ILLINOIS OFFICIAL REPORTS

Appellate Court

Crittenden v. Cook County Comm’n on Human Rights, 2012 IL App (1st) 112437

Appellate Court

Caption

JIMMY CRITTENDEN and JIMMY’S PLACE, Petitioners-Appellants,

v. COOK COUNTY COMMISSION ON HUMAN RIGHTS and

LYNITA BOYD, Respondents-Appellees.

 District & No. First District, Sixth Division

Docket No. 1-11-2437

Filed

Rehearing denied

June 1, 2012

July 31, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In an action arising from respondent’s allegations of sexual harassment

by her employer in violation of the Cook County Human Rights

Ordinance, the appellate court upheld the trial court’s confirmation of the

Cook County Commission on Human Rights’ award of lost wages as

compensatory damages and rejected petitioners’ challenge of

respondent’s credibility and their claim that the Commission considered

hearsay evidence, since nothing in the record indicated that the finding

that respondent’s testimony was credible was against the manifest weight

of the evidence, and any error arising from the hearing officer’s

consideration of hearsayevidence concerning the conduct of respondent’s

family was harmless; however, the award of punitive damages was

reversed on the ground that punitive damages are not permitted by the

ordinance.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 11-CH-2719; the

Hon. Sophia Hall, Judge, presiding.

Judgment Affirmed in part and reversed in part.
Counsel on

Appeal

Lonny Ben Ogus, of Chicago, for appellants.

Anita M. Alvarez, State’s Attorney, of Chicago (Maureen O. Hannon,

Assistant State’s Attorney, of counsel), for appellees.

Panel PRESIDINGJUSTICER.GORDON delivered the judgment of the court,

with opinion.

Justices Garcia and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Respondent Lynita Boyd claimed that she was sexually harassed by petitioner Jimmy

Crittenden while at work as a bartender at petitioner Jimmy’s Place, where Crittenden was

the manager. Respondent Cook County Commission on Human Rights (the Commission)

agreed, awardingBoyd $41,670 in lost wages, $5,000 as compensatory damages, and $5,000

as punitive damages. Petitioners appealed the decision by petitioning for a writ of certiorari

with the circuit court of Cook County, and the circuit court denied the petition and affirmed

the Commission’s decision. Petitioners nowappeal to the appellate court, challenging Boyd’s

credibility, the Commission’s purported consideration of hearsay evidence, and the damages

award. For the reasons that follow, we affirm in part and reverse in part.

¶ 2 BACKGROUND

¶ 3 On November 15, 2006, Boyd filed a verified complaint with the Commission, alleging

that she had been sexually harassed byCrittenden on July 19, 2006, in violation of the Cook

CountyHuman Rights Ordinance (the Ordinance)(CookCountyCode ofOrdinances § 42-30

et seq. (amended Nov. 19, 2002)). Boyd served as a bartender at Jimmy’s Place in Riverdale

from August 2003 through July 19, 2006, and performed her job duties satisfactorily. She

alleges that on July 19, 2006, Crittenden sexually harassed her, including “asking [her] to

have sex with [Jimmy’s Place] customer Rachel (last name unknown), touching [her] and

asking [her] to touch Rachel in a sexually explicit manner.” Boyd attempted to ignore and

discourage Crittenden’s behavior, but Crittenden persisted. Boyd alleges that she has not

worked at Jimmy’s Place since the incident and filed a police report against Crittenden,

resulting in criminal charges and a criminal trial on October 27, 2006.

¶ 4 On December 27, 2006, a response was filed by Amelia Crittenden on behalf of Jimmy’s

Wife’s, Inc., the owner of Jimmy’s Place. According to the response, Boyd did not complain

to management about any sexual harassment, worked for three shifts following the

harassment, and then failed to report for work without notice. Additionally, Crittenden and

other people present at the time of the harassment testified at the criminal trial, denying the

events alleged to have taken place, and Crittenden was found not guilty. Attached to the

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response was a copy of Jimmy’s Place’s policy against sexual harassment, which the

response stated was furnished to employees.

¶ 5 On June 1, 2007, a Commission investigator issued a report recommending a finding of

“Substantial Evidence” of the charges and the Commission entered an order finding

substantial evidence of a violation of the Cook County Human Rights Ordinance.

¶ 6 On July 9, 2008, the parties appeared before a hearing officer for a hearing on the

complaint. Boyd was the sole witness testifying on her behalf. She testified that Jimmy’s

Place closed at 2 a.m., but “regulars” often remained and talked, which often included sexual

conversations; Crittenden participated in the conversations. When asked to provide specifics

as to inappropriate sexual activities that took place at Jimmy’s Place, Boyd testified that

“[t]he only evening that I can really specify is the evening that everything happened to me.

The only thing that I can say is that I seen Rachel lap dancing one of the patrons.”

¶ 7 Boyd testified that she had never seen a sexual harassment policy at Jimmy’s Place and

had never been provided with one. She further testified that Crittenden had made

inappropriate comments to her, such as “you look good,” “[w]hen can I get some,” and “I’ve

been looking at you, I’ve been wanting you.” Aftersuch comments, Boyd told Crittenden that

she was “not here for that” and that she was “not thinking about” him, and further testified

that Crittenden’s behavior “slowed down” after that, but did not stop.

¶ 8 Boyd testified that on the night of the alleged harassment, prior to closing, Rachel came

behind the bar area and walked toward Boyd, with Crittenden following Rachel. As she was

walking toward Boyd, Rachel called Boyd “fine” and “sexy.” Rachel attempted to “grab”

Boyd, but Boyd caught Rachel’s arms and wrestled her to the floor. Crittenden was close

enough that when Boyd wrestled Rachel to the floor, he straddled Rachel’s back, “riding her

like a pony.” Boyd stepped back and Rachel stood up; Boyd told them to leave and Rachel

and Crittenden left the bar area.

¶ 9 After Jimmy’s Place closed at 2 a.m., Boyd was cleaning the bar while a number of

people remaining engaged in activities such as dancing on tables and “humping.” At

approximately 2:10 a.m., Boyd took her tip jar and sat on the bar to begin counting her tips.

Crittenden and Rachel were beside Boyd and she felt someone’s hand tugging at her pants;

Boyd did not know whether the person tugging her pants was Crittenden or Rachel. Boyd

jumped up and told them to stop. Boyd then went behind the bar, where her manager was

counting money in the cash register, and noticed that she had forgotten to retrieve napkins

and straws from the storage area, located in the back of the establishment.

¶ 10 Boyd went to the storage area and obtained an armful of supplies. When she turned

around, Boyd observed Rachel walking toward her from the direction of the building’s back

door. Boyd told Rachel to “[g]o on,” but Rachel kept telling Boyd to “come on.” Boyd again

told Rachel to go ahead of her. Boyd then testified:

“While I am going back and forth with her telling her to go ahead, Jimmy

[Crittenden] comes in the backroom. And I am wrestling going back and forth with her.

I didn’t see Jimmy walking up. And the next thing you know, Jimmy walks up and takes

her blouse and her bra and flips it up and says, ‘Touch them, touch them. You know you

want them, touch them.’

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I’ve got my arm in between her breasts at this time, pushing them both back off of

me, telling them get back off me. At this time I’m hollering for Lois, calling, ‘Lois, Lois,

come get them, come get them.’

And Lois finally came back there, and told them leave that girl alone. ‘Lynita, come

on, let’s go.’ They moved out of the way at that time. I went on about my business, put

the stuff down, got my purse, and I left. So that’s what happened there.”

¶ 11 Boyd then went home, where she was “a nervous wreck” and talked to her husband about

the incident the next day, which was a Thursday. On Friday, Boyd returned to work. Boyd

testified that she returned “[b]ecause I needed my job, but Ijust didn’t feel comfortable there

anymore. I didn’t feel safe there anymore when I went there.” In response to questions from

the hearing officer, Boyd testified that she went into work on the Friday after the incident and

told Lois , the manager, that she was no longer comfortable there, did not feel safe, and that 1

would be her last day. Boyd testified that she worked her entire shift on Friday before Lois

arrived and that she told Lois that she did not feel comfortable speaking with Crittenden.

Crittenden was not present while Boyd was working on Friday.

¶ 12 Boyd also testified that she was scheduled to work Saturday, but did not have a way of

communicating with anyone at Jimmy’s Place, so she went in and spoke to a maintenance

person to obtain a phone number so that she could speak with somebody to tell them she was

leaving. Boyd additionally testified that her family “came down there and supported [her]”

and, in the process, her son “acted a fool” and “knocked some chairs down” because “[h]e

was mad. He is young, teenage. *** But nothing happened to anybody.”

