v. New Horizon Center for the Developmentally Disabled, Inc.

Filing 28

MEMORANDUM Opinion and Order. Signed by the Honorable John J. Tharp, Jr on 9/26/2017. Mailed notice (ags, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANNIE PEARL HILLIARD,
Plaintiff,
v.
NEW HORIZON CENTER FOR THE
DEVELOPMENTALLY DISABLED, INC.,
Defendant.

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No. 16 CV 6374
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Annie Pearl Hilliard brings suit against her former employer, New Horizon
Center for the Developmentally Disabled, Inc. (“New Horizon”), alleging that the private school
violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), and the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, by engaging in a pattern of
harassment against her and then terminating her. Hilliard also brings a common law cause of
action for intentional infliction of emotional distress (“IIED”). New Horizon has moved to
dismiss the IIED count pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. For the reasons set forth in this Memorandum Opinion and Order, New Horizon’s partial
motion to dismiss is denied.
BACKROUND
When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all
well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. See Yeftich v.
Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013); Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008). The following facts, as asserted in Hilliard’s complaint, are therefore treated here
as true. New Verizon hired Hilliard as a special education teacher in 1973, when she was 42

years old. Compl. ¶ 10; ECF No. 1. Her job duties included teaching children with
developmental disabilities, and she spent a total of 39 years working for the school. Id. ¶¶ 10-11.
During most of that time, Carol Kilcoyne—the only employee tenured longer than Hilliard—was
New Horizon’s Managing Director. Id. ¶ 12. But in late 2001, New Horizon began to terminate
older, more experienced teachers and replace them with younger employees. Id. ¶ 13. As part of
that process, New Horizon terminated Kilcoyne and replaced her with Patricia Palmer. Id. ¶ 13.
In 2012, Hilliard was 81 years old, making her the oldest employee working at the
school. Id. ¶ 14. Hilliard asserts on information and belief that she was also the highest paid
teacher at New Horizon at that time. Id. When Palmer became principal of the school, she started
to initiate conversations in which she asked Hilliard about when she intended to retire. Id. ¶ 15.
Hilliard “made it clear” that she had no immediate plans to do so. Id. ¶ 16. Hilliard asserts that
from January 2012 through May 2012, New Horizon engaged in a pattern of harassment that was
designed to make Hilliard’s working conditions intolerable and to force her to end her
employment with the school. See id. ¶ 17.
In particular, Hilliard “was chastised and rebuffed” on January 17, 2012, for taking paid
time off ahead of a school holiday, even though she had followed New Horizon’s procedure for
requesting that time. Id. ¶ 18. Hilliard was required to explain why she needed the requested time
off and to provide proof of that reason, and she was then denied pay for the holiday. Id. The next
day, a child was injured in an accident in Hilliard’s classroom. Id. ¶ 19. Hilliard was at lunch
when the accident occurred, and a teaching assistant was attending to the room. Id. New Horizon
blamed Hilliard for the accident, accusing her of violating its policy requiring that two teachers
be present in each classroom. Id. ¶ 20. However, no such policy was actually recognized or
followed at the school. Id.

