CONCLUSION
For the above reasons, Defendant's motion to dismiss (19-1) is granted in part and denied
in part. Count Il is dismissed. Count Ill is dismissed with respect to Defendant Wheeling only.

Plaintiff's motion for partial summary judgment (14-1) on Count Ill is denied.

ENTER:

Dated: July 9, 2002

13


Amendments... .” (Compl. 130.) Defendant Rompala moves to dismiss this claim, arguing that
no constitutional seizure occurred during the incident, and that he did not act under color of law.
Even if the court resolves these issues in Plaintiff's favor, Rompala argues, he is entitled to
qualified immunity because there is no clearly established law that could have put him on notice
that his conduct violated Plaintiff's constitutional rights. Because Rompala’s qualified immunity
argument incorporates his substantive defenses, the court will address qualified immunity first.

A. Qualified Immunity

The doctrine of qualified immunity shields government officials from liability for damages
arising from their discretionary acts, so long as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. Townsend v.
Vallas, 256 F.3d 661, 672 (7th Cir. 2001). Qualified immunity issues are appropriately considered
early in the proceedings so that the time and expense of a trial is avoided if the defense applies.
Saucier v. Katz, 533 U.S. 194, 200 (2001). In Saucier, the Supreme Court set forth the two
inquiries this court must make in determining whether Defendant Rompaia is entitled to qualified
immunity: (1) “taken in the light most favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?” and (2) was that right clearly established
such that “it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted?” /d. at 201; Sparing v. Village of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001).
Although qualified immunity is an affirmative defense, the burden of establishing the existence of
a clearly established constitutional right rests with Plaintiff. Sparing, 266 F.3d at 688. Defendants
argue that Plaintiff has not alleged a constitutional violation. Even if she has, Rompala urges, the
law is not clearly established that a police corporal who grabs a fellow police officer's arm while
both officers are on duty acts under color of state law to “seize” that fellow police officer for Fourth

Amendment purposes. (Defendants’ Memorandum of Law in Support of Motion to Dismiss Counts


therefore, dismissed.®
i. Count III Common Law Battery

In Count Ill, Plaintiff alleges that Defendant Rompala's actions in January of 2001
constituted common law battery. She also seeks to hold Wheeling responsible for the battery
because Rompala was acting in the course of his employment on behalf of the Village. (Compl.
16.) Defendant Wheeling moved to dismiss this count as barred by the exclusivity provisions of
the illinois Workers’ Compensation Act (“IWCA"), 820 ILCS 305/1, et seq., and both Defendants
have moved to dismiss the complaint as preempted by the Illinois Human Rights Act (“IHRA’).
These arguments will be addressed in turn.

A. Preemption by the Illinois Workers’ Compensation Act (“IWCA”)

The IWCA ensures that employees may recover from their employers for accidental injuries
arising out of and in the course of employment. Meerbrey v. Marshall Field and Co., inc., 139 Ill.
2d 455, 462, 564 N.E.2d 1222, 1225 (1990). In turn, however, the IWCA provides that it is the
exclusive remedy against employers for accidental injuries that occur in the workplace. /d.;
Richardson v. County of Cook, 250 Ill. App. 3d 544, 548, 621 N.E.2d 114, 117 (1st Dist. 1993). All
other common law or statutory rights to recover damages are preempted unless Plaintiff alleges
that either: (1) The injury was not accidental; (2) The injury did not arise from her employment; (3)
The injury was not received during the course of her employment; or (4) The injury is not
compensable under the IWCA. Meerbrey, 139 Ill. 2d at 463, 564 N.E.2d at 1226.

None of these exceptions is applicable here. Plaintiff makes no serious arguments

s Considering qualified immunity in the context of a motion to dismiss is somewhat
unusual in that, as an affirmative defense, it typically leads to summary judgment under Rule 56,
rather than dismissal under Rule12(b)(6). Landstrom v. Illinois Dep't. of Children & Family Servs.,
892 F.2d 670, 675 (7th Cir. 1990). The issue can be disposed of on a motion to dismiss, however,
when the allegations of the complaint, taken as true, fail to allege the violation of a clearly
established right. /d. In that instance, as here, “dismissal for failure to state a claim upon which
relief can be granted is proper without additional fact development.” /d.

