## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Critt enden v. Cook Coun ty Com m ’n on Hu m an Ri ghts , 2012 IL App (1st) 112437

Appellate Court Caption J I MMY CRI TTENDEN and J I MMY’S PL ACE, Petitioners-Appellants,

v

. C OOK COUNTY COMMI SSI ON ON HUMAN RI GHTS and L YNI TA B OYD, Responde nts-Appellee s.

District & N o. First District, Six th Division
Docke t No. 1-11-2437

Filed
Rehea ring denied J une 1, 2012

J uly 31, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action arising from respondent’s allegat ions of sex ual harassment by her em p l o y er in violation of the Cook County Human Rights Ordinanc e, the appellate court upheld the trial court’s confirmation of the C o o k County Commi ssion on Human Rights’ awa rd of lost wag es as compensatory damag es and reje cted p et itioners’ challeng e of responde nt’s cre dibilit y and their claim that the Commi ssion considere d hear say evidenc e, since nothing in the rec ord indicated that the finding that responde nt’s testimony was cre dible was ag ainst the manifest weig ht

o f the evidenc e, and any err or arising from the hear ing officer ’s consideration of hear say e v id e n c e c o n c e r n in g the conduct of responde nt’s family was harmless; howeve r, the awa rd of p u nitive damag es was

reve rsed on the g round that punitive dam ag es are not permitted by the ordinanc e.

Dec ision Under Review Appea l from the Circui t Court of Cook County
, No. 11-CH-2719; the Hon. Sophia Hall, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t.Counsel on

Appea l L onny Be n Og us, of Chicag o, for a ppellants.

Anita M. Alvare z, State’s Attorney
, of C h i cag o (Maur een O. Hannon, Assistant St ate’ s Attorney , of counse l), for a ppellees.

Panel PRESI D I N G JU ST I CE R. GORDON delivere d the judgme nt of the court, with opinion.
J ustices Gar cia a

nd L ampkin concur

red in the judg ment and opinion.

OP INION

¶ 1 Respondent Ly nita Boyd claimed that s h e was sexually hara ssed by petitioner Ji mmy Crittenden while at wor

k as a barte nder at petitioner J immy ’s Place, wher e Crittenden wa s the manag er. Respondent Cook County Commi ssion on Hu m an Rights (the Commi ssion)
ag ree d, awa

rding Boyd $41,670 in lost wag es, $5,000 as compensatory damag es, and $5,000

as punitive damag es. Petitioners appea led the decision by petitioning for a writ of certiorari with the circ uit court of Cook County
, and the circ uit court denied the petition and aff irmed the Commi ssion’s decision. Peti ti o n e r s n o w a p p e a l to th e appellate court, challeng ing Boyd’s

cre dibilit y , the Commi ssion’s purported consideration of hear say evidenc e, and the damag es

awa rd. F or the re asons that follow, we aff irm in part and r ever se in part.

¶ 2 BA CKGROUND ¶ 3 On November 15, 2006, Boyd filed a verifie d complaint with the Commi ssion, a lleg ing that she had been sexually hara ssed by Crittenden on J uly 19, 2006, in violation of the Cook County Human Rights Ordinanc e (the Ordinanc e) ( Co o k Co u n ty Co d e o f Ordinanc es § 42-30
et seq. (ame nded Nov. 19, 2002)). Boy d serve d as a barte nder at J immy ’s Place in Riverdale from Aug ust 2003 th roug h J uly 19, 2006, and perf ormed her job duties satisfac torily

. She alleg es that on J uly 19, 2006, Crittenden sexually h ar as sed her, including “asking [her] to have sex with [J immy ’s Place] customer Rache l (last name unknown), touching [her] and asking [her] to touch R ache l in a s exually expli cit manner .” Boy d attempted to ignor e and discourag e Crittenden’s behavior
, but Crittenden persisted. Boyd alleg es that s h e h as not

wo rked at J immy ’s Place since the incident and filed a police repor t ag ainst Crit t en d en , resulting in criminal cha

rg es and a

criminal trial on Oc tober 27, 2006. ¶ 4 On Dec ember 27, 2006, a response was filed by Amelia Crittenden on behalf of Ji mmy ’s Wife’s, I nc., the owner of J immy ’s Place. Acc ording to the response , Boy d did not complain
to manag ement about any sexual hara ssment, worke d for th re e s h ifts following the hara ssment, and then failed to r eport for work without notice. Additionally
, Crittenden and other people prese nt at the time of the hara ssment testified at the criminal trial, denying the
events alleg ed to have taken place
, and Crittenden wa s fo u n d not g uilty

. Attache d to the

-2-response was a copy of J immy ’s Place’s p o l icy ag ainst sexual hara ssment, which the

response stated wa s furnished to employ ees. ¶ 5 On J une 1, 2007, a Commi ssion investigator issued a repor t rec ommending a finding of “Substantial Evidence ” of th e char g es and the Commi ssion enter ed an order finding substantial evidence of a violation of the Cook County Human Rig hts Ordinance

. ¶ 6 On J u l y 9
, 2 0 0 8
, the parties appea red befor e a hear ing office r for a hear ing on the complaint. Boyd was the sole witness t es t i fying on her behalf

. She testified that J immy ’s Place closed at 2 a.m., but “re g ulars” often rema ined and talked, which often included sexual

conver sations; Crittenden participated in the conver sations. When asked to provide specific s

as to inappropriate sexual activities that took place at J immy ’s P l ac e, Boyd testified that “[t] he only evening that I can rea lly specify is the evening that ever y thing ha ppened to me. The only thing that I

can sa y is that I seen Rac hel lap danc ing one of the pa trons.” ¶ 7 Boyd testified that she had never seen a sexual hara ssment policy at J immy ’s Place a nd h ad n ev er been provided with one. She further testified that Crittenden had made inappropriate comments to her, such as “y ou look g ood,” “[w]hen can I g et some,” and “I ’ve been looking at y ou, I ’ve been wanting y ou.” After such comments, Boyd told Crittenden that she was “not here for that” and that she was “not thinking about” him, and f urther te stified that Crittenden’s beha

vior “slowed dow

n” af ter that, but did not stop. ¶ 8 Boyd testified that on the night of the alleg ed hara ssment, prior to closing
, Rache l c ame behind the bar are a and walked toward Boyd, with Crittenden following Rache l. As she was walking toward Boyd, Rache l called Boyd “fine ” and “sex y

. ” Rache l attempted to “g rab” Bo y d, but Boyd caug ht Rache l’s arms and wre stled her to the floor. Crittenden wa s cl o s e enoug h that when Boyd wre stled Rache l to the floor, he straddled Rache l’s back, “riding her like a pony .” Boyd stepped back and Rache l stood up; B oy d told them to leave and Ra chel and Crittenden lef

t the bar a rea

. ¶ 9 After J immy ’s P l ac e cl o s ed at 2 a.m., Boyd was clea ning the bar while a number of people rema ining eng ag ed i n ac tiviti es such as dancing on tables and “humping .” At approximately 2:10 a.m., Boyd took her tip jar and sat on the bar to beg in counting her tips. Crittenden and Rache l w ere beside Boyd and she felt someone’s hand tugg ing at her pants; Boyd did not know whether the perso n t u g g ing her pants was Crittenden or Rache l. Boyd jumped up and told them to stop. Boyd then went behind the bar, wher e h er manag er was counting money in the cash r eg ister, and notice d that she had forg otten to retrie ve napkins and straw s from the stora g e ar ea, loc ated in the ba ck of the establishment. ¶ 10 Bo y d we n t t o the storag e are a and obtained an armful of supplies. When she turned around, Boyd observe d Rache l walking toward her from the direc tion of the building’s back door. Boyd told Rache l to “[g]o on,” but Rache l kept telling Boyd to “come on.” Boyd ag ain told Rachel to g o ahea d of her . Boyd then testified: “While I am g oing back and forth with her telling her to g o ahea d, J immy [C rittenden] comes in the backr oom. And I am wre stling g oing back and forth with her. I didn’t see J immy walking up. And the next thing y ou know, J immy walks up and takes her blouse and her bra and flips it up and say s, ‘Touch them, touch them. You know y ou want them, touch them.’

-3-I ’ve got my arm in betwee n her breasts at this time, pushing them b o th back off of
me, telling them g et back off me. At this time I ’m hollering for L ois, calling
, ‘L ois, L ois,
come g et them, come g et them.’ And L ois finally came back there
, and told them leave that g irl alone. ‘L y nita, come on, let’s g o.’ They

moved out of the way at that time. I went on about my business, put the stuff down, g ot my

purse, a nd Ileft. So that’s what ha ppened the re.” ¶ 11 Boyd then went home, wher e she was “a nervous wre ck” and talked to her husband about the incident the ne x t day , which wa s a Thursday

. On Friday
, Boy d returne d to work. Boy d testified that she returne d “[b] eca use I neede d my job, but I just didn’t fee l comforta ble there
any more. I didn’t fee l safe there any more when I went there .” I n response to questions from the hear ing office r, Boyd testified that she went into work on the Fr iday afte r the incident and told L ois
, the manag er, that she was no longe r comforta ble there
, did not fee l safe
, and that 1 would be her last day

. Boyd testified that she worke d her entire shift on F riday befor e L ois

arr ived and that she told L o i s that she did not fee l comforta ble speaking with Crittenden. Crittenden was not pre sent while B oy d was wor king on F riday

. ¶ 12 Boyd also testified that she wa s scheduled to wor k Saturday , but did not have a way of communicating with any one at J immy ’s P lace
, so she went in and s poke 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 “ca me down there and supported [her]” and, in the proc ess, her

son “ac ted a fool” and “ knocked some chair s down” be cause “[h] e was mad. H e is y oung , teena g e. *** B ut nothing happe ned to any body .” ¶ 13 Boyd testified that there was a criminal trial resulting from the incident and that th er e

wer e witnesses to the events of the evening
, but the State did not call any of them to te stify

on her behalf

. On cross-e x amination, Boy d rec alled testify ing at the criminal t ri al that the
events occur

red on J uly 26, 2006. When defe nse counsel reminded her that the complaint in the instant case stated that the incident occur red on J uly 18 and 19, Boyd responde d: “Well,
y es, it must be my mistake, but I know the wee k befor e my husband’s birthday

. His birthday is Aug ust 4.” Boyd acknow ledg ed filing a sworn complaint stating that the incident occur red

on J uly 19. Boyd’s counsel interrupted t o s ay t h at she would “be happy ” to amend the complaint to chang e the date to the 26th and that “[w]e rea liz ed at some point subsequent the date wa s incorre ct. We did not amend it but we will amend it.” 2 ¶ 14 Def

ense c ounsel ag ain questioned B oy d about filing a sworn complaint stating that the date of the incident was J uly 19. Boyd testified: “I t was a wee k befor e my husband’s birthday beca use it was his 50th birthday
, and I was g iving him a big 50th birthday party at J immy ’s Place. So it was a wee k befor e t h at

. ” Boyd ultimately did not hold her husband’s party at J immy ’s Place. ¶ 15 On redire ct, Boyd testified that she was not consulting a cale ndar when she filled out the

Boyd la te r te st if

ie d tha t the worker s r e f

er re d to the m ana ger as “Loi s Lane ,” but tha t her 1
act ual name was Anni e Gr and ber ry.

