Collman v. Dollar General Corporation et al
Filing
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ORDER granting 18 Motion to Dismiss for Failure to State a Claim: For the reasons throughly delineated in the attached Order, the Court GRANTS the part of Doc. 18 which is still pending (after the voluntary dismissal of certain claims by Plaintiff ; see Docs. 25-26) and DISMISSES with prejudice Count III, Plaintiff's claim for intentional infliction of emotional distress. Collman SHALL FILE a First Amended Complaint including only the surviving claims and remaining Defendant, numbering the counts as described in the attached Order, no later than October 1, 2013. Signed by Judge Michael J. Reagan on 9/19/13. (soh )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AMBER COLLMAN,
Plaintiff,
vs.
DG RETAIL LLC,
doing business as Dollar General,
Defendant.
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Case No. 13-cv-0534-MJR-PMF
MEMORANDUM AND ORDER
REAGAN, District Judge:
A.
Introduction and Procedural Overview
In June 2013, Amber Collman filed an employment discrimination suit in this
Court, naming two Defendants – Dollar General Corporation and DG Retail, LLC.
A
June 27, 2013 Order dismissed Dollar General Corporation, leaving DG Retail, LLC
(DGR) as the sole Defendant.
Collman’s four-count complaint contained claims of
sexual harassment and retaliation (based on Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e, et seq., and the Illinois Human Rights Act, 775 ILCS 5/1-109, et seq.),
intentional infliction of emotional distress, and negligent retention.
DGR secured additional time in which to respond to the complaint. On July 15,
2013, DGR moved to dismiss parts of the complaint for lack of subject matter
jurisdiction (for failure to exhaust administrative remedies before filing suit), moved to
dismiss other parts of the complaint for failure to state a claim upon which relief can be
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granted, and asked in a footnote (Doc. 18, p.1, n.2) that the Court extend DGR’s
deadline to answer the remainder of the complaint.
Ultimately, Collman voluntarily dismissed, pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i), the claims which DGR challenged on jurisdictional grounds –
her claims for sexual harassment and retaliation under the Illinois Human Rights Act
(which were part of Counts I and II) – plus her negligent retention claim (Count IV).
What remains of Collman’s complaint are her claims for sexual harassment under Title
VII (contained in Count I), retaliation under Title VII (contained in Count II), and
intentional infliction of emotional distress (Count III). Collman filed a merits-based
response to the requested dismissal of Count III (Doc. 24), and DGR replied thereto on
September 3, 2013 (Doc. 27). For the reasons stated below, the Court grants the motion
to dismiss Count III for failure to state a claim upon which relief can be granted.
B.
Applicable Legal Standards
Federal Rule of Civil Procedure 12(b)6) governs motions to dismiss for failure to
state a claim. In 2007 and 2009, respectively, the United States Supreme Court handed
down two decisions which delineated the district court’s proper role on a Rule 12(b)(6)
motion -- Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556
U.S. 662, 663-664 (2009). In deciding a 12(b)(6) motion, the court’s task is to determine
whether the complaint includes “enough facts to state a claim to relief that is plausible
on its face.” Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008), quoting Twombly,
550 U.S. at 570. Accord Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir.
2
2013) (“To survive a motion to dismiss, the complaint must contain enough facts to
state a claim for relief that is plausible on its face.”).
A complaint need not contain detailed factual allegations to meet this standard,
Scott v. Chuhak & Tecson, P.C., -- F.3d --, 2013 WL 3970050, *8 (7th Cir. Aug. 5, 2013),
but it must “go beyond mere labels and conclusions” and contain “enough to raise a
right to relief above the speculative level.” G&S Holdings, LLC v. Continental Casualty
Co., 697 F.3d 534, 537-38 (7th Cir. 2012). Courts “must still approach motions under
Rule 12(b)(6) by ‘construing the complaint in the light most favorable to the plaintiff,
accepting as true all well-pleaded facts alleged, and drawing all possible inferences in
her favor.’” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009), cert. denied, 558
U.S. 1148 (2010), quoting Tamayo v. Blagoyevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
The United States Court of Appeals for the Seventh Circuit has explained that
Iqbal clarified the two working principles underlying Twombly:
First, although the complaint's factual allegations are accepted as true at
the pleading stage, allegations in the form of legal conclusions are
insufficient to survive a Rule 12(b)(6) motion. Id.
