{ "id": 79410, "name": "MICHELLE GRAVES, Petitioner, v. CHIEF LEGAL COUNSEL OF THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents", "name_abbreviation": "Graves v. Chief Legal Counsel of the Department of Human Rights", "decision_date": "2002-01-16", "docket_number": "No. 4-00-0925", "first_page": "293", "last_page": "299", "citations": [ { "type": "official", "cite": "327 Ill. App. 3d 293" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "258 F.3d 696", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11082832 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "703" }, { "page": "702-03" } ], "opinion_index": 0, "case_paths": [ "/f3d/258/0696-01" ] }, { "cite": "223 F.3d 434", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11240050 ], "year": 2000, "pin_cites": [ { "page": "435-36" } ], "opinion_index": 0, "case_paths": [ "/f3d/223/0434-01" ] }, { "cite": "78 F.3d 1164", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 94642 ], "year": 1996, "pin_cites": [ { "page": "1167", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/78/1164-01" ] }, { "cite": "176 F.3d 390", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11609038 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "396" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/f3d/176/0390-01" ] }, { "cite": "42 F.3d 439", "category": "reporters:federal", "reporter": "F.3d", "year": 1994, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "511 N.E.2d 1375", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "1379" } ], "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3578792 ], "year": 1987, "pin_cites": [ { "page": "1017" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/1011-01" ] }, { "cite": "467 N.E.2d 943", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "946-47" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597059 ], "year": 1984, "pin_cites": [ { "page": "670-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0666-01" ] }, { "cite": "625 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "218-19" } ], "opinion_index": 0 }, { "cite": "252 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2968187 ], "year": 1993, "pin_cites": [ { "page": "970-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0966-01" ] }, { "cite": "42 U.S.C. \u00a7 2000", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(e) et seq." } ], "opinion_index": 0 }, { "cite": "587 N.E.2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "642 N.E.2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "755" } ], "opinion_index": 0 }, { "cite": "727 N.E.2d 1003", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1010", "parenthetical": "applying manifest weight standard to factual findings in a suppression hearing but deciding de novo the ultimate question of whether the question was voluntary" } ], "opinion_index": 0 }, { "cite": "191 Ill. 2d 37", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229707 ], "year": 2000, "pin_cites": [ { "page": "50", "parenthetical": "applying manifest weight standard to factual findings in a suppression hearing but deciding de novo the ultimate question of whether the question was voluntary" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0037-01" ] }, { "cite": "743 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "562", "parenthetical": "when reviewing the propriety of the trial court's determination of a speedy-trial claim, factual determinations are reviewed on a manifest weight standard and thereafter the court considers de novo the application of the balancing tests" } ], "opinion_index": 0 }, { "cite": "195 Ill. 2d 42", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725333 ], "year": 2001, "pin_cites": [ { "page": "51-52", "parenthetical": "when reviewing the propriety of the trial court's determination of a speedy-trial claim, factual determinations are reviewed on a manifest weight standard and thereafter the court considers de novo the application of the balancing tests" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0042-01" ] }, { "cite": "692 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821407 ], "year": 1998, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0191-01" ] }, { "cite": "700 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "226" }, { "page": "225" }, { "page": "225" } ], "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073587 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "704" }, { "page": "702-03" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0695-01" ] } ], "analysis": { "cardinality": 717, "char_count": 13888, "ocr_confidence": 0.769, "pagerank": { "raw": 1.7075301260445278e-07, "percentile": 0.7019019255562776 }, "sha256": "dfa5f5a2bdaa86a92846888e129dd0f269cca6d8fb30f4bdbd0b5d45212c694e", "simhash": "1:aab93cd66a0cf41a", "word_count": 2234 }, "last_updated": "2023-07-14T20:55:57.852492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHELLE GRAVES, Petitioner, v. CHIEF LEGAL COUNSEL OF THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents." ], "opinions": [ { "text": "PRESIDING JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nIn this judicial review proceeding pursuant to section 8 \u2014 111(A)(1) of the Illinois Human Rights Act (Act) (775 ILCS 5/8 \u2014 111(A)(1) (West 2000)) and Supreme Court Rule 335 (155 Ill. 2d R. 335), petitioner Michelle Graves seeks judicial review of a portion of the decision of the chief legal counsel of the Illinois Department of Human Rights (Department). The chief legal counsel determined that the Department did not have jurisdiction of sexual harassment claims for actions occurring more than 180 days prior to petitioner filing charges against respondent Larry Lancaster. Petitioner does not seek review of similar determinations by the chief legal counsel concerning the limitations period on claims against respondent Shop \u2019N Save Warehouse Foods, Inc. (Shop \u2019N Save), the employer of petitioner and Lancaster. Shop \u2019N Save has not filed a written appearance and is not a party in this appeal. 155 Ill. 2d R. 335(c). Nor does petitioner seek review of the dismissal of a claim against Lancaster for retaliation that the chief legal counsel upheld because Lancaster was not her employer. Finally, not at issue in this case is the chief legal counsel\u2019s findings of substantial evidence with regard to the petitioner\u2019s claims against Lancaster for actions occurring within 180 days of the filing of the charges. Petitioner challenges the propriety of the chief legal counsel\u2019s findings of lack of subject-matter jurisdiction of claims arising from the actions of Lancaster that occurred more than 180 days prior to filing the charges. We affirm.\nThe parties suggest that the proper standard of review is whether the chief legal counsel\u2019s decision is \u201cclearly erroneous.\u201d We disagree. The chief legal counsel\u2019s decision to sustain a dismissal of a human rights violation charge will not be disturbed unless it is arbitrary, capricious, or an abuse of discretion. Webb v. Lustig, 298 Ill. App. 3d 695, 704, 700 N.E.2d 220, 226 (1998). The chief legal counsel\u2019s determination is not a quasi-judicial decision. In Webb v. Lustig, this comet discussed at length the statutory procedure for pursuing a claim of discrimination. Webb, 298 Ill. App. 3d at 702-03, 700 N.E.2d at 225. This court noted that, before the Department issues a formal complaint, the proceedings are investigatory, not adjudicatory, and the dismissal of the charge by the Department occurs at the investigatory stage, including the chief legal counsel\u2019s determination of whether to uphold the dismissal. Webb, 298 Ill. App. 3d at 703, 700 N.E.2d at 225. The Department and chief legal counsel\u2019s determinations are prosecutorial, i.e., whether to prosecute a claim, and the standard applicable to reviewing decisions on mixed questions of law and fact in judicial decisions simply does not apply here.\nWhere an administrative agency\u2019s decision involves a mixed question of law and fact, the \u201cclearly erroneous\u201d standard may no longer be the appropriate standard to apply even though that was the standard that was applied by the supreme court in City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998). The supreme court in cases since Belvidere has broken the question down into its fundamental parts, reviewing questions of fact at the appropriate standard, such as manifest weight, and questions of law de novo. See People v. Crane, 195 Ill. 2d 42, 51-52, 743 N.E.2d 555, 562 (2001) (when reviewing the propriety of the trial court\u2019s determination of a speedy-trial claim, factual determinations are reviewed on a manifest weight standard and thereafter the court considers de novo the application of the balancing tests); In re G.O., 191 Ill. 2d 37, 50, 727 N.E.2d 1003, 1010 (2000) (applying manifest weight standard to factual findings in a suppression hearing but deciding de novo the ultimate question of whether the question was voluntary).\nSection 7A \u2014 102(A)(1) of the Act provides that, \u201c[wjithin 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department.\u201d 775 ILCS 5/7A \u2014 102(A)(1) (West 2000). The claim must be in such detail as to substantially apprise the concerned parties of the time, place, and facts surrounding the alleged violation. 775 ILCS 5/7A \u2014 102(A)(2) (West 2000). The 180-day requirement in section 7A \u2014 102(A)(1) is mandatory (Lipsey v. Human Rights Comm\u2019n, 267 111. App. 3d 980, 992, 642 N.E.2d 746, 755 (1994)), and compliance is jurisdictional {Faulkner-Ring v. Department of Human Rights, 225 111. App. 3d 784, 792, 587 N.E.2d 599, 604 (1992)).