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Palmer confronted Hilliard about the incident every day between January 18 and January
27 of 2012, when she would enter Hilliard’s classroom or call her out of the room to berate her.
Id. ¶ 22. New Horizon publicly blamed Hilliard, accused her of neglect, and discussed the
incident on multiple occasions during teachers’ meetings. Id. ¶ 23. During this same time, Palmer
also began “nitpicking” Hilliard’s performance of her job and classroom duties as well as her
supervision of her staff. Id. ¶ 24. Palmer also accused Hilliard of being “personally filthy and
keeping a filthy classroom.” Id. These “constant disruptions” interfered with Hilliard’s ability to
teach her class with regularity and to perform her other job duties. Id. ¶ 25.
Hilliard was forced to stay after school hours “in what amounted to a detention” for
several days after the accident. Id. ¶ 26. During those periods, she was forced to document the
incident, or to document lessons she had learned from the incident and to submit them to New
Horizons to be critiqued. Id. On January 27, 2012, Hilliard was called to a meeting with Palmer,
an attorney, and another unidentified man; at that meeting, she was suspended without pay from
January 30 through February 3 of 2012. Id. ¶ 27. During that suspension term, Palmer went into
Hilliard’s classroom and arranged to have some of Hilliard’s work materials and personal
documents thrown out. Id. ¶ 28. When Hilliard returned to work, she was placed on probation
and suspended from her teaching duties, and also was forced to complete both an internal
training program and an external re-certification program. Id. ¶ 29.
Hilliard asserts that her retraining program was administered in a way that was designed
to “humiliate her and make returning to work unbearable for her.” Id. ¶ 30. She was isolated
during this retraining process, was moved to a small room just outside of Palmer’s office, and
was “berated and treated with hostility.” Id. Following several days of “humiliation, hostility,
and constant berating,” Hilliard become ill on February 9, 2012, and had to leave work early. Id.

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¶ 31. Her physician later diagnosed her with major depressive disorder and prescribed taking a
leave of absence, leading Hilliard to go on leave—as provided for by the Family and Medical
Leave Act (“FMLA”)—on February 10, 2012. Id. ¶ 32. During this medical leave, New Horizon
sent Hilliard a series of letters stating that upon her return to work, she would be required to
complete her retraining and recertification programs. Id. ¶ 33. Hilliard says this meant that she
would “encounter more of the humiliation and criticism that caused her to become ill in the first
place.” Id.
During this medical leave, New Horizon also asked repeatedly for more information from
Hilliard and her physician about her medical condition. Id. ¶ 34. Hilliard and her doctor complied
with all of these demands. Id. ¶ 35. When Hilliard’s FMLA leave expired in May 2012, her
physician indicated to New Horizon that although her condition had improved, she needed more
time to be on medical leave. Id. ¶ 36. Still, her physician indicated that she could return to work
in time to start the new school year. Id. ¶ 37. On July 3, 2012, New Horizon denied Hilliard’s
request for more leave time and terminated her. Id. ¶ 38. New Horizon’s stated reason for her
termination was that she had voluntarily abandoned her position. Id. ¶ 39. But Hilliard asserts
that during the 39 years she worked at New Horizon, she always performed her assigned job
duties acceptably and in accordance with the school’s standards. Id. ¶ 11.
Hilliard filed a charge of discrimination with the Illinois Department of Human Rights
(“IDHR”) in December 2012. Id. ¶ 5. The IDHR dismissed that charge on December 11, 2013,
for lack of jurisdiction as to certain of her allegations and lack of substantial evidence as to her
other allegations. Id. ¶ 6; Ex. A to Mem. in Supp. of Mot. to Dismiss, ECF No. 11-1. The IDHR
informed Hilliard that she could seek review of the dismissal before the Illinois Human Rights
Commission (“IHRC”) by filing a request for review by March 17, 2014, or she could

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“[c]ommence a civil action in the appropriate state circuit court within ninety (90) days after
receipt of this Notice.” Ex. A to Mem. in Supp. of Mot. to Dismiss. Hilliard then filed a request
for review with the IHRC on March 14, 2014. 1 See Ex. B to Mem. in Supp. of Mot. to Dismiss,
ECF No. 11-2. Almost two years later, on February 17, 2016, Hilliard filed a state court
complaint against New Horizon, bringing claims for age and disability discrimination as well as
IIED. See Ex. C to Mem. in Supp. of Mot. to Dismiss. Hilliard voluntarily dismissed that state
court suit without prejudice on April 11, 2016. Id. She requested a Right to Sue letter from the
U.S. Equal Employment Opportunity Commission (“EEOC”), and the EEOC issued her a Notice
of Right to Sue on April 19, 2016. Id. ¶ 9; Compl. Ex. A, ECF No. 1-1.
Hilliard then launched her current federal court suit on June 20, 2016. As of that date, her
request for review was still pending before the IHRC. See Compl. ¶ 7. Her complaint alleges that
New Horizon violated the ADEA (Count I) and the ADA (Count II), and also brings a cause of
action for IIED (Count III). New Horizon lodged its motion to dismiss the IIED count on
October 13, 2016. See Mot. to Dismiss, ECF No. 10.
ANALYSIS
To overcome a motion to dismiss under Rule 12(b)(6), “a complaint must ‘state a claim
to relief that is plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir.
1