Accordingly,
“[t]hreadbare recitals of the elements of the cause of action, supported by
mere conclusory statements, do not suffice.” Id. Second, the plausibility
standard calls for a “context-specific” inquiry that requires the court “to
draw on its judicial experience and common sense.” Id. at 679.
McReynolds v. Merrill Lynch & Co., Inc., 695 F.3d 873, 885 (7th Cir. 2012).
Stated another way: “To withstand a Rule 12(b)(6) challenge after Iqbal and
Twombly, ‘the plaintiff must give enough details about the subject-matter of the case to
present a story that holds together,’ and the question the court should ask is ‘could these
things have happened, not did they happen.’” Estate of Davis v. Wells Fargo Bank, 633
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F.3d 529, 533 (7th Cir. 2011), citing Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th
Cir. 2010)(emphasis in original).
So this Court reviews Collman’s complaint, taking as true all well-pled factual
allegations. After excising any allegations not accepted as true (legal conclusions), the
Court must decide whether the remaining factual allegations plausibly suggest that
Collman is entitled to relief. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011). Of course, a Rule 12(b)(6) dismissal motion “must be decided solely on the face
of the complaint and any attachments that accompanied its filing.” Miller v. Herman,
600 F.3d 726, 733 (7th Cir. 2010), citing FED. R. CIV. P. 10(c) and Segal v. Geisha NYC
LLC, 517 F.3d 501, 504-05 (7th Cir. 2008). If, on a Rule 12(b)(6) motion, matters outside
the pleadings are presented to, and not excluded by, the court, the motion must be
treated as a Rule 56 motion for summary judgment. General Insurance Co. of America
v. Clark Mall Corp., 644 F.3d 375, 378 (7th Cir. 2011); FED. R. CIV. P. 12(d).
C.
Analysis
DGR moves to dismiss Count III, Collman’s claim for intentional infliction of
emotional distress (IIED) on three grounds. First, DGR argues that Collman’s IIED
claim is preempted by the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101, et seq.
Second, DGR argues that Collman’s IIED claim is barred by the Illinois Workers’
Compensation Act (IWCA), 820 ILCS 305/1, et seq. Finally, DGR argues that, if not
preempted or barred, Collman’s IIED claim must be dismissed, because she fails to
plead the requisite elements of an IIED cause of action, and DGR cannot be held
vicariously liable for the intentional torts of its employees. The Court addresses these
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three arguments in reverse order. A summary of key facts, as alleged in the complaint,
aids analysis.
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SUMMARY OF KEY FACTS AND ALLEGATIONS
The complaint alleges as follows.
DGR owned, operated, managed, and/or
controlled a Dollar General store on Berkshire Boulevard in East Alton, Illinois (within
this Judicial District). In February 2012, DGR hired Plaintiff Collman to work as a lead
sales associate at the East Alton store.
Brian Garner was Collman’s immediate
supervisor and had managerial authority over Collman. Beginning in June 2012, DGR
(through Garner) subjected Collman to sexual harassment and subjected Collman to a
hostile work environment.
Garner inappropriately touched Collman, made
inappropriate sexual references in conversations with Collman, and solicited Collman
to come to his home. Garner’s conduct was unwelcome, sexual in nature, directed at
Collman because of her sex (female), severe, pervasive, and intentional. DGR knew of
Garner’s unlawful actions and practices. Garner “acted as [DGR’s] alter ego (Doc. 2, p.
6).
DGR did not promptly correct the behavior or practices, thereby ratifying,
approving, and perpetuating the unlawful conduct. When Collman complained about
Garner’s conduct, DGR retaliated against Collman – altering the conditions of her job
and ultimately terminating her employment.
