once Plaintiff informed Hooters of the harassment. See Haugerud, 259 F.3d at 696-97.

Accordingly, there is a genuine issue as to employer liability.

Summary judgment is denied as to Count I. A reasonable jury could conclude that
Plaintiff was subjected to unwelcome verbal or physical conduct of a sexual nature, the conduct
was severe or pervasive enough to create a hostile work environment, the conduct was directed at

Plaintiff because of her sex, and there is a basis for employer liability.
Il. Plaintiff's State Law Tort Claims

Plaintiff asserts the following state law tort claims: negligent supervision (Count II);
intrusion upon the seclusion of another (Count II); and intentional infliction of emotional
distress (Count IV). The Court lacks subject matter jurisdiction over Plaintiff's state law tort
claims because they are preempted by the Illinois Human Rights Act (“IHRA”)."° Accordingly,
summary judgment is granted as to Counts II, Ill, and IV.

A. The IHRA

The IHRA confines claims of civil rights violations under Illinois law to proceedings

under the Act, Jansen v. Packaging Corp. of America, 123 F.3d 490, 493 (7" Cir. 1997). Sexual

"© Hooters argues that Counts I-IV are preempted by the Illinois Workers’ Compensation
Act (“TWCA”). The Court disagrees. The IWCA does not bar a common law cause of action
where the plaintiff can show that the injury was not “accidental.” Hunt-Golliday v. Metropolitan
Water Reclamation Dist. of Greater Chicago, 104 F.3d 1004, 1016 (7* Cir. 1997). “[I]njuries
which the employer or its alter ego intentionally inflicts upon an employee or which were
commanded or expressly authorized by the employer.” are not “accidental.” Thomas y. Habitat
Co., 312 F. Supp. 2d 887, 892 (N.D. Ill. 2002). A plaintiff can show that the injury was not
“accidental” where the employer stands idly by rather than attempting to prevent known
harassment. Benitez v. KFC Nat'l Mgmt. Co., 305 Ill. App. 3d 1027, 1038, 714 N.E.2d 1002 (dl.
App. Ct. 1999). There is a genuine issue, however, as to whether Hooters took appropriate
remedial measures once apprised of the harassment. (See Section 1.B.2). Accordingly, the
IWCA does not preempt Plaintiffs common law claims.

13


E. Previously Stricken Material

On January 28, 2004, the Court struck paragraphs 39 and 43 from Plaintiff's Second
Amended Complaint (“SAC”). Paragraphs 39 and 43 alleged that Hooters Girls who dated their
managers received preferential treatment. Plaintiff improperly included those allegations in her
Response brief and in her Statement of Additional Facts. The Court strikes Plaintiff's Additional
Statement Nos. 118, 121-125, 163, 202-205, and 207-209, because these statements relate solely
to the stricken material.

BACKGROUND

Defendant Hooters on Higgins, Inc., is a corporation licensed to do business in the State
of Illinois. (R. 44-1, Def.’s Rule 56.1 Stmt. of Undisputed Material Facts (“Def.’s 56.1 Stmt.”) J
2; R. 52-1, Pl.’s Resp. to Def.’s Rule 56.1 Stmt (“Pl.’s 56.1 Resp.”) § 2.) Defendant Hooters
Management Corporation, Inc. is a corporation licensed to do business in the State of Illinois and
is the parent corporation of Hooter on Higgins, Inc. (/d. [3.) Plaintiff began working at Hooters
on Higgins as a “Hooters Girl” on January 12, 1999. (Id. 5.)
IL Touching and Comments By Plaintiff’s Managers and Co-workers

Plaintiff's managers repeatedly made comments about Plaintiff's physical appearance that

referred to particular parts of her body.’ (R. 52-1, Pl.’s 56.1 Stmt. of Add’! Facts (“Pl.’s 56.1

" Pursuant to Federal Rule of Civil Procedure 15, Plaintiff sought leave from the Court to
amend her complaint to add a defendant, which the Court granted. (R. 35-1, Minute Order.) In
addition to adding a defendant, Plaintiff improperly added paragraphs 39 and 43 to her SAC. (R.
37-1, SAC 4 39, 43.) Hooters filed a motion to strike paragraphs 39 and 43 (R. 39-1, Mot. To
Strike), which the Court granted. (R. 42-1, Minute Order.) Plaintiff did not subsequently seek
leave to amend her complaint to add the stricken paragraphs.

