Boutros v. Park Plaza Northwest Home for the Aged et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 11/30/2016. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SANDY BOUTROS,
Plaintiff,
v.
PARK PLAZA NORTHWEST HOME
FOR THE AGED and YEHUDA
LEBOVITS,
Defendants.
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No. 16 CV 5133
Magistrate Judge Young B. Kim
November 30, 2016
MEMORANDUM OPINION and ORDER
Before the court is Defendant Yehuda Lebovits’s motion to dismiss the
intentional infliction of emotion distress (“IIED”) claim against him in the amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following
reasons, the motion is granted:
Procedural History
Sandy Boutros brings this seven-count action against Northwest Home for
the Aged d/b/a Park Plaza (“Park Plaza”) and Lebovits. In the original complaint,
filed on May 11, 2016, Boutros alleged violations of Title VII of the Civil Rights Act
of 1964, violations of the Illinois minimum wage laws, tortious battery, and IIED.
(R. 1.) On June 14, 2016, Lebovits moved to dismiss several counts against him.
(R. 11.)
On June 21, 2016, the parties consented to this court’s jurisdiction
pursuant to 28 U.S.C. § 636(c). (R. 19.)
At the motion hearing held on September 22, 2016, the court dismissed with
prejudice all Title VII counts brought against Lebovits individually, but allowed
Boutros to file an amended complaint to supplement the IIED claim.
(R. 32.)
During this motion hearing, the court agreed with the legal standard Boutros
asserted in opposition to the motion to dismiss but explained that her allegations
fell short of the “extreme and outrageous” standard and that other causes of
action—rather than IIED—were better suited to address the issues raised by
Boutros.
The court identified all of the allegations in the complaint that may
potentially support the IIED claim and explained why they were deficient.
On October 6, 2016, Boutros filed a seven-count amended complaint in which
Lebovits is individually sued in Count VI (battery) and Count VII (IIED). (R. 33.)
Despite the deficiencies the court detailed during the motion hearing, the
allegations in the amended complaint are nearly identical to those asserted in the
original complaint. Lebovits again moves to dismiss the IIED claim. (R. 36.)
Boutros’s Allegations
The following facts are set forth in the amended complaint, which the court
accepts as true for purposes of a motion to dismiss.
See Lavalais v. Village of
Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). Boutros is an Iraqi, Christian
woman. (R. 33, Am. Compl. ¶ 7.) In September 2014, Boutros began working as a
waitress at Park Plaza, a senior independent living retirement community in
Chicago. (Id. ¶¶ 7-8, 10.) By May 2015, she was promoted to the position of head
waitress.
(Id. ¶ 11.)
But three months later, in August 2015, Park Plaza
2
terminated her employment.
(Id. ¶ 7.)
Lebovits, as Park Plaza’s Executive
Director, managed Boutros during her employment. (Id. ¶ 9.)
During her employment at Park Plaza, Boutros assisted her direct
supervisor, Executive Chef Sam Landman, with recruiting wait staff and with
conducting screening interviews.
(Id. ¶ 20.)
Lebovits made all final hiring
decisions. (Id.) Boutros alleges that Lebovits expressed preference for certain types
of employees.
He instructed Boutros to hire “young, pretty girls,” because he
wanted “sexy” workers at Park Plaza. (Id. ¶ 19.) He also gave instructions to
Boutros
not
dishwashers.”
to
hire
(Id.)
“African
Americans,
practicing
Muslims,
or
female
On at least a couple occasions, Lebovits made personnel
decisions based on a candidate’s weight and his perception of the candidate’s
physical attractiveness. (Id. ¶¶ 21-22.) Boutros told Chef Landman that she felt
“uncomfortable” with these hiring practices. (Id. ¶ 23.)
Lebovits was allegedly fond of the female members of the Boutros family and
hired several of them to work at Park Plaza. He expressed interest in and hired
Boutros’s aunt as his secretary. (Id. ¶ 24.) But the aunt quit because Lebovits tried
to hug her. (Id.) Lebovits told Boutros and her sister, who also worked at Park
Plaza, that they were beautiful and that he wanted to extend his gratitude to their
mother. (Id. ¶ 25.) On one occasion, Lebovits gestured to Boutros for a hug, but she
rebuffed him. (Id. ¶ 17.) Another time Lebovits bumped into Boutros and held her
waist. (Id. ¶ 18.) He remained there until she pushed him and asked, “What’s
3
wrong with you?” (Id.) Boutros reported Lebovits’s behavior to Chef Landman.
