WED claims. In Adan vy. Solo Cup, Inc., No. 01 C 3966, 2001 U.S. Dist. LEXIS 12726, at *3-10
(NLD. Ill. Aug. 17, 2001), the court held that unwelcome sexual advances, unwelcome comments
containing sexual innuendos, and repeated requests and propositions for sexual behavior by
plaintiff's supervisor supported an IED claim independent of any legal duties created by the
IHRA. In Figueroa v. City of Chicago, No. 97 C 8861, 2000 U.S. Dist. LEXIS 3141, at *37 n.5
(N.D. Ill. Mar. 1, 2000), the court found that an IED claim based on allegations of repeated
unwanted sexual advances, suggestive comments, and adverse consequences should the plaintiff
report the conduct was not preempted by the IHRA. In Rapier v. Ford Motor Co., 49 F. Supp. 2d
1078, 1080 (N.D. Ill. 1999), the court found that unwanted touching by an employer was a
common law tort independent of civil rights law.”

The ITED claims in Adan, Figueroa, and Rapier are essentially indistinguishable from the
IIED claims in this case. Spahn, Schneider, and Pelouze each allege incidents of inappropriate
and offensive sexual comments, unwelcome and unwanted sexual advances, and numerous
occasions of harmful and offensive touching by their superior. The outrageousness of such
behavior predated enactment of the IHRA. Offensive touching in particular could rise to the
level of extreme and outrageous conduct wholly apart from any sexual motivation or content:
repeatedly pulling the ponytail of a male employee in front of co-workers, for example, could
very well support an ITED claim. Cf Krocka v. City of Chicago, 203 F.3d 507, 516-17 (7th Cir.
2000) (finding preemption because the plaintiffs emotional distress claim was based on
comments that “were only offensive to the extent they referred to [plaintiff’s] disability”). Based
on the complaint, it appears that plaintiffs may be able to prove the elements of HED without
relying on any legal duties created by the IHRA. Defendants’ motion to dismiss the JED claims

for lack of subject matter jurisdiction is therefore denied.

*Notably, the court in Bruce v, South Stickney Sanitary District, No. 01 C 3578, 2001 U.S. Dist.
LEXIS 9815, at *10 (N.D. Ill. July 11, 2001), observed that “[oJur independent survey of the
current case law indicates that claims for [IIED] are generally not preempted by the JHRA where
there is an underlying sexual harassment claim.”

4


444 (N_D. Ill. 1985), and Carpenter v. Ford Motor Co., No. 90 C 5822, 1991 U.S. Dist. LEXIS
1613, at *4 (N.D. IIL. Feb. 8, 1991). See generally Local 705, 2002 U.S. Dist. LEXIS 4908, at
*51-52 (holding that there is no higher standard of outrageousness in the employment context).
The fact that an IIED claim is predicated on misconduct in the workplace does not mean that the
plaintiff must show a heightened level of outrageousness.

Defendants’ next argument is better, but ultimately unconvincing. They argue that courts
applying Illinois law have limited “outrageous” employer conduct to either attempted coercion to
commit a crime or sexual misconduct significantly more egregious than the sexual misconduct
alleged by plaintiffs. To illustrate, defendants offer three cases from this district dismissing IED
claims for lack of sufficiently outrageous conduct: Chishom v. Foothill Capital Corp., 940 F.
Supp. 1273, 1286 (N.D. Ill. 1996), Miles v. LaSalle Financial Services, No. 93 C 1660, 1995
US. Dist. LEXIS 14575, at *11-15 (N.D. Ill. Oct. 3, 1995), and Holmes y. Razo, No. 94 C
50405, 1995 U.S. Dist. LEXIS 10599 (N.D. Ill. Jul. 18, 1995).? Chisholm and Miles, however,
are distinguishable: the conduct alleged in each of those cases was limited to instances of
employment discrimination and retaliation, whereas plaintiffs here additionally allege sexual
harassment, battery, and assault. The Holmes decision is less readily distinguishable, but this
court finds the reasoning of other closely analogous cases to be more persuasive. See, e.g., Adan,
2001 U.S. Dist. LEXIS 12726, at *12; Warnell v. Ford Motor Co., No. 98 C 1503, 1998 U.S.
Dist. LEXIS 16952, at *7 n.2 (N.D. Ill. Oct. 21, 1998); Reich v. Ruff, 837 F. Supp. 881, 885
(N.D. Ill. 1993). In each instance, the court held that the allegations of sexual harassment,
assault, battery, discrimination, and retaliation sufficed to state a claim for IED. As in those
cases, it is impossible to say that plaintiffs here will be unable to prove any set of facts consistent
with the complaint which could support a finding of extreme and outrageous conduct. See

