2019 IL App (3d) 180524
Opinion filed August 7, 2019 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
TRUDY A. ZOEPFEL-THULINE, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, Plaintiff-Appellant, ) Rock Island County, Illinois. ) v. ) Appeal No. 3-18-0524 ) Circuit No. 13-L-58 BLACK HAWK COLLEGE, ) ) The Honorable Defendant-Appellee. ) James G. Conway, Jr., ) Judge, presiding. _____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice Schmidt and Justice Holdridge concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 The plaintiff, Trudy Zoepfel-Thuline, sued the defendant, Black Hawk College (the
College), for alleged violations of the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.
(West 2008)), alleging that the College first delayed offering her employment contracts in
retaliation for her reporting sexual harassment, then later terminated her employment in
retaliation for the discrimination suit she filed against the College. The circuit court entered
summary judgment in favor of the College, and the plaintiff appealed. On appeal, plaintiff argues
that the court erred when it ruled that she was not engaged in a protected activity when she filed
her discrimination suit against the College. We affirm. ¶2 I. BACKGROUND ¶3 The facts of this case are not in dispute. Those facts relevant to the disposition of this
appeal are as follows. ¶4 In 2003, plaintiff began teaching General Education Development classes at the College
on a part-time basis. For each class plaintiff taught, the College would require her to sign a
stand-alone contract, which included, inter alia, a provision stating that her employment was
subject to cancellation “if the enrollment, funds, or attendance is insufficient to justify holding
class, or it is necessary to combine or reassign the class because of its size.” Plaintiff was hired
by David Harris, the College’s outreach coordinator, who was also her direct supervisor. ¶5 In August 2009, Terry Urban, the evening receptionist in the College’s Community
Education Center, approached plaintiff and stated that while looking for vouchers in Harris’s
desk, she found something that she wanted plaintiff to know about. Plaintiff followed Urban to
Harris’s desk, and Urban showed her a stack of printed pictures that plaintiff classified as
pornographic. The material was located underneath some hanging file folders. Plaintiff stated
that she did not have authorization to go into Harris’s desk, nor would there be any reason for her
to do so. ¶6 Urban told plaintiff that she did not know what to do about the situation. Plaintiff told
Urban to make copies of the pictures and give them to her so she could report it to the College.
When plaintiff reported the situation to Jo Johnson in the College’s human resources department,
she was directed to mail copies to Johnson, who would follow up with Urban. Regarding her
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conversation with Johnson, plaintiff stated, “I wouldn’t have said [Harris] had sexually harassed
me. I would have said that I found it to be harassment.” ¶7 The printed pictures listed the websites from which they had been accessed. An October
2009 e-mail exchange between Johnson and Karen Boyd, another administrator in the human
resources office, indicated that a network analyst had been asked to perform an initial search of a
computer in the Community Education Center that apparently was the suspected source of the
printed pictures. However, the analyst did not find any browser history to confirm that suspicion.
The e-mail exchange stated that nothing further would be done about the situation. ¶8 It does not appear from the record that the initial investigation into the situation included
advising Harris that the pictures had been found in his desk or asking him how they came to be
in his possession. He did explain their presence in a later affidavit filed with the circuit court. He
stated that he had found the pictures in a printer in the Community Education Center’s public
computer lab and that he had suspected the pictures had been printed by a student whom he had
confronted on an earlier occasion about printing the same kind of material. Harris stored the
printed pictures in his desk until he could confront the student. He did not see the student
following the discovery of the printed pictures, however. ¶9 Harris also averred that “[n]o employees, including [Trudy], had authorization to get into
my personal work desk or file cabinet—where I had stored the material, nor would their job
duties ever require them to do so without my express authorization.” ¶ 10 On an afternoon in April 2010, plaintiff found herself short of calculators for her class.
