Michele Nischan v. FCA US LLC, et al
Filed opinion of the court by Judge Kanne. The district court judgment is AFFIRMED in part and REVERSED in part, and the case is REMANDED for further proceedings consistent with the opinion. Richard A. Posner, Circuit Judge; Daniel A. Manion, concurring in part and dissenting in part, Circuit Judge and Michael S. Kanne, Circuit Judge. [6858371-1]  [16-3464]
United States Court of Appeals
For the Seventh Circuit
STRATOSPHERE QUALITY, LLC; FCA US LLC f/k/a CHRYSLER
GROUP LLC; and ABBAS SABBAH,
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 13‐CV‐50389 — Frederick J. Kapala, Judge.
ARGUED APRIL 13, 2017 — DECIDED AUGUST 2, 2017
Before POSNER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Michele Nischan alleges that she
was fired from her job for filing a sexual‐harassment com‐
plaint. Consequently, she brought a litany of claims in the
Northern District of Illinois, suing three defendants: Strato‐
sphere Quality, LLC—her employer; Chrysler Group LLC—
her employer’s client; and Abbas Sabbah—her purported
harasser. The district court dismissed her claims.
We respectfully disagree with the court’s decision regard‐
ing Nischan’s sexual‐harassment claim against Stratosphere:
Nischan offered sufficient evidence supporting that claim to
avert Stratosphere’s motion for summary judgment. And to
that extent, we reverse and remand the case. But we other‐
Stratosphere provides third‐party inspection and quality‐
control services to car manufacturers. One of Stratosphere’s
major clients was Chrysler. As relevant here, Chrysler hired
Stratosphere to inspect thousands of cars at a large parking
lot in Belvidere, Illinois. Stratosphere also provided services
to six other companies in the Belvidere area.
On June 5, 2012, Stratosphere hired Nischan as a car in‐
spector. Her formal position was “team lead.” A month later,
Stratosphere promoted her to “project supervisor.” As a pro‐
ject supervisor, Nischan reported directly to her supervisor
Davina Turluck. Turluck, in turn, reported to Jim Harris—an
“operations manager” whose job entailed planning for pro‐
ject costs, overseeing and reviewing projects, and respond‐
ing to customer complaints.
Nischan’s work at Stratosphere required frequent contact
with a coworker named Sabbah. Sabbah was not a Strato‐
sphere employee. Instead, he worked for Chrysler as a liai‐
son to Stratosphere.
Nischan claims that Sabbah sexually harassed her, and
did so relentlessly. The alleged harassment includes Sabbah
routinely rubbing his penis on her hip and buttocks; hug‐
ging her, while moaning; pressing himself against her
breasts, while moaning; commenting that her breasts were
really firm; asking her if her breasts were real and what size
they were; asking her whether she liked small, medium, or
large penises; asking her on dates, and once promising her a
night that she would never forget; putting his arm around
her; rubbing her thigh; staring at her breasts; and making
uncomfortable eye contact with her.
She further contends that high‐level Stratosphere em‐
ployees knew about the harassment, having witnessed it
firsthand. Specifically, she claims that Sabbah once rubbed
his erect penis on her in a work trailer in front of Harris and
a project supervisor named Michelle Blackman. Nischan
says that she then ran out of the trailer crying and that
Blackman came out to console her.
The last alleged instance of sexual harassment occurred
on September 22, 2012. Nischan claims that Sabbah made a
comment about how she would be a lonely empty nester
soon because her son was going to leave home and join the
Navy. Sabbah allegedly then propositioned her and asked
for her phone number. According to Nischan, this was the
straw that broke the camel’s back: she loudly rebuffed his
advance, demanding that he stop bothering her.
Sabbah denies all of these allegations.
Apart from this purported harassment, Nischan had oth‐
er problems at work, namely with her performance. In Au‐
gust 2012, she made numerous mistakes, causing Turluck
and Harris to intervene and provide direction. By September
2012, Turluck and Harris had “completely lost faith in [Nis‐
chan’s] ability to perform the tasks associated with being a
[project supervisor].” (R. 83‐10 at 2.) So they decided to de‐
mote her back to the position of team lead.