¶ 13 Boyd testified that there was a criminal trial resulting from the incident and that there

were witnesses to the events of the evening, but the State did not call any of them to testify

on her behalf. On cross-examination, Boyd recalled testifying at the criminal trial that the

events occurred on July 26, 2006. When defense counsel reminded her that the complaint in

the instant case stated that the incident occurred on July 18 and 19, Boyd responded: “Well,

yes, it must be my mistake, but I know the week before my husband’s birthday. His birthday

is August 4.” Boyd acknowledged filing a sworn complaint stating that the incident occurred

on July 19. Boyd’s counsel interrupted to say that she would “be happy” to amend the

complaint to change the date to the 26th and that “[w]e realized at some point subsequent the

date was incorrect. We did not amend it but we will amend it.”2

¶ 14 Defense counsel again questioned Boyd about filing a sworn complaint stating that the

date of the incident was July 19. Boyd testified: “It was a week before my husband’s birthday

because it was his 50th birthday, and I was giving him a big 50th birthday party at Jimmy’s

Place. So it was a week before that.” Boyd ultimately did not hold her husband’s party at

Jimmy’s Place.

¶ 15 On redirect, Boyd testified that she was not consulting a calendar when she filled out the

Boyd later testified that the workers referred to the manager as “Lois Lane,” but that her 1

actual name was Annie Grandberry.

There is no indication that the complaint was ever amended. 2

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complaint. She testified that “[t]he week before the 4th would have been the end of the

month, that Wednesday. I don’t know the correct date, but it had to be in the late 20s.

Because the 4th was that Friday, next Friday or something like that. But I do know it was a

week before my husband’s 50th birthday.” She testified that when she filed the complaint,

she did not knowingly state any false information.

¶ 16 Boyd also testified to the effect the incident had on her. There were no bruises or other

physical evidence of the incident, but her “nerves [were] shot,” her “hair came out,” and her

psoriasis “flared up really bad.” She testified that when she left Jimmy’s Place, she did not

have another job, but found new employment approximately a week and a half later as a

bartender. When she stopped working at Jimmy’s Place, she was making approximately$120

per week plus tips, which typically amounted to between $650 and $700.

¶ 17 On cross-examination, Boyd testified that she was paid in cash and did not have anything

to substantiate her figures. She further admitted that she did not declare her tips on her

income tax return that year.

¶ 18 Boyd testified that her new position was only one day per week, and she remained there

for approximately a year and a half before she found a second job to supplement her income.

Boyd left the one-day-a-week job in March 2008 and was still employed by the second

employer at the time of the hearing. Boyd testified that her base income was approximately

$400 to $500 a week, including tips.

¶ 19 The first witness to testify on behalf of the defense was Rachel Thomas. Thomas testified

that she visited Jimmy’s Place frequently and was present on the evening of July 26, 2006.

Thomas denied any events occurring between midnight and 1:30 a.m. in which she had her

blouse or bra pulled up, nor did she do so herself. Thomas also denied lap dancing with

anyone and testified that Crittenden never pushed her into Boyd or told Boyd to touch

Thomas’s breasts. Thomas testified that she was a former employee of Jimmy’s Place and

last worked there in 2003 or 2004. She testified that she frequented Jimmy’s Place “to have

a good time. I know the people that work there. They know me. I used to work with them.

They are like my family.” On cross-examination, Thomas denied staying at Jimmy’s Place

past closing and testified that she only did so if she was waiting in the parking lot for a ride.

¶ 20 The defense’s second witness was Rick Howard, a patron of Jimmy’s Place who was

present on the evening of July 26, 2006; Howard also occasionally worked at Jimmy’s Place

when he was asked to “help out.” Howard testified that he left Jimmy’s Place between 1:30

and 1:45 a.m. and did not observe any woman bare-breasted that evening, nor did he observe

Crittenden push Thomas into Boyd. Howard testified that he was never shown a sexual

harassment policy. Howard further testified that to his knowledge, everybody usually left

prior to the 2 a.m. closing time.

¶ 21 The defense’s third witness was Crittenden, who testified that he was present on July 26,

2006. Crittenden denied that Thomas was bare-breasted, denied pulling up her blouse or bra,

and denied pushing Thomas into Boyd. Crittenden testified that Boyd did not work on

Thursday, but worked a full shift on Friday and came in for a few hours on Saturday; she did

not make anycomplaints to him about anyincidents occurring on July 26, nor was Crittenden

informed of her making any complaints to anyone else. Crittenden testified that he was not

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present when Boyd worked on Friday, July 28. On Saturday, Crittenden received a telephone

call at his home at approximately 2 p.m. saying that “Boyd’s family was down there tearing

my place up, throwing the chairs and different stuff. I know I heard her brother he want to

kill me about something.” When Crittenden arrived at Jimmy’s Place, they were gone.

¶ 22 Crittenden testified that Jimmy’s Place had a written sexual harassment policy and that

he was “pretty sure theywas [sic] out” for employees. Crittenden testified that Jimmy’s Place

closed at 2 a.m. during the week and that nobody was permitted to remain past that time; it

was “a policy” that “[w]e have to be out of the bar at 2:00,” including patrons and employees,

and he was informed of that requirement by the police department. The bartenders began

“breaking down” the bar at approximately 1:30, and “[a]t 2:00 my bartenders, my help, they

be gone.”

¶ 23 Crittenden testified that Boyd was a very good employee and came to work on time.

Crittenden further testified that Boyd was paid $45 per day and generally worked three to

four days a week. She received tips, but since she usually worked during the day, “lucky if

you get $20 in tips” and not $650 to $700 per week. The typical amount of tips she could

have expected on a weekday evening in July 2006 would have been approximately $70.

¶ 24 On February 27, 2009, the hearing officer issued a recommended decision, to which the

parties had the opportunity to file written exceptions. The hearing officer recommended a

finding of liability in favor of Boyd against Jimmy’s Place. The recommended orderincluded

the following footnote:

“The record includes much contradictory testimony as to whether the July 26, 2006 date

is the accurate date. Complainant’s original Complaint alleged July 19, 2006 as the

relevant date. After reviewing the testimony within the record, the Hearing Officer

concludes that the likeliest date is July 26, 2006 and that Complainant’s failure to

accurately recall that date at the time of filing of her Complaint is immaterial to the truth

of her allegations.”

The recommended order concluded that Boyd had proven bya preponderance of the evidence

that she was sexually harassed during her employment in that she was subjected to a hostile

work environment. It further concluded that Boyd had proven that the incidents of sexual

harassment amounted to constructive discharge and that she was entitled to an award of

compensatory damages, including back pay, attorney fees, and costs.

¶ 25 The order stated that the conduct complained of by Boyd was “certainly sufficient” to

establish a hostile working environment “based upon any reasonable standard” and that

“[s]he credibly testified to a history of sexually suggestive remarks directed toward her by

Mr. Crittenden, culminating in the events of the evening of July 26, 2006, which by any

measure were extreme in nature and sufficient to reach the ‘sever[e] and pervasive’ standard

articulated by this Commission and the courts.”

¶ 26 The hearing officer found the defense’s witnesses “simply not credible.” Thomas was a

regular patron of Jimmy’s Place and a former employee and stated that she was close to the

people there. Howard was also a regular patron and occasional employee and had left prior

to the time Boyd testified the incidents took place. Finally, concerning Crittenden, the

hearing officer found:

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“Throughout his testimony, Mr. Crittenden’s demeanor was peculiar. He appeared

extremely nervous and continually swiveled his chair sharply while he testified. In

[a]ddition he proffered other testimony that Ms. Boyd credibly disputed, such as his

inherently difficult-to-believe claim that the bar is vacant, under local law, by 2:00 a.m.

each evening. Ms. Boyd testified that it was common for both employees and patrons to

be inside the establishment past 2:00 a.m., and given her description of the many duties

necessary to close the bar for the evening, it is simply not credible that the establishment

is always vacant by 2:00 a.m.”

¶ 27 The hearing officer found that there was no basis in the record to dispute Boyd’s

testimony. While she worked for an additional day, Crittenden was not present for that shift.

“Further, both Ms. Boyd and Mr. Crittenden testified that when she returned the following

day, along with her family, to announce her resignation, her son was exhibiting a great deal

of anger and overturned some furniture. Had the sexual harassment of which Ms. Boyd

complains not occurred at all–as Mr. Crittenden testified–there is no logical reason why Ms.

Boyd would return to the bar with family members nor why an angry encounter would

develop.”

¶ 28 In determining that Crittenden’s conduct constituted actionable harassment, the hearing

officer noted: “Though this case deals almost exclusively with comments and behavior that

occurred on one night, there was a demonstrated history of similar behavior over the course

of Ms. Boyd’s employment.” Consequently, the hearing officer found that Boyd’s allegation

of constructive discharge and hostile work environment was sustained.

¶ 29 Concerning damages, the hearing officer compared the conduct with prior Commission

cases and determined that a compensatory award of $5,000 was warranted, as was a punitive

damages award of $5,000. With regard to lost wages, the hearing officer noted that the

information in the record “renders a precise computation impossible.” The hearing officer

pointed out that Crittenden claimed that Boyd received a higher salary than she claimed, but

that his estimate of her tips was much lower than hers. The hearing officer concluded:

“Given that Ms. Boyd testified that the tips were paid in cash, the ambiguitymust be resolved

in her favor. It is Respondent which would most likely have some documentation of the tip

income received by its wait staff, but Respondent failed to come forward with any such

documentary evidence, relying solely upon Mr. Crittenden’s incredible estimate of just $20

per day in tips.” The hearing officer determined that Boyd had $86,240 in lost income.

