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FIRST DIVISION
March 7, 2005

No. 1-03-3158

JUSTICE McBRIDE delivered the opinion of the court:

Denny's, Inc., (Denny's), seeks administrative review of a default order entered by the Illinois Human Rights Commission (Commission) against Denny's on Nathaniel Washington's charge of race discrimination in a place of public accommodation. Denny's also contests a separate order of the Commission awarding Washington $40,000 for emotional damages, $28,816 for attorney fees, and $1,293 for costs. Denny's argues the default order should be reversed because Denny's demonstrated "good cause" for its failure to attend a fact-finding conference scheduled by the Illinois Department of Human Rights (Department) after Washington filed the charge, rather than " 'deliberate, contumacious, and unwarranted disregard' " for the investigatory authority of the Department as required under Chicago Transit Authority v. Department of Human Rights, 169 Ill. App. 3d 749, 754, 523 N.E.2d 1108, 1112-13 (1988), quoting George Williams Hoffman & Co. v. Capital Services Co., 101 Ill App. 3d 487, 493-94, 428 N.E.2d 600 (1981). Denny's also argues the damage award is not supported by the allegations in Washington's written charge or by the manifest weight of evidence adduced at a hearing conducted by an administrative law judge. Lastly, Denny's argues the amount of attorney fees awarded is unreasonable.

Washington filed a charge of discrimination with the Department alleging that because he was "black," a partially-eaten chicken wing was concealed within his pot roast dinner when he ate at the Denny's Restaurant located in Melrose Park, Illinois, on December 21, 1998. He also alleged he and his wife were "the only black patrons in the restaurant" at the time. Further, within two days he suffered a flu-like illness of unspecified duration and also "suffered severe emotional trauma, depression, extreme fear, and anxiety" about the possibility of contracting a communicable disease from the chicken. Washington did not specify why he attributed the incident to racial discrimination. He filed his original charge on or about March 26, 1999, and a technical amendment on December 6, 1999, relabeling it as a charge of public accommodation discrimination.

The Department mailed a notice of the charge to Denny's on June 28, 1999. Kimberly Alexander, who worked in Denny's legal department in Spartanburg, South Carolina, mailed Denny's response to the Department on July 19, 1999. The Department then notified the parties by telephone on September 9, 1999, and by mail on September 10, 1999, that it had scheduled a fact finding conference for November 16, 1999, in the Department's Chicago offices, specifically, "9:00 a.m. at the Department of Human Rights, 100 W. Randolph St., 10th floor, Chicago, IL 60601." The written noticed indicated a fact-finding conference is "an investigative forum intended to define the issues, determine which facts are undisputed, obtain evidence and ascertain whether there is a basis for a negotiated settlement of the charge." The written notice to Denny's was mailed to Alexander in Denny's legal department in Spartanburg, South Carolina, and sought the attendance of food server Cindy Villanueva, "service coord." Mary E. Kahn, and cook, Antonio [Rodriguez].

Denny's subsequently retained a Chicago attorney. On November 4, 1999, the attorney, Robert E. Kinchen, filed an appearance. On November 10, 1999, Kinchen responded to a request from the Department for additional information by submitting (a) a copy of the Washingtons' meal ticket for December 21, 1998, (b) a copy of handwritten note regarding a telephone call from Alice Washington to the Melrose Park Denny's, (c) a list of employees at the Melrose Park Denny's, (d) a copy of Denny's policy for addressing customers' complaints, and (e) documentation of complaints lodged between December 1996 and June 1999. It is unclear from the record when the Department requested these documents. Kinchen sent the documents by messenger to Department investigator Don Nosbaum, and in addition to this written communication, he had several telephone conversations with Nosbaum regarding the investigation.

On the day of the fact-finding conference, attorney Kinchen telephoned the Department at approximately 8:50 a.m. and was told that the conference was about to begin. Kinchen stated Denny's had not been notified of the fact-finding conference and would not attend, and he asked for a continuance. The Department indicated Denny's should respond to a request to show cause that the Department would issue and that Denny's response would receive due consideration. Kinchen, nevertheless, went to the conference, arriving 15 minutes after it began. He reiterated that Denny's had not received notice and again asked for a continuance. The Department indicated that an attorney's attendance at a fact-finding conference is not a substitute for a respondent's attendance (see 56 Ill. Adm. Code §2520.440(d) (1996)), and that after reviewing Denny's response to the request to show cause that would be issued, the Department would decide whether to proceed with its investigation into Washington's charge. The conference then proceeded as scheduled without Denny's participation.

Kinchen investigated and on December 8, 1999, obtained affidavits from two of the requested witnesses -- Antonio Rodriguez, who indicated in his sworn statement that he was the cook when the Washingtons ate at Denny's, and Mary E. Kahn, who indicated in her sworn statement that she worked as a server that day. In their separate affidavits, Rodriguez and Kahn both swore, "I was and am willing to testify in a fact finding hearing relating to [Washington's] complaint. I was unable to determine the location of the place of the hearing. Arrangements are being made to assure that I will be available for a hearing in the future."