In addition to the above-summarized “General Allegations,” the individual
counts contain other specific allegations. For instance, Count II (the retaliation claim)
details that: Collman initially reported the harassment to DGR’s senior management,
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including District Manager Foster Bliss; Bliss installed a surveillance camera which
confirmed Garner’s inappropriate physical contact with a female co-worker’s buttocks;
DGR refused Collman’s request to be reassigned so she did not have to work with
Garner; Bliss directed Collman to “keep her mouth shut;” Collman then reported the
matters to DGR’s hotline; DGR District Manager Art Biggs responded to the hotline call
and instructed Collman to submit a written statement to Bliss, even though Bliss was a
subject of her complaints on the hotline; Collman submitted her written statement to
Bliss on December 17, 2012; and Collman was fired by Bliss the next day.
Count III (the IIED claim) incorporates by reference the general allegations,
repeats much of the chronology regarding her failed attempt to report Garner (and then
Bliss) to DGR, and specifically alleges that Garner subjected Collman to inappropriate
sexual touching, made lewd and sexual comments, referred to women in sexually
derogatory and sexually demeaning names, made false statements against Collman,
and engaged in “other acts of sexual harassment, discrimination and sexually hostile
work environment” (Doc. 2, p. 11). Count III adds: (a) by engaging in the foregoing
conduct, DGR repeatedly, intentional inflicted emotional distress on Collman; (b) DGR
intended to cause Collman severe emotional distress or acted in reckless disregard that
these actions would cause severe emotional distress to Collman; and (c) as a direct
result of DGR’s conduct, Collman was demeaned, degraded, humiliated and
embarrassed and suffered severe mental anguish plus emotional and physical distress
(Doc. 2, p. 13).
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THE ELEMENTS OF AN ILLINOIS IIED CLAIM
Construing the well-pled facts and reasonable inferences in Collman’s favor, the
Court assesses whether Count III states a claim on which relief can be granted. Illinois
has recognized the tort of IIED since 1961, when the Illinois Supreme Court held that
persons could be liable for truly outrageous actions, i.e., “an unwanted intrusion …
calculated to cause severe emotional distress to a person of ordinary sensibilities.”
Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001), quoting Knierim v. Izzo, 174 N.E.2d
157, 164 (Ill. 1961). To properly plead a claim for IIED under Illinois law, a plaintiff
must allege: “(1) that the defendant’s conduct was extreme and outrageous; (2) that the
defendant knew that there was a high probability that his conduct would cause severe
emotional distress; and (3) that the conduct in fact caused severe emotional distress.”
Schroeder v. RGIS, Inc., -- N.E.2d --, 2013 WL 2608754, *7 (Ill. App. June 11, 2013),
quoting Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 211 (Ill. 1992).
The Illinois Supreme Court has warned that insults, indignities, threats,
annoyances and petty oppressions do not constitute extreme and outrageous conduct.
Schroeder at *7. Instead, the nature of the defendant’s conduct “must be so extreme as
to go beyond all possible bounds of decency” and “be regarded as intolerable in a
civilized community.” Kolegas, 607 N.E.2d at 211. Accord Muzikowski v. Paramount
Pictures Corp., 477 F.3d 899, 908 (7th Cir. 2007) (Illinois IIED claim requires “truly
extreme and outrageous” conduct). “[E]motional distress alone is not sufficient to give
rise to a cause of action;” the emotional distress must be severe, that is, unendurable by
a reasonable person. Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1030 (7th Cir.
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2006), citing Pub. Fin. Corp. v. Davis, 360 N.E.2d 765, 767-78 (Ill. 1976), and Kleidon v.
Rizza Chevrolet, Inc., 527 N.E.2d 374, 377 (Ill. App. 1988).
To be actionable, the
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!’” Honaker v. Smith, 256 F.3d 477, 489 (7th Cir. 2001), quoting
Restatement (Second) of Torts § 46 cmt. d (1965).
The case at bar presents a close call as to whether Count III states a claim for IIED
on which relief can be granted. Collman alleges that she was subjected to unwelcome
touching, inappropriate references, lewd comments, demeaning names, and derogatory
remarks by Garner; she was told to keep her mouth shut once; “false statements” were
made about her; and she was ultimately fired. We do not know the substance or
specifics of the remarks, comments, and references, or the nature of the false statements
made about Collman. Such details are not required in a system of notice pleading, of
course, but it is difficult to objectively judge how outrageous or extreme these remarks
or statements are without more information than Count III provides.