Subtracting her income earned in mitigation, the hearing officer determined that Boyd’s

awardable lost wages constituted $41,670.

¶ 30 Jimmy’s Place filed its exceptions to the recommended order, arguing: (1) Boyd did not

prove her sworn charge, (2) Boyd’s credibility was destroyed as a matter of law and fact, (3)

the recommended order relied upon inadmissible hearsay evidence and evidence that lacked

a foundation, (4) there was insufficient evidence of damages, (5) the Commission did not

authorize an award of punitive damages, and (6) there was no basis for an award of punitive

damages.

¶ 31 On August 11, 2009, the hearing officer issued his final recommended order. The final

recommended order incorporated the proposed recommended order and also addressed the

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filed exceptions. The hearing officer reaffirmed that “[b]ecause this case presented radically

conflicting facts, credibility determinations assumed particular importance” and that it was

“essential” for the hearing officer to determine “who was being truthful and who was

intentionally lying.” The hearing officer again mentioned that Crittenden’s demeanor while

testifying during the hearing was “particularly striking”:

“His answers were evasive and he continually figeted, nervously swiveled his chair, and

clenched the chair’s arm rests as he testified. He often appeared to be attempting to think

of a suitable and non-incriminating answer before answering a question put to him. In

addition, he offered some testimony that was so facially unlikely as to suggest that he

was dissembling in an effort to cast doubt on Complainant’s story, particularly in regard

to his claim that the establishment was empty and closed by 2:00 a.m. sharp each day.

As set out in the Proposed Recommended Order, it simply would not have been possible

for the employees to perform the array of tasks described and to empty and close the

establishment by2:00 a.m., which rendered Complainant’s testimonythat itwas common

for employees and patrons to be present after 2:00 a.m. all the more credible.”

¶ 32 The hearing officer also addressed the argument about Boyd’s contradictory testimony

about the date of the incident:

“Again, Complainant’s credibilitywhile explaining the inconsistencywas high, inasmuch

as they were a few days apart. While she may have gotten the date wrong at the time that

Commission intake personnel prepared her Complaint, the difference between the two

dates is simply not terribly significant. Were she inventing a totally false story of sexual

harassment (which is essentially what Respondent is urging the Commission to find

here), it is more likely that Complainant would have testified in accordance with the July

18 date set out in the Complaint. After all, if the entire story were false, why bother

trying to explain why she had been mistaken about the exact date?”

¶ 33 Concerning the evidence of Boyd’s family coming to the bar, the hearing officer first

noted that the rules of evidence did not apply in matters before the Commission. However,

even if they did, the hearing officer noted that the evidence was not hearsay evidence that

was used to show that “ ‘Claimant’s own flesh and blood believed Claimant’s version’ ”:

“To the contrary, the fact that Complainant returned to the establishment with family

members is significant because it corroborates Complainant’s testimonythat a significant

event had occurred a few nights prior (a fact that Respondent disputes in its entirety). If

no event of consequence occurred on the evening of July 26, why would Complainant

return with angry relatives a day or so later? In no sense was the testimony proffered (nor

regarded by the Hearing Officer) as proof of what Complainant’s relatives had been told

or believed had occurred. It was the act of returning to the establishment with relatives

for the purpose of resigning her position that carries the significance and tends to

corroborate Complainant’s testimony that highly upsetting events had recently occurred

which prompted the sudden resignation.”

¶ 34 On February 16, 2010, the Commission entered its decision and order adopting the

hearing officer’s final recommended order and finding that Boyd proved a violation of the

Cook County Human Rights Ordinance.

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¶ 35 On January 21, 2011, Jimmy’s Place and Crittenden filed a petition for a writ of

certiorari with the circuit court of Cook County, requesting the court to reverse the final

decision of the Commission and enterjudgment on their behalf. On July 22, 2011, the circuit

court entered an order denying the petition for writ of certiorari and affirming the

Commission’s decision as to liability and damages. This appeal follows.

¶ 36 ANALYSIS

¶ 37 On appeal, petitioners raise issues concerning the Commission’s credibility

determination, its purported use of hearsay evidence, and its determination as to damages.

We consider each argument in turn.

¶ 38 I. Credibility Determination

¶ 39 In the case at bar, the hearing officer, whose opinion was adopted by the Commission,

found Boyd’s testimonycredible. Petitioners argue: (1) the Commission’s determination that

Boyd was more credible than petitioners’ witnesses was against the manifest weight of the

evidence and (2) Boyd should not have been permitted to contradict her sworn allegations.

¶ 40 The decision of the Commission, which adopted the hearing officer’s recommendations,

is an administrative decision and judicial review is governed by the Administrative Review

Law (735 ILCS 5/3-101 et seq. (West 2008)). 325 ILCS 5/7.16 (West 2008). While the

instant appeal arises from petitioners’ petition for a writ of certiorari, “[t]he standards of

review under a common law writ of certiorari are essentially the same as those under the

Administrative Review Law.” Hanrahan v. Williams, 174 Ill. 2d 268, 272 (1996) (citing

Smith v. Department of Public Aid, 67 Ill. 2d 529, 541-42 (1977)). In the case of an

administrative review action, we review the findings of the hearing officer during the

administrative hearing and not the decision of the circuit court. Marconi v. Chicago Heights

Police Pension Board, 225 Ill. 2d 497, 531 (2006) (per curiam). In reviewing the actions of

an administrative agency, “[t]he findings and conclusions of the administrative agency on

questions of fact shall be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West

2008). The reviewing court is not to reweigh the evidence or make an independent

determination of the facts. Kouzoukas v. Retirement Board of the Policemen’s Annuity &

Benefit Fund, 234 Ill. 2d 446, 463 (2009).

¶ 41 The propriety of the agency’s findings of fact will be upheld unless they are against the

manifest weight of the evidence. Kouzoukas, 234 Ill. 2d at 463; Marconi, 225 Ill. 2d at 532.

“An administrative agency decision is against the manifest weight of the evidence only if the

opposite conclusion is clearly evident.” Abrahamson v. Illinois Department of Professional

Regulation, 153 Ill. 2d 76, 88 (1992). The fact that the opposite conclusion is reasonable or

that the reviewing court may have reached a different outcome does not justify reversal of

the administrative findings. Abrahamson, 153 Ill. 2d at 88. “If the record contains evidence

to support the agency’s decision, it should be affirmed.” Abrahamson, 153 Ill. 2d at 88-89.

¶ 42 In the case at bar, petitioners argue that the Commission’s decision was against the

manifest weight of the evidence. Specifically, petitioners argue that the Commission erred

in finding credible evidence to support the sexual harassment charge “based on perjury of an

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individual, criminal violations of that individual, and uncorroborated testimony, in the face

of witnesses who did not commit perjury, did not admit criminal violations and had nothing

to gain.” Petitioners claim that Boyd’s testimony was wholly incredible since (1) she

contradicted the allegations of her complaint twice, (2) she testified that she did not report

her tip income on her income taxes, and (3) her testimony was uncorroborated. In contrast,

petitioners argue that their witnesses were more credible in part because they did none of the

above. We find petitioners’ argument unpersuasive.

¶ 43 In essence, petitioners are asking us to reweigh the evidence and determine that their

witnesses were more credible than Boyd. As noted, we are not permitted to reweigh the

evidence or make credibility determinations (Kouzoukas, 234 Ill. 2d at 463), and we will

affirm an agency’s decision if there is evidence in the record to support it (Abrahamson, 153

Ill. 2d at 88-89). In the case at bar, there is evidence in the record to support the hearing

officer’s determinations. The hearing officer made it clear, in both his proposed

recommended order and in his final recommended order, that “[b]ecause this case presented

radicallyconflicting facts, credibilitydeterminations assumed particularimportance” and that

it was “essential” for the hearing officer to determine “who was being truthful and who was

intentionally lying.” The hearing officer also stated that he found Boyd’s testimony credible

and specifically explained why he did not find petitioners’ witnesses credible. For instance,

in his final recommended order, the hearing officer noted that Thomas was a regular patron

of Jimmy’s Place and a former employee who stated that she was close to the people there;

Howard was also a regular patron and occasional employee who had left prior to the time

Boyd testified the incidents took place. Finally, concerning Crittenden, the hearing officer

found:

“Throughout his testimony, Mr. Crittenden’s demeanor was peculiar. He appeared

extremely nervous and continually swiveled his chair sharply while he testified. In

[a]ddition he proffered other testimony that Ms. Boyd credibly disputed, such as his

inherently difficult-to-believe claim that the bar is vacant, under local law, by 2:00 a.m.

each evening. Ms. Boyd testified that it was common for both employees and patrons to

be inside the establishment past 2:00 a.m., and given her description of the many duties

necessary to close the bar for the evening, it is simply not credible that the establishment

is always vacant by 2:00 a.m.”