? Hooters argues that the Court should limit the scope of Plaintiffs complaint to the
specific facts alleged in her EEOC charge. In her EEOC charge, Plaintiff identified particular

4



A. A Reasonable Jury Could Conclude That The Conduct Was Sufficiently
Severe Or Pervasive To Create A Hostile Work Environment

Plaintiff bases her hostile work environment claim on (1) comments and touching by the
kitchen staff; (2) comments and touching by her managers; and (3) the appearance and recurrence
of holes in the changing room wall. A reasonable jury could find, based on the totality of the
conduct, that the conduct was sufficiently severe and pervasive to create a hostile environment.

Plaintiff presented evidence that the kitchen staff made sexually degrading comments to
her in both Spanish’ and English. Plaintiff testified that when she walked by, “they would
whistle, they would say stuff in Spanish.” She said that they “whistl[ed] every time I go in the
back of the kitchen, standing in groups and speaking Spanish and then laughing makes me feel
like they are disrespecting me... .” Plaintiff testified that she endured these comments “daily.”®
Plaintiff further alleges that a member of the kitchen staff repeatedly touched Plaintiffs back or
arm and asked her out on dates.

Plaintiff testified that certain managers also made degrading sexual comments to her, that

she asked them to stop, and that the managers continued to make degrading comments.® Plaintiff

4 Hooters argues that the Court should disregard the kitchen staff's comments because
the kitchen staff made the majority of the comments in Spanish and Plaintiff does not speak
Spanish. The Court disagrees. It is undisputed that, even though Plaintiff could not literally
translate the Spanish comments, she subjectively understood the comments to be sexually
degrading. A reasonable jury could find that the whistling and accompanying gestures were
offensive in any language. E.E.0.C. v. Cafe Acapulco, Inc., No. Civ. A. 3-98CV2302-P, 2000
WL 306054, at *3 (N.D. Tex. Mar. 23, 2000).

5 Although the parties dispute the frequency of these comments, the Court makes
reasonable inferences in the non-movant’s favor on summary judgment.

6 Whether the managers made these comments is a credibility issue for a jury.

9



comments. (R. 44-1, Def.’s 56.1 Stmt. 53; R. 52-1, Pl.’s 56.1 Resp. 4.53.) Plaintiff
complained to a manager that the kitchen staff was “touchy” and that they whistled at her as she
picked up her food orders. (R. 52-1, Pl.’s 56.1 Add’| Facts {J 192, 198.) A member of the
kitchen staff repeatedly attempted to touch Plaintiffs back or grab her arm or hand, and
frequently asked her out on dates. (/d. { 194.)
i. The Changing Room Wall

When Plaintiff began working at Hooters, she and other Hooters Girls changed into and
out of their work uniforms in the women’s bathroom, which was open to the public. (R. 44-1,
Def.’s 56.1 Stmt. 20; R. 52-1, Pl.’s 56.1 Resp. 20.) For the first two years of her
employment, Plaintiff either changed in the women’s bathroom or wore her uniform to work
underneath her street clothes. (/d. 7.)

In December 2000, Hooters converted a storage room in the basement of the restaurant
into a changing room where employees could change into and out of their uniforms. (Jd. 121.)
The changing room shared a common wall with a break room. (/d. | 22.) Hooters furnished the
break room with tables and chairs, and all employees used it. (/d.) Despite the installation of the
changing room, most Hooters Girls continued to change in the women’s bathroom. (Jd. 423.)

A, Peeping Through The Hole

On April 27, 2001, Plaintiff felt as though someone watched her as she undressed in the
changing room. (Jd. 24.) She had previously observed a hole in the changing room wall. (Jd. |
28.) Plaintiff did not actually see anyone watching her while she used the changing room. (/d.
25.) Plaintiff did not inform any manager about her April 27, 2001 experience. (/d. | 26.)