Collman suggests the case at bar is analogous to Redman v. Gas City, Ltd., 2007
WL 869561 (N.D. Ill. 2007)(unreported), in which the District Court denied the
employer/defendant’s motion to dismiss an Illinois IIED claim.
In Redman, the
complaint alleged that the plaintiff’s manager had called plaintiff a bitch and an old
lady. The complaint also alleged that the plaintiff had suffered nearly two years of
shocking, lewd, sexually-charged comments. The latter included telling plaintiff how
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he (the manager) had performed oral sex on a man in front of a female friend (to satisfy
the friend’s sexual fantasy), telling plaintiff that he wanted to “suck that customer’s
dick,” encouraging the plaintiff to look at the customers’ “tight asses,” and asking (in
reference to heterosexual sex) “why would anyone want to have sex with something
that bleeds every month but never dies.” Id., 2007 WL 869561, *1.
These allegations stand in contrast to Collman’s generic allegations of
“inappropriate references” and “false statements.” Still, we are at the pleading (not the
proving) stage. To withstand a Rule 12(b)(6) challenge, the complaint need only furnish
“enough details about the subject-matter of the case to present a story that holds
together,” and the question the court should ask is “could these things have happened,
not did they happen.” Estate of Davis, 633 F.3d at 533. The comments and actions
alleged by Collman are more than mere annoyances or trivialities, but the Court is hardpressed to find that the behavior alleged stretches beyond all bounds of decency and is
considered unendurable in a civilized community. However, the Court need not decide
the point, because Count III merits dismissal on another basis.
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THE IWCA’S EXCLUSIVITY PROVISION
Assuming that Collman’s allegations do state a claim for IIED on which relief can
be granted, Count III fails to clear another hurdle – the exclusivity provision of the
Illinois Workers’ Compensation Act (IWCA). Under the IWCA, employers compensate
their employees for job-related injuries and illnesses, regardless of fault. “In return for
not having to prove fault, employees receive only workers’ compensation benefits from
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their employers and cannot sue their employers to receive more damages.” Baltzell v.
R&R Trucking Co., 554 F.3d 1124, 1127 (7th Cir. 2009), citing 820 ILCS 305/5(a).
The
Illinois Supreme Court explained in the seminal case, Meerbrey v. Marshall Field and
Co., Inc., 564 N.E.2d 1222, 1225 (Ill. 1990):
The Workers’ Compensation Act is designed to provide financial
protection to workers for accidental injuries arising out of and in the
course of employment…. Accordingly, the Act imposes liability without
fault upon the employer and, in return, prohibits common law suits by
employees against the employer. The exclusive remedy provision “is part
of the quid pro quo in which the sacrifices and gains of employees and
employers are to some extent put in balance, for, while the employer
assumes a new liability without fault, he is relieved of the prospect of
large damage verdicts….”
Section 5(a) of the IWCA declares that only the compensation provided therein
(and no common law right to recover damages from the employer) shall be available to
a covered employee. 820 ILCS 305/5(a).1 The IWCA furnishes the exclusive remedy; an
employee has no right to recover other damages from his employer or its agents or
employees for accidental injuries incurred in the course of employment. Hunt-Golliday
v. Metro. Water Recl. Dist. of Greater Chicago, 104 F.3d 1004, 1016 (7th Cir. 1997).
Thus, the IWCA bars an employee from bringing a common law cause of action
against her employer, unless the employee-plaintiff proves:
(1) that the injury was not accidental;
(2) that the injury did not arise from her employment;
(3) that the injury was not received during the course of employment;
or (4) that the injury is not compensable under the IWCA.
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Additionally, Section 11 provides that the compensation provided under “this Act, shall
be the measure of the responsibility of any employer … for accidental injuries sustained by any
employee arising out of and in the course of the employment….” 820 ILCS 305/11.
