Boston v. U.S. Steel

Filing 29

ORDER DENYING 17 MOTION for Summary Judgment and Memorandum of Law filed by U.S. Steel ( Final Pretrial Conference set for 7/22/2015 01:30 PM in East St. Louis Courthouse before Judge David R. Herndon.)Signed by Judge David R. Herndon on 4/26/2015. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARLA F. BOSTON,
Plaintiff,
vs.

No. 3:13-cv-00532-DRH-DGW

U.S. STEEL
Defendant.

ORDER
HERNDON, District Judge:
I. INTRODUCTION
Now

before

the

Court

is

the

defendant's

Motion

for Summary Judgment and Memorandum in Support (Doc. 17). Plaintiff has
filed a response to the motion (Doc. 21). Defendant has filed a reply (Doc. 24).
Plaintiff alleges that she was retaliated against for filing an EEOC Charge of
Discrimination on October 26, 2010. Count I of plaintiff’s complaint seeks relief
for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et
seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §621 et
seq. Count II of plaintiff’s complaint asserts a common law claim for Intentional
Infliction of Emotional Distress (“IIED”).

Defendant seeks summary judgment on both counts. The Court, having
reviewed the parties briefing and relevant exhibits, DENIES defendant’s motion
for summary judgment.
II. FACTUAL BACKGROUND
A. Initial 18 Years of Employment
Plaintiff was hired by National Steel Corporation in January 1991 as a
secretary in the Engineering Department. Plaintiff continued in the employ of
defendant U.S. Steel at Granite City Works following the sale of National Steel
Corporation to defendant U.S. Steel in 2003.
Plaintiff worked in the Engineering Department until she was laid off in
December 2008 – a total of 18 years. During this 18 year period, the plaintiff
performed engineering requests for vendors, ordered supplies, ensured that
computers, printers, and fax machines were running properly, maintained vendor
catalogs, and obtained computer clearance for contractors. Additionally, plaintiff
utilized defendant’s computer system to maintain notes of meetings and various
Excel spreadsheets, track attendance, rectify claimed vendor hours, and place
daily orders including orders for maintenance of engineering facilities. In
performing her work responsibilities, the plaintiff utilized the following computer
systems/programs: T.I.M.E.S., Excel, Word, and Matrix. Finally, the plaintiff
completed training in both Excel and Matrix.

The record indicates that during her initial 18 years of employment, the
plaintiff was a capable, competent, and skilled employee (see e.g., Doc. 21-8; Doc.
21-3).
B. BOF/October 2010 Adverse Employment Action
After being laid off in December of 2008, the plaintiff remained on layoff
status until she bid on a clerical position in the BOF Department. The plaintiff,
who was 61-years-old at the time, began working in the BOF Department in
September 2010. By October 2010, the plaintiff had been disqualified from the
BOF position (“BOF/October 2010 Adverse Employment Action”).
The

defendant

contends

the

plaintiff

could

not

perform

the

job

requirements. The plaintiff contends she was terminated because the defendant
wanted to replace her with a younger male employee. The plaintiff presents
evidence relating to comments that were made about her age, a desire to hire a
younger male employee, and inadequate or sham training practices during her
short tenure in the BOF Department. Upon being terminated, the plaintiff was
replaced with a younger male employee.

