In Figueroa, this court found plaintiff's emotional distress claims were not preempted by the
IHRA because she alleged the elements of that tort without any reference to the legal duties created
by the Act. Figueroa, 1999 WL 163022, at *10-11. Specifically, the plaintiff alleged that
defendants repeatedly made unwanted sexual advances to her and suggestive comments about her
and her husband, with adverse consequences if she reported the conduct. The court held these
actions independently stated a claim for emotional distress, and the fact that they also gave rise to
a civil rights violation did not deprive the court of subject matter jurisdiction. Jd. However, a
number of the emotional distress counts were based on the failure of the employer to take corrective
action after plaintiff reported the sexual harassment. The court found those claims were only
actionable by virtue of the legal duties created by the HRA. Accordingly, the court held it lacked
subject matter jurisdiction as to those counts. /d. at *11.

Similarly, in Rapier v. Ford Motor Co., 49 F. Supp.2d 1078, 1080 (N.D. Ill. 1999), the court
found a claim of emotional distress based on incidents of unwanted touching by an employer
constituted a common law tort independent of civil rights law. Moreover, in Fondrliak, 1999 WL
51804, at *4-5, the court held an employer’s sexual attack by restraining an employee against her
will and kissing her without consent constituted an independent claim of emotional distress. Those
allegations were not inextricably intertwined with sexual harassment law and were not prempted by
the IHRA. See also Maksimovic, 177 Ill.2d at 514, 687 N.E.2d at 22 (assault claim was not
preempted where plaintiff was threatened with forced sex, and defendant made comments about her
breasts.)

Figueroa, Rapier and Fondrliak are factually analgous to this case. Adan alleges the

individual defendants “repeatedly and continuously subjected plaintiff to unwelcome sexual


607 N.E.2d 201, 211 (1992).

The individual defendants claim Adan fails to sufficiently plead extreme and outrageous
conduct and severe emotional distress. A complaint need only state “a short and plain statement of
the claim showing that the pleader is entitled to relief” to be sufficient. Fed. R. Civ. P. 12(b)(6).
Emotional distress claims under Illinois law are subject to federal notice pleading requirements. See
Cook v. Winfrey, 141 F.3d 322, 331 (7th Cir. 1998).

In Ruich v. Ruff, Weidenaar & Reidy, Ltd, 837 F. Supp. 881, 885 (N.D. Ill. 1993), the court
denied a motion to dismiss where the plaintiff pleaded allegations of lewd remarks and periodic
sexual touching as extreme and outrageous conduct. The court could not conclude on a motion to
dismiss that the plaintiff would be unable to prove sufficient facts to support her claim. Ruich is
instructive. In Counts I, IV, and V, Adan states from November 1999 to April 2000, she was
repeatedly and continuously subjected to unwelcomed sexual advances, unwelcomed comments
containing sexual innuendos, and repeated requests and propositions for sexual behavior. She also
alleges she suffered “great emotional distress, anxiety and humiliation.” Cmpt. Ct. Il at 6, Ct. IV
at 16, Ct. V at 6. Defendants fail to establish that Adan would be unable to prove sufficient facts
to support her emotional distress claims. The sexual innuendos, comments, and advances could have
been so egregious that they exceeded bounds of decency, Butzen v. American Farm Bureau, 00 C
1145, 2001 WL 128140, at *2 (ND. Ill. Feb 9, 2001); Nance v. Vieregge, 147 F.3d 589, 590 (7th
Cir. 1998), At the very least, Adan’s allegations of unwelcomed sexual comments and requests are
more than mere insults or annoyances.

Adan has given sufficient notice to the individual defendants by naming them in the

complaint, alleging the incidents causing her emotional distress, and stating that each defendant


than as set forth in this Act.” 775 ILCS § 5/8-111(C). Sexual harassment is included under the
JHRA’s definition of a “civil rights violation.” 775 ILCS 5/2-102(D). The Act defines sexual
harassment as

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.
715 ILCS 5/2-101(E) (West 1994).