She approached Debra Rhodes in the Community Education Center and asked if she had any
extras. Rhodes said that she thought Harris had some in his office. While Rhodes looked in
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Harris’s office, including his desk, plaintiff saw the same printed pictures in the same place in
Harris’s desk. ¶ 11 During the first week of May 2010, plaintiff received an e-mail in error from Harris, in
which he was critical about plaintiff’s classroom management abilities. Plaintiff was angered by
the e-mail and reported it to Johnson. During that conversation, plaintiff informed Johnson that
the printed pictures were still in Harris’s desk. Plaintiff asked Johnson what Harris had said
about the situation. Johnson replied that he had not been asked about it. Surprised, plaintiff
stated:
“I told her that I didn’t care how he came by it, it was his now. It
had been in that drawer for over a year. I said, ‘I don’t know why
somebody didn’t make him get rid of it, destroy it, whatever, but
certainly not keep it in a drawer where faculty, staff and possibly
even students could run into it,’ and here I had twice, not expecting
that would ever happen. I never went into his office, snooping
around or, you know, anything. She [Johnson] said they had done a
sweep of the computers and they could find nothing.” ¶ 12 Shortly after that conversation, human resources directed plaintiff and Harris to draft
“expectations lists” for each other. Plaintiff submitted her first expectations list in June 2010.
Between June and August 2010, plaintiff resisted requests from administration to attend a
meeting regarding the expectation lists, even though she had been told that she would not be
offered any contracts unless she attended the meeting. ¶ 13 During the pendency of the expectations-lists issues, on August 9, 2010, plaintiff’s
regular classes began. The College did not offer her contracts to teach any classes at that point,
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instead hiring two substitutes to cover those classes. Eventually, plaintiff was offered contracts in
September and returned to teaching in October. In early January 2011, she was offered contracts
to teach classes for the Spring semester. ¶ 14 In late January 2011, plaintiff filed a complaint with the Department of Human Rights,
alleging that the College refused to offer her contracts for the beginning of the Fall 2009
semester in retaliation for her reporting sexual harassment. ¶ 15 Plaintiff filed another complaint with the Department of Human Rights in February 2011.
The new complaint alleged sexual harassment by Harris based on the printed pictures she had
seen inside his desk. ¶ 16 Several months later, in June 2011, plaintiff was required to attend two meetings with
administration. The first meeting addressed guidelines for interactions she would have with
Harris going forward. At the second meeting, plaintiff was informed that she was not going to be
offered contracts to teach in the Fall of 2011. Plaintiff responded in July by filing another
complaint with the Department of Human Rights, alleging that the College retaliated against her
January 2011 filing by permanently terminating her employment. ¶ 17 In August 2011, plaintiff withdrew the sexual harassment complaint she had filed with
the Department of Human Rights. ¶ 18 After exhausting her administrative remedies regarding her two retaliation claims,
plaintiff filed both claims in the circuit court in January and February 2013. ¶ 19 Over the next four-plus years, the case was continued numerous times for discovery
purposes and settlement negotiations. Then, in August 2017, the College filed a motion for
summary judgment. After hearing arguments, the circuit court granted the College’s motion. In
so ruling, the court stated that plaintiff’s retaliation claims required her to prove that she had
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been engaged in a protected activity when the retaliation occurred, and thus, her sexual
harassment claim was still relevant. The court explained:
“Only from her female co-worker’s discovery (and both women’s
re-discovery) in the desk drawer of Plaintiff’s supervisor (David
Harris) of photocopies of pornographic pictures; Plaintiff’s alleged
emotional and moral response to the photos; and her decision to
report the presence of the photos to BHC administration could
proof begin to be made that a law violation that is reasonably
believable and possibly could be sufficiently demonstrable to
justify protected reporting activity.” (Emphasis in original.) ¶ 20 The court found that plaintiff failed to meet her burden of showing a prima facie case of
sexual harassment:
“Where there is no evidence in the record made that Harris
displayed the photos to Plaintiff; or even invited her to look at
them (in his desk drawer or anywhere); or otherwise tried to
discuss them, or call them to her attention at any time or any place.
The Plaintiff has statutorily failed to make any proof of the
prohibited conduct being directed to her, an individual ***.
***
Consequently, if Plaintiff is (presumably) an ‘average,
ordinary normal’ person then as a matter of law her claim(s) that
she believes it is offensive, unlawful conduct directed to her is not
reasonable or logical.” (Emphases in original.)
