Opinion
1-20-0889
09-30-2021
VALARIE HEMMINGWAY, Petitioner-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION, ILLINOIS DEPARTMENT OF HUMAN RIGHTS, CRAWFORD ESTATES CONDOMINIUM ASSOCIATION, and MC PROPERTY MANAGEMENT CORPORATION, Respondents-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from an order of the Illinois Human Rights Commission. Charge No. 2016CH2277 Case No. 05-16-4478-8
JUSTICE HOWSE delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.
ORDER
HOWSE JUSTICE.
¶ 1 Held: Petitioner appeals from a ruling of the Illinois Human Rights Commission. The Commission sustained the dismissal of petitioner's claims of discrimination. Finding no abuse of discretion in the Commission's finding of facts and no reversible error in its application of law, we affirm.
¶ 2 Petitioner Valarie Hemmingway appeals from an order of the Illinois Human Rights Commission. She filed discrimination complaints against the condominium association and a property management company that were associated with the condominium unit she owned. Petitioner alleged that the condominium association and the property management company retaliated against her because she pursued discrimination complaints against them. The Human Rights Commission upheld and sustained the Department of Human Rights' decision to dismiss petitioner's claims on the basis that petitioner failed to provide substantial evidence of retaliation. We affirm.
¶ 3 BACKGROUND
¶ 4 Petitioner Valarie Hemmingway filed a housing discrimination complaint with the Illinois Department of Human Rights claiming that she was discriminated against by a condominium association and a property management company. Hemmingway stated in her complaint that she is a condominium owner and that she has a disability. She alleged that the respondents committed "discriminatory acts" and that they subjected her to "discriminatory terms, conditions, privileges, or services and facilities."
¶ 5 In her complaint with the Department of Human Rights, Hemmingway stated that she had filed several charges for discrimination against respondents. Hemmingway alleged that respondents had initiated an action for possession of her condominium because of her failure to pay certain fines and assessments. She also alleged that the condominium association and the property management company were subjecting her to different terms and conditions than other unit owners. In particular, Hemmingway believes respondents discriminated against her when they issued her a warning letter about an insurance violation but did not issue such violations to other unit owners. She claims that she, in fact, had the required insurance, and that the violation was issued to harass and intimidate her. Hemmingway also believes respondents discriminated against her when they denied her request for repairs to her garage. She claims that respondents completed repairs for other unit owners' garages, but they denied her request. In her complaint, Hemmingway stated her overall belief that she was subjected to different terms and conditions than other unit owners because she had exercised her rights and filed housing discrimination complaints against respondents.
¶ 6 The Illinois Department of Human Rights assigned an investigator, Angela Wagner, to look into the claims asserted by Hemmingway. Wagner undertook an investigation and issued a detailed report that stated her findings. Wagner interviewed interested persons and reviewed documentary evidence relating to Hemmingway's claims. Wagner concluded that there was a lack of substantial evidence that Hemmingway was discriminated against, and Wagner recommended that the Department deny Hemmingway's complaint.
¶ 7 In her findings, Wagner pointed out that the respondents' actions in seeking an order of possession for Hemmingway's condominium preceded Hemmingway's filing of discrimination claims against respondents. Wagner found that there was no reason to believe that respondents engaged in a violation of the Civil Rights Act or the Fair Housing Act with regard to seeking an order of possession, and she recommended that the Department deny Hemmingway's charge. As to Hemmingway's claims that she was being treated differently than other unit owners, Wagner found that Hemmingway was not actually assessed a fine for failing to update her insurance coverage and that 20 other unit owners were given the same insurance violation warning as Hemmingway. Wagner also found that Hemmingway's claim about garage repairs was unfounded. Wagner received evidence that the condominium association did initially pay for the repairs on behalf of another unit owner, but that it did so because the repairs needed to be made on an emergency basis. The other unit owner was billed for the repairs and the condominium association was reimbursed. Ultimately, the Department of Human Rights agreed with Wagner's recommendations and dismissed Hemmingway's charge, finding that there was not substantial evidence of retaliation.
¶ 8 Hemmingway filed a request with the Human Rights Commission for review of the dismissal of her complaint. Hemmingway stated that she disagreed with the Department of Human Rights' decision to dismiss her charges of discrimination. She detailed the errors that she believed the Department made when it dismissed her claim, and she set forth the evidence and the reasons she believed that the respondents engaged in a clear case of retaliation against her.