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Meerbrey, 564 N.E.2d at 1226. See also TKK USA, Inc. v. Safety Nat. Cas. Corp., -- F.3d -, 2013 WL 4457317, *2 (7th Cir. August 21, 2013) (Reiterating, in context of the IWCA
and the homologous Occupational Diseases Act: “The bar to common law claims
does not apply if the [injury or disease] was not caused accidentally, did not arise out
of employment, was not incurred during the course of employment, or is not
compensable under [the Act].”); Dunlap v. Nestle, 431 F.3d 1015, 1016 (7th Cir. 2005).
Here, Collman endeavors to avoid application of the IWCA’s exclusivity
provision by arguing that her injury (which plainly arose from and during the course of
her employment) was not accidental. As to whether an injury is accidental (for purposes
of applying the IWCA exclusivity provision), the Illinois Supreme Court has held that
accidental is not a technical or legal term. Instead, “accidental” encompasses “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.
More specifically, “injuries inflicted intentionally upon an employee by a coemployee are ‘accidental’ within the meaning of the Act, since such injuries are
unexpected and unforeseeable form the injured employee’s point of view” and “also
accidental from the employer’s point of view, at least where the employer did not direct
or expressly authorize the co-employee to commit the assault.” Id., 564 N.E.2d at 1226.
As to the latter, an allegation that an employee was acting within the scope of his
employment does not suffice as an allegation that the specific acts in question were
expressly authorized by the employer. Id. See also Glasgow v. Associated Banc-Corp,
980 N.E.2d 785, 790-91 (Ill. App. 2012) (to avoid the IWCA’s bar by on the grounds
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that an injury was not accidental, a plaintiff must show that her employer specifically
intended the actions in question to injure her); Hunt-Golliday, 104 F.3d at 1016-17 (the
fact that a supervisor was acting within the scope of his authority does not equal
authorization by the employer for the commission of an intentional tort).
The Illinois Supreme Court in Meerbrey added that the IWCA’s exclusivity
provision does not bar a common law cause of action against an employer for injuries
which the employer or its alter ego intentionally inflicted on an employee or injuries
which were commanded or expressly authorized by the employer. Id., 564 N.E.2d at
1226. The rationale underlying this rule is that the employer ought not be permitted to
intentionally commit an act and then hide behind the IWCA’s exclusivity provision. Id.
Collman has not alleged that DGR expressly authorized, or commanded, or
directed the acts in question. The allegations that DGR should have known of the
Garner’s acts, or that DGR learned of the acts and failed to appropriately respond, do
not equate to expressly authorizing or commanding the acts. The allegation that Garner
was Collman’s supervisor and acted within the scope of his managerial authority over
her does not equate to DGR expressly authorizing the acts either. Hunt-Golliday, 104
F.3d at 1017.
Of course, if an employee acts as the alter ego of the employer in
committing an intentional tort, that furnishes a basis for holding the employer liable. In
other words, the exclusivity provision of the IWCA does not bar a common-law cause
of action against an employer if the employer or its alter ego intentionally inflicted an
injury upon an employee.
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Collman’s complaint contains a single reference to the phrase “alter ego.”
Paragraph 24 alleges that Defendants were responsible for the unlawful conduct of
Brian Garner, because Garner was a member of senior management at the East Alton
store “and, as such, acted as the Defendants’ alter ego.” Just being a manager or
supervisor does not render an employee his employer’s alter ego. Setting aside legal
conclusions contained in the complaint and focusing on the well-pled facts and
reasonable inferences (drawn in Collman’s favor), the Court finds that the allegations
do not support the conclusion that Garner (or Bliss) was the alter ego of DGR, such that
Collman can avoid application of the IWCA’s exclusivity provision and directly sue
DGR for the intentional infliction of emotional distress claimed in Count III.
The Illinois Supreme Court has held that the only way an injured employee can
sue her employer for damages, other than by filing for compensation under the IWCA,
is to allege one of the following: (1) the injury was not accidental, (2) the injury did not
arise from her employment, (3) the injury was not received during the course of her
employment, or (4) the injury is not compensable under the IWCA. Toothman v.
