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THIRD DIVISION

December 16, 1998

No. 1--96--3051

JUSTICE BURKE delivered the opinion of the court:

Petitioner Henry Szkoda appeals from an order of respondent Illinois Human Rights Commission (Commission) finding that Szkoda violated section 3--102(b) of the Illinois Human Rights Act (Act) (775 ILCS 5/3--102(B) (West 1996)) by discriminating against respondent Robin Muhammad on the basis of sex, and awarding Muhammad damages, attorney fees and assessing a civil penalty. Szkoda also appeals from the order denying his petition for rehearing of that order. On appeal, Szkoda contends: (1) the Commission's decision was against the manifest weight of the evidence because (a) the evidence did not support the Commission's determination of unlawful discrimination based on either a hostile environment or "a quid pro quo theory" and (b) Muhammad and respondent Illinois Department of Human Rights were collaterally estopped from denying that Muhammad was evicted for nonpayment of rent; (2) the damages awarded to Muhammad and the civil penalty were excessive and unsupported by the evidence; and (3) the Commission erred in awarding Muhammad attorney fees. For the reasons set forth below, we affirm in part, reverse in part and remand.

BACKGROUND

On January 10, 1990, Muhammad filed a charge of unlawful discrimination with the Illinois Department of Human Rights (Department) against Szkoda, her landlord, alleging that he subjected her to "harassment and differential terms and conditions of *** tenancy because of her sex." The Department investigated the charges and, in turn, filed a complaint of a civil rights violation with the Commission, alleging that Szkoda discriminated against Muhammad on the basis of her sex in violation of section 3--102(B) of the Act. Szkoda answered, and the matter proceeded to an administrative hearing.

At the hearing, Muhammad testified that she lived in a garden apartment at 5041 South Dorchester Avenue in Chicago, along with her then-boyfriend Jeffrey Ewing, from June 1989 to February 1990. Szkoda was her landlord. Neither Muhammad nor Ewing had a written lease with Szkoda; instead, they had an oral agreement requiring a rental payment of $300 "[b]y the 5th of each month." According to Muhammad, she was never late with the rent.

In November 1989, Muhammad and Ewing began experiencing problems with the gas furnace in their apartment. Szkoda was informed and repeated attempts were made over the next several weeks to correct the problem; none succeeded. Finally, Szkoda brought Muhammad and Ewing a kerosene heater. Muhammad further testified that, on December 28, 1989, she was home "ill with the flu" when the flame inside the kerosene heater was extinguished. Unsure of how to relight the heater, Muhammad called Szkoda for help. He arrived and promptly relit the heater, after which "he watched it burn" for 30 minutes. Eventually, Muhammad, who was on the telephone with her mother at that time, asked Szkoda if he was finished. When Szkoda said he was, she ended her conversation and walked him to the back door of her apartment. Muhammad was dressed only in her pajamas. As Szkoda passed by her on his way out, "he stopped and grabbed [her] in the back of [her] head and pulled [her] toward him and made [her] kiss him." Muhammad slapped him in the face and pushed him away, and Szkoda then ran out the back door of her apartment. Muhammad further stated that Szkoda was "[v]ery rough," and that she was "[d]isgusted and repulsed." She immediately washed her mouth off, after which she called her mother and then the police, explaining to both what had just occurred. Muhammad filed a battery complaint against Szkoda with the Chicago police department the following day.

Muhammad also testified that she had no further contact with Szkoda until January 3, 1990, when she attempted to pay the rent due for that month. Szkoda refused to accept the rent payment and told her to move. When she asked why, Szkoda replied, "You know why." Ewing also attempted to pay January's rent, but he too was refused. Shortly thereafter, Muhammad was served with a five-day eviction notice; she was evicted on February 4, 1990.

Muhammad further stated that following the December 28, 1989, incident, she suffered from insomnia, anxiety and stress, and that she remains "severely paranoid and nervous" whenever anyone enters her apartment to make repairs. She also suffered from "severe nightmares" and had been prescribed medication to counter the effects of her insomnia and anxiety. Muhammad denied ever threatening Szkoda with bodily harm if he refused to withdraw the five-day notice. Muhammad also denied receiving any subsequent notices of eviction proceedings.

