## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Jones v. Lockard

, 2011 IL App (3d) 100535

Appellate Court Caption KE I TH J ONES, Petitioner, v. CHERYL L OCKARD, THE HUMA N RI GHTS C OM M I SSI ON, and THE DEPARTMENT OF HUMAN RI GHTS, Res pondents.–FI RST BA PTI ST CHURCH, Petitioner, v. CHERYL L OCKARD, THE HUMAN RI GHT S COMMI SSI ON, and THE DEPARTMENT OF HUMAN RI GHTS, Respondents.

District & N o. Third District Docke t Nos. 3-10-0535, 3-10- 0536 cons.

Filed September 8, 2011

Held (Not e: This syl lab us

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t 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

. ) In an action for sexual hara ssment a nd reta liatory discharg e, the Human Rights C o m mission’s finding s that a massag e that occur red within the 180-day filing de adline wa s not qualitatively differ ent from pe titioner’s conduct that occur

red o utside the deadline and that the massag e contributed to the hostile work environm ent cre ated by petitioner’s unwanted sexual conduct was not ag ainst the mani fest weight of the evidenc e; further
, there was no clea r err or in the finding that responde nt’s alleg ations wer e timely filed, and the awa rd of attorney fee s was aff

irmed.

Dec ision Under
Review Petition for revie w of order of I llinois Human Rights Commi ssion, Nos. 2004SN3085, 2004SN3084 cons.

J udg ment Affir med.Counsel on

Appea l L

. L ee S mith and Gar th C.K. Madison (ar gued), both of Hinshaw & Culbertson L L P, of Peoria, for petitioner.

L isa M ad i gan, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Mary E. Welsh (ar gued), Assista n t Attorney Gene ral, of counsel), for responde nt I llinois Human Rights Commi ssion.

M. Michae l Waters (ar gued), of Vonac hen, L awless, Trag er & Slevin, of Peoria, for

responde nt Cheryl L ockar d.

Panel J USTI CE McDADE de livered the judgme nt of the cour t, with opinion.
J ustices Holdridg e and L

y tton concurr ed in the judg ment and opinion.

OP INION

¶ 1 O n April 20, 2004, responde nt Cheryl L ockar d filed a char g e with the I llinois Dep a r tm e nt of Human Rights (De partment) of sexual hara ssment and reta liatory discharg e ag ainst Keith J ones and First Ba

ptist Church, respe ctively (petitioners). L ockar d’s char g e alleg ed t hat J ones sexually hara ssed her betwee n August 2000 and April 7, 2004, by inter alia
, making sexually sug g estive comments and i n nu endo, and sug g esting she wear mini skirts to work. The initial char g e also alleg ed that the churc h discharg ed her in reta liation for her complaints of sex ual harassment by J ones. The Depa rtment found t hat s ubstantial evidenc e ex isted to support L ockar d’s claims and f iled complaints ag ainst J ones (c ase N o. 3-10-5036) and the churc h (ca se No. 3-10- 0536) with the I llinois Human Rig hts Comm ission (Comm ission).

¶ 2 BA CKGROUND ¶ 3 The complaint to the C ommissi on alleg ed four incidents of sexual hara ssment in 2003 and one in 2004, includingthat: (1) Jones told L ockar d that the dre ss code r equire d her to we ar miniskirts; (2) J ones t old L ockar d God would not permit him to have an affa ir with any of t he beautiful wome n he wor

ked with; (3) Jones made a se x ual re fer ence about a loca l man; (4) Jones discussed extramarital af fairs w ith L ockar d; (5) J ones massag ed L ockar d’s shoulders without her permission in November 2004. ¶ 4 The complaint to the Commi ssion also alleg ed that J ones was a member of the chur ch’s
manag ement, he sexually hara ssed L ockar d, and that an ad hoc committee formed by the

-2-churc h to investigate L ockar d’s complaints of s ex ual hara ssment told L ockar d she would

likely lose her job if she continued to oppose J ones’s sexua l hara ssment. The complaint alleg ed it did ultimately discharg e her for that rea son. In August 2007 the Commi ssion conducte d a hea

ringon the cha

rg e bef ore a n administrative law judg e (A L J ). ¶ 5 The ch u rc h h i red L ockar d as its trea surer in J anuar y 2000. J ones beca

me the chur ch’s pastor in August 2000 and was L ockar d’s supervisor. T h e hear ing adduce d evidenc e of
comments conce rning extramarital aff airs in J anuar

y 2001, that J ones asked L ockar d to view

a sexually expli cit picture on his co m p u t er in September 2001, and that J ones made the
comment conce rning the office dress code i n 2 0 0 2