(Id.)
In July 2015, Lebovits told Chef Landman that he did not want the Park
Plaza’s chairman of the board in the kitchen during his visit to the facility. (Id.
¶ 26.) Chef Landman relayed the message to Boutros to keep the chairman away
from the kitchen area. (Id. ¶¶ 26-27.) As Boutros wheeled the chairman into the
dining area for dinner, Lebovits approached from behind and “shoved” Boutros in
front of her co-workers. (Id. ¶ 27.) She left the dining area feeling humiliated and
in tears. (Id. ¶¶ 28, 68.) That same week, the chairman asked Boutros to meet with
him to discuss the incident. (Id. ¶ 30.) After meeting with the chairman, she also
met with Lebovits and demanded an apology from him. She also confronted him
about work-related issues, including fair wages for her and her wait staff. (Id.
¶¶ 30-32.) The next day, the chairman spoke with Boutros and again asked her to
return to work. (Id. ¶ 33.) She expressed concerns about Lebovits but agreed to
return. (Id.) During the meeting, the chairman sent Boutros on an errand to the
kitchen where she encountered Lebovits staring at her. (Id. ¶ 34.) She feared for
her safety, so she called the police and filed a complaint against Lebovits for having
shoved her earlier in the week.
(Id. ¶¶ 34-35.)
Shortly thereafter, Lebovits
allegedly suspended her from work without a reason. (Id. ¶ 39.)
Three weeks later, a Park Plaza board member (“Alan”) contacted Boutros
and informed her that she would be returned to work because some employees
allegedly threatened “to quit in protest over what Mr. Lebovits had done to her, and
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this caused too much disruption.” (Id. ¶ 40.) Alan also told Boutros that she would
be demoted to the position of staff waitress. (Id.) She returned to work despite the
demotion because she needed the work. (Id. ¶ 41.) Upon returning, Boutros alleges
that an employee loyal to Lebovits (but not Lebovits himself) began harassing her.
(Id. ¶ 42.) Boutros made yet another complaint, this time to Alan, about feeling
uncomfortable and afraid. (Id. ¶ 44.) Alan instructed her to leave work while he
took care of things.
(Id.)
On August 7, 2015, Boutros filed a charge of
discrimination with the EEOC. (Id. ¶ 45.) A week later, on August 14, 2015, Park
Plaza fired Boutros for walking off the job. (Id. ¶ 46.)
Boutros only added a handful of allegations to supplement the original
complaint.
The new allegations are primarily focused on hiring practices
encouraged by Lebovits. (See, e.g., id. ¶¶ 20-23.) For example, Boutros describes
her role in recruiting wait staff. She conducted screening interviews with Chef
Landman, but Lebovits took responsibility for hiring new employees. (Id. ¶ 20.)
Another new allegation recounts how Lebovits once decided against hiring a
candidate “because of her weight.”
(Id. ¶ 21.)
On another occasion, Lebovits
allegedly instructed Boutros to recruit an attractive candidate to work in his office.
(Id. ¶ 22.) All of this, Boutros reports, made her feel “uncomfortable.” (Id. ¶¶ 20,
23.)
Notably, these new allegations do not address the deficiencies the court
identified during the hearing on Lebovits’s first motion to dismiss—the absence of
allegations demonstrating extreme and outrageous conduct.
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Analysis
A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) tests
the sufficiency of the complaint, not the merits. See Gibson v. City of Chi., 910 F.2d
1510, 1520 (7th Cir. 1990).
When assessing the sufficiency, the court’s
consideration must be limited to “allegations set forth in the complaint itself,
documents that are attached to the complaint, documents that are central to the
complaint and are referred to in it, and information that is properly subject to
judicial notice.”
Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
To
survive a motion to dismiss, a complaint must merely give the defendant “fair notice
of what the . . . claim is and the grounds upon which it rests,” and include
allegations that are “enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation omitted).
This means that a motion to dismiss must be denied unless the complaint lacks
enough facts “to state a claim for relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Boutros asserts that the court may dismiss a claim only if it appears “beyond
doubt that the plaintiff can prove no set of facts in support of [her] claim which
would entitle [her] to relief.” (R. 42, Pl.’s Mem. at 4 (quoting Conley v. Gibson, 355
U.S. 41, 45-46 (1957)).) But this is an outdated motion to dismiss standard. The
Supreme Court rejected that “famous remark” when it clarified that a complaint
must actually suggest that the plaintiff has a right to relief. EEOC v. Concerta
Health Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007) (citing Twombly, 550 U.S. at
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560-63 (declaring that after puzzling the legal profession for 50 years, it was time
for the “no set of facts” language to be retired and forgotten)).