Hooters General Manager Lisa Cooper examined the hole and concluded that no one


Add’] Facts”) {J 154-157, 164-172.) Although Plaintiff could not recall specific statements
verbatim, she testified that her manager Jimmy Rabbitt commented that her breasts looked firm,
her butt looked good, her breasts looked bigger, and asked whether she got “boob implants.” (/d.
4] 154-57.) Another manager, Clint Unrue, also made inappropriate comments to Plaintiff, such
as referring to her as a “big titty ho.” (/d. 164.) Managers Doug Gleischner and Arlen Chung
also made offensive comments to Plaintiff (/d. { 171), and Chung asked Plaintiff out on a date.
(id. 4,172.) Plaintiff complained to Rabbitt, Unrue, Gleischner, and Chung about their
comments, but the comments continued.’ (Jd. 4] 173-74.)

The kitchen staff also made unwanted comments to Plaintiff in Spanish and English
regarding her physical appearance, and frequently accompanied those comments with whistling

and other gestures. (/d. f{] 187-88, 192, 194.) The parties dispute the frequency of these

facts in support of her hostile work environment claim: holes in the wall and the kitchen staff’s
degrading comments. In her SAC, Plaintiff alleged additional facts in support of her hostile work
environment claim, including “degrading sexual comments and inappropriate touching by and
from male employees.” (R. 37-1, SAC 437.) Hooters denied these allegations in its Answer.

(R. 40-1, Def.’s Answer to SAC 437.) Hooters did not object to paragraph 37 in its motion to
strike. (R. 39-1, Mot. to Strike.)

Hooters now contends that Plaintiff's SAC improperly exceeds the scope of her EEOC
charge and asks the Court to strike the allegations in paragraph 37 regarding the male employees’
behavior (other than the kitchen staff's comments). The Court declines to do so. “[{A] Title VII
plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis
of each claim in her complaint.” Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500
(7" Cir. 1994), In her EEOC charge, a plaintiff is required to exhaust her claims, not the
evidence on which the plaintiff relies to establish the claim. Kline v. City of Kansas City Fire
Dep’t, 175 F.3d 660, 668 (8" Cir. 1999). Plaintiff asserts the same claim in her complaint that
she asserted in her EEOC charge—a hostile work environment. Accordingly, the allegations in
paragraph 37 do not exceed the scope of Plaintiff's EEOC charge. See Haugerud v. Amery Sch.
Dist., 259 F.3d 678, 690 (7" Cir. 2001).

+ Whether Rabbitt, Unrue, Gleischner, and Chung made these comments is a credibility
issue for a jury.



On March 5, 2002, the Vice President of Operations for Hooters Management saw the hole. (id.
45.) On March 6, 2002, Kossikowski installed paneling on both sides of the wall separating the
changing room from the break room. (Jd. { 48.)

Il. Plaintiff's EEOC Charge And Departure From Hooters

On March 8, 2002, Plaintiff filed an EEOC charge. (R. 53-1, Ex. 4.) Plaintiff left
Hooters in September 2002. (R. 52-1, Pl.’s 56.1 Resp. { 222.)

ANALYSIS
IL Plaintiff’s Hostile Work Environment Claim (Count I)

To prevail on her hostile work environment claim, Plaintiff must establish that: (1) she
was subjected to unwelcome verbal or physical conduct of a sexual nature; (2) the conduct was
severe or pervasive enough to create a hostile work environment; (3) the conduct was directed at
her because of her sex; and (4) there is a basis for employer liability. Hall vy. Bodine Elec. Co.,
276 F.3d 345, 355 (7" Cir. 2002). To qualify as “hostile,” the work environment must be “both
objectively and subjectively offensive.” Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 505
(7" Cir. 2004). In deciding whether particular conduct creates an actionable hostile work
environment, the fact finder examines the totality of the circumstances including “the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

Hooters does not dispute that Plaintiff was subjected to verbal or physical conduct of a
sexual nature. Rather, Hooters argues that the conduct was not severe or pervasive enough to

create a hostile work environment, and that there is no basis for employer liability.


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Juqj Sitting Judge if Oth
vor Magistrate Judge Amy J. St. Eve ‘than Assigned Judge
CASE NUMBER 03 C 1175 DATE 712712004
CASE Ciesielski vs. Hooters
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.]

MOTION:

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a Answer brief to motion due. . Reply to answer briefdue___.

(4) Oo Ruling/Hearingon set fort

(5) oO Status hearing{held/continued to] (set for/re-set for]on__—setfor__—_at

(6) im Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__——at_
(7) im} Trial[set for/re-set for]on__at

(8) a (Bench/Jury trial] [Hearing] held/continuedto_at_

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

OFRCP4(m) CO Local Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

(10) a {Other docket entry] Enter Memorandum Opinion and Order. Summary judgment is denied as to Count
| and granted in favor of Hooters as to Counts Il, Ill, and lV. All claims against the “various unknown Hooters

employees" are dismissed.