9


Tarpley v. Keister, 188 F.3d 788, 791 (7th Cir. 1999). The important consideration in determining
whether a police officer acted under color of state law is the “nature of the specific acts performed.”
Latuszkin v. City of Chicago, 250 F.3d 502, 505-06 (7th Cir. 2001). Even acts committed while a
police officer is on duty are not committed under color of state law “unless they are in some way
‘related to the performance of police duties.” Gibson v. City of Chicago, 910 F.2d 1510, 1516 (7th
Cir. 1990), quoting Briscoe v. LaHue, 663 F.2d 713, 721 n. 4 (7th Cir. 1981).

In Defendants’ view, Plaintiff has alleged only a simple tort by one employee against
another, and has not asserted that the incident was made possible by virtue of Rompala’s state
authority. (Mot. to Dismiss Memo at 5.) Defendant Rompala compares this case to Honaker v.
Smith, 256 F.3d 477, 485 (7th Cir. 2001), where the Seventh Circuit held that a mayor did not act
under color of law when he allegedly set fire to the plaintiff's house. The Seventh Circuit
emphasized that actions by state officials occur under color of state law when they are related in
some way to the performance of the official's duties, and concluded that burning plaintiff's house
to the ground did not relate to the mayor's duties. /d. Honaker represents conduct so far to one
side of the spectrum of conduct unrelated to official duties, however, that it does not help the court
assess where Defendant Rompala’s conduct falls on that spectrum; Rompala’s conduct was
obviously more closely related to his official duties than the conduct alleged in Honaker.

Defendant Rompala also characterizes the incident with Treiber as a “private brawl!"
comparable to the one in Vanderlinde v. Brochman, 792 F. Supp. 52 (N.D. Ill. 1992). In granting
defendants’ motion for summary judgment in that case, the court concluded that two firemen who
flashed their badges and called themselves “the law” before beating up plaintiff were not acting
under color of state law because nothing about the office of fireman either implied or facilitated their
law-breaking activities. /d. 54-56. Judge Shadur pointed out that just because the defendants had
proclaimed themselves “the law” did not make it so, and observed that law enforcement is “not...

the authorized role of firefighters.” /d at 53.


Il and Il of First Amended Complaint (“Mot. to Dismiss Memo”) at 3.) The court will consider each
of these issues in turn.
1) Did Plaintiff allege a constitutional violation?
a. Constitutional Seizure

Defendant argues that Treiber does not properly allege a “seizure” within the meaning of
the Fourth Amendment. A seizure triggering the Fourth Amendment's protections occurs when a
government actor restrains a citizen’s liberty by means of physical force or show of authority.
Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989). The Seventh Circuit has explained that a
seizure occurs where there is termination of an individual’s movement by a governmental actor
“through means intentionally applied.” Schaefer v. Goch, 153 F.3d 793, 796 (7th Cir. 1998),
quoting County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). Reading the complaint in the
light most favorable to Plaintiff, she did allege that Defendant Rompala, a governmental actor,
“grabbed her by the arm [and] twisted it;” for the time period that his arm held hers, Rompala
arguably intentionally terminated her movement. (Compl. {| 13.) And to the extent that he twisted
Plaintiff's arm hard enough to cause permanent injury and damage, as alleged, this could amount
to excessive force. The facts might well establish that Rompala’s alleged harsh but brief contact
with Plaintiff's arm did not genuinely terminate Plaintiff's movement or restrain her liberty. For
purposes of this initial qualified immunity inquiry, however, the court will resolve this issue in her
favor.

b, Under Color of Law

Defendant Rompala argues that he was not acting under color of law when he touched
Plaintiff, and therefore, that she did not allege a § 1983 violation. (Mot. to Dismiss Memo at 3.)
Section 1983 protects against misuses of power made possible by virtue of state law and a

defendant is liable under that provision only if he engaged in the misconduct under color of law.


considering not only the allegations of Plaintiffs complaint, but also, as explained earlier, the
materials Plaintiff submitted in support of her motion for partial summary judgment. In those
materials, Plaintiff claimed that at approximately 7:00 a.m. on January 28, 2001, she dropped off
some papers in the watch commander's office wnere Defendant Rompala and Officer Joseph
Schaff were meeting. (Treiber Aff., Ex. A to PItf's MSJ.) According to Plaintiff, as she was walking
away from Rompala, he grabbed her left arm and twisted it. (/d.)