C. October 2010 EEOC Discrimination Charge – Alleging age and sex
discrimination arising from the BOF/October 2010 Adverse Employment
Action
On October 26, 2010, 1 the plaintiff filed an EEOC charge alleging she was
disqualified from the BOF Position because of her age and sex (“October 2010
EEOC Discrimination Charge”)(Doc. 24-1). A Notice of Suit Rights was issued on
December 28, 2011 (Doc. 24-2). The plaintiff did not file a lawsuit against
defendant based on the conduct alleged in the October 2010 EEOC Charge within
the proscribed 90-day filing period.
D. Intervening Employment at a Different Company – The Wood River
Refinery
After being disqualified from the BOF Position, the plaintiff was hired by
Talascend as a computer data entry employee for Bechtel Engineering at the
Conoco Philips expansion of its refinery operation at Wood River. This position
required the use of sophisticated computer programs. The plaintiff has presented
evidence that her employer was happy with her performance and that she
performed her employment duties successfully. The plaintiff left this position in
order to bid for another position with the defendant – the Pass Control Position
(discussed below).
E. Pass Control/May 2011 Adverse Employment Action
The plaintiff left her position at the Wood River Refinery to bid on a
position in the defendant’s Pass Control Department. The plaintiff was awarded
the position and began working in the Pass Control Department on April 11,
1

The complaint improperly states the EEOC charge was filed on October 6, 2010.

2011. The plaintiff was disqualified from the Pass Control Position on May 4,
2011 (“Pass Control/May 2011 Adverse Employment Action”).
The defendant contends the plaintiff was disqualified from the Pass Control
Position when she failed to demonstrate an ability to fulfill the requirements of the
job. The plaintiff’s alleged inadequacies were documented. However, the plaintiff
testified that prior to beginning work in the Pass Control Department, she was
told she was going to be disqualified because of her EEOC Charge (Doc. 21-12 pp.
13-14) (see also Doc. 21-7 p. 2, plaintiff’s former co-worker was told the
defendant intended to disqualify the plaintiff from the Pass Control Position prior
to her start date). The plaintiff has also presented evidence indicating the
defendant intentionally created an environment that would guarantee the plaintiff
was disqualified from the Pass Control Position. For instance, deposition
testimony and affidavits indicate employees were told not to train the plaintiff
and/or were instructed not to give the plaintiff access to necessary computer
programs (see e.g., Doc. 21-7; Doc. 21-17 (admitting the plaintiff was not given
access to 2 of 3 computer systems necessary to her job performance). As an
additional example, there is evidence the plaintiff was asked to complete various
tasks she never received training on, were not required for the job, and/or
similarly situated employees were never asked to complete (Doc. 21-7). The
plaintiff’s inability to complete these tasks was then cited as grounds for her
disqualification (Doc. 21-7). In other words, evidence in the record indicates the
plaintiff was set up to fail.

F. Ironworks/January 2012 Adverse Employment Action
After being disqualified from the Pass Control Position, the plaintiff bid on
and was awarded a position in the Ironworks Department. The plaintiff started
working in the Ironworks Department on December 12, 2011. As with her
previous positions, the plaintiff was quickly disqualified. The plaintiff’s last day in
the Ironworks Department was January 10, 2012 (“Ironworks/January 2012
Adverse Employment Action”).
The defendant contends the plaintiff was disqualified from the Ironworks
Position because she was missing procedures, not completing tasks, making
mistakes, and simply could not fulfill the requirements of the position. However,
the record contains evidence indicating that, once again, the plaintiff was set up to
fail. For instance, the testimony of Marcia Graham (the employee tasked with
training the plaintiff) and of the plaintiff indicates the plaintiff may have received
inadequate training, was denied computer access, and/or was denied access to
necessary computer programs (see e.g., (Doc. 21-15 pp. 17-18) (admitting
computer access is necessary to train but that they were “having trouble” getting
the plaintiff access and the plaintiff was instead trained using a spreadsheet);
(Doc. 21-15 p. 18) (plaintiff was allowed to use Graham’s computer and was not
given access to her own computer until the day she left or the morning after she
left); (Doc. 21-15 p. 19) (discussing the plaintiff’s request for her own access);
(Doc. 21-15 p. 25) (plaintiff was trained using spreadsheets rather than the
computer)). There is also relevant testimony pertaining to whether the employee