On December 9, 1999, the Department issued a notice to show cause why a default should not be entered pursuant to section 7A-102(C)(4) of the Illinois Human Rights Act (775 ILCS 5/7A-102(C)(4) (West 1998)) (Act) due to Denny's failure to attend the fact-finding conference. The cited section of the Act states in relevant part:

"Upon reasonable notice to the complainant and the respondent, the Department shall conduct a fact finding conference prior to 365 days after the date on which the charge was filed ***. If the parties agree in writing, the fact finding conference may be held at a time after the 365 day limit. Any party's failure to attend the conference without good cause shall result in dismissal or default. The term 'good cause' shall be defined by rule promulgated by the Department." 775 ILCS 5/7A-102(C)(4) (West 1998).

In accordance with section 7A-102(C)(4), the Department promulgated rules indicating that "good cause" is defined as "conditions such that a reasonable person would not attend a fact-finding conference" (56 Ill. Adm. Code §2520.10 (1996) (definition of terms)), and includes but is not limited to death or sudden serious illness of a party or an immediate family member of a party scheduled to attend a fact-finding conference (56 Ill. Adm. Code §2520.440(d)(3) (1996) (procedures regarding fact-finding conferences)). In addition:

"In assessing good cause, the factors which the Department may consider shall include, but shall not be limited to, whether the party has provided timely notice of its inability to attend the fact finding conference and whether the party has complied with the Department's request for documentation of the reason for not attending the conference." 56 Ill. Adm. Code §2520.440(d)(4) (1996).

On December 22, 1999, Denny's responded to the Department's notice to show cause, by providing Rodriguez's and Kahn's affidavits regarding their absence from the fact-finding conference and pointing out that, with the exception of the conference, Denny's had participated in the investigation of Washington's charge since its inception. Denny's argued that default was a drastic sanction to be used only as a last resort when a respondent's conduct was unreasonable and that public policy favored deciding Washington's charge on its merits. On February 9, 2000, the Department rejected this argument and issued a notice of default.

Denny's requested a review of the Department's determination; however, on November 20, 2000, the Department's chief legal counsel designee sustained the notice of default, indicating that default was warranted under two different standards. The first standard, adopted by this court in Chicago Transit Authority, 169 Ill. App. 3d at 754-55, 523 N.E.2d at 1111-12 (hereinafter, in text, CTA), provides that a default is justified when, instead of "good cause," a respondent has "shown deliberate, contumacious, and unwarranted disregard" for the investigatory authority of the Department. With regard to Denny's, the designee stated: "In the instant case, the Department made two requests for Respondent to attend the fact finding conference; Respondent agreed to attend. In not attending the fact finding conference, Respondent deliberately and contumaciously disregarded the [Human Rights] Act and the Department's Rules."

The designee also indicated: "Even if Respondent's conduct does not constitute deliberate and contumacious disregard of the Act and the Department's Rules, default is proper." The designee indicated the CTA standard was rejected by the Commission in Coleman v. Methodist Youth Services, Inc., Ill. Hum. Rts. Comm'n Rep. 1993CF3122 (December 10, 1997), and that under Coleman, default was justified if a respondent showed mere negligence in failing to attend a fact-finding conference. The designee then found:

"17. *** In the instant case, Respondent was not confused as to whether or not the fact finding conference would be held. Respondent received the Notice of Fact Finding Conference and informed its witnesses of the conference.

***

19. In the final analysis, Respondent has failed to provide good cause for its failure to attend the fact finding conference in this matter."

The Human Rights Commission subsequently entered the order of default from which Denny's seeks this court's direct review.

The Commission's default order also referred the matter to an administrative law judge "for a hearing on damages." After conducting a public hearing, the administrative law judge issued a recommended order and decision to the Commission, proposing that Washington be awarded $40,000 for emotional damages, $28,816 for attorney fees, and $1,293 for costs. Both Washington and Denny's filed exceptions to the recommended order and decision. Washington contended his attorney was due a higher hourly rate, and Denny's contended there was insufficient evidence to support any award for emotional damages. The Commission then remanded the matter to the administrative law judge for a further report on the basis for awarding emotional damages to Washington, and the administrative law judge issued a supplemental recommended order and decision to the Commission. A three-member panel of the Commission subsequently issued an order and decision in which it sustained and incorporated the original and supplemental recommendations of the administrative law judge. Denny's seeks review of this additional order.

Denny's first contention regarding the default order is that the CTA standard (Chicago Transit Authority, 169 Ill. App. 3d at 755, 523 N.E.2d at 1112) is still controlling, but, regardless of whether the CTA or Coleman standard is employed, the default was unwarranted.

The respondents⁽¹⁾ contend that CTA and subsequent cases employing the CTA standard were rendered "irrelevant" by a 1995 amendment to section 7A-102(C)(4) of the Act and that Coleman reflects the legislature's current intent as to when a default is justified. While the pre-1995 version of the Act provided, "A party's failure to attend the conference without good cause may result in dismissal or default" (emphasis added) (775 ILCS 5/7A-102(C)(4) (West 1994), the amended, current version (set out in greater detail above) provides that, "Any party's failure to attend the conference without good cause shall result in dismissal or default" (emphasis added) (775 ILCS 5/7A-102(c)(4) (West 1996)). We are not persuaded by the respondents' argument.