T her e i s no in dic at ion th at th e c om pla int was ever a m end ed. 2

-4-complaint. She testified that “[ t ] h e we ek befor e the 4th would have been the end of the

month, that Wednesday

. I don’t know the corr ect date, but it h ad t o be in the late 20s. Be cause the 4th w as that Fr iday
, next Fr iday or something like that. But I do know it was a

wee k befor e my

husband’s 50th birthday .” She testified that whe n she filed the complaint, she did not knowing ly

state any false inf ormation. ¶ 16 Boyd also testified to the eff ect the incident had on her. There wer e no bruises or other phy sical evidenc e of the incident, but her “ner ves [were] shot,” her “hair came out,” and her psoriasis “fla

red up rea lly bad.” She testified that when she left J immy ’s Place, she did not have another j o b
, b u t found new employ ment approximately a wee k and a half later as a barte nder. When she stopped working at J immy ’s Place, she was making a p p r o xim a te ly $ 120
per w eek plus tips, which ty pically amounted to betwe en $650 and $700. ¶ 17 On cross-e x amination, Boyd testified that she was paid in cash and did not have a ny thing
to substantiate her fig ures. She further admitted that she did not decla re her tips on h er income tax return that y ear

. ¶ 18 Boyd testified that her new position was only one day per wee k, and she rema ined there for approximately a y ear and a half befor e she found a second job to supplement her income. Boyd left the one-da

y -a- wee k job in Marc h 2008 and was still employ ed by the second employ er at the time of the hear ing. Boy d testified that her base income was approximately $400 to $500 a wee k, including tips. ¶ 19 The first witness to testify on behalf of the defe nse was Rache l Thomas. Thomas testified that she visited Jimm y ’s Place fre quently and was prese nt on the evening of Jul y 26, 2006. Thomas denied any events occur ring betwee n midnight and 1:30 a.m. in which she had her blouse or bra pulled u p , n o r d i d s h e do so herse lf. Thomas also denied lap dancing with
any one and testified that Crittenden never pushed her into Boy d or t o l d Bo y d to touch Thomas’s breasts. Thomas t estified that she was a for mer e mploy ee of J immy ’s P lace and last worke d there in 2003 or 2004. She testified that she fre quented J immy ’s Place “to have
a g ood time. Iknow t he people that work there. They know m e. I used t o work with t hem. They are like my family .” On cross-e x amination, Thomas denied stay ing at J immy ’s Place past closing and testified that she only did so if she was waiting in the parking lot for a ride. ¶ 20 The defe nse’s second witness was R i ck Ho wa rd, a patron of J immy ’s Place who was
prese nt on the evening of J uly 26, 2006; Howar d also occa sionally worke d at J immy ’s Place when he was asked to “help out.” Howar d testified that he left J immy ’s Place betwee n 1:30 and 1:45 a.m. and did not observe any woman bare -bre asted that evening
, nor did he observe Crittenden push Thomas into Boyd. Howar d test i fi ed that he was never shown a sexual hara ssment policy

. Howar d fur t h er testified that to his knowledg e, ever y body usually left prior to the 2 a.m. c losing time. ¶ 21 The defe nse’s third witness was Crittenden, who testified that he was prese nt on J uly 26, 2006. Crittenden denied that Thomas was bare -bre asted, denied pulling up her blouse or bra,

an d denied pushing Thomas into Boy d. Crittenden testified that Boyd did not wor k o n Thursday
, but worke d a full shift on Fr iday and came in for a few hours on Saturday ; she did
not make any complaints to him about any incidents occur ring on J uly 26, nor was Crittenden informed of her making any complaints to a ny one else. Crittenden testified that he was not

-5-prese nt when Boyd worke d on Fr iday
, J uly 28. On Saturday
, Crittenden rec eived a telephone

call at his home at approximately 2 p.m. saying that “B oy d’s family was down there tear ing
my place up, throwing the chairs and differe nt stuff. I know I hear d her brother he want to kill me about something.” When Crittenden arr ived at Ji mmy ’s Place, the y wer e g one. ¶ 22 Crittenden testified that J immy ’s Place had a written sexual hara ssment policy and that he was “pre tty sure they was [ sic ] out” for employ ees. Crittenden testified that J immy ’s Place closed at 2 a.m. during the wee k and that nobody was permitted to r emain past that time; it

was “a policy ” that “[w]e have to be out of the bar at 2:00,” including patrons and employ ees, and he was informed of that require ment by the police depar tment. Th e b artenders beg an “bre aking down” the bar at approximately 1:30, and “[a]t 2:00 my barte nders, my help, they be g one.” ¶ 23 Crittenden test i fi ed t h at Bo y d was a very g ood employ ee and came to work on time. Crittenden further testified that Bo y d wa s paid $45 per day and g ener ally worke d three to four da y s a we ek. She re ceive d tips, but since she usually worke d during the day , “lucky if
y ou g et $20 in tips” and not $650 to $ 7 0 0 p er week. The ty pical amount of tips she could have e x pecte d on a we ekday eveningin J uly

2006 would have be en appr ox imately $70. ¶ 24 On Fe bruar

y 27, 2009, the hear ing office r issued a rec ommended decision, to which the parties had the opport u n i t y to file written exceptions. The hear ing office r rec ommended a finding of liability in favor of Boyd ag ainst J immy ’s Place. The rec ommended order included the following footnote:
“The rec ord includes much contra dictory testimony as to whether the J uly 26, 2006 date i s the acc urate date. Complainant’s orig inal Complaint alleg ed J uly 19, 2006 as the rele vant date. After revie wing the t estimony within the rec ord, the Hea ring Offic er conclude s that th e l i k el i es t date is J uly 26, 2006 and that Complainant’s failure to

acc urate ly rec all that date at the time of filing of her Complaint is immaterial to the truth of her alleg ations.” The rec ommended order conclude d that Boyd h a d p r oven by a preponde ranc e of the evidenc e that she was sexually hara ssed during her employ ment in that she was subjected to a hostile

wo rk environment. I t further conclude d that Boyd had proven that the incidents of sexual hara ssment amounted to constructive discharg e and that she was entitled to an awa rd of
compensatory

damag es, including back pa y , attorney

fee s, and costs. ¶ 25 The order stated th at t h e co n d uct complained of by Boyd was “ce rtainly sufficie nt” to establish a hostile working environment “base d upon any rea sonable stand ar d” and that “[s] he credibly testified t o a his tory of sex ually sug g estive remarks directed towa rd her by Mr. Cr i t t en d en , culminating in the events of the evening of J uly 26, 2006, which by any

measure wer e extreme in nature and sufficie nt to rea ch the ‘seve r[e] and perva sive’ standard articulated by

this Com mission and the courts.” ¶ 26 The hear ing office r found the defe nse’s witnesses “simply not cre dible.” Thomas was a regular patron of J immy ’s Place and a former employ ee and stated that she was close to the people there

. Howar d was also a regular patron and occa sional employ ee and had left prior
to the time Boyd testified the incidents took place

. Fin al l y , conce rning Crittenden, the hear ing of

fice r found:

-6-“Throug hout his testimony
, Mr. C rittenden’s dem ea n o r was peculiar. He appeare d extremely nervous and continually swiveled his chair sharply while he testified. I n [a] ddition he proff

ere d other testimony that Ms. Bo y d cr ed ibly disputed, such as his inhere ntly difficult-to-be lieve claim that the bar is vaca nt, under local law, by 2:00 a.m.

eac h evening

. Ms. Boyd testified that it was common for both employ ees and patrons to be inside the establishment past 2:00 a.m., and g iven her descr iption of the many duties

nece ssary to close the bar for the evening
, it is simply not cre dible that the establishment is alway s vaca

nt by 2:00 a.m.” ¶ 27 The hear ing office r found that there was no basi s i n t h e re co rd to dispute Boyd’s testimony

. Whil e she worke d for an additional day
, Crittenden was not prese nt for that shift. “F urther, both Ms. Boyd and Mr. Crittenden testified that when she returne d the following day
, along with her family
, to announce her resig nation, her son was exhibi ting a g reat deal of ang er and overturne d some furniture

. Had th e s ex u al hara ssment of which Ms. Boyd complains not occur

red at all–as Mr. Crittenden testified–there is no logic al rea son why Ms. Boyd would return to the bar wi t h family members nor why an ang ry encounte r would develop.” ¶ 28 I n deter

mining that Crittenden’s conduct constituted actionable hara ssment, the hear ing office r noted: “Thoug h this case deals almost exclusively with comments and behavior that

occur red on one night, there was a demonstrated history of simil ar behavior over the course of Ms. Boyd’s employ

ment.” Consequently
, the hear ing office r found that Boyd’s alleg ation of construc tive discharg e and hostile wor k environment wa s sustained. ¶ 29 Concerning damag es, the hear ing office r compar ed the conduct with prior Commissi on

case s and deter

mined that a compensatory awa rd of $5,000 was war

rante d, as was a punitive damag es awa

rd of $5,000. Wit h reg ard to lost wag es, the hear ing office r noted t h at t h e information i n the record “rende rs a prec ise com p u tation impossibl e.” The hearing office r pointed out that Crittenden claimed that Boyd rec eived a highe r salary than she claimed, but that h is estimate of her tips was much lower than hers. The hear ing office r conclude d: “Given that Ms. Boyd testified that the tips wer e paid in cash, the ambig uity must be resolved in her favor