But on September 24, 2012, Nischan had another slipup
that caused Turluck and Harris to “change the course of ac‐
tion [they had] decided on.” (R. 83‐16 at 3.) While on the lot,
Nischan was demonstrating to her crew how to inspect a ve‐
hicle’s brake‐line clips for defects. But instead of checking
near the wheels (where the clips are located), she popped the
hood. She admitted that this was a “pretty serious” mistake
and a major safety issue. (R. 106‐1 at 188.)
What’s worse, she made this mistake in front of Sabbah.
Consequently, Sabbah demanded that Stratosphere remove
her from the lot because he did not “trust her inspecting ve‐
hicles.” (R. 83‐16 at 2.) It took two days and multiple pro‐
tests, but on September 26, 2012, Stratosphere complied with
Stratosphere, however, did not fire Nischan; rather, Tur‐
luck told her to contact the scheduling department to see if
there was work at another lot in Belvidere. But she chose to
file for unemployment instead.
On October 8, 2012, Nischan lodged a sexual‐harassment
complaint with Stratosphere. Stratosphere subsequently
turned the matter over to its legal counsel.
On December 20, 2013, Nischan sued Stratosphere,
Chrysler, and Sabbah in the Northern District of Illinois. Her
complaint charges the defendants with sexual harassment,
sex discrimination, and retaliation in violation of both Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. and the Illinois Human Rights Act, 775 ILCS
5/1‐101 et seq. (“IHRA”). The complaint also asserts Illinois
common‐law claims for intentional infliction of emotional
distress and battery.
On September 23, 2014, the district court partially grant‐
ed the defendants’ motions to dismiss under Federal Rule of
Civil Procedure 12(b)(6), disposing of all Title VII claims
against Sabbah, the IHRA sexual‐harassment and sex‐
discrimination claims against Sabbah, the battery claim
against Stratosphere, and the intentional‐infliction‐of‐
emotional‐distress claims against all of the defendants. The
court subsequently reinstated the IHRA sexual‐harassment
claim against Sabbah.
On January 11, 2016, the court granted the defendants’
motions for summary judgment under Federal Rule of Civil
Procedure 56, dismissing the remaining Title VII and IHRA
claims. The court then relinquished jurisdiction over the
state‐law battery claims against Chrysler and Sabbah.
Nischan timely appealed.
On appeal, Nischan challenges the district court’s grant
of the defendants’ motions to dismiss and for summary
judgment, disposing of her claims for sexual harassment, sex
discrimination, retaliation, intentional infliction of emotional
distress, and battery.
We review these decisions de novo. Rockwell Automation,
Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 544 F.3d 752,
756 (7th Cir. 2008). Regarding the claims dismissed under
Rule 12(b)(6), we accept all well‐pled facts as true and con‐
strue all inferences in the nonmovant’s favor, granting the
motion only when the complaint fails to allege facts suffi‐
cient to “state a claim to relief that is plausible on its face.”
Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 289–90
(7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). And regarding the claims dismissed under Rule 56,
we construe all facts and reasonable inferences in the non‐
movant’s favor, granting summary judgment only when
“the admissible evidence shows that there is no genuine is‐
sue as to any material fact and that the moving party is enti‐
tled to judgment as a matter of law.” Tapley v. Chambers, 840
F.3d 370, 376 (7th Cir. 2016) (quoting Hanover Ins. Co. v. N.
Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014)).
With these standards in mind, we address each of Nis‐
chan’s dismissed claims in turn.
A. Sexual Harassment
Nischan’s first claim is for sexual harassment. To prevail
on this claim, Nischan must show that (1) she endured un‐
welcome sexual harassment; (2) she was harassed because of
her sex; (3) the harassment was so severe or pervasive that it
altered the conditions of employment and created a hostile
work environment; and (4) there is a basis for employer lia‐
bility. Turner v. The Saloon, Ltd., 595 F.3d 679, 684 (7th Cir.
2010). The district court did not address the first three ele‐
ments, and the parties don’t dispute those elements here.