An administrative agency's interpretation of a statute, including a statute it is charged with administering, is not binding on this court (Richard's Tire Co. v. Zehnder, 295 Ill. App. 3d 48, 692 N.E.2d 360 (1998) (determining whether previous or amended version of statute was controlling, and declining to interpret statute in light of administrative rules and regulations)), and we address the proper construction of the statute de novo. In re D.F., 332 Ill. App. 3d 112, 119, 772 N.E.2d 939, 945 (2002) (addressing significance of statutory amendment).

The objective of this court in construing a statute is to give effect to the intention of the legislature. In re D.F., 332 Ill. App. 3d at 119, 772 N.E.2d at 945; Richard's Tire Co., 295 Ill. App. 3d at 57, 692 N.E.2d at 367. The language of a statute is considered the best indicator of the legislature's intent (Richard's Tire Co., 295 Ill. App. 3d at 58, 692 N.E.2d at 367), and where statutory language is clear and unambiguous, a court must give effect to the statute as written. In re D.F., 332 Ill. App. 3d at 119, 772 N.E.2d at 945. In addition, when the legislature has amended a statute after it has been interpreted by the courts, it is presumed that the legislature was aware of the judicial construction and that it acted with that knowledge. In re D.F., 332 Ill. App. 3d at 119, 772 N.E.2d at 945; La Salle Partners, Inc. v. Property Tax Appeal Board, 269 Ill. App. 3d 621, 629, 646 N.E.2d 935, 940 (1995) (interpreting statute amended several times without change to the language at issue). Therefore, where an amendment does not change the substance of a statute, prior judicial interpretations retain their validity. In re D.F., 332 Ill. App. 3d at 119, 772 N.E.2d at 945. In effect, the legislature's reenactment of statutory language constitutes an adoption of prior judicial constructions. La Salle Partners, Inc., 269 Ill. App. 3d at 629, 646 N.E.2d at 940.

Accordingly, we may presume that when reenacting section 7A-102(C)(4) of the statute without addressing "good cause," the legislature was aware of, and acquiesced in, the construction of "good cause" given by the appellate court in CTA. There is no indication in the wording of the amended statute that the legislature intended to change the construction of "good cause." What the respondents fail to acknowledge is that when the legislature changed "may" to "shall," the legislature merely removed the administrative agencies' discretion as to whether a default would be entered if "any party fail[ed] to attend the conference without good cause." By changing "may" to "shall," the legislature mandated that a default be entered in the absence of a showing of good cause, rather than permitting a default to be entered in the absence of a showing of good cause. This constriction on the agencies' powers did not authorize the Commission to subsequently expand the definition of "good cause" so that it included not only CTA's "deliberate, contumacious, and unwarranted disregard of the Department's investigatory authority," but also Coleman's "mere negligence" in failing to attend a scheduled fact-finding conference. In Coleman, the Commission acknowledged that "mere negligence is not deliberate and contumacious violation of the Department's notice of fact-finding conference" (Coleman, Ill. Hum. Rts Comm'n Rep. 1993CF3122 (December 10, 1997)), and we conclude that once it acknowledged this, the Commission should have gone no further. In light of the nature of the legislature's amendment to the statute at issue, we find that Coleman was wrongly decided and that the CTA standard prevails.

The next question is whether the record supports the conclusion that Denny's failed to provide "good cause" for its failure to attend to attend the scheduled conference. While we exercise independent review over questions of law or statutory construction, the findings and conclusions of an administrative agency on questions of fact are considered prima facie true and correct, and we must sustain the Commission's findings of fact unless we determine the findings are against the manifest weight of the evidence. Baksh v. Human Rights Comm'n, 304 Ill App. 3d 995, 999-1000, 711 N.E.2d 416, 419-20 (1999). An administrative agency's factual findings are contrary to the manifest weight of the evidence where the opposite conclusion is clearly evident. City of Belvidere v. State Labor Relations Board, 181 Ill. 2d 191, 692 N.E.2d 295 (1998).

After considering the record in light of these principles, we find that it does not support the conclusion that Denny's failure to attend the fact-finding conference was a "deliberate, contumacious and unwarranted disregard of the Department's investigatory authority." Chicago Transit Authority, 169 Ill. App. 3d at 755, 523 N.E.2d at 1112.