The Illinois Supreme Court has held that “whether [a court] may exercise jurisdiction over
a tort claim depends on whether the tort claim is inextricably linked to a civil rights violation such
that there is no independent basis for the action apart from the [IHRA] itself.” Maksimovic v.
Tsogalis, 177 Ill.2d 511, 517, 687 N.E.2d 21, 23 (1997). If the tort claim is inextricably linked, the
claim must be litigated before the Illinois Human Rights Commission. Maksimovic, 177 Ill.2d at
518, 687 N.E.2d at 24. However, if a plaintiff alleges facts sufficient to establish the elements of
a tort without reference to the legal duties created by the IHRA, she establishes a basis for imposing
liability independent of the IHRA. Maksimovic, 177 Ill.2d at 517, 687 N.E.2d at 23; Fordrliak v.
Commonwealth Edison, No. 98 C 5985, 1999 WL 51804, at *4 (N.D. Ill. Jan. 29, 1999); Warnell v.
Ford Motor Co., 48 F.Supp.2d 1095, 1097 (N.D. Il. 1999). In that situation, the tort claims are not
inextricably linked to a civil rights violation, and courts have jurisdiction over the claim. Figueroa
v. City of Chicago, No. 97 C 8861, 1999 WL 163022, at *10 (N.D. Ill. Jan. 29, 1999). Notably, the
Illinois Supreme Court’s decision in Maksimovic refined the prior test set out in Geise v. Phoenix
Co. of Chicago, 159 I1.2d 507, 639 N.E.2d 1273 (1994), and rejected the argument that tort claims

were preempted by the IHRA merely because they were factually related to incidents of sexual

harassment. Maksimovic, 177 Ill.2d at 516, 687 N.E.2d at 23.

3


advances; subjected plaintiff to unwelcome comments containing sexual innuendos; and subjected
plaintiff to repeated requests and propositions for sexual behavior.” Cmpt. Ct. II at §3, Ct. IV at |
3, Ct. V at 93. Adan further alleges the individual defendants’ conduct was extreme and outrageous,
and she suffered emotional distress. Adan sufficiently pleads emotional distress on an independent
basis without alleging any legal duties created by the IHRA. She claims emotional distress because
of unwanted sexual innuendos and comments from co-workers. The fact that the conduct occurred
in the workplace does not change the nature of the claim as long as Adan adequately satisfies the
elements of emotional distress. Adan does not contend the individual defendants interfered with her
work performance or created a hostile work environment and thereby caused her emotional distress."
Figueroa, 1999 WL 163022, at *10; ef Schwartz v. Home Depot, No. 00 C 5282, 2000 WL
1780245, at *4 (N.D. Ill. Dec. 4, 2000) (where emotional distress count was based on retaliation,
failure to promote and discrimination, claim was inextricably intertwined with legal duties created
by IHRA). Rather, Adan’s emotional distress counts sound solely in common law tort and are
actionable without reliance on any civil rights statute.

The individual defendants urge this court to rely on Smith v. Chicago School Reform Board
of Trustees, 165 F.3d 1142 (7th Cir. 1999), In Smith, the plaintiffs’ emotional distress claims were
preempted because “she had pitched her entire case on the theory that she is a victim of racial
harassment and retaliation[.]” The court held the plaintiff's state-law theories sounded primarily in
racial discrimination and were not independent of civil rights law. Id. However, the “court [in

Smith} does not discuss the details of the plaintiff's emotional distress claim other than to say that

' These allegations, however, are part of her charge of discrimination submitted to the
Illinois Human Rights Commission and EEOC. See Def. Ex. A.

5


knew those incidents would cause emotional distress. Jackson v. Marion County, 66 F.3d 151, 153
(7th Cir. 1995) (plaintiffs may plead conclusions so long as defendants are provided minimum notice

of claims), Accordingly, Adan has satisfied the notice pleading requirements of Rule 12(b)(6).

CONCLUSION

The motion to dismiss as to Counts II, IV, and V is denied.

August 17, 2001 ENTER:

Suzanne(B. Conlon
United States District Judge


oe

4 Minute Ofer Form (06/97)

United States District Court, Northern District of Mlinois

Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
$B deputy's

Name of Assigned Judge Ze Sitting Judge if Other
or Magistrate Judge Suzanne B. Conlon than “Assigned Sudge
CASE NUMBER 01 C 3966 DATE 8/17/2001
CASE MARCIA ADAN vs. SOLO CUP, INC., JUAN VILLANUEVA, RONALD UDCHITZ
TITLE and ANTONIO GONZALEZ
Tin the following box (a) indicate the party filing the motion, c.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) o Answer brief to motion due_ . Reply to answer brief due.
(4) oO Ruling/Hearing on__set for at
(5) oa Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) ao Trial[set for/re-set for] on
(8) Oo (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) (General Rule21 CIFRCP41(a)(1) CFRCP41(@)(2).
ao {Other docket entry] The individual defendants’ motion to dismiss [9-1] as to Counts II, IV and V
is denied. Defendants Udchitz and Gonzalez are ordered to answer the complaint by 8/28/01. ENTER
MEMORANDUM OPINION AND ORDER.
¢ gga (2. Orbe
qi) [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required smber of aves
V__| Notices maited by judge’s staff.