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Further, the court ruled that because “reasonableness” connotes an objective standard, plaintiff’s
subjective belief that a hostile work environment was created by the presence of the material in
Harris’s desk was insufficient to show severe or pervasive conditions as required by the law on
sexual harassment. ¶ 21 Plaintiff appealed. ¶ 22 II. ANALYSIS ¶ 23 On appeal, plaintiff argues that the circuit court erred when it granted the College’s
motion for summary judgment. Specifically, she claims, inter alia, that the court erred when it
ruled that she was not engaged in a protected activity when she filed her retaliation suit against
the College. ¶ 24 At the summary judgment stage, the circuit court does not resolve questions of fact but
determines whether genuine issues of material fact exist. Adams v. Northern Illinois Gas Co.,
211 Ill. 2d 32, 42-43 (2004). Summary judgment is appropriate “if the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735
ILCS 5/2-1005(c) (West 2014). We review a circuit court’s ruling on a summary judgment
motion de novo. Adams, 211 Ill. 2d at 43. ¶ 25 Initially, we note that plaintiff’s arguments largely rely on interpretive guidelines from
the Equal Employment Opportunity Commission’s (EEOC) website and cases from federal
appellate circuits other than the Seventh Circuit. However, the EEOC’s interpretive guidelines
are not law and are not entitled to the type of deference plaintiff seeks. See National R.R
Passenger Corp. v. Morgan, 536 U.S. 101, 110 n.6 (2002) (stating that EEOC guidelines are not
entitled to Chevron-level deference (see Chevron U.S.A. Inc. v. Natural Resources Defense
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Council, Inc., 467 U.S. 837 (1984)); Kentucky Retirement Systems v. Equal Employment
Opportunity Comm’n, 554 U.S. 135, 150 (2008). ¶ 26 Additionally, regarding the influence of federal precedent in Illinois courts, we first note
that section 6-101(A) of the Illinois Human Rights Act (775 ILCS 5/6-101(A) (West 2014))
largely tracks the statutory language used in Title VII of the Civil Rights Act of 1964—
specifically, section 2000e-3(a) (42 U.S.C. § 2000e-3(a) (2012)). When addressing
discrimination claims brought under section 6-101(A), Illinois courts apply the analytical
framework used by the federal courts in Title VII cases. Zaderaka v. Illinois Human Rights
Comm’n, 131 Ill. 2d 172, 178 (1989). In so doing, we will accord greater weight to the opinions
of the Seventh Circuit on these matters than to the opinions of other federal circuits. The reason
for this deference can be found in Wilson v. Norfolk & Western Ry. Co., 187 Ill. 2d 369, 383
(1999). In that case, our supreme court pointed out that because federal district courts in Illinois
are bound by Seventh Circuit decisions, Illinois state courts would also adhere to legal principles
pertaining to Federal Employers’ Liability Act (45 U.S.C. § 51 et seq. (1994)) claims that were
in accord with Seventh Circuit decisions. Wilson, 187 Ill. 2d at 383. The failure to do so would
detract from uniform application of a federal statute, depending on whether the case was filed in
federal or state court. Id. While we are not dealing with the application of a federal statute in this
case, the Illinois statute that controls our decision is largely identical to the comparable federal
statute. Because we do not want to create disparate treatment of retaliation cases depending on
whether they are brought in federal court or state court, and because state and federal courts
generally possess concurrent jurisdiction over federal civil rights claims (see generally Blount v.
Stroud, 232 Ill. 2d 302, 328-30 (2009)), we look primarily to Seventh Circuit decisions for
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guidance, when necessary, for the disposition of such cases, including this appeal. See Wilson,
187 Ill. 2d at 383. ¶ 27 Turning to the merits of plaintiff’s claim, we first note that a claimant can establish
employment discrimination through direct or indirect methods of proof. Hoffelt v. Department of
Human Rights, 367 Ill. App. 3d 628, 632-33 (2006).
“Under the direct method, the plaintiff must provide either direct
evidence or circumstantial evidence that shows the employer acted
based on prohibited animus. [Citation.] Under the indirect method,
the plaintiff must provide evidence that after filing the charge only
he, and not any similarly situated employee who did not file a
charge, was subjected to an adverse employment action even
though he was performing his job in a satisfactory manner.