. The AL J hear d testimony conce rning ref ere nces to oral sex that J ones made to another employ ee in spring 2001 and ag ain in

summer 2003. There was also testimony that J ones made other anatomica l sexual ref ere nces in the office

. ¶ 6 In Au gu s t 2003 L ockar d complained to the churc h’s board chair man, Br ad Ande rson,

a b o ut Jo n e s

. L o c k a

rd specific ally complained to Ander son about J ones’s inappropria te jo k e s

. Ander son confr onted J ones. J ones denie d making reque sts for oral sex but admitted that a

casua l atmosphere exis ted in the office

. The hear ing produce d evidenc e that, afte r L ockar d’s

com p l ai n t and Ander son’s confr onting of J ones in September 2003, J ones made a sexual ref ere nce about a member of the communit y

. Then, in October 2003, he made a sexual i n n u endo with reg ard to a photogr aph of a man and a horse, made comments regard i n g extramarital aff

airs to L ockar d, and display ed a sexually sug g estive photogr aph on another employ ee’ s computer. L ater in Octo ber 2003, another fema le employ ee submitt ed her resignation, and she and L ockar d ag ain met with Ander son. Both women informed Ander son that the office environment had not improved since Ander son spoke to J ones. They descr ibed J ones’s sexual comments and re quests for or al sex. ¶ 7 On November 4, 2003, L ockar d was work i n g at her desk and J ones beg an to rub her shoulders. She shrug g ed to remove J ones’s hand and he stopped. L ater in November
, during its meeting
, the churc h’s pastoral relations committee discussed J ones’s behavior

. A churc h member informed the committee that the fema le employ ee who resigned did so beca use of J ones’s sexual hara ssment. The committee discussed the c a s u a l a tmosphe re in the office

. The meeting conclude d with an admonishment to J ones that the casua l atmosphere in the office h ad to stop. In J anuar

y 2004, Ba

rb Gra nt beca me chair of the churc h’s board. She wa s informed of the afor ementioned committee mee t i n g an d the prior complaints. Gra nt approa ched L ockar d and asked whether J ones had shown any ang er or eng ag ed in any sexual hara ssment toward her. L ockar d responde d that no sexual hara ssment had occur red since the November

2003 pastoral c ommitt ee me eting

. ¶ 8 On April 7, 20 0 4
, J ones was prese nt at a test of t he church’s new sound sy stem. J ones

wore a wirele ss microphone and told another m em b er to speak into his chee k. L ockar d interpre ted the comments a s r e f e r e n c in g r u b b ing th e o th e r member’ s buttocks chee k. L ockar d
repor ted t h e incident t o Gra

nt and repeated her alleg ations of J ones’s requests for oral sex and for an extramarital aff air. Gran t i n v es t i gated the alleg ations but told L ockard that she could not find anyone to corr oborate them. Gra nt met with the office staff and they discussed all of the alleg ations. L ockar d explained that J o n es ’s “cheeks” rema rk made her uncomforta

ble. J ones responde d that she had misunderstood him. At the conclusion of that

-3-meeting
, J ones informed L ockar d that her job was not in jeopar dy but would be if she did not

bringany future c oncer

ns to him first. ¶ 9 On April 15, 2004, the churc h’s board form ed an ad hoc committee to investigate the complaints ag ainst J ones. There was testimony at the hear ing befor e the AL J that J ones made offe nsive or inappropriate rema rks once or twice a wee k. There was also testimony that the committee m et with L ockar d. L ockar d descr ibed the wor k environment, including J ones’s temper, to the committee. She did not d escr ibe reque sts for oral sex during that meeting (bec ause she felt she was not g iven an opportunity to do so). Gra nt as k ed L ockar d if she could continue to work if J ones’s conduct did not chang e. Grant rephr ased the question to ask whether L ockar d could work in what she perc eived to be a sexually hara ssing and hostile environment. L ockar d replied she did not know. ¶ 10 On April 20, 2004, the committee met