The only issue before us is whether “there is a basis for em‐
ployer liability.” Id. We address this issue with respect to
Chrysler can incur liability for sexual harassment only if
Nischan can “prove the existence of an employer‐employee
relationship” with Chrysler. Love v. JP Cullen & Sons, Inc., 779
F.3d 697, 701 (7th Cir. 2015). The problem Nischan faces is
that Chrysler was not Nischan’s direct employer—
Stratosphere was. Even so, “a plaintiff can, under certain
limited circumstances, bring a claim against a defendant
who is not [her] direct employer.” Id. Nischan contends that,
although Chrysler was not her direct employer, it had suffi‐
cient authority over her to be considered a “joint employer”
To test Nischan’s theory, we employ a five‐factor test,
considering the following things:
(1) extent of the [purported] employer’s control and
supervision over the worker, including directions
on scheduling and performance of work, (2) the
kind of occupation and nature of skill required, in‐
cluding whether skills are obtained in the work‐
place, (3) responsibility for the costs of operation,
such as equipment, supplies, fees, licenses, work‐
place, and maintenance of operations, (4) method
and form of payment and benefits, and (5) length of
job commitment and/or expectations.
Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378–
79 (7th Cir. 1991); see also Mitchell v. Dep’t of Corr., 856 N.E.2d
593, 598 (Ill. Ct. App. 2006) (reciting Illinois’s similar multi‐
After analyzing these factors, it is clear that Chrysler was
not Nischan’s employer. We begin with the first factor—the
right to control and supervise—which is the most important
factor for determining whether an employer‐employee rela‐
tionship exists. Love, 779 F.3d at 703. Within this factor, the
“key powers” are hiring and firing. Id. Everyone agrees that
Chrysler had no involvement in Nischan’s hiring. Nischan
nevertheless claims that Chrysler had the power to fire her;
moreover, she contends that Chrysler—through Sabbah—
used that power to get her removed from the lot.
Not so. As the district court noted, Sabbah could provide
only input and recommendations regarding Stratosphere’s
employees. And Stratosphere had no obligation to comply
with these requests, as shown by the fact that it took two
days and multiple demands from Sabbah before Strato‐
sphere ultimately decided to remove Nischan from the lot.
True enough, Stratosphere did remove Nischan at Sab‐
bah’s behest. Nevertheless, it is very common for service
providers to adhere to their client’s wishes on personnel de‐
cisions. For example, a law firm might comply with a re‐
quest from a client to remove an associate from a case after
the associate missed a filing deadline; or a bank might ac‐
quiesce to a demand from a home buyer to remove a lending
agent from a mortgage deal when the agent’s negligence
caused the parties to miss their closing date. In these situa‐
tions, the associate and the lending agent aren’t employees
of their respective companies’ clients. And this case is no dif‐
ferent: Nischan wasn’t Chrysler’s employee just because
Sabbah requested and obtained her removal from the lot.
Regarding supervision, there is some evidence that Sab‐
bah supervised and trained Nischan during her employ‐
ment. Nevertheless, most of the responsibility for supervi‐
sion and training belonged to Stratosphere. Stratosphere
regulated Nischan’s work days and hours and managed her
day‐to‐day assignments. Sabbah, on the other hand, would
inspect the finished work product; “[t]his minimal supervi‐
sion[,] [which] is essentially limited to ‘the result to be
achieved,’ … militates against a finding of control.” Love, 779
F.3d at 703. Accordingly, the first factor favors Chrysler.
So too does the next factor, which asks whether the em‐
ployee obtained her skills at work. The record shows that
Nischan learned her inspection skills before she applied to
Stratosphere. And although she received additional training
at work, she received most of that training from Strato‐
sphere, not Chrysler. This factor thus favors Chrysler.
At summary judgment, Nischan failed to contest the final
three factors, so she has lost her ability to do so here. Even
so, those factors favor Chrysler: Stratosphere provided Nis‐
chan with the tools and equipment necessary to perform her
job; Stratosphere paid Nischan and gave her benefits; and
Stratosphere assigned Nischan to the lot and had no expecta‐
tion that Nischan would leave and work for Chrysler once
Stratosphere’s contract with Chrysler terminated.
These factors show that Chrysler was not Nischan’s em‐
ployer. Accordingly, Nischan’s sexual‐harassment claim
against Chrysler fails.
