Opinion
No. 1-19-0817
05-15-2020
JOSIE DAY, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION, THE DEPARTMENT OF HUMAN RIGHTS, STATE OF ILLINOIS DEPARTMENT OF JUVENILE JUSTICE, Respondent-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Petition for Direct Administrative Review of an Order of the Illinois Human Rights Commission Charge Nos. 2014 SF 2367 2014 SF 1939 JUSTICE HARRIS delivered the judgment of the court.
Justices Cunningham and Connors concurred in the judgment.
ORDER
¶ 1 Held: We affirm, concluding the Illinois Human Rights Commission lacked statutory authority to consider petitioner's complaints. ¶ 2 Petitioner Josie Day seeks direct review of the order of the Illinois Human Rights Commission (Commission), which adopted an administrative law judge's (ALJ) determination that the Commission lacked statutory authority to consider her complaints against her employer, 2 the Department of Juvenile Justice (DJJ), for failure to accommodate her disability, employment discrimination, and retaliation. We affirm. ¶ 3 Day was employed as an executive secretary for respondent, DJJ, from 2006 to 2014. Day suffered from severe rhinitis and asthma, which resulted in allergies to perfume, tobacco, smoke, toxins, toxic fumes, and other airborne particles and similar substances. ¶ 4 In November 2013, Day filed charge No. 14 SF 1237 with the Illinois Department of Human Rights (Department), in which she alleged DJJ (1) failed to accommodate her physical disability, (2) harassed her on the basis of her physical disability, (3) voluntarily transferred her on July 15, 2013, as retaliation, and (4) harassed her based on retaliation. ¶ 5 The parties engaged in mediation to resolve the charge and, in February 2014, Day and DJJ entered into a private settlement agreement to resolve it. As part of the agreement, the DJJ acknowledged Day had a disability as defined by the Department and agreed to provide her a reasonable accommodation for her disability. Specifically, DJJ agreed to provide Day an office or cubicle that was located in an environment that did not expose her to toxic fumes, including strong perfumes. The agreement further provided that Day was required to notify her superiors, including her immediate supervisor, of any occasion where odors significantly impacted her physical health. The agreement also required that Day voluntarily withdraw her complaint. The parties did not seek the Department's or Commission's approval of the agreement. ¶ 6 DJJ provided Day with a private office with a door. Day frequently left the door open and hung a sign instructing people not to enter if they were wearing perfume or lotion. ¶ 7 On March 13, 2014, Day left work and told her supervisor she would not return to work unless she was provided an atmosphere that did not make her sick. Though she had leave time 3 available, she did not request to use it and she never returned to work. On July 23, 2014, DJJ terminated Day for cause. Day unsuccessfully challenged her termination with the Civil Service Commission. ¶ 8 In March 2014, Day filed charge No. 14 SF 2367 with the Department, which asserted charges of discrimination based on her disability and retaliation. Specifically, in relation to the charge of discrimination, Day asserted DJJ failed to accommodate her disability. In relation to the charge of retaliation, Day stated DJJ, through an unknown agent, retaliated against her for filing charge No. 14 SF 1237 by "administer[ing] toxic fumes into her work cubical," thereby exacerbating her respiratory disorder. ¶ 9 In February 2015, Day filed charge No. 15 SF 1939, wherein she asserted she was discriminatorily discharged, on July 23, 2014, based on her disability and retaliation. In relation to the discriminatory discharge charges, Day alleged she was discharged based on her disabilities of allergic rhinitis and extrinsic asthma. In relation to her charge of retaliation, Day asserted she was discharged in retaliation for filing charge No. 14 SF 3088. ¶ 10 In March 2016, Day filed a complaint with the Commission based on charge No. 14 SF 2367. In her complaint, she alleged she suffered from a disability recognized under section 1-103(I) of the Illinois Human Rights Act (Act) (775 ILCS 5/1-103(I) (West 2016)). Specifically, she alleged her "disability [was] her respiratory disorder of severe rhinitis, severe asthma, with resultant allergies to perfume, tobacco, smoke, toxins, toxic fumes, other airborne particles, and similar substances." She alleged her disability was not related to her ability to perform the essential functions of her employment as an executive secretary provided she was afforded a reasonable 4 accommodation. She alleged that, "[o]n February 11, 2014, and prior thereto," DJJ admitted her disability was a disability as defined by the Act and, after February 11, 2014, DJJ treated, perceived, and acknowledged her as a