Hardee’s Food Systems, Inc., 710 N.E.2d 880, 883 (Ill. App. 1999). Collman asserts that
her injury was not accidental, but her complaint does not contain allegations allowing
that conclusion to be plausibly drawn.
Injuries intentionally inflicted upon an
employee by a coworker are accidental within the meaning of the IWCA “since such
injuries are unexpected … from the employee’s point of view.” Collman has not alleged
that DGR expressly authorized, commanded, or directed the injuries she sustained.
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And Collman’s allegations, construed in her favor, do not support the conclusion that
Garner acted as DGR’s alter ego. Accordingly, Count III is barred by the IWCA.
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IHRA PREEMPTION OF STATE-LAW TORT CLAIMS
DGR also argues that Count III of Collman’s complaint is preempted by the
IHRA. Enacted in 1979, the IHRA was intended, inter alia, to secure for individuals in
Illinois freedom from unlawful discrimination in connection with employment, real
estate transactions, and availability of public accommodations.
Blount v. Stroud, 904
N.E.2d 1, 6 (Ill. 2009). To accomplish this goal, the IHRA established a comprehensive
system of administrative procedures to review and resolve complaints of civil rights
violations.
Moreover, the IHRA preempts all state law claims “seeking redress for a
‘civil rights violation’ within the meaning” of the IHRA. Krocka v. City of Chicago, 203
F.3d 507, 516 (7th Cir. 2000).
Sexual harassment of an employee by an employer is one of the “civil rights
violations” delineated in the IHRA. The IHRA defines sexual harassment as including
“any unwelcome sexual advances or requests for sexual favors or any conduct of a
sexual nature when … such conduct has the purpose or effect of substantially
interfering with an individual’s work performance or creating an intimidating, hostile
or offensive working environment.”
775 ILCS 5/2-101(E)(West 2010).
Retaliation
against a person who opposes unlawful discrimination is another civil rights violation
under the Act. See 775 ILCS 5/6-101(A).
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Clearly, the IHRA does not preempt all common law tort claims relating to
sexual harassment or retaliation. Blount, 904 N.E.2d at 8-9, citing Geise v. Phoenix Co.
of Chicago, Inc., 639 N.E.2d 1273 (Ill. 1994), and Maksimovic v. Tsogalis, 687 N.E.2d 21
(Ill. 1997). Rather, if an employee’s common law tort claim against her employer is
inextricably linked with a civil rights violation under the IHRA (such as a claim for
sexual harassment), the tort claim is preempted by the IHRA. Blount, 904 N.E.2d at 8.
Accord Schroeder v. RGIS, Inc., 992 N.E.2d 509, 518 (Ill. App. June 11, 2013) (plaintiff’s
IIED claim was “inextricably linked to a civil rights violation,” retaliation he
suffered after reporting his supervisor’s discriminatory conduct toward him, and
thus was preempted by the IHRA); Harrison v. Addington, 955 N.E.2d 700, 708 (Ill
App. 2011) (The IHRA “preempts tort claims only when they are ‘inextricably linked’
to a civil rights violation…. No preemption exists if there is an independent basis for
the action apart from the Human Rights Act.”).
Stated another way, an employee’s common law tort claim is not preempted by
the IHRA if the plaintiff has an independent basis for imposing liability on the
employer (e.g., absent the allegations of sexual harassment).
Id., citing Geise, 639
N.E.2d at 1277. Accord Nelson v. Realty Consulting Services, Inc., 2011 WL 2989565
(7th Cir. 2011)(in unreported decision, Seventh Circuit reiterated that IHRA preempts
state law claims where the basis for the claim arises from a matter covered under the
Act, unless the plaintiff can establish a basis for imposing liability on defendants
independent of the Act).
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So, for instance, state law tort claims for assault, battery, and false imprisonment
were held to be independent of a sexual harassment claim and not preempted by the
IHRA in Maksimovic. See Krocka, 203 F.3d at 517, citing Maksimovic, 687 N.E.2d at 23.
Similarly, the plaintiff’s tortious interference claims were held to be cognizable without
reference to the legal duties created by the IHRA and, thus, not preempted by the
IHRA, in Harrison, 955 N.E.2d at 708.