AUG 21 200),

initials

Date/time received in
central Clerk’s Office

3



racial discrimination was the core of her theory.” Rapier, 49 F.Supp.2d at 1080; see also Warnell
y. Ford Motor Co., 48 F.Supp.2d 1095, 1097 (N.D. Ill. 1999) (declining to rely on Smith because it
did not discuss plaintiff's emotional distress claim). Therefore, Smith does not assist the court in its
analysis. Similarly, the individual defendants’ reliance on Krocka v. City of Chicago, 203 F.3d 507
(7th Cir. 2000) is inapposite because plaintiff's emotional distress claim in Krocka was based on
comments about his mental condition that “were only offensive to the extent they referred to
[plaintiff's] disability.” Krocka, 203 F.3d at 516-17; see also Bruce v. South Stinkey Sanitary
District, 01 C 3578, 2001 WL 789225, at *4 (N.D. Tl. July 12, 2001) (noting that since Maksimovic,
courts have generally not found emotional distress claims with underlying sexual harassment
preempted by IHRA).

Adan’s emotional distress claims sufficiently allege an independent violation of common law
tort. Accordingly, the court has subject matter jurisdiction over Counts Il, IV, and V.
I. Failure to State a Claim

The individual defendants assert that Adan fails to state a claim for emotional distress. To
establish a prima facie case, Adan must allege (1) defendants engaged in extreme and outrageous
conduct; (2) defendants knew or should have known their conduct would cause severe emotional
distress; and (3) the conduct caused Adan severe emotional distress. McGrath v. Fahey, 126 1.2d
78, 86, 633 N.E.2d 806, 809 (1998). To establish extreme and outrageous conduct, Adan must allege
more than “mere insult, indignities, threats, annoyances, petty oppression or trivialities.” Public
Finance Corp. v. Davis, 66 Ill.2d 85, 89, 360 N.E.2d 765, 767 (1997). “Rather, the nature of the
defendant’s conduct must be so extreme as to go beyond all possible bounds of decency, and to be

regarded as intolerable in a civilized community.” Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1,21,


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

EASTERN DIVISION
MARCIA ADAN )
)
Plaintiff, ) No. 01 C3966
)
v. ) Suzanne B. Conlon, Judge

)

SOLO CUP, INC., JUAN VILLANUEVA, )
RONALD UDCHITZ and )
ANTONIO GONZALEZ )
Defendants. )

DockeTED
AUG 21 2001
MEMORANDUM OPINION AND ORDER

MEMORANDUM OPINION AND ORDES.

Marcia Adan filed a five-count complaint against Solo Cup, Inc., Juan Villanueva, Ronald
Udchitz, and Antonio Gonzalez for civil rights violations pursuant to Title VII of the Civil Rights
Act of 1964 (Count J), intentional infliction of emotional distress (“emotional distress”) against
Villanueva, Udchitz, and Gonzalez (“individual defendants”) (Counts Il, [V, and V), and assault
(Count III). The individual defendants move to dismiss Counts II, IV, and V on grounds that the
court lacks subject matter jurisdiction because the emotional distress counts are preempted by the
Illinois Human Rights Act and that the complaint fails to state a claim upon which relief can be
granted.

BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the

complaint as true. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428

(7th Cir. 1996). Adan was employed by Solo Cup, Co. as a machine operator from March 30, 1998

1


to April 2000. Complaint (“Cmpt.”) Count (“Ct.”) Tat | 6. From November 1999 to April 2000,
Adan asserts the individual defendants “repeatedly and continuously subjected plaintiff to
unwelcome sexual advances; subjected plaintiff to unwelcome comments containing sexual
innuendos; and subjected plaintiff to repeated requests and propositions for sexual behavior.” Jd.
Ct. Tat 3, Ct. IV at | 3, Ct. V at] 3. Adan filed a charge of sexual harassment with the Illinois
Department of Human Rights and the Equal Employment Opportunity Commission (“EEOC”). The
EEOC subsequently issued a right to sue letter.
DISCUSSION

I. Standard of Review

Inruling on a motion to dismiss, the court considers “whether relief is possible under any set
of facts that could be established consistent with the allegations.” Pokuta v. Trans World Airlines,
Inc., 191 F.3d 834, 839 (7th Cir. 1999) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A
claim may not be dismissed if there is a set of facts that, if proven, would entitle a plaintiff to relief.
Travel All Over the World, 73 F.3d at 1430. A motion to dismiss tests the sufficiency of the
complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).
However, a court is not required to accept conclusory allegations as true. Baxter v. Vigo County Sch.
Corp., 26 F.3d 728, 730 (7th Cir. 1994).
I. Preemption by the Illinois Human Rights Act

The individual defendants argue Adan’s common law tort claims of emotional distress should
be dismissed for lack of subject matter jurisdiction because they are preempted by the Illinois Human
Rights Act (“IHRA” or “the Act”). Pursuant to the IHRA, “[e]xcept as otherwise provided by law,

no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other