Phillips v. ExxonMobil Corporation
Filing
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MEMORANDUM Opinion and Order. The Court grants in part and denies in part Exxon Mobil's motion to dismiss 23 . The Court dismisses with prejudice Counts IV and V of Phillips's complaint. Signed by the Honorable Jorge L. Alonso on 7/18/2018:Notices mailed by judge's staff (ntf, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AMY PHILLIPS,
Plaintiff,
v.
EXXON MOBIL CORPORATION,
Defendant.
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Case No. 17 C 07703
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
On October 25, 2017, plaintiff Amy Phillips (“Phillips”) filed a five-count complaint
against her employer, defendant Exxon Mobil Corporation (“Exxon Mobil”). She asserts Title
VII claims in Counts I and II (harassment and discrimination) and three state law tort claims in
Counts III-V (Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional
Distress, and Negligent Retention and Supervision). Defendant filed a motion to dismiss Counts
III-V of plaintiff’s complaint, arguing preemption by both the Illinois Human Rights Act
(“IHRA”) and the Illinois Workers’ Compensation Act (“IWCA”). For the reasons set forth
below, the Court grants in part and denies in part defendant’s motion to dismiss.
I.
BACKGROUND
The following facts are from plaintiff’s complaint and are taken as true. In 2013, Phillips
began working at Exxon Mobil’s Joliet Refinery as a process operator. After a short period of
classroom training, plaintiff started training in the field, at which point she noticed her unit’s
negative attitude towards women and homosexuals, of which classes Phillips is a member. See
Compl. ¶¶ 14, 18. Phillips’s coworkers and supervisors subjected her to derogatory insults, such
as, “You should just stay at home like most women,” and, on multiple occasions, addressed her
as “bitch” and “cunt.” Comp. ¶¶ 15-16. Phillips was also victim to graffiti messages such as,
“Amy Lazy Gay Bitch” and “Die Amy Fag Rat Bitch.” Compl. ¶ 24.
In her complaint, Phillips also alleges that her supervisors and coworkers frequently
obstructed her ability to perform her job and to earn promotions. Phillips alleges that her
supervisors refused to train her on performing key tasks, forcing her to resort to YouTube
instructional videos to learn the necessary skills. She further alleges that her supervisors
repeatedly delayed any opportunity for her to take a test that would enable her to achieve a larger
salary. Additionally, during a mandatory walkthrough to demonstrate her proficiency in certain
tasks, Phillips’s supervisors required her to perform the tasks backwards – a demand not made of
her male coworkers. See Compl. ¶ 22. On several occasions, Phillips discovered that her bicycle
(which was the mode of transportation for employees traveling through the large Joliet Refinery)
had been interfered with. She found her bicycle with flattened tires, with a missing seat, and
chained with a heavy-duty lock.
Phillips alleges that she has suffered physical abuse and threats by her coworkers and
through the actions of her supervisors. Phillips alleges that, on one specific occasion in 2016,
she was working atop a tower with a coworker (whom she suspected of having written some of
the graffiti messages) when the coworker said, “You know, people can fall off towers, and no
one would know anything other than that is was an accident.” Compl. ¶¶ 31-32. That same
coworker later shoulder checked Phillips by purposefully thrusting his shoulder into her body.
Despite Phillips’s complaints about this individual, Exxon Mobil continued to assign her to work
alongside him.
On another occasion, Phillips tripped and fell while performing difficult labor without
assistance, despite having repeatedly asked her supervisors to send her help. She suffered an
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assortment of injuries from this fall, including a twisted ankle and a concussion, the latter of
which she sustained upon striking her head against the ground and temporarily falling
unconscious.
Throughout all this activity, Phillips complained to Exxon Mobil’s Human Resource
Department, its Law Department and her supervisors. Phillips alleges that most of her
complaints went unanswered and that the few responses she received were unhelpful. For
example, Phillips was told that her conditions were better now than what women experienced in
the 1970’s. In fact, Phillips alleges that the only responses she consistently received from her
complaints were retaliatory measures taken by her coworkers, supervisors and Exxon Mobil.
The harassing graffiti continued, as did the general hostile attitude of her coworkers. After
plaintiff filed a charge of discrimination and retaliation with the Equal Employment Opportunity
Commission and the Illinois Department of Human Rights on July 6, 2017, Exxon Mobil sent
supervisors to withdraw Phillips from a training meeting in front of many of her coworkers so
that she could speak with Human Resources. Phillips alleges that this was done as a means to
embarrass and expose her in front of her coworkers. See Compl. ¶ 51.
Based on these allegations, Phillips seeks relief for violations of Title VII (sexual
harassment and retaliation in Counts I and II, respectively), Intentional Infliction of Emotional
Distress (“IIED,” Count III), Negligent Infliction of Emotional Distress (“NIED,” Count IV), and
Negligent Retention and Supervision (Count V).
