community.” Honaker, 256 F.3d at 490.

Itis clear, for example, that the degree of power or authority which a defendant has

over a plaintiffcan impact upon whether that defendant’s conduct is outrageous. The

more control which a defendant has over the 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.
McGrath, 126 Ill. 2dat 86-87. Additionally, behavior may be considered outrageous if the defendant
knows that the plaintiff is peculiarly susceptible to emotional distress. McGrath, 1226 Ill. 2d at 89.

Count II alleges that: (1) Piano “engaged in extreme and outrageous conduct in subjecting
Plaintiff to an overt, unbridled, and malicious course of conduct designed to psychologically and
emotionally abuse Plaintiff’; (2) Piano “intended to cause Plaintiff emotional distress when he
subjected Plaintiff to the effects of his severely disparaging, humiliating, and abusive treatment at
the dealership”; (3) Piano “possessed the authority to set policy, goals, and objectives for Infiniti”;
(4) Piano “intentionally inflicted, as well as commanded, and expressly authorized his subordinates
«-+, to subject Plaintiff to psychologically abusive tirades in front of coworkers and customers, and
to purposefully abusive and contradictory commands and directives which were designed to have
the effect of debilitating Plaintiff in her day to day [sic] functioning at the dealership”; (5) Piano
directed abusive and profane language at Plaintiff in front of her coworkers and customers; (6) Piano
knew that Plaintiff would suffer severe emotional distress and severe physical injury due to his
conduct; and (7) Plaintiff suffered and continues to suffer extreme emotional, physical and
psychological distress as a result of Piano’s conduct, including causing her to “question the most

mundane and habitual aspects of her responsibilities” and “debilitating Plaintiff in her day to day

functioning at the dealership.” (Compl. J 23-30.) Count III is also pled against Infiniti under a



duties. Additionally, Plaintiff was also expected to perform the responsibilities of the dealership’s
porter, whose job it was to transport cars to other dealerships. None of the male sales consultants
were required to perform these additional tasks. Plaintiff was also not allowed to determine pricing
on automobiles although male sales consultants were allowed to do so.

Piano also commanded and authorized his subordinates to subject Plaintiff to psychologically
abusive tirades in front of coworkers and customers and to abusive and contradictory commands and
directives which were designed to have the effect of debilitating Plaintiff in her daily functioning at
the dealership. Piano himself harassed Plaintiff in front of her coworkers and customers using
profane language. This conduct caused Plaintiff to suffer severe emotional, psychological and
physical trauma.

DISCUSSION

Infiniti and Piano move to dismiss Count III, a claim for intentional infliction of emotional
distress (“TIED”), arguing that the conduct alleged is not sufficiently extreme or outrageous to state
aclaim for IED.

To state a claim for IED under Illinois law, a plaintiff must plead that (1) the defendant’s
conduct is truly extreme and outrageous, (2) the defendant “either intend[s] 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 defendant’s conduct does in fact cause severe emotional
distress. Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001). “[T]he tort does not extend to ‘mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities."” McGrath v. Fahey,
126 Ill. 2d 78, 86 (1988) (quoting Restatement (Second) of Torts § 46, cmt. d (1965)). “(T]he

conduct must go beyond all bounds of decency and be considered intolerable in a civilized

3-



theory of respondeat superior liability.

The allegations in the complaint adequately plead a claim of HED. In reviewing a motion
to dismiss, the court reviews all facts alleged in the complaint and any inferences reasonably drawn
therefrom in the light most favorable to the plaintiff. See Marshall-Mosby v. Corporate Receivables,
Inc., 205 F.3d 323, 326 (7th Cir. 2000). The allegations in the complaint reasonably support the
inference that Piano’s conduct was extreme and outrageous. Here, Piano, Plaintiff's boss, directed
abusive and profane language at Plaintiff and authorized his subordinates to do so as well. The
complaint also alleges that one of Plaintiff's coworkers called Plaintiff a “cunt” and threatened her
employment with Infiniti. These allegations reasonably plead by inference that Piano’s “conduct
[went] beyond all bounds of decency and [would] be considered intolerable in a civilized
community.” Honaker, 256 F.3d at 490. Furthermore, the complaint alleges that Piano knew or
intended that his conduct would inflict severe emotional distress on Plaintiff. Moreover, the
allegations in the complaint reasonably support the inference that Piano’s conduct caused Plaintiff
to suffer severe emotional, psychological and physical trauma. The complaint alleges that, among
other things, Piano’s conduct impaired her ability to function at work.

Finally, Piano and Infiniti’s argument that “Plaintiff fails to meet the pleading requirements”
for HED under Illinois law because she has not pled sufficient facts is meritless. A complaint is only
required to put the defendant on notice of the claims against him. Toth v. USX' Corp., 883 F.2d 1297,
1298 (7th Cir. 1989). A complaint will be dismissed only if it appears beyond doubt that Plaintiff
can prove no set of facts to support the allegations in her claim. Strasburger, 143 F.3d at 359. Here,
it does not appear that Plaintiff can prove no set of facts to support the allegations in her claim. The

Court can imagine some set of facts in which Piano’s and Plaintiff's coworkers’ abusive and profane

5.



