Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

James F. Holderman Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 4926 DATE 10/15/2012

CASE

TITLE

Papastefan vs. Triad Consulting Services

DOCKET ENTRY TEXT

For the reasons set forth in the Statement section of this order, “Defendant Wallace’s Motion to Dismiss’ [19] is

denied. Plaintiff Papastefan’s Motion for Leave to File Third Amended Complaint [39] though opposed [41] is

granted. Third Amended Complaint to be filed by October 17, 2012. Defendants’ Answers to Third Amended

Complaint are due on or before November 16, 2012. Counsel for all parties are requested to meet pursuant to

Rule 26(f) and jointly file a Form 52 on or before November 20, 2012. This case is set for a report on status and

entry of a scheduling order on November 27, 2012 at 9:00 a.m. The parties are encouraged to discuss settlement.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

In her three-count Second Amended Complaint and her proposed Third Amended Complaint, plaintiff

Zofia Papastefan (“Papastefan”) alleges that her former employer, defendant Triad Consulting Services

(“Triad”), is liable for sexual harassment in violation of Title VII of the Civil Rights Act of 1964 (Count 1)

and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Count II), and that defendant Steve

Wallace (“Wallace”) is liable for intentional infliction of emotional distress (“IIED”) (Count III). Pending

before the court is “Defendant Wallace’s Motion to Dismiss,” (Dkt. No. 19), in which Wallace argues to the

court that Papastefan “has not and cannot plead a claim for IIED.” (Dkt. No. 19 (“Def.’s Mot”) at 2.) 

Background

When ruling on a motion to dismiss, the court accepts the factual allegations set forth in the complaint

as true and draws all reasonable inferences in favor of the plaintiff. Fednav Int'l Ltd. v. Continental Ins. Co.,

624 F.3d 834, 837 (7th Cir. 2010). The following background facts are therefore set forth as alleged in

Papastefan’s Second Amended Complaint. (Dkt. No. 18.)

Triad provides building maintenance services to businesses and government entities. (2d Am. Compl.

¶ 5.) In January 2007, Triad entered into a contract with the City of Chicago Department of General Services

to provide custodial and janitorial services to City of Chicago facilities. (Id. ¶ 6.) 

Papastefan was employed by Triad from January 1, 2007 through February 28, 2011. (Id. ¶ 8.) 

During this time period, Papastefan was assigned to perform custodial and janitorial services at the City Hall

location. (Id. ¶¶ 11, 14.) 

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STATEMENT

Triad did not provide changing rooms for its employees. (Id. ¶ 16.) Plaintiff’s proposed Third

Amended Complaint” amends her allegations to state that Triad did not provide satisfactory changing rooms

for its employees. This proposed change does not materially affect the allegations regarding Wallace.

Wallace, a City of Chicago employee with an office at City Hall, offered Papastefan his office as a

private changing room, and Papastefan used Wallace’s office from time to time for changing into her work

attire. (Id. ¶¶ 12, 15-16.) While Papastefan dressed for work, Wallace secretly took seminude pictures of her

with his cell phone. (Id. ¶ 15.) Papastefan became aware of the pictures in August 2010, when Sarah M.

Hofsommer, a City of Chicago Investigator Specialist from the Inspector General’s Office, “alerted her to the

fact.” (Id. ¶¶ 17, 19.) Papastefan was forced to continue working at the City Hall location for the next six

months, cleaning Wallace’s office on a regular basis, before being suspended from her employment with

Triad on February 28, 2011. (Id. ¶¶ 21-22, 30.) Papastefan “did not welcome Wallace’s harassment and

found it to be horribly offensive.” (Id. ¶ 18.) She was “devastated” when she found out about the seminude

pictures Wallace had taken of her, and “suffered emotional distress as a result of [Wallace’s] actions.” (Id. ¶¶

17, 48.) 

Legal Standard

Rule 8 of the Federal Rules of Civil Procedure requires complaints to include “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In other words,

the complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2008)

(quoting Twombly, 550 U.S. at 570). A complaint is sufficient if it gives “enough details about the

subject-matter of the case to present a story that holds together.” Swanson v. Citibank, 614 F.3d 400, 404

(7th Cir. 2010). On the other hand, a plaintiff “can plead himself out of court by pleading facts that show that

he has no legal claim.” Atkins v. City of Chicago, 631 F.3d 823 (7th Cir. 2011).

The tort of intentional infliction of emotional distress includes the following elements: (1) “the

conduct involved must be truly extreme and outrageous”; (2) “the actor must either intend that his conduct

inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause

severe emotional distress,” and (3) “the conduct must in fact cause severe emotional distress.” McGrath v.

Fahey, 533 N.E.2d 806, 809 (1988) (emphasis in original).

Analysis

For the most part, Wallace’s arguments are based on details not included in the Second Amended

Complaint, including the size of Wallace’s office, that Wallace’s office was shared by other individuals, that

Papastefan changed in Wallace’s office during business hours, and that Wallace’s office was “unlocked and

unguarded.” (Def.’s Mot. at 2-3.) Wallace’s argument that Papastefan did not enjoy a reasonable

expectation of privacy under these circumstances therefore exceeds the proper focus of a motion to dismiss. 

See Fed. R. Civ. P. 12(d).

Wallace’s only remaining argument is that “Plaintiff will never be able to allege that [Wallace] took

the pictures, let alone disseminated the pictures, with the intent to inflict severe emotional distress,” because

“there is no evidence that Defendant Wallace’s conduct was intended to reach the Plaintiff.” (Def.’s Mot. at

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STATEMENT

3; Dkt. No. 38 (“Def.’s Reply”) at 4.) In other words, because Wallace did not intend to get caught, he

lacked the requisite mens rea to support Papastefan’s IIED claim. This argument, too, depends on

development of the factual record. Papastefan has alleged that Wallace knew that his actions “had a high

probability of causing Plaintiff severe emotional distress.” (2d Am. Compl. ¶ 46.) Whether Wallace’s

actions in taking the pictures lead to a high probability of causing Papastefan severe emotional distress, and

whether Wallace knew about this likely result, depends entirely upon the circumstances under which Wallace

took the pictures and what he did with the pictures after taking them. The argument now raised by Wallace is

better addressed at the conclusion of fact discovery, when the court and the parties will have the benefit of a

fully-developed record. 

Conclusion

At this stage of the litigation, accepting the allegations of Papastefan’s Second Amended Complaint

as true, the court finds that Papastefan has alleged a plausible right to relief on her claim for intentional

infliction of emotional distress. Accordingly, Wallace’s motion to dismiss (Dkt. No. 19) is denied. 

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