II.
STANDARD ON A MOTION TO DISMISS
When reviewing a defendant’s motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must accept the plaintiff’s well-pleaded facts and draw all
inferences in the plaintiff’s favor. Firestone Financial Corp. v. Meyer, 796 F.3d 822 (7th Cir.
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2015). A plaintiff’s complaint must contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). The complaint need not contain detailed factual allegations, but the
allegations must be “enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
III.
DISCUSSION
Exxon Mobil asks this Court to dismiss Counts III, IV and V on the grounds that the
Illinois Workers’ Compensation Act and the Illinois Human Rights Act preempt them.
Preemption is an affirmative defense. Baylay v. Etihad Airways P.J.S.C., 881 F.3d 1032, 1039
(7th Cir. 2018). A plaintiff need not plead around an affirmative defense, so a court may dismiss
a claim based on an affirmative defense only when the plaintiff “plead[s] himself out of court by
alleging (and thus admitting) the ingredients of a defense.” Chi. Bldg Design, PC v. Mongolian
House Inc., 770 F.3d 610, 613-14 (7th Cir. 2014); United States Gypsum v. Ind. Gas Co., 350
F.3d 623, 626 (7th Cir. 2003).
A.
Preemption by the Illinois Workers’ Compensation Act
The Illinois Workers’ Compensation Act provides, “the exclusive remedy for accidental
injuries” that occur in the workplace. Hunt-Golliday v. Metro Water Reclamation Dist. of
Greater Chi., 104 F.3d 1004, 1016 (7th Cir. 1997). The Act establishes liability without fault but
eliminates the employee’s right to recover at common law for covered injuries. See 820 Ill.
Comp. Stat. Ann. 305/5(a) (West 2014) (“No common law or statutory right to recover damages
from the employer . . . sustained by any employee while engaged in the line of his duty as such
employee, other than the compensation herein provided is available to any employee who is
covered by the provisions of this Act . . . .”).
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Four exceptions to this exclusivity provision exist. A claim is not preempted by the
IWCA if the injury was (1) not accidental, (2) did not arise from the plaintiff’s employment, (3)
was not received during the course of the plaintiff’s employment, or (4) is not compensable
under the Act. Tessendorf v. Edward Hines Lumber Co., 393 F. Supp. 2d 686, 692 (N.D. Ill.
2005) (quoting Hunt-Golliday 104 F.3d at 1017). Emotional injuries are compensable under the
IWCA. Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222, 1228 (Ill. 1990) (citing Collier v.
Wagner Castings Co., 408 N.E.2d 198 (Ill. 1980)); see also Richardson v. Cty. of Cook, 621
N.E.2d 114, 118 (Ill. App. Ct. 1993) (“Furthermore, the fact that the employee sustained no
physical injury or trauma is irrelevant to the applicability of the Act.”).
1.
Count III: Phillips’s Intentional Infliction of Emotional Distress claim
is not preempted by the Illinois Workers’ Compensation Act.
To state a common law IIED claim, the plaintiff must allege that the defendant
intentionally or recklessly engaged in extreme and outrageous conduct and that the plaintiff
suffered severe emotional distress as a result. Schweihs v. Chase Home Finance, LLC, 77
N.E.3d 50, 63 (Ill. 2016).
IIED claims are preempted under the IWCA where an employee’s tortious conduct was
“accidental.” See Meerbrey, 564 N.E.2d at 1226. The Illinois Supreme Court has explained that
“accidental” within the meaning of the Act means “anything that happens without design or an
event which is unforeseen by the person to whom it happens.” Meerbrey, 564 N.E.2d at 1226
(quoting Pathfinder Co. v. Indus. Comm’n, 62 Ill.2d 556, 563 (1976)). For this reason, “injuries
inflicted intentionally upon an employee by a co-employee are ‘accidental’ within the meaning
of the Act, since such injuries are unexpected and unforeseeable from the injured employee’s
point of view.” Meerbrey, 564 N.E.2d at 1226 (citing Collier, 81 Ill.2d at 238). These injuries
“are also accidental from the employer’s perspective” to some extent. Meerbrey, 564 N.E.2d at
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1226. Intentional torts, however, are not accidental from the employer’s perspective when either
the employer directly authorized the tortious behavior or the employer’s “alter ego” committed
the action. Meerbrey, 564 N.E.2d at 1226.
The upshot is that it is possible that plaintiff’s claim for intentional infliction of emotional
distress is not accidental and, thus, not preempted. Still, it is true, as Exxon Mobil points out,
that actions committed by supervisors or managers in the scope of their employment do not
represent employer-authorized action and, thus, are accidental. Thomas v. Habitat Co., 213 F.