tasked with training the plaintiff was absent from work on dates she claimed she
trained the plaintiff (see e.g., Doc. 21-15 pp. 22-23). As well as testimony
pertaining to the number of days the plaintiff was trained prior to being
disqualified (perhaps as few as 13 days of training) and Marcia Graham’s
reasoning for taking notes as to the plaintiff’s alleged inadequacies.
G. April 2012 EEOC Retaliation Charge – Alleging retaliation arising from
the Ironworks/January 2012 Adverse Employment Action
On April 10, 2012, the plaintiff filed an EEOC charge alleging retaliation
arising from the Ironworks/January 2012 Adverse Employment Action (Doc. 177) (“April 2012 EEOC Retaliation Charge”). The April 2012 EEOC Retaliation
Charge states in relevant part as follows:
I was hired by the above referenced employer on January 5, 1991.
My most recent position was Clerk earning $21.40/hour. My direct
supervisor was Michelle Fields, Iron Works Manager , and her
supervisor was Rick Veech, Plant Manager. I returned to work from
being laid off on December 9, 2011. I filed EEOC charge #846-201106647, which was closed on December 28, 2011 [the October 2010
EEOC Discrimination Charge]. I was laid off in retaliation on January
10, 2012 [the Ironworks/January 2012 Adverse Employment Action].
(Doc. 17-7). The plaintiff further stated that the earliest date of discrimination
was January 10, 2012 and the latest date of discrimination was January 10,
2012. The plaintiff did not check the box indicating “Continuing Action.” The April
2012 EEOC Retaliation Charge does not reference the Pass Control/May 2011
Adverse Employment Action. 2

2

Likewise, the intake questionnaire accompanying the April 2012 EEOC Retaliation Charge does
not reference the Pass Control/May 2011 Adverse Employment Action (Doc. 17-8). The only

On February 22, 2013, the EEOC issued a determination relating to the
plaintiff’s April 2012 EEOC Retaliation Charge. The Determination stated that
plaintiff was alleging she was “laid off from her position on January 10, 2012, in
retaliation [for filing the October 2010 EEOC Discrimination Charge]” (Doc. 21-1
p.1). The Commission concluded there was “reasonable cause to believe that
Charging Party’s allegations of retaliation are true, and that Respondent
discriminated against Charging Party in that she was laid off in retaliation for
filing a charge with the Commission alleging sex discrimination in violation of
Title VII and age discrimination in violation of the ADEA” (Doc. 21-1 p. 1). On
April 19, 2013, a Notice of Suit Rights was issued (Doc. 2 p. 6).
III.

PRELIMINARY MATTER

A. Matters that are Properly Before the Court - Overview
A dispute has arisen regarding what matters are properly before the Court.
The defendant contends that any claim for age or sex discrimination arising from
the plaintiff’s employment in the BOF department is not properly before the
Court. In addition, the defendant argues that the plaintiff’s retaliation claim is
limited to alleged retaliation arising from the Ironworks/January 2012 Adverse
Employment Action (i.e. any alleged retaliation arising from the Pass Control/May
2011 Adverse Employment Action is not actionable). The Court addresses these
matters in turn below.

alleged discriminatory conduct is retaliation arising from the Ironworks/January 2012 Adverse
Employment Action. Further, as is discussed later in this opinion, as of April 2012, any claims
pertaining to the Pass Control/May 2011 Adverse Employment Action were time-barred.

B. Alleged Age and/or Sex Discrimination Arising From the BOF/October
2010 Adverse Employment Action is not Actionable
To the extent that the plaintiff is attempting to assert claims for age and sex
discrimination arising from her employment in the BOF Department, such claims
are not properly before the Court. The complaint does not assert a claim for age
or sex discrimination. The plaintiff may not now raise these claims for the first
time in response to the defendant’s motion for summary judgment. In addition,
these claims are time-barred. As previously discussed, plaintiff filed an EEOC
charge on October 26, 2010 alleging age and sex discrimination arising from the
BOF/October 2010 Adverse Employment Action (the October 2010 EEOC
Discrimination Charge) (Doc. 24-1). A Notice of Suit Rights was issued on
December 28, 2011 (Doc. 24-2). The plaintiff did not file a lawsuit against
defendant