Alice Thomas, also one of Szkoda's former tenants, testified that she lived in his apartment building from September 1987 to July 1989. In September 1987, Szkoda propositioned her while repairing a stove in her apartment. According to Thomas, Szkoda held her and tried to kiss her, and asked her if she wanted to "push," which Thomas understood as "have sex." Thomas also testified to two other similar incidents in which Szkoda touched her breasts and asked if she wanted to "push." Thomas spurned each of Szkoda's advances. Thomas was also served with a five-day notice. She, however, successfully challenged the eviction proceedings. Nevertheless, Thomas voluntarily left Szkoda's building following those proceedings.

Carol Bailey, who was a current tenant in Szkoda's apartment building, testified that she had been a tenant since 1988. In December 1988, she asked Szkoda to repair a light switch in her kitchen while she was away at work. When she returned that evening, she found flowers on her kitchen table from Szkoda, who moments later knocked on her apartment door. Szkoda stated that he was looking for his jacket which he had left in Bailey's apartment earlier that day. Bailey gave Szkoda his jacket and the flowers, telling him she could not accept them. Szkoda apologized, saying "Me sorry. Me sorry. I thought you be me girlfriend." In February 1989, Szkoda visited Bailey's apartment to repair her toilet. When he finished, he called her into the bathroom, pointed to a piece of her lingerie and said, "Me like. Me like." Bailey said nothing in response, and left the bathroom. Bailey further testified that she was "shocked" by Szkoda's conduct; it made her "extremely uncomfortable," "scared" and "fearful." Bailey also stated that no other such conduct occurred thereafter.

Szkoda testified that on December 28, 1989, he was called by Muhammad to her apartment. When he arrived, she let him enter and directed him to the kerosene heater. He relit the heater and then watched to see if it would extinguish and relight itself as it should. He waited for approximately 30 minutes, and determined that the heater was functioning properly. He told Muhammad this, and then left. Szkoda denied any physical contact with Muhammad and, in fact, testified that it was he who had spurned her advances.

Szkoda further testified that Muhammad's rent was due on or before the first of each month, and that she was always late. Nevertheless, he routinely excused her tardiness and withdrew the respective five-day notices when she "came *** crying, asking to stay in the apartment." According to Szkoda, January was no exception; Muhammad was again late with her rent. This time, however, Muhammad did not plead for leniency. Rather, Szkoda stated that when she approached him, she kept her left hand behind her back and told him, "You will be dead if you don't take this notice back." Szkoda also stated that Ewing assaulted him a few days later. No rental payment was ever made, and Szkoda refused to withdraw the five-day notice. Muhammad was evicted the following month. Szkoda further stated that Thomas was similarly delinquent in her rent, and that she was also evicted. Szkoda denied ever having any physical contact with Thomas or ever trying to kiss or touch her. Szkoda also specifically denied any other reason for Muhammad's eviction other than her failure to pay rent.

After the parties filed post-hearing briefs, the administrative law judge issued her recommended liability determination. She made the following findings: on December 28, 1989, Muhammad asked Szkoda to repair the malfunctioning kerosene heater in her apartment; Szkoda made the necessary repairs; that as Szkoda was leaving Muhammad's apartment, he "stopped, roughly grabbed [Muhammad] by the back of her head, pulled her toward him and made her kiss him on the mouth"; Muhammad slapped him and pushed him away; Muhammad subsequently filed a complaint with the Chicago police department alleging that Szkoda grabbed her and kissed her without consent; on January 3, 1990, Muhammad attempted to pay her rent for that month, but was refused by Szkoda, who stated, "No, you keep it and move"; when Muhammad asked the reason, Szkoda replied, "You know why"; two days later, Muhammad was served with a five-day eviction notice; and Muhammad was evicted from Szkoda's apartment building the following month. She also found that Szkoda had previously made unwelcome sexual advances to other women in his apartment building, but had "never attempted to touch or kiss [any of his] male tenants."