Supp. 2d 887, 892 (N.D. Ill. 2002). Plaintiff may, therefore, find her claim preempted at a
subsequent stage of this litigation. At this stage, because plaintiff is not required to plead around
an affirmative defense, it is enough to say plaintiff has not alleged (and thus admitted) that the
conduct was necessarily accidental, so she has not pled herself out of court. The Court will not
dismiss the IIED claim on the grounds of preemption by the IWCA at this time.
2.
Count IV: Phillips’s Negligent Infliction of Emotional Distress claim is
preempted by the IWCA.
The tort of negligent infliction of emotional distress is related to intentional infliction of
emotional distress, but it is based on negligence. To prevail on an NIED claim, the plaintiff must
show the existence of a duty owed by the defendant to the plaintiff, the defendant’s breach of
that duty and an injury proximately resulting from that breach. Corgan v. Muehling, 574 N.E.2d
602, 606 (Ill. 1991) (quoting Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507, 525).
Claims for negligence are inherently claims for accidental injuries. Arnold v. Janssen
Pharmaceutica, Inc., 215 F. Supp. 2d 951, 957 (N.D. Ill. 2002) (“An act of negligence, even if
committed by the employer itself, is ‘accidental’ for purposes of the IWCA.”). Thus, claims for
negligent infliction of emotional distress are preempted by the IWCA. Doe v. La Magdalena II,
Inc., 585 F. Supp. 2d 984, 986-87 (N.D. Ill. 2008) (dismissing NIED claims as preempted by the
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IWCA); Porter v. Int’l Bus. Machines Corp., 21 F. Supp. 2d 829, 833 (N.D. Ill. 1998)
(“[Plaintiff’s] claim of negligent infliction of emotional distress is barred by the IWCA.”); Small
v. Chi. Health Clubs, Inc., 843 F. Supp. 398, 403 (N.D. Ill. 1994). Because negligence claims
are necessarily accidental, plaintiff has alleged (and thus admitted) the elements of defendant’s
preemption defense. She has pled herself out of court, and Count IV is dismissed with prejudice.
3.
Count V: Phillips’s Negligent Retention and Supervision claim is
preempted by the IWCA.
As explained above, the IWCA bars common law tort claims involving negligence.
Santos v. Boeing Co., No. 02 C 9310, 2004 WL 1384724, at *3 (N.D. Ill. 2004); Arnold, 215 F.
Supp. 2d at 957. Thus, claims for negligent retention are also preempted by the IWCA. Walker
v. Doctors Hospital of Hyde Park, 110 F. Supp. 2d 704, 714 (N.D. Ill. 2000) (“The IWCA
abrogates employer liability for all common law negligence claims, including negligent retention
claims.”); Simmons v. Chi. Public Library, 860 F. Supp. 490, 494 (N.D. Ill. 1994) (concluding
that plaintiff’s negligent retention claim was preempted by the IWCA). Plaintiff has alleged the
elements of defendant’s preemption defense and pled herself out of court. Count V is dismissed
with prejudice.
B.
Preemption by the Illinois Human Rights Act
Exxon Mobil also contends that Phillips’s claim for intentional infliction of emotional
distress is preempted by the IHRA, which confers exclusive jurisdiction over alleged civil rights
violations to the Illinois Human Rights Commission. Sanglap v. LaSalle Bank, FSB, 345 F.3d
515, 519 (7th Cir. 2003). The Act states, “[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. Ann. 5/8-111(D) (West 2008). Among other things, the
Act prohibits sexual harassment, 775 Ill. Comp. Stat. Ann. 5/2-102(D) (West 2018).
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Plaintiff’s claim for intentional infliction of emotional distress is preempted by the IHRA
if it is inextricably linked with her sexual harassment claim. Maksimovic v. Tsogalis, 177 Ill. 2d
511, 517 (Ill. 1997) (“[W]hether the circuit court may exercise jurisdiction over a tort claim
depends upon whether the tort claim is inextricably linked to a civil rights violation such that
there is no independent basis for the action apart from the Act itself.”). A tort claim “is not
inextricably linked with a civil rights violation where a plaintiff can establish the necessary
elements of the tort independent of any legal duties created by the Illinois Human Rights Act.”
Maksimovic, 177 Ill. 2d at 519.
