{ "id": 45699, "name": "JACQUELINE A. BARNARD, Plaintiff-Appellant, v. THE CITY OF CHICAGO HEIGHTS et al., Defendants-Appellees", "name_abbreviation": "Barnard v. City of Chicago Heights", "decision_date": "1998-03-04", "docket_number": "No. 1\u201497\u20140120", "first_page": "514", "last_page": "522", "citations": [ { "type": "official", "cite": "295 Ill. App. 3d 514" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "687 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317116 ], "weight": 9, "year": 1997, "pin_cites": [ { "page": "514-15" }, { "page": "513" }, { "page": "517" }, { "page": "517" }, { "page": "517" }, { "page": "518" }, { "page": "518" }, { "page": "518-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0511-01" ] }, { "cite": "435 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3028171 ], "year": 1982, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0268-01" ] }, { "cite": "569 N.E.2d 579", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2535358 ], "year": 1991, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0639-01" ] }, { "cite": "669 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 126", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182732 ], "year": 1996, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0126-01" ] }, { "cite": "668 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 576", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159516 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "586" }, { "page": "585-86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0576-01" ] }, { "cite": "639 N.E.2d 1273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "159 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781325 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "515-16" }, { "page": "515-16" }, { "page": "516-18" }, { "page": "516-18" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0507-01" ] } ], "analysis": { "cardinality": 895, "char_count": 21635, "ocr_confidence": 0.768, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3377169865887934 }, "sha256": "62c3bf609c10082e346adc3e5283db0c62f062d82570be7c0295ed77ece4385f", "simhash": "1:af7338d6876a84e4", "word_count": 3427 }, "last_updated": "2023-07-14T18:51:11.490834+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JACQUELINE A. BARNARD, Plaintiff-Appellant, v. THE CITY OF CHICAGO HEIGHTS et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nPlaintiff Jacqueline Barnard appeals from three orders of the circuit court granting summary judgment in plaintiff\u2019s common law tort action to defendant City of Chicago Heights, plaintiff\u2019s employer, and defendants Douglas Barger and Salvatore Vicari (collectively, defendants), granting summary judgment to defendant Samuel Pavesich (Pavesich) and granting defendants\u2019 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 \u2014 101 et seq. (West 1994)) because plaintiff\u2019s 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 \u201cthe evidence in the record and the reasonable inferences to be drawn from that evidence\u201d support plaintiff\u2019s negligence and intentional tort claims against defendants, and defendants\u2019 affirmative defenses or \u201cother affirmative matter\u201d failed to establish that they were entitled to judgment as a matter of law; and (3) the trial court erred in granting defendants\u2019 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.\nOn 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\u2019s statements that he was having \u201cwet dreams\u201d about plaintiff and imagining how plaintiff would \u201cfeel inside.\u201d\nOn June 12, 1990, at approximately 1:30 a.m., plaintiff was off the Department\u2019s 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 \u201clike on top of [her].\u201d 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.\nPlaintiff 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\u2019s assignment inside the police station as watch commander was subsequently changed because Chief Barger wanted Pavesich \u201coutside as much as possible\u201d in order to \u201ckeep him outside and away from [plaintiff).\u201d\nIn 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 \u201cunbecoming conduct,\u201d \u201cimmoral conduct,\u201d and \u201cabuse of position\u201d 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.\nIn 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 \u201csevere emotional trauma, including a fear of going to work.\u201d Plaintiff did not return to work following the end of her leave and subsequently submitted a formal letter of resignation on January 29, 1991.\nOn June 11, 1991, plaintiff filed a complaint against the same defendants in the case at bar, in the United States 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 \u201csexual harassment.\u201d Counts I through IV of plaintiff\u2019s complaint were brought pursuant to title VII of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000e \u2014 2 (1988)); counts I and II alleged equal protection claims, and counts III and IV alleged due process viola-tians. 