Engler v. Donald W. Brown, Inc.

Filing 20

ORDER denying 7 motion to dismiss. Signed by Chief Judge David R. Herndon on 8/1/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMIE ENGLER,
Plaintiff,
v.
DONALD W. BROWN, INC., D/B/A
COLDWELL BANKER BROWN REALTORS,
Defendant.

No. 3:11-cv-00997-DRH-DGW

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Before this Court is defendant Donald W. Brown, Inc., d/b/a Coldwell
Banker Brown Realtors’ motion to dismiss plaintiff Jamie Engler’s complaint
regarding a state law claim of intentional infliction of emotional distress (IIED), a
claim for violation of the Illinois Human Rights Act (IHRA), and a claim for
violation of the Americans with Disabilities Act (ADA). Defendant argues that the
complaint should be dismissed based on two grounds: 1) count II (the IHRA
violation) fails to state a cause of action due to plaintiff’s failure to show an
exhaustion of remedies under the IHRA; and 2) count I (IIED) fails to state a cause
of action. Defendant further argues that this Court does not have jurisdiction over
the IIED claim because that cause cannot stand independent of the IHRA. Plaintiff
contends she has exhausted her administrative remedies and therefore
defendant’s motion must be denied as to plaintiff’s IIED claim. Plaintiff asserts
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that she has alleged that defendant’s actions far exceed “mere insults, indignities,
threats, annoyances, petty oppression, or other trivialities” that are part of a
complex society and an average member of the community would be lead to
exclaim that defendant’s conduct was in fact “Outrageous!” Additionally, plaintiff
contends that her IIED claim exists independently from her IHRA violation claim.
For the reasons that follow, defendant’s motion is denied.
I. Background
On October 13, 2011, plaintiff instituted a civil action against defendant in
the circuit court of Madison County, Illinois. On November 9, 2011, defendant
filed a notice of removal (Doc. 2) asserting that this Court had original jurisdiction
based upon a federal question, i.e., the ADA claim, pursuant to 28 U.S.C. § 1331
and § 1441. In her complaint, plaintiff alleges the following: On February 24,
2011, plaintiff was informed that she had breast cancer and she notified her
employer Coldwell Banker Brown of the diagnosis that same day. Plaintiff
underwent treatment for breast cancer, including surgeries, chemotherapy, and
radiation. During plaintiff’s treatment, defendant refused to allow her to use
accrued sick leave, use the work phone for medical necessities, and informed her
that her job was in jeopardy. On June 3, 2011, defendant telephoned plaintiff in
the hospital while she was recovering from a medical procedure to inform her that
her employment had been terminated. Based on the alleged facts plaintiff has
brought the following three counts: 1) IIED; 2) violation of the IHRA; and 3)

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violation of the ADA. On December 6, 2011, defendant filed this motion to
dismiss plaintiff’s complaint. As mentioned above, defendant argues that the
complaint should be dismissed based on two grounds: 1) count II (the IHRA
violation) fails to state a cause of action due to plaintiff’s failure to show an
exhaustion of remedies under the IHRA; and 2) count I (IIED) fails to state a cause
of action. Defendant further argues that this Court does not have jurisdiction over
the IIED claim because that cause cannot stand independent of the IHRA. The
Court will address each argument in turn.
II. Standard of Review
Rule 12(b)(6) of the Federal Rule of Civil Procedure permits a motion to
dismiss a complaint for failure to state a claim upon which relief can be granted.
E.E.O.C. v. Concentra Health Servs. Inc., 496 F.3d 773, 776 (7th Cir. 2007). In
applying the standard for Rule 12(b)(6) motions to dismiss, courts must accept
well-pleaded factual allegations as true, although it is not bound by the legal
characterizations plaintiff gives those facts. Republic Steel Corp. v. PA Eng’r
Corp., 785 F.2d 174, 182 (7th Cir. 1986). Additionally, according to the Supreme
Court in Bell Atl. Corp v. Twombly,550 U.S. 554 (2007), there are two clear
hurdles to clear: first, the complaint must describe the claim in sufficient detail to
give the defendant ‘“fair notice of what the . . . claim is and the grounds upon
which it rests,”’ (quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)), and second,
its allegations must plausibly suggest that the plaintiff has a right to relief, raising

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that possibility above a “speculative level.” Twombly, 550 U.S. at 555.
III. Analysis
A.