Additionally, all of petitioners’ arguments before us were also made before the hearing

officer, and consequently, we cannot find that his decision to believe Boyd over the other

witnesses was against the manifest weight of the evidence. See People v. Strickland, 154 Ill.

2d 489, 521 (1992) (noting that the same argument concerning a defense theory had been

presented and specifically rejected by the trial court and upholding the trial court’s factual

finding); Fuery v. Rego Co., 71 Ill. App. 3d 739, 745-46 (1979) (“It cannot be forgotten that

the trial judge here also considered these same arguments *** and rejected them after careful

consideration.”).

¶ 44 We are also unpersuaded by petitioners’ arguments concerning Boyd’s contradiction in

her complaint. Petitioners claim that Boyd was permitted to contradict her sworn allegations

twice: once when she testified that the incident occurred on July 26, 2006, not July 19, and

again when she testified that she returned to work on Friday and Saturday despite alleging

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that she never returned to Jimmy’s Place. Petitioners argue that Boyd’s allegations were

judicial admissions and she should not have been permitted to contradict them; thus, they

claim, Boyd did not prove the allegations in her complaint and should have been denied

relief. We find petitioners’ argument unpersuasive.

¶ 45 Judicial admissions “ ‘are formal concessions in the pleadings in the case or stipulations

by a party or its counsel that have the effect of withdrawing a fact from issue and dispensing

wholly with the need for proof of the fact.’ ” Knauerhaze v. Nelson, 361 Ill. App. 3d 538,

557-58 (2005) (quoting John Williams Strong, McCormick on Evidence § 254, at 142 (4th

ed. 1992)); see also Lawlor v. North American Corp. of Illinois, 409 Ill. App. 3d 149, 163

(2011). They are defined as “deliberate, clear, unequivocal statements by a party about a

concrete fact within that party’s knowledge.” In re Estate of Rennick, 181 Ill. 2d 395, 406

(1998) (citing Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475, 480 (1987)). A

verified pleading remains part of the record despite any amendments to the pleadings “and

any admissions not the product of mistake or inadvertence become binding judicial

admissions.” Rynn v. Owens, 181 Ill. App. 3d 232, 235 (1989) (citing American National

Bank & Trust Co. of Chicago v. Erickson, 115 Ill. App. 3d 1026, 1029 (1983)). “A party

cannot create a factual dispute bycontradicting a previouslymade judicial admission.” Burns

v. Michelotti, 237 Ill. App. 3d 923, 932 (1992). However, “ ‘[t]he doctrine of judicial

admissions requires thoughtful study for its application so that justice not be done on the

strength of a chance statement made by a nervous party.’ ” Smith v. Pavlovich, 394 Ill. App.

3d 458, 468 (2009) (quoting Thomas v. Northington, 134 Ill. App. 3d 141, 147 (1985)).

¶ 46 Although neither party discusses it, we must first consider the standard of review that

applies to our review of the Commission’s decision to accept Boyd’s testimony instead of

limiting her to the allegations in her complaint. There are two lines of cases concerning the

properstandard of review. The first, established in 1987 by Hansen, 155 Ill. App. 3d at 480,

considers the issue as a question of law subject to de novo review. See, e.g., Choate v.

Indiana Harbor Belt R.R. Co., 2011 IL App (1st) 100209, ¶ 86; Herman v. Power

Maintenance & Constructors, LLC, 388 Ill. App. 3d 352, 360 (2009); Elliott v. Industrial

Comm’n, 303 Ill. App. 3d 185, 187 (1999). De novo consideration means the reviewing court

performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP,

408 Ill. App. 3d 564, 578 (2011). The de novo standard of review derives from the

requirement that a judicial admission be a “deliberate, clear, unequivocal statement of a party

about a concrete fact within that party’s peculiar knowledge” and is based on the

determination that the question of whether the statement is equivocal is one of law and not

fact. Hansen, 155 Ill. App. 3d at 480.

¶ 47 The second, beginning in 1988 with Lowe v. Kang, 167 Ill. App. 3d 772, 777 (1988),

applies an abuse of discretion standard of review. See, e.g., Serrano v. Rotman, 406 Ill. App.

3d 900, 907 (2011); Smith, 394 Ill. App. 3d at 468; Dremco, Inc. v. Hartz Construction Co.,

261 Ill. App. 3d 531, 536 (1994). “An abuse of discretion occurs when no reasonable person

would take the view adopted by the court.” Trettenero v. Police Pension Fund, 333 Ill. App.

3d 792, 801 (2002) (citing In re Marriage of Blunda, 299 Ill. App. 3d 855, 865 (1998)). The

abuse of discretion standard focuses on the context of the purported admission: “What

constitutes a judicial admission must be decided under the circumstances in each case, and

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before a statement can be held to be such an admission, it must be given a meaning

consistent with the context in which it was found. [Citation.] It must also be considered in

relation to the other testimony and evidence presented.” Serrano, 406 Ill. App. 3d at 907

(citing Smith, 394 Ill. App. 3d at 468).

¶ 48 We note that both the cases advocating for de novo review and the cases applying the

abuse of discretion standard of review agree on the same basic framework to be applied in

determining whether a statement is deemed a judicial admission. Thus, a case applying the

abuse of discretion standard still requires the statement to be “clear, unequivocal, and

uniquely within the party’s personal knowledge” (Serrano, 406 Ill. App. 3d at 907 (citing

Williams Nationalease, Ltd. v. Motter, 271 Ill. App. 3d 594, 597 (1995))), and a case

applying de novo review also looks at the context of the statement. See Herman, 388 Ill. App.

3d at 361 (noting that the doctrine should not be applied to an attorney’s statement of legal

opinion in a summary judgment proceeding, “especially if the opinion was manifestly

incorrect within the context of the statement itself”). In the case at bar, regardless of the

standard of review applied, we cannot find that the Commission erred in permitting Boyd to

clarify and explain the allegations in her complaint.

¶ 49 As noted, a verified pleading remains part of the record despite any amendments to the

pleadings “and any admissions not the product of mistake or inadvertence become binding

judicial admissions.” Rynn, 181 Ill. App. 3d at 235 (citing Erickson, 115 Ill. App. 3d at

1029). Here, however, Boyd testified that she made a mistake by alleging that the sexual

harassment occurred on July 19, 2006, instead of July 26, and the hearing officer and the

Commission accepted the explanation that the incident occurred on July 26. Boyd testified

that she did not consult a calendar before filling out the complaint form with the Commission

and further testified that she knew the date during the hearing due to its proximity to her

husband’s fiftieth birthday. Her attorney also commented that they discovered the mistaken

date at some point after the complaint had been filed; based on the record, it appears that

counsel was not present when Boyd completed the complaint form, with the hearing officer’s

final recommended order indicating that the complaint would have been prepared by

“Commission intake personnel.” Finally, Boyd testified that she did not knowinglymake any

false allegations in her complaint. Given Boyd’s explanation, the difference of only seven

days between the two dates, and the insignificance of the exact date of the incident to the

overall cause of action, we cannot find that the Commission erred in permitting Boyd to

testify that the incident occurred on July 26 and not July 19, nor can we find error in the

Commission permitting Boyd to testify that she worked one additional shift two days after

the incident when Crittenden was not present.

¶ 50 We find petitioners’ authority to the contrary to be inapposite. In O’Neill v. Chicago

Transit Authority, 5 Ill. App. 3d 69 (1972), the issue was whether the plaintiff should have

been permitted to completely contradict the material facts of his complaint after the close of

the evidence at trial. The original complaint alleged, and the plaintiff testified, that he was

attempting to board a bus when the driver placed the bus in motion before the plaintiff had

completely boarded; the plaintiff testified that he drank two beers that night. O’Neill, 5 Ill.

App. 3d at 71. After the close of evidence, where the defendant’s witnesses testified that the

plaintiff appeared intoxicated, the plaintiff amended his complaint to allege that he was

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intoxicated, entered the bus, and fell out the open door, and that the driver knew of the

plaintiff’s condition and failed to take precaution to protect him from injurywhile on the bus.

O’Neill, 5 Ill. App. 3d at 72. The appellate court found that the trial court erred in permitting

the plaintiff to amend his complaint, noting that “[p]laintiff cannot abandon his own sworn

evidence and then attempt to recover byadopting completelyinconsistent evidence produced

by other witnesses.” O’Neill, 5 Ill. App. 3d at 72. Here, Boyd’s evidence was more of a

clarification than an inconsistency.

¶ 51 Petitioners also cited to Burdin v. Jefferson Trust &Savings Bank of Peoria, 133 Ill. App.

2d 703 (1971), in which the appellate court found that the plaintiff’s amended complaint

failed to state a cause of action when he amended his complaint from alleging a breach of

lease to alleging a breach of a partnership agreement. The appellate court noted that the

plaintiff would be bound by the initial verified complaint unless the amended complaint

disclosed that the admissions were made through mistake or inadvertence. Burdin, 133 Ill.