Nischan voluntarily dismissed her Title VII sexual‐
harassment claim against Sabbah because there is no indi‐
vidual liability under Title VII. See Geier v. Medtronic, Inc., 99
F.3d 238, 244 (7th Cir. 1996). On appeal, she challenges the
district court’s dismissal of her IHRA sexual‐harassment
This claim fails for the same reason that it failed against
Chrysler: Chrysler was not Nischan’s employer. The Illinois
Human Rights Commission has explained that it “does not
have jurisdiction over an individual harasser unless the in‐
dividual is an employee or agent of a complainant’s employ‐
er,” and that, under those cases, the individual “cannot be
liable to [the] [c]omplainant under the [IHRA] for any sexual
harassment, regardless of how reprehensible his conduct
may have been.” Christine Pickett v. Sharon Willow Health
Care, 1999 WL 33256273, at *3 (Ill. Human Rights Comm’n
May 6, 1999). Because Nischan and Sabbah worked for dif‐
ferent companies, Nischan’s sexual‐harassment claim
against Sabbah fails.
At the outset, Nischan’s sexual‐harassment claim against
Stratosphere fares better than it did against Chrysler and
Sabbah because Stratosphere was Nischan’s employer. Thus,
an employer‐employee relationship between Stratosphere
and Nischan existed.
Still, Nischan must prove that “there is a basis for em‐
ployer liability.” Turner, 595 F.3d at 684. To determine
whether she can do this, we must first decide “whether the
alleged harassment was perpetrated by supervisors or
coworkers.” Vance v. Ball State Univ., 646 F.3d 461, 469 (7th
Cir. 2011). If Sabbah was Nischan’s supervisor, then Strato‐
sphere is strictly liable for his harassment. Id. at 469–70; see
also Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 506 (7th Cir.
2004) (noting that, for strict liability to apply, the plaintiff
must show that the harasser “served specifically as her su‐
pervisor”), overruled on other grounds by Ortiz v. Werner En‐
terprises, Inc., 834 F.3d 760 (7th Cir. 2016). But if Sabbah was
merely a coworker, then Stratosphere is liable only if it was
“negligent either in discovering or remedying the harass‐
ment.” Vance, 646 F.3d at 470 (quoting Williams v. Waste
Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004)).
Nischan contends that Sabbah was her supervisor. Under
Title VII, a supervisor is one with “the power to directly af‐
fect the terms and conditions of the plaintiff’s employment.”
Jajeh v. Cty. of Cook, 678 F.3d 560, 568 (7th Cir. 2012) (quoting
Andonissamy v. Hewlett‐Packard Co., 547 F.3d 841, 848 (7th
Cir. 2008)). This power includes “the authority to hire, fire,
promote, demote, discipline or transfer a plaintiff.” Id. (quot‐
ing Rhodes, 359 F.3d at 506).
As noted above, Sabbah did not possess this authority.
Indeed, he had no power to affect the terms and conditions
of Nischan’s employment; all he could do was make recom‐
mendations regarding Stratosphere personnel decisions—
recommendations that Stratosphere did not have to honor.
Moreover, although he had limited authority to review Nis‐
chan’s work and provide occasional on‐the‐job training, the
record shows that Turluck and Harris were primarily re‐
sponsible for supervising and training Nischan: they are the
ones who promoted her, disciplined her when she made
mistakes, and ultimately removed her from the lot. Because
Sabbah was not Nischan’s direct supervisor, Stratosphere is
not strictly liable under Title VII.
Nor is Stratosphere strictly liable under the IHRA. True
enough, in Sangamon County Sheriff’s Department v. Illinois
Human Rights Commission, the Illinois Supreme Court held
an employer strictly liable for a supervisory employee’s har‐
assing conduct even though the harasser was not the vic‐
tim’s direct supervisor. 908 N.E.2d 39, 45 (Ill. 2009). That the
harasser possessed general supervisory powers was enough
to make the employer strictly liable. Id. The court reasoned
that “[t]here is no language in the [IHRA] that limits the em‐
ployer’s liability based on the harasser’s relationship to the
Sangamon County, however, is distinguishable. There, the
harasser and the victim worked for the same employer. But
here, Sabbah worked for Chrysler, not Stratosphere. And
Nischan cites no authority suggesting that a nonemployee
could be a supervisor for purposes of imposing strict liability
on an employer. Nor could we find any. Because Sabbah was
not Nischan’s supervisor for purposes of either Title VII or
the IHRA, Stratosphere is not strictly liable for Sabbah’s al‐
That doesn’t mean Stratosphere is off the hook. Under
both Title VII and the IHRA, an employer is liable for the
harassment of a nonemployee or nonsupervisory employee
if it was “negligent either in discovering or remedying the
harassment.” Vance, 646 F.3d at 470 (quoting Williams, 361
F.3d at 1029); see 775 ILCS 5/2‐102(D) (“[A]n employer shall
be responsible for sexual harassment of the employer’s em‐
ployees by nonemployees or nonmanagerial and nonsuper‐
visory employees only if the employer becomes aware of the
conduct and fails to take reasonable corrective measures.”).
