that there was an adverse employment action, observing that “the provision regarding retaliation
may intentionally be broadcr, since it is obvious that cffective retaliation against employment
discrimination need not take the form of a job action.” /d. at 745 (citing McDonnell v. Cisneros,
84 F.3d 256, 259 (7" Cir. 1996)).

Moreover, permitting claims of retaliation based on post-termination events irrespective
of whether those events have a nexus to the plaintiff's employment furthers the purpose of the
anti-retaliation provision in Title VII. In Robinson, the Supreme Court concluded that §704(a)
pertained to former employees because the “primary purpose” of the provision was to
“[maintain] unfettered access to statutory remedial mechanisms.” Robinson, 519 U.S. at 346.
“The individuals most likely to opposc unlawful discharges, and to file charges sccking relief,
are the discharged employees themselves.” Veprinsky, 87 F.3d at 890, Allowing discharged
(and constructively discharged) employees to suc for retaliation based on post-termination events
removes possible impediments to the discharged employee's access to Title VII’s remedial
mechanisms and provides a deterrent to employers who may want to interfere with the
employee’s pursuit of a Title VII claim.

Finally, LCS argues that an exercise of its right to bring a civil suit cannot be deemed
retaliation under the law. The standard to distinguish between inconsequential acts of retaliation
and those which are sufficient under Title VII remains uncertain. However, in this case,
comparison to what constitutes an adverse employment action may aid in determining whether
an employer’s conduct is retaliatory. ln Berry v. Stevinson Chevrolet, 74 F.3d 980 (10" Cir.
1996), the Tenth Circuit held that criminal theft and forgery charges instigated by the cmployer
constituted adverse action and have rise to a valid claim of retaliation. /d. at 986-88. See

Herrnreiter, 315 F.3d at 745 (citing Berry with approval). The court viewed the charges of fraud

4



5/8-111 (C), Kacprowski v. Advanced Reproductive Health Ctr., No. 00 C 7884, 2001 WL
717483 (N.D, Ill. June 22, 2001); see also Jaslowski v. Cellco Partnership, No. 02 C 3601, 2002
WL 31085092 (N.D. Tll. Sept. 17, 2002). Specifically, “common law claims are preempted if’
they are based entirely upon legal obligations and prohibitions that exist as a matter of Illinois
law only under [the IHRA] and have no other independent foundation.” Bartoli v. Applebee's
Restaurant, N. 00 C 5954, 2001 WT. 40798, *2 (N.D. Tl. Jan 17, 2001). However, the HRA
was not intended to preempt all common law actions simply because they may be factually
related to sexual harassment or prohibited discrimination, Maksimovie v. Tsogalis, 177 IL.2d
511, 518, 687 N.E.2d 21, 23 (1997).

In this case, Ishkhanian’s claim for negligent retention does not rely entirely on nights
established by thc IHRA, but is instead predicated on an independent common law duty to
protect an cmployee from assault and battery, Even though the assault and battery might also be
part of a claim of sexual harassment, the claim has a foundation separate from the THRA and
thus is not preempted.

Conclusion
For the reasons stated above, the Court denies defendants’ motion to dismiss Counts 3, 8,

9, and 12. Defendants are ordered to answer those claims within 7 days of this order.

MATTHEW F. KENNELL
United States District Judg'
Date: June 25, 2003



oa

Title VII makes it illegal for an employcr to retaliate against an employee for making a
complaint of discrimination. 42 U.S.C. §2000e-3(a). In Robinson v. Shell Oil Co., 519 U.S. 337
(1997), the Supreme Court upheld an expansive reading of the term “employee” in the statute,
finding that former employces are also protected from retaliatory actions by employers, LCS
argues, however, that post-termination retaliation is actionable only if it adversely affects the
plaintiff's employment opportunities or has a nexus to employment.

In Veprinsky v. Flour Daniel, 87 F.3d 881 (7" Cir. 1996), a pre-Robinson decision, the
Seventh Circuit held that an cmployee can sue for retaliation under Title VII based on post-
(ermination acts “that impinge[ ] on their future cmployment prospects or otherwise [have] a
nexus to employment.” Jd. at 891, LCS argues that its filing ofa civil suit against Ishkhanian
docs not meet the Veprinsky test.