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

No notices required, advised in open court.

No notices required.
unter of notices

(28 2004

date dockernd

Notices mailed by judge’s staff.

Notified counsel by telephone.

wv | Docketing to mail notices.

Mail AO 450 form.

ynod 18 \
Copy to judge/magistrate judge. A039 8

courtroom at! oui Ode date mailed notice
TH deputy’ el Rd Le uit
initials

Dateline received ia Vid
central Clerk's Office mailing deputy initials



comments, or isolated incidents. See Faragher v. City of Raton, 524 U.S. 775, 787, 118 S.Ct.
2275, 141 L.Ed.2d 662 (1998). A reasonable jury could find that the conduct was severe or

pervasive enough to create a hostile work environment.

B. Plaintiff Has Established Sufficient Evidence of Employer Liability

The standard for employer liability tums on whether the alleged harasser was the
plaintiffs supervisor or co-worker, See, e.g., Faragher, 524 U.S. at 787; Haugerud v. Amery
Sch. Dist., 259 F.3d 678, 696-97 (7" Cir. 2001). Harassment by a supervisor triggers strict
liability, subject to an affirmative defense that the plaintiff suffered no “tangible employment
action.” See Parkins y. Civil Constrs. of Ill., Inc., 163 F.3d 1027, 1032 (7" Cir. 1998).
Harassment by a co-worker leads to employer liability only where the plaintiff proves that the
employer has “been negligent either in discovering or remedying the harassment.” Rhodes, 359
F.3d at 505-06.

1. Plaintiff's Managers

A plaintiff must show that the harasser served specifically as her supervisor for there to
be an issue of material fact as to whether a “supervisor” harassed Plaintiff. Rhodes, 359 F.3d at
506. A supervisor is someone with the power to directly affect the terms and conditions of the
plaintiff's employment. Parkins, 163 F.3d at 1034; Hall, 276 F.3d at 355. It is unclear whether
Rabbitt, Unrue, Gleischner, and Chung are Plaintiff's “supervisors.” Neither party addresses this
issue. Instead, they focus on whether Hooters may be held liable for the alleged harassment by

Plaintiffs co-workers.*

5 The Court need not decide whether Rabbitt, Unrue, Gleischner, and Chung are
Plaintiff's “supervisors,” because to survive summary judgment, Plaintiff need only show a

11


further testified that a manager once threw a basketball at her rear end.’

Finally, Plaintiff argues that the appearance and presence of the holes in the changing
room wall contributed to the hostile work environment. Plaintiff admits that she does not know
whether someone in fact watched her on April 27, 2001, and that she does not know who created
the holes. Plaintiff testified that she was very upset about Hooters’s subsequent failure to prevent
new holes from appearing, and about Hooters’s unwillingness to investigate the incident in order
to identify and punish the wrongdoer. Plaintiff was aware of the appearance and recurrence of
the holes in the changing room wall, that she suspected that the holes were used for peeping
purposes, and that she was upset that additional holes appeared after the original holes were
patched. A reasonable jury could find that these circumstances contributed to a hostile work
environment. See Liberti v. Walt Disney World Co., 912 F. Supp. 1494, 1505 (M.D. Fla. 1995)
(denying summary judgment as to hostile work environment claim where plaintiffs knew that
holes existed in a dressing room wall and that additional holes appeared, and where plaintiffs did

not know whether anyone actually peeped through the holes).

Taken as a whole, this conduct cannot be dismissed as mere boorishness, offhand

7 Hooters argues that the managers’ conduct did not alter the conditions of Plaintiff's
employment because it did not “unreasonably interfere with [Plaintiff's] work performance.”
Hooters points out that Plaintiff had access to a peephole-free changing area (the public
bathroom), that she continued to work at Hooters despite the ongoing alleged harassment, that
she insisted upon returning to work as a Hooters Girl after her leave of absence, and that she
merely complained that dressing in the bathroom was “inconvenient.” Whether the conduct
“unreasonably interfered with her work performance,” however, is only one factor that the jury
will consider when determining, based on the totality of the circumstances, whether the conduct
created a hostile environment. Harris, 510 U.S. at 23. While a jury may ultimately find that
these facts establish an affirmative defense as to employer liability in that Plaintiff may not have
suffered a “tangible employment action” (see Section L.B.), the facts do not compel a grant of
summary judgment.