based

on

the

conduct

alleged

in

the

October

2010

EEOC

Discrimination Charge within the proscribed 90-day filing period. The present
lawsuit, filed in June 2013, is well beyond the statutorily proscribed 90-day filing
period. 42 U.S.C. § 2000e-5(f)(1).
C. Retaliation Claim – Termination from the Ironworks Position in January
2012 is the Only Actionable Adverse Employment Action
The defendant alleges plaintiff’s retaliation claim is limited to the
Ironworks/January 2012 Adverse Employment Action. The defendant contends
the plaintiff did not plead a claim for retaliation arising from the Pass Control/May
2011 Adverse Employment Action and may not enlarge the scope of her complaint
by raising this argument in response to the defendant’s motion for summary

judgment. 3 The defendant further argues that the plaintiff is barred from asserting
a claim for retaliation related to the Pass Control/May 2011 Adverse Employment
Action because she failed to exhaust all administrative remedies as to this action.
The Court does not agree with the contention that retaliation arising from
the Pass Control/May 2011 Adverse Employment Action is outside the scope of
the complaint. However, it is evident that any claim for retaliation arising from the
Pass Control/May 2011 Adverse Employment Action is time barred. Accordingly,
as is discussed below, a claim for retaliation arising from the Pass Control/May
2011 Adverse Employment Action is not actionable.
Plaintiffs are required to file a charge of discrimination with the EEOC
before filing a Title VII action. Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
398, 102 S. Ct. 1127, 1135 (1982). Under Title VII, a plaintiff “shall” file a charge
with the EEOC within 180 or 300 days of an “alleged unlawful employment
practice.” 42 U.S.C. § 2000e-5(e)(1). Specifically, in Illinois, a complainant must
file a charge with the EEOC within 300 days of the alleged retaliatory act and
failure to do so renders the charge untimely. Filipovic v. K & R Exp. Systems, Inc.
176 F.3d 390, 396 (7th Cir. 1999) citing Koelsch v. Beltone Elecs. Corp., 46 F.3d
705, 707 (7th Cir. 1995). “For purposes of this statute of limitations, discrete
discriminatory employment actions such as termination, failure to promote,

3

The Seventh Circuit has consistently held that a party may not raise a new argument for the first
time in a response to summary judgment. See e.g., Anderson v. Donahoe, 699 F.3d 989, 997 (7th
Cir.2012); Conner v. Ill. Dep’t of Natural Res., 413 F.3d 675, 679 (7th Cir. 2005); Grayson v.
O’Neill, 308 F.3d 808, 817 (7th Cir. 2002). This principle insures that the defendant receives the
“fair notice” required by the federal rules. Anderson, 699 F.3d at 997.

denial of a transfer, or refusal to hire are deemed to have been taken on the date
they occurred, even if they form part of an ongoing practice or are connected with
other acts.” Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860 (7th Cir.
2005). “Thus, each discrete discriminatory act ‘starts a new clock for filing
charges alleging that act,’ and charges not filed within 300 days of the act in
question are not actionable.” Id. citing Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113–14, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
The Pass Control/May 2011 Adverse Employment Action is a discrete act of
termination. As such, the plaintiff had until February 28, 2012 (300 days from the
May 4, 2011 disqualification) to file a retaliation charge with the EEOC relating to
the Pass Control/May 2011 Adverse Employment Action. 4 The plaintiff never filed
an EEOC Charge alleging any retaliatory (or discriminatory) conduct arising from
the Pass Control/May 2011 Adverse Employment Action.
The EEOC charge alleging retaliation filed on April 10, 2012 (the April
2012 EEOC Retaliation Charge – the charge that led to the present complaint) was
filed too late to have included the Pass Control/May 2011 Adverse Employment
Action. Moreover, the April 2012 Retaliation Charge only alleges retaliation arising
from the Ironworks/January 2012 Adverse Employment Action. There is no
mention of the Pass Control/May 2011 adverse employment decision. Moreover,
4