Count II: The IHRA

Plaintiff alleges she was dismissed from employment due to her breast
cancer thus violating the IHRA. Defendant argues that plaintiff has failed to first
file a charge with the Human Rights Commission as required by the IHRA. For the
reasons that follow, defendant’s motion to dismiss the IHRA count is denied.
The IHRA provides a comprehensive scheme of remedies and
administrative procedures to redress human rights violations, and claims under
the IHRA fall within the exclusive jurisdiction of the Illinois Human Rights
Commission. Talley v. Washington Inventory Serv., 37 F.3d 310, 311 (7th Cir.
1994). Courts have no jurisdiction to hear independent actions for alleged human
rights violations; “[r]ather, judicial review is only available under the IHRA after
Illinois Human Rights Commission has issued a final order on a complaint.” Id.
at 312.
Despite defendant’s arguments, plaintiff alleges and shows in her motion
in opposition to defendant’s motion to dismiss and attachments thereto that she
did in fact first file this complaint with the Human Rights Commission and the
United States Equal Employment Opportunity Commission. See Doc. 17, p. 1719. Accordingly, defendant’s motion to dismiss plaintiff’s complaint based on
failure to comply with administrative procedure is denied.

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B.

Count I: IIED
1.

Failure to Plead IIED Elements

Defendant argues that plaintiff failed to make factual allegations from which
the level of severity needed for a claim of IIED could be inferred. Defendant
claims plaintiff merely faces everyday work-place stress and has not been
subjected to emotional distress. On the other hand, plaintiff argues that
defendant knew about her condition, intended to inflict emotional distress, and
then did cause her to have severe emotional distress.
Under Illinois law, a plaintiff alleging an IIED claim must show that (1) the
defendant's conduct was extreme and outrageous, (2) that the defendant intended
to inflict severe emotional distress or knew that there was at least a high
probability that his conduct would inflict severe emotional distress, and (3) that
the defendant's conduct did cause severe emotional distress. Van Stan v. Fancy
Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997) (citing Harriston v. Chi.
Tribune Co., 992 F.2d 697, 702 (7th Cir.1993)). Further, a tort of IIED does not
extend to mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities; instead, the conduct must go beyond all bounds of decency and
be considered intolerable in a civilized community. Honaker v. Smith, 256 F.3d
477, 490 (7th Cir. 2001). Each particular case for IIED will be judged by an
objective standard to determine whether the alleged conduct was extreme and
outrageous. Harriston, 992 F.2d at 703. One factor considered in determining

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whether there was extreme and outrageous conduct, is the degree of power or
authority which defendant has over plaintiff; the more control which defendant
has over plaintiff, the more likely that defendant's conduct will be deemed
outrageous, particularly when the alleged conduct involves either a veiled or
explicit threat to exercise such authority or power to plaintiff's detriment. Smith,
256 F.3d at 490.
Taking plaintiff’s allegations as true, as the Court must, this Court finds
that an ordinary member of the community could find defendant’s conduct to be
outrageous and at an extreme level so as to cause IIED. Further, the fact that
defendant was in a position of power and authority over plaintiff based on their
employer/employee relationship leads to a more likely determination of
outrageous conduct. Additionally, defendant was fully aware of plaintiff’s medical
condition and thus was aware of the high probably that his conduct would cause
severe emotional distress. Lastly, according to the plaintiff’s complaint,
defendant’s conduct did in fact cause such distress. Accordingly, defendant’s
motion to dismiss plaintiff ‘s IIED claim is denied.
2.

Jurisdiction Over The IIED Claim

Next, defendant argues that this Court does not have original jurisdiction
over this action because the IIED claim is dependent on the IHRA claim. Plaintiff
contends that her IIED claim is independently plead from the IHRA claim.
The IHRA does not preclude courts from exercising jurisdiction over all tort

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claims factually related to incidents of a civil rights violation. Naeem v. McKesson
Drug Co., 444 F.3d 593, 602 (7th Cir. 2006). “The distinction between claims
that are preempted by the IHRA 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. at 604 (quoting Krocka v. City of Chi., 203 F.3d 507, 516/517 (7th Cir. 2000)).
Here, defendant argues that this Court lacks jurisdiction over the tort claim
because it is inextricably linked to the civil rights violation such that there is no
independent basis for the action apart from the IHRA. This Court finds, however,
that plaintiff has alleged the elements for IIED, making the distinction from any
legal duties arising under the IHRA. Similarly in Naeem, the Seventh Circuit
found that the plaintiff’s IIED claim for an abusive work environment was not
preempted due to her IHRA claim. Naeem, 444 F.3d at 604. Furthermore, the
Seventh Circuit in Naeem held that the proper inquiry was not whether the facts
that support a IIED claim could also have supported a discrimination claim, but
instead whether the plaintiff can prove the elements of IIED independent of legal
duties furnished by the IHRA. Id. At this stage, plaintiff has alleged enough to
prove a claim IIED independent of her IHRA claim. Accordingly, the tort claim is
independent from the civil rights violation and shall not be preempted by the

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IHRA. Defendant’s motion is denied.
IV. Conclusion
For the above mentioned reasons, defendant’s motion for dismissal under
Federal Rule 12(b)(6) is denied.
IT IS SO ORDERED.
Signed this 1st day of August, 2012.

Digitally signed by
David R. Herndon
Date: 2012.08.01
10:56:45 -05'00'
Chief Judge Herndon
United States District Court

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