person with a disability. Further, Day alleged that, on February 11, 2014, DJJ agreed that it would ensure she had a working environment that accommodated her disability. Day asserted that, once DJJ became aware of her disability, "it had a duty to engage in good faith in the accommodation process to work toward[] a reasonable accommodation that would identify [Day's] limitations and reach an accommodation which might enable [Day] to continue working." Day further alleged that, after February 11, 2014, she continued to notify her superiors of occasions when her working environment did not accommodate her disability. But, Day alleged, DJJ failed to engage in the interactive accommodation process or failed to accommodate her disability. She alleged that, as a direct and proximate result of DJJ's failure to engage in the accommodation process or accommodate her disability, she was unable to work and was discharged from her employment with DJJ. Day further alleged that, as a result of DJJ's failures, she lost wages, benefits, and suffered damages, including pain and suffering, embarrassment, purchasing private medical insurance at a higher cost, and other damages. ¶ 11 In June 2016, Day filed a three-count complaint with the Commission based on charge No. 15 SF 1939. The substantive allegations of the June 2016 complaint were identical to her March 2016 complaint and incorporated into all three counts. In addition, Day attached to the June 2016 complaint a copy of the settlement agreement. Count I of Day's complaint, which was entitled "failure to accommodate," alleged that, as a direct and proximate result of DJJ's failure to accommodate or engage in the accommodation process, she was unable to work and was 5 discharged from her employment as a result of her disability. Count II was entitled "discrimination based on disability," and it also alleged that, as a direct and proximate result of DJJ's failure to accommodate her disability, she was unable to work. As a result, Day alleged, DJJ discharged her based on her disability in violation of section 2-102(A) of the Act (775 ILCS 5/2-102(A) (West 2016)). ¶ 12 Count III was entitled "retaliation" and, in addition to the allegations underlying counts I and II, Day further alleged that, between November 2013 and April 2014, she filed five charges with the Department in which she claimed she was discharged based on her disability. She alleged DJJ retaliated against her for filing the charges by (1) refusing to take any action to accommodate or attempt to accommodate her disability despite "promising" to do so, thereby causing her to work in an environment that made her sick and unable to work; (2) DJJ "failed to use Day's personal days, vacation days and personal days [sic] as requested by [Day] despite her request to do so but instead marked her absences as unauthorized"; (3) failed to follow its own progressive disciplinary policy and instead immediately moved to discharge her; and (4) attempted to force Day to request leave under the Family Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.). Day alleged she was discharged in retaliation for filing charges against DJJ in violation of section 6-101(A) of the Act (775 ILCS 5/6-101(A) (West 2016)). ¶ 13 By agreement of the parties, Day's March 2016 and June 2016 complaints were consolidated. Thereafter, in March 2017, DJJ filed a motion for summary decision, in which it asserted it had engaged in the interactive process contemplated by the February 2014 settlement 6 agreement and provided Day with reasonable accommodations, including a private office with a door and a sign, authored by Day, which notified all passersby that she was sensitive to perfume. Further, DJJ asserted Day caused the "breakdown" in the interactive process by abandoning the process, failing to come to work, and failing to provide DJJ with information. DJJ contended it did not discriminate against Day but rather Day was either unwilling or unable to perform her job even with a reasonable accommodation. With respect to Day's allegations of retaliation, DJJ contended it discharged Day for her unauthorized failure to attend work for 29 days in violation of its affirmative attendance policies and not in retaliation for her initiation of several charges against it. ¶ 14 In her response, Day made repeated references to the settlement agreement and the parties' performances of its terms. She asserted that, in February 2014, she and DJJ entered into a settlement agreement to resolve her November 2013 charge of discrimination. She asserted the settlement agreement provided that (1) DJJ admitted she had a disability as defined under the Act; (2) DJJ agreed to provide her with a letter setting forth the reasonable accommodation that had been provided to her—an office or cubicle that is located in an environment that did not expose her to toxic fumes, including strong