Pavilon v. Kaferly, 561 N.E.2d 1245, 1251 (Ill. App. Ct. 1990) (finding sexual harassment by

°The defendants also discuss Miller v. Equitable Life Assurance Society, 537 N.E.2d 887 dil.
App. Ct. 1989). However, Illinois is a fact-pleading jurisdiction, so this decision has little
persuasive force.


discussing any conversations she had with Spahn regarding her complaint about DeSanto. Nine
days after these discussions, Pelouze was terminated. Based on these allegations, Pelouze brings
six claims, which again parallel the claims brought by Spahn and Schneider.
I. ANALYSIS

Defendants move to dismiss counts VI, XI, and XIX, each plaintiff's intentional
infliction of emotional distress (“IIED”) claim against IQPC and DeSanto. First, defendants
argue that Illinois state law preempts these claims and that, therefore, this court lacks subject
matter jurisdiction. Alternatively, defendants contend that the IED claims must be dismissed
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Because neither argument has merit,
the motion to dismiss is denied.
A. Preemption

Defendants argue that plaintiffs’ IED claims are preempted by the Illinois Human Rights
Act (“IHRA”), 775 ILCS § 5/8-111(C), and therefore must be dismissed for lack of subject
matter jurisdiction. An Illinois state tort claim is preempted by the IHRA only if it is
“inextricably linked” to a civil rights violation, such that there is no independent basis for the tort
claim apart from legal duties created by the IRA. Maksimovic v. Tsogalis, 687 N.E.2d 21, 23-
24 (Ill. 1997). If Ilinois state courts lack jurisdiction to hear an Illinois tort claim, so does a
federal district court sitting in Illinois. Thomas v. L’Eggs Prods., Inc., 13 F. Supp. 2d 806, 808
(C.D. Ill. 1998). Because defendants challenge the sufficiency, not the substance, of plaintiffs’
allegations with respect to jurisdiction, the facts alleged in the complaint must be accepted as
true. See Family & Children’s Ctr. v. Sch. City, 13 F.3d 1052, 1059 (7th Cir. 1994); of. Int’
Harvester Co. v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir. 1980) (“Where the defendant raises
factual questions concerning jurisdiction, the court need not accept the allegations of the
complaint as true; the court may look behind the complaint and view the evidence to determine
whether a controversy in fact exists.”’).

Recent decisions from this district have held that the JHRA did not preempt comparable


