charge only if the claim is “like or reasonably related” to the allegations of that charge. Jenkins v.

Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7" Cir. 1976).

Catalan argues that, although she did not check the “Retaliation” box on the EEOC charge
form, her retaliation claim is “reasonably related” to her August 13, 2002 EEOC discrimination
charge and, therefore, should not be dismissed. Catalan correctly points out that claims under Title
VII should not be automatically dismissed based solely on a plaintiff's failure to “check the right
box.” See Noreuil v. Peabody Coal Co., 96 F.3d 254, 259 (7" Cir. 1996). However, in this case,
Catalan not only failed to check the box for retaliation on the EEOC charge form, she also failed to
include any reference to retaliation in the description of her charge. “Retaliation” means “adverse
consequence deliberately attached to the exercise of a right protected by law.” Catalan’s EEOC
charge contains no allegation implying that she “exercised a right protected by law” — e.g.
complained regarding her supervisors’ conduct — or that she suffered an adverse consequence as a
result.'' Under similar circumstances, the Seventh Circuit has consistently held that retaliation
claims and discrimination claims under Title VII are sufficiently dissimilar that — absent allegations
in the charge that imply retaliation — an administrative charge of discrimination will not support a
subsequent civil suit for retaliation. E.g.,O’Rourke v. Continental Cas. Co., 983 F.2494, 97 (7" Cir.
1993); Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 544-45 (7" Cir. 1988); see also Angevine v.

Watersaver Faucet Co., 02 C 8114, 2003 WL 22118927, *8-9 (N.D. Ill. Sept. 12, 2003).

Consequently, the court finds that Catalan’s retaliation claim does not fall within the scope

' Catalan’s allegation in her EEOC charge that other female employees were harassed
and retaliated against is insufficient. Catalan does not allege in the charge that she complained to
Schiele of harassment or that she was retaliated against as a result.

4.



CONCLUSION

For the foregoing reasons, defendants’ respective motions to dismiss are each granted in part
and denied in part. Count I of the Complaint is dismissed with prejudice as to defendants Kontek

and Puglisi, and Count II of the Complaint is dismissed with prejudice as to all defendants.

7

DATE: January 28, 2004 OAN B. GOTTSCHALL
United States District Judge

-7-


Title VI against each defendant (Count II), Intentional Infliction of Emotional Distress against each
defendant (Count III), and Battery against Puglisi (Count IV).

ANALYSIS
I. Catalan’s Title VII Claims Against Kontek (Counts I and II).

Catalan concedes in her response that her former supervisor, Kontek, is not an “employer”
within the meaning of Title VII. (PI. Resp. at 2, n.1.) Since Title VII does not impose individual
liability on an employer's agents, Williams v. Banning, 72 F.3d 552, 553-54 (7" Cir. 1995), the court
finds that Catalan cannot state any facts which would enable her to recover under Title VII against
her individual supervisors. Defendant Kontek’s motion to dismiss Counts I and II of Catalan’s
Complaint is granted. Although defendant Puglisi has not appeared in this case, Catalan’s Title VII

claims against Puglisi are dismissed for the same reason.
IL. Catalan’s Retaliation Claim Against Schiele (Count II).

Defendant Schiele argues that Count II of Catalan’s Complaint (Retaliation) should be

dismissed because the retaliation claim is beyond the scope of her August 13, 2002 EEOC charge.

Before filing suit under Title VII, a plaintiff must file an EEOC charge concerning the alleged
misconduct in an attempt to resolve the dispute without litigation. See Chambers v. American Trans
Air, Inc., 17 F.3d 998, 1003 (7" Cir. 1994). A plaintiff may not litigate a Title VII claim if the
allegations in litigation do not fall within the scope of the EEOC charge. /d. This rule serves two
purposes. It affords an opportunity for the EEOC to settle the dispute between the employee and the
employer and it provides the employer notice of the charges against it. See Babrocky v. Jewel Food

Co., 773 F.2d 857, 863 (7" Cir. 1985). A plaintiff may assert a claim not contained in the EEOC

3-



of her EEOC charge and, therefore, she cannot raise that claim in this litigation. Defendant Schiele’s

motion to dismiss Count II of Catalan’s Complaint is granted.