To prove negligence, an employee usually must make a
“concerted effort to inform the employer that a problem ex‐
ists.” Hrobowski v. Worthington Steel Co., 358 F.3d 473, 478
(7th Cir. 2004) (quoting Silk v. City of Chicago, 194 F.3d 788,
807 (7th Cir. 1999)). This would include lodging a complaint
with human resources or telling high‐level management
about the harassment. Nischan didn’t do that. Indeed, the
record shows that Nischan made no formal complaint to
Stratosphere until October 8, 2012—almost two weeks after
Stratosphere removed her from the lot.
Nevertheless, Stratosphere still could be liable if it knew
or should have known of the harassing conduct yet failed to
act. See Faragher v. City of Boca Raton, 524 U.S. 775, 799–800
(1998). In these cases, the employer is charged with having
constructive notice of the harassment. Hrobowski, 358 F.3d at
478. Generally, for constructive notice to attach, the notice
must “come to the attention of someone who … has under
the terms of his employment … a duty to pass on the infor‐
mation to someone within the company who has the power
to do something about it.” Young v. Bayer Corp., 123 F.3d 672,
674 (7th Cir. 1997). Once that person learns of the sexual har‐
assment, the employer is considered to be on notice even if
the victim never reported the harassment. Cf. Hrobowski, 358
F.3d at 478 (“[A]n employer could be charged with construc‐
tive notice where the harassment was sufficiently obvious.”).
Nischan contends that the evidence in the record sup‐
ports her argument that Stratosphere had constructive no‐
tice. We agree.
Nischan testified at her deposition that Sabbah ap‐
proached her in a work trailer and rubbed his penis on her
while it was erect. She further testified that two Stratosphere
employees—Blackman and Harris—were in the trailer when
this happened. Nischan claims that she then ran out of the
trailer crying and that Blackman came out to console her.
Blackman submitted an affidavit supporting Nischan’s ver‐
sion of the story.
Blackman, like Nischan, was a project supervisor. As
such, Stratosphere required her to take immediate action by
reporting Sabbah’s conduct. Specifically, Stratosphere’s em‐
ployee handbook provides that “[a]ny employee with mana‐
gerial or supervisory responsibility who witnesses or is oth‐
erwise aware of possible harassment … must report the con‐
duct immediately to that employee’s supervisor/manager,
the V.P. of Human Resources or Employee Relations Man‐
ager or the Chief Operating Officer.” (R. 83‐4 at 16.)
Admittedly, as the dissent notes, Blackman held the same
low‐level “supervisor” title that Nischan held. Nevertheless,
Stratosphere’s handbook requires “[a]ny employee with …
supervisory responsibility” to report observed instances of
possible harassment. (Id.) Stratosphere is accountable to the
standard of care that it created for itself. Because Strato‐
sphere’s rules required Blackman to report the sexual har‐
assment that she observed, Stratosphere had constructive
notice of the harassment. See Young, 123 F.3d at 674.1
Stratosphere also received notice through Harris. Harris
was an operations manager, whom Stratosphere’s counsel
described at oral argument as Nischan’s boss’s boss. Like
Blackman, Harris had the duty under the employee hand‐
book to report any observed sexual harassment.
Nischan testified at her deposition that Harris was pre‐
sent in the work trailer when the alleged harassment oc‐
curred. But she waffled a bit when asked whether he saw
anything, saying, “I don’t know if they witnessed. I don’t
know what they witnessed.” (R. 106‐1 at 143.) Thereafter,
Harris submitted an affidavit, claiming that he “did not wit‐
ness any conduct by [Sabbah] that [he] believed constituted
sexual harassment.” (R. 83‐26 at 3.) The district court found
1 The dissent also suggests that Nischan never raised the argument that
Blackman’s knowledge put Stratosphere on constructive notice with the
district court, and thus, the argument is waived. We disagree, conclud‐
ing that Nischan did enough to circumvent waiver. At summary judg‐
ment, Nischan claimed that Blackman witnessed Sabbah harass her in
the trailer and saw her run away in tears. Nischan’s deposition testimo‐
ny supports this claim. The district court acknowledged Nischan’s claim
but nevertheless determined that the evidence didn’t establish whether
Harris also witnessed the incident.
that Nischan’s and Harris’s testimonies were consistent:
Harris might not have witnessed the harassment even
though he was in the trailer.