[Citation.]” (Internal quotation marks omitted.) Mattson v.
Caterpillar, Inc., 359 F.3d 885, 888 (7th Cir. 2004).
Whether via the direct method or the indirect method, a claimant must establish that he or she
was engaged in an activity protected under the Human Rights Act. See id. at 889; see Hoffelt,
367 Ill. App. 3d at 634. ¶ 28 In relevant part, section 6-101(A) of the Illinois Human Rights Act (775 ILCS 5/6-
101(A) (West 2014)) provides two ways in which a person’s civil rights may be violated through
retaliation. First, the “opposition clause” of section 6-101(A) states that it is a civil rights
violation to “[r]etaliate against a person because he or she has opposed that which he or she
reasonably and in good faith believes to be *** sexual harassment in employment or sexual
harassment in elementary, secondary, and higher education.” Id.
-9-¶ 29 Second, the “participation clause” of section 6-101(A) states that it is a civil rights
violation to “[r]etaliate against a person *** because he or she has made a charge, filed a
complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under
this Act.” Id. ¶ 30 We first note that a difference exists in the language of the federal statute versus our state
statute. While section 2-601(A) of the Illinois Human Rights Act requires, in relevant part, that
the claimant hold a reasonable, good faith belief that the conduct opposed constituted sexual
harassment, section 2000e-3(a) of the federal Civil Rights Act of 1964 does not contain that
language. Nevertheless, in Mattson, the Seventh Circuit acknowledged that a “reasonable and
good faith” threshold exists for claims brought under Title VII of the Civil Rights Act of 1964:
“The purpose of requiring that plaintiffs reasonably believe in
good faith that they have suffered discrimination is clear. Title VII
was designed to protect the rights of employees who in good faith
protest the discrimination they believe they have suffered and to
ensure that such employees remain free from reprisals or
retaliatory conduct. Title VII was not designed to arm employees
with a tactical coercive weapon under which employees can make
baseless claims simply to advance their own retaliatory motives
and strategies. [Citation.]” (Internal quotation marks omitted.)
Mattson, 359 F.3d at 890.
Further, the Mattson court held that this standard applied to opposition-clause-based claims as
well as participation-clause-based claims. Id. at 891. The Mattson court clarified:
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“Were we to adopt a different standard, an employee could
immunize his unreasonable and malicious internal complaints
simply by filing a discrimination complaint with a government
agency. Similarly, an employee could assure himself unlimited
tenure by filing continuous complaints with the government
agency if he fears that his employer will discover his duplicitous
behavior at the workplace.” Id.
Lastly, the Mattson court emphasized that this standard set a low bar: “[p]rotection is not lost
simply because an employee is mistaken on the merits of his or her charge. Protection also is not
lost if an employee drafts a complaint as best he or she can but does not state an effective legal
claim.” Id. at 892. ¶ 31 Because the “reasonable and good faith” language does not appear in the participation
clause of section 6-101(A) of the Illinois Human Rights Act, it may appear at first glance that
this threshold standard does not apply in participation-clause-based cases. However, the concerns
identified by the Mattson court regarding federal participation-clause-based cases also apply in
Illinois participation-clause-based cases. Absent the “reasonable and good faith” standard
applying to participation clause cases, a claimant could insulate a meritless sexual harassment
claim simply by filing subsequent retaliation claims. See id. at 891. Further, while our supreme
court has stated that the Illinois Human Rights Act need not be construed in lockstep with Title
VII of the Civil Rights Act of 1964, that statement was made in the context of a key difference
between the Illinois Human Rights Act and the Civil Rights Act of 1964—the former mandated
strict liability for employers whose employees engaged in sexual harassment, whereas the latter
did not always impose strict liability. Geise v. Phoenix Co. of Chicago, 159 Ill. 2d 507, 518
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(1994). In this case, the federal and state participation clauses contain identical language. Thus, a
holding that no “reasonable and good faith” standard applies to participation clause cases would
create disparate impacts based on whether a claim was filed in the federal court or our state
court—a claimant who filed an unreasonable or bad faith claim could obtain protections in an
Illinois court not afforded by the federal courts, despite the identical language used in the federal
and state participation clauses. For these reasons, we hold that the “reasonable and good faith”