. I t is Respondent which would most likely have some documentation of the tip income rec eive d by its wait staff, but Respondent failed to come forwa rd with any such documentar

y evidenc e, rely

ing solely upon Mr. Crittenden’s incre dible estimate of just $20
per day in tips.” The hear ing office r deter mined that Boyd had $86,240 in los t i n co m e. Subtracting her income ear ned in mitigation, th e h ea ri ng office r deter mined that Boyd’s

awa rdable lost wag es constituted $41,670. ¶ 30 J immy ’s Place filed its exceptions to the rec ommended order
, arguing: (1) Boyd did not
prove her sworn char g e, (2) Boyd’s cre dibilit y was destroy ed as a matter of law and fac t, (3) the rec ommended order relied upon inadmissible hear say evidenc e and evidenc e that lacke d

a foundation, (4) there was insufficient evidenc e of damag es, (5) the C o m m i s s i o n did not authorize an awa

rd of punitive damag es, and (6) there was no basis for an awa rd of punitive damag es. ¶ 31 On Aug ust 11, 2009, the hea ringoffice r issued his final rec ommended order

. The final

rec ommended order incorpora ted the proposed rec ommended order and also addre ssed the

-7-filed exceptions. The hear ing office r rea ffirme d that “[b] eca use this case prese nted radic ally conflicting fac ts, cre dibilit y deter minations assumed particula r importance ” and that it was “esse ntial” for the hear ing office r to deter mine “who was being tru t h fu l and who was intentionally ly ing.” The hear ing office r ag ain mentioned that Crittenden’s demea nor while testify ing dur ing the hear ing w as “pa rticularly striking” : “His answe rs wer e evasive and he continually fig eted, nervously swiveled his chair
, and clenc hed the chair ’s arm rests as he testified. He often appea red to be attempting to think of a suitable and non-incriminating answe r befor e answe ring a question put to him. I n addition, he off

ered some testimony that was so fac ially unlikely as to sug g est that he

was dissembling in an eff ort to cast doubt on Complainant’s story , particula rly in reg ard
to his claim t hat t he establishment was empty and closed b y 2 : 0 0 a.m. sharp each day

. As set out in the Proposed Recommende d Orde r, it simply would not have been possible fo r the employ ees to perf orm the arr ay of tasks descr ibed and to empty and cl o s e t h e

e s ta b li s h me nt by 2:00 a.m., which rende red Complainant’s testimony that it w a s c o mm o n for e mploy ees a

nd patrons to be pr esent a fter 2:00 a .m. all the more c redible.” ¶ 32 The he aring office r also addressed the argument about B oy d’s contra dictory testimony about the date of the incide nt: “Ag ain, Complainant’s cre dibilit y while e xp la in in g th e in c o n s is te n c y w a s h ig h
, in a s muc h

as they wer e a few day s apar t. Whil e she may have g otten the date wrong at the time that Commi ssion intake personnel prepare d her Compl aint, the di ffe renc e between the two dates is simply not terribly signific ant. Were she inventing a totally false story of sexual h ar assment (which is essentially what Respondent is urg ing the Commi ssion to find here ), it is more likely that Complainant would have testified in acc ordanc e with the J uly 18 dat e s et o u t i n the Complaint. After all, if the entire story wer e false, why bother try ing to e x plain why

she had be en mistaken a

bout the exact date? ” ¶ 33 Concerning the evidenc e of Boyd’s famil y co m i n g t o the bar, the hear ing office r first noted that the rules of evidenc e did not apply in matters befor e the Commi ssion. Howeve r,

even if they did, the hear ing office r noted that the evidence was not hear say evidenc e that was used to show that “ ‘Claimant’s own f lesh and blood believe d Claimant’s version’ ” : “To the contra

ry , the fac t that Complainant returne d to the establishment with family members is signific ant beca use it corr oborate s Complainant’s te s ti mo n y th a t a s ig n if icant
event had occur

red a few nights prior (a fac t that Respondent disputes in its entirety ). I f

no event of conseque nce occur red on the evening o f J u l y 2 6
, why would Complainant
return with ang ry relatives a day or so later? I n no sense was the testimony proff ere d (nor
reg arde d by the Hea

ring Offic er) as proof of what Complainant’s relatives had been told

or believed had occur

red. I t was the a ct of re turning to the establishment with r elatives for the purpose of resig ning her position that car ries the sign i fi ca n ce and tends to

corr oborate Complainant’s testimony that highly upsetting events had rec ently occur red which prompted the sudden re signation.” ¶ 34 On Fe bruar

y 16, 2010, the Commi ssion enter ed i t s d ec i s i o n and order adoptingthe hear ing of

fice r’s fina l rec ommended orde r and f inding that Boy d proved a violation of the Cook County

Human Rig hts Ordinance

.

-8-¶ 35 On J an u ar y 2 1
, 2 0 1 1
, J immy ’s Place and Crittenden filed a petition for a writ o f

certiorari with the circ uit court of Cook County
, reque sting the court to re verse the final decision of the Commi ssion and enter judgme nt on their behalf

. On J uly 22, 2011, the circ uit
court enter ed an o rd er d en y ing the petition for writ of certiorari and aff irming the Commi ssion’s decision as to liability and dama g es. This appe al follows.

¶ 36 ANAL YSI S ¶ 37 On ap p ea l
, p et i t i o n er s ra i s e i s s u es co n ce rn i ng the Commi ssion’ s cr ed i b i l i t y deter mination, its purported use of hearsay evidenc e, and its deter mination as t o damag es. We consider e ach a

rg ument in turn.

¶ 38 I . Credibility Deter mination ¶ 39 I n the case at bar, the hear ing of fice r, whose opinion was adopted by the C ommissi on, found Boyd’s testimony cre dible. Petitioners argue: (1) the Commi ssion’s deter mination th at Boyd was more c redible tha n petitioners’ witnesse s was ag ainst the manifest weig ht of the evidenc e and (2) Boyd should not have be en per mitted to contra dict her sworn alleg ations. ¶ 40 The decision of the Commi ssion, which adopted the hear ing office r’s rec ommendations, is an administrative decision and judicial revie w is g overne d by the Administrative Review L aw (735 I L CS 5/3-101 et seq. (West 2008)). 325 I L CS 5/7.16 (West 2008). Whil e the instant appea l arises from petitioners’ petition for a writ of certiorari
, “[t] he standards of revie w under a common law writ of certiorari are essentially the same as those under the Administrative Review L aw.” Hanrahan v. W illiams
, 174 I ll. 2d 268, 272 (1 9 9 6 ) (citing Smith v. Departme nt of Public Aid
, 67 I ll. 2d 529, 541-42 (1977))

. I n t h e ca se of an ad m i n i s t ra tive revie w action, we revie w the finding s of the hear ing office r during the administrative hear ing and not the decision of the circ uit court. Marconi v. Chicago Heights Police Pension Board
, 225 I ll. 2d 497, 531 (2006) ( per curiam ). I n revie wing the actions of

an administrative ag en cy , “[t] he finding s and conclusions of the administrative ag ency on questions of fac t shall be held to be prima fac ie true and corr ect.” 735 I L CS 5/3-110 (West 2008). The revie wing cou rt i s n o t to rew eig h the evidenc e or make an independe nt deter mination of the fa ct s. Kouzoukas v. Retireme nt Board of the Policeme n’s Annuity & Bene fit Fund , 234 I ll. 2d 446, 463 (2009). ¶ 41 The propriety of the ag ency ’s finding s of fac t w ill be upheld unless they are ag ainst the manifest weig ht of the evidenc e. Kouzoukas
, 234 I ll. 2d at 463; Marconi
, 225 I ll. 2d at 532. “An administrative ag ency decision is ag ainst the manifest weig ht of the evidenc e only if the opposite conclusion is clea rly evident.” Abrahamson v. Illinois Departme nt of Professional Regulation
, 153 I ll. 2d 76, 88 (1992). The fac t that the opposite conclusion is rea sonable or t h at t he reviewing court may have rea ched a di ffe rent outcome does not justify reve rsal of the administrative finding s. Abrahamson
, 153 I ll. 2d at 88. “I f the rec ord contains evidenc e to suppor t the ag ency ’s decision, it should be aff irmed.” Abrahamson
, 153 I ll. 2d at 88-89. ¶ 42 I n t h e ca se at bar, petitioners argue that the Commi ssion’s decision was aga i n s t t h e manifest we ight of the evidence. Spec ifically , petitioners ar g ue that the Commission erred in finding cre dible evidenc e to support the sexual hara ssment char g e “base d on perjury of an

-9 -individual, criminal violations of that individual, and uncorr oborate d testimony
, in the fac e

of witnesses who did not commit perjury
, did not admit criminal violations and had nothing
to g ain.” Petitioners claim that Boyd’s testim o n y was wholly incre dible since (1) she
contra dicted the a lleg ations of her complaint twice, ( 2) she testified that she did not report her tip income on her income taxes, a nd (3) her testimony was uncorr oborate d. I n contra st, petitioners argue that their witnesses wer e more cre dible in part beca use they did none of the above. We f

ind petitioners’ ar g ument unpersua sive. ¶ 43 I n essenc e, petitioners are asking us to rew eig h the evi d en ce an d d eter mine that their witnesses wer e more cre dible than Boyd. As noted, we are not permitted to rew eig h the evidenc e or make cre dibilit y deter minations (

Kouzoukas
, 234 I ll. 2d at 463), and we will aff irm an ag ency ’s decision if there is evidenc e in the rec ord to support it ( Abrahamson
, 153 I ll. 2d at 88-89). I n the case at b ar , t h er e i s evidenc e in the rec ord to support the hear ing office r’s deter

minations. The hear ing o fficer made it clea r, in both his proposed

rec ommended order and in his final rec ommended order
, that “[b] eca use this case prese nted radic ally conflicting fac ts, cre dibilit y d e te r mi n a ti o n s a s s u me d p a r ti c u la r im p o r ta n c e” and that it was “esse ntial” for the hear ing office r to deter mine “who was being truthful and who was intentionally ly ing.” The hear ing office r also stated that he found Boyd’s testimony cre dible and specific ally explained why he did not find petitioners’ witnesses cre dible. For instance, in his final rec ommended order
, the hear ing office r noted that Thomas was a regular patron of J immy ’s Place and a former employ ee who stated that she was close to the people there ; Howar d was also a regular patron and occa sional employ ee who had l ef t prior to the time Boyd testified t he incidents took place

. Finally
, concerning Crittenden, t he hearing office r found:
“Thr o u gh o ut his testimony
, Mr. C rittenden’s demeanor was peculiar. He appeare d extremely nervous and continually swiveled his chair sharply while he testified. I n [a] ddition he proff

ere d other testimon y t h at M s

. Boyd cre dibly disputed, such as his inhere ntly difficult-to-be lieve claim that the bar is vaca nt, under local law, by 2:00 a.m.