\nPetitioner made six allegations of sexual harassment, three against Lancaster and three against Shop \u2019N Save. She also made two allegations of retaliation, one against each respondent. The Department dismissed four of the sexual harassment claims for lack of jurisdiction and the other two for lack of substantial evidence. The Department also dismissed the retaliation claim against Shop \u2019N Save for lack of substantial evidence and the retaliation claim against Lancaster for lack of jurisdiction. Petitioner sought review by the chief legal counsel, challenging only the dismissal of the claims against Lancaster. The chief legal counsel sustained the dismissal of two claims of sexual harassment and the claim for retaliation against Lancaster on the ground of lack of jurisdiction but vacated the dismissal of the third claim of sexual harassment, finding there was substantial evidence. In this appeal, petitioner does not challenge the propriety of the chief legal counsel\u2019s ruling that the retaliation claim against Lancaster could not be maintained because he was not an \u201cemployer\u201d within the meaning of the statute.\nThe chief legal counsel found that claimant filed her charge on June 10, 1999, and amended it on September 22, 1999. The Department broke down the allegations by grouping the first set of allegations of sexual harassment against Lancaster to have occurred between June 1997 and August 13, 1998, more than 300 days prior to the filing of the charge; the second group of allegations of sexual harassment against Lancaster on August 14, 1998, to December 11, 1998, more than 180 days prior to the filing of the charge but less than 300 days prior to the filing of the charge; and the third group from and after December 12, 1998, within 180 days of the filing of the charge. The petitioner\u2019s charge alleged that the sexual harassment consisted of sexual comments, sexual innuendos, requests for sex, and touching of her body, specifically her breasts. The importance of the 300-day period apparently refers to the jurisdiction of the Equal Employment Opportunity Commission under federal law. See 42 U.S.C. \u00a7 2000e \u2014 5(e)(1) (1994). In upholding the dismissals, the chief legal counsel relied solely on the 180-day condition precedent contained in section 7A \u2014 102(A)(1) of the Act.\nIn this appeal, petitioner argues that, although some of the acts of sexual harassment may have occurred more than 180 days prior to the filing of the charge, the sexual harassment was continuous and the \u201ccontinuing violation doctrine\u201d should be employed to find jurisdiction of all the alleged incidents.\nLancaster argues that this issue is waived. He fails to discuss how waiver applies at the investigatory stage of a discrimination proceeding. None of the cases he cites on the issue of waiver involve a proceeding under the Act. The petition for review by the chief legal counsel does not employ the term \u201ccontinuing violation doctrine.\u201d That petition does nevertheless make an argument of continuing sexual harassment activity. Waiver did not occur in this case.\nNone of the parties dispute the applicability of the \u201ccontinuing violation doctrine,\u201d and they recognize that Illinois courts have looked to federal decisions involving Title VII of the Civil Rights Act of 1964 (42 U.S.C. \u00a7 2000(e) et seq. (1994)) in evaluating the merits of discrimination claims under the Act. Illinois courts have recognized the existence of the doctrine (Trembczynski v. Human Rights Comm\u2019n, 252 Ill. App. 3d 966, 970-71, 625 N.E.2d 215, 218-19 (1993); Lee v. Hu man Rights Comm\u2019n, 126 Ill. App. 3d 666, 670-71, 467 N.E.2d 943, 946-47 (1984)), and it has been applied at the administrative level (see McCullar v. Human Rights Comm\u2019n, 158 Ill. App. 3d 1011, 1017, 511 N.E.2d 1375, 1379 (1987)).\nThe Seventh Circuit Court of Appeals has recently discussed the continuing violation doctrine on a number of occasions.\nIn Hardin v. S.C. Johnson & Son, Inc., 167 E3d 340, 344 (7th Cir. 1999), the court stated:\n\u201c[T]he continuing violation doctrine has delineated limits. Where a pattern of harassment spreads out over years, and it is evident long before the plaintiff sues that she was a victim of actionable harassment, she \u2018cannot reach back and base her suit on conduct that occurred outside the statute of limitations.\u2019 Id. at 1167; Doe v. R.R. Donnelley & Sons., Co., 42 F.3d 439, 446 (7th Cir. 1994). While a single comment may not be harassment, if the comment is repeated over a period of years, its cumulative effect likely precludes invocation of the doctrine. See Galloway, 78 F.3d at 1167.\u201d\nIn Filipovic v. K&R Express System, Inc., 176 F.3d 390, 396 (7th Cir. 1999), the court stated that the party alleging the discrimination has the burden of showing that the harassing actions outside the statutorily prescribed period were sufficiently closely related to the harassing actions occurring within the statutory time frame to be considered an ongoing violation.