App. 2d at 708. The court found that “[b]y no stretch of the imagination can we conclude that

the allegations in the original complaint and first amended complaint were made under a

misapprehension or mistake,” finding that the plaintiff “most certainly would have known

whether he was operating under a lease agreement or a partnership agreement.” Burdin, 133

Ill. App. 2d at 708. See also Beverly Bank v. Coleman Air Transport, 134 Ill. App. 3d 699,

704 (1985) (finding that there was nothing supporting the plaintiff’s conclusory statements

that his attorney did not consult with him prior to filing an answer, especially where the

plaintiff had asserted the attorney-client privilege in the trial court and had prevented

disclosure of the circumstances surrounding the verification of the original answer). In the

case at bar, Boyd’s complaint was based on mistake or inadvertence.

¶ 52 Unlike in O’Neill, Boyd did not shift the entire basis for her cause of action; she simply

stated the wrong date and testified that she worked one additional shift when Crittenden was

not present. The events otherwise alleged in the complaint were consistent with her

testimony at trial. Likewise, the plaintiff in O’Neill did not argue that the inconsistent

positions were the result of mistake or inadvertence. See also Dark v. United States Fidelity

& Guaranty Co., 175 Ill. App. 3d 26, 32-33 (1988) (rejecting the plaintiff’s arguments that

he should not be bound by the damage amount stated in verified pleadings when there was

no mention of mistake or inadvertence). Thus, we do not find O’Neill persuasive. Similarly,

unlike in Burdin, here, the mistakes made by Boyd were not of such magnitude that she

“most certainly would have known” of them at the time of filing her complaint. See Burdin,

133 Ill. App. 2d at 708. As noted, Boyd testified that she did not have a calendar and the

record suggests that she filled out the complaint form without the assistance of an attorney

and without any specialized knowledge.

¶ 53 Petitioners argue that Boyd was required to “shift her sworn facts as to the date (and

whether she returned to work thereafter)” because she had testified at the criminal trial that

the date was July 26 and otherwise would be subject to impeachment. There is absolutely no

evidence in the record of any bad faith on Boyd’s part in her testimony during the hearing.

Moreover, if there was any such evidence, it would be the hearing officer, who had the

opportunity to observe Boyd’s demeanor, who would be in the best position to determine

Boyd’s motivations. Accordingly, we cannot find that the Commission erred in permitting

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Boyd to contradict her allegations at the hearing.

¶ 54 Petitioners also briefly argue in the damages portion of their brief that Boyd mentioned

only one date in which any harassment occurred and that there was consequently no

foundation to determine that a history of sexual harassment had occurred. The hearing officer

found that the conduct complained of byBoyd was “certainlysufficient” to establish a hostile

working environment “based upon anyreasonable standard” and that “[s]he crediblytestified

to a history of sexually suggestive remarks directed toward her by Mr. Crittenden,

culminating in the events of the evening of July 26, 2006, which by any measure were

extreme in nature and sufficient to reach the ‘sever[e] and pervasive’ standard articulated by

this Commission and the courts.” It is clear from the record that the hearing officer accepted

Boyd’s testimony of prior comments made by Crittenden, as well as her testimony

concerning the events of July 26. Petitioners do not argue that the incident on July 26 was

insufficient to establish harassment but onlythat the historyof prior incidents was unfounded

and insufficient to demonstrate harassment. Again, we are not permitted to reweigh the

evidence (Kouzoukas, 234 Ill. 2d at 463), and we will affirm an agency’s decision if there is

evidence in the record to support it (Abrahamson, 153 Ill. 2d at 88-89).

¶ 55 For sexual harassment to be actionable, “it must be sufficiently severe or pervasive ‘to

alter the conditions of [the victim’s] employment and create an abusive working

environment.’ ” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting

Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). A court must examine all of

the circumstances before determining whether an environment is hostile or abusive,

including factors such as “the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems,

Inc., 510 U.S. 17, 23 (1993). While all of the relevant factors may be taken into account, “no

single factor is required.” Harris, 510 U.S. at 23.

¶ 56 In the case at bar, as noted, petitioners do not argue that the conduct of July 26, 2006, was

insufficient to constitute sexual harassment but only focus on Boyd’s claims that Crittenden

had made comments to her previously. The hearing officer determined that Boyd’s testimony

was credible, and there is nothing in the record to demonstrate that the hearing officer’s

determination was against the manifest weight of the evidence. Moreover, a history of

harassing comments is not necessarily required; the events of July 26 were sufficient in

themselves to demonstrate actionable harassment. See Harris, 510 U.S. at 23 (“no single

factor is required”). Accordingly, we are not persuaded bypetitioners’ arguments concerning

the history of any harassment.

¶ 57 II. Hearsay

¶ 58 Petitioners also claim that the hearing officer improperly relied on hearsay evidence in

finding in Boyd’s favor. Petitioners point to the following statement made by the hearing

officer: “Further, both Ms. Boyd and Mr. Crittenden testified that when she returned the

following day, along with her family, to announce her resignation, her son was exhibiting a

great deal of anger and overturned some furniture. Had the sexual harassment of which Ms.

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Boyd complains not occurred at all–as Mr. Crittenden testified–there is no logical reason why

Ms. Boyd would return to the bar with family members nor why an angry encounter would

develop.” Petitioners argue that the hearing officer’s reliance on the actions of the family

members constitutes reversible error. We do not find petitioners’ argument persuasive.

¶ 59 An administrative agency’s decision concerning the introduction of evidence “ ‘is

properly governed by an abuse of discretion standard and subject to reversal only if there is

demonstrable prejudice to the party.’ ” Three Angels Broadcasting Network, Inc. v.

Department of Revenue, 381 Ill. App. 3d 679, 699 (2008) (quoting Wilson v. Department of

Professional Regulation, 344 Ill. App. 3d 897, 907 (2003)). “An abuse of discretion occurs

when no reasonable person would take the view adopted by the court.” Trettenero, 333 Ill.

App. 3d at 801 (citing Blunda, 299 Ill. App. 3d at 865). In the case at bar, the hearing

officer’s reliance on the conduct of Boyd’s family did not constitute reversible error.

¶ 60 First, petitioners are the ones who first brought forth the fact that Boyd’s family visited

Jimmy’s Place on the Saturday following the incident. Crittenden testified that on Saturday,

he received a telephone call at his home at approximately 2 p.m. saying that “Boyd’s family

was down there tearing my place up, throwing the chairs and different stuff. I know I heard

her brother he want to kill me about something.” When Crittenden arrived at Jimmy’s Place,

they were gone. After Crittenden’s testimony, Boyd was recalled to testify concerning

damages and also confirmed that her family had been at Jimmy’s Place on Saturday and her

son “acted a fool” and “knocked some chairs down.”

¶ 61 The Illinois Supreme Court has held that, under “ ‘the doctrine of invited error,’ ” a party

“ ‘may not request to proceed in one manner and then later contend on appeal that the course

of action was in error.’ ” People v. Harvey, 211 Ill. 2d 368, 385 (2004) (quoting People v.

Carter, 208 Ill. 2d 309, 319 (2003)). To permit a party to use, as a vehicle for reversal, the

exact action which it procured in the trial court “ ‘would offend all notions of fair play’ “ and

encourage duplicity by litigants. Harvey, 211 Ill. 2d at 385 (quoting People v. Villarreal, 198

Ill. 2d 209, 227 (2001)). Thus, when a party “procures, invites or acquiesces” to a trial court’s

evidentiary ruling, even if the ruling is improper, he cannot contest the ruling on appeal.

People v. Bush, 214 Ill. 2d 318, 332 (2005); Harvey, 211 Ill. 2d at 386; People v. Caffey, 205

Ill. 2d 52, 114 (2001). The hearing officer made it clear that he was relying on Crittenden’s

testimony concerning the incident as well as Boyd’s. After introducing the evidence through

Crittenden’s testimony, petitioners cannot now complain that the hearing officer should have

refused to consider it.

¶ 62 Even if the issue was considered on its merits, the Commission’s procedural rules

provide that the hearing officer is not bound by the rules of evidence. Section 460.105 of the

procedural rules provides:

“The Hearing Officer shall have full authority to control the procedures of the

Administrative Hearing, to question any party regarding the Complaint at issue, to rule

upon all motions and objections, and to admit or exclude testimony or other evidence.

The Hearing Officer shall not be bound by the strict rules of evidence applicable in courts

of law or equity.” Cook County Comm’n on Human Rights Procedural Rules § 460.105

(eff. Mar. 20, 2007).

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Accordingly, the hearing officer was permitted to consider evidence that would not normally

be admissible in a civil proceeding. See also Anderson v. Human Rights Comm’n, 314 Ill.

App. 3d 35, 52 (2000) (noting that evidence not admissible under the rules of evidence may

be admitted in an administrative proceeding “if the evidence is of a type commonly relied

upon by reasonable, prudent men and women in the conduct of their affairs”).