10



could see through the hole into the changing room. (Id. | 32.) Cooper considered the hole
nothing more than something that required maintenance. (Jd. { 33.) On July 21, 2001, George
Kossikowski, a Hooters employee responsible for maintenance and repair work at ten Hooters
locations, patched the holes with taping compound. (Id. q 34.)

B. The Appearance Of A Second Set Of Holes

In late August or early September 2001, Plaintiff observed another set of holes in the
changing room wall. (/d. 35.) Plaintiff complained about the new set of holes to Hooters’s
general manager. (/d. ] 36.) Hooters repaired the holes within four days. (/d. 37.) Plaintiff
continued to change in the women’s bathroom rather than the changing room. (/d. 4] 35.)
Plaintiff complained that using the women’s bathroom rather than the changing room was
inconvenient because she had to transport her personal articles to the women’s bathroom and
endure disapproving looks from female patrons in the bathroom. (Id. | 36.)

Cc. Plaintiff's Leave of Absence

Plaintiff requested a leave of absence from Hooters near the end of September 2001. (/d.
38.) Because Plaintiff knew that Hooters’s general policy prohibited the return of any
employee leaving Hooters, she asked Cooper for reassurance that she could return as a Hooters
Girl after her leave of absence. (Id. { 39.) Cooper reassured Plaintiff that she could return. (/d. |
40.)

D. The Appearance Of A Third Set of Holes

In January 2002, Plaintiff returned to Hooters and continued to use the women’s
bathroom to change into and out of her uniform. (/d. 42.) Plaintiff observed another set of

holes in the changing room wall in February 2002, and complained to Cooper. (Id. §{ 43, 44.)


B. Plaintiff’s Failure to Properly Cite Supporting Evidence

Movants and respondents must adequately cite to the appropriate part of the record that
supports their position. See United States y. Dunkel, 927 F.2d 955, 956 (7" Cir. 1991) (“Judges
are not like pigs, hunting for truffles buried” in the record). Plaintiff has failed to cite any
evidence supporting Additional Statement Nos. 88, 104, 136, and 138. Accordingly, the Court
strikes these statements.

Cc. Lack of Personal Knowledge And Reliance On Hearsay

Plaintiff improperly attempts to support Additional Statement No. 30 through the
deposition testimony of a witness who lacks personal knowledge of the subject matter. The
Court strikes this statement. Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1267 (7" Cir.
1986).

Plaintiff improperly relies on inadmissable hearsay to support Additional Statement Nos.
22 and 38-41. The Court strikes these statements. See Winskunas v. Birnbaum, 23 F.3d 1264,
1268 (7" Cir. 1994) (hearsay incapable of creating a genuine issue of material fact).

D. Inclusion of Additional Information in Responses

Both parties submitted statements in their responses that include impermissible argument,
conclusory statements, and additional, non-responsive information that belongs, if anywhere, in a
separate Statement of Additional Facts pursuant to Local Rule 56.1(b)(3)(B); McGuire v. United
Parcel Serv., 152 F.3d 673, 675 (7" Cir. 1998). The Court disregards these additional facts in
Plaintiff's Response Nos. 30, 53, and 56. Similarly, the Court disregards the additional
information in Hooters’s Response to Plaintiff's Additional Facts Nos. 23, 46, 49, 55, 62-63, 69,

91, 95, 97-98, 102-03, 109, 112-13, 115, 120, 141, 145-46, 154, 158, 162, 164, and 167.



harassment is one of the civil rights violations specified within the IHRA, 775 ILCS 5/8-111(D),
and the IHRA therefore preempts common law tort claims that depend on allegations identical to
those supporting sexual harassment claims. Jd. Whether the Court has jurisdiction over a
common law tort claim 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.

Geise v. Phoenix Co. of Chicago, 159 Ill.2d 507, 515-19, 639 N.E.2d 1273, 1276-78 (1994).