eac h evening

. Ms. Boyd testified that it was common for both employ ees and patrons to be inside the establishment past 2:00 a.m., and g iven her descr iption of the many duties

nece ssary to close the bar for the evening
, it is simply not cre dible that the establishment is alway s vaca

nt by 2:00 a.m.” Additionally
, all of petitioners’ arguments befor e us wer e also made befor e the hear ing office r, and conseque ntly
, we cannot find t h at h i s d ecision to believe Boyd over the other witnesses was ag ainst the manifest weig ht of the evidenc e. See People v. Strickland
, 154 I ll. 2 d 489, 521 (1992) (noting that the same argument conce rning a defe nse theory had been
prese nted and specific ally reje cted by the t rial court and upholding the t rial court’s fac tual finding ); Fuery v. Rego Co.
, 71 I ll. App. 3d 739, 745-46 (1979) (“I t cannot be forg otten that the trial judge here also considere d these same arguments *** and reje cted them afte r car eful consideration.”). ¶ 44 We are also unpersua ded by petitioners’ arguments conce rning Boy d’s contra diction in her complaint. Petitioners claim that Boy d was permitted to contra dict her sworn alleg ations twice: once when she testified that the incident occur red on J uly 26, 2006, not July 19, and
ag ain when she t estified that she returne d to work on Fr iday and S aturda y despite alleging

-1 0 -that she nev er re t u rned to J immy ’s Place. Petitioners argue that Boyd’s alleg ations wer e

judicial admissions and s h e should not have been permitted to contra dict them; thus, they claim, Boy

d did not prove t h e al l egations in her complaint and should have been denied relief . We find petitioners’ ar g ument unpersua sive. ¶ 45 J udicial admissions “ ‘ar e formal conce ssions in the pleading s in the case or stipulations by a party or its counsel that have the eff ect of withdrawing a fac t from issue and dispensing wholly with the need for proof of the fac t.’ ” Knauerhaze v. Nelson
, 361 I ll

. App. 3d 538, 557-58 (2005) (quoting J ohn Wil liams Strong, McCormick on Evidence § 254, at 142 (4th ed. 1992)); see also Lawl or v. N orth American Corp. of Illinois
, 409 I ll. App. 3d 149, 163 (2011). Th ey are define d as “deliber ate, clea r, unequivoca l statements by a party about a

concr ete fact withi n that party ’s knowledge .” In re Estate of Rennick
, 1 8 1 I l l

. 2d 395, 406 (1998) (citing Hansen v. Ruby Construction Co.
, 155 I ll. App. 3 d 4 75, 480 (1987))

. A verifie d pleading rema ins part of the rec ord despite any amendments to the pleading s “and
any admissions not the product of mistake or inadver tence become binding j u d i ci al adm issions.” Rynn v. Owens
, 181 I ll. App. 3d 232, 235 (1989) (citing American National Bank & Trust Co. of Chicago v. Eri ck s o n , 1 1 5 I ll. App. 3d 1026, 1029 (1983))

. “A party cannot cre ate a fac tual dispute by contra dicting a previously mad e judic ial admission.” Burns

v. Miche lotti
, 237 I ll. App. 3d 923, 932 (1992). Howeve r, “ ‘[ t ]he doctrine of judicial admissions re q u ires thoughtf ul study for its application so that justice not be done on the streng th of a chanc e statement made by a nervous party .’ ” Smith v. Pavlovic h
, 394 I ll. App. 3d 458, 468 (2009) ( quoting Thomas v. Northingt on , 134 I ll. App. 3d 141, 147 (1985)). ¶ 46 Although neither party discusses it
, we must first consider the standard of revie w that applies t o our re v iew of the C ommissi on’s decision to acc ept Boy d’s t estimony instead of limit ing her to the alleg ations in her complaint. There are two lines of case s conce rning the
proper standard of revie w. The first, established in 1987 by Hansen
, 155 I ll. App. 3d at 480, considers the is s u e as a question of law subject to de novo revie w. See, e.g. , Choate v. Indiana Harbo r Belt R.R. Co.
, 2011 I L App (1st) 100209, ¶ 86; Herman v. Power Maintenance & Constructors, LLC
, 388 I ll. App. 3d 352, 360 (2009); Elliott v. In d u s t rial Comm’n
, 303 I ll. App. 3d 185, 187 (1999). De novo considera tion means the revie wing court perf orms the s ame analy sis that a trial judge would perf orm. Khan v. BDO Seidman, L LP
, 4 0 8 I l l

. App. 3d 564, 578 (2011). The de novo standard of revie w derive s from t h e require ment that a judicial admission be a “deliber ate, clea r, unequivoca l statement of a party about a concr ete fac t within that party ’s peculiar knowledg e” and is base d on the deter mination that the question of whether the statement is e quivocal is one of law and not fac t. Hansen , 155 I ll. App. 3d at 480. ¶ 47 The second, beg i n n i n g in 1988 with Lowe v. Kang
, 167 I ll. App. 3d 772, 777 (1988), applies an abuse of discretion standard of revie w. See, e.g. , Serrano v. Rotman
, 406 I ll. App. 3d 900, 907 (2011); Smith
, 394 I ll. App. 3d at 468; Dremc o, Inc. v. Hartz Construction Co.
, 261 I ll. App. 3d 531, 536 (1994). “An abuse of discretion occur s when no rea sonable person would take the view adopted by the court.” Trettenero v. Police Pension Fund
, 333 I ll. App. 3d 792, 801 (2002) (citing In re Marriage of Blunda
, 299 I ll. App. 3d 855, 865 (1998))

. The abuse of discretion standard focuse s on the co n t ex t of the purported admission: “What constitutes a judicial admission must be decide d under the circ umstances in e ach case , and

-1 1 -befor e a statement can be held to be s u ch an admi ssion, it must be g iven a meaning

consistent with the context in which it was found. [Citation.] I t must also be considere d in relation to the other testimony and evidenc e prese n ted.” Serrano
, 406 I ll. App. 3d at 907 (citing Smith , 394 I ll. App. 3d at 468). ¶ 48 We n o t e t hat both the case s advocating for de novo revie w and the case s applying the abuse of discretion st andar d of re view ag ree on the same ba sic fra mework to be applied in deter mining whether a statement is de emed a judicial admission. Thus, a case applying the abuse of discretion standard still require s the statement to be “clear
, u n eq u ivocal, and uniquely within the party ’s persona l knowledg e” ( Serrano
, 406 I ll. App. 3 d at 9 07 (citing W illiams National ease, Ltd. v. Motter
, 271 I l l

. Ap p

. 3d 594, 597 (1995)) ), and a case applying de novo revie w also looks at the context of the statement. See Herman
, 388 I ll. App. 3d at 361 (noting that the doctrine should not be applied to a n attorney ’s statement of leg al opinion in a summary judgme nt proce eding
, “espe ci all y if the opinion was manifestly i n corr ect within the context of the statement itself”). In the case at bar, reg ardle s s o f t h e standard of revie w applied, we cannot find that the Commi ssion err ed in permitting Boyd to clar ify and explain the alleg ations in her complaint. ¶ 49 As noted, a verifie d pleading rema ins pa rt of the rec ord despite any amendments to the pleading s “and any admissions not the product of mistake or inadver tence become binding judicial admissions.” Rynn
, 1 8 1 I l l

. App. 3d at 235 (citing Erickson
, 115 I ll. App. 3d at 1029). Her e, howeve r, Boyd testified that she made a mistake by alleg ing that the sexual hara ssment occur

red on J uly 19, 2006, instead of J uly 26, and the hear ing office r and t he Commi ssion a cce pted the explanation tha t the incident occur

red on J uly 26. Boyd testified that she did not consult a cale ndar befor e filling out the complaint form with the Commi ssion and further testified that she knew the date during the hear ing due to its prox imity to her husband’s fiftieth birthday

. Her attorney also commented that they discovere d the mistaken date at some point afte r the complaint had b ee n fi l ed ; based on the rec ord, it appea rs that counsel was not prese nt when Boyd completed the complaint form, with the hear ing office r’s final rec ommended order indicating that the compl ai n t would have been prepa red by “Commissi on intake personne l.” Finally
, Boy d testified that she did not knowing ly make any false alleg ations in her co m p l aint. Given Boy d’s ex planation, t he differe nce of only seven day s betwee n the two dates, and the insignifica nce of the exact date of the incident t o t he

overa ll cause of action, we cannot find that the Commi ssion err ed in permitting Bo y d to testify that the incident occur red on J uly 26 and n ot J uly 19, nor can we find err or in the Commi ssion permitting B oy d to testify that she worke d one additional shift two day s after the incident whe n Crittenden was not pre sent. ¶ 50 We find petit i o n er s ’ au t h o rity to the contra ry to be inapposite. I n O’Neill v. Chicago Transit Authority
, 5 I ll. App. 3d 69 (1972), the issue was whether the plaintiff should ha ve been permitted to completely contra dict the materia l fac ts of his complaint afte r the close of the evidenc e at trial. The original complaint alleg ed, and the plaintiff testified, that he w as attempting to boa

rd a bus when the driver place d the bus in motion befor e the plaintiff had completely boarde d; the plaintiff testified that he dr ank two bee rs that nig ht. O’Neill , 5 I ll. App. 3d at 71. After the close of evidenc e, wher e the defe ndant’s witnesses testified that the plaintiff appea

red intox icated, the p l ai ntiff amende d his complaint to alleg e that he was

-1 2 -intox icated, enter ed the bus, and fell out the open door, and that the driver knew o f the

plaintiff’s condition and failed to take prec aution to protec t him from injury while on the bus. O’Neill
, 5 I ll. App. 3d at 72. The appellate court found that the trial court err ed in permitting the plaintiff to amend his complaint, noting that “[p] laintiff cannot abandon his own sworn evidenc e and then attempt to rec over by adopting completely inconsistent evidenc e produ ced by other wi t n es s es .” O’Neill
, 5 I ll. App. 3d at 72. Her e, Boyd’s evidenc e was more of a clar ification than a

n inconsistency

. ¶ 51 Petitioners also cited to Burdin v. Jefferson Trust & Savings Bank of Peoria
, 133 I ll. App. 2d 703 (1971), in which the appellate court found that the plaintiff’s amende d complaint failed to s t at e a ca use of action when he amended his complaint from alleging a breac h of lease to alleg ing a brea ch of a partne rs h ip ag ree ment. The appellate court noted that the plaintiff would be bound by the initial verifi ed complaint unless the amende d complaint disclosed that the admissions were made throug h mistake or inadve rtenc e. Burdin , 133 I ll. App. 2d at 708. The court found that “[b] y no stretch of the imag ination can we conclude that the alleg ations in the orig inal complaint and first amende d complaint wer e made under a misapprehe nsion or m istake,” finding that the pl aintiff “most certainly would have known whether he was operating under a lease ag ree ment or a partne rship ag ree ment.” Burdin
, 133 I ll. App. 2d at 708. See also Bev erly Bank v. Coleman Air Transport
, 134 I ll. 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 answe r, espec ially wher e the plaintiff had asser

ted the attorney -client privileg e in the tr i al co urt and had preve nted disclosure of the circ umstances surrounding the verification of the or igina l answer). I n the

case at bar , Boyd’s complaint was ba sed on mistake or ina dverte nce. ¶ 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 worke d one additional shift when Crittenden was not prese nt. The events otherwise alleg ed in the complaint wer e consistent with her testimony at trial. L ikewise, t h e p laintiff in O’Neill did not argue that the inconsistent positions wer e the result of mistake or inadver tence