¶ 63 Additionally, even if the hearing officer was bound by the strict rules of evidence, any

error in using the family’s conduct would be harmless. Hearsay evidence consists of “a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff. Jan.

1, 2011). This type of evidence “ ‘is generally inadmissible due to its lack of reliability’ ” and

the inability of the opposing party to confront the declarant unless it falls within an exception

to the hearsay rule. People v. Caffey, 205 Ill. 2d 52, 88 (2001) (quoting People v. Olinger,

176 Ill. 2d 326, 357 (1997)). See also People v. Dunmore, 389 Ill. App. 3d 1095, 1106

(2009). Nonverbal conduct may be a “statement” for the purposes of the hearsay rule. See

Ill. R. Evid. 801(a) (eff. Jan. 1, 2011) (a statement is “(1) an oral or written assertion or (2)

nonverbal conduct of a person, if it is intended by the person as an assertion” offered to prove

the truth of the matter); People v. Higgs, 11 Ill. App. 3d 1032, 1037 (1973) (noting that

assertive conduct may be inadmissible hearsay).

¶ 64 Here, the conduct of the family in coming to Jimmy’s Place and “tearing [the] place up”

can be considered as a statement and was used by the hearing officer to corroborate Boyd’s

testimony, indicating that it was used as proof that an incident occurred at Jimmy’s Place.

Consequently, it would be hearsay and should have been excluded by the hearing officer. We

are not persuaded by Boyd’s arguments that the statement was an admission by a party or

satisfied the excited utterance or present sense impression exceptions to the hearsay rule.

Boyd’s arguments fail to identify the proper “statement”–it is not Crittenden’s testimony or

his conversation with his employee that is the statement, but the conduct of Boyd’s family.

Thus, we do not find any of these exceptions applicable.

¶ 65 However, any error in considering the conduct of Boyd’s family is harmless. The hearing

officer explained in detail why each of petitioners’ witnesses was not credible. He also

discussed why Boyd’s testimony was credible. While the conduct of her family served to

corroborate Boyd’s testimony, the hearing officer did not solely rely on that to find Boyd

credible. Instead, the hearing officer stated that Boyd testified credibly, presented her

testimony “with conviction,” and provided “reasonably detailed [testimony] as to the events

that occurred and their sequence.” He also noted that Crittenden’s testimony that Jimmy’s

Place was empty by 2 a.m. was incredible and served to make Boyd’s testimony that it was

common for patrons and employees to be present after 2 a.m. “all the more credible.” Thus,

there was sufficient evidence to support the hearing officer’s decision. Accordingly, even if

the hearing officer should not have considered the conduct of Boyd’s family, any error was

harmless and does not constitute reversible error. See Abrahamson, 153 Ill. 2d at 94

(“ ‘[W]here there is sufficient competent evidence to support an administrative decision, the

improper admission of hearsay testimony in the administrative proceeding is not prejudicial

error.’ ” (quoting Goranson v. Department of Registration &Education, 92 Ill. App. 3d 496,

501 (1980))); Discovery South Group, Ltd. v. Illinois Pollution Control Board, 275 Ill. App.

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3d 547, 554 (1995) (finding that reversal was not required even if documents had been

inadmissible hearsay since “sufficient competent evidence was presented and relied upon by

the Board in reaching its determination”).

¶ 66 III. Damages

¶ 67 Finally, petitioners claim that the Commission erred in its damages calculation. They

argue that the Commission committed reversible error in determining that there were

damages despite Boyd’s failure to prove her losses and also argue that the Commission erred

in awarding punitive damages.

¶ 68 A. Compensatory Damages

¶ 69 Petitioners first argue that there was insufficient evidence of actual losses or mitigation

and, accordingly, the Commission erred in awarding her over $40,000 in compensatory

damages. Under the Ordinance, relief for a violation of the Ordinance may include “actual

damages, as reasonably determined by the Commission, for injury or loss suffered.” Cook

County Code of Ordinances § 42-34(c)(1)(b) (amended Nov. 19, 2002). In the case at bar,

the hearing officer recommended an award of $41,670 for Boyd’s lost wages, and the

Commissioner adopted the recommendation. However, petitioners claim that Boyd provided

“no evidence” as to her lost wages. While Boyd did not provide documentary evidence of her

wages while employed at Jimmy’s Place, Boyd did testify at the hearing concerning her

wages, as did Crittenden. The hearing officer accepted Boyd’s testimony as more credible

and, as noted previously, that decision was not against the manifest weight of the evidence.

Thus, we cannot find that Boyd failed to provide evidence of her lost wages.

¶ 70 Petitioners further argue that Boyd failed to prove that she mitigated her damages. Boyd

was required to exercise reasonable diligence in mitigating her damages. See Heeren Co. v.

Human Rights Comm’n, 150 Ill. App. 3d 234, 241-42 (1986). However, it was petitioners

who had the burden of proving that Boyd failed to reasonably mitigate her damages. See

People ex rel. Bourne v. Johnson, 32 Ill. 2d 324, 329 (1965) (“The defendants were here the

wrongdoers, and the obligation to produce whatever proof existed in diminution of damages

rested on them. The overwhelming weight of authority *** is that an employer in an action

for lost wages[ ] must affirmatively show in order to reduce damages that the discharged

employee could or did have other earnings subsequent to the wrongful discharge.”); Board

of Education of the City of Chicago v. Weed, 281 Ill. App. 3d 1010, 1017 (1996) (noting that

when a teacher is wrongfully discharged, “[t]he employer has the burden of showing that the

teacher could have made additional earnings”); Raintree Health Care Center v. Human

Rights Comm’n, 275 Ill. App. 3d 387, 396 (1995) (rejecting the defendant’s argument that

the plaintiff had failed to mitigate his damages since the ALJ found the plaintiff’s testimony

credible and the defendants did not present any evidence of other appropriate jobs for which

the plaintiff was qualified). Here, petitioners did not present any evidence that Boyd failed

to mitigate her damages. Additionally, Boyd testified that she was employed at a one-day-aweek job a week and a half after terminating her employment at Jimmy’s Place and found

a second job a year and a half later. Thus, we cannot find that Boyd failed to mitigate her

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damages and affirm the Commission’s award of compensatory damages. See Board of

Directors, Green Hills Country Club v. Human Rights Comm’n, 162 Ill. App. 3d 216, 221

(1987) (finding damages mitigated where the complainants “were employed for various

periods after quitting Green Hills, that they sent out resumes and generally endeavored to

remain employed” and there was no evidence presented to contradict the complainants’

claims).

¶ 71 B. Punitive Damages

¶ 72 However, we find that the Commission did not have the authority to award punitive

damages. Both parties acknowledge that the Ordinance does not expressly speak to the

imposition of punitive damages. Petitioners argue that since punitive damages are not

expressly permitted by the Ordinance, they are prohibited, while Boyd claims that the

Ordinance should be read to permit the imposition of punitive damages. We agree with

petitioners and do not find Boyd’s arguments to the contrary persuasive.

¶ 73 1. Availability of Punitive Damages Generally

¶ 74 “Punitive, or exemplary, damages are not awarded as compensation, but serve instead to

punish the offender and to deter that party and others from committing similar acts of

wrongdoing in the future.” Loitz v. Remington Arms Co., 138 Ill. 2d 404, 414 (1990). These

purposes make the function of punitive damages similar to that of a criminal penalty. Kelsay

v. Motorola, Inc., 74 Ill. 2d 172, 187-88 (1978). “Because of their penal nature, punitive

damages are not favored in the law, and the courts must take caution to see that punitive

damages are not improperly or unwisely awarded.” Kelsay, 74 Ill. 2d at 188. Whether

punitive damages are available for a particular cause of action is a question of law. Knierim

v. Izzo, 22 Ill. 2d 73, 87 (1961). As such, we review it de novo. Franz v. Calaco Development

Corp., 352 Ill. App. 3d 1129, 1137-38 (2004) (noting that whether the finder of fact is the

trial court or a jury, the determination of whether punitive damages are available for the

cause of action is a question of law reviewed de novo). De novo consideration means we

perform the same analysis that a trial judge would perform. Khan, 408 Ill. App. 3d at 578.

¶ 75 In a cause of action based on a statutory violation, punitive damages may be awarded

either because the statute expressly permits them or because the facts of the case allow the

imposition of common law punitive damages. A statute may expressly permit punitive

damages or may expressly prohibit them. See, e.g., Bernier v. Burris, 113 Ill. 2d 219, 245

(1986) (noting that a variety of statutes prohibiting punitive damages have been upheld by

the supreme court and citing cases); Linhart v. Bridgeview Creek Development, Inc., 391 Ill.

App. 3d 630, 641 (2009) (noting that the Illinois Consumer Fraud and Deceptive Business

Practices Act (815 ILCS 505/1 et seq. (West 2006)) explicitly allows for the recovery of

punitive damages where the conduct of the defendant was willful or intentional and done

with evil motive or reckless indifference to the rights of others). Those statutes that expressly

permit punitive damages often do so by incorporating the requirements of common law

punitive damages. See, e.g., Linhart, 391 Ill. App. 3d at 641.