Mere factual overlap between the state-law tort and the IHRA claim does not establish
preemption. Torres v. Merck Sharp & Dohme Corp., 255 F. Supp. 3d 826, 832 (N.D. Ill. 2017);
Corcoran v. City of Chi., No. 10 C 6825, 2011 WL 2110264, at *5 (“The fact that there is factual
overlap is not outcome determinative.”). In fact, a plaintiff could simply re-plead the same facts
in a multiple count complaint without triggering preemption. See Siljak v. Ravenswood Disposal
Serv., Inc., No. 00 C 3405, 2001 WL 436133, at *3 (N.D. Ill. 2001) (explaining that despite
plaintiff re-pleading the very same facts in both her Title VII and common law tort claims, these
claims remain intact).
A claim for intentional infliction of emotional distress is not necessarily dependent upon
the existence of the IHRA’s prohibition against sexual discrimination. Thus, IIED claims are not
categorically preempted by the IHRA. Naeem v. McKesson Drug Co., 444 F.3d 593, 593 (7th
Cir. 2006); Sanglap, 345 F.3d at 519; Benitez v. KFC Nat’l Mgmt. Co., 714 N.E.2d 1002, 1009
(Ill. App. Ct. 1999). Offensive conduct may give rise both to a claim for IIED and to a claim
under the IHRA, so long as the former does not rest on the legal responsibilities created by the
latter. Figueroa v. City of Chi., No. 97 C 8861, 1999 WL 163022, at *10 (N.D. Ill. 1999).
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The essential question to be asked is whether Exxon Mobil’s conduct – devoid of any
sexually discriminatory motive – could support a claim for intentional infliction of emotional
distress. Sanglap, 345 F.3d at 520. Among other things, plaintiff alleges that defendant assigned
Phillips to work in a sexist environment, condoned the proliferation of sexist comments and
graffiti, ignored her complaints of misconduct and refused to ensure her safety. Compl. ¶ 83.
Phillips’s allegations that she was assigned to work in a sexist environment are
inextricably linked to her sexual harassment claim. Absent the duties created by the IHRA
(which prohibits sexual harassment) the comments and graffiti directed at Phillips would not rise
to the level of extreme and outrageous conduct. That is, what makes the conduct offensive is its
sexually discriminatory nature, making the conduct inseparable from the prohibition of sexual
harassment created by the IHRA. See Krocka v. City of Chi., 203 F.3d 507, 517 (7th Cir. 2000)
(dismissing plaintiff’s IIED claim because defendant’s comments were offensive only for
referring to plaintiff’s disability); see also Johnson v. Joliet Junior College, No. 06 C 5086, 2007
WL 1119215, at *3 (N.D. Ill. 2007) (explaining that defendant’s conduct was extreme and
outrageous only because it involved racial discrimination). Exxon Mobil’s alleged failure to
discipline misconduct is also inextricably linked to Phillips’s sexual harassment allegations. The
emotional distress caused by Exxon Mobil’s refusal to take remedial action is relevant only by
virtue of the sexual discrimination that gave rise to it. Figueroa, No. 97 C 8861, 1999 WL
163022, at *11 (“The essence of [plaintiff’s] IIED claim against the [defendants] is that
[plaintiff] suffered emotional distress because these individuals failed to remedy the alleged
sexual harassment. These allegations are only relevant to [plaintiff’s] claims of IIED by virtue of
the legal duties created by the IHRA.”).
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Not all of plaintiff’s allegations of intentional infliction of emotional distress are
inextricably linked with her sexual harassment claim. Plaintiff’s allegations that Exxon Mobil
employees failed to give her proper training, refused to provide her proper assistance for
dangerous and difficult tasks and undermined her ability to perform her job by incapacitating her
bicycle are all examples of independently outrageous misconduct. See Naeem, 444 F.3d at 605
(“[I]nstead, she alleges a pattern of behavior by the defendants that created impossible deadlines,
set up obstacles to her performing her job, and sabotaged her work . . . it is clear that her claim
rests not just on behavior that is sexually harassing, but rather behavior that would be a tort no
matter what the motives of the defendant.”). This behavior seems to extend beyond mere
annoyances or minor irritations. See Sanglap, 345 F.3d at 518 (“Illinois courts recognize that
context affects the inquiry [of whether conduct is outrageous].”); see also Graham v.
Commonwealth Edison Co., 742 N.E.2d 858, 866 (Ill. App. Ct. 2000) (citations omitted)
(“Liability [for IIED claims] does not extend to ‘mere insults, indignities, threats, annoyances,
petty oppressions or trivialities.’”). Because plaintiff alleges conduct that is outrageous without
reference to the legal duties created by the IHRA, Count III is not preempted and survives
defendant’s motion to dismiss. Defendant’s motion to dismiss is denied as to Count III.
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IV.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Exxon Mobil’s
motion to dismiss [23]. The Court dismisses with prejudice Counts IV and V of Phillips’s
complaint.
SO ORDERED.
ENTERED: July 18, 2018
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JORGE L. ALONSO
United States District Judge
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