Even if Veprinsky were read to require impact on job prospects or a nexus to employment
as a prerequisite 1o a post-termination retaliation claim, dismissal of Ishkhanian’s claim would
be improper, as we are cannot say (as we would have to in order to grant the motion to dismiss)
that being sued civilly for fraud could not possibly have an impact on Ishkhanian’s employment
prospects. But in fact Veprinsky does not squarely hold that a nexus to employment is always
required. Furthermore, the Seventh Circuit’s subsequent decisions suggest that no such
requirement exists, In Aviles v. Cornell Forge Co., 183 F.3d 598 (7" Cir. 1999), ihe Seventh
Circuit emphasized that an cmployee’s pre-termination, retaliation claim need not be based on
actions that “lake the form of a job action.” /d. at 605. The court noted that non job-related
retaliatory actions by employers may have the effect of hindcring employees from filing Title
Vil charges. Jd. More recently, in Herrnreiter v, Chicago Housing Authority, 315 F.3d 742 (7"

Cir, 2002), the Seventh Circuit held that retaliation claims do not require the plaintiff to establish

3



and thefl as significant because of thc public humiliation, damage to reputation, and potential
harm to future employment prospects. Jd. at 986. In this case, Ishkhanian faced civil claims that
risked damaging her reputation and affecting adversely her prospects for future employment. In
addition, the economic impact of being sucd civilly could also be considered a having a
significant chilling effect on filing or continuing to pursue charges with the EEOC. For these
teasons, we cannot say that LCS’ filing of a civil suit fails to constitute retaliation as a matter of
law.

In sum, Ishkhanian has satisfied the pleading requirements of the Federal Rules by
alleging that she had engaged in a protected activity and was retaliated against by LCS, her
former employer, for that activity.

2. Counts 8 and 9

In Counts 8 and 9, Ishkhanian asserts claims of battcry and assault against LCS, alleging
that on iwo scparate occasions Tcheupdjian intentionally and willfully accosted her and caused
her great fear and apprehension of offensive bodily contact, In the amended complaint,
Ishkhanian alleges that Tchcupdjian acted within the scope of his employment, thus rendering
LCS liable under the doctrine of respondeat superior. LCS argues that these claims should be
dismissed since Tcheupdjian’s alleged sexual misconduct was “not in furtherance of LCS’s
business, [was] beyond the scope of any employment duties, and do not create respondeat

superior liability,” Defendant’s Motion to Dismiss, p. 10.

Tn response, Ishkhanian docs not argue the respondeat superior theory and thus has
essentially conceded the point. She argues, however, that LCS may be held liable for
Tcheupdjian’s actions on an alter ego theory based on the complaint’s allegations involving his

ownership and control of LCS. The llinois Supreme Court has recognized a common law cause

5



Minute Order For (09/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; Sitting Judge if Oth
rar Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 02 C 9339 DATE 6/25/2003
CASE Tshkhanian vs. Forrester Clinic
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 (he motion being presented.)

MOTION:

DOCKET ENTRY:

qd) og Filed motion of | use listing in “Motion” box above. |

(2) o Brief in support of motion duc

(3) Oo Answer brief to motiondue___. Reply to answer briefdue___.

(4) 6 Ruling/Hesringon set for at.

(5) QO Status hearing[held/continued to] [set for/re-set for]on___—sset fort __.
(6) q Pretrial conference(held/continued to] [set for/re-set for]on___ssetfor__ se al_
(7) o Trial[set for/re-set for] on__—at__

(8) go [Bench/Jury trial] [Hearing] held/continucd tos at__

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

CFRCP4(m) (Cl Local Rule 41.1 COFRCP41(a(1) OO FRCP41(a)(2).

qo) ol” [Other docket entry] For the reasons set forth on the attached order, the Court denies defendants’
motion to dismiss Counts 3, 8, 9, and 12. Defendants are ordered to answer those claims within 7 days
of this order,

(al) @ [For further detail see order attached to the original minute order.]

No natiges required, advised in open court, yi ‘Dedument

Nuiber

No notices required,

unber af notices
Notices mailed by judge's staf.
SUN 3 0 7603

date docket

Notified counsel hy telephone

Y | Docketing to mail notices.

Mail AC) 450 form. ducketing deputy initials

Copy 10 judge/magistrate judge.

date mailed notice

courtroom ane et
ORG deputy's ahi ve ag a by
ininals

Date/time receiyed-ity \ 4
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of action against an employer for situations in which an alter ego of the cmployer intentionally
inflicts injuries upon an cmployce. Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 464, 564
N.E.2d 1222, 1226 (1990); see also Torreto v. IB. Diffusion L.P., No. 92 C 2758, 1995 WL
767315 (N.D. Ill. Dec. 26, 1995). Ishkhanian’s complaint contains allegations sufficient to state
aclaim against LCS on an alter cgo theory. She alleges that Tcheupdjian is the owner and a
principal in the company. She also claims that he said, “I am the king, if anything happens to
me, you, you everyone wil] be out ofa job, you arc nothing without me.” Second Am. Cpt. 4/8,
18. In instances where a corporation’s authorities and powers are delegated to managers,
“managers may act as alter egos of the corporate entity.” Feliciano v. Jerry's Fruit & Garden
Center, Inc., No. 93 C 5911, 1994 WL 142963, *3 (N.D. Ill. Apr. 15, 1994), Ishkhanian’s
allegations are sufficient to state a claim against LCS.