In CTA, in answer to a charge of race discrimination, the Chicago Transit Authority indicated a ticket agent had been justifiably discharged, in part for possessing a firearm on duty and failing to properly record fares and account for receipts. Chicago Transit Authority, 169 Ill. App. 3d at 751, 523 N.E.2d at 1110. The transit authority specified that after being tipped off by the Chicago police, a transit authority supervisor searched the ticket agent's booth and found concealed cash, transit tokens, and a firearm. Chicago Transit Authority, 169 Ill. App. 3d at 751, 523 N.E.2d at 1110. Also, a transit authority superintendent who ordered the supervisor to search the ticket booth also signed a criminal complaint against the ticket agent. Chicago Transit Authority, 169 Ill. App. 3d at 751, 523 N.E.2d at 1110. Despite their stated involvement in the ticket agent's termination, the transit authority declined the Department's request to send the supervisor and superintendent to a fact-finding conference. Chicago Transit Authority, 169 Ill. App. 3d at 751-52, 523 N.E.2d at 1110. The transit authority took the position that the two requested employees were merely present when the ticket agent was arrested and that they had no independent knowledge of the incident. Chicago Transit Authority, 169 Ill. App. 3d at 751, 523 N.E.2d at 1110. After the fact-finding conference was conducted without the participation of the supervisor and the superintendent, the Department requested additional information from the transit agency. Chicago Transit Authority, 169 Ill. App. 3d at 752, 523 N.E.2d at 1110. The transit authority responded, addressing the issue of the attendance of the supervisor and superintendent, and again declined to produce them as witnesses. Chicago Transit Authority, 169 Ill. App. 3d at 752, 523 N.E.2d at 1110. When given notice of default for failure to attend, the transit authority reiterated " 'neither of these employees participated in the investigation, the arrest, the discovery of the gun, or the decision to terminate.' " Chicago Transit Authority, 169 Ill. App. 3d at 752, 523 N.E.2d at 1111. After the default was issued, the transit authority sought review, arguing the sanction imposed was too severe. Chicago Transit Authority, 169 Ill. App. 3d at 754, 523 N.E.2d at 1112. The appellate court disagreed, finding that even though it was "clear" the transit authority had been "given several opportunities to either present the witnesses as requested or submit good reason for its nonattendance. The [transit authority] did neither. This constitutes a deliberate, contumacious and unwarranted disregard of the Department's investigatory authority. The default is justified." Chicago Transit Authority, 169 Ill. App. 3d at 755, 523 N.E.2d at 1113. However, since it was a case of first impression, the court remanded the cause in order to give the transit authority another opportunity to produce the two witnesses. Chicago Transit Authority, 169 Ill. App. 3d at 755, 523 N.E.2d at 1113.

The Commission subsequently applied the CTA standard in D&P Construction Co. v. Department of Human Rights, Ill. Hum. Rts. Comm'n Rep.1994CF1105 (January 24, 1997), in which the respondent corporation's president did not attend a fact-finding conference due to " 'unforeseen circumstances,' " which the corporation failed to elaborate on. The respondent corporation argued, however, that default was unwarranted because the complainant had admitted certain facts which made it clear he was not the victim of discrimination and because the corporation's "president at the time of the events in question has left, and the new president has no personal knowledge of the events surrounding the complainant's charge" (implying "that it would be a waste of time for the Department's investigator to interview the current president"). D&P Construction. Co., slip op. at ___. The Commission rejected these arguments, noting that it was not within the respondent's discretion to decide it no longer needed to cooperate with the Department's investigation or to decide which individual was relevant to the Department's investigation. Nevertheless, the Commission set out the CTA standard and noted that prior to its failure to attend the fact-finding conference, the respondent corporation had cooperated with the Department's investigation by submitting a verified response to the charge of discrimination and tendering over a 100 pages of materials in response to the Department's inquiries. Although cautioning that it was not endorsing the respondent's failure to attend the conference, "[i]n light of the previous cooperation of the respondent," the Commission vacated the default and remanded the case for further proceedings.

Similarly, in Johnson v. Kindercare Learning Center, Ill. Hum. Rts. Comm'n Rep. 1993SF0229, slip op. at ___ (April 28, 1995), the Commission struck a notice of default issued by the Department and remanded a discrimination charge for its further investigation, after emphasizing "[t]here is a significant public policy in favor of deciding [discrimination charges] based on the merits," and that the Commission "has not lightly ignored" the merits of discrimination charges in order to resolve them on a default basis. This court elaborated on the public policy of resolving complaints on their merits and the extreme nature of default orders, in Smith v. City of Chicago, 299 Ill. App. 3d 1048, 702 N.E.2d 274 (1998):

"The underlying spirit of our system of civil justice is that controversies should be determined according to the substantive rights of the parties. This notion is not only intuitive -- it is the articulated public policy of the state. See 735 ILCS 5/1-106 (West 1996). Dismissal of an action or the entry of an order of default may be an appropriate sanction for a party's refusal to obey a valid court order. However, such a drastic sanction, being the antithesis of a determination of a cause on its merits, should be employed only as a last resort after all other enforcement powers at the court's disposal fail. When, as in this case, sanctions are visited upon a party as vicarious punishment for the acts of her counsel, care must be taken in fashioning a sanction that both adequately addresses the offending conduct and, to the extent possible, preserves the right of the party to be heard on the merits of her case." Smith, 299 Ill. App. 3d at 1054-55, 702 N.E.2d at 279.