UI.  Catalan’s Intentional Infliction of Emotional Distress Claims Against Defendants
Schiele and Kontek (Count II).

Defendants Schiele and Kontek argue that Catalan’s ITED claim (Count III) is preempted by
the Illinois Human Rights Act (“IHRA”), 775 ILCS § 5/8-111(C).?. Though defendants do not
directly say so, the court interprets their motions as arguing for the dismissal of Catalan’s claim for
lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). See Porter v. International Profit Assocs., Inc.,

01 C 4427, 2003 WL 22956004, *1 (N.D. Ill. Dec. 11, 2003).

Defendants argue that Catalan's IIED claim is preempted because it arises from the same set
of facts as her Title VII claims. The IHRA states that "[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
than as set forth in this Act." 775 ILCS § 5/8-111(C). The IHRA preempts state law tort claims that
are "inextricably linked" to a civil rights violation. Maksimovic v. Tsogalis, 687 N.E.2d 21, 22 (Ill.
1997). However, the Supreme Court of Illinois has clarified that the proper inquiry in cases like this
is "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 Act itself." /d. at 23. Under this approach, the IRA
will not preempt a tort action where the plaintiff alleges elements of a tort that exist separately from

a cause of action under the IHRA, without referring to the legal duties created by the IHRA. Jd.

2 In its reply brief, defendant Schiele argues, for the first time, that Count III must be
dismissed for the additional reason that Schiele cannot be held liable for its employees’
intentional torts. This court will not address grounds for dismissal raised for the first time in a
reply brief.

5.



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

N: f Assigned Judy Sitting Ji if Other
soe Magistrate Judge Joan B. Gottschall than Assigned Judge
CASE NUMBER 03 C 4934 DATE 1/28/2004
CASE Catalan vs. Schiele Graphics, et al.
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

of the motion being presented.)

q)

MOTION:

DOCKET ENTRY:

@M oa Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due

(3) im} Answer brief to motiondue___. Reply to answer brief due.

(4) Oo Ruling/Hearingon ss setfor_—— sat.

(5) a Status hearing is set for 2/25/04 at 9:30AM.

(6) im Pretrial conference{held/continued to] [set for/re-set for]on____—_—setfor_— at

(7) im Trial[set for/re-set for] ont

(8) im} [Bench/Jury trial] [Hearing] held/continued to at

(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CO Local Rule 41.1 CFRCP41(a)(1) OC FRCP41(a)(2).

(0) +4 [Other docket entry] Enter Memorandum Opinion and Order. Defendant Schiele Graphics’ motion

to dismiss [5-1] is granted in part and denied in part. Defendant John Kontek’s motion to dismiss [4-1]
is granted in part and denied in part. Status set for Wednesday February 25, 2004 at 9:30 AM.

a {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,
€8 req number of notices.

Document
Number

Notices mailed by judge’s staff. ; ane
NAM 29 2aG4
Aiotified counsel by telephone. date docked
Docketing to mail notices
Mail AO 450 form. ese COKE |

Copy to judge/magistrate judge.

courtroom eat :

deputy's

initials =
Date/time received in

central Clerk's Office

nailing deputy initials

ne)



The court finds in this case that Catalan’s IIED claim is not preempted because her tort action
can exist separately from the legal duties created by the INRA. Catalan claims that defendants
committed IIED, acting in an extreme and outrageous manner with intent to cause her severe
emotional harm. The duty not to intentionally and knowingly inflict severe emotional distress on
another derives from the common law and exists quite separately from the statutory prohibitions of
Title VII. The fact that Catalan’s allegations of ITED might also constitute sexual harassment under
state or local laws does not affect the viability of her tort claim for IED. Under the facts of this case,
the court finds that Catalan has alleged sufficient facts to plead a claim for ITED independent of the
legal duties furnished by the IHRA.