The administrative law judge concluded that Szkoda had discriminated against Muhammad "by subjecting her to unequal terms and conditions of her tenancy, and harassment because of her sex, in violation of [s]ection 3-102(B) of the Act." She recommended that the Commission adopt this finding and award Muhammad $13,060 for damages suffered as a result of Szkoda's unlawful conduct, assess a $10,000 civil penalty against Szkoda "to vindicate the public interest," and that Szkoda pay Muhammad's attorney fees and costs.

Prior to issuing a final decision, the administrative law judge, who presided over the public hearing of Muhammad's case, left the Commission, and another administrative law judge subsequently rendered the final "Recommended Order and Decision" in the case, which included his ruling on a petition for attorney fees filed by Muhammad. In Muhammad's petition for attorney fees, she requested a total of $13,150.45, or treble the amount actually incurred. Szkoda objected. The administrative law judge found no justification for such trebling, and recommended to the Commission that Muhammad only receive $4,368.75.

Szkoda filed exceptions to both administrative law judges' decisions. In his post-hearing brief, Szkoda argued that Muhammad failed to prove that his reason for evicting her was pretextual and that Muhammad was collaterally estopped from asserting that her eviction was for reasons other than her failure to pay rent. Szkoda also argued that the damages and attorney fees awarded Muhammad should be reduced and that the assessment of a civil penalty was unreasonable.

On June 21, 1996, the Commission adopted the findings and decision of the administrative law judges and entered its "Order and Decision," finding that Szkoda discriminated against Muhammad on the basis of her sex in violation of section 3--102(B) of the Act. More specifically, Szkoda was found to have sexually harassed Muhammad by conditioning her tenancy upon acquiescence to his sexual requests. The Commission awarded Muhammad $7,060 in economic damages, $6,000 for "humiliation, embarrassment and mental distress" and $4,368.75 in attorney fees, and also assessed Szkoda a $10,000 civil penalty. Thereafter, Szkoda petitioned for direct review of the Commission's decision to this court.

MANIFEST WEIGHT OF THE EVIDENCE

Szkoda first contends that the Commission's decision was against the manifest weight of the evidence in that neither Muhammad nor the Department proved, by a preponderance of the evidence, that he "sexually harassed Muhammad under either a hostile environment or quid pro quo theory."

It is well settled that the Commission's findings and conclusions on questions of fact are deemed prima facie true and correct (735 ILCS 5/3--110 (West 1996)), and "shall be sustained unless the [reviewing] court determines that such findings are contrary to the manifest weight of the evidence." 775 ILCS 5/8--111(A)(2)(West 1996). A decision of an administrative agency is contrary to the manifest weight of the evidence if no rational trier of fact, after viewing all of the evidence in a light most favorable to the agency, could have found as that agency did. Chief Judge of the Circuit Court of Cook County v. American Federation of State, County and Municipal Employees, Council 31, AFL-CIO, 153 Ill. 2d 508, 514, 607 N.E.2d 182 (1992).

Section 1--102(A) of the Act declares Illinois to be against unlawful discrimination, including discrimination based upon sex in connection with real estate transactions. 775 ILCS 5/1--102(A) (West 1996). Section 3--102(B) of the Act further delineates the broad prohibitions of section 1--102(A), specifically providing:

"It is a civil rights violation for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesman, because of unlawful discrimination or familial status to *** [a]lter the terms, conditions or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith ***." (Emphasis added.) 775 ILCS 5/3--102(B)(West 1996).

Sexual harassment is a form of unlawful discrimination prohibited by section 3--102(B) of the Act. See Old Ben Coal Co. v. Human Rights Comm'n, 150 Ill. App. 3d 304, 309, 501 N.E.2d 920 (1986). However, no Illinois case has considered what constitutes a sexual harassment violation under section 3--102(B). Nor has such harassment been otherwise statutorily defined in section 3--102(B). Compare 775 ILCS 5/2--101(E)(West 1996) with 775 ILCS 5/3--101 (West 1996). Section 3--102(B) closely parallels section 3604(b) of the Fair Housing Amendments Act of 1988, which forbids discrimination against "any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin." 42 U.S.C.