The respondent in Johnson failed to attend a fact-finding conference after erroneously assuming it had been cancelled because the written response to the complainant's charge purportedly "took care of the contested issues" and the Department had not confirmed that the conference would proceed after it received the response. Johnson, slip op. at ___. Although the respondent's "misunderstanding was entirely the fault of [the respondent]," the Commission took into consideration that there was "no indication *** the respondent ha[d] failed to cooperate with the investigation in any other way" and that the day after the conference, upon realizing it had misunderstood the Department's procedures, the respondent contacted the Department, apologized, and agreed to cooperate in any way necessary to reschedule the fact-finding conference." Johnson, slip op. at ___. The Commission summed up, "Put simply, this is not a respondent which has ignored its responsibilities to cooperate with the Department in its investigation." Johnson, slip op. at ___. The Commission also suggested that a lesser sanction would have still allowed the Department to make a decision based on the merits of the evidence presented. "Under the[s]e circumstances, and in light of the strong public policy in favor of a decision on the merits, [the Commission determined] that the Department erred when it held the respondent in default." Johnson, slip op. at ___.

Of the three Commission orders set out above, Johnson is the most factually similar to the present circumstances. Denny's legal department in Spartanburg, South Carolina, cooperated with the Department's investigation, submitting not only a written response to Washington's charge of discrimination, but also participating in a telephone conversation with the Department's investigator about its availability for a fact-finding conference. The additional fact that the legal department retained local counsel to cooperate with the Department's investigation is also indicative of a lack of deliberate, contumacious disregard for the Department's investigatory authority. It is apparent that Denny's legal department informed its newly retained attorney, Kinchen, about the Department's previous request for more information, since in early November 1999, Kinchen submitted various documents previously requested by the Department. There is no indication in the record, however, that Denny's also informed Kinchen of the fact-finding conference scheduled for the middle of November 1999. Nevertheless, when Kinchen telephoned the Department and was told that the conference was about to begin, with apparent due respect for the Department's investigatory authority, he hurried to the scheduled location, arrived shortly after the conference started, and requested a continuance. In addition, Denny's posture regarding the participation of witnesses requested by the Department contrasts sharply with the circumstances described in CTA, where the respondent repeatedly refused to produce witnesses who were "[o]bviously *** relevant and material" to the Department's investigation, since they were "closely involved in the matters that lead to [the complainant's] discharge." Chicago Transit Authority, 169 Ill. App. 3d at 753, 523 N.E.2d at 1112. Nothing in the record on appeal even remotely indicates that Denny's deliberately or contumaciously disregarded the Department's request to produce witnesses at the scheduled fact-finding conference. To the contrary, Denny's submitted the affidavits of two requested witnesses, the cook who prepared Washington's meal, and a server who interacted with Washington, indicating the witnesses had been and continued to be "willing to testify" in the investigation, but had been "unable to determine the location of the place of the hearing." The chief legal counsel's designee remarked in her order sustaining the default that "Respondent," meaning the two witnesses, were "not confused as to whether or not the fact-finding conference would be held." However, the witnesses' sworn affidavits indicated they were unable to find the conference location specified by the Department, and it appears they showed due respect for the Department's investigatory authority by further swearing that "[a]rrangements [were] being made to assure that [they would] be available for a hearing in the future." We are not persuaded by the respondents' suggestion that since attorney Kinchen was able to appear at the conference, the witnesses should have been able to appear as well. The fact that an attorney with a downtown Chicago office (One South Wacker Drive) was capable of hurrying to another downtown Chicago location (100 West Randolph Street) within a few minutes tells us nothing about the ability of two Melrose Park restaurant workers to locate a downtown Chicago address in time for a 9 a.m. conference. Like the respondent in Johnson, Denny's failure to attend the conference is entirely attributable to Denny's own personnel, yet the failure was not intentional and it does not support the conclusion of the chief legal counsel's designee that Denny's "deliberately and contumaciously disregarded" the Department's authority. Rather, the opposite conclusion is clearly evident.

For these reasons, we reverse the default order entered against Denny's and remand this cause for further proceedings consistent with this determination.

This result is further warranted by the fact that the allegations in Washington's complaint and the evidence adduced at the administrative hearing on damages were insufficient to support the $40,000 emotional damage award entered in Washington's favor.

"[C]ases in which the Commission has made awards for emotional damages are very much the exception, not the rule." Davenport v. Hennessey Forrestal Illinois, Inc., Ill. Hum. Rts. Comm'n Rep. 1987SF0429, slip op. at ___ (November 20, 1998). "The Commission has consistently held that the mere fact of a civil rights violation, without more, even in case of default, is insufficient to support an award for emotional distress." Davenport, slip. op. at ___. "Rather, the Commission has required a complainant to make it 'absolutely clear' that the recovery of [his or] her readily quantifiable pecuniary losses will not sufficiently compensate [him or] her for the civil rights violation." Davenport, slip op at ___.