Even so, Nischan testified throughout her deposition that
Harris knew about the harassment. (E.g., R. 106‐1 at 165,
167.) Moreover, immediately following her “I don’t know if
they witnessed” admission, in the same breath, she qualified
her answer, saying, “Well, actually, yes, because Michelle
Blackman came up to me and she’s, like, I can’t believe what
[Sabbah] just did.” (R. 106‐1 at 143.) Nischan’s “[w]ell, actu‐
ally, yes” qualification arguably neutralized her admission.
In any event, deponents often misspeak and make mis‐
takes, and competent advocates can expose those errors
through skillful cross‐examination at trial. But at the sum‐
mary‐judgment stage, we construe all evidence in the record
in Nischan’s favor. See Tapley, 840 F.3d at 376. So construed,
the evidence shows that Harris’s knowledge of the harass‐
ment is a genuine issue of material fact for the jury to resolve
Nischan has offered sufficient evidence to show that
Stratosphere had constructive notice. Accordingly, the dis‐
trict court’s conclusion that Nischan failed to provide a basis
for employer liability was erroneous.
B. Sex Discrimination
Nischan’s second claim is for sex discrimination. The ba‐
sis for this claim is that similarly situated male employees
did not suffer the same “harassing conduct and ostracism”
that she suffered. (Appellant’s Br. at 37.) We do not see how
this claim is any different from her sexual‐harassment claim.
To the extent that the two claims are the same, see above.
Even assuming that Nischan has made a distinct claim, it
fails nonetheless. To prevail on a sex‐discrimination claim,
Nischan must offer evidence showing that she suffered an
adverse employment action because of her sex. See Ortiz, 834
F.3d at 765 (Title VII); Kalush v. Ill. Dep’t of Human Rights
Chief Legal Counsel, 700 N.E.2d 132, 141 (Ill. App. Ct. 1998)
(IHRA). This she has not done. Indeed, no evidence in the
record suggests that the defendants treated male employees
more favorably than female employees. To the contrary, the
facts suggest that the defendants treated both males and fe‐
males alike. For example, Stratosphere agreed to relocate
Harris because Sabbah no longer wanted him to oversee op‐
erations at the lot. Because there is no evidence supporting
Nischan’s sex‐discrimination claim, that claim fails.
Nischan’s third claim is for retaliation. The basis for this
claim is that the defendants removed her from the lot be‐
cause of her sexual‐harassment complaint. To prevail on this
claim, Nischan must show that “she engaged in statutorily
protected activity and was subjected to [an] adverse em‐
ployment action as a result of that activity.” Huri v. Office of
the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826,
833 (7th Cir. 2015); All Purpose Nursing Serv. v. Ill. Human
Rights Comm’n, 563 N.E.2d 844, 850 (Ill. App. Ct. 1990) (recit‐
ing the IHRA’s similar standard).
Undeniably, lodging a sexual‐harassment complaint is a
statutorily protected activity. See Durkin v. City of Chicago,
341 F.3d 606, 614 (7th Cir. 2003). The problem with Nischan’s
claim, however, is that Nischan lodged no complaint until
after Stratosphere removed her from the lot.
Admittedly, there is evidence that Stratosphere knew
about Nischan’s harassment before removing her. But that
evidence shows that Stratosphere learned of the harassment
by witnessing it, not by receiving a complaint from Nischan.
Because there is no evidence supporting Nischan’s claim that
the defendants retaliated against her because she engaged in
a protected activity, that claim fails.
D. Intentional Infliction of Emotional Distress
Nischan’s fourth claim is for intentional infliction of emo‐
tional distress. To prevail on this claim, Nischan must prove
that (1) Sabbah’s conduct was outrageous, (2) Sabbah in‐
tended to inflict severe emotional distress, and (3) Sabbah’s
conduct in fact caused severe emotional distress. See Schiller
v. Mitchell, 828 N.E.2d 323, 333 (Ill. App. Ct. 2005). The dis‐
trict court granted the defendants’ motion to dismiss this
claim, holding that the IHRA preempted it.