B. The IHRA Preempts Plaintiff’s State Law Claims Against Hooters

To prevail on her negligent supervision claim (Count Il), Plaintiff must establish that (1)
Hooters had a duty to supervise its employees, (2) Hooters negligently supervised an employee,
and (3) such negligence proximately caused Plaintiff's injuries. Van Horne v. Muller, 294 Ill.
App. 34 649, 691 N.E.2d 74, 79 (Ill. App. Ct. 1998). Plaintiff's negligent supervision claim is
“inextricably linked” to her Title VIL claim—both claims flow from the same set of facts.
Rushing v. United Airlines, 919 F. Supp. 1101, 1112 (N.D. Ill. 1996). Plaintiff's negligent
supervision claim is premised on her allegations of sexual harassment, such that if all of the sex-
based conduct were removed from her negligent supervision claim, there would be no conduct on
which to base this cause of action. Cf Poulos v, Village of Lindenhurst, 2002 WL 31001876, at
*15 (N.D. Ill. 2002). Accordingly, the HRA preempts this claim. Rushing, 919 F. Supp. at

1112.

To prevail on her intrusion upon the seclusion of another claim (Count I), Plaintiff must
establish (1) an unauthorized intrusion or prying into her seclusion; (2) that the intrusion was
offensive or objectionable to a reasonable person; (3) that the matter upon which the intrusion
occurs was private; and (4) that the intrusion caused anguish and suffering. Melvin v. Burling,

14



tort claims and summary judgment is granted as to Counts II, II, and IV. Finally, the Court

dismisses all counts against the “various unknown employees of Hooters on Higgins.”””

DATED: July 27, 2004 G. \ Mb. (

AMY J. ST. EV
United States District Court Judge

2 Although a plaintiff may bring suit against an unknown defendant and undertake
discovery in order to identify the party who has injured her, Duncan v. Duckworth, 644 F.2d 653,
656 (7" Cir. 1981), a case cannot proceed to trial against an unknown defendant. Pearson v.
O'Leary, No. 85 C 9323, 1995 WL 124123, at *4-5 (N.D. Ill. Mar. 20, 1995). In this case,
Plaintiff has been unable to identify the “various unknown employees” after full discovery. As a
consequence, Plaintiff has not served the unknown employees with summons, and the Court
lacks jurisdiction over them. Strauss v. City of Chicago, 760 F.2d 765, 770 (7" Cir. 1985).
Accordingly, the Court dismisses all claims against the unknown employees.

16



law.” Fed. R. Civ. P. 56(c). The party secking summary judgment has the burden of establishing
the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323,
106 S.Ct. 2548, 2552 (1986). A genuine issue of triable fact exists only if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of Attica,
259. F.3d 619, 625 (7" Cir. 2001) (quoting Anderson y, Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986)). A party will successfully oppose summary judgment only if it
presents “definite, competent evidence to rebut the motion.” Equal Opportunity Comm'n v.
Roebuck & Co., 233 F.3d 432, 437 (7" Cir. 2000). The Court “considers the evidentiary record
in the light most favorable to the non-moving party, and draws all reasonable inferences in his
favor.” Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7" Cir. 2002).
Il. Local Rule 56.1

The Court first addresses both parties’ failure to comply with Local Rule 56.1, which
governs summary judgment briefing in the Northern District of Illinois. L.R. 56.1.

A. The Parties’ Failure To Cite To Their Rule 56.1 Statements

In their summary judgment briefs, both parties cited directly to the record rather than to
their Rule 56.1 statements. This blatant violation of the Local Rules is improper. Malec v.
Sanford, 191 F.R.D. 581, 586 (N.D. Ill. 2000) (“{c]itations in the fact section [of the
memorandum of law] should be to the 56.1(a) or (b) statement of facts only,” rather than to the
record). Rather than striking the briefs, however, the Court scoured the record in an attempt to

match the record citations in the briefs to the correct Rule 56.1 statements.


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

EASTERN DIVISION

JOANNA CIESIELSKI, )
)
Plaintiff, )

) No. 03 C 1175
v. )
)
HOOTERS OF AMERICA, INC., )
HOOTERS ON HIGGINS, INC., and )
various UNKNOWN EMPLOYEES, of )
Hooters on Higgins, Inc., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiff Joanna Ciesielski filed a four-count complaint against Defendants Hooters of
America, Inc., Hooters on Higgins, Inc., and various unknown employees of Hooters on Higgins,
Inc. (collectively “Hooters”), alleging sexual harassment in violation of Title VII (Count 1),
failure to supervise (Count II), intrusion upon the seclusion of another (Count Il), and intentional
infliction of emotional distress (Count IV). Hooters moved for summary judgment on all counts.
For the reasons stated herein, summary judgment is denied as to Count I and granted as to Counts
II, UI, and IV, and all claims against the “various unknown employees” are dismissed.