Accordingly, in
reviewing the current motion, the court must ensure that the allegations show
Boutros’s right to relief above the speculative level. Twombly, 550 U.S. at 555.
When ruling on a Rule 12(b)(6) motion, the court accepts as true all wellpleaded allegations of the complaint and considers them in the light most favorable
to the plaintiff. See Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir.
2013). A complaint need not elaborate on every fact, if it describes “the principal
events giving rise to the suit and attache[s] them to a right of action cognizable
under state law.” Zuidema v. Raymond Christopher, Inc., 866 F. Supp. 2d 933, 942
(N.D. Ill. 2011) (denying motion to dismiss IIED claim).
When an amended
complaint asserts the same allegations as an earlier complaint, however, the court
must reach the same result on a Rule 12(b)(6) motion. Michalowski v. Rutherford,
82 F. Supp. 3d 775, 791 (N.D. Ill. 2015) (dismissing previously dismissed claim that
relied on same allegations); Bergstrom v. Ne. Ill. Reg’l Commuter R.R. Corp., No. 03
CV 3151, 2004 WL 1146626, at *1 (N.D. Ill. May 19, 2004) (noting that the claim
was dismissed twice, but with prejudice the second time because the amended
complaint set out the same allegations).
To state a claim for IIED under Illinois law, Boutros must allege facts that, if
true, would meet the requirements of the three-prong IIED inquiry: (1) Lebovits’s
conduct was extreme and outrageous; (2) he acted with either the intent to cause or
the knowledge of a high probability that the conduct would cause severe emotional
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distress; and (3) the result was severe emotional distress. Cairel v. Alderden, 821
F.3d 823, 835 (7th Cir. 2016); Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003).
This “tort does not extend to ‘mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.’”
McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill.
1988) (quoting Restatement (Second) of Torts § 46, cmt. d, at 73 (1965)); Boston v.
U.S. Steel Corp., 816 F.3d 455, 467 (7th Cir. 2016).
This tort also “generally
involve[s] circumstances beyond what can be considered a typical employment
dispute better addressed in a Title VII or equivalent suit.” Piech v. Arthur Andersen
& Co., 841 F. Supp. 825, 831-32 (N.D. Ill. 1994). Lebovits contends that Boutros’s
allegations fail to demonstrate that he engaged in “extreme and outrageous”
conduct or that he was aware his conduct would cause extreme emotional distress.
(R. 37, Lebovits’s Mem. at 10, 13.) The court agrees.
A.
Extreme and Outrageous Conduct
In opposing the first prong of the IIED test, Lebovits argues that Boutros’s
allegations “do not even come close to constituting the extreme and outrageous
behavior that Illinois courts mandate is necessary to pursue a claim for IIED.”
(R. 37, Lebovits’s Mem. at 11.) Lebovits contends that Boutros’s IIED “allegations
still fall woefully short” and again argues, as he did in his first motion to dismiss,
that the appropriate scope of extreme and outrageous conduct for a valid IIED claim
in the employer/employee context should be limited to “coercion to engage in illegal
activity . . . a coercive sexual relationship . . . or a pattern of threats of rape or death
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or offers of money for sex.” (Id. (quoting Vickers v. Abbott Labs., 719 N.E.2d 1101,
1115 (Ill. App. Ct. 1999)).)
In response, Boutros also repeats several arguments she asserted in response
to the first motion to dismiss. She contends that the working relationship between
Boutros and Lebovits is significant to the analysis of whether his alleged conduct
qualifies as extreme and outrageous. (R. 42, Pl.’s Resp. at 6.) Boutros again argues
that she was not just subject to “everyday job stresses” and that Lebovits acted in a
manner beyond the “common bounds of decency.” (Id. (citing Pub. Fin. Corp. v.