¶ 9 The Department filed a response to Hemmingway's request for review. The Department recommended that the Commission enter an order sustaining the dismissal of Hemmingway's complaint. The Department argued that Hemmingway failed to show that respondents subjected her to discriminatory terms, conditions, privileges or services in retaliation for filing previous charges of discrimination with the Department. The Department reasoned that Hemmingway could not show that there was any nexus between her protected activity of filing prior discrimination claims and the alleged adverse actions taken by respondents. To conclude, the Department argued that Hemmingway did not provide any evidence in her request for review in addition to the evidence she provided to the Department when it made its determination. The Department contended that Hemmingway failed to provide any evidence that she was retaliated against or that she was subjected to discrimination by respondents.
¶ 10 The Human Rights Commission sustained the dismissal of Hemmingway's complaint, but for a different reason. The Commission found that Hemmingway's charge should have been dismissed by the Department for lack of jurisdiction. The Commission found that Hemmingway had alleged the most recent date she was subjected to discrimination was in August 2015, but that she filed her charge in March 2016. The Commission relied upon section 7A-102 of the Illinois Human Rights Act which, at the time of the Commission's decision, required a charge to be filed within 180 days of the alleged Civil Rights violation. See 775 ILCS 5/7A-102(A) (1) (West 2016).The Commission found that the charge Hemmingway filed with the Department was filed more than 180 days after the alleged Civil Rights violation and, thus, the Department lacked jurisdiction to investigate or adjudicate the merits of the charge (citing Pickering v. Illinois Human Rights Commission, 146 Ill.App.3d 340 (1986)). Hemmingway filed an appeal to this court from the Commission's decision.
Since the time of the Commission's decision, the Human Rights Act has been amended to allow complainants 300 days after the date of a Civil Rights violation to file a charge with the Department. See P.A. 100-1066 § 5 (eff. Aug. 24, 2018) (West 2020); 775 ILCS 5/7A-102(A)(1) (West 2020).
¶ 11 Before this court, the Department of Human Rights and the Human Rights Commission conceded that the Commission erred when it ruled that the Department lacked jurisdiction. All parties agreed that we should remand the matter to the Commission to enable it to assess Hemmingway's claims on the merits. We granted the motion for remand.
¶ 12 The case returned to the Human Rights Commission and the Commission reviewed Hemmingway's claims on the merits. The Commission concluded that the Department of Human Rights properly dismissed Hemmingway's charges because no substantial evidence of discrimination existed. Specifically, the Commission found that Hemmingway could not establish a causal connection between the charges of discrimination she filed against respondents and respondents filing a complaint for possession of her condominium for unpaid assessments and fees. As to the other charges made by Hemmingway, the Commission likewise found that she failed to set forth a prima facie case of retaliation. The Commission noted that Hemmingway failed to establish a causal connection between the protected activity and the alleged adverse action. The Commission sustained the dismissal on the basis that the charge lacked substantial evidence. Hemmingway filed a direct appeal to this court from the Commission's decision.
¶ 13 ANALYSIS
¶ 14 On appeal, Hemmingway argues that the Commission erred when it sustained the dismissal of her discrimination complaint by concluding that she did not establish a prima facie case of retaliation. The Human Rights Act secures for individuals the right to be free from unlawful discrimination. 775 ILCS 5/1-102(A) (West 2020). As is potentially relevant in this case, the Human Rights Act prohibits individuals from being discriminated against due to a disability in connection with real estate transactions. Id. The Act also prohibits retaliation against individuals who engage in protected activities, such as filing claims for discrimination. See 71 Ill. Adm. Code § 2300.70(a) (West 2020).
¶ 15 When a charge is filed with the Department of Human Rights, the Department is charged with investigating to "determine whether there is substantial evidence that the alleged civil rights violation has been committed." 775 ILCS 5/7B-102(D)(2) (West 2020). The Act defines "substantial evidence" as "evidence which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance." 775 ILCS 5/7A-102(D)(2) (West 2020); 775 ILCS 7B-102(D)(2)(a) (West 2020). If the Department of Human Rights dismisses a charge, the complainant may seek review from the Human Rights Commission. 775 ILCS 5/7B-102(D)(2)(a) (West 2020). If the Human Rights Commission sustains the dismissal of a complainant's charge, the complainant may file a direct appeal to the appellate court for review. Ill. S.Ct. R. 335 (eff. July 1, 2017).
¶ 16 When we review a decision of the Human Rights Commission wherein it sustains the dismissal of a charge for a lack of substantial evidence, we give great deference to the Commission's findings. Gayle v. Human Rights Commission, 218 Ill.App.3d 109, 115 (1991). "The reviewing court will not disturb the Commission's decision to dismiss a complaint for lack of substantial evidence unless that decision was arbitrary and capricious or an abuse of discretion." Marinelli v. Human Rights Commission, 262 Ill.App.3d 247, 253 (1994). An abuse of discretion occurs when no reasonable person would take the view adopted by the Commission. See MIFAB, Inc. v. Illinois Human Rights Commission, 2020 IL App (1st) 181098, ¶ 69; Centeno v. Illinois Workers' Compensation Commission, 2020 IL App (2d) 180815WC, ¶ 34.