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 plaintiffs complaint on October 20, 1992.\nOn 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.\nOn 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\u2019s jurisdiction; (2) plaintiff\u2019s claims were barred under the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 1994)) because they occurred during the course of plaintiffs and Pavesich\u2019s mutual employment; (3) defendants were not vicariously liable for Pavesich\u2019s 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\u2019 negligence or willful and wanton conduct; (7) plaintiff failed to plead facts that defendants\u2019 retention of Pavesich proximately caused her injury; and (8) plaintiffs constructive discharge claim was \u201cinapplicable to the facts of this case.\u201d 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\u2019s complaint because the facts alleged fit the definition of a \u201ccivil rights violation\u201d under the Human Rights Act, notwithstanding that plaintiff \u201cattempt [ed] to frame her claims against *** [her] employer in terms of recognized common law tort claims.\u201d In her response to defendants\u2019 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 \u201cviolent and brutal.\u201d Plaintiff also argued that our court in Maksimovic v. Tsogalis, 282 Ill. App. 3d 576, 668 N.E.2d 166 (1996), \u201cmisread\u201d Geise to hold that \u201csexual harassment\u201d under the Human Rights Act \u201cinclude [s] any physical assault and battery,\u201d and that \u201cevery claim involving physical touching\u201d should be barred under the Human Rights Act. (Emphasis in original.) On October 17, the trial court granted defendants\u2019 motion for summary judgment on all counts against them based on its determination that \u201cthe exclusivity of the remedies of the Illinois Human Rights Act\u201d barred it from exercising jurisdiction.\nPavesich also filed a motion for summary judgment, arguing that plaintiffs common law tort claims against him were barred by the Human Rights Act. On December 5, 1996, the trial court granted Pavesich\u2019s motion based upon the exclusive remedy provision of the Human Rights Act. This appeal followed.\nPlaintiff 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 \u2014 101 et seq. (West 1994)), arguing that Pavesich\u2019s conduct toward plaintiff on June 12, 1990, constituted a \u201cviolent, physical attack\u201d that was \u201cpurely and simply a physical assault and battery\u201d and not a sexually harassing type of touching encompassed within the definition of \u201csexual harassment\u201d under the Act. Plaintiff maintains that her negligence and intentional tort claims against defendants and Pavesich based on Pavesich\u2019s 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\u2019s acts cannot be defined as sexual harassment, \u201cPavesich is liable for the assault and battery as the perpetrator and the City defendants are liable as the facilitators.\u201d\nDefendants and Pavesich contend that the trial court properly granted summary judgment to them based on the exclusive remedy provision of the Act because plaintiffs claims against defendants are based upon alleged occurrences that 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 \u201cthe Act constitutes the sole remedy for all sexual harassment in the employment context,\u201d including \u201cminor\u201d incidents of sexual harassment. (Emphasis in original.) Therefore, defendants and Pavesich argue that because plaintiff\u2019s 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, plaintiffs common law tort claims are barred by the Act.\nIt is well settled that appellate review of an order granting summary judgment is de nova. 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).\nThe Act provides that no Illinois court \u201cshall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in [the] Act.\u201d 775 ILCS 5/8 \u2014 111(0 (West 1994). Section 2 \u2014 102(D) of the Act states that it is a \u201ccivil rights violation\u201d for \u201cany employer, employee, agent of any employer, *** to engage in sexual harassment.\u201d 775 ILCS 5/2 \u2014 102(D) (West 1994). The Act defines \u201csexual harassment\u201d as\n\u201cany 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\u2019s work performance or creating an intimidating, hostile or offensive working environment.\u201d 775 ILCS 5/2 \u2014 101(E) (West 1994).\nIf 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\u2019s common law tort claims will be barred by the exclusive remedy provisions of the Act because the claims will be \u201cconstrued as seeking redress for a \u2018civil rights violation\u2019 within the meaning of [the Act].\u201d Geise, 159 Ill. 2d at 515-16.\nWe 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 plaintiffs \u201ctort claims were in the nature of sexual harassment.