Under Title VII, a plaintiff “shall” file a charge with the EEOC within 180 or 300 days of an
“alleged unlawful employment practice.” 42 U.S.C. § 2000e-5(e)(1). Specifically, in Illinois, a
complainant must file a charge with the EEOC within 300 days of the alleged retaliatory act and
failure to do so renders the charge untimely. Filipovic v. K & R Exp. Systems, Inc. 176 F.3d 390,
396 (7th Cir. 1999) citing Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir. 1995).

the April 2012 Charge indicates the plaintiff was complaining of a distinct act of
discrimination, noting the earliest date the discrimination took place was “1-102012” and the “continuing action” box is not checked. See Adams v. City of
Indianapolis, 742 F.3d 720, 729-730 (7th Cir. 2014) (discussing the “continuing
violation” doctrine and distinct acts of discrimination); Reynolds v. Tangherlini,
737 F.3d 1093, 1099-1100 (7th Cir. 2013) (scope of subsequent civil proceedings
in federal court limited by charge brought before administrative agency).
For the reasons discussed above, any retaliation claim relating to the Pass
Control/May 2011 Adverse Employment Action is not actionable.
D. Time-Barred Acts May be Offered as Support for the Plaintiff’s Actionable
Claims
Although any discriminatory conduct in relation to the BOF/October 2010
Adverse Employment Action and the Pass Control/May 2011 Adverse Employment
Action are not actionable, such conduct is properly considered as support for
claims that are before the Court. The Seventh Circuit has repeatedly held that
courts may look to time-barred acts as support for timely claims. See Davis v.
Con-Way Transp. Cent. Express. Inc., 368 F.3d 776, 786 n. 4 (7th Cir. 2004)
(quoting Morgan, 536 U.S. at 113, 122 S.Ct. at 2072); see also Fischer v.
Avande, Inc., 519 F.3d 393, 401 (7th Cir. 2008).
III. SUMMARY JUDGMENT STANDARD
Summary judgment is proper when the pleadings, discovery, and
disclosures establish that there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of law. Winsley v. Cook Cnty., 563
F.3d 598, 602–03 (7th Cir. 2009); Fed. R. Civ. P. 56(a); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). A genuine issue of material fact exists if
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Pugh v. City of Attica, Indiana, 259 F.3d 619, 625 (7th Cir.
2001); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court
must view the facts in the light most favorable to the non-moving party and draw
all reasonable inferences in that party's favor, as well as resolve all factual
disputes in favor of the non-moving party. Scott v. Harris, 550 U.S. 372 (2007);
Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008).
The party seeking summary judgment bears the initial burden of
establishing the absence of factual issues and entitlement to judgment as a matter
of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing
Celotex, 477 U.S. at 323). In response, the non-moving party may not rest on
bare pleadings alone, but instead must highlight specific material facts to show
the existence of a genuine issue to be resolved at trial. Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000). The Court will enter summary judgment
against a party who does not “come forward with evidence that would reasonably
permit the finder of fact to find in [its] favor on a material question.” McGrath v.
Gillis, 44 F.3d 567, 569 (7th Cir. 1995).