Davis, 360 N.E.2d 765 (Ill. 1976)).) In response to the current motion to dismiss,
however, Boutros incorporates a slightly different tack and shifts her focus to argue
that she was coerced to participate in illegal activity—specifically, unlawful hiring
practices. Boutros argues that she followed Lebovits’s instructions to recruit “sexy,”
“young, pretty girls” and to weed out African Americans, practicing Muslims, and
female dishwashers, a practice that Boutros asserts demonstrates how Lebovits
abused his power and implemented discriminatory policies in violation of Title VII
and the Age Discrimination in Employment Act (“ADEA”). (R. 42, Pl.’s Resp. at 7.)
To meet the outrageous threshold of the first prong of an IIED inquiry, a
defendant’s conduct must be so extreme as to go “beyond all possible bounds of
decency and be regarded as intolerable in a civilized community.”
U.S. ex rel.
Howard v. Urban Inv. Trust, Inc., No. 03 CV 7668, 2010 WL 832294, at *5 (N.D. Ill.
March 8, 2010) (citation omitted).
Whether conduct reaches that threshold “is
judged on an objective standard, based on all the facts and circumstances of the
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particular case.” Shamin v. Siemens, 854 F. Supp. 2d 496, 511 (N.D. Ill. 2012)
(citations omitted).
The Seventh Circuit has explained that “Illinois courts have found extreme
and outrageous behavior to exist in the employer/employee context when the
employer clearly abuses the power it holds over an employee in a manner far more
severe than the typical disagreements or job-related stress caused by the average
work environment.” Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir.
2006) (citation omitted); see also Milbrandt v. Brown, No. 15 CV 7050, 2016 WL
3387160, at *5 (N.D. Ill. June 20, 2016) (citing Naeem and the employer/employee
context); Reed v. Colo. Tech. Univ., No. 15 CV 3368, 2016 WL 1019830, at *5 (N.D.
Ill. March 15, 2016) (same). At the September 2016 motion hearing, the court noted
that there was some disagreement in the briefs and the case law regarding whether
an IIED claim in the employment context required allegations of coerced illegal
conduct. See, e.g., Shamin, 854 F. Supp. 2d at 512 (noting that illegal activity is
usually required). True, a plaintiff may proceed past the pleadings stage on an
IIED claim if a specific sequence of events involving coerced illegal activity is
alleged—in addition to resistance or refusal by the employee to participate and
retaliation from the employer. See id. But, as the court advised the parties, the
position taken by the Seventh Circuit in Naeem is the applicable standard in this
case, meaning coerced illegal activity is not the only means of proceeding with an
IIED claim in the employment context. Even pre-dating Naeem, courts rejected the
notion that coercion to either commit a crime or engage in sexual misconduct was a
10
prerequisite for an IIED claim in the employment context. Spahn v. Int’l Quality &
Productivity Ctr., 211 F. Supp. 2d 1072, 1077 (N.D. Ill. 2002).
When evaluating this prong, courts generally “examine the degree of power or
authority the defendant holds over the plaintiff.”
Cairel, 821 F.3d at 835-36
(citations omitted). The Illinois Supreme Court has lowered the “outrageousness”
hurdle when there is a power disparity between the parties, such as an employeremployee relationship. See James F. Jackson v. Local 705, Int’l Bhd. of Teamsters,
No. 95 CV 7510, 2002 WL 460841, at *16 (N.D. Ill. March 26, 2002) (citing Doe v.
Calumet City, 641 N.E.2d 498, 507 (Ill. 1994) (overruled on other grounds) and
McGrath, 533 N.E.2d at 810). The more control a defendant has, the more likely
the conduct will be considered outrageous. McGrath, 533 N.E.2d at 809. However,
even in the employment context, “the conduct complained of must be particularly
outrageous.” Piech, 841 F. Supp. at 831 (citation omitted).
A plaintiff may establish “extreme and outrageous” conduct by alleging a
“pattern, course and accumulation” of tortious acts.
Kidney Cancer Ass’n v. N.
Shore Comm. Bank and Trust Co., 869 N.E.2d 186, 193 (Ill. App. Ct. 2007) (noting a
series of acts equivalent to assault, battery, and defamation were sufficiently
extreme); Spahn, 211 F. Supp. 2d at 1077 (same for a series of sexual harassment,
battery, and assault). Indeed, “it is often the cumulative nature of the acts that
give[s] rise to a cause of action for [IIED],” Kidney Cancer Ass’n, 869 N.E.2d at 193,
though independently “one instance of such behavior might not be” enough,
Feltmeier, 798 N.E.2d at 83; but see Shamin, 854 F. Supp. 2d at 512 (explaining
11
that courts reject IIED claims when a supervisor merely conducts “a continuous
series of discriminatory acts”).