. See also Dark v. United States Fidelity & Guaranty Co.
, 175 I ll. App. 3d 26, 32-33 (1988) (re jecting the plaintiff’s arguments that he should not be bound by the damag e amount stated in ve rified pleading s when there was

no mention of mistake or inadver tence ). Thus, we do not find O’Neill persua sive. Simi larly
, unlike in Burdin
, here
, the mi s t akes made by Boyd wer e not of such mag nitude that she “most cer tainly would have known” of them at the time of filing her complaint. See Burdin
, 133 I ll. App. 2d at 708. As noted, Boyd testif i ed that she did not have a cale ndar and the

rec ord sug g ests that she filled out the complaint form without the assistance of an attorney and without any

specia liz ed knowledg e. ¶ 53 Petitioners argue that Boyd was require d to “s h i ft her sworn fac ts as to the date ( and whether she returne d to work there afte r)” beca use she had testified at the criminal trial that the date was J uly 26 and otherwise would be subject to impeachme nt. There is absolutely no evidenc e in the re cord of

any bad fa ith on Boy d’s par

t in he r testimony

during the hea

ring

. Moreove r, if there was an y such evidenc e, it would be the hear ing office r, who had the opportunity to observe Boyd’s demea nor, who would be i n the best position to deter mine Boyd’s motivations. According ly , we c annot find that the Commission erred in permitting

-1 3 -Boyd to contradic t her a lleg ations at the hea ring

. ¶ 54 Petitioners also briefly argue in the damag es portion of their brief that Boyd mentioned

o n ly one date in which any hara ssment occur red and that there was consequ en t l y n o foundation to deter

mine that a history of sexual hara ssment had occur red. The hear ing office r found that the conduct complained of by Boyd was “ce rtainly sufficie nt” to establish a hostile working environment “bas e d u p o n any rea sonable standard” and that “[s] he cre dibly testified
to a history of sexually sug g es t i v e remarks direc ted toward her by Mr. Crittenden, culminat i n g in the events of the evening of J uly 26, 2006, which by any measure wer e extreme in nature and sufficie nt to rea ch the ‘seve r[e] and perva sive’ standard articula ted by this Commi ssion and the courts.” I t is clea r from the rec ord that the hear ing office r acc epted Boyd’s testimony of prior comments m ad e by Crittenden, as well as her testimony concerning t he events of J uly 26. Petitioners do not argue that the i ncident on J uly 26 was insufficient to establish hara ssment but only that the history of prior incidents was unfounded and insufficient to demonstrate hara ssment. Ag ain, we are n o t permitted to rew eig h the evidenc e (

Kouzoukas
, 234 I ll. 2d at 463), and we will aff irm an ag ency ’s decision if there is evidenc e in the re cord to support it ( Abrahamson , 153 I ll. 2d at 88-89). ¶ 55 For

sexual harassment to be a ctionable, “it must be sufficiently sever e or pe rvasive ‘ to alter the condi t ions of [t he victim’s] employ ment and cre ate an abusive working environment.’ ” Meritor Savings Bank, FSB v. Vinson
, 477 U.S. 57, 67 (1 9 8 6 ) (q u o ting Henson v. City of

Dundee
, 682 F.2d 897, 904 (11th Cir. 1982)). A court must examine all of the circ umstances befor e deter mining whether an environment is hostile or abusive, including fac tors such as “the fre quency of the discriminatory conduct; its sever ity ; whether it is ph y sically threatening or humiliating, or a mere offe nsive utteranc e; and whether it

unrea sonably interfe res with an employ ee’ s work perf ormanc e.” Harris v. Forklift Systems, Inc.
, 510 U.S. 17, 23 (1993). Whil e all of the rele vant fac tors may be taken into acc ount, “no single fac tor is require d.” Harris , 510 U.S. at 23. ¶ 56 I n the case at bar, as noted, petitioners do not argue that the conduct of J uly 26, 2006, was insufficient to constitute sexual hara ssment but only focus on Boyd’s claims that Crittenden had made comments to her previously

. The hear ing office r deter mined that Boyd’s testimony

was cre dible, and there is nothing in the rec ord t o d em onstrate that the hear ing office r’s deter mination was agai n s t t h e manifest weig ht of the evidenc e. Moreove r, a history of hara ssing comments is not nece ssarily requir ed; the events of J uly 26 wer e sufficie nt in themselves to demonstrate actionable hara ssment

. S ee Harris
, 510 U.S. at 23 (“no single fac tor is require d”). Acc ording ly
, we are not persua ded by petitioners’ arguments conce rning the history

of any hara ssment.

¶ 57 I I . Hea rsay ¶ 58 Petitioners also claim that the hea ring office r i mproperly relied on he arsa y evidenc e in fi nding in Boyd’s favor

. Petitioners point to the following statement made by t h e h ea ri n g off i ce r: “F urther, both Ms. Boyd and Mr. Crittenden testified that when she returne d the following day
, along with her family
, to announce her resig nation, her son was exhibi ting a g reat deal of ang er and overturne d some furniture

. Had the sexual hara ssment of which Ms.

-1 4 -Boyd complains n o t o c c urre d at all–as Mr. Crittenden testified–there is no logic al rea son why

Ms. B oy d would return to the bar with f amily members nor why an ang ry encounte r would develop.” Petitioners argue that the hear ing office r’s relianc e on the actions of the family members c onstitut es re versible e rror . We do not find petitioners’ ar g ument persua sive. ¶ 59 An ad m i n i s t rative ag ency ’s decision conce rning the introduction of ev i d en ce “ ‘i s proper ly g overne d by an abuse of discretion standard and subject to reve rsal only if there is demonstrable prejudice to the p ar t y

. ’ ” Three Angels Broadcasting Network, Inc. v. Departme nt of

Rev enue , 381 I ll. App. 3d 679, 699 (2008) (quoting W ilson v. Departme nt of Professional Regulation
, 344 I ll. App. 3d 897, 907 (2003))

. “An abuse of discretion occur s when no r easona

ble per son would take the view adopted by the court.” Trettenero
, 333 I ll. App. 3d at 801 (citing Blunda
, 299 I ll. App. 3d at 865). In the case at bar, the hear ing office r’s re liance on the conduct of Boyd’s family

did not constitut e re versible e rror

. ¶ 60 First, petitioners are the ones who first broug ht forth the fac t that B oy d’s family visited J immy ’s Place on the Saturday following the incident. Crittenden testified that on Saturday
, he rec eived a telephone call at his home at approximately 2 p.m. saying that “B oy d’s family

was down there tear ing my place up, throwing the chair s and differ ent stuff. I know I hear d her brother he want to kill me about something.” When Crittenden arr ived at J immy ’s Place,
t h ey wer e g one. After Crittenden’s testimony
, Boyd was rec alled to testify conc er n i n g damag es and also confirme d that her family had been at J immy ’s Place on Saturday and her son “ac ted a f

ool” and “ knocked some chair s down.” ¶ 61 The I llinois Supreme Court has held that, under “ ‘the doctrine of invited err or,’ ” a party “ ‘may not reque st to proce ed in one manner and then later contend on appea l that the course of action was in err or.’ ” People v. Harve y , 211 I ll. 2d 368, 385 (2004) (q u oting People v. Carter
, 208 I ll. 2d 309, 319 (2003)). To pe rmit a party to use, as a ve hicle for

reve rsal, the
exact action which it procur ed in the trial court “ ‘would offe nd all notions of fair play ’ “ and

encour ag e duplicity by litigants. Harve y , 211 I ll. 2d at 385 (quoting People v. Villarreal
, 198 I ll. 2d 209, 227 (2001))

. Thus, when a party “proc ures, invites or acquie sces” to a trial court’s evidentiar y ruling
, even if t he ruling is improper, he cannot contest the ruling on appea l. People v. Bush
, 214 I ll. 2d 318, 332 (2005); Harve y , 211 I ll. 2d at 386; People v. Caffey
, 205 I ll. 2d 52, 114 (2001). The hear ing office r made it clea r that he was rely

ing on Crittenden’s testimony conce rning the incident as well as Boyd’s. After introducing the evidenc e throug h Crittenden’s testimony
, petitioners cannot now complain that the hear ing office r should have ref used to consider

it. ¶ 62 Even if the issue was considere d o n i t s m er i t s , t h e Commi ssion’s proce dural rule s provide that the hear ing office r is not bound by the rules of evidenc e. Section 460.105 of the
proce dural rule s provides:
“T h e He aring Offic er shall have full authority to control the proce dures of the Administrative Hea

ring
, to que stion a

ny party reg arding the Complaint at issue, to rule
upon all motions and objections, and to admit or ex clude t es t imony or ot her evidence

. The Hea ring Offic er shall not be bound by the strict rules of evidenc e applicable in courts of law or equity .” Cook County Comm’n on Human Rights Procedur al Rules § 460.105 (ef f. Mar . 20, 2007).