The IHRA is the exclusive remedy for civil‐rights viola‐
tions. See 775 ILCS 5/8‐111(D). It “preempts tort claims that
are ‘inextricably linked’ to allegations of sexual harassment.”
Quantock v. Shared Mktg. Servs., Inc., 312 F.3d 899, 905 (7th
Cir. 2002) (citing Maksimovic v. Tsogalis, 687 N.E.2d 21, 22–23
(Ill. 1997)). To determine whether claims are “inextricably
linked,” we ask whether the plaintiff can establish “a basis
for imposing liability on defendants … without reference to
the legal duties created by the [IHRA].” Blount v. Stroud, 904
N.E.2d 1, 9 (Ill. 2009).
Nischan cannot do this because her intentional‐infliction‐
of‐emotional‐distress and IHRA claims are one and the
same. As the district court put it, “[t]he alleged extreme and
outrageous conduct is the sexual harassment and retaliation
that constitutes her IHRA civil rights claims such that with‐
out these allegations plaintiff would have no [intentional‐
infliction‐of‐emotional‐distress] claim.” (R. 59 at 4.) Indeed,
if we were take the civil‐rights allegations out of the com‐
plaint, no claim for intentional infliction of emotional dis‐
tress would remain. See Schroeder v. RGIS, Inc., 992 N.E.2d
509, 518–19 (Ill. App. Ct. 2013). Because the facts supporting
Nischan’s tort claim are identical to those supporting her
IHRA claim, the two claims are inextricably linked. See
Quantock, 312 F.3d at 905. The IHRA thus preempts Nis‐
Nischan’s final claim is for battery. Only Stratosphere
moved to dismiss this claim.2 The district court granted
Stratosphere’s motion, holding that the Illinois Workers’
Compensation Act’s exclusivity rule barred the claim.
The Workers’ Compensation Act is the exclusive remedy
for accidental injuries transpiring in the workplace. See
Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222, 1225 (Ill.
1990). To circumvent this exclusivity rule, Nischan must
demonstrate that her injury (1) “was not accidental,” (2) “did
not arise from her employment,” (3) “was not received dur‐
ing the course of her employment,” or (4) “is not compensa‐
ble under the Act.” Hunt‐Golliday v. Metro. Water Reclamation
Dist. of Greater Chi., 104 F.3d 1004, 1016 (7th Cir. 1997) (citing
Meerbrey, 564 N.E.2d at 1226).
2 As noted above, because the district court had dismissed all of Nis‐
chan’s federal‐law claims against Chrysler and Sabbah, it relinquished
jurisdiction over her state‐law battery claims against them.
None of these exceptions applies. Specifically, the second
and third exceptions are inapplicable because it is undisput‐
ed that Nischan’s alleged injury happened at Stratosphere in
the course of her employment.
The first exception doesn’t apply, either. Injuries result‐
ing from a coworker’s intentional tort are accidental from
the employer’s perspective unless the employer commanded
or expressly authorized the tort. Meerbrey, 564 N.E.2d at
1227. Although Stratosphere might have known about Nis‐
chan’s harassment, that’s a far cry from saying that Strato‐
sphere commanded the abuse. Because there is no such evi‐
dence, Nischan cannot rely on this exception.
Finally, the fourth exception is inapplicable because the
Act compensates employees for injuries suffered due to a
coworker’s sexual assault. See Juarez v. Ameritech Mobile
Commc’ns, Inc., 957 F.2d 317, 324 (7th Cir. 1992).
Accordingly, the Workers’ Compensation Act bars Nis‐
chan’s battery claim against Stratosphere.
The district court properly dismissed all of Nischan’s
claims against Chrysler and Sabbah. But the court erred in
dismissing Nischan’s sexual‐harassment claim against Strat‐
osphere on the ground that Nischan failed to provide a basis
for employer liability. That claim may proceed to trial on a
negligence theory so long as Nischan can withstand sum‐
mary judgment on the claim’s other elements.
The district courtʹs judgment is thus AFFIRMED in part
and REVERSED in part, and the case is REMANDED for fur‐
ther proceedings consistent with this opinion.