In this court’s view, a reasonable officer in Defendant Rompala’s position would not have
considered that Plaintiff's constitutional rights were in jeopardy when he allegedly grabbed and
twisted her arm. Indeed, as the above discussion reveals, it was only with a broad reading and
significant deference to Plaintiff that this court was able to characterize the incident as a potential
constitutional violation. To invoke a “clearly established” right, Plaintiff need not cite a case
identical to her own, but she must demonstrate that in the light of preexisting law, a reasonable
officer in Rompala’s position would have recognized that his actions violated the law. Alvarado v.
Litscher, 267 F.3d 648, 652 (7th Cir. 2001). While Plaintiff alleges contact by a fellow police officer
that might amount to a common law battery, she offers no legal precedent showing, or even
suggesting, that it is clearly established that Plaintiff's constitutional rights were relevant to this

interaction.‘ Defendant Rompala is entitled to qualified immunity on Count tl, and Count II is,

4 In her effort to paint this as a § 1983 claim, the court believes Plaintiff has gained
far more mileage than is warranted out of two factors: that Defendant Rompala is a police officer,
and that he “grabbed” her. This was an altercation between an employee and a co-
worker/supervisor. As it happens, both are police officers. An entirely different subset of potential
legal claims comes to mind when the alleged state actor/ wrongdoer is a police officer, as
compared, for example, with a public school principal. If a public school principal grabbed a
teacher's arm, the court doubts the contact would be cast as a constitutional excessive
force/seizure claim. Along the same lines, Plaintiff made much of the fact that Rompala allegedly
“grabbed” her because grabbing, after all, comports more readily with the understanding of a
“seizure” than would a punch, a slap, or a kick.


Minute ret Form (olor) *
i

f United States District Court, Northern District of Illinois
|

Name of Assigned Judge Rega R. Pallmeyer Sitting Judge if Other
|_or Magistrate Judge N than Assigned Judge
CASE NUMBER No 01 C5049 DATE 7/9/2002
i
CASE Staci Treiber vs. Michael Rompala, et al
TITLE

of the motion being presented.]

MOTION:

i [In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

DOCKET ENTRY:

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

(2) hog Brief in support of motion due

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

(4) Oo Ruling/Hearing on setfor_____at

6); O Status hearing[held/continued to] [set for/re-set for]on____——sset for at

(6) i QO Pretrial conference{held/continued to] [set for/re-set for]on____setfor__——at_—
(1) im Trial[set for/re-set forlon. at.

(8) l Oo [Bench/Jury trial] [Hearing] held/continued to at

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

COFRCP4(m) OGeneral Rule21 CIFRCP41(a)(1) CIFRCP41(a)(2).

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

a 0) a [Other docket entry] Enter Memorandum Opinion And Order. Defendant’s motion to dismiss (19-
' 1) is granted in part and denied in part. Count II is dismissed. Count III is dismissed with respect to
Defendant Wheeling only. Plaintiff’ s motion for partial summary judgment (14-1) on Count III is denied.

|| No notices required, advised in open court.
2

No notices required,

number of notices

V || Notices mailed by judge’s staff. TRL 10 2002

| Notified counsel by telephone. date docketed

Docketing to mail notices.

Mail AO 450 form.

docketing deputy initials

Copy to judge/magistrate judge.
ayvr00

courtroom bh fd 6- int 20 dated noice

ETV deputy’s Env

initials OL C3 - Cadet received in

central Clerk's Office mailing deputy initials

wn



is not “inextricably linked” to IHRA civil rights violations if the plaintiff sufficiently pleads the
elements of the tort claim such “that there is an independent basis for the action apart from the
[IHRA] itself.”

Defendants complain that Plaintiff has not identified which of Defendant Rompala’s actions
are alleged to constitute the common law battery, but the court has no difficulty sorting this out:
Plaintiff alleges that Defendant Rompala grabbed and twisted her arm, causing serious permanent
injury. This battery allegation is clearly not “inextricably linked” to any civil rights violation, but
rather, states a claim without reference to and independent from, the IHRA. As the Seventh Circuit
explained in Krocka v. City of Chicago, 203 F.3d 507, 516-17 (7th Cir. 2000), “if the conduct would
be actionable even aside from its character as a civil rights violation because the IHRA did not
‘furnish[] the legal duty that the defendant was alleged to have breached,’ the IHRA does not
preempt a state law claim seeking recovery for it.” /d., quoting Maksimovic, 177 Ill. 2d at 517, 687
N.E.2d at 23. The conduct alleged here is fully actionable as a battery, wholly apart from whether
the same conduct might also be probative of sexual harassment. The motion to dismiss Count II