-1 5 -Acc ording ly
, the hear ing office r was permitted to consider evidenc e that would not normally

be admissi ble i n a civil proce eding

. See also Anderson v. Hum a n R i g h ts Comm’n
, 314 I ll. App. 3d 35, 52 (2000) (noting that evidenc e not admissible under the rules of evidenc e may b e admitt ed in an adminis trative procee ding “if t he evidence is of a ty pe common l y re l i ed upon by rea sonable, prude nt men and women in the c onduct of their a ffa irs”). ¶ 63 Additionally
, even if the hearing offic er was bound by the s trict rules of evidenc e, any

err o r in using the family ’s conduct would be harmless. Hea rsay evidenc e consists of “a statement, other than one made by the decl ar an t wh ile testify ing at the trial or hear ing, offe red in evidence to prove the truth of t he matter asser ted.” I ll. R. Evid. 801(c) (e ff. Jan. 1, 2011). This ty

pe of evidenc e “ ‘is g ener ally inadmissible due to its lack of reliability ’ ” and the inability of the opposing party to confr ont the decla rant unless it falls within an exception
to the hea rsay rule. People v. Caffey
, 205 I ll. 2d 52, 88 (2001) (quoting People v. Olinger
, 176 I ll. 2d 326, 357 (1997))

. See also People v. Dunmore
, 3 8 9 I l l

. App. 3d 1095, 1106 (2009). Nonverba l conduct may be a “stateme nt” for the purposes of t he h ea rs ay rule. S ee I ll. R. Evid. 801(a) (ef

f. J an. 1, 2011) (a statement is “ (1) an oral or written asser tion or (2) nonverba l conduct of a person, if it is intended by the person as an asser tion” offe red to prove the truth of the matter); People v. Hi g g s , 11 I ll. App. 3d 1032, 1037 (1973) (noting that

asser tive conduct may

be inadmissible hear say

). ¶ 64 Her e, the conduct of the family in coming to J immy ’s Place and “tea ring [t he] place up”

can be considere d as a statement and was used by the hear ing office r to corr oborate Boyd’s
t es t i mony , indicating that it was used as proof that an incident occur red at J immy ’s P lace

. Consequently
, it would be hear say and should have been excluded by the hear ing office r. We

are not persua ded by Boyd’s arguments that the statement was an ad m i s s ion by a party or satisfied the excited utteranc e or prese nt sense impression exceptions to the h ea rs ay rule. Boyd’s arguments fail to identify the proper “stateme nt”–it is not Crittenden’s testimony or his conver sation with his employ ee that is the statement, but the conduct of Boyd’s family

. Thus, we do not find a

ny of these e x ceptions applica ble. ¶ 65 Howeve r, any err or in considering the conduct of Boyd’s family is harmless. The he aring office r explained in detail why eac h of petitioners’ witnesses was not cre dible. He also discussed why Bo y d’s testimony was cre dible. Whil e the conduct of her family serve d to

corr oborate Boyd’s testimony
, the hear ing office r did not solely rely on th at to find Boyd

cre dible. I nstead, the hear ing office r stated that Boyd testified cre dib l y , p re s ented her testimony “with conviction,” and provided “re asonably detailed [t estimony ] as to the events that occur red and their sequence.” He als o noted t hat C rittenden’s testimony that J immy ’s Place was empty by 2 a.m. was incre dible and serve d to make Boyd’s testimony that it was

common for patrons and employ ees to be prese nt afte r 2 a.m. “all the more cre dible.” Thus, there was sufficie nt evidenc e to support the hear ing office r’s decision. Acc ording ly
, even if the hear ing office r should not have considere d the conduct of Boyd’s family
, any err or was harmless and does n o t constitute reve rsible err or. See Abrahamson
, 153 I ll. 2d at 94 (“ ‘[W ]here there is sufficie nt competent evidenc e to support an administrative decision, the improper admission of hear say testimony in the administrative proce eding is not prejudicia l

err or.’ ” (quoting Goranson v. Departme nt of Registration & Education
, 92 I ll. App. 3d 496, 501 (1980)) ); Discove ry South Group, Ltd. v. Illinois Pollution Control Board
, 275 I ll. App.

-1 6 -3d 547, 554 (1995) (finding that reve rsal was not require d even i f d ocuments had been

inadmissible hear say since “suff icient competent evidenc e was prese nted and relied upon by the B oard in re achingits determination”).

¶ 66 I I I . Damag es ¶ 67 Finally
, petitioners claim that the Commi ssion err ed in its dam age s calc ulation. They
argue that the Commi ssion committed reve rsible error in deter mining that there wer e damag es despite Boyd’s failure to prove her losses and also arg ue that the Commi ssion err ed in awar ding punitive damag es.

¶ 68 A. Compensatory Damag es ¶ 69 Petitioners first argue that there was insufficient evidenc e of actua l losses or mitigation

an d
, ac cording ly
, the Commi ssion err ed in awa rding her over $40,000 in compensato ry damag es. Unde r the Or dinance , relief for a violation of the Ordinanc e may include “a ctual damag es, as rea sonably deter mined by the C ommissi on, for injury or l oss suffe red.” Cook County Code of Ordinances § 42-34(c )(1) (b) (amende d Nov. 19, 2002). I n the case at bar, the hear ing office r rec ommended an awa rd of $41,670 for Boyd’s lost wag es, and the Commi ssioner adopted the rec ommendation. How e v e r , petitioners claim that Boyd provided “no evidenc e” as to her lost wag es. Whil e Boyd did not provide documentar y evidenc e of her
wag es while employ ed at J immy ’s Place, Boyd did testify at the hear i n g concerning her
wag es, as did Crittenden. The hear ing office r ac ce p t ed Boy d’s t estimony as m ore credible and, as noted previously
, that decision was not ag ainst the manifest weig ht of the evidenc e. Thus, we c annot find that B oy d failed to provide evidenc e of he r lost wag es. ¶ 70 Petitioners further arg ue that Boyd failed to prove that she mitigated her damag es. Boyd

was require d to exercise rea sonable diligenc e in mitigating her damag es. See Hee ren Co. v. Human Right

s Comm’n
, 150 I ll. App. 3 d 2 3 4
, 2 4 1-42 (1986). Howeve r, i t was petiti oners who had the b u rden of proving that Boyd failed to rea sonably mitigate her damag es. See People ex rel. Bourne v. Johnson
, 32 I ll. 2d 324, 329 (1965) (“The defe ndants wer e here the
wrong doers, and the obligation to produce whateve r proof exis ted in diminuti on of damag es rested on them. The overw helming weig ht of authority *** is that an employ er in an action for lost wag es[ ] m u s t af fi rm atively show in order to reduc e damag es that the discharg ed employ ee could or did ha ve other ear

nings subsequent to the wrong ful discharg e.”) ; Board of Education of the City of Chicago v. W eed
, 281 I ll. App. 3d 1010, 1017 (1996) (noting that when a teac her is wrong fully discharg ed, “[t] he employ er has the burden of showing that the
teac her could have made additional ear nings”); R a i n t ree Health Care Center v. Human Rights Comm’n
, 275 I ll. App. 3d 387, 396 (1995) (reje cting the def endant’ s argument that the plaintiff had failed to mitigate his damag es since the AL J found the plaintiff’s testimony

cre dible and the defe ndants did not prese nt any evidenc e of other appropr iate jobs for which the plaintiff wa s qualified). Her e, petitioners did not prese nt any evidenc e that B oy d failed
to mitigate her damag es. Additionally
, Boyd testified that she was employ ed at a one-da y -awee k job a week and a half after t erminating her employ ment at J immy ’s P lace and found

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

-1 7 -damag es and affirm the Commi ssion’s awa rd of compensatory damag es. See Board of Directors, Gree n Hills Count ry Club v. Human Rights Comm’n , 162 I ll. App. 3d 216, 221 (1987) (finding damag es mitigated wher e the complainants “we re employ ed for various periods afte r quitting Gre en Hills, that they sent out resum es and g ener ally endea vored to

rema in employ ed” and there was no evidenc e prese nted t o contra dict the complainants’ claims).

¶ 71 B. Punitive Dama g es ¶ 72 Howeve r, we fi n d t h at the Commi ssion did not have the authority to awa rd punitive damag es. Both parties acknow ledg e that t h e Or d i n ance does not expressly speak to the imposit ion of punitive damag es. Petition er s ar gue that since punitive damag es are not expressly permitted by the Ordinanc e, they are prohibited, while Boyd clai m s t h at the Ordinanc e should be rea d to permit the imposit ion of puni t i v e damag es. We ag ree with petitioners and do not find B oy d’s ar g uments to the contrar y persua sive.

¶ 73 1. Availability of Punitive Damag es Ge nera lly ¶ 74 “Punitive, or exemplary
, damag es are not awa rded as compensation, but serve instead to punish the offe nder and to deter that party an d o t h er s from committing simil ar acts of
wrong doing in the future.” Loitz v. Remington Arms Co.
, 138 I ll. 2d 404, 414 (1990). These
purposes make the function of punitive damag es simil ar to that of a criminal penalty

. Kelsay

v. Motorola, Inc.
, 74 I ll. 2d 172, 187-88 (1978 ). “B ec au se of their penal nature , punitive damag es are not favor ed in the l aw, and the courts must take caution to see that punitive damag es are not i m p ro p erly or unwisely awa rded.” Kelsay
, 74 I ll. 2d at 188. Whether punitive damag es are available for a particula r cause of action is a question of law. Knierim

v. Izzo
, 22 I ll. 2d 73, 87 (1961). As such, we revie w it de novo

. Franz v. Calaco Dev elopment Corp.
, 352 I ll. App. 3d 1129, 1137-38 (2004) (n o t ing that whether the finder of fact i s the trial court or a jury
, the deter mination of whether punitive damag es are available for the

cause of action is a q u es t i o n of law revie wed de novo ). De novo consideration means we perf orm the same a

naly sis that a trial judg e would per form. Khan , 408 I ll. App. 3d at 578. ¶ 75 I n a cause of action based on a sta t u t o ry v i o l ati on, punitive damag es may be aw arde d either be cause the statute expressly permits them or bec ause the fac ts of the ca se allow the impos i t i o n o f common law punitive damag es. A statute may expressly permit punitive damag es or may expressly prohibit them. See, e. g

. , B er n i er v. Burri s , 113 I ll. 2d 219, 245 (1986) (noting that a variety of statutes prohibiting punitive damag es have been upheld by the supreme court and citing case s); Linhart v. Bridgeview Creek Dev elopment, Inc.
, 391 I ll. App. 3d 630, 641 (2009) ( noting that the I llinois Consumer Fr aud and D ece ptive Business Practice s Act (815 I L CS 505/1 et seq. (West 2006)) expli citly allows for the rec overy of punitive damag es wher e the conduct o f t h e d efendant was willful or intentional and done with evil motive or rec kless indiffer ence to the rig hts of others). Those statutes that expressly permit punitive damag es often do so by incorpora ting t h e re quirements of common law punitive damag es. See, e.g. , Linhart , 391 I ll. App. 3d at 641. ¶ 76 I f the statute does not expres s l y d i s cu s s punitive damag es, then common law punitive

-1 8 -damag es may be available if war rante d by the fac ts of the case

. See, e.g. , Vincent v. AldenP a rk Strathmoor, Inc.
, 241 I ll. 2d 495, 502 (2011) (noting that althoug h not ex p re s s l y mentioned in t h e Nursing Home Care Act (210 I L CS 45/2-101 et seq. (West 2006)), plaintiffs may rec over common law puniti v e damag es upon proof of willful and wanton misconduct on the part of the defe ndant). Du e t o t h e p enal nature of punitive damag es, a court may only awa

rd them for torts that are “committed with fra ud, actua l malice, deliberate violence or oppression, or when the defe ndant acts willfully
, or with such g ross neg lige nce

as t o indicate a wanton disreg ard of the rig hts of others.” Kelsay
, 74 I ll. 2d at 186 (citing Consolidat ion Co a l C o

. o f St. Louis v. Haenni
, 146 I ll. 614, 628 (1893))

. “ ‘[P] unitive damag es are not aw ar d ed fo r m ere inadver tence , mistake, err ors of judgme nt and the like, which constitute ordinary neg lige nce.’ ” Loitz
, 138 I ll. 2d at 415 (quoting Re s tatement (Second) of Torts § 908, cmt. b (1979) ).