Five individuals testified at the damages hearing, including Washington; his wife, Alice; his physician, Dr. Wayne C. Williamson; Denny's area training manager, Charles Budrius; and the Denny's cook on duty during the Washingtons' visit, Antonio Rodriguez. Alice and Washington testified about their meal at Denny's and Washington's subsequent fear that he might have been poisoned or would contract AIDS or another communicable disease. They indicated they had dined at the Melrose Park Denny's restaurant on other occasions, apparently without incident, but when they went there for lunch on December 21, 1998, they waited approximately 15 or 20 minutes to be seated and "non-black -- white people" who arrived after them were seated first. The Washingtons were given a table after Alice asked for one. Washington ate a third or half his meal before discovering the concealed chicken wing. Since part of the meatier portion of the chicken wing was missing, Washington "assumed" it had been bitten by someone else. He "hollered," cursed, "got furious," and became "totally upset" because he believed he had been served "garbage," and Alice called for their waitress. The waitress, who was neither black nor white, did not come over right away and approached only after Washington stood up and asked her to come to the table. She brought over the head waitress, who indicated the manager was not in the restaurant at the time. Washington touched the piece of chicken with his hand for the first time when he picked it up to show it to the head waitress. Before that, he had used his utensils to move the food around on the plate. The head waitress, an "Indian type," apologized and offered to bring Washington another meal. Washington declined the offer and indicated he wanted to take the food home. When Alice asked the head waitress to "make of note of what she saw on the plate," the woman said "she would not be willing to write that the chicken had been bitten off," but that there was "a piece missing." Once they got the note, and put the food in a take-out container, the Washingtons left the restaurant, and Alice drove the car because Washington was "still very, very upset." Alice told Washington that after they had been seated, the "white" chef had stepped out of the kitchen and looked at them. Alice thought the Washingtons "stood out" because they were the only blacks in the restaurant at the time. According to Washington, he was prevented from sleeping that night by "the thought [that] somebody tried to do a practical joke." However, after considering what he had observed, what his wife told him, and news reports about an incident of racial discrimination in a Denny's restaurant in the southern United States involving black Secret Service agents assigned to President Clinton, Washington attributed his own experience at the Melrose Park Denny's to racial discrimination. His additional testimony and testimony from Dr. Williamson established that Washington had been diagnosed with depression shortly after he was arrested and escorted from his job as a laborer with the Chicago and Northwestern railroad in approximately 1988, purportedly because he had been threatening a supervisor, who was white. Washington indicated the threat accusations were false, that he attributed them to discrimination, and that as a result of the "arrest incident" he had experienced "a total and permanent disability." He enrolled in "chef school" when his doctors told him that at age 37, he "[had] to do something." He attended the school between 1990 and 1992, earned a State of Illinois "food service sanitation license" and a City of Chicago "foodservice manager" certificate, which qualified him to cook in a restaurant, and so he believed that "if food is held at a certain temperature, it holds germs" and "keeps them alive," and that the chicken wing might have harbored "HIV or AIDS." He also thought he might have been poisoned by the chicken wing. Within a few days, he had a "real scratchy" throat, and about a week after visiting Denny's, he went to see a physician, who took a throat culture, which came back "negative." (This physician was not part of the administrative hearing.) On cross-examination, Washington acknowledged the sore throat was the only physical effect that he was directly attributing to the incident at Denny's, and that no doctor ever told him the sore throat was a symptom of being poisoned or exposed to a "viral or bacterial agent." After the incident at Denny's, however, his concerns about the potential health consequences caused him to have difficulty sleeping for the next six to seven months, to be argumentative with his wife, and to drink approximately half a pint of alcohol a day. He went to see Dr. Williamson about a month after visiting Denny's and was told there "was a possibility of hepatitis, *** HIV or AIDS." The doctor told him he would "test for all of these just to ease [Washington's] mind." Dr. Williamson testified that he specialized in internal medicine and had previously treated Washington with antidepressants for recurrent tension headaches and chronic pain which were related to Washington's arrest. According to Dr. Williamson, antidepressants may decrease headache frequency and intensity and suppress chronic pain. In addition, Washington had seen a psychiatrist for depression and psychiatrist or psychologist to receive biofeedback training, as a result of the arrest. By December 1998, Washington had progressed and "was functioning reasonably well." However, after eating at Denny's in December 1998, he became "very anxious, almost paranoid about the possibility" of "getting AIDS" or another "communicable disease, and so Dr. Williamson ordered "some lab work to help reassure" Washington. He told Washington "that if he continued to have headaches of a more frequent nature, he should consider going back on his antidepressant." Dr. Williamson further testified that he treated Washington's headaches with antidepressants between January of 1999 and September of 2000, and then switched over to analgesics. Dr. Williamson also indicated that he had treated people who had communicable diseases, but no one who contracted such a disease by eating food that someone else had touched or eaten from. Nevertheless, he said, "hypothetically, it's certainly possible" for someone to contract a communicable disease "by eating the same food that someone else ate." All the lab work he ordered in January 1999 "came back negative," but he had to tell Washington that "sometimes there can be sort of an incubation period," and that they "should probably just continue to keep an eye on things, but [that he] felt [Washington] would probably be okay." When it became apparent to Dr. Williamson that Washington was "still somewhat paranoid about the issue," Dr. Williamson repeated the lab work "around June of that year," "to further try to reassure [Washington] that he was fine." Washington never "exhibit[ed] any physical symptoms which suggested *** that he may have contracted a communicable disease following the incident," and he told Washington "there was no evidence of any disease process going on." Denny's area training manager Budrius testified about how the Melrose Park Denny's handled waste, what he believed Washington could or could not contract from eating "garbage," Denny's policy toward discrimination by its employees or customers, and the racial makeup of the kitchen staff and customers at that particular restaurant. Rodriguez, the cook, testified that he prepared Washington's pot roast dinner and denied mixing a chicken wing in with the meal. He described his own skin color as "brown," "not white," and when Alice observed him at the administrative proceedings, she indicated she would not "consider [Rodriguez] to be white."

