MENDEZ v. PERLA DENTAL (May 24, 2011)

Nereida Mendez was a Perla Dental employee. She alleges that she was subjected to severe verbal and physical sexual harassment and even physical abuse. She complained at several levels -- but it only made it worse. She eventually filed a police report concerning the physical abuse. Perla terminated her employment. Mendez brought suit, alleging Title VII claims for gender discrimination, hostile work environment, and retaliation. She also brought state law claims for assault and battery, intentional infliction of emotional distress, and retaliatory discharge. A jury found for Mendez and awarded compensatory and punitive damages. Perla appeals.

In their opinion, Judges Manion, Rovner, and Sykes affirmed. The only issue on appeal is whether the district court had subject matter jurisdiction. Perla argues that the Illinois Human Rights Commission had exclusive jurisdiction of the claim. The Court agreed that the Commission has exclusive jurisdiction of retaliation claims that are based on complaints of sexual harassment. The question is whether Mendez' retaliatory discharge claim was intertwined with her sexual harassment complaints. The answer to that question is found by examining whether the legal duty Perla allegedly violated arises from the Illinois Human Rights Act. Here, Mendez' claim is that she was fired for filing a police report. Defendants agree that such a claim is recognized by Illinois common law, without reference to the Act, but claim that Mendez abandoned that claim during the litigation. The Court rejected Perla’s argument. First of all, there is no factual basis for it. The evidence at trial included reference to the police report. The fact that a jury instruction might not have been complete does not support abandonment. Second, even if Mendez did abandon the claim, subject matter jurisdiction exists because it is decided at the time of the filing of the complaint.