. Gra nt did not repor

t to the committee another former employ ee’ s statement to her in the course of her own invest i gation that J ones had
reque sted oral sex from her and L ockar d. That employ ee, Sue We a v e r , resigned in September 2001. Gra nt repor ted only that Weaver had found some of J ones’s jokes to be inappropria te. The committee decide d that L ockar d had a malicious intent to undermine J ones and to make false statements. The committee rec ommended discharg ing L ockar d. At a full meeting of the board, Gra

nt ag ain repor

ted that she co u l d o n ly corr oborate that J ones had made some inappropriate comments but not the chee k incident or J ones’s temper. J o n es stated that L ockar d was not cooper ative and that he could not g et along with he r. The board discussed L ockar d ’s intent and conclude d that J ones neede d to be able to work in an environment wher e he could t rust the s taff. The boar d voted to discharg e L ockar d and informed her the following day

. The board rea d L ockar d a s t at em ent which char acte rized her complaints
ag ainst J ones as f

alse a nd destructive. ¶ 11 In September 2 0 0 9
, t h e ALJ fo u nd that cer tain events had occur

red betwee n J anuar

y 2001 and October 2003, that in October 2003 L ockard h ad i nformed her employ er about

some of those events, and that t h e em p l o y er took cer tain actions. The AL J found that additional events occur

red afte r the employ er took those actions, in November 2003 and on April 7, 2004. The AL J specific ally foun d
, wi th reg ard to the timeliness of L ockar d’s alleg ations, that the Novembe r 2003 shoul der massag e qualified as sex ual harassment and that it occur

red within the same period that J ones had subjected L ockar d t o a s er i es of sexually tinge d comments and photographs that we re demeaning to women. Thus the AL J fo und that the massag e and J ones’s conduct outside the 180-day filing window for complaints of sexual hara ssment wer e not qualitatively differ ent. The AL J also fo u nd in L ockar d’s favor on her co m p l ai nt for retaliation. The AL J noted that L ockar d complained
to the former board chair about J ones’s behavior in August 2003 and October 2003 and asked the new board chair to investigate. Howeve r, the new board chair failed to repor t alleg ations of re quests for or al sex from two former employees. ¶ 12 The AL J issued a rec ommended decision and o rd er rec ommending that petitioners be found liable on both char g es and that L ockar d be awa rded damag es. L ockar d filed a motion for attorney fee s and costs. The AL J also rec ommended awa rding L ockar d attorney fee s and
costs. Petitioners filed exceptions with the I llinois Human R i gh t s Commi ssion (Commissi on). I n M ay 2010, the Commi ssion declined further revie w and enter ed a final

-4-order adoptingthe AL J ’s re commended de cision and orde r. ¶ 13 This appea l followed.

¶ 14 ANALYSI S ¶ 15 The dispositi ve statutory provision is section 7A-102(A )(1) of the I llinois Human Rig hts Act (A ct) (775 I L CS 5/ 7A-102(A )(1) (West 2004)). Section 7A- 102(A)( 1) provides: “Within 180 day s afte r the date that a civil rig hts violation alleg edly has been committed,

a char g e in writing under oath or aff irmation may be filed with the Depa rtment by an ag g rieve d party or issued by the Depa rtment itself under the signature of the Direc tor.” 775 I L CS 5/ 7A-102(A )(1) (West 2004). ¶ 16 But the first issue we must addre ss is the appropr iate standard of revie w. In Gusciara v. Lusti g , 346 I ll. App. 3d 1012, 1017-18 (2004), while addre ssing the timeliness of a complaint pursuant to section 7A-102(A )(1) of the Act, the court held that “to the extent that our revie w hinge s on the interpre tation of the Act, it r aises a question of law that we re view de novo .” We find that the appropriate standard of revie w is for clea r err or of the Commi ssion’s order s, which involved mix ed questions of law and fac t. 520 South Michigan Ave nue Associates v. Departme nt of Employme nt Security
, 404 I ll. App. 3d 30 4
, 3 1 3 (2010) (citing Cinkus v. Village ofStickney Municipal Officers Electoral Board
, 228 I ll. 2d 200, 210 (2008))

. The de

novo revie w in Gusciara went only to the construction of the statute and whether it contained

an exception to the 180-day jurisdictional deadline for “re lated” alleg ations. Gusciara
, 346 I l l. App. 3d at 1018. The Gusciara court then applied the appropr iate construction of the statute to the fac ts as found by the Commiss ion. Gusciara , 346 I ll. App. 3d at 1021. ¶ 17 In t h i s ca s e, cl ea r er ro r re v i ew i s appropr iate beca use whether a series of ac ts cumulatively contributed to a hostile work environment is a question of fac t revie wed under the manife st weig ht of the evidenc e standard. See Sangamon County Sheriff’s Departme nt

v. Illinois Human Rights Comm’n
, 233 I ll. 2d 125, 143 (2009) (“The Commi ssion’s finding that Yanor committed a v ar i et y of sexually hara ssing acts that cumulatively constituted a hostile work environment was not ag ainst the manifest weight of the eviden ce