¶ 77 2. Authority of Administrative Ag ency ¶ 78 I n t h e ca s e at bar, the question of whether punitive damag es are authorized i s al s o impacted by the status of the Commi ssion as an administrative ag ency

. An administrative
ag ency is limit ed to the power s g rante d to it by the leg islature, and any actions it takes must be authoriz ed by statute. Vuagniaux v. Departme nt of Professional Regulation
, 208 I ll. 2d 173, 186 (2003). An ag ency “has no g ener al or common law authority .” Vuagniaux
, 208 I ll. 2d at 186. “Any power or authority claimed by an administrative ag ency must find its source within the provisions of the statute by which the ag ency was cre ated. The ag ency ’s authority
must either arise from the express lang uag e of the statute or ‘devolve by fair implication and i ntendment from the express provisions of the [st atute] as an incident to achie ving t h e objectives for which the [age ncy ] was cre ated.’ ” Vuagniaux
, 208 I ll. 2d at 187-88 (quoting Schalz v. McH

enr y C o unty Sheriff’s Departme nt Merit Comm’n
, 113 I ll. 2d 198, 202-03 (1986))

. “The issue of an administrative body ’s authority prese nts a question of law and not a question of f

act. The deter

mination of the scope of

the ag ency ’s power and author ity is a judicial function and is not a question to be finally deter mined by the ag ency itself.” County of Knox ex re l. Masterson v. The Highlands, L.L.C

. , 188 I ll. 2d 546, 554 (1999).

¶ 79 3. Puniti ve Damag es Unde r the Or dinance ¶ 80 The Ordinanc e outlines the vari o u s re l i ef m ea s u res available to the Commi ssion for violations of the Ordinanc e. Section 42-34( c)( 1) provides: “Relief ma

y include, but is not lim ited to, an orde r to:

a. Cease the illega l conduct complained of and to take steps to alleviate the eff ect of the illega l conduct complained of[.] ” Cook County C o d e o f Ordinanc es § 42- 34(c) (1) ( amende d Nov. 19, 2002). The Ordinanc e also instructs that “[t] he provisions of this article shall be liberally construed for the acc omplishm ent of its purpose.” Cook County Code of Ordinanc es § 42-32 (ame nded Nov. 19, 2002). ¶ 81 As noted, the Ordin a n c e d o e s n o t e xp r e s sly authorize the imposit ion of punitive damag es,

-1 9 -an d Bo y d does not argue that it does. By contra st, the Ordinance does expressly aut h o ri z e

compensatory d am ag es. See, e.g. , Cook County Code of Ordinanc es § 42-34(c )(1) (b), (c) (1 )( h ) (ame nded Nov. 19, 2002). According ly
, in order for the Commi ssion to have the authority to impose punitive da mag es, the authority must be found, by fair implication a nd intendment, to be incident to the express authority confe rre d by the leg islature. See Schalz
, 113 I ll. 2d at 202-03. Municipal ordinanc es are interpre ted using the same rules of statutory interpre tation a s statutes, and are revie wed de novo

. Express Valet, Inc. v. City of Chicago
, 373 I ll. App. 3d 838, 850 (2007). Ag ain, de novo considera tion means we perf

orm the same analy sis that a trial judge would perf orm. Khan
, 408 I ll. App. 3d at 578. “The fundame ntal rule of statutory construction is to asce rtain and g ive eff ect to the leg islature’s intent.” People

ex rel. Birkett v. City of Chicago
, 202 I ll. 2d 36, 45 (2002). The best indication of leg islative intent is the plain and ordinary meaning of the statutory lang uag e. Birkett
, 202 I ll. 2d at 45. S i n ce al l provisions of a statutory enac tment are viewed as a whole, words and phrase s should not be construed in isolation, but should be interpre ted in li gh t o f other rele vant provisions of the statute. In re De tention of Li eberm an , 201 I ll. 2d 300, 308 (2002). “Ea ch word, clause and sentenc e of the statute, if possible, must be g iven rea sonable meaning and
not rende red superf

luous.” Lieberman
, 201 I ll. 2d at 3 0 8 (citing Sylve ster v. Industrial Comm’n
, 197 I ll. 2d 225, 232 (2001), and A.P. Properties, Inc. v. Goshinsky
, 186 I ll. 2d 524, 532 (1999))

. Howeve r, “[i] t is a car dinal rule of statutory construction that we cannot rew rite

a statute, and depar

t from its plain lang uag e, by rea ding into it ex ce p t i o n s , limit ations or conditions not expressed by the leg islature.” People ex rel. Birkett v. Dock ery , 235 I ll. 2d 73, 81 (2009) ( citing In re M

ichelle J

. , 209 I ll. 2d 428, 437 (2004)). ¶ 82 I n t h e ca s e at b ar, Boy d argues that the Commi ssion is authorized to impose punitive damag es becaus e: (1) the list of available reme dies is nonexhaustive, (2) the Ordinanc e is

m ea n t to be liberally construed, (3) the Commi ssion has itself deter mined that it has the authority to impose punitive damag es, (4) the appellate court has found punitive d am ag es available under an analog ous statute, and (5) the conduct in the case at bar was sufficie ntly
eg regious to permit the imposit ion of punitive damag es. We find Boyd’s arguments unpersua sive and find that punitive dama g es ar e not per mitted under the Or dinance

. ¶ 83 The Or dinance does provide that relief unde r the Or dinance :

“may include, but is not l imited to , an orde r to:

a. Cease the illega l conduct complained of and to take steps to alleviate the eff ect of the illega l conduct complained of[.] ” (Emphasis added.) Cook County C o d e of Ordinanc es § 42-34( c)( 1) (amended Nov. 19, 2002)

. As such, the list of available reme dies is not meant to be exhaustive, espec ially in light of the Ordinanc e’s instruction that “ [t ]he pr ovisions of this a rticle shall be liberally construed for the acc omplishm ent of its purpose.” Cook County Code of Ordinanc es § 42-32 (ame nded Nov. 19, 2002). Howeve r, this does not mean that the Commi ssion has the authority to order
any ty pe of r elief it dee ms desirable. ¶ 84 “[P] unitive damag es are fundame ntally unlike any ot h er m ea s u re o f civil damag es.” Franz
, 352 I ll. App. 3d at 1140. A punitive damag es awa rd “is not direc ted at compensating

a plaintiff’s injury but is direc ted at punishing a defe ndant’s actions.” Harriss v. Elliott
, 207

-2 0 -I ll. App. 3d 384, 390 ( 1991). I ndeed, “ [p] unitive damag es actua lly improve the position of

the complaining party , while all other damag es simply return the plaintiff to the position he held befor e the wrong .” Franz
, 352 I ll. App. 3d at 1140. Thus, while in awa rding
compensatory damag es, the focus is on the plaintiff’s losse s, the focus in deter mining the availability and amount of punitive damag es is on the char acte r of the defe ndant’s conduct. W inters v. Gree ley , 189 I ll. App. 3d 590, 599 (1989). Bec ause of their pena l nature, c ourts must take ca

ution in im posing punitive damag es. See Kelsay , 74 I ll. 2d at 188. “[P ]uni tive damag es are never awa

rded as a matter of rig ht. *** [N] o matter how eg regi o us the defe ndant’s conduct may be, the jury is never oblige d to assess punitive damag es.” W inters
, 189 I ll. App. 3d at 599 (citing Smith v. W ade
, 461 U.S. 30, 52 (1983))

. Ex amining the other ty pes of relief provided by the Ordinanc e, it is appar ent that they are compensa tory (see
, e.g. , Cook County Code of Ordinanc es § 42-34 (c )(1) (b), (c) (1)( h) (ame nded Nov. 19, 2002)), require actions s u ch as posting notices (see Cook County Code of Ordinanc es § 42- 34(c) (1)( j) (ame nded Nov. 19, 2002)), or impose a fine for violations (see Cook County Code of Ordinanc es § 42-34(c )(1) (k) (ame nded Nov. 19, 2002)). None of t h es e t y p es of relief indic at e t h at the Commi ssion is entitled to improve the complainant’s position while punish ing the violator. I ndeed, the provision permitting the imposit ion of a fine demonstrates that the Commi ssion could have require d the pay ment of a monetary penalty if it had chosen to do so. ¶ 85 Moreove r, there are cer tain situations in which a leg islature has expressly permitted an administrative ag ency to awa rd punitive damag es, including ordinanc es enac ted by Cook County

. See, e.g. , 415 I L CS 5/22.2(k) (West 2010) (“I f any person who is liable for a rele ase

or substantial threat of rele ase of a hazardous substance or pesticide fails without sufficie nt

cause to provide remova l or reme dial action ***, such person may be liable to the State for punitive damag es ***. The punitive damag es imposed by the [P ollution Control] Boa rd shall be in addition to a

ny costs rec overe d from such person pursuant to this Section ***.”); 820 I L CS 255/17( e) (W es t 2 010) (“The Direc tor of the [I llinois Depa rtment of L abor] is authorized to assess p u

n it iv e d a ma g e s a g a in s t a

ny e mp lo y

e r , ma n u fac turer, importer, supplier

or other person, who knowing ly and willfully viola t es any of the provisions of this Act ***.”); Bur

nham Code of Ordinanc es § 4 6 -6 3 (1) (adopte d J an. 28, 1997) (“[T]he fair housing revie w board may *** [d] irec t[ ] the responde nt to pay compensator y / ac t u al damag es ***, punitive dam a g e s , a tt o r n e y f e e s a nd costs.”); Cook County Code of Ordinanc es § 34-128(h) (adopte d J uly 10, 2007) (“A ny underpa y ment that has not been repa id to a worke r within 30 day s of violation is subject to an additional two perc ent of the underpa y ment as a punitive damag e assess m en t p ay able to the worker.”)