as against Defendant Rompala is denied.®

8 Defendants also assert that Plaintiff was required, but failed, to allege an intent to
harm. (Mot. to Dismiss Memo at 10.) Defendants cite Glowacki v. Moldtronics, Inc., 264 Ill. App.
3d 19, 22, 636 N.E.2d 1138, 1140 (2nd Dist. 1994) for the proposition that “where the party
inflicting injury is not doing an unlawful act, the intent to harm is material.” In that case, however,
plaintiff alleged that his employers intentionally caused him to come into prolonged contact with
certain chemicals that injured him. /d. at 20, 636 N.E.2d at 1139. In granting defendant's motion
to dismiss, the Glowacki court held that because plaintiff did not allege that his employers knew
that the chemicals he came into contact with were harmful, and because he did not allege facts to
support the allegation that his employers intended to injure him, his claims were barred by the
exclusive remedy provisions of the IWCA. Id. at 22-23, 636 N.E.2d at 1141. The decision,
therefore, rested on whether or not plaintiff had sufficiently alleged that his employers intended to
cause him harm for purposes of the exclusivity provisions of the IWCA, and does not mean that
Plaintiff here was required to plead that Rompala intended to harm her. Under Illinois law, a battery
occurs when someone intentionally causes harmful or offensive contact with another. Cohen v.
Smith, 269 Ill. App. 3d 1087, 1090, 648 N.E.2d 329, 332 (5th Dist. 1995). Moreover, Illinois
common law claims are subject to federal notice pleading requirements and need only state a short
and plain statement showing the pleader is entitled to relief. Fen. R. Civ. P. 12(b)(6); see Cook v.

(continued...)

11


concerning the second, third, or fourth exception. The complaint itself alleges that Plaintiff's injury
arose from and was received during the course of her employment. Nor can Plaintiff allege that
her injury would not be compensable under the IWCA; an injury is compensable under the [WCA
“if it was sustained during the course of employment and arose from that employment.”
Richardson, 250 Ill. App. 3d at 548.

Plaintiff did argue that her injury was not accidental, invoking the first exception, but in this
court’s view her argument confuses the significance of that first exception, at least as applied to
Defendant Wheeling: Plaintiff observes that the IWCA does not bar employees from pursuing
common law claims against co-employees for injuries arising out of intentional torts. (Plaintiff's
Response to Defendants’ Motion to Strike and Dismiss (“PIf. Resp.”) at 8.) She does not, however,
address the fact that with respect to a claim against an employer, even intentional torts by
employees are considered “accidental” under the IWCA because, from the injured employee’s point
of view, the injury was unexpected and unforeseeable. Meerbrey, 139 Ill. 2d at 463, 564 N.E.2d
at 1226. Plaintiff makes no argument, nor do the facts as alleged suggest an argument is
available, that would avoid the consequences of the IWCA's exclusivity provisions with respect to
her claim against Defendant Wheeling. Count ill is preempted by the IWCA as to Defendant
Wheeling.

B. Preemption by the [Illinois Human Rights Act

Both Defendants argue that Plaintiff's battery claim is preempted by the Illinois Human
Rights Act (“IHRA”), 775 ILCS 5/8-111(c) (2001). (Mot. to Dismiss Memo at 9.) The IHRA
preempts state law tort claims where the facts of the case are “inextricably linked” to civil rights
violations listed under the IHRA, such as sexual harassment. Geise v. Phoenix Co. of Chicago,
Inc., 159 Ill. 2d 507, 516-17, 639 N.E.2d 1273, 1276-78 (1994). In Maksimovic v. Tsogalis, 177 Ill.