. ”)

. At the

same time, that fac tual deter mination must be applied under the interpre tation of the statute which holds t h at “a char g e is timely as l ong as i t is filed wit hin 180 day s of any act that is part of the hostile w ork environment.” Sangamon County Sheriff’s Departme nt , 233 I ll. 2d at 142. ¶ 18 Wit h the appropr iate standard o f re v i ew i n m i n d
, we next turn to petitioners’ sole
argument on appea l: that L ockar d’s charg e of discrimination was not t i mely filed. The

ear liest d at e fo r consi dering whether acts lead to a host ile work environment was October 23, 2003. “[T] he I llinois [Human Rights] Act is go v er n ed b y the Morgan rule. [ National R.R. Pa s s en g er Corp. v. Morgan
, 536 U.S. 101 (2002).] It held that a char g e of sexual hara ssment based on a hostile work environment is timely as long as any of the acts that contributed to the hostile environment occur red no more than 180 day s befor e the claimant filed he r cha

rg e.” Jenk

ins v. Lustig , 354 I ll. App. 3d 193, 196 (2004).

-5-Petitioners c oncede that the ac ts le ading up to the shoulder massag e would state a claim of

a hostile work environm en t, but argue that all of those acts occur red outside the 180-day window that the wor

k environment wa s actionable , based on L ockard’s filingdate. “The 180-day filing require ment is mandatory in order t o v est the Commi ssion with subject matter jur isdiction of the char g e. [Cit ations.] ***
A s exual hara ssment claim based on a hostile work environme nt ge nera lly is made
up of a series of events rathe r than a single event. *** Provided that an act contributing
to the claim occur s within 180 day s o f t h e filing date, a fac t finder may consider all of the conduct that makes up the hostile environment claim. [C itation.] ” Sangamon County Sheriff’s Department , 233 I ll. 2d at 141. ¶ 19 Acc ording to petitioners, the Commi ssion’s finding s of fac t left the incident wher e Jones rubbed L ockar d’s should er s as “t h e one possible act of hara ssment within the 180-day period.” Howeve r, peti t i o n er s argue that the shoulder rub is not rela ted to the prior alleg ations and is the only act to have occur red within the 180-day period and, there fore
, L ockar d’s complaint of a hostile work environment based on those prior acts was not timely

. Alternatively
, petitioners assert that L ockar d’s complaint was not t i m el y fi led because the only two acts that occur red less than 180 day s befor e she filed the ch ar ge with the Depa rtment occur

red after cer

tain intervening action by the employ er and, there fore
, are not components of the actionable hostile environment that may have exis ted before the intervention. ¶ 20 In Jenk

ins
, the court held that the Morgan rule appli es “u n l es s (1 ) t he acts within the jurisdictional period have no relation to those outside the period or (2) are no longe r part of the same hostile environment claim. [C itation.] ” Jenk ins
, 354 I ll. App. 3d at 196. In support of their argument that the shoulder rub had no relation to the prior acts, petitioners argue that the cessation of the alleg edly hara ssing conduct, ending in a single
, isolated event, broke the chain of discrete discriminatory events that formed a single campa ign of discrimination and
preve nts the use of the “continuing violation” theory to save L ockard’s complaint based on conduct occur

ring outside the filing period. See Fitzgerald v. Hende rson , 251 F.3d 345, 364- 65 (2d Cir. 2001). ¶ 21 L ockar d, the Commi ssion, and the Depa rtment (re spondents) agree that the Commiss ion found that the November 2003 shoulder massag e was the only possible ac t o f s ex u al hara ssment that clea

rly occur red within the 180-day period, but argue that the Commi ssion

corr ectly found that the mas s age was the last in a series of acts that, toge ther, cre ated a hostile work environment. Initially
, howeve r, the state respond en t s qu estion whether the “re lation exception” to the Morgan rule a pplies in I llinois

.