\n\u201cCourts will consider three factors in making this determination: (1) whether the acts involve the same subject matter; (2) the frequency at which they occur; and (3) the degree of permanence of the alleged acts of discrimination, \u2018which should trigger an employee\u2019s awareness of and duty to assert his or her rights.\u2019 Id. At 565. The continuing violation doctrine is applicable only if \u2018it would have been unreasonable to expect the plaintiff to sue before the statute ran on the conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations.\u2019 Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996) (citation omitted).\u201d Filipovic, 176 F.3d at 396.\nIn DeClue v. Central Illinois Light Co., 223 F.3d 434, 435-36 (7th Cir. 2000), the continuing violation doctrine was not applied because the incidents upon which the plaintiff relied, including repeated shoving, pushing, hitting, sexually offensive touching, exposing her to pornographic magazines, and failing to provide her with rest room facilities, all occurred outside the statutorily required time frame, and nothing that happened within the statutory time frame added materially to the conditions about which she complained. It was just more of the same. The harassing conduct that occurred prior to the statutory time frame was sufficient to place her on notice that she had a substantial claim so that the continuing violation doctrine did not apply. See Shanoff v. Illinois Department of Human Services, 258 F.3d 696, 703 (7th Cir. 2001). Shanoff also rejected an estoppel argument based on a contention that threats by the harassing employee prevented the plaintiff from filing a claim earlier. Shanoff, 258 F.3d at 702-03.\nThe question of whether the continuing violation doctrine applies generally to claims of discrimination under the Act is a question of law. The chief legal counsel\u2019s decision does not reject or discuss the continuing violation doctrine. Petitioner does not expressly contend that the chief legal counsel failed to apply a correct legal standard.\nAttached as an exhibit to the petition for review by the chief legal counsel was an affidavit of petitioner. In paragraph 4 of that affidavit, she details multiple harassing actions of Lancaster that occurred between June 1997 and April 1999. For the most part, petitioner does not identify the specific time frame in which those events occurred. Paragraph 5 of the affidavit states, \u201cConduct of this type described in the preceding paragraph occurred generally on a daily basis between June of 1997 and April 3, 1999.\u201d\nMany of the actions described in petitioner\u2019s affidavit are acts of sexual harassment that would independently support a charge under the Act and would have placed petitioner on notice that she had an actionable claim. Petitioner cannot avoid the application of the statutory condition precedent by simply failing to inform the Department and chief legal counsel of the precise dates on which the incidents occurred. The facts of this case fail to invoke the continuing violation doctrine. The chief legal counsel\u2019s decision was not arbitrary, capricious, or an abuse of discretion.\nThe portion of the decision of the chief legal counsel sustaining the dismissal of stale claims for lack of subject-matter jurisdiction is affirmed.\nAffirmed.\nKNECHT and STEIGMANN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McCULLOUGH" } ], "attorneys": [ "James P Baker (argued), of Law Offices of James E Baker, of Springfield, for petitioner.", "Mark S. Atterberry (argued), of Holley & Rosen, of Springfield, for respondent Larry Lancaster.", "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Mary Patricia Kerns (argued), Assistant Attorney General, of counsel), for respondents Chief Legal Counsel and Department of Human Rights.", "William M. Lawson, of McMahon, Berger, Hanna, Linihan, Cody & McCarthy, of St. Louis, Missouri, for respondent Shop \u2019N Save Warehouse Foods, Inc." ], "corrections": "", "head_matter": "MICHELLE GRAVES, Petitioner, v. CHIEF LEGAL COUNSEL OF THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents.\nFourth District\nNo. 4-00-0925\nArgued October 23, 2001.\nOpinion filed January 16, 2002.\nJames P Baker (argued), of Law Offices of James E Baker, of Springfield, for petitioner.\nMark S. Atterberry (argued), of Holley & Rosen, of Springfield, for respondent Larry Lancaster.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Mary Patricia Kerns (argued), Assistant Attorney General, of counsel), for respondents Chief Legal Counsel and Department of Human Rights.\nWilliam M. Lawson, of McMahon, Berger, Hanna, Linihan, Cody & McCarthy, of St. Louis, Missouri, for respondent Shop \u2019N Save Warehouse Foods, Inc." }, "file_name": "0293-01", "first_page_order": 311, "last_page_order": 317 }