Defendants’ respective motions to dismiss Count III are denied.?

> As of this Order, there are no longer any federal claims pending against Kontek and
Puglisi. However, the pendent state law claims relating to the individual defendants share a
common nucleus of operative fact with Catalan’s claims against Schiele. Therefore, for reasons
of judicial efficiency, pendent party jurisdiction will be exercised with regard to Catalan’s IED
claims against the individual defendants. See, e.g., Bustos v. Illinois Inst. of Cosmetology, Inc.,
No. 93 C 5980, 1994 WL 710830, *5 (N.D. Ill. Dec. 15, 1994).

-6-



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED

EASTERN DIVISION JAN 9 9 2004
JOSEPHINE CATALAN, »)
)
Plaintiff, ) Case No. 03-C-4934

v. )
)

SCHIELE GRAPHICS, JOHN KONTEK, and ) Judge Joan B. Gottschall
SAM PUGLISI, )
)
Defendants. )

JAN 29 2004

MEMORANDUM OPINION AND ORDER

Plaintiff Josephine Catalan has brought this action against her former employer, Schiele
Graphics (“Schiele”), and two of her supervisors, alleging violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000¢, e seq., Intentional Infliction of Emotional Distress
(“IED”), and Battery. Defendants Schiele and John Kontek have moved to dismiss parts of
Catalan’s Complaint. For the reasons stated below, defendants’ respective motions to dismiss are
each granted in part and denied in part. Count I of Catalan’s Complaint (Sexual Harassment) is
dismissed as to defendants Kontek and Puglisi, and Count II (Retaliation) is dismissed as to al!

defendants. Defendants’ respective motions to dismiss Count III (ITED) are denied.

BACKGROUND

At all times relevant to her claims, plaintiff Josephine Catalan was employed as a
maintenance worker for defendant Schiele. Catalan alleges that during her employment she was
sexually harassed by her supervisors and that her employment was terminated when she complained

of the harassment to Schiele’s president.

-- | 0)



Specifically, Catalan alleges that, during the first year of her employment, her supervisor,
John Kontek, repeatedly directed sexually offensive remarks at her “while leering at her body,” and
arranged private meetings with Catalan during which he attempted to discuss sexually explicit topics
with her. Catalan claims that when she rejected Kontek’s advances, Kontek forced her to take on
additional tasks at Schiele’s bindery without additional pay.

Catalan alleges that the harassment continued under Kontek’s replacement, defendant Sam
Puglisi. Catalan alleges that Puglisi continually asked Catalan if she “wanted to sit on his lap,” and
that he frequently pinched her breasts and snapped her bra strap. When Catalan confronted Puglisi
regarding his conduct, Puglisi continued to assign her tasks beyond her normally assigned duties and
warned her that she would lose her job if she complained.

Catalan claims that she repeatedly complained to Schiele’s president regarding Kontek’s and
Puglisi’s conduct. She alleges that Schiele did nothing to remedy the harassment and refused to
compensate her for her additional duties. Catalan further alleges that on December 13, 2001, shortly
after she complained of Puglisi’s conduct, Schiele terminated her employment.

On August 13, 2002, Catalan filed a gender discrimination charge with the Equal
Employment Opportunity Commission. The factual narration in her EEOC charge details her
allegations of sex discrimination but makes no express mention of retaliation by Schiele. In filling
out the EEOC charge form, Catalan checked the box indicating a charge of “Sex” discrimination but
did not check the available “Retaliation” box. The EEOC issued a right to sue letter to Catalan on
April 29, 2003.

Catalan has brought four claims based on the allegations in her Complaint: Sexual

Harassment in violation of Title VII against each defendant (Count J), Retaliation in violation of

2-