¶ 22 SCOP E OF MORGA N RUL E ¶ 23 Respondents conce de that Gu s ci a r a ad o p ted the exception to the Morgan rule, whic h provides that an act within the 180-day period will not save an untimely claim of a host ile work environment based on a series of acts extending outside the 180-day period, if the timely act is not rela

ted to the acts occur

ring outside the filing window. They note, howeve r, that when our supreme court simil arly held that a char g e is timely so long as it is filed within

-6-180 day s of any act that is part of the hostile work environment, our supreme court cited

Gusciara but did not e x pressly mention or adopt Morgan ’s exceptions f or “unre latedness”

or intervening employ er actions. See Sangamon County Sheriff’s Departme nt , 233 I ll. 2d at 142. Responden t s argue that to construe the Morgan rule to include the “no relation” and “interve ning action” except i o n s wo u ld be inconsistent with the rule requiring liberal construction of the Act to ac hieve its g oals. ¶ 24 We find that both ex ceptions to the Morgan rule a pply

. This court has e x pressly found that the ex ceptions apply

. Jenk ins , 354 I ll. App. 3d at 196. The supre me cour t’s silence on the specific and narr ow exceptions to the Morgan rule is insufficient to overc ome our courts’
express adoption of the Morgan rule without modification or limit ation. See Gusciara
, 346 I l l

. App. 3d at 1019-20 (“We hold that, with one exception to be noted, Morgan ’s construction of Title VI I ’s limit ations provision applies to the interpre tation of section 7A102(A)( 1) of the A ct.”)

. 1

¶ 25 REL ATED COND UCT ¶ 26 Returning to the question of whether the shoulder rub had “no relation” to the prior ac ts, petitio n er s ar gu e that the shoulder rub was an isolated example of nonsexual phy sical conduct that is distinct from the series of “sexually tinge d comments and photogr aphs” that th e Commi ssion found cre ated the hostile work environment. Fur ther, petitioners arg

u e , e v e n if the s houlder massag e was sexual in nature , the s houlder rub was of a differ ent cha

rac ter than the prior a cts. ¶ 27 L o ck ar d re s p o n ds the timeliness of the charg e hinge s on the Commi ssion’s factual deter mination that the m assag e incident was part of her sex ual harassment claim. L ockar d
sug g ests this court must g ive defere nce to that finding of fact by the Commiss ion, and she
argues that finding must be aff irmed unless it is contrary t o t h e manifest weight of the evidenc e. Thus, all of the prior conduct may be considere d beca use the massag e incident

occur red within the 180-day period and it was part of the same hostile environment cre ated by J ones’s ear lier conduct. L ockar d relies on the Com m i s s i o n ’s deter mination that the
massag e was not qualitatively differ ent to support the proposition that the massag e incident
was, independe ntly
, sexual in nature , and, for timeliness purposes, was “an act contributing to the *** hostile environment.” Morgan , 536 U.S. at 117. ¶ 28 The Com mission’s finding that the s houlder massag e was related t o the acts occu rring outside the 180-day filing period, and thus was an act contributing to and part of L ockar d’s claim of a hostile work environment based on J ones’s acts occurri ng outside the 180-day

The one exception to the court’s full adoption of the Morgan ru l e, i ncluding its 1 exceptions, was as follows:

“We do diverg e from Morgan in one important respe ct. The Supreme Court held that bec ause Title VI I ’s l imitations provision is not jurisdictional, it is subject
t o equitable doctrines such as waiver
, estoppel, and tolling. [C itation.] Be cause section 7A-102(A )(1) ’s time limit is jurisdicti o n al
, we do not incorporate such equitable de fense s into section 7A-102(A) (1).” Gusciara , 346 I ll. App. 3d at 1020.

-7-filing pe riod, is not ag ainst the m anife st weight of the evidence. Ba sed on that finding , we

hold that L ockar d’s complaint was timely

. ¶ 29 As g ro u n d s fo r our decision we first note that the Act does not distinguish differ ent “ty pes” of acts , b e they verba l, visual, or phy sical, to deter mine whether hara ssment has

occur red. Stated differ ently
, whether the act that cause s the hara ssment is phy sical or not is irrele vant. The Act broadly define s “sexual hara ssment” as “ any conduct of a sexual nature [t hat] *** has the purpose or eff ect of substantial l y i n t erfering with an individual’s work perf ormanc e.” (Emphase s added.) 775 I L CS 5/2-101(E) (West 2004). We also find that the chang e in J ones’s conduct from verba l to phy sical is not rele vant to t h e d eter mination of whether his conduct within the 180-day period is “re lated,” for Morgan p u rp o s es, to his conduct outside the 180- day period. ¶ 30 L ockar d corr ectly argues that Sangamon County Sheriff’s Departme nt does not suppor t the propositi o n that a single act of a differ ent char acte r from ear lier acts can not be considere d part of the same hostile environment cre ated by the ear lier acts, and in fac t stands for the contra