requirement applies not only to section 6-101(A)’s opposition clause, but also to its participation
clause. See Mattson, 359 F.3d at 891. ¶ 32 With these legal principles established, we turn to the question of whether plaintiff could
establish that she was engaged in a protected activity. Regarding count I, she claims that it was
both objectively and subjectively reasonable for her to believe she had been subjected to sexually
harassing conduct such that her reporting of it was protected. Regarding count II, she claims that
she participated in an investigation into the “conduct,” such that her filing of the first retaliation
charge in January 2011 constituted a protected activity. It is important to note here that even
though plaintiff withdrew her sexual harassment claim, it is clear that her two retaliation claims
are still predicated upon her act of reporting sexual harassment. Absent a “reasonable and good
faith” sexual harassment allegation, she would have had no cognizable claim under the federal or
state civil rights statutes. Accordingly, this appeal hinges on whether plaintiff reasonably and in
good faith believed that she was subjected to sexual harassment. ¶ 33 The Illinois Human Rights Act defines sexual harassment as follows:
“any unwelcome sexual advances or requests for sexual favors or
any conduct of a sexual nature when (1) submission to such
conduct is made either explicitly or implicitly a term or condition
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of an individual’s employment, (2) submission to or rejection of
such conduct by an individual is used as the basis for employment
decisions affecting such individual, or (3) such conduct has the
purpose or effect of substantially interfering with an individual’s
work performance or creating an intimidating, hostile or offensive
working environment.” 775 ILCS 5/2-101(E) (West 2014). ¶ 34 The United States Supreme Court has held that sexual harassment is actionable if it is
“sufficiently severe or pervasive,” such that it alters the employee’s employment conditions and
creates an abusive work environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986). Further, the Supreme Court has held that the determination of whether a work
environment is hostile or abusive is contextual and depends on factors such as “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Harris identified both
objective and subjective components to whether a hostile or abusive work environment exists:
“Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment—an environment
that a reasonable person would find hostile or abusive—is beyond
Title VII’s purview. Likewise, if the victim does not subjectively
perceive the environment to be abusive, the conduct has not
actually altered the conditions of the victim’s employment, and
there is no Title VII violation.” Id. at 21-22.
- 13 -¶ 35 In this case, the undisputed facts of record do not indicate that a reasonable person would
believe that plaintiff was subjected to sexual harassment because no reasonable person looking at
the undisputed facts could find any “conduct.” First, it is undisputed that plaintiff did not have
authorization or reason to go into Harris’s desk at any time, so the act of placing or leaving the
pictures in his private, restricted drawer cannot be reasonably construed as “conduct” as defined
in the Illinois Human Rights Act. Second, it is undisputed that Harris never committed any overt
acts toward plaintiff that could be construed as sexual harassment. Third, there are no facts of
record to indicate that the mere presence of the printed pictures in Harris’s desk—out of plain
view and in an area plaintiff had neither authorization nor reason to be—constituted conduct
“sufficiently severe or pervasive” such that a reasonable person would conclude a hostile or
abusive work environment was created. Under these circumstances, we hold that the undisputed
facts could not serve as a basis for plaintiff to establish that her reporting of no conduct of a
sexually harassing nature or that her filing of her second complaint with the Department of
Human Rights constituted protected activities under either the opposition or participation clauses
of the Illinois Human Rights Act. ¶ 36 For the foregoing reasons, we hold that the circuit court did not err when it granted
summary judgment in favor of the College. ¶ 37 III. CONCLUSION ¶ 38 The judgment of the circuit court of Rock Island County is affirmed. ¶ 39 Affirmed.
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No. 3-18-0524
Cite as: Zoepfel-Thuline v. Black Hawk College, 2019 IL App (3d) 180524
Decision Under Review: Appeal from the Circuit Court of Rock Island County, No. 13-L- 58; the Hon. James G. Conway Jr., Judge, presiding.
Attorneys Don D. Thuline, of Galva, for appellant. for Appellant:
Attorneys Jeffrey D. Wright and Allison K. Wright, of Pappas O’Connor, for P.C., of Rock Island, for appellee. Appellee:
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