: As a fallback, defendants observe that each plaintiff's IED claim incorporates the factual
allegations underlying her Title VII claim. This observation is of no help to defendants for
several reasons. First, although there are substantial areas of overlap, Title VII imposes legal
duties independent of the IHRA. Unless defendants can show that plaintiffs’ Tile VII claims fall
in the area of overlap, which they make no attempt to do here, the Title VII claims are irrelevant.
IHRA preemption is a creature of state, not federal, law. Second, plaintiffs’ IED claims also
incorporate the factual allegations underlying their battery and assault claims. These common
law torts obviously predate and are independent of the civil rights laws, state and federal. Third,
and most fundamentally, “it does not matter that the conduct giving rise to the tort claim could
also support an IHRA claim.” Jackson v. Local 705 Int’l Bhd. of Teamsters, No. 95 C 7510,
2002 U.S. Dist. LEXIS 4908, at *47 (N.D. Ill. Mar. 22, 2002) (hereinafter “Local 705”).
Defendants’ reliance on Maksimovic for the opposite proposition is wholly misplaced. That case
makes perfectly clear that the critical analysis focuses on legal duties, not facts. See Maksimovic,
687 N.E.2d at 24 (“A legislative intent to abolish all common law torts factually related to sexual
harassment is not apparent from a plain reading of the statute.”). In fairness to defendants, it
should be observed that some courts in this district have made the same mistake. See, e.g.,
Westphal v. City of Chicago, 8 F. Supp. 2d 809, 811-12 (N.D. Ill. 1998). The source of the
confusion is apparently Geise v. Phoenix Co., 639 N.E.2d 1273 (Ill. 1994). Before the Illinois
Supreme Court clarified the legal standard in Maksimovic, even the Seventh Circuit was
confused. See Jansen v. Packaging Corp. of Am., 123 F.3d 490, 493 (7th Cir. 1997) (en banc)
(per curiam) (“[Plaintiff]’s common law claim of infliction of emotional distress is supported by
the identical factual allegations of her Title VIE claims and is therefore pre-empted.”).

Il. Failure to State a Claim
On a Rule 12(b)(6) motion, a court may dismiss a claim “only if it is clear that no relief
could be granted under any set of facts that could be proved consistent with the allegations” in

the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The court assumes the truth


employer to be extreme and outrageous).

Drawing all inferences in favor of the plaintiff, the misconduct alleged by Spahn,
Schneider, and Pelouze may rise to the requisite level of egregiousness. Plaintiffs allege
inappropriate and offensive sexual comments, unwelcome and unwanted sexual advances, and
numerous occasions of harmful and offensive touching by their superior, defendant DeSanto.
Plaintiffs further allege that IQPC knew of the sexual harassment and discrimination and, in
response to complaints, retaliated by raising performance standards or directly discharging each
plaintiff.‘ These allegations satisfy the outrageous conduct element of an ITED claim in a notice
pleading regime. Plaintiffs may be unable to adduce facts consistent with the complaint that
would lead an average member of the community to exclaim, “Outrageous!” Defendants’ motion
to dismiss is therefore denied.

ENTER:

DATED: July 15, 2002

J Bh OTTSCHALL
i ‘ates District Judge

4Spahn claims both heightened standards and constructive discharge; Pelouze and Schneider
claim actual retaliatory discharge.


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan B. Gottschall than Assigned Judge
CASE NUMBER 01 C 8875 DATE 7/15/2002
CASE Christen Spahn, et al. vs. International Quality & Productivity Center, et al.
TITLE
[In the following box (a) indicate the party fiting the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MoTION: of the motion being presented.]
DOCKET ENTRY:
(1) o 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) Oo Ruling/Hearing on set for at
(5) a Status hearing is set for 8/1/02 at 9:30 A.M..
(6) a Pretrial conference[held/continued to] {set for/re-set for]on___—ssetfor_——at_
{7) qa Trial[set for/re-set for] on__at
(8) a [Bench/Jury trial] [Hearing] held/continued to__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) (General Rule 21 CIFRCP41(a)(1) C1 FRCP41(a)(2).

ao [Other docket entry] Enter Memorandum Opinion and Order. Defendants’ motion to dismiss [6-1]
is denied. A status hearing is set for August 1, 2002.

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

No notices required, advised in open court.

No notices required.
q\ number of notices

Notices mailed by judge’s staff. . 202

pan counsel by telephone. UL a §

ky

date mailed notice

| ocketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom Ose WY 91 TM 20

Ca deputy’s
initials

UO baldatadbatidthat

central Clerk’s Office sailing deputy initials



of the facts alleged in the complaint and draws all reasonable inferences in the plaintiff's favor.
Sanville y. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). Under the federal system of notice
pleading, “although plaintiffs can plead conclusions, the conclusions must provide the defendant
with at least minimal notice of the claim.” Jackson v. Marion County, 66 F.3d 151, 154 (7th Cir.
1995).