¶ 17 Hemmingway argues that the Commission misconstrued her claim for retaliation. However, her arguments demonstrate that the Commission properly analyzed her claim. Hemmingway details that the case respondents filed against her for possession of her condominium began in August 2013. She stated that she filed her first discrimination charge against respondents in September or October 2014 "during the court case." Both the Department and the Commission explained that the lawsuit for possession of the condominium could not have been retaliation for the discrimination charges because the lawsuit for possession pre-dated any of the alleged discrimination. The adverse action required for a retaliation claim must come in response to the protected activity in order for causation to exist. Welch v. Hoeh, 314 Ill.App.3d 1027, 1035 (2000); Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31. Hemmingway failed to set forth facts under which she could establish the requisite causation to prove out her retaliation claim.
¶ 18 Hemmingway, however, clarifies that her retaliation claim is also based on the warning letter that respondents sent her in January 2015, at a point after she had filed a discrimination charge. She claims that the Commission did not review the warning letter and that the Department did not adequately investigate the letter. However, the letter Hemmingway complains about is simply a warning. It states that a failure to submit the documentation "may result in a $25.00 monthly fine." The letter, which Hemmingway states was sent January 19, 2015, gave residents until February 10, 2015 to take corrective action. The warning letter itself is not an adverse act for purposes of a retaliation claim. Hemmingway does not allege that she was wrongly made to pay any fine or fee discussed in the warning letter. Hemmingway's theory that the letter was sent as intimidation or harassment does not rise above conjecture, especially in light of the evidence that the letter was sent to 20 other unit owners who did not engage in protected activity against respondents. Hemmingway also discusses a $230 charge that was allegedly placed on her account in May 2015. However, she makes clear that the $230 charge was quickly resolved, and she does not allege that she was wrongly made to pay any fine or fee. The Commission did not abuse its discretion in finding that there was a lack of substantial evidence to sustain a charge of discriminatory retaliation.
¶ 19 As for her claims that she was subjected to discriminatory terms and conditions, Hemmingway describes a couple instances in which she believes she was treated differently than her fellow unit owners in response to her protected activity of filing discrimination charges. In particular, Hemmingway cites the event in which respondents refused to pay for repairs to her garage and the event where she was sent a warning letter about providing proof of homeowners' insurance.
¶ 20 Hemmingway's arguments about the repairs to her garage were addressed and rejected by the Department and the Commission. She claims that respondents failed to pay for her requested garage repairs, yet respondents paid for such repairs for other unit owners. She contends that the reason she was treated differently was because she filed discrimination claims against respondents.
¶ 21 Hemmingway argues that the Commission overlooked the evidence that respondents paid to replace 12 overhead garage doors and instead focused on the repair made for one unit owner. Hemmingway points to evidence that she attached and submitted to the Department and the Commission apparently showing that Crawford Estates spent $11, 863 purchasing 12 overhead garage doors. However, the evidence Hemmingway attaches is from 2002. It is too remote in time to support her claim that she was discriminated against in 2015. The evidence also does not show why respondents purchased 12 garage doors nor does it prove that respondents ever paid for an individual unit owner's garage repairs, to the exclusion of her. As the Commission likely realized, the more analogous situation with which to compare Hemmingway's claim is the other single unit owner who recently had garage repair completed. For that unit owner, respondents initially paid for the repair because it was a security risk that someone could break into the condominium, but the unit owner eventually was required to reimburse respondents for the cost of the repairs and did so. The Commission did not abuse its discretion in finding that Hemmingway failed to produce substantial evidence to support her claim.
¶ 22 The second specific instance in which Hemmingway claims she was treated differently than other unit owners was a warning letter she received about an obligation to submit proof of homeowners' insurance by a certain date. She claims that she had an effective homeowners' insurance policy and that she had emailed respondents a week before receiving the letter to inform them that she had the required insurance. Hemmingway posits that the letter "was yet another attempt to punish [her] for complaining [about] discrimination."
¶ 23 The Department and the Commission received evidence that 20 other unit owners who had not engaged in protected activity against respondents received the same letter Hemmingway received about the need to provide proof of insurance coverage. Moreover, the evidence taken in this matter made clear that Hemmingway was not actually assessed any fine or penalty regarding proof of insurance. The Commission found that Hemmingway failed to establish that her protected activity was the impetus for respondents sending the letter: i.e., she failed to demonstrate causation. The Commission did not abuse its discretion in finding that Hemmingway failed to produce substantial evidence to support her claim.
¶ 24 CONCLUSION
¶ 25 Accordingly, we affirm.
¶ 26 Affirmed.