Our review of the testimony discloses the lack of proof that Washington experienced a reasonable fear of contracting a communicable disease. Under Illinois law, a plaintiff cannot recover for emotional damages resulting from the fear of contracting HIV or AIDS without proof of actual exposure to HIV. Majca v. Beekil, 183 Ill. 2d 407, 420, 701 N.E.2d 1084, 1090 (1998). The Illinois Supreme Court adopted the "actual exposure" standard in October 1998, in part because, "Simply put, '[i]t is unreasonable for a person to fear infection when that person has not been exposed to a disease.'" Majca, 183 Ill. 2d at 420, 701 N.E.2d at 1090, quoting Brzoska v. Olson, 668 A.2d 1355, 1363 (Del. 1995). Requiring plaintiffs to plead and prove actual exposure to HIV provides an objective standard and "distinguishes claims based on conjecture and speculation from those that are based on a genuine fear of contracting AIDS." Majca, 183 Ill. 2d at 420, 701 N.E.2d at 1090. "In addition, an actual-exposure requirement prevents an individual from recovering damages for fear of contracting AIDS when that fear is based on a lack of information or inaccurate information regarding the transmission of HIV." Majca, 183 Ill. 2d at 420-41, 701 N.E.2d at 1090. "Thus, the public is not discouraged from allaying its concerns regarding the spread of HIV in order to capitalize on unfounded fears of contracting AIDS." Majca, 183 Ill. 2d at 421, 701 N.D.2d at 1090. Plaintiffs must "mitigate their fears by learning what they can about the likelihood that they have contracted the disease" (Doe v. Northwestern University, 289 Ill App. 3d 39, 48, 682 N.E.2d 145, 152 (1997)) and are under an " 'active duty of making reasonable exertions to render the injury as light as possible' " (Doe, 289 Ill App. 3d at 48, 682 N.E.2d at 152 , quoting Culligan Rock River Water Conditioning Co. v. Gearhart, 111 Ill. App. 3d 254, 258, 443 N.E.2d 1065 (1982)). Therefore, if by " 'negligence or wilfulness, [a plaintiff] allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him.' " Doe, 289 Ill. App. 3d at 48, 682 N.E.2d at 152, quoting Culligan Rock River Water Conditioning Co., 111 Ill. App. 3d at, 443 N.E.2d 1065. "To establish actual exposure, a plaintiff must show that HIV was present in the alleged disease-transmitting agent and that a medically accepted channel of transmission for the virus existed." Doe, 289 Ill. App. 3d at 52, 682 N.E.2d at 154 (DiVito, P.J., specially concurring). Although Majca specifically addressed fear of contracting AIDS, we read the opinion to be equally applicable to the other communicable diseases that Washington feared contracting, including syphilis and hepatitis.

The record on appeal discloses that Washington failed to provide the necessary proof that he was actually exposed to any communicable disease. In fact, Washington admitted that although he took the food home from Denny's and placed it in his freezer, he had never "take[n] [it] to be tested to determine whether or not there was poison or any other viral or bacterial agent on the chicken wing." At the hearing in February 2001, Washington admitted he still did not "know whether or not there is anything wrong with that chicken wing." He reiterated:

"I can't even comment on what is wrong with that chicken.

***

*** [W]hether anything is wrong with it, I don't know. I froze the chicken to hold it the way it is. So if I get sick somewhere down the line, my wife can then take it to a lab and have it analyzed to find out what's making her husband sick."

With regard to whether the chicken wing allegedly served to Washington was a "medically accepted channel of [disease] transmission" (Doe, 289 Ill. App. 3d at 52, 682 N.E.2d at 154 (DiVito, P.J., specially concurring)), Washington relied on his own testimony, as well as the testimony of Denny's area training manager Charles Budrius, and Washington's physician Dr. Wayne C. Williamson. This was ineffective. Although Washington indicated he was trained as a chef and was licensed by the City of Chicago and the State of Illinois to cook in a restaurant setting, his training and credentials concerned sanitation and safe food-handling practices, and he was not qualified to testify as a medical expert on disease transmission. Presumably Budrius had similar training and credentials (the record is unclear), and he was no more qualified to testify as a medical expert than Washington. As for Dr. Williamson, he stated his medical practice was devoted to internal medicine and never indicated he had the qualifications to give expert testimony about infectious diseases.

