Heuermann v. Andes Healthmart
Filing
29
ORDER denying 21 Motion to Dismiss. Signed by Chief Judge David R. Herndon on 4/18/12. (klh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREG HEUERMANN,
Plaintiff,
v.
ANDES HEALTHMART,
Defendant.
No. 11-0629-DRH
MEMORANDUM and ORDER
HERNDON, Chief Judge:
I. Introduction and Background
Now before the Court is defendant’s motion to dismiss Count II of plaintiff’s
first amended complaint (Doc. 21). Defendant moves the Court to dismiss Count II
of plaintiff’s first amended complaint arguing that plaintiff fails to to state a claim for
intentional infliction of emotional distress in that the allegations are scant,
insufficient and are not so “outrageous” that the allegations “go beyond the bounds
of decency” to state a claim and that this claim is preempted by the Illinois Human
Rights Act. Plaintiff opposes the motion (Doc. 25). Based on the following, the Court
denies the motion.
On December 5, 2011, Greg Heuermann filed a two-count first amended
complaint against his former employer, Andes Healthmart (Doc. 19). Count I is for
wrongful discharge, harassment based on his age and gender and Count II is a state
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law claim for intentional infliction of emotional distress. Specifically, Heuermann
alleges that defendant harassed him because of his age and gender and that
defendant terminated him from his position as a pharmacy technician because he
complained of the harassment. He also alleges that because of defendant’s conduct
he suffered extreme emotional distress.
II. Motion to Dismiss Standard
A 12(b)(6) motion challenges the sufficiency of the complaint to state a claim
upon which relief can be granted. Hallinan v. Fraternal Order of Police Chicago
Lodge 7, 570 F.3d 811, 820 (7th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 749,
175 L.Ed.2d 517 (2009). The United States Supreme Court explained in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), that
Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth “enough facts
to state a claim to relief that is plausible on its face.”
In making this assessment, the district court accepts as true all well-pled
factual allegations and draws all reasonable inferences in the plaintiff's favor. See
Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church of
Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007), cert. denied, 553 U.S.
1032, 128 S.Ct. 2431, 171 L.Ed.2d 230 (2008).
Even though Twombly (and Ashcroft v. Iqbal, 556 U.S.662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009)) retooled federal pleading standards, notice pleading
remains all that is required in a complaint. “A plaintiff still must provide only
‘enough detail to give the defendant fair notice of what the claim is and the grounds
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upon which it rests and, through his allegations, show that it is plausible, rather than
merely speculative, that he is entitled to relief.’ “ Tamayo v. Blagojevich, 526 F.3d
1074, 1083 (7th Cir. 2008). The level of detail the complaint must furnish can differ
depending on the type of case before the Court.
So for instance, a complaint
involving complex litigation (antitrust or RICO claims) may need a “fuller set of
factual allegations ... to show that relief is plausible.” Tamayo, 526 F.3d at 1083,
citing Limestone Dev. Corp. v. Village of Lemont, Illinois, 520 F.3d 797, 803–04
(7th Cir. 2008).
The Seventh Circuit Court of Appeals has offered further direction on what
(post- Twombly & Iqbal ) a complaint must do to withstand dismissal for failure to
state a claim. In Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the Court
reiterated: “surviving a Rule 12(b)(6) motion requires more than labels and
conclusions;” the allegations must “raise a right to relief above the speculative level.”
Similarly, the Court remarked in Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th
Cir. 2010): “It is by now well established that a plaintiff must do better than putting
a few words on paper that, in the hands of an imaginative reader, might suggest that
something has happened to her that might be redressed by the law.”
Judge Posner explained that Twombly and Iqbal:
require that a complaint be dismissed if the allegations do not state a
plausible claim. The Court explained in Iqbal that “the plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. at
1949. This is a little unclear because plausibility, probability, and
possibility overlap....
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But one sees more or less what the Court was driving at: the fact that
the allegations undergirding a plaintiffs claim could be true is no longer
enough to save it. .... [T]he complaint taken as a whole must establish
a nonnegligible probability that the claim is valid, though it need not be
so great a probability as such terms as “preponderance of the evidence”
connote.... After Twombly and Iqbal a plaintiff to survive dismissal
“must plead some facts that suggest a right to relief that is beyond the
‘speculative level.’ ” In re marchFIRST Inc., 589 F.3d 901, 905 (7th Cir.
2009).
Atkins v. City of Chicago, 631 F.3d 823, 831–32 (7th Cir. 2011) (emphasis added).
See also Smith v. Medical Benefit Administrators Group, Inc., 639 F.3d 277, 281
2011 (Plaintiff's claim “must be plausible on its face,” that is, “The complaint must
establish a nonnegligible probability that the claim is valid....”). With these principles
in mind, the Court turns to Count II of plaintiff’s first amended complaint.