+

\ © Minute Ordar Form (06997)

United States District Court, Northern District of Mlinois

Name of Assigned Jud Sitting Judge if Oth
yy Magistrate Judge Jobn W. Darrah than Astigned Judge
CASE NUMBER 02 C 3000 DATE 10/2/2002
CASE GIGI KAMBEROS vs. INFINITI OF ORLAND PARK, INC.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) im) Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due :
(4) o Ruling/Hearing on set for at
(5) Oo Status hearing(held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) o Trial[set for/re-set for] on at
(8) Q {Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OlLocal Rule 41.1 CFRCP41(a)(1) OFRCP41(a)(2).
(io) =m [Other docket entry} Status held and continued to 10/16/02 at 9:00 a.m. Enter Memorandum
Opinion And Order. Infiniti and Piano’s motion to dismiss count II is denied.
(i1) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.
Notices mailed by judge's staff.
Notified counsel by telephone.
eo | Docketing to mail notices,
Mail AO 450 form. LYNOD Lo") S10 °S
Copy to judge/magistrate judge. ‘ q
06:9 Nd o- L004
courtroom
le deputy’ sp eS
inlials gio id
Date/time received in
central Clerk's Office
— — she tre



qe

language and conduct caused Plaintiff severe emotional distress that would establish her claim for
TED. Therefore, Infiniti and Piano’s motion to dismiss is denied.

CONCLUSION

For the reasons stated above, Infiniti and Piano’s Motion tg Dismiss Count III is denied.

IT IS SO ORDERED.

Dat QUrhu 4,200

W. Darrah, Judge
Unifed States District Court



—————————

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
GIGI KAMBEROS, )
) Case No. 02 C 3000
Plaintiff, )
) Honorable John W. Darrah
v. )
)
INFINITI OF ORLAND PARK, INC; )
CHARLES PIANO, individually; and —_)
FRANK MECCIA, individually, ) Uy,
) cy Ney
Defendants. ) oO ty
OG,
MEMORAND ON AND ORDER e

Plaintiff, Gigi Kamberos (“Plaintiff”), filed a four-count complaint against Defendants,
Infiniti of Orland Park, Inc. (“Infiniti”), Charles Piano (“Piano”), and Frank Meccia (“Meccia”),
alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 20006 et
seq., aS well as state law claims for intentional infliction of emotional distress and assault and
battery. Defendants Infiniti and Piano move, pursuant to Federal Rule of Civil Procedure 12)(6),
to dismiss Count III for failure to state a claim upon which relief can be granted. For the reasons that
follow, Infiniti and Piano’s motion to dismiss is denied.

LEGAL STANDARD

When considering a motion to dismiss, well-pleaded allegations in the complaint are accepted
as true, Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319 (7th Cir. 1997). Any ambiguities
in the complaint are construed in favor of the plaintiff. Kelly v. Crosfield Catalysts, 135 F.3d 1202,
1205 (7th Cir. 1998). Dismissal is proper only when it appears beyond doubt that Plaintiff can prove

no set of facts to support the allegations in his or her claim. Strasburger v. Board of Education, 143

-1-



oe

F.3d 351, 359 (7th Cir. 1998).

“Although the Federal Rules of Civil Procedure do not require a plaintiff ‘to set out in detail
the facts upon which he bases his claim,’. . . he must ‘set out sufficient factual matter to outline the
elements of his cause of action or claim, proof of which is essential to his recovery.”” Benson v.
Cady, 761 F.2d 335, 338 (7th Cir. 1985) (internal citation omitted). A complaint will not avoid
dismissal if it contains “bare legal conclusions” absent facts outlining the basis of the claims.

Perkins v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991).

BACKGROUND

For purposes of this motion to dismiss, the following allegations are taken as true.

On or about August 2000, Plaintiff was hired as a sales consultant by Infiniti. The majority
of Infiniti’s sales consultants were male. In 2001, Plaintiff was certified as a Certified Infiniti Sales
Consultant. In February 2001, she received recognition as a “Leader” in sales and customer care for
scoring 93.5 or better in the Infiniti Purchase Index. She was also rated 97.4 on Infiniti Motor’s
Customer Service Report.

While she was employed at Infiniti, Plaintiff was subjected to offensive, threatening and
derogatory behavior by her coworkers, including being called a “cunt”, being told that she would be
out of Infiniti by the weekend, and being told by the Used Cars Manager on numerous occasions that
Plaintiff and “Broads don’t belong in the car business”. When Plaintiff complained to Piano, the
owner of Infiniti, and her direct supervisor, Meccia, no action was taken to address the offensive,
threatening and derogatory behavior. Piano and Meccia also demeaned and harassed Plaintiff by
demanding that she answer the telephones and make the coffee despite the fact that these were not

part of her duties as a sales consultant and interfered with her ability to perform her sales consultant

-2-