Hilliard alleges in her complaint that she “timely filed a Request for Review” with the
IHRC on April 28, 2014. Compl. ¶ 7. But New Horizon submitted—as an attachment to its
brief—Hilliard’s Notice of Filing before the IHRC, which indicates that she filed her request for
review of the dismissal on March 14, 2014. This Court notes that it may consider the
administrative filings attached to Hilliard’s complaint and to New Horizon’s brief without
converting New Horizon’s motion to dismiss into one for summary judgment. See Brownmark
Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (“It is well settled that in
deciding a Rule 12(b)(6) motion, a court may consider ‘documents attached to a motion to
dismiss . . . if they are referred to in the plaintiff’s complaint and are central to his claim.’”)
(quoting Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)); see also
Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (“Taking judicial notice of matters of
public record need not convert a motion to dismiss into a motion for summary judgment.”).
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2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” W. Bend Mut. Ins. Co. v.
Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal quotation marks omitted). This Court “must ‘accept as true all factual
allegations in the amended complaint and draw all permissible inferences’” in Hilliard’s favor.
Id. (quoting Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015)).
However, “[w]hile a plaintiff need not plead ‘detailed factual allegations’ to survive a motion to
dismiss, she still must provide more than mere ‘labels and conclusions or a formulaic recitation
of the elements of a cause of action’ for her complaint to be considered adequate.” Bell v. City of
Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (quoting Iqbal, 556 U.S. at 678).
New Horizon argues that Hilliard cannot state a claim for IIED in this case because that
claim is barred by the Illinois Human Rights Act (“IHRA”), 775 ILL. COMP. STAT. 5/1–101 et
seq. For one, the defendant argues, Hilliard already chose to pursue her claims before the IHRC
and her proceeding in that forum was still pending at least as of the date she filed the current suit,
given her request for review. 2 See Mem. in Supp. of Mot. to Dismiss (“Mem.”) at 4, ECF No. 11.
For this point, the defendant points to an IHRA provision governing IDHR procedures, 775 ILL.
COMP. STAT. 5/7A-102(D)(3), which provides:
If the Director determines that there is no substantial evidence, the
charge shall be dismissed by order of the Director and the Director
shall give the complainant notice of his or her right to seek review
of the dismissal order before the Commission or commence a civil
action in the appropriate circuit court. If the complainant chooses
2

Hilliard asserts that she does not currently have any claims pending before the IHRC,
seemingly drawing a distinction between “pending” claims and claims, like hers, that the IDHR
dismissed but for which the claimant has filed a request for review with the IHRC. See Resp. at
1-2, 1 n.1.
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to have the Human Rights Commission review the dismissal order,
he or she shall file a request for review with the Commission
within 90 days after receipt of the Director’s notice. If the
complainant chooses to file a request for review with the
Commission, he or she may not later commence a civil action in a
circuit court. If the complainant chooses to commence a civil
action in a circuit court, he or she must do so within 90 days after
receipt of the Director's notice.
Id. Hilliard chose to file a request for review with the IHRC, which New Horizon characterizes
as an “exclusive” election that barred her subsequently-filed state court suit and now bars the
IIED cause of action she asserts in her federal court case. See Mem. at 4. In a second line of
argument, New Horizon asserts that the IHRA preempts the IIED count because Hilliard bases
that cause of action solely on the alleged civil rights violations underlying her other claims. See
Mem. at 4-7. Finally, New Horizon argues that Hilliard has failed to allege the level of extreme
and outrageous conduct required to state an IIED claim, and that Count III is untimely. See Mem.
at 6; Reply at 5, ECF No. 20.
The IHRA provides that “[e]xcept as otherwise provided by law, no court of this state
shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth
in this Act.” 775 ILL. COMP. STAT. 5/8–111(D). The IHRA defines “civil rights violations” to
include “only those specific acts” set forth in certain enumerated sections of the statute. 775 ILL.
COMP. STAT. 5/1–103(D). One such section makes clear that it is a civil rights violation under the
IHRA “[f]or any employer to refuse to hire, to segregate, or to act with respect to recruitment,
hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge,
discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful
discrimination or citizenship status.” 775 ILL. COMP. STAT. 5/2–102(A). The statute defines
“unlawful discrimination” to include discrimination against a person because of her age or
disability, among other characteristics. See 775 ILL. COMP. STAT. 5/1-103(Q).