perfumes; and (3) Day was required to notify her superiors or immediate supervisor of any occasion where odors had significantly impacted her physical health. She further asserted DJJ provided her with a letter, which was incorporated into the settlement agreement. She contended a reasonable inference to be drawn from the agreement was that her disability needed further accommodation and that the parties would continue to seek a permanent accommodation for her disability. According to Day, the February 2014 agreement "reset the need for accommodation" and "set the parties on a new path to reach an accommodation that would ensure a reasonable, long term accommodation can be made that [would] allow [Day] to continue 7 to perform her job duties." She asserted she performed her obligations under the agreement by reporting several instances where she was exposed to irritating fumes and that DJJ "breached the parties' [a]greement" by failing to take any action in response to her reports. ¶ 15 Day attached to her response an affidavit, which included, inter alia, several averments relating to the settlement agreement and her compliance and DJJ's noncompliance with it. ¶ 16 The ALJ entered a recommended order and decision, which recommended Day's complaints and their underlying charges be dismissed with prejudice because the Commission did not have subject matter jurisdiction. The ALJ found that, despite the fact that Day's complaints raised claims of failure to accommodate, discrimination based on disability, and retaliation, the complaints, in actuality, sought to enforce the settlement agreement. As support for his decision, the ALJ found "[t]he complaints and the content of the parties' briefs are assertions and exchanges that [DJJ] did, or did not, comply with the terms of the February 11, 2014, agreement." Noting the Commission's rules preclude it from entertaining disputes arising from a settlement agreement unless the agreement was approved by the Commission and that the parties did not seek the Commission's approval of the agreement, the ALJ recommended dismissal of the case. ¶ 17 Day filed exceptions to the ALJ's recommended order and decision, in which she argued the "essence of [her] complaint [was DJJ's] discriminatory termination of her employment because of her disability" and that her cause of action was not based on breach of the settlement agreement. She asserted she was using the settlement agreement as evidence and not asking that it be enforced. Rather, she was seeking relief under the Act. She also asserted that, even if the settlement agreement was not considered an enforceable contract, "it [did] reference a promise made by [DJJ] 8 that it would continue to engage in an ongoing accommodation process" and that DJJ should be "estopped from denying the promise and *** required to perform its promise." ¶ 18 On March 19, 2019, the Commission adopted the ALJ's recommended order and decision. On April 22, 2019, Day filed a timely petition for direct review of the Commission's decision in this court. See Ill. S. Ct. R. 335(a) (eff. July 1, 2017); 775 ILCS 5/8-111(B)(1) (West 2016) (After the Commission has entered a final order, a complainant may obtain judicial review by filing a petition for review in the Appellate Court within 35 days of the decision.). ¶ 19 On appeal, Day contends the Commission erred by finding it lacked the statutory authority to entertain her complaints. Specifically, she contends her complaints, when construed liberally, alleged causes of action for failure to accommodate, discrimination, and retaliation, and not breach of contract. Further, she argues the various references to the February 2014 settlement agreement were to provide evidentiary support for her claims and not, as found by the Commission, an effort to enforce the agreement. ¶ 20 As a threshold matter, the parties dispute the applicable standard of review. Day contends the Commission's determination that it lacked statutory authority to consider her complaints was a legal ruling, which should be reviewed de novo. DJJ, noting the ALJ made factual findings and applied those findings to its interpretation of the statute precluding it from enforcing settlement agreements, contends this case presents a mixed question of law and fact and we should review the Commission's order for clear error. We agree with Day. ¶ 21 In this case, the Commission adopted the ALJ's recommended order and decision, which recommended Day's complaints be dismissed with prejudice because the Commission did not have subject matter jurisdiction. "The issue of an administrative body's authority presents a question of 9 law and not a question of fact. The determination of the scope of the agency's power and authority is a judicial function and is not a question to be finally determined by the agency itself." County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 