An instructive opinion to the case sub judice is Naeem v. McKesson Drug Co., 444
F.3d 593 (7th Cir. 2006). In Naeem, the Court of Appeals affirmed the District Court’s
finding that an IIED claim was not preempted. After collecting and discussing district
court cases within the Seventh Circuit which had reached conflicting conclusions as to
preemption of IIED claims, the Court clarified that “the proper inquiry was not whether
the facts that support [plaintiff’s] intentional infliction of emotional distress claim could
also have supported a discrimination claim, but instead whether [plaintiff] can prove
the elements of intentional infliction of emotional distress independent of legal duties
furnished by the IHRA.” Naeem, 444 F.3d at 604.
As outlined above, an Illinois plaintiff can recover damages for IIED if she
establishes (1) the defendant’s conduct was extreme and outrageous, (2) the defendant
intended to inflict severe emotional distress or knew that there was a high probability
his conduct would do so, and (3) the defendant’s conduct did cause severe emotional
distress. The Naeem plaintiff had alleged (and presented the jury proof of) a pattern of
extreme behavior by the defendants which constituted a tort independent of the duty to
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not discriminate against her. “The conduct that she alleges is not just sexually harassing
conduct … but rather behavior that would be a tort no matter what the motives of the
defendant. Therefore, her claim was not preempted by the IHRA.” Naeem, 444 F.3d at
605. Thus, in analyzing IHRA preemption, the court should scrutinize the source of the
legal duty (more than the factual basis) of the plaintiff’s claim. Id. at 603, n.4.
In the instant case, counsel cite divergent cases supporting their opposite
positions on IHRA preemption. As Naeem acknowledges, the reported opinions can be
difficult to reconcile. The Seventh Circuit has held that “discrimination and intentional
infliction of emotional distress are different wrongs,” and torts that do not depend on a
civil rights violation are not preempted. Naeem, 444 F.3d at 604, quoting Sanglap vs.
LaSalle Bank FSB, 345 F.3d 515, 519 (7th Cir. 2003). Ultimately, the distinction between
claims that are preempted and claims that are not preempted lies in the legal duty that the
employer allegedly breached – i.e., whether the defendant’s alleged tort is independent of
any duty to not discriminate against the plaintiff. Naeem, 444 at 604-05.
Most simply put, whether a state law tort claim is preempted by the IHRA
depends on whether the IHRA furnishes the legal duty the defendant allegedly
breached. Bannon v. University of Chicago, 503 F.3d 623, 630 (7th Cir. 2007). Cognizant
that we are at the 12(b)(6) pleading stage in the case at bar, the undersigned asks
whether Collman has alleged the elements of an IIED claim, “independent of legal
duties furnished by the IHRA.” Naeem, 444 F.3d at 604. Examining the complaint and
focusing on the legal duties allegedly breached by DGR, the answer is no.
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For her IIED claim, Collman has alleged sexually harassing conduct – actions
which contravened DGR’s duty, under the IHRA, to not sexually harass its employees.
Count III does not allege that DGR committed any tort independent of this legal duty.
Collman’s IIED allegations plainly implicate DGR’s duty under the IHRA to refrain
from sexually harassing employees or creating a hostile work environment for
employees. Collman’s IIED claim is preempted by the IHRA.
D.
Conclusion
For all these reasons, the Court GRANTS DGR’s motion (Doc. 18) to dismiss
Count III – the IIED claim – for failure to state a claim upon which relief can be granted.
Dismissal of this claim is with prejudice. Because the operative complaint before the
Court contains a Defendant and several claims which have been dismissed, the Court
DIRECTS Collman to file a First Amended Complaint which contains only the
remaining claims and remaining Defendant. The counts shall be numbered with Arabic
numbers (e.g., 1, 2, 3) rather than Roman numerals (e.g., IV, V, VI). Collman must file
her First Amended Complaint no later than October 1, 2013. DGR shall respond to the
amended complaint in the time allotted under Federal Rule of Civil Procedure 15(a)(3).
IT IS SO ORDERED.
DATED September 19, 2013.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge
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