IV. ANALYSIS
A. Count I -Retaliation
Title VII forbids employers from discriminating against an employee for
opposing a practice prohibited by Title VII, or for participating in an investigation,
proceeding, or hearing under Title VII. 42 U.S.C. § 2000e–3(a) (the “antiretaliation statute”). The purpose of the anti-retaliation statute is to protect
victims of discrimination who complain about illegal conduct to the EEOC, the
courts, or the employer itself. See generally Stephens v. Erickson, 569 F.3d 779,
786 (7th Cir. 2006). Similarly, the ADEA makes it unlawful for employers to
retaliate against a person who has opposed any practice made unlawful under §4
of the ADEA. 29 U.S.C. §623(d). To avoid summary judgment on a retaliation
claim under Title VII or the ADEA, a plaintiff may proceed under either the
“direct” or “indirect” method of proof. Silverman v. Bd. of Educ. of City of Chi.,
637 F.3d 729, 740 (7th Cir. 2011).
Under the direct method, an employee must demonstrate that (1) he
engaged in statutorily protected activity; (2) he suffered an adverse action taken by
his employer; and (3) there was a causal connection between the statutorily
protected activity and the adverse action. Andonissamy v. Hewlett–Packard Co.,
547 F.3d 841(7th Cir. 2008). A plaintiff may prove retaliation by either direct or
circumstantial evidence. Plastics Corp., 703 F.3d 966, 972 (7th Cir. 2013).
Direct evidence is that which, if believed by a jury, will prove the particular
fact in dispute “without reliance upon inference or presumption.” Id. at 973

(citation omitted). Circumstantial evidence “allows a jury to infer retaliation[.]” Id.
A plaintiff may prove retaliation through circumstantial evidence by showing: (i)
suspicious timing, ambiguous statements or behaviors; (ii) evidence that similarly
situated employees who did not lodge complaints were treated differently than the
plaintiff; or (iii) “a pretextual reason for an adverse employment action.” Id.
(citation omitted). In other words, causation can be demonstrated “by presenting
a convincing mosaic of circumstantial evidence that would support the inference
that a retaliatory animus was at work.” Cloe v. City of Indianapolis, 712 F.3d
1171, 1180 (7th Cir. 2013) (citation and internal quotation marks omitted).
Under the indirect method, a plaintiff must prove that (1) he engaged in
statutorily protected activity; (2) he met his employer's legitimate expectations; (3)
he suffered an adverse employment action; and (4) he was treated less favorably
than similarly situated employees who did not engage in statutorily protected
activity. Tomanovich v. City of Indianapolis, 457 F.3d 656, 662–63 (7th Cir.
2006).
If the plaintiff satisfies her initial burden under the indirect method, the
defendant must articulate a legitimate, non-discriminatory reason for its actions.
Stephens v. Erickson, 569 F.3d 779, 787 (7th Cir. 2006). If the defendant does
so, the burden shifts back to the plaintiff, who must show that the defendant's
stated reason is a pretext to a discriminatory motive. Id.

Under the direct method, plaintiff has evidence that she engaged in a
statutorily protected activity (the October 2010 EEOC Discrimination Charge
alleging age and sex discrimination arising from the BOF/October 2010 Adverse
Employment Action) and that defendant terminated her employment thereafter
(the Ironworks/January 2012 Adverse Employment Action). Further, there is a
genuine issue of material fact as to whether plaintiff’s October 2010 EEOC
Discrimination Charge was a but-for cause of the Ironworks/January 2012
Adverse Employment Action.
When drawing reasonable inferences in the plaintiff’s favor, there is
evidence that the reasons presented for terminating the plaintiff are pretextual.
Defendant contends that it terminated the plaintiff because she could not fulfill
the requirements of the Ironworks Position. Yet, the record contains evidence
suggesting the defendant intended to disqualify the plaintiff from any position she
was awarded. The plaintiff worked for the defendant – seemingly without incident
– for 18 years prior to being disqualified from the Ironworks Department. During
those 18 years there were no performance concerns. In addition, the plaintiff
utilized the defendant’s computer systems and programs – many of the same
systems and programs the defendant claims she was unable to master during her
short employment with the Ironworks Department. Further, the plaintiff seems to
have performed well during her intervening employment at the Wood River
Refinery. The plaintiff has also presented evidence indicating that she was
subjected to sham training and was set up to fail. As noted previously, the

