inflict or knowledge of a high degree of probability that conduct
would cause severe emotional distress, and (3) severe emotional
distress in fact. Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill.
1994). The elements of negligent infliction of emotional distress
of a direct victim’ are simply duty, breach, and proximate
causation. Parks v. Kownacki, 737 N.E.2d 287, 296-97 (Ill. 2000).
Mr. Jimenez alleges that his foreman harassed him through assault,
name-calling, use of racial slurs, taunting, and touching, and that
this harassment caused him extreme emotional distress. (Compl. V9
10, 12.) Without knowing the details of the harassment (which Mr.
Jimenez is not required to plead), I am left with the possibility
that the conduct alleged was extreme and outrageous. See
Otterbacher v. Northwestern Univ., 838 F. Supp. 1256, 1262 (N.D
Ill. 1993) (Norgle, J.). Thompson can be liable for intentional
infliction of emotional distress under a theory of respondeat
superior if the foreman committed the alleged harassment within the
scope of his employment. See id. Thompson can be liable for
negligent infliction of emotional distress if it negligently failed
to prevent the intentional infliction of emotional distress by the
foreman. See Arnold v. Pharmaceutica, Inc., 215 F. Supp. 2d 951,

956 (N.D. Ill. 2002) (Gottschall, J.).

1 Illinois distinguishes between negligent infliction of

emotional distress on a direct victim and on a bystander. See,
e.g., Corgan v. Muehling, 574 N.E.2d 602 (Ill. 1991).

4


WL 218958, at *7 (N.D. Ill. Feb. 26, 2001) (Reinhard, J.). Absent
a final order from the IHRC, which Mr. Jimenez fails to allege he
has received, count III must be dismissed.
Counts IV and V: State Law Torts

Thompson argues that Mr. Jimenez’s state law tort claims for
intentional and negligent infliction of emotional distress are
preempted by the IHRA and should be dismissed. In Geise v. Phoenix
Co. of Chicago, 639 N.E.2d 1273 (Ill. 1994), the Illinois Supreme
Court dismissed a plaintiff’s tort claims as preempted by the IHRA
because they were “inextricably linked” to claims of sexual
harassment, over which the IHRC has exclusive jurisdiction. Id. at
$16-17. In that case, the court dismissed claims filed by an
employee against her employer alleging negligent hiring and
retention of a manager who sexually harassed her. The Illinois
Supreme Court later warned that Geise should not be read too
broadly. “The rule from Geise is not that the [IHRA preempts] all
tort claims related to [civil rights violations under the act].”
Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997) (emphasis in
original). Rather, whether a tort claim is preempted “depends upon
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.” Id.

The elements of intentional infliction of emotional distress

are (1) extreme and outrageous conduct by defendant, (2) intent to


These tort claims are not preempted by the IHRA. In
particular, the duty not to intentionally inflict emotional
distress and an employer’s duty to prevent intentional infliction
of emotional distress by its employees derive from common law, not
statutory law. Id. at 955-56. That conduct in violation of these
duties may also constitute harassment under federal or state civil
rights law does not affect the viability of the tort claims
alleging such conduct. Jd. Here, if the action of the foreman in
harassing Mr. Jimenez was extreme and outrageous and constituted
intentional infliction of emotional distress, it would be
irrelevant whether the motive for this harassment (or the motive
behind Thompson’s failure to prevent it) were based on Mr.
Jimenez’s national origin.

Thompson cites Westphal v. City of Chicago, 8 F. Supp. 2d 809
(N.D. I11. 1998), in support of its motion. In Westphal, I held
that plaintiffs’ intentional and negligent infliction of emotional
distress claims were preempted because plaintiffs relied entirely
on defendants’ statutory duty to provide equal employment
opportunities to all employees. Plaintiffs alleged that their
employer discriminated against them on the basis of their
disabilities, and that this discrimination caused extreme emotional
distress. Id. at 812. Westphal would apply to Mr. Jimenez’s
emotional distress claims if they arose solely out of the alleged

discrimination. Mr. Jimenez's emotional distress claims do not


+ Minute Order Form (96/97)

United States District Court, Northern District of Illinois

Name of signed Sue Elaine B. Bucklo Suing ude Other

CASE NUMBER 02 C 6401 DATE 5/22/2003
CASE Jimenez vs. Thompson Stee! Company, Inc.
TITLE

MOTION:

[ln the Fotlowing box (a) indicate the party fiting the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.}

DOCKET ENTRY:

(a) (i) Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Oo Answer brief to motion due___._ Reply to answer brief due

(4) i} Ruling/Hearingon se setfor_— at.