¶ 76 If the statute does not expressly discuss punitive damages, then common law punitive

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damages may be available if warranted by the facts of the case. See, e.g., Vincent v. AldenPark Strathmoor, Inc., 241 Ill. 2d 495, 502 (2011) (noting that although not expressly

mentioned in the Nursing Home Care Act (210 ILCS 45/2-101 et seq. (West 2006)),

plaintiffs may recover common law punitive damages upon proof of willful and wanton

misconduct on the part of the defendant). Due to the penal nature of punitive damages, a

court mayonly award them for torts that are “committed with fraud, actual malice, deliberate

violence or oppression, or when the defendant acts willfully, or with such gross negligence

as to indicate a wanton disregard of the rights of others.” Kelsay, 74 Ill. 2d at 186 (citing

Consolidation Coal Co. of St. Louis v. Haenni, 146 Ill. 614, 628 (1893)). “ ‘[P]unitive

damages are not awarded for mere inadvertence, mistake, errors of judgment and the like,

which constitute ordinary negligence.’ ” Loitz, 138 Ill. 2d at 415 (quoting Restatement

(Second) of Torts § 908, cmt. b (1979)).

¶ 77 2. Authority of Administrative Agency

¶ 78 In the case at bar, the question of whether punitive damages are authorized is also

impacted by the status of the Commission as an administrative agency. An administrative

agency is limited to the powers granted to it by the legislature, and any actions it takes must

be authorized by statute. Vuagniaux v. Department of Professional Regulation, 208 Ill. 2d

173, 186 (2003). An agency “has no general or common law authority.” Vuagniaux, 208 Ill.

2d at 186. “Any power or authority claimed by an administrative agencymust find its source

within the provisions of the statute by which the agency was created. The agency’s authority

must either arise from the express language of the statute or ‘devolve by fair implication and

intendment from the express provisions of the [statute] as an incident to achieving the

objectives for which the [agency] was created.’ ” Vuagniaux, 208 Ill. 2d at 187-88 (quoting

Schalz v. McHenry County Sheriff’s Department Merit Comm’n, 113 Ill. 2d 198, 202-03

(1986)). “The issue of an administrative body’s authority presents a question of law and not

a question of fact. The determination of the scope of the agency’s power and authority is a

judicial function and is not a question to be finally determined by the agency itself.” County

of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill. 2d 546, 554 (1999).

¶ 79 3. Punitive Damages Under the Ordinance

¶ 80 The Ordinance outlines the various relief measures available to the Commission for

violations of the Ordinance. Section 42-34(c)(1) provides:

“Relief may include, but is not limited to, an order to:

a. Cease the illegal conduct complained of and to take steps to alleviate the effect

of the illegal conduct complained of[.]” Cook County Code of Ordinances § 42-

34(c)(1) (amended Nov. 19, 2002).

The Ordinance also instructs that “[t]he provisions of this article shall be liberally construed

for the accomplishment of its purpose.”Cook CountyCode of Ordinances § 42-32 (amended

Nov. 19, 2002).

¶ 81 As noted, the Ordinance does not expresslyauthorize the imposition of punitive damages,

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and Boyd does not argue that it does. By contrast, the Ordinance does expressly authorize

compensatory damages. See, e.g., Cook County Code of Ordinances § 42-34(c)(1)(b),

(c)(1)(h) (amended Nov. 19, 2002). Accordingly, in order for the Commission to have the

authority to impose punitive damages, the authority must be found, by fair implication and

intendment, to be incident to the express authority conferred by the legislature. See Schalz,

113 Ill. 2d at 202-03. Municipal ordinances are interpreted using the same rules of statutory

interpretation as statutes, and are reviewed de novo. Express Valet, Inc. v. City of Chicago,

373 Ill. App. 3d 838, 850 (2007). Again, de novo consideration means we perform the same

analysis that a trial judge would perform. Khan, 408 Ill. App. 3d at 578. “The fundamental

rule of statutory construction is to ascertain and give effect to the legislature’s intent.” People

ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 45 (2002). The best indication of legislative

intent is the plain and ordinary meaning of the statutory language. Birkett, 202 Ill. 2d at 45.

Since all provisions of a statutory enactment are viewed as a whole, words and phrases

should not be construed in isolation, but should be interpreted in light of other relevant

provisions of the statute. In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). “Each

word, clause and sentence of the statute, if possible, must be given reasonable meaning and

not rendered superfluous.” Lieberman, 201 Ill. 2d at 308 (citing Sylvester v. Industrial

Comm’n, 197 Ill. 2d 225, 232 (2001), and A.P. Properties, Inc. v. Goshinsky, 186 Ill. 2d 524,

532 (1999)). However, “[i]t is a cardinal rule of statutory construction that we cannot rewrite

a statute, and depart from its plain language, by reading into it exceptions, limitations or

conditions not expressed by the legislature.” People ex rel. Birkett v. Dockery, 235 Ill. 2d 73,

81 (2009) (citing In re Michelle J., 209 Ill. 2d 428, 437 (2004)).

¶ 82 In the case at bar, Boyd argues that the Commission is authorized to impose punitive

damages because: (1) the list of available remedies is nonexhaustive, (2) the Ordinance is

meant to be liberally construed, (3) the Commission has itself determined that it has the

authority to impose punitive damages, (4) the appellate court has found punitive damages

available under an analogous statute, and (5) the conduct in the case at bar was sufficiently

egregious to permit the imposition of punitive damages. We find Boyd’s arguments

unpersuasive and find that punitive damages are not permitted under the Ordinance.

¶ 83 The Ordinance does provide that relief under the Ordinance:

“may include, but is not limited to, an order to:

a. Cease the illegal conduct complained of and to take steps to alleviate the effect

of the illegal conduct complained of[.]” (Emphasis added.) Cook County Code of

Ordinances § 42-34(c)(1) (amended Nov. 19, 2002).

As such, the list of available remedies is not meant to be exhaustive, especially in light of the

Ordinance’s instruction that “[t]he provisions of this article shall be liberally construed for

the accomplishment of its purpose.” Cook County Code of Ordinances § 42-32 (amended

Nov. 19, 2002). However, this does not mean that the Commission has the authority to order

any type of relief it deems desirable.

¶ 84 “[P]unitive damages are fundamentally unlike any other measure of civil damages.”

Franz, 352 Ill. App. 3d at 1140. A punitive damages award “is not directed at compensating

a plaintiff’s injury but is directed at punishing a defendant’s actions.” Harriss v. Elliott, 207

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Ill. App. 3d 384, 390 (1991). Indeed, “[p]unitive damages actually improve the position of

the complaining party, while all other damages simply return the plaintiff to the position he

held before the wrong.” Franz, 352 Ill. App. 3d at 1140. Thus, while in awarding

compensatory damages, the focus is on the plaintiff’s losses, the focus in determining the

availability and amount of punitive damages is on the character of the defendant’s conduct.

Winters v. Greeley, 189 Ill. App. 3d 590, 599 (1989). Because of their penal nature, courts

must take caution in imposing punitive damages. See Kelsay, 74 Ill. 2d at 188. “[P]unitive

damages are never awarded as a matter of right. *** [N]o matter how egregious the

defendant’s conduct may be, the jury is never obliged to assess punitive damages.” Winters,

189 Ill. App. 3d at 599 (citing Smith v. Wade, 461 U.S. 30, 52 (1983)). Examining the other

types of relief provided by the Ordinance, it is apparent that they are compensatory (see, e.g.,

Cook County Code of Ordinances § 42-34(c)(1)(b), (c)(1)(h) (amended Nov. 19, 2002)),

require actions such as posting notices (see Cook County Code of Ordinances § 42-

34(c)(1)(j) (amended Nov. 19, 2002)), or impose a fine for violations (seeCook CountyCode

of Ordinances § 42-34(c)(1)(k) (amended Nov. 19, 2002)). None of these types of relief

indicate that the Commission is entitled to improve the complainant’s position while

punishing the violator. Indeed, the provision permitting the imposition of a fine demonstrates

that the Commission could have required the payment of a monetary penalty if it had chosen

to do so.