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At this stage of the litigation, Hilliard has set forth sufficient factual allegations to make
out an IIED cause of action that is not preempted by the state statute. The Illinois Supreme Court
has held that the IHRA preempts tort claims that are “inextricably linked to a civil rights
violation such that there is no independent basis for the action apart from the [IHRA] itself.”
Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997); see also Geise v. Phoenix Co. of Chi.,
Inc., 639 N.E.2d 1273, 1277 (Ill. 1994). In Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir.
2006), the Seventh Circuit affirmed a district court’s determination that the IHRA did not
preempt the plaintiff’s IIED claim. Applying the Illinois Supreme Court’s test from Maksimovic,
the appellate court said that “the proper inquiry was not whether the facts that support [the
plaintiff’s] intentional infliction of emotional distress claim could also have supported a
discrimination claim, but instead whether [the plaintiff] can prove the elements of intentional
infliction of emotional distress independent of legal duties furnished by the IHRA.” Id. at 604;
see also Blount v. Stroud, 904 N.E.2d 1, 9 (Ill. 2009). The Seventh Circuit further explained:
The distinction between claims that are preempted and claims that
are not preempted turns on the legal duty that the defendant
allegedly breached; that is, if the conduct would be actionable even
aside from its character as a civil rights violation because the
IHRA did not furnish[ ] the legal duty that the defendant was
alleged to have breached, the IHRA does not preempt a state law
claim seeking recovery for it.
Id. (quoting Krocka v. City of Chicago, 203 F.3d 507, 516-17 (7th Cir. 2000)) (internal quotation
marks omitted). The plaintiff in Naeem alleged conduct that was “not just sexually harassing,”
but included a pattern of behavior that “created impossible deadlines, set up obstacles to her
performing her job, and sabotaged her work.” Id. at 605. The Seventh Circuit concluded that her
claim therefore rested on behavior “that would be a tort no matter what the motives of the
defendant,” such that IHRA preemption did not apply. Id. See also Richards v. U.S. Steel, No.

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16-2436, 2017 WL 3687792, at *5 (7th Cir. Aug. 28, 2017) (“the factual overlap between
[plaintiff’s] statutory and emotional-distress claim does not matter . . . as long as she does not
rely on rights or duties created by the Human Rights Act”).
Here, Hilliard’s IIED claim does not depend solely on New Horizon’s allegedly
discriminatory conduct. The common law tort of IIED has three elements under Illinois law: (1)
“the conduct involved must be truly extreme and outrageous,” (2) “the actor must either intend
that his conduct inflict severe emotional distress or know that there is at least a high probability
that his conduct will cause severe emotional distress,” and (3) “the conduct must in fact cause
severe emotional distress.” Schweihs v. Chase Home Fin., LLC, 77 N.E.3d 50, 63 (Ill. 2016).
Hilliard alleges that New Horizon engaged in a campaign to make her working conditions
intolerable and to force her out of her job. As part of this alleged campaign, school personnel
berated and publicly blamed Hilliard in connection with the January 2012 accident. School
personnel accused her of neglect, discussed the incident at meetings with Hilliard’s fellow
teachers, criticized Hilliard’s job performance, and accused Hilliard of being “filthy,” all
disruptions that allegedly interfered with Hilliard’s ability to do her job. Hilliard also accuses
New Horizon of forcing her to participate in a retraining program that was designed to humiliate
her, subjecting her to isolation and hostile treatment. Hilliard alleges that after this “humiliation,
hostility, and constant berating,” she was diagnosed with major depressive disorder and forced to
take a leave of absence. During that leave, she says, New Horizon informed her that the
retraining process would continue upon her return.
The core of Hilliard’s IIED theory, then, is not just that New Horizon discriminated
against her on the basis of her age and disability, but that the school repeatedly subjected her to
public shaming for a student’s accident, denigrated her personal hygiene, and engaged in a