plaintiff’s experiences and the defendant’s alleged conduct during the plaintiff’s
tenure in the BOF Department and the Pass Control Department may be
considered as evidence in support of her claim for retaliation arising from the
Ironworks/January 2012 Adverse Employment Action.
When drawing all facts and reasonable inferences in plaintiff’s favor, a
reasonable jury could find that the defendant’s reasons for having terminated her
are pretextual. A reasonable jury also could find, if it believes plaintiff’s account,
that her training, computer access, and timing of termination were suspicious.
Thus, a reasonable jury could find, under the “convincing mosaic” approach, that
plaintiff’s October 2010 EEOC Discrimination Charge caused her termination
from the Ironworks Position in January 2012.
As such, defendant’s motion for summary judgment with respect to the
plaintiffs claim for retaliation is DENIED.
B. Count II - Intentional Infliction of Emotional Distress
To withstand summary judgment on an intentional infliction of emotional
distress (“IIED”) claim, a plaintiff must establish that: (1) the defendant’s conduct
was extreme and outrageous, (2) the defendant intended that their conduct would
cause severe emotional distress, or there was at least a high probability that the
conduct would inflict severe emotional distress; and (3) the conduct did in fact
cause severe emotional distress. Honaker v. Smith, 256 F.3d 477, 490 (7th Cir.
2001) (applying Illinois law)); Doe v. Calumet City, 641 N.E.2d 498 (Ill. 1994).

Furthermore, IIED requires more than “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
(1965)).
Under Illinois law, a defendant’s conduct must be such that the “ ‘recitation
of the facts to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim: Outrageous!’ ” Doe v. Calumet City,
641 N.E.2d at 507 (quoting Restatement (Second) of Torts § 46 cmt. D (1965)). In
McGrath, the Supreme Court of Illinois cited non-exclusive factors which can help
inform this rather fluid standard. See McGrath, 533 N.E.2d at 809–10. One
factor that influences the extreme and outrageous nature of the conduct is the
degree of power or authority that the actor has over the plaintiff. Id.
In the context of a relationship involving an employee and her employer,
courts have found extreme and outrageous behavior in situations where an
“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, 256 F.3d at 491. Another factor often
considered by courts is “whether the defendant reasonably believed that his
objective was legitimate; greater latitude is given to a defendant pursuing a
reasonable objective even if that pursuit results in some amount of distress for a
plaintiff.” Id. at 491.

Plaintiff bases her claim for intentional infliction of emotional distress on
the following: (1) the defendant’s total control over the plaintiff’s working
conditions and employment status; (2) the defendant’s knowledge of the plaintiff’s
particularly susceptible state due to the stress of losing an 18-year career; (3)
repeated exposure to sham-training and requests to complete impossible tasks;
and (4) repeated unjustified negative reviews and terminations. The plaintiff
contends that she was belittled, humiliated, and now suffers from anxiety and
depression. The plaintiff has been diagnosed with Major Depressive Disorder and
Generalized Anxiety Disorder reportedly stemming from the conduct that is the
subject of the present action.
The Court finds that the plaintiff has presented sufficient factual questions
upon which a jury should be permitted to consider her claim for intentional
infliction of emotional distress.
Accordingly, the motion for summary judgment as to plaintiff’s claim for
intentional infliction of emotional distress is also DENIED.
V. CONCLUSION
IT IS ORDERED that defendant's motion for summary judgment is
DENIED. Plaintiff may proceed to trial on her claim for retaliation arising from
the Ironworks/January 2012 Adverse Employment Action and on her claim for
intentional infliction of emotional distress.

IT IS FURTHER ORDERED that the parties shall appear for a final pretrial
conference on July 22, 2015 at 1:30 pm in the East St. Louis Courthouse before
Judge David R. Herndon. The matter will be set for trial at that time.
IT IS SO ORDERED.
Signed this 26th day of April, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.04.26
08:02:29 -05'00'
United States District Judge