2d 511, 517, 687 N.E.2d 21, 23 (1997), the Illinois Supreme Court clarified that a state tort claim

10


The instant matter is distinguishable from the Vanderlinde case. The complaint alleges that
Rompala was a higher-ranking police officer, on-duty and working at the police station when he
grabbed Plaintiff's arm. Particularly when drawing all reasonable inferences in the light most
favorable to Plaintiff, the court concludes that she alleged conduct during the parties’ on-the-job
interactions which could have been related to (although perhaps an abuse of) his duties as a
higher-ranking police officer. Cf. David v. City and County of Denver, 101 F.3d 1344, 1354 (10th
Cir. 1997) (police officer's claim of sexual harassment by fellow police officers survived motion to
dismiss because if the officers “nad supervisory authority over her or in some other way exercised
state authority over her,” she may succeed ona § 1983 Fourteenth Amendment sexual harassment
claim); Bonenberger v. Plymouth Township, 132 F.3d 20, 22-23 (3rd Cir. 1997) (summary judgment
in favor of police sergeant on sexual harassment charge reversed because, even though he was
not plaintiff police officer’s official supervisor, his role within the police department’s structure
afforded him sufficient authority over plaintiff to satisfy the color of law requirement).

In the broadest possible sense, Plaintiff alleged that she was inappropriately seized with
excessive force by a state official acting under color of state law. The court will, therefore, consider
the second question of the qualified immunity inquiry: whether the right Plaintiff claims was violated
was clearly established.

2) Was the right clearly established?

To the extent that Defendant Rompaia violated Plaintiff's Fourth Amendment right to be free
from seizure and excessive force, the court must determine whether it would have been clear to
a reasonable officer that his conduct was unlawful in that particular situation. Saucier, 533 U.S.
at 202. In other words, the “contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” /d., quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987). To make this determination, the court looks carefully at the conduct at issue,


it, turned her causing serious and permanent injury to her arm.”> (/d. 4] 4, 11, 13.) According to
Plaintiff, wnen Rompala realized that he had injured her, he “kissed the arm in a condescending
manner” and “suggested to the Plaintiff that she leave police work and become a teacher.” (/d. 9]
14-15.) The Wheeling Police Department investigated the matter, but did not “bring and/or
authorize criminal battery charges against Rompala despite probable cause to do so.” (/d. {J 16-
18). On May 2, 2001, Treiber filed a charge with the Equal Employment Opportunity Commission
and received a right to sue letter on June 8, 2001. (/d. [J 20-21.)
DISCUSSION

A motion to dismiss a complaint pursuant to Rule 12(b)(6) does not test whether the plaintiff
will prevail on the merits, but instead tests whether the plaintiff has properly stated a claim for relief.
Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995). On a motion to dismiss, this court
accepts as true all well-pleaded facts and allegations in the plaintiff's complaint, and construes the
complaint’s allegations in the light most favorable to the plaintiff. Bontkowski v. First Nat'l Bank of
Cicero, 998 F.2d 459, 461 (7th Cir. 1993). If it appears beyond doubt that Plaintiff can prove no
set of facts in support of her claim that would entitle her to relief, then dismissal is proper. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957).
L Count Il § 1983 Violation against Defendant Rompala

Plaintiff claims that Defendant Rompala’s actions in January of 2001 deprived her of her

right to be “free of illegal seizure and excessive force in violation of the Fourth and Fourteenth

‘ In Plaintiffs submissions regarding her motion for partial summary judgment on

Count Ill, the common law battery claim, Plaintiff explained the events in more detail. She claimed
that at approximately 7:00 a.m. on January 28, 2001, she dropped off some papers in the watch
commander's office where Defendant Rompala and Officer Joseph Schaff were meeting. (Affidavit
of Staci Treiber (“Treiber Aff.”) at 1, Ex. A to Plaintiff's Memorandum in Support of Her Motion for
Partial Summary Judgment, (“Pitf's MSJ”).) According to Plaintiff, as she was walking away from
Rompala, he grabbed her left arm and twisted it. (/d.) Plaintiff asserts that this act violated her
constitutional right to be free from seizure and excessive force.

3


motion for partial summary judgment on Count Ill.’ For the following reasons, Defendants’ motion
to dismiss is granted as to Count Il and with respect to Defendant Wheeling on Count III. Plaintiff's
motion for partial summary judgment is denied.
FACTUAL BACKGROUND

For purposes of a 12(b)(6) motion, the court presumes that the facts alleged in the
complaint are true. Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001). In addition, because
Plaintiff has filed her own motion for summary judgment, the court believes it fair to presume the
truth of facts she sets forth in her materials in support of that motion.