III. Analysis
In Count II, plaintiff alleges a state tort claim for intentional infliction of
emotional distress (“IIED”). To establish a prima facie case of intentional infliction
of emotional distress, a plaintiff must allege that (1) defendant engaged in extreme
and outrageous conduct; (2) defendant knew or should have known that such
conduct would cause severe emotional distress; and (3) the conduct caused plaintiff
severe emotional distress. See McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988);
Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003). The tort does not cover “mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id.
at, quoting Restatement (Second) of Torts § 46, comment d, at 73 (1965). In
determining whether certain conduct is sufficiently outrageous to support an IIED
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claim, the Illinois Supreme Court has directed that one factor courts should consider
is the level of power or authority that the defendant has over the plaintiff. Id. For a
plaintiff to recover, he must show that a “recitation of the facts to an average member
of the community would arouse resentment against the actor and lead him to
exclaim: ‘Outrageous!’ ” Doe v. Calumet City, 161 Ill. 2d 374, 392 (Ill. 1994). To
establish extreme and outrageous conduct, the plaintiff must allege more than “mere
insult, indignities, threats, annoyances, petty oppression or trivialities.” Public
Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1977). However, abuse of power
weighs in favor of finding the conduct extreme or outrageous. McGrath, 533 N.E.2d
at 810. Furthermore, offensive conduct that is not otherwise extreme and outrageous
may become extreme and outrageous if it is retaliatory in nature. Johnson v. Federal
Reserve Bank, 557 N.E.2d 328, 331 (Ill. App. 1990). To establish the second
element, the plaintiff need not allege intent to cause severe emotional distress. A
plaintiff will satisfy the second element if he alleges facts to support the inference that
the defendant recklessly disregarded that his actions would cause emotional distress.
See Harriston v. Chicago Tribune Co., 992 F.2d 697, 702 (7th Cir. 1997).
Further, the Seventh Circuit has succinctly stated when state law tort claims,
such as plaintiff’s IIED claim, are preempted by the IHRA:
Whether a state-law tort claim is preempted depends on whether the
IHRA furnishes the legal duty that defendant was alleged to have
breached. If plaintiff’s allegations against the defendant implicate only
a duty provided by the IHRA, such as the duty of employers to refrain
from discriminating against employees on the basis of their race or
national origin, then the plaintiff's claim is preempted.
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Bannon et al. v. University of Chicago, 503 F.3d 623, 630 (7th Cir. 2007) (emphasis
added) (citations and quotations omitted). In Naeem v. McKesson Drug Company,
the Seventh Circuit considered whether an IIED claim was preempted by an IHRA
sexual harassment suit. 444 F.3d 593, 604 (7th Cir. 2006). Per the Naeem Court,
the proper inquiry is whether a plaintiff can prove the elements of her state law claim
“independent of legal duties furnished by the IHRA,” not whether the facts that
support the tort claim “could also have supported a discrimination claim.” 503 F.3d
at 604. “[I]f 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). Following the rationale of Naeem and Bannon, the proper inquiry here
is whether or not there is an independent basis for plaintiff’s IIED, apart from the
legal duties created by the IHRA.1
Assuming his assertions to be true and drawing all reasonable inferences in
his favor, the Court concludes that plaintiff’s allegations are sufficient to withstand
a motion to dismiss.
Plaintiff alleges that defendant intended to inflict severe
1
Naeem and Bannon postdate the Illinois Supreme Court decision in Geise v. The Phoenix
Co. Of Chicago, Inc., which Defendants cite in their motions to dismiss. 159 Ill.2d 507, 203
Ill.Dec. 454, 639 N.E.2d 1273 (Ill.1994). In Geise, the plaintiff “dressed her claims” of sexual
harassment as negligent retention, but the IHRA was the sole basis of the legal duty that the
defendant was alleged to have breached. See Maksimovic v. Tsogalis, 177 Ill.2d 511, 227 Ill.Dec.
98, 687 N.E.2d 21, 23 (Ill.1997) (limiting an overbroad interpretation of Geise).
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emotional distress and that defendant was in a position of authority over him.
Specifically, plaintiff alleges: “Defendant did not afford the Plaintiff any Progressive
Discipline. The Plaintiff’s Supervisor terminated him without a review of said
termination. Instead, the Plaintiff was terminated in an ‘unexpected’ and ‘precipitous’
manner without allowing him to defend himself.” (Doc. 19, ¶ 18). Further, plaintiff
alleges defendant:
“knew or should have known that there was a high probability that this
conduct would cause sever emotional distress. The conduct and the
manner in which the Plaintiff was discharged given his prior complaint
of harassment and request for assistance, and knowledge that Plaintiff
must have been under stress as a result, makes the decision to
terminate him in handling of Plaintiff’s employment status particularly
extreme and outrageous. The Plaintiff as a direct result has suffered
extreme emotional distress and upset resulting in sleeplessness,
anxiety, and loss of enjoyment of life with damages exceeding
$100,000.”
(Doc. 19, ¶ 19). At this stage of the litigation, the Court finds that the alleged facts
contained in the first amended complaint state a cause of action against defendant
for intentional infliction of emotional distress. Also, the Court finds that the claim
is not preempted by the IHRA. Plaintiff’s IIED claim incorporates the previous
conduct by defendants in the harassment and wrongful discharge claim along with
additional conduct by defendant. This alleged conduct does not rely on duties under
the IHRA to be classified as extreme and outrageous.
Plaintiff has sufficiently
pleaded the elements of IIED, and the conduct alleged is sufficient to support a tort
of IIED independent of the IHRA.
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III. Conclusion
Accordingly, the Court DENIES defendant’s motion to dismiss Count II of
plaintiff’s amended complaint (Doc. 21).
IT IS SO ORDERED.
Signed this 18th day of April, 2012.
Digitally signed by
David R. Herndon
Date: 2012.04.18
12:15:46 -05'00'
Chief Judge
United States District Court .
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