Furthermore, it cannot be inferred from Dr. Williamson's testimony that Washington's fear was reasonable. According to Dr. Williamson, "hypothetically, it's certainly possible" for someone to contract a communicable disease "by eating the same food that someone else ate." However, "the likelihood [of] getting HIV primarily from saliva, it's reduction is reasonably small." When specifically asked whether Washington's description of the incident at Denny's led Dr. Williamson to "conclude that [Washington] was of a high risk for contracting a communicable disease," Dr. Williamson answered, "based on what he told me, my initial impressions were that it was an unfortunate situation, but I didn't think that it was highly likely that he was -- would turn out to be infected with a communicable disease," and that he communicated this to Washington the "[f]irst time" he saw Washington in January of 1999. Washington was nevertheless "very anxious, almost paranoid about the possibility of being infected [with a communicable disease]," and to "help reassure" Washington, Dr. Williamson ordered "lab work" in January of 1999 which "all came back negative." Dr. Williamson told Washington there could be an "incubation period," and when it appeared that his patient was "still somewhat paranoid about the issue," Dr. Williamson "repeated all his lab data [in approximately June of 1999] to further try to reassure him that he was fine." When asked, "Would you conclude that Mr. Washington's anxiety concerning the possibility of getting some type of communicable disease from a previously eaten piece of food was a reasonable anxiety," Dr. Williamson answered, "Well, actually, I thought it was probably a bit exaggerated, to be frank."

In short, the evidence of "actual exposure" was completely lacking, and the only witness with any sort of medical expertise believed Washington's concern was excessive. The $40,000 damage award cannot be sustained because Washington did not prove that his fear and anxiety about the possibility of contracting a communicable disease was objectively reasonable and therefore compensable.

The damage award is also flawed for another reason. In her supplemental recommended order and decision, the administrative law judge cited prior Commission decisions to support the $40,000 award. However, none of the decisions she referenced involved similar circumstances. This is significant because the Commission has indicated:

"In determining reasonable parameters of an award for emotional damages the Commission considers the totality of the circumstances. The Commission considers the nature of the violation that caused the injury. The Commission also closely examines the injury itself." Blakemore v. Interparking Corp., Ill. Hum. Rts. Comm'n Rep. 1999CP2688, slip op. at ___ (June 25, 2003).

For instance, in Blakemore, the complainant, a black man, indicated that when he returned to a parking garage to pick up his car, the security guard confronted him with profanity and threatened to call the police. The Commission awarded him $1,000 after contrasting this "[single] incident of foul language followed immediately by an apology" (Blakemore, slip. op at ___) with a prior case in which a probationary employee was awarded $10,000 after he was continuously subjected to racial slurs, jokes, and taunting. Although the administrative law judge was unlikely to have found any prior decisions involving the exact circumstances that occurred at Denny's, instead of considering previous incidents that were at least similar in nature, the administrative law judge relied primarily on cases involving workplace sexual harassment. In Thorne v. Department of Veterans' Affairs, Ill. Hum. Rts. Comm'n 1990CF1159 (March 22, 1996), for example, a coworker subjected the complainant to inappropriate touching such as pinching on her buttocks and fondling her breasts, and over a period of nine months made almost daily comments of a sexual nature. In Snider v. Consolidated Coal, Ill. Hum. Rts. Comm'n Rep. 1985SF0280 (November 24, 1998), the complainant's superintendent made sexual advances for more than a year, threatened to fire the complainant after she reported the conduct to her union representative, and eventually coerced the complainant into a sexual relationship. The administrative law judge also relied on Westley v. C.L. Management, Inc., Ill. Hum. Rts. Comm'n Rep. 1997CF2799 (January 2, 2001), in which, over the course of approximately 18 months, the complainant's manager frequently pressured her to go out for drinks, showed her sexually suggestive photographs, made almost daily sexually offensive comments, attempted to kiss the complainant by grabbing her and forcing his tongue into her mouth, and attempted to physically prevent her from leaving the premises by blocking a doorway and preventing her from closing the door on her automobile as she left the parking lot. Since these circumstances are not even remotely comparable to the incident occurring at the Melrose Park Denny's, they were an inappropriate basis upon which to "consider[] the nature of the violation that caused the injury" and "closely examine[] the injury itself" in order to determine the "reasonable parameters" of an award for emotional damages. Blakemore, Ill. Hum. Rts. Comm'n Rep., slip op at ___. The administrative law judge cited Palumbo v. Palos Community Hospital, Ill. Hum. Rts. Comm'n Rep. 1996CA0145, slip op at ___ (January 10, 2000), in support of her contention that the "size of the damage award should be based upon the degree of harm caused, not the specific type of behavior which caused that harm." As noted earlier, however, an administrative agency's interpretation of a statute, including a statute it is charged with administering, is not binding on this court. Richard's Tire Co., 295 Ill. App. 3d 48, 692 N.E.2d 360; In re D.F., 332 Ill. App. 3d at 119, 772 N.D.2d at 945. Furthermore, even Palumbo, an employment discrimination charge, relied on other employment discrimination charges to establish the reasonable parameters of the amount to be awarded to the complainant for emotional damages.

For these two reasons, we vacate the $40,000 damage award.

Denny's is also challenging the amount of attorney fees awarded to Washington pursuant to section 8A-105(G) of the Illinois Human Rights Act (775 ILCS 5/8A-104(G) (West 1998)), contending the fees are excessive, rather than "reasonable" as required by the statute. Since we are reversing the underlying judgment in Washington's favor, we also reverse the award of $28,815 for attorney fees and $1,293 for costs.

This cause is remanded for further proceedings consistent with this court's order.

Reversed and remanded.

CAHILL, P.J. and GORDON, J., concur.

1. Although Washington was named as a co-respondent to this review, our references to "respondents" encompass only the Department, its director, the Commission, and its chief legal counsel.