Here, Boutros fails to meet the “extreme and outrageous” element of the IIED
under both Naeem and the coerced illegal activity theory. First, Boutros does not
allege that Lebovits carried out a sufficiently “extreme and outrageous” set of acts
under Naeem. In fact, although the court commented on the original complaint’s
deficiencies, the amended complaint includes no additional allegations regarding
extreme and outrageous behavior. (Compare R. 1 with R. 33.) The tortious act of
battery is described as a single “shove.” (R. 33, Am. Compl. ¶¶ 27, 68.) To be sure,
even a single shove is unacceptable behavior, but one tortious incident is not
extreme and outrageous under the circumstances of this case.
Feltmeier, 798
N.E.2d at 83; see also Miller v. Equitable Life, 537 N.E.2d 887, 888 (Ill. App. Ct.
1989).
As a whole, the amended complaint’s allegations describe a series of
discriminatory hiring practices, which did not impact Boutros’s employment, and
incidents of retaliatory employment actions. See Shamin, 854 F. Supp. 2d at 512
(explaining that a continuous series of discriminatory events is insufficient to
proceed on an IIED claim). At the motion hearing, the court highlighted the lack of
information about the events generally described in the original complaint and
asked whether there were more incidents of physical violence or other tortious
conduct. Although certainly improper, the newly alleged conduct taken together
with the information previously alleged does not rise to the level of extreme and
outrageous. See Blatnicky v. Vill. of Shorewood, No. 94 CV 3213, 1996 WL 180070,
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at *3 (N.D. Ill. April 15, 1996) (dismissing IIED claim again when amended
complaint included three new paragraphs of allegations that were admittedly
“inconsiderate, rude, vulgar, uncooperative, unprofessional and unfair” but not
extreme and outrageous).
Second, Boutros does not properly allege the narrow sequence of events
related to coerced illegal activity under the Shamin line of cases. As a rule, courts
have found an employer’s actions “extreme and outrageous” when an employee
experiences retaliation from her employer soon after refusing (or resisting) the
employer’s instructions to violate a law. Shamin, 854 F. Supp. 2d at 512 (citation
omitted); see also Johnson v. Fed. Reserve Bank of Chi., 557 N.E.2d 328, 330-31 (Ill.
App. Ct. 1990) (finding conduct extreme and outrageous when a supervisor
retaliated against an employee for resisting instructions to violate federal banking
regulations). The retaliation must occur immediately after the employee resists or
refuses to participate in the employer’s illegal scheme. Johnson, 557 N.E.2d at 331.
Lacking a seasonable link between the resistance and subsequent retaliation, an
employee’s IIED claim should be dismissed.
Blatnicky, 1996 WL 180070, at *3
(granting motion to dismiss IIED claim when plaintiff failed to allege a close
temporal link between the plaintiff’s resistance and the alleged retaliation).
Here, while Boutros alleges that she felt “uncomfortable” with the hiring
practice, she does not allege that she opposed the practice and as a result fell victim
to retaliatory conduct. In her response to the motion to dismiss, Boutros attempts
to proceed under the Shamin coerced illegal activity theory by alleging that she was
13
coerced to participate in illegal hiring practices at Park Plaza. As alleged, Boutros
was responsible for recruiting waitresses and was instructed by Lebovits to only
advance the “sexy,” “young, pretty girls” through the interview process, a practice
she asserts made her feel “uncomfortable” and violated Title VII and the ADEA.
(R. 33, Am. Compl. ¶¶ 19-20; R. 42, Pl.’s Resp. Mem. at 7.) Lebovits maintained
responsibility for final hiring decisions. (R. 33, Am. Compl. ¶ 20.) She also felt
uncomfortable when a job applicant brought a pretty friend and Lebovits asked
Boutros to recruit the pretty friend to work at Park Plaza. (Id. ¶ 22.) But these
uncomfortable feelings do not establish the friction that Boutros would need to
allege between herself and Lebovits to state a viable IIED claim.
