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Jenkins v. Lustig

Case Date: 12/14/2004
Court: 3rd District Appellate
Docket No: 3-03-0012 Rel


No. 3-03-0012

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

DENA L. JENKINS,

          Petitioner-Appellant,

          v.

JACQUELINE S. LUSTIG, CHIEF
LEGAL COUNSEL OF THE DEPARTMENT
OF HUMAN RIGHTS; THE DEPARTMENT
OF HUMAN RIGHTS; SCHUSTER MEDIA
GROUP, INC.; and LEE J.
SCHUSTER;

         Respondents-Appellees.

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)		 Petition for Review of Order
of Chief Legal Counsel of the
Department of Human Rights.





Charge No. 2001SF0523.




 
JUSTICE LYTTON delivered the opinion of the court:

The petitioner, Dena L. Jenkins, filed a discrimination chargewith the Department of Human Rights (Department) against therespondents, Schuster Media Group, Inc. (Media Group) and Lee J.Schuster (Schuster). The charge included allegations that therespondents subjected her to sexual harassment by engaging in actsthat created a hostile work environment. The chief legal counselof the Department ruled that these allegations were barred bysection 7A-102(A)(1) of the Illinois Human Rights Act (Act) (775ILCS 5/7A-102(A)(1) (West 2000)) because the charge was filed morethan 180 days after the alleged civil rights violation occurred. We find that the chief legal counsel erred in dismissing Jenkins'sexual harassment claims. Accordingly, we reverse and remand forfurther proceedings.

On April 26, 2001, Jenkins filed a discrimination chargeagainst the respondents with the Department. In her charge,Jenkins alleged that she had been sexually harassed by Schusterfrom August to December 5, 2000. Jenkins claimed that theharassment consisted of "offensive questions and comments" abouther personal life, "sexually graphic and offensive language, namecalling and sexual references regarding [herself] and other femalesincluding 'bitch' and 'slut', and requests that [Jenkins] engage ina sexual relationship with him." Jenkins also alleged that she wasretaliated against for protesting the harassment from December 2000until the time she filed her charge.

The Department held a fact-finding conference, and theinvestigator prepared a report that reorganized Jenkins' chargeinto 10 allegations (allegations A-J). Allegations A and B werebased on Jenkins' claims that Media Group and Schuster had sexuallyharassed her between August and October 28, 2000. Allegations Cand D were based on the incidents of sexual harassment thatoccurred between October 28, 2000, and April 26, 2001.

On April 16, 2002, the Department issued a notice that it wasdismissing allegations A and B for lack of jurisdiction undersection 7A-102(A)(1) of the Act, which states that a charge must befiled within 180 days after the date that a civil rights violationhas been committed. 775 ILCS 5/7A-102(A)(1) (West 2000). TheDepartment held that allegations C and D were supported bysubstantial evidence. In support of its ruling, the Departmentnoted several specific instances of harassment that occurred afterOctober 28, 2000.

Jenkins filed a request for review of the dismissal ofallegations A and B. Specifically, she alleged that the Departmenterred in dismissing them because Schuster's sexually offensivebehavior was a course of continuing and uninterrupted conductbetween August and December of 2000. She stated that Schusterengaged in sexually offensive conduct on every occasion he was inher presence. His sexually offensive conduct included sexuallyoriented and derogatory name calling, sexually offensive comments,and repeated reference to women as "fat f***ing bitches." Thechief legal counsel upheld the Department's dismissal ofallegations A and B for lack of jurisdiction (775 ILCS 5/7A-102(A)(1) (West 2000)).

We will not disturb the chief legal counsel's decision todismiss a charge unless the chief legal counsel abused herdiscretion. Kalush v. Department of Human Rights Chief LegalCounsel, 298 Ill. App. 3d 980, 700 N.E.2d 132 (1998). However,where, as here, our review hinges on the interpretation of aprovision within the Act, it raises a question of law that wereview de novo. Gusciara v. Lustig, 346 Ill. App. 3d 1012, 806N.E.2d 746 (2004).

ANALYSIS

Jenkins claims that the chief legal counsel erred in rulingthat the Department lacked jurisdiction to consider the claimsoutside the 180-day time period because she failed to followNational R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 153 L. Ed.2d 106, 122 S. Ct. 2061 (2002). She maintains that we shouldinterpret the filing limitation of section 7A-102(A)(1) in lockstepwith the United States Supreme Court's interpretation of the timelimitation in Title VII under Morgan. See Gusciara, 346 Ill. App.3d 1012, 806 N.E.2d 746.

In Morgan, the Supreme Court interpreted the statute oflimitations filing requirement in Title VII (42 U.S.C.