 2d 213, 220-22
(1978). The provision of the Act at issue here--which by
its terms provides an exclusive remedy for "civil rights
violations"--makes no mention of common law actions. A
legislative intent to abolish all common law torts
factually related to sexual harassment is not apparent
from a plain reading of the statute.
An action to redress a civil rights violation has a
purpose distinct from a common law tort action. A civil
rights action under the Act is designed, in part, to
eradicate sexual harassment in the workplace. 775 ILCS
5/1--102(B) (West 1994). To achieve this goal, the
legislature saw fit to create a Commission vested with
exclusive jurisdiction over sexual harassment claims
amounting to civil rights violations. This grant of
exclusive jurisdiction was intended to promote the
efficient and uniform processing of state civil rights
claims--not common law tort claims. Assault, battery and
false imprisonment existed long before the legislature
became interested in sexual harassment and are intended
to redress violations of bodily integrity and personal
liberty. See 3 W. Blackstone, Commentaries *119-20, 127-
28. The adjudication of tort claims has traditionally
been within the province of our courts, and we can find
nothing in the language of the Act, or the policy
underlying it, which indicates that the legislature
intended to preclude the circuit court from exercising
jurisdiction over all tort claims related to incidents of
sexual harassment.

III
We conclude that a common law tort claim is not
inextricably linked with a civil rights violation where
a plaintiff can establish the necessary elements of the
tort independent of any legal duties created by the
Illinois Human Rights Act. In such a case, the plaintiff
has established a basis for imposing liability on the
defendant independent of any statutory cause of action
under the Act, and therefore the circuit court does have
jurisdiction to adjudicate the plaintiff's common law
tort claim.
The judgments of the circuit and appellate courts
are reversed and the cause is remanded to the circuit
court for further proceedings.

Judgments reversed;
cause remanded.