how not to do it. Katrina Miles, who is
black, was a regular customer of Windsor Clothing Store’s Chicago Ridge store.
On September 4, 2007, she was the only African-American customer in the store. “Karolina,”
a Windsor employee, followed Miles from one end of the store to the other
during the 30 minutes she was shopping. Karolina never asked Miles if she
observed several white teenagers in the fitting room, making noise and slamming
doors, but no store employee went to that area. Miles asked to speak to the
store manager, who apologized and said that she would inform the district
manager of the incident.
cried all the way home and was “totally distraught” when she called her fiancé
to tell him what happened.
got a call about a week after the incident from Kelly Meyer, the district
manager. Meyer received a voice mail
message from the store manager informing her of the incident, but Meyer had
been traveling that day and did not retrieve the message until nearly midnight.
asked Miles to explain the incident from her perspective. Miles seemed “very
disturbed by the situation and, obviously, unhappy with what had occurred in
the store.” Meyer apologized to Miles, but said that her apology was in the
context of Miles having a mistaken perception of what had occurred. Meyer offered Miles a personal shopping
experience with a store manager at another location, but Miles declined.
filed a discrimination complaint with the Illinois Department of Human Rights.
Department mailed a notice of the charge to Windsor’s Chicago Ridge address.
Windsor did not submit a verified response by July 15, 2008, the Department
mailed Windsor a notice to show cause on July 22, 2008. Windsor was given 15
days to respond and was instructed to show cause why a notice of default should
did not submit a verified response, nor did it show cause why a notice of
default should not issue. The Department
mailed Windsor a notice of default, which informed Windsor that it could seek
review of the default by October 15, 2008. Windsor did not request review of
the notice of default.
Department entered a default order against Windsor and the matter was referred
for a hearing on damages. Windsor filed
an emergency motion to vacate the default, but the ALJ denied the motion on the
grounds that she lacked the authority to vacate the default, and the hearing
proceeded as scheduled.
the day of the incident, if Miles notices that she is the only black person in
a store, she constantly looks over her shoulder to see if anyone is following
her. She has also, at times, become standoffish and defensive when sales
associates ask her if she needs help, questioning why they are asking and
whether they also offered to assist other customers.
experienced difficulty sleeping since the incident and sometimes wakes up in
the middle of the night and cries for no reason. She has experienced headaches
The ALJ entered a Recommended Order and Decision recommending
an award of $25,000 to Miles for emotional damages suffered as a result of
Windsor’s actions. In her findings of fact, the ALJ noted that Windsor is a
clothing store and that Miles claimed denial of full and equal enjoyment of a
Illinois Human Rights Commission entered an order on January 20, 2014,
declining further review and adopting the ROD as its final order. Windsor took an administrative appeal to the
Illinois Court of Appeals. The appeal
had been given multiple opportunities to submit a verified response, even past
the 60-day deadline, and was even provided with a sample to use as a guide. It
was then given extended opportunities to either avoid or challenge the default
order. Windsor’s failure to (1) provide a verified response, (2) show cause why
it could not provide such a response, and (3) file a timely request for review
of the default order constituted a deliberate and contumacious disregard for
the Department’s authority and the default order was justified.
contended that Miles was not entitled to emotional distress damages, and
further argued that, in the event the court determined damages were
appropriate, an award of $25,000 was excessive.
appeals court pointed out that the ALJ found that since the incident, Miles was
very conscious in situations where she was the only African-American in a
public place and looked around to see if anyone was following her. Miles was
also very standoffish and defensive because of the incident. Miles cried on the
way home, has experienced difficulty sleeping, and still cried about the
incident. The ALJ had further noted that Windsor failed to rebut any of Miles’
testimony regarding her emotional distress. Finally, the ALJ concluded that
Miles’ emotional distress was compounded by Windsor’s failure to respond to her
concern in an appropriate manner by acknowledging that there was a problem with
the activities of “Karolina” and not just a “misunderstanding” on Miles’ part.
Windsor cited several Commission orders in which lesser amounts were awarded
for emotional distress, courts in Illinois have traditionally declined to
compare damages awarded in one case to damages awarded in other cases in
determining whether a particular award is excessive. The amount of damages awarded to a prevailing
claimant by the Commission would not be disturbed on review absent an abuse of
Illinois Human Rights Act seeks to promote Illinois’ public policy of securing
for all individuals within Illinois freedom from discrimination on the basis of
race in places of public accommodation. To that end, the Act prohibits the
denial of full and equal enjoyment of the facilities, goods, and services of
any place of public accommodation. The Act authorizes the Commission to award
damages for any injury or loss suffered, and such damages include damages for
emotional harm and mental suffering.
ALJ found that Miles suffered emotional distress and that distress was
compounded by Windsor’s failure to acknowledge its sales associate’s
discriminatory conduct. The Commission adopted those findings and the
recommended award of $25,000 in damages. The appeals court could not say that
an award of this amount contravened legislative intent, failed to consider a critical
matter, or was outside the agency’s expertise.
The lesson? Be sure to file a
timely verified response to the Charge of Discrimination to avoid a possible
Store v. Castro,
2015 IL App (1st) 142999
· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311