(5) oO Status hearing[held/continued to] [set for/re-set for] on__setfor___at.

(6) oO Pretriat conference[held/continued to] [set for/re-set for]on__setfor___—sat__

(7) a) Trial[set for/ve-set for] on____at

(8) a (Bencl/Jury trial] [Hearing] held/continued to____ at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) CLocal Rule 41.1 CFRCP4 (a1) 0 FRCP4I(a)(2).
(0) =< [Other docket entry} | Enter Memorandum Opinion and Order granting defendant’s motion to
dismiss with respect to count III, and denying with respect to counts IV and V.

ab [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. “ase

Y_ | Notices mailed by judge's staff. MAY 23 9nn
Notified counsel by telephone, ae docketed
Docketing to mail notices. '
Mail AO 450 form. _l ay initials

Copy to judge/magisirate judge.

courtroom
MP) deputy’s
initials

Dale/time received in
aa central Clerk’s Office

ig deputy initials

TUURT



arise solely out of the alleged discrimination, however. They
arise out of the alleged harassment. Mr. Jimenez’s allegations of
harassment form a basis independent of IHRA duties for establishing
his emotional distress claims. Mr. Jimenez’s emotional distress
claims here are not preempted by the IHRA.

Conclusion

Defendant’s Motion to Dismiss is GranTep with respect to count

III, and Denrgp with respect to counts IV and V.

Elaine E. Bucklo
United States District Judge

Dated: May 22, 2003


pang ry &
IN THE UNITED STATES DISTRICT COURT DOCKET EW
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION MAY 23 2003

SALVADOR H. JIMENEZ,
Plaintiff,
v. No. 02 C 6401

THOMPSON STEEL COMPANY, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Salvador Jimenez filed a five count complaint
against defendant Thompson Steel Company, Inc. (“Thompson”)
alleging discrimination and retaliation in violation of Title VII,
42 U.S.C. § 2000e et seg. (counts I and II), discrimination in
violation of the Illinois Human Rights Act, 755 ILCS 5/1-101 et
seq. (“IHRA”) (count III), and intentional and negligent infliction
of emotional distress (counts IV and V). Mr. Jimenez alleges that
he is of Mexican ancestry (Compl. 7 8), and that while employed at
Thompson, non-Mexican employees were promoted ahead of him (Compl.
G 9). In addition, Mr. Jimenez alleges that he was subject to
harassment by his foreman (Compl. @ 10), and that no action was
taken by management, even after it was notified of the harassment
(Compl. §§ 11). Thompson moves to dismiss the IHRA count for
failure to exhaust administrative remedies, and the two emotional

distress counts as preempted by the IHRA. I grant the motion with


respect to count III, and deny the motion with respect to counts IV
and V.
Count III: Illinois Human Rights Act

Thompson argues that Mr. Jimenez’s IHRA claim must be
dismissed because he has failed to exhaust his administrative
remedies under the act. Under Illinois law, the comprehensive
scheme of remedies and administrative procedures of the IHRA is the
exclusive source of redress for alleged violations of the act.
Mein v. Masonite Corp., 485 N.E.2d 312, 315 (Ill. 1985). Courts
have no authority to hear actions for alleged violations of the
THRA. Id. (citing legislative history that the act was designed
“to avoid direct access to the courts”). Judicial participation in
such claims is limited to review of final orders issued by the
Illinois Human Rights Commission (“IHRC”). Flaherty v. Gas
Research Inst., 31 F.3d 451, 458 (7th Cir. 1994) (citing 775 ILCS
5/8-111(A) (1) and Mein, 485 N.E.2d at 314-15).

Mr. Jimenez does not allege that he exhausted his state
administrative remedies and received a final order from the IHRC.
Instead, he argues that his filing of a complaint with the EEOC and
its issuance of a right to sue letter fulfills the exhaustion
requirement. While Mr. Jimenez is correct in noting that the EEOC
and the IHRC have a workshare agreement, a right to sue letter from
the EEOC does not serve as a substitute for a final order from the

IHRC. Ellman v. Woodstock # 200 Sch. Dist., No. 99 C 50017, 2001