Defendants argue that plaintiffs’ IIED claims should be dismissed for failure to state a
claim. To establish an IED claim under Illinois law, a plaintiff must prove that: (1) the conduct
involved was “truly extreme and outrageous”; (2) the defendants intended for their conduct to
inflict severe emotional distress or should have known that there was a high probability of such
distress; and (3) the conduct in fact caused severe emotional distress. McGrath v. Fahey, 533
N.E.2d 806, 809 (Ill. 1988). Conduct is extreme and outrageous where “recitation of the facts to
an average member of the community would arouse his resentment against the actor, and lead
him to exclaim, “Outrageous!” Doe v. Calumet City, 641 N.E.2d 498, 507 (Ill. 1994) (quoting
Restatement (Second) of Torts § 46, cmt. d, at 73 (1965)).

Defendants challenge the sufficiency of plaintiffs’ allegations only as to this first element.
In support of their attack, defendants rely on an incorrect proposition of law: Illinois courts
require a higher standard of outrageousness in an employment relationship than in other contexts.
One of the opinions cited by defendants, however, includes language that directly contradicts this
proposition, at least with respect to the conduct of a superior. In Piech v. Arthur Andersen &
Co., 841 F. Supp. 825, 831 {N.D. Ill. 1994), the court stated that “[w]hen, as here, the defendant
has some degree of power over the plaintiff, the severity of the conduct that plaintiff need allege
decreases as the defendant’s level of control increases.” Jd. at 831 (emphasis added). More
important, the Illinois Supreme Court has since held that an “abuse of position of power,” such as
that of an employer over an employee, lowers the outrageousness hurdle. Doe, 641 N.E.2d at
507; see also Restatement (Second) of Torts § 46, cmt. e. This authoritative statement of Illinois

law postdates the other decisions cited by defendants, Pudil v. Smart Buy, Inc., 607 F. Supp. 440,


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHRISTEN SPAHN, MELISSA SCHNEIDER, _)
and MELANIE PELOUZE, )
)
Plaintiffs, ) Case No. 01 C 8875
)
v. )
)
INTERNATIONAL QUALITY & )
PRODUCTIVITY CENTER (“IQPC”), ) Judge Joan B. Gottschall
and DAVID DE SANTO, an individual, )
)
Defendants. ) DOCKETED

JUN 1 6 2002
MEMORANDUM OPINION & ORDER

Christen Spahn, Melissa Schneider, and Melanie Pelouze pursue this employment
discrimination case against their former employer, International Quality & Productivity Center
CIQPC”), and David DeSanto, a Managing Director at IQPC. The complaint asserts eighteen
counts, six per plaintiff.' Defendants move to dismiss three counts. For the reasons set forth
below, the motion is denied.

I. BACKGROUND

Spahn, a former Delegate Sales Representative with IQPC, alleges that during her
employment from February 2000 to December 2000, she experienced sexual harassment and an
offensive and hostile work environment. Specifically, she claims that, among other things,
DeSanto subjected her to offensive and inappropriate sexual comments, unwelcome sexual
advances, unwanted touching such as rubbing her shoulders and patting her on the back, arbitrary
threats, and humiliation in front of her peers and co-workers about purported poor job
performance. When Spahn informed DeSanto that his actions made her uncomfortable, he
responded, “Well, that’s just the way lam . . . areal ‘hands-on’ manager.” (Compl. { 58.) Spahn

alleges that on September 15, 2000, she complained to higher management about DeSanto’s

‘Although the counts go to up XIX, there is no Count XVI. \ lp



conduct; however, IQPC did not take any remedial action. Instead, the company retaliated
against her by holding her to higher standards of performance than similarly situated employees,
and then by constructively discharging her. Based on these allegations, Spahn brings six claims:
sexual harassment in violation of Title VII against IQPC (Count I), sex discrimination in
violation of Title VII against IQPC (Count ID, retaliation in violation of Title VII against IQPC
(Count II], common law battery against DeSanto (Count IV), common law assault against
DeSanto (Count V), and intentional infliction of emotional distress against both defendants
(Count VI).

Schneider, a Marketing Manager for IQPC