¶ 85 Moreover, there are certain situations in which a legislature has expressly permitted an

administrative agency to award punitive damages, including ordinances enacted by Cook

County. See, e.g., 415 ILCS 5/22.2(k) (West 2010) (“If any person who is liable for a release

or substantial threat of release of a hazardous substance or pesticide fails without sufficient

cause to provide removal or remedial action ***, such person may be liable to the State for

punitive damages ***. The punitive damages imposed bythe [Pollution Control]Board shall

be in addition to any costs recovered from such person pursuant to this Section ***.”); 820

ILCS 255/17(e) (West 2010) (“The Director of the [Illinois Department of Labor] is

authorized to assess punitive damages against anyemployer,manufacturer, importer, supplier

or other person, who knowingly and willfully violates any of the provisions of this Act

***.”); Burnham Code of Ordinances § 46-63(1) (adopted Jan. 28, 1997) (“[T]he fair

housing review board may *** [d]irect[ ] the respondent to pay compensatory/actual

damages ***, punitive damages, attorneyfees and costs.”); Cook CountyCode of Ordinances

§ 34-128(h) (adopted July 10, 2007) (“Any underpayment that has not been repaid to a

worker within 30 days of violation is subject to an additional two percent of the

underpayment as a punitive damage assessment payable to the worker.”). The presence of

such statutes and ordinances demonstrates that legislatures at all levels of government have

expressly given this powerto agencies when they choose to, and counsels against finding the

authority to impose punitive damages in the absence of that express authority. See Abatron,

Inc. v. Department of Labor, 162 Ill. App. 3d 697, 701 (1987) (“Had the legislature intended

that the Department of Labor or its Director have the authority asserted in this case, the

legislature could have easily so provided but did not do so.”). Additionally, other than one

case that is discussed below, neither party has presented, and we have been unable to

discover, any cases in which an administrative agency’s statute or ordinance is found to

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implicitly permit the imposition of punitive damages, nor is there any case in which the

agency is permitted to award punitive damages in the absence of such an express grant of

authority.

¶ 86 The sole case permitting the imposition of a punitive damages award is Page v. City of

Chicago, 299 Ill. App. 3d 450 (1998), in which the First Division of the First District

Appellate Court found that the Chicago Human Rights Ordinance authorizes the imposition

of punitive damages despite the lack of an express grant of authority. This case has been

cited recently by our Fourth Division in 1212 Restaurant Group, LLC v. Alexander, 2011 IL

App (1st) 100797, both of which Boyd relies on in support of her argument.

¶ 87 In Page, the court considered whether a complainant who prevailed on her sexual

harassment claim against her employer was permitted to receive an award of punitive

damages under the Chicago Human Rights Ordinance. As in the instant case, the court there

considered whether Chicago’s Commission on Human Relations was authorized to award

punitive damages. The ordinance provided that “ ‘[r]elief may include but is not limited to

an order: *** to payactual damages, as reasonablydetermined by the Commission, for injury

*** suffered by the complainant.’ ” Page, 299 Ill. App. 3d at 463 (quoting Chicago

Municipal Code § 2-120-510(l) (1990)). The Page court noted that courts defer to an

agency’s interpretation of the statute that it is charged to enforce; that a statute must be

interpreted within the plain meaning of the statute’s words; and that the purpose of awarding

punitive damages was to punish the individual responsible, to teach the individual not to

repeat the conduct, and to deter others from similar conduct. Page, 299 Ill. App. 3d at 463.

¶ 88 The court observed that the ordinance called for such “ ‘relief as may be appropriate’ ”

and did not limit the relief to specific damage categories or exclude punitive damages. Page,

299 Ill. App. 3d at 463 (quoting Chicago Municipal Code § 2-120-510(l) (1990)). The court

further noted that the Chicago Commission on HumanRelations had interpreted the language

of the ordinance to include the authority to impose punitive damages, and that the Consumer

Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1994)) contained

similar language for relief and had been interpreted to include punitive damages. Page, 299

Ill. App. 3d at 463-64. Finally, the court stated:

“[P]unitive damages constitute an appropriate remedy for acts of sexual discrimination

and harassment. By awarding punitive damages in cases of sexual harassment and

discrimination, the Commission can punish individuals responsible for the wrongful

conduct, prevent them from sexually harassing or discriminating against others, and deter

others from committing similar acts. We cannot find any reason that the City would

exclude the ability to recover punitive damages in an area where it would be highly

appropriate and necessary.” Page, 299 Ill. App. 3d at 464.

The court distinguished the Chicago ordinance from the Human Rights Act, noting that

“[u]nlike the Ordinance at issue, *** the Human Rights Act expressly limits its remedies to

relief identified within the Act.” Page, 299 Ill. App. 3d at 464 (citing 775 ILCS 5/8A-104

(West 1996)). Page’s holding that punitive damages were available was followed by 1212

Restaurant Group, which upheld a punitive damages award without separate consideration

of whetherthe Chicago ordinance permitted punitive damages. 1212Restaurant Group, 2011

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IL App (1st) 100797, ¶ 63. We note that no Illinois case other than 1212 Restaurant Group

has cited Page for any issue concerning punitive damages awarded by an administrative

agency.

¶ 89 After considering the applicable law, we find that we cannot apply the holding of Page

to the Ordinance at issue here. While Page noted that the Chicago Commission on Human

Relations was an administrative agency, it did not discuss the Illinois Supreme Court’s ruling

that an administrative agency is a creation of statute and is limited in its powers. See

Vuagniaux, 208 Ill. 2d at 186. Additionally, we cannot agree that the fact that the Consumer

Fraud and DeceptiveBusiness Practices Act has been interpreted to permit punitive damages,

which was relied upon by the Page court, is persuasive. A violation of the Consumer Fraud

and Deceptive Business Practices Act gives rise to an action in a court, where a judge decides

the applicability of punitive damages, not an administrative agency. See 815 ILCS 505/10(a)

(West 2010) (“Any person who suffers actual damage as a result of a violation of this Act

committed by any other person may bring an action against such person. The court, in its

discretion may award actual economic damages or any other relief which the court deems

proper ***.”). Thus, the question of the availability of punitive damages occurs in an entirely

different context.

¶ 90 As noted, we have not discovered any other case in which an administrative agency was

permitted to impose punitive damages in the absence of an express grant of authority to do

so. While we agree with the Page court that punitive damages may be “highly appropriate

and necessary” (Page, 299 Ill. App. 3d at 464) for certain violations of the Ordinance, that

decision should be left to the legislature and cannot be made by the Commission in the

absence of authority to do so.

¶ 91 We are also unpersuaded by the fact that the Commission itself has determined that it has

the authority to award punitive damages for violations of the Ordinance. In Gluszek v.

Stadium Sports Bar & Grill, Cook County Comm’n on Human Rights No. 1993E052

(Decision & Order Mar. 16, 1995), the Commission found that it had the right, in appropriate

circumstances, to award punitive damages. While a reviewing court affords substantial

deference to an agency’s interpretation of a statute which the agency administers, because

of the experience and expertise the agency has gained through time by enforcing the statute

(Phelan v. Village of LaGrange Park Police Pension Fund, 327 Ill. App. 3d 527, 531

(2001)), “[t]he determination of the scope of the agency’s power and authority is a judicial

function and is not a question to be finally determined by the agency itself” (Masterson, 188

Ill. 2d at 554).

¶ 92 Here, we cannot agree with the Commission’s determination that it may award punitive

damages. In Gluszek, the Commission relied on the same arguments made byBoyd here–that

the remedies listed in the Ordinance are expressly nonexclusive, that the Ordinance provides

it should be liberally construed, and that the analogous Chicago ordinance is interpreted to

permit punitive damages. Since we have explained why those arguments are unpersuasive, 3

Gluszek was decided prior to the appellate court’s decision in Page, so it relies on citations 3

to decisions of the Chicago Commission on Human Relations in its analysis.

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we do not find that the Commission’s decision requires us to interpret the Ordinance in the

same way as it did.

¶ 93 Finally, we do not find Boyd’s argument that the conduct in the case at bar was sufficient

to warrant punitive damages to be persuasive. As noted, when a statute does not expressly

discuss punitive damages, common law punitive damages may be available if warranted by

the facts of the case. See, e.g., Vincent, 241 Ill. 2d at 502. Here, common law punitive

damages are not available because the Commission is an administrative agency and “has no

general or common law authority.” Vuagniaux, 208 Ill. 2d at 186. Additionally, even if

common law punitive damages were available or the Ordinance authorized punitive

damages, the Commission would have needed to find that Crittenden’s conduct was

particularly egregious. See Kelsay, 74 Ill. 2d at 186 (“punitive or exemplary damages may

be awarded when torts are committed with fraud, actual malice, deliberate violence or

oppression, or when the defendant acts willfully, or with such gross negligence as to indicate

a wanton disregard of the rights of others”). In the case at bar, the Commission simply stated

that it compared Crittenden’s conduct with the conduct of a defendant in an earlier

Commission case and determined that a $5,000 punitive damages award was appropriate.

The Commission did not make a finding that Crittenden’s conduct constituted malice.

Punitive damages may be an appropriate remedy for acts of sexual discrimination and

harassment, but in orderfor an administrative agency to award such damages, the legislature

should expressly give the agency the power to award them and the criteria to use.

¶ 94 CONCLUSION

¶ 95 Forthe foregoing reasons, we affirm the circuit court’s order denying petitioners’ petition

for certiorari and confirming the decision of the Commission. However, we reverse the

Commission’s award of punitive damages, finding they are not available under the

Ordinance.

¶ 96 Affirmed in part and reversed in part.

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