\u201d 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 plaintiffs claims of intentional torts related to sexual harassment, stating that \u201c[b]ecause the fundamental nature of plaintiffs 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.\u201d 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.\nOur supreme court specifically allowed the Maksimovic plaintiffs petition for leave to appeal for the purpose of clarifying its holding in Geise, i.e., \u201cthat where [a plaintiffs] tort claim is \u2018inextricably linked\u2019 to claims of sexual harassment such that there is \u2018no independent basis for imposing liability\u2019 apart from the Act itself\u2019 (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 plaintiffs 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. \u00a7 2000e \u2014 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 pied as \u201csexual harassment\u201d in the district court complaint did not constitute a claim for \u201csexual harassment\u201d under the Act. Geise, 159 Ill. 2d at 517.\nIn reversing this court, our supreme court in Maksimovic explained that \u201c[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.\u201d (Emphasis in original.) Maksimovic, 177 Ill. 2d at 517. The Maksimovic court determined that the plaintiffs claims of assault, battery and false imprisonment \u201cclearly,\u201d under the Geise standard, were not inextricably linked to her claim of sexual harassment; rather, \u201c[t]he sexual harassment aspect of [the plaintiffs] case is merely incidental to what are otherwise ordinary common law tort claims\u201d \u201cwhich exist wholly separate and apart from a cause of action for sexual harassment under the Act.\u201d 177 Ill. 2d at 517. The Maksimovic court concluded that \u201c[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.\u201d 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 \u201c \u2018civil rights violations\u2019 \u201d related to sexual harassment in the workplace, the Act \u201cmakes no mention of common law actions,\u201d and an intent by the legislature \u201cto abolish all common law torts factually related to sexual harassment is not apparent from a plain reading of the statute.\u201d Maksimovic, 177 Ill. 2d at 518.\nThe 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 \u201cwas intended to promote the efficient and uniform processing of state civil rights claims\u201d and \u201c[a] civil rights action under the Act is designed, in part, to eradicate sexual harassment in the workplace,\u201d whereas assault, battery and false imprisonment are \u201clong-recognized tort actions\u201d for the redress of bodily integrity and personal liberty violations, the adjudication of which \u201chas traditionally been within the province of our courts.\u201d Maksimovic, 177 Ill. 2d at 518. Accordingly, the Maksimovic court concluded that the circuit court is not precluded from \u201cexercising jurisdiction over all tort claims related to incidents of sexual harassment\u201d; 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.\nIn 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 plaintiffs common law tort claims because of \u201cthe exclusivity of the remedies of the *** Act.\u201d However, it is unclear from the record whether the trial court based its ruling solely on this court\u2019s 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 plaintiffs 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\u2019 and Pavesich\u2019s motions for summary judgment in light of our supreme court\u2019s decision in Maksimovic. Because we are remanding this case, we need not address plaintiffs remaining arguments.\nRemanded, with directions.\nCERDA and WOLFSON, JJ., concur.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Hefter & Radke, of Chicago (Arthur F. Radke and Matthew S. Elvin, of counsel), and Berlin & Braude, of Skokie (Michael R. Goldfein, of counsel), for appellant.", "Canna & Canna, Ltd., of Orland Park (John F. Canna, Thomas J. Canna, and Dawn M. Hambly, of counsel), for appellee Samuel Pavesich.", "Scariano, Kula, Ellch & Himes, Chartered, of Chicago Heights (John M. Izzo and Christopher L. Petrarca, of counsel), for other appellees." ], "corrections": "", "head_matter": "JACQUELINE A. BARNARD, Plaintiff-Appellant, v. THE CITY OF CHICAGO HEIGHTS et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 1\u201497\u20140120\nOpinion filed March 4, 1998.\nHefter & Radke, of Chicago (Arthur F. Radke and Matthew S. Elvin, of counsel), and Berlin & Braude, of Skokie (Michael R. Goldfein, of counsel), for appellant.\nCanna & Canna, Ltd., of Orland Park (John F. Canna, Thomas J. Canna, and Dawn M. Hambly, of counsel), for appellee Samuel Pavesich.\nScariano, Kula, Ellch & Himes, Chartered, of Chicago Heights (John M. Izzo and Christopher L. Petrarca, of counsel), for other appellees." }, "file_name": "0514-01", "first_page_order": 534, "last_page_order": 542 }