ry proposition. Under Sangamon County Sheriff’s Dep artment , the alleg ed “cha rac ter” of the prior acts is not deter minative of whether an act occur ring within the filing period be ars “no relation” to acts occ urringoutside the filing pe riod and c ontributed to the same hostile work e nvironment. ¶ 31 In Sangamon County Sheriff’s Departme nt , the act occur ring within the filing period was

a letter which, the court found, “communicated a humiliating and false alleg ation of a sexual
nature .” Sangamon County Sheri f f ’s De p a rtment , 233 I ll. 2d at 143. The acts occur ring outside the filing period included phy sical confrontations and verba l reque sts for sexual favor s. See Sangamon County She r if f’ s Departme nt , 233 I ll. 2d at 134-35. Our supreme court held that “[t] he Commi ssion’s fi n d ing that [respondent] committed a variety of sexually hara ssing acts that cumulatively constituted a hostile work environment was not ag ainst the manifest weight of the evidenc e.” (Emphasis added.) Sangamon County Sheri f f ’s Departme nt , 233 I ll. 2d at 143. ¶ 32 L ockar d also argued that the massag e incident was an act contributing t o t h e h o s t i l e environment wher e she continued to work at the same location under the same supervisor who eng ag ed in all of the hara ssing conduct. We agree

. The court has specific ally looked to the “off ensive conduct, office
, and perpe trat o r [of] the incidents that occur red within the 180- day time period” (

Jenk ins
, 354 I ll. App. 3d at 197) to deter mine whether conduct outside that period contributed to the same hostile environment ( id. ). The court held that the “timely” act by the same perpe trator in the same office was part of the claim based on earlier acts by the
same pe rpetrator in the same of fice

. Jenk ins , 354 I ll. App. 3d at 197. ¶ 33 In Jenk

ins , the cour

t wrote: “Althoug h J enkins did not provide specific dates on which the pre- limit ations incidents

occur red, the alleg ations indicated the same offe nsive conduct, office
, and perpe trator as the in ci d en t s that occur

red within the 180-day time period. A fac t finder could easily conclude that this conduct wa s p art of the same actionable hostile environment claim. [C itation.] Acc ording ly
, it was an abuse of discretion to dismiss that portion of J enkins’ char g e.” Jenk

ins
, 354 I ll. App. 3d at 197 (citing Gusciara
, 346 I ll. App. 3d at 1021-22).

-8-¶ 34 EMPL OYER I NTERVENTI ON ¶ 35 Alternatively , petitioners ar gue that the Commission erroneously failed to c onsider the employ er’ s intervention to deter mine whether any of the subsequent acts wer e related to the prior acts, choosing instead to a ssume a continuum of conduct based on pr ox imity in time. Petitioners arg

ue that beca

use all of the acts alleg ed to have occur red wi t hin the 180-day period occur

red afte r the employ er’ s intervention in November 2003, none of those acts may be considere d part of any alleg ations of an unlawful employ m en t p ra cti ce that may have resulted from acts that oc curr ed prior to the employ er’ s intervention. Petitioners a rgue that the churc h’s intervening actions on October 29 and in November 2003 interrupted the hostile environment a

nd broke a

ny connec tion to the earlier

conduct. ¶ 36 L ockar d first questions whether the intervening action exc l u s i o n t o t h e Morgan rule applies, whe re no I llinois court ha s expressly adopted it and it s inclusion in the Act would
not be consistent with a liberal interpre tation of the Act to achie ve its purpose of preve nting sexual hara ssment. For the rea sons discussed above, we hold that, to the extent the Morgan rule incorpora

t es an ex clusion to application of the rule when the timely act occur s afte r intervention by

the employer, the exclusion applies in I llinois . I llinois has re cognized:
“The [ Morgan ] Court qualified [i t s ] h o l d ing by specify ing that an act that occur s within the presc ribed period will not enable an employ ee to rec over for acts occur ring outside the period if the later ac t ‘h ad n o relation to the [earlier] acts’ or if, ‘for some other rea son, such as cer

tain intervening action by the employ er,’ the more rec ent act was ‘no longe r part of the same hostile environment claim.’ [C itation.] ” Gusciara
, 346 I ll. App. 3d at 1019 (c iting Morgan , 536 U.S. at 118). ¶ 37 The Gusciara court found a s follows:

“Were there some compelling rea son to interpre t the Act inconsistently with the fede ral courts’ construction of Tit le VI I , we might do so. Howeve r, j ust as t he S upreme Court

saw no c ompelling ne ed ***, neither do we.
We ho l d t hat, with one exception [not applicable here ], Morgan ’s construction of Title VI I ’s limit ations provision applies to the interpre tation of section 7A-102(A )(1) of the Act. Thus, a cha rge of sexual hara ssment based on a hostile work environment is timely as long as any of the acts that contributed to the hostile environment occur red no

more than 180 day s befor e the claimant filed her charg e unless (1 ) t h e acts within the jurisdictional period had no relation to those outsid e t h e p er i o d; or (2) for some other

rea son, the later act was no longe r part of the same hostile environment claim.” Gusciara
, 346 I ll. App. 3d at 1019. ¶ 38 Nonethele ss, the employ er’ s intervention in this case did not cre ate a brea k in the serie s of events cre ating a hostile working en v i ronm ent for L ockar d. See Sangamon County Sheriff’s Departme nt , 233 I ll

. 2 d at 1 4 1

. L ockar d points this court to W illiams v. City of Chicago
, 325 F. Supp. 2d 867, 874-75 (N.D. I ll. 2004), for the proposition that only an action that actua lly results in a signific ant chang e in working condition s wi l l be considere d an “i nterve ning action” for purposes of the exclusion to the Morgan rule. We have h el d t h at “I llinois courts oug ht to construe the Act, including section 7A-102(A )(1)
, in harmony with

-9-the fede ral courts’ construction of Title VI I .” Gusciara
, 346 I ll

. Ap p

. 3d at 1019 (citing

Grave s v. Chief Legal Counsel of the Departme nt of Human Rights
, 327 I ll. App. 3d 293, 297 (2002) (“I llinois courts have looked to fede ral decisions involving Title VI I of the Civil Rights Act of 1964 [citation] in evaluating the merits of discrimination claims u n d er the Act.”) ). ¶ 39 In W

illiams
, the court rec og nized that “[a]n ‘interve ning action’ by an employ er *** can brea k the relation betwee n time-barr ed and timely acts. [C itation.] ” W illiams
, 325 F. Supp. 2d at 874. There
, the employ er, relying on a previous fede ral decision, arg ued that its transfe r of the employ ee from one work team to a differ ent work team was a “ Morgan ‘interve ning action.’ ” W

illiams
, 325 F. Supp. 2d at 875. The court distinguished the previous decision on the g rounds that, in the prior c ase, the court had found that “the plaintiff’ s transfe r ‘c lear ly chang ed’ [t he employ ee’ s] working conditions and that the time-barr ed acts had no relation to the timely

acts. [Cit ation.]” W

illiams , 325 F. Supp. 2d at 875. ¶ 40 Fo l l o wi ng the fede ral court’s earlier decision, the W illiams court foun d t h e C i t y o f C h i ca go ’s t ransfer was not a “ Morgan ‘interve ning action’ ” beca use t he transfer “did not signific antly chang e [the] w o r k in g c o n dit io n s

. ” Id. The court noted that the hara ssing conduct that occur

red befor e and afte r the transfe r wa s related. Id. The W illiams court held, “[a]ccording ly
, [t hat] t h e time-barr ed acts [were] sufficie ntly related to the timely acts to prec lude [t he] transfe r *** from being a Morgan ‘interve ning action.’ ” W illiams
, 325 F. Supp. 2d at 875. ¶ 41 The feder al court decisions t ea ch us that the action by the employ er must s ignif icantly chang e the working conditions complained of to constitute a “ Morgan ‘interve ning action’ ” and that the deter

mination of whether there has been a signific ant chang e rests on the fac tual question of whether any subsequent acts are related to ear lier acts. As discussed above, I llinois has held that the question of whether subsequent acts are rela ted to earlier ac ts depends not only on the n at u re o f t h e offe nsive conduct, but also on whether they are perpe trated in the same office
, and by the same perpe trator. Jenk ins
, 354 I ll. App. 3d at 197. Thus, under W

illiams and Jenk

ins
, we find that any alleg ed “interve ning action” which does
not remove an employ ee from the complaine d-of wor kplace
, nor chang es t he employ ment relationship betwe en the employ ees involved in the hostile working environment, does not constitute a “