Plaintiff Treiber has been employed by the Village of Wheeling as a police officer since
1996.7 (Amended Complaint (“Compl.”) ] 3.) Defendant Rompala is also employed by Wheeling
as a corporal in the police department, a position Plaintiff characterizes as “management.” (/d.
914.) Treiber alleges that since at least November of 2000, the Wheeling Police Department has
engaged in a practice of gender-based discrimination and that as part of this “pattern and practice,”
Treiber has been subject to “hugging, touching and use of force . . . , gestures of kissing the
Plaintiff's wrist, condescending remarks ..., and... a hostile work environment all based upon
[her] gender.” (/d. J 7-10.)

At issue for purposes of this motion are Plaintiff's allegations concerning Defendant
Rompala’s actions on January 28, 2001. Plaintiff alleges that Defendant Rompala was on duty at
the Wheeling police station located at 225 West Dundee Road on that date, acting in his official

capacity as corporal of the police department, when he “grabbed the Plaintiff by her arm, twisted

‘ Defendants answered and moved for summary judgment on Count | of Plaintiff's
complaint, a gender discrimination charge, and the court will consider that motion separately after
it is fully briefed.

2 Plaintiff's own rank on the Wheeling police force is not identified.

2


er
is

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS er " ie
‘we a

EASTERN DIVISION
10 200

STACI TREIBER,
Plaintiff,
v. No. 01 € 5049

MICHAEL ROMPALA, in his individual
capacity, and VILLAGE OF WHEELING,

Judge Rebecca R. Pallmeyer

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Staci Treiber, a female police officer employed by the Village of Wheeling, Illinois,
claims that her supervisor, Defendant Michael Rompala, engaged in sexual harassment and
committed common law battery, illegal seizure, and excessive force in violation of her statutory and
constitutional rights. She has filed a three count complaint against two Defendants, the Village of
Wheeling and Michael Rompaia in his individual capacity. Count | alleges sexual harassment in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In Count II, brought
under 42 U.S.C. § 1983, Plaintiff alleges that Defendant Rompala violated her Fourth and
Fourteenth Amendment rights to be free from illegal seizure and excessive force. Finally, Count
Hil is a common law battery count against both Defendants.

Defendants have moved to dismiss Counts II and III for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6). With respect to Count Il, Defendants argue that
Rompala did not act under color of law or, in the alternative, that he is entitled to qualified immunity
because it is not clearly established that the acts of which Plaintiff complains are constitutional
violations. Defendants urge that Count III should be dismissed against Wheeling because it is
barred by the Illinois Workers Compensation Act, and that as to both Wheeling and Rompala,

Count Ill is preempted by the Illinois Human Rights Act. The court will also consider Plaintiff's

|


Mh. Plaintiff's Motion for Summary Judgment on Count I!l

Plaintiff filed a motion for partial summary judgment against both Defendants on Count III,

the battery claim. As discussed above, this claim is dismissed as to Defendant Wheeling, but not

' as to Defendant Rompala. Summary judgment is appropriate only where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” FED. R. Civ. P. 56(c); see also Equal Employment Opportunity
Comm'n v. Sears, Roebuck & Co, 233 F.3d 432, 436 (7th Cir. 2000).

Plaintiffs motion for summary judgment on the battery count must fail because there are
unresolved disputes of fact. ‘Defendant Rompala rejects Plaintiff's description of the parties’
exchange and asserts that he did not “squeeze, bend, twist, or exert any other pressure on her
arm, wrist or elbow.” (Affidavit of Michael T. Rompala at 7, Ex. 1 to Defendants’ Rule 56.1(b)(3)
Response.) Rompala further asserts that he and Officer Schaff (who was in the watch
commander's office with Rompala and Treiber when the alleged battery occurred), had instructed
Plaintiff to leave the room and that when she remained standing between Rompala and Schaff,
Rompala merely placed one hand on her elbow and the other above her wrist for no longer than
a second to direct her out of the office. (/d.) Clearly, a reasonable jury, if it believes Defendant
Rompala’s version of the events, could find that this contact did not amount to a battery. Moreover,
the parties disagree as to the nature or permanency of the physical injury, if any, incurred by

Plaintiff. Plaintiff's motion for partial summary judgment on Count III is denied.

°(...continued)
Winfrey, 141 F.3d 322, 331 (7th Cir. 1998).

12