MANION, Circuit Judge, concurring in part and dissenting
Because the district court has written a comprehensive
and thorough order in which I can find no error, I would af‐
firm the dismissal of Michele Nischan’s sexual harassment
claim against Stratosphere. I agree with our court’s opinion
on all other issues, but I do not agree that Nischan has alleged
sufficient facts to sustain a finding that Stratosphere was on
constructive notice that Nischan was being sexually harassed
by Sabbah. According to Nischan’s testimony, Sabbah, who
was an on‐site supervisor employed by Chrysler, sexually
harassed her in several disgusting ways on an almost daily
basis. Nischan’s problem is she did not report this harassment
to Stratosphere until sometime in late October after she was
no longer employed by the company. There is no dispute that
Stratosphere did not have actual notice of Sabbah’s alleged
conduct.1 It is evident also that Nischan’s performance at
work was very poor. She made lots of mistakes and seemed
not to understand the scope of her duties. Inevitably, she was
transferred and terminated after failing to show up at the new
Nischan’s case thus stands or falls based upon the incident
in the trailer, and whether Stratosphere was on constructive
notice of her alleged victimization. The court graphically
describes Nischan’s testimony where Sabbah approached her
1 The district court does note that Nischan alleges a phone call to Strat‐
osphere on June 22, 2012, but there is no evidence that the message Nis‐
chan left was in any way a complaint about sexual harassment. Ironically
what this phone call does show is that she knew the number to call for any
kind of complaint, a complaint which she never made, instead tolerating
Sabbah’s disgusting behavior for several more weeks.
in her work trailer and rubbed and groped her. Nischan
alleges that in the work trailer were two other Stratosphere
employees—Blackman and Harris. Blackman held the same
low‐level “supervisor” title as Nischan. While Nischan does
waffle between saying she was sure Blackman saw the
groping incident and that she had no way of knowing if
Blackman saw it, we can assume Blackman did see it. Even so,
Blackman was not Nischan’s supervisor and had no duty to
report: this fatal defect is perhaps why Nischan simply did
not rely upon the argument that Blackman’s knowledge put
Stratosphere on constructive notice. Blackman’s general duty
to report sexual harassment cannot be assumed on appeal to
apply to non‐Stratosphere employees such as Sabbah. The
district court had no opportunity to judge the evidence on this
point, because this factual determination was not relevant to
the decision before it. In other words, the argument that
Blackman witnessing Sabbah’s assault of Nischan constituted
constructive notice to Stratosphere is raised for the first time
on appeal, and is thus waived. Fednav Int’l Ltd. v. Continental
Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (“[A] party has
waived the ability to make a specific argument for the first
time on appeal when the party failed to present that specific
argument to the district court, even though the issue may
have been before the district court in more general terms.”).
As the district court order makes clear, the allegation that
Blackman witnessed the groping in the trailer was put
forward to suggest that Harris must have also witnessed the
event. Nischan v. Stratosphere Quality, No. 13 C 50389, at fn. 14
(N.D. Ill. Jan. 1, 2016) (order granting summary judgment).
Blackman was not alleged to be a hook for constructive notice
to Stratosphere. Nowhere was the district court presented
with the argument that Stratosphere was negligent in failing
to remedy Nischan’s harassment because Blackman was
bound by an employee policy that mandated her to report
sexual assaults by non‐employees.
Harris, on the other hand, actually had supervisory re‐
sponsibilities over Nischan, and the claim that Harris saw the
trailer incident forms the sole factual basis for Nischan’s pre‐
served constructive notice claim against Stratosphere. Nis‐
chan thinks that since Harris was in the work trailer, he should
have witnessed this. Certainly Stratosphere could have been
on actual notice of Nischan’s sexual harassment if she had
said something to Harris about what was going on. Instead,
she ran out of the trailer followed by Blackman and cried out‐
side while Blackman consoled her. Critically, there is not even
a clear allegation that Harris saw Sabbah’s behavior or Nis‐
chan’s distress. As the district court thoroughly analyzed,
there is no allegation that Harris saw anything. Therefore, I to‐
tally agree with the district court’s thorough analysis of the
incident and agree with the district court that Stratosphere
did not have actual or constructive notice of Sabbah’s disgust‐
ing behavior. I would completely affirm the district court’s or‐
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