Morgan ‘interve ning action’ ” such that the employ er’ s “interve ntion” cre ates a bre ak betwe en the pr evious conduc t and the subseque nt conduct. ¶ 42 Applying those standards to the fac ts here
, we find that the shoulder massag e contr ibuted
to the hostile environment beca use it involved an unwanted touching during a ti me when J ones had subjected L ockar d to a serie s of sexually tinge d comments and photogr aphs that

wer e demea

ning to w omen. That is, the conduct wa s perpe trated by the same pe rson in the

same wor kplace as the pre vious conduct. ¶ 43 There is no dispute that the previous co n du ct wa s s u ff i cient to support L ockar d’s complaint of a hostile work environment. The Commi ssion’ s f in d in g that the massag e, which

o cc urre d within the 180-day filing deadline, contributed to L ockar d’s hostile work environment cre ated by J ones’s series of acts of unwanted sexual conduct is not ag ainst the manifest weight of the evidenc e. For all of the fore g oing rea sons, we can find no clea r err or

-10-in the findingthat all of the a lleg ations in the complaint were timely filed.

¶ 44 ATTORNEY F EES ¶ 45 Next, petitioners argue that the Commi ssion err oneously ado p t ed a rule wher eby the “pre vailing community rate ” used to deter mine the hourly rate for an awa rd of attorney fee s

can be differ ent based on whether the attorney is repr esenting employ ees or employ ers. The Commi ssion acc epted L ockar d’s attorney ’s evidenc e as to his rate as the preva iling rate upon which to base the attorne y fee awa rd.
“It is well established that it is within the discretion of the trie r of fac t to deter mine the rea sonablene ss of the attorney fee s reque sted, and a court of revie w should not make

a de novo decision as to the a ppropriate awa

rd of attorney fee s.” Raintree He alth Care Center v. I

llinois Human Rights Comm’n , 173 I ll. 2d 469, 494 (1996). “[W ]e revie w t h e d ec ision to awa rd attorney fee s under an abuse of discretion standard.” Grate v. Grzetich , 373 I ll. App. 3d 228, 231 (2007). ¶ 46 We aff

irm the C ommissi on’s award of attorney fee s. The Com mission did not base its

awa rd on the nature of t he client, althoug h such consideration is not wholly inappropria te. See Mathur v. Board of Trustees of Southern Illinois University
, 317 F.3d 738, 743 (7th Cir. 2003) (“F ee- shifting statutes in civil rig hts leg islation are intended to allow litigants acc ess to attorney s who would otherwise be inacc essible
, g iven the low reta iners many plaintiffs can aff ord.” (citing City of Riverside v. Rivera
, 477 U.S. 561, 576 (1986 )) ). R egardless, responde nts c o r

rec tly argue that petitioners’ aff idavits (two of three of which came from their

own attorney s and only repr esente d the hourly rate charg ed to petitioners) are not sufficie nt to rebut evidenc e of L ockar d’s attorney ’s actua l hourly rate (whe n the case beg an), which is
p re s umptive evidenc e of the appropr iate marke t rate

. Mathur
, 317 F.3d at 743 (“[t] h e attorney ’s actua l billing rate for compar able work is presumptively appropr iate to use as the marke t rate” (interna l quotation marks omitted)). ¶ 47 Petitioners’ arguments d o n o t d i s p u t e t h e ex i s t en ce o f ev i d en ce to support the Commi ssion’s exer ci s e of its discretion to deter mine the appropr iate attorney fee awa rd. Petitioners expressly asked this court to use the rate their attorney char g ed as the preva iling community rate and to lower the awa rd of attorney fee s acc ording ly

. Petitioners’ arguments amount to no more than a reque s t t o we igh that evidenc e differ ently and to make a new deter mination of the appropr iate level of fee s. This court may not eng ag e in such an exercise.
“It is well established that it is wit hin the discretion of the trier of fac t to deter mine the rea sonablene ss of the attorney fee s reque sted, and a court of revie w should not make

a de novo decision as to the a ppropriate awa

rd of attorney fee s.” Raintree He alth Care Center , 173 I ll. 2d at 494.
In this case , the Commi ssion’s awa rd is supported by competent evidenc e of the preva iling community rate . The fa ct t hat petit ioners would have considere d other evidence
, or would have weighed the evidenc e differ ently
, does not demonstrate err or in the Commi ssion’s

awa rd.

-11-¶ 48 CONCLUSI ON

¶ 49 The orde r of the I llinois Human Rights Comm ission is aff irmed.

¶ 50 Affir

med.

-12-