. The presenc e of such statutes and ordinanc es demonstrates that leg islatures at all levels of g overnme nt have expressly g iven this power to ag encie s when they choose to, and counsels ag ainst finding the authority to impose punitive damag es in the absenc e of that express authority

. See Abatron, Inc. v. Departme nt of

Labor
, 162 I ll. App. 3d 697, 701 (1987) (“H ad the leg islature intended that the De p artment of L abor or its Direc tor have the authority asser ted in this case , the leg islature could ha

ve ea sily so provided but did not do so.”). Additionally , other than one

case that is discussed below, neither party has prese nted, and we have been unable to discover, any case s in which an administrative ag ency ’s statut e o r ordinanc e is found to

-2 1 -implicitl y permit the imposit ion of punitive damag es, nor is there any case in which the

ag ency is permitted to awa rd punitive dama ges i n the absenc e of such an express g rant of authority

. ¶ 86 The sole case permitting the imposit ion of a punitive da mag es awa

rd is Page v. City of Ch i ca g o , 299 I ll. App. 3d 450 (1998), in which the First Division of the First District Appellate Court found that the Chicag o Human Rights Ordinanc e authorizes the imposit ion of punitive d amage s despite the lack of an express g rant of authority

. This case has been cited rec ently by our Four th Division in 1212 Restaurant Group, LLC v. Alexande r , 2011 I L App (1st) 100797, both of whic h Boyd relies on in support of he r ar g ument. ¶ 87 I n P a g e , t h e co u rt co nsidered whether a complainant who preva iled on her se x ual h arassment claim ag ainst her employ er was permitted to rec eive an awa rd of punitive damag es under the Chicag o Human Rights Ordinanc e. As in the instant case , the court there considere d whether Chicago ’s Commi ssion on Human R elations was authorized to awa rd punitive da

mag es. The ordinanc e provided that “ ‘[r]elief may include but is not limited to

an order : *** to pay actua l damag es, as rea sonably deter mined by the Commi ssion, for injury *** suffe red by the complainant.’ ” Page
, 299 I ll. Ap p

. 3 d at 463 (quoting Chicag o Municipal Code § 2-120-510( l ) (1990))

. The P a g e court noted that courts defe r to an ag ency ’s interpre tation of the statute that it is char g ed to enfor ce; that a statute must be interpre ted within the plain meaning of the statute’s words; and that the purpose of awa rding punitive damag es was to punish the individual responsible, t o teac h the individual not to repe at the conduct, and to deter others from simil ar conduct. Page
, 299 I ll. App. 3d at 463. ¶ 88 The c ourt observe d that the ordinanc e called for such “ ‘re lief as may be appr opriate’ ” and did not limit the relief to specific damag e cate g ories or exclude punitive damag es. Page
, 299 I ll. App. 3d at 463 (quoting Chicag o Municipal Code § 2-120-510( l ) (1990))

. The court further noted that the Chicag o Commi ssion on Hu ma n Re la ti o n s had interpre ted the lang uag e of the ordinanc e to include the authority to impose punitive damag es, and that the Consumer Fr aud and Dec eptive Business Practice s Act (815 I L CS 505/1 et seq. (West 1994)) contained simil ar lang uag e for relief and had been interpre ted to include punitive damag es. Page
, 299 I ll. App. 3d at 463-64. F inally , the cour t stated: “[P] unitive damag es constitute an appropr iate reme dy for acts of sexual discr imination and hara ssment. By awa rding punitive damag es in case s of sexual hara ssment and dis cr i mination, the Commi ssion can punish individuals responsible for the wrong ful conduct, p r e v e n t th em from sexually hara ssing or discriminating ag ainst others, and deter others from committing simil ar acts. We cannot find any rea son that the Cit y wo uld exclude the ability to rec over punitive d am ages in an are a wher e it would be highly
appropr iate and ne cessa

ry .” Page , 299 I ll. App. 3d at 464. The court distinguished the Chic ago o rdi nance from the Human Rights Act, noting that “[u] nlike the Ordinanc e at issue, *** the Human Rights Act expressly limit s its reme dies to relief identified wit hin the Act.” Page
, 299 I ll. App. 3d at 464 (citing 775 I L C S 5 / 8A-104 (West 1996)). Page ’s hol ding that punitive damag es we re a vailable wa s followed by 1212 Restaurant Group
, which upheld a punitive damag es awa rd without separ ate consideration of whether the Chicag o ordinanc e permi tt e d p u n it iv e d a ma g e s

. 1 2 1 2 Restaurant Group
, 2011

-2 2 -I L App (1st) 100797, ¶ 63. We note that no I llinois case other than 1212 Restaurant Group

has cited Pag e fo r an y issue conce rning punitive damag es awa rded by an administrative
ag ency

. ¶ 89 After considering the applicable law, we find that we cannot apply the holding of Page to the Ordinanc e at issue here

. Whil e Page noted that the Chicag o Commi ssion on Huma n Relations was an administrative ag ency , it did not discuss the I llinois Supreme Court’s ruling that an administrative ag ency is a creat i o n of statute and is limit ed in its power s. See Vuagniaux
, 208 I ll. 2d at 186. Additionally
, we cannot ag ree that the fac t that the Consumer Fr aud and Dec e p ti v e B u s in e ss Practice s Act has been interpre ted to permit punitive damag es, which was relied upon by the Page court, is persua sive. A violation of the Consumer Fr aud and Dec eptive Business Practice s Act g ives rise to an action in a court, wher e a judge decide s the applicability of punitive damag es, not an administrative ag ency

. See 815 I L CS 505/10(a) (West 20 1 0 ) (“Any person who suffe rs actual damag e as a result of a violation of t his Act committed by any other person may bring an action ag ainst such person. T h e co u rt , i n its di s cr etion may awa

rd actua l economic damag es or any other relief which the court deems
proper ***.”). Thus, the question of the availability of punitive damag es occur s in an entirely differ ent context. ¶ 90 As noted, we have not discovere d any other case in which an administrative ag ency was permitted to impose punitive da mag es in the absenc e of an express g rant of authority to do

so. Whil e we ag ree with the Page court that punitive damag es m ay be “highly appropr iate and nec essar

y ” ( Page , 299 I ll. App. 3d at 464) for cer tain violations of the Ordinanc e, that decision should be left to the leg islature and cannot be made by the Commi ssio n in the absenc e of a

uthority to do so. ¶ 91 We are also unpersua ded by the fac t that the Commi ssion itself has deter mined that it ha s the authority to awa

rd pu n i t i v e damag es for violations of the Ordinanc e. I n Gluszek v. Stadium Sports Bar & Grill
, Cook County C omm’n on Human Rights No. 1993E052 (De cision & Orde r Mar. 16, 1995), the Commi ssion found that it had the rig ht, in appropr iate circ um s t an ces, to awa

rd punitive damag es. Whil e a revie wing court aff ords substantial defe renc e to an agenc y ’s i n terpre tation of a statute which the ag ency administers, beca use of the experience and expertise the ag ency has g ained throug h time by enfor cing the statute ( Phelan v. Village of LaGrange Park Police Pension Fund
, 327 I ll. App. 3d 527, 531 (2001)) , “[t] he dete rmination of the scope of the ag ency ’s power and authority is a judicial function and is not a question to be finally deter mined by the ag ency itself” ( Masterson
, 188 I ll. 2d at 554). ¶ 92 Her e, we cannot ag ree with the Commi ssion’s deter mination that it may awa

rd punitive damag es. I n Gluszek
, the Commi ssion relied on the same arguments made by Boyd here –that the reme dies listed in the Ordinanc e are expressly nonexclusive, that the Ordinanc e provides it should be liberally

construed, a

nd that the ana logous Chica g o ordinanc e is inter prete d to permit punitive damag es. Since we have explained why those arguments are unpersua sive, 3

Glus zek was dec ide d pri or to the app el la te cou rt ’s dec is ion in Page
, so it re li es on ci ta ti ons 3
to dec is ion s of

th e Chi cago Comm is si on o n Human Rel at ion s i n i ts ana lysis

.
-2 3 -we do not f ind that the Commi ssion’s decision require s us to interpre t the Ordinanc e in the

same wa y as it did. ¶ 93 Finally
, we do not find Boy d’s argument that the conduct in the case at bar was sufficie nt to war rant punit ive damage s to be persuasive. As noted, w hen a statute does not expressly discuss punitive damag es, common law punitive damag es may be available if war rante d by the fac t s o f t h e ca se. See, e.g. , Vincent
, 241 I ll. 2d at 502. Her e, common law punitive damag es are not available beca use the Commi ssion is an administrative ag ency and “has no g ener al or common law authority .” Vu a g n i aux , 208 I ll. 2d at 186. Additionally
, even if

common law punitive damag es wer e av ai l ab le or the Ordinanc e authorized punitive d amag es, the Commi ssion would have neede d to find that Crittenden’s conduc t wa s particula rly eg reg ious. See Kelsay
, 74 I ll. 2d at 186 (“punitive or exemplary damag es may be awa rded when torts are comm itted with fra ud, actua l malice, deliberate violence or oppression, or when the defe ndant acts willfully
, or with such g ross neg lige nce as to indicate

a wanton disreg ard of the rig hts of others”)

. I n the case at bar, the Commi ssion simply stated that it compar ed Crittenden’s cond u ct with the conduct of a defe ndant in an ear lier Commi ssion case and deter min ed t h at a $5,000 punitive damag es awa rd was appropr iate. The Commi ssion did n o t make a finding that Crittenden’s conduct constituted malice. Puniti ve damag es may be an appropr iate reme dy for acts o f s ex u al discrimination and hara ssment, but in order for an administrative ag ency to awa rd such damag es, the leg islature should ex pressly

g ive the ag ency

the power

to awar d them and the c riteria to use

.

¶ 94 CONCL USI ON ¶ 95 For the fore g oing rea sons, we aff irm the circ uit court’s order denying petition e r s ’ p e tition for certiorari and confirming the decision of the Commi ssion. However, we reve rse the Commi ssion’s awa

rd of punitive damag es, fi n d i n g they are not available under the Ordinanc e.

¶ 96 Affir

med in part a

nd reve rsed in par

t.

-2 4 -