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purposefully humiliating retraining program. This foundation for Hilliard’s IIED claim, as pled,
implicates duties that are distinct from those imposed on New Horizon by the IHRA.
These allegations are also sufficient to make Hilliard’s claim for relief plausible at this
early stage of the litigation. It is true that the tort of IIED “‘does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.’” Schweihs, 77 N.E.3d at
63 (quoting Restatement (Second) of Torts § 46 cmt. d, at 73 (1965)). But courts “have found
extreme and outrageous behavior to exist in the employer/employee context where 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.” Honaker v. Smith,
256 F.3d 477, 491 (7th Cir. 2001). In addition, courts evaluating IIED claims may consider
“whether the defendant knew the plaintiff was particularly susceptible to emotional distress and
acted inappropriately despite that knowledge.” Cairel v. Alderden, 821 F.3d 823, 836 (7th Cir.
2016).
Hilliard has alleged that her former employer repeatedly berated her, publicly blamed her
for a student’s accident, talked about that accidents at meetings with her fellow teachers,
interfered with her ability to do her job, and forced her to undergo a distressing and isolating
retraining process. She further alleges that this treatment caused her to become ill, and that while
she was on leave in connection with a diagnosis of major depressive disorder, New Horizons
informed her that she would be required to continue with the same intentionally humiliating
retraining process upon her return. The duties owed to avoid such conduct have nothing to do
with an employee’s age; this sort of conduct could give rise to a plausible IIED claim whether
the target was 30 or 80. And plausibility, at this stage, is all that is required.

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Finally, this Court will not dismiss the IIED count based on New Horizon’s arguments
that it is time-barred or that Hilliard failed to adhere to the IHRA’s procedural requirements.
Hilliard’s IIED count is subject to a two-year statute of limitations. See Pavlik v. Kornhaber, 761
N.E.2d 175, 186 (Ill. App. Ct. 2001) (citing 735 ILL. COMP. STAT. 5/13-202). While a plaintiff’s
cause of action generally accrues when “the interest at issue is invaded,” id., Illinois courts have
held that when “a tort involves continuing or repeated injurious behavior, the statute of
limitations does not begin to run until the date of the last injury or when the tortious acts cease.”
Id. at 186-87 (quoting Hyon Waste Mgmt. Servs., Inc. v. Chicago, 574 N.E.2d 129, 132 (Ill. App.
Ct. 1991)) (internal quotation marks omitted). Hilliard argues that Count III is timely because it
relates back to the charge she originally filed with the IDHR. Sur-reply at 2, ECF No. 26. But the
history of the administrative proceedings that predated this suit is unclear. This record does not
reflect the exact substance of Hilliard’s original charge with the IDHR, for example, and neither
party has attempted to allege or explain how, if at all, the EEOC Right to Sue letter relates to the
request for review that Hilliard filed with the IHRC. In addition, a “statute of limitations
provides an affirmative defense, and a plaintiff is not required to plead facts in the complaint to
anticipate and defeat affirmative defenses.” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665
F.3d 930, 935 (7th Cir. 2012).
At this stage of the suit, on the basis of the current pleadings, this Court declines to find
that Hilliard’s IIED claim is untimely or procedurally barred. It remains open, of course, for the
defendant to develop those potential defenses during discovery.
*

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For the foregoing reasons, New Horizon’s motion to dismiss Count III of Hilliard’s
complaint is denied.

John J. Tharp, Jr.
United States District Judge

Date: September 26, 2017

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