Defendants argue that in Illinois, corporations are distinct legal entitics, separate from
their shareholders, officers and directors. Jn re Estate of Wallen, 262 I. App. 3d 61, 68, 633
N.E.2d 1350, 1357 (1994). According to the defendants, to “pierce the corporate veil,” the
plaintiff must make a “substantial showing” that an individual is truly the aller ego of the
corporation. /d. However, in order for the claim to withstand a motion to dismiss for failure to
state a claim in federal court, no “substantial showing” of fact is demanded.

3. Count 12

In Count 12, Ishkhanian asserts a claim of negligent retention against LCS for breaching
its duty of reasonable care by kecping Tcheupdjian on the payroll despite knowledge of prior
acts of assault and battery he is claimed lo have committed. LCS argues that this claim is
preempted by the Illinois Human Rights Act. The THRA precludes state common law tort claims

by an employce that are “inextricably linked” to an employment discrimination claim. 775 ILCS

6



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

EASTERN DIVISION

LIA ISHKHANIAN, )
)

Plaintiff, )

)

vs. ) Case No. 02 C 9339

)

FORRESTER CLINIC S.C. d/b/a y
LIPOSUCTION AND COSMETIC SURGERY )
INSTITUTE; LEON TCHEUPDJIAN )
FORRESTER; and LESLIE FORRESTER, )
)

Defendants. )

MEMORANDUM OPINION AND ORDER
- toa
MATTHEW F. KENNELLY, District Judge: _—

Lia Ishkhanian began working at the Liposuction and Cosmetic Institute (“LCS”) in
October, 1999. Dr. Leon Tcheupdjian Forrester is the owner and principal of LCS, Initially,
Ishkhanian performed receptionist duties, but in early 2000, she became a consultant, selling
liposuction procedures for LCS, Ishkhanian resigned from LCS around October 1, 2001, She
claims she was forced to resign duc to ongoing sexual harassment by Tcheupdjian.

Ishkhanian has sued LCS, Dr. Tcheupdjian, and Leslie Forrester, an cmployee of LCS.
Her amended complaint includes fourtccn claims. Count 1 alleges sexual harassment and the
creation of a hostile work environment. Count 2 claims Ishkhanian was constructively
discharged as a result of ongoing sexual harassment, Count 3 alleges that defendants retaliated
against Ishkhanian’s filing of a Title VII claim by bringing a civil action against her for fraud,
conversion, theft, and breach of contract. Counts 4 through 7 assert claims of assault and battery

against Tcheupdjian, Counts 8 and 9 claim assault and battery against LCS based on

nif

YP



‘Tcheupdjian’s conduct, Counts 10 and 11 allege defamation against Tcheupdjian and LCS.
Count 12 claims negligent retention based on LCS’s alleged failure to use reasonable care in
retaining Tcheupdjian. Counts 13 and 14 claim, respectively, breach of an oral contract and
violations of the Tllinois Wage Payment and Collection Act.

Defendants moved to dismiss Counts 1-4 and 7-12 of the amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). The Court denied the motion on its face except with
respect to Counts 3, 8, 9 and 12, which we ordered the parties to bricf. We address these claims
in this order.

Discussion

In reviewing a motion to dismiss for failure to state a claim, the court must take the
complaint’s allegations as (rue and draw reasonable inferences in the plaintiff's favor. £.g.,
Bontkowski v, First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7" Cir. 1993). Ishkhanian’s
complaint cannot be dismissed “unless it appears beyond a doubt that the plaintiff can prove no
set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson, 355
USS. 41, 45-46 (1957).

1. Count 3

Count 3 of Ishkhanian’s complaint alleges retaliation by defendants Tcheupdjian and
Forrester in violation of Title VII of the Civil Rights Act of 1964. Approximately six months
afler Ishkhanian filed a charge of discrimination with the EEOC and a year afler her resignation,
LCS sued her in state court for fraud, theft, breach of oral contract and conversion. Ishkhanian
claims that the civil suil was filed in retaliation for complaint of discrimination, in violation of
Title VUI’s anti-retaliation provision. LCS argues that Title VII does not permit retaliation

claims based on actions taken against former employees,

2