There is no
allegation that Lebovits attempted to coerce Boutros’s cooperation in the face of her
resistance or her refusal to follow his directions and no allegations that Lebovits
retaliated against Boutros for having done so. Compare Henderson v. Hilton Hotels
Corp., No. 92 CV 7584, 1994 WL 684947, at *10 (N.D. Ill. Dec. 6, 1994) (dismissing
IIED claim because plaintiff “ha[d] not alleged that Hilton pressured her to commit
any illegal act”) with Milton, 427 N.E.2d at 833 (finding that a jury could find an
employer’s conduct was “outrageous, extreme, and atrocious” when it was alleged
that an employer retaliated for an employee’s refusal to falsify reports used to bill
customers) and Johnson, 557 N.E.2d at 331 (explaining the retaliatory conduct was
abusive and, though technically legal, served no legitimate purpose because it was
designed to punish a whistle-blower).
Further weakening Boutros’s argument,
there is no allegation that Lebovits even knew that she felt “uncomfortable.”
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Even if reasonable inferences are drawn in favor of Boutros, the allegations
do not raise a plausible claim that she was forced to participate in illegal conduct
and was subsequently retaliated against immediately after she resisted.
While
Boutros alleges feeling uncomfortable with the interview screening process, there is
no allegation that anybody pressured Boutros to do anything in the face of her
theoretical resistance.
Also, there is no meaningful difference between the
allegations in the original complaint and the amended complaint. Accordingly, the
IIED claim fails on the first prong of the IIED inquiry.
B.
Likelihood to Cause Severe Emotional Distress
Lebovits separately argues that Boutros’s IIED claim is insufficient because
she fails to allege that he intended to cause or knew that there was a high
probability that his conduct would cause severe emotional distress.
(R. 36,
Lebovits’s Mem. at 13.) Specifically, Lebovits contends “[t]here are no facts alleged
which support Plaintiff’s conclusion regarding any particularized vulnerability of
Plaintiff, Lebovits’s knowledge of such a vulnerability or that his conduct would
have caused some form of extreme emotional distress to Plaintiff.” (Id.) In support,
Lebovits argues that the IIED allegations would be insufficient even if he had
“reasonably foresee[n] his actions would cause emotional distress.” (Id. at 14 (citing
Lewis v. Cotton, 932 F. Supp. 1116, 1119 (N.D. Ill. 1996)).) Boutros counters that
“the conduct Plaintiff has alleged against Defendant Lebovits is what exposes his
intent,” (R. 42, Pl.’s Resp. at 12), but for this somewhat circular logic to apply, the
15
court would have to first conclude that the alleged conduct meets the extreme and
outrageous standard.
Alleged conduct meets the threshold with respect to intent to cause harm
when a “defendant’s actions, by their very nature, were likely to cause severe
distress or when the defendant knew that a plaintiff was particularly susceptible to
such distress and that, because of this susceptibility, the defendant’s actions were
likely to cause it to occur.” Honaker v. Smith, 256 F.3d 477, 494 (7th Cir. 2001)
(finding that “[h]aving the mayor of one’s town suggest that you leave or be burned
out, followed by a fire that all but completely destroys your house, is likely to cause
significant trauma”). In the employment context, however, Illinois courts generally
require more because “personality conflicts, job performance evaluations, or job
transfers are unavoidable and often result in stress. [And] if such stress formed the
basis for the tort of [IIED], virtually every employee would have a cause of action.”
Lewis, 932 F. Supp. at 1119 (citation omitted). A plaintiff may meet the threshold
by informing the defendant that a course of harassment will cause a severe,
negative impact. McGrath, 533 N.E.2d at 809; Graham, 742 N.E.2d at 869; Linton
v. Hertz, No. 13 CV 1233, 2015 WL 109888, at *3 (S.D. Ill. Jan. 7, 2015).
In this case, Boutros does not allege that Lebovits continued with a course of
conduct after she informed him of any serious impact of his actions. Boutros alleges
that she made it known that she was upset about the shoving incident and
demanded an apology during a face-to-face meeting with Lebovits.
(R. 33, Am.
Compl. ¶ 33.) This confrontation stems from a one-time event, not a continuous
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series of abuse and/or retaliation for refusal to submit to authority. Cf. McGrath,
533 N.E.2d at 809; Linton, 2015 WL 109888, at *3. Boutros relies on Honaker to
support this prong of the test, but the threat in Honaker—that a mayor would order
a man’s home burned to the ground if he didn’t leave town—was not similar enough
to the shove alleged here.
Honaker, 256 F.3d at 494.
Accordingly, Boutros’s
allegations are also insufficient to meet the second prong.
Conclusion
For the foregoing reasons, Lebovits’s motion to dismiss Count VII of the
amended complaint is granted.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
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