LEGAL STANDARDS DOCKET ED

I. Summary Judgment JUL 2 3 2004

Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue of material fact, and that the moving party is entitled to a judgment as a matter of


2. Plaintiff's Co-workers
Plaintiff is entitled to reach a jury if she has competent evidence that Hooters was
negligent either in discovering or remedying the harassment directed at her by her co-workers.
Hall, 276 F.3d at 356. Hooters “will not be liable for the hostile environment absent proof that it
failed to take appropriate remedial measures once apprised of the harassment.” Hostetler v.

Quality Dining, Inc., 218 F.3d 798, 809 (7" Cir. 2000).

Plaintiff has presented evidence that she informed Hooters about the comments and
touching by the kitchen staff and managers, and about the recurring holes in the changing room
wall. See Silk v. City of Chicago, 194 F.3d 788, 807 (7" Cir. 1999). There is sufficient evidence
that Hooters failed to take appropriate remedial measures in response to Plaintiff's complaints.
As to the comments and touching by the kitchen staff and managers, a reasonable jury could find
that Hooters’s response was inadequate given Hooters’s failure to identify and punish the
individuals who made the comments,’ and the fact that the comments continued. As to the holes
in the changing room wall, a reasonable jury could find that Hooters’s response was inadequate,
given Hooters’s failure to investigate and punish the persons responsible for creating the holes,
and the fact that the holes kept reappearing. Making all inferences in Plaintiff’s favor, there is a

genuine issue as to whether Hooters was negligent in failing to take appropriate remedial steps

genuine issue as to any basis for employer liability.

° Hooters contends that it could not have investigated and punished the kitchen staff for
their conduct because Plaintiff could not identify the kitchen staff by name. Plaintiff testified,
however, that she identified two members of the kitchen staff by name, and that she could
identify the others by appearance. Plaintiff contends that an investigation would not have been
difficult given the relatively few, finite number of kitchen staff employees. The Court agrees.

12



141 Ill. App. 3d 786 490 N.E.2d 1011, 1013-14 (Ill. App. Ct. 1986); but see Lovgren v. Citizens
First Nat'l Bank of Princeton, 126 Ill.2d 411, 417-18 (1989) (noting possible conflict among,
appellate courts over existence of the tort). Again, Plaintiffs privacy claim is premised on her
allegations of sexual harassment, and this claim is “inextricably linked” to her Title VII claim.

Accordingly, the IHRA preempts Plaintiff's privacy claim against Hooters.

To prevail on her intentional infliction of emotional distress (“IED”) claim (Count IV),
Plaintiff must establish that (1) the conduct involved is truly extreme and outrageous; (2) the
actor either intended that his conduct inflict severe emotional distress or knew that there was at
least a high probability that his conduct would cause severe emotional distress; and (3) the
conduct in fact caused severe emotional distress. McGrath v. Fahey, 126 Ill.2d 78, 86, 533
N.E.2d 806 (1988). Plaintiff's IED claim is preempted by the IHRA because it is supported by
the identical factual allegations of her Title VII claim, and when the allegations of hostile work
environment are removed, she cannot establish an ITED claim.'' Jansen, 123 F.3d at 493;

Thomas, 213 F. Supp. 2d at 899.
CONCLUSION

Because there is a genuine issue as to whether Plaintiff suffered a hostile work
environment, summary judgment is denied as to Count I. Because Plaintiff's state law tort

claims are “inextricably linked” to her Title VII claim, the IHRA preempts Plaintiff’s state law

" To establish her IED claim, Plaintiff relies on “Defendants” conduct of intentionally
harassing Plaintiff because of her sex” and Defendants’ “refus[al] to properly investigate
Plaintiff's sexual harassment allegation or to discipline her harassers or to stop such harassment.”
(R. 37-1, SAC ff 61-62.) Plaintiff claims to have suffered “severe emotional distress as a direct
result of the Defendants’ harassment and the wilful disregard of her claims.” (Jd. { 64.)

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