554 (1999). Accordingly, our review is de novo. Modrytzkji v. City of Chicago, 2015 IL App (1st) 141874, ¶ 9. ¶ 22 An administrative agency is a creature of statute, and the scope of an agency's authority is limited to those actions specified by the legislature when creating the statute. Penn v. County of Peoria, 2018 IL App (3d) 170162, ¶ 49. An agency has no inherent or common law authority and must act in accordance with the power conferred upon it by the legislature. Austin Gardens, LLC v. City of Chicago Department of Administrative Hearings, 2018 IL App (1st) 163120, ¶ 18. "While the term 'jurisdiction' may not be strictly applicable to an administrative body, the term may be used to designate the authority of the administrative body to act, and the terms 'jurisdiction' and 'authority' have been used interchangeably in certain administrative law contexts." Gilchrist v. Human Rights Commission, 312 Ill. App. 3d 597, 601 (2000). When the agency acts outside its empowering statute, it has done so without authority and its action is void. Id. ¶ 23 The Act states "it is the public policy of this State *** to secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her *** disability *** in connection with employment." 775 ILCS 5/1-102(A) (West 2016). To that end, the Department has the authority to issue, receive, investigate, conciliate, settle, and dismiss charges of discrimination that are filed under the Act. Id. § 7-101(B). ¶ 24 An aggrieved party may file a written charge of discrimination with the Department within 300 days after civil rights violation has occurred. Id. § 7A-102(A)(1) (West 2016). The Department is charged with investigating charges of discrimination and, if the Department concludes there is 10 substantial evidence to sustain the charge, the complaining party may file a complaint with the Commission or in the circuit court. 775 ILCS 5/7A-102(D)(4) (West 2016). ¶ 25 However, "[a] settlement of any charge prior to the filing of a complaint may be effectuated at any time upon agreement of the parties and the approval of the Department." Id. § 7A-103(A) (West 2016). "If the parties seek to have a settlement enforced by the Commission, the terms of the settlement must first be approved by the Director." Id. § 2520.510(a). The parties may also enter into a private settlement agreement and not submit it to the Department for approval or to the Commission for enforcement. 56 Ill. Adm. Code 2520.510(b) (eff. Nov. 4, 1994). ¶ 26 We conclude the Commission properly dismissed Day's complaint based on its lack of authority to enforce the parties' settlement agreement. Our review of Day's complaints shows she was seeking redress for DJJ's failure to abide by its duty under the settlement agreement to engage in an interactive accommodation process or accommodate her, and not under the Act. ¶ 27 In doing so, we first note the substantive allegations of Day's complaints mirror those which are required to assert a cause of action for breach of contract, which include (1) the existence of a valid and enforceable contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4) resulting damages. See Slay v. Allstate Corporation, 2018 IL App (1st) 180133, ¶ 31 (setting forth elements of breach of contract action). In both complaints, Day alleged that, "[o]n February 11, 2014, [DJJ] agreed that it would ensure [Day] a working environment that would accommodate her disability" and "had a duty to engage in good faith in the accommodation process." (Emphasis added.) Though she did not specifically set forth her duties under the agreement, she alleged she "continued to notify her superiors of occasions when her working environment did not accommodate her disability," which was required of her under the agreement. 11 Day alleged DJJ failed to comply with its agreement "to engage in the interactive accommodation process" or "failed to accommodate her disability." Day also alleged that, as a result of DJJ's failures, she suffered damages, including lost wages and benefits, pain and suffering, embarrassment, and other damages. Additionally, we note Day attached the agreement to her June 2016 complaint, which is an ordinary requirement of actions which seek to enforce written agreements. See Sherman v. Ryan, 392 Ill. App. 3d 712, 733 (2009) (stating general rule that party asserting breach of written contract must attach it to complaint or sufficiently describe its terms). ¶ 28 Further, count III of Day's June 2016 complaint, which set forth additional allegations in support of her retaliation claim, referenced DJJ's failure to comply with its duty to engage in the accommodation process. She alleged that, in retaliation for Day's filing charges of discrimination, DJJ retaliated by "refus[ing] to take any action to accommodate or attempt to accommodate her disability despite promising to do so thereby causing [Day] to work in an environment that made her sick and unable to work." (Emphasis added.) ¶ 29 Second, Day's contentions in her response to DJJ's motion for summary decision make it clear the parties' dispute related to DJJ's alleged failure to abide by the settlement agreement. Day made repeated references to the settlement agreement and the parties' performances of its terms. She argued the settlement agreement "reset the need for accommodation" and, despite the fact she complied with her obligations under the agreement, DJJ "breached the parties' [a]greement" by failing to take any action in response to her reports. ¶ 30 Third, in her exceptions to the ALJ's recommended order, Day argued DJJ should be estopped from denying the promise and should be required to perform it under the doctrine of promissory estoppel. Specifically, she stated, "[e]ven if the [s]ettlement [a]greement [was] not 12 considered an enforceable contract, it [did] reference a promise made by [DJJ] that it would continue to engage in an ongoing accommodation process to ensure a working environment in which [Day's] admitted disability would be accommodated." She repeats her argument in this court. ¶ 31 Breach of contract and the doctrine of promissory estoppel are alternative methods of obtaining relief for broken promises. See Boswell v. City of Chicago, 2016 IL App (1st) 150871, ¶ 34. Given Day's claim that DJJ should be estopped from denying the promises it made in the settlement agreement, it is clear Day's complaints sought to enforce the terms of the agreement. Accordingly, we find the Commission did not err in finding it lacked the statutory authority to entertain her complaints. ¶ 32 Day nevertheless argues the ALJ construed her pleadings too narrowly in finding she asserted a breach of the settlement agreement, in contravention of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/1-101 et seq. (West 2018)). We disagree. ¶ 33 As an initial matter, we note, as a general rule, the Code does not apply to administrative proceedings unless expressly adopted. Alden Nursing Center-Lakeland, Inc. v. Patla, 317 Ill. App. 3d 1, 12 (2000). In any event, even when liberally construed, Day's complaints allege DJJ engaged in conduct that violated the parties' settlement agreement. To conclude otherwise would require us to ignore Day's repeated references to the parties' agreement and her assertions that DJJ failed to comply with it and elevate form over substance. ¶ 34 Day also argues "there is a distinction between using a parties' agreement as evidence and enforcing the agreement as a cause of action" and she referenced the settlement agreement only as evidentiary support for her claim that DJJ violated the Act. She cites Rogers, Ill. Hum. Rts. 13 Comm'n Order and Decision, 1998SF0289; Randall, Ill. Hum. Rts. Comm'n Order and Decision, 1990CA1960; and Watkins, Ill. Hum. Rts. Comm'n Order and Decision, 1990CF1303, contending they demonstrate a settlement agreement may be "referenced or consulted and used as evidence to establish the elements of [her] case." ¶ 35 The cases relied upon by Day are unavailing. In Rogers, the issue was whether the parties had settled the case and, if so, the settlement precluded prosecution of the complainant's charge of discrimination. In Randall, the issue was whether a settlement agreement precluded the complainant from prosecuting her complaint before the Commission. Here, on the other hand, the issue is whether the Commission lacks authority to enforce a private settlement agreement that was not approved by the Department. As noted above, we find the Commission lacks such authority. ¶ 36 The other case relied on by Day, Watkins, supports the Commission's order in this case. In Watkins, the Commission concluded it did not have authority to enforce the terms of an oral settlement agreement that was never reduced to writing because the settlement agreement was never submitted to the Commission for approval. Watkins, Ill. Hum. Rts. Comm'n Order and Decision, 1990CF1303, at 4. Instead, it found the circuit court was the proper forum to enforce the private settlement agreement. Id. ¶ 37 Here, just like in Watkins, the parties entered into a private settlement agreement that was never approved by the Department or Commission. The allegations in Day's complaints make it clear she was seeking to enforce the terms of that agreement. Accordingly, the Commission properly adopted the ALJ's determination that the Commission lacked authority to consider Day's complaints. 14 ¶ 38 Finally, we note Day was not without a remedy for DJJ's failure to comply with the parties' February 2014 settlement agreement. Day could have sought enforcement of the agreement in the circuit court. See generally Law Offices of Colleen M. McLaughlin v. First Star Financial Corp., 2011 IL App (1st) 101849, ¶ 18. ¶ 39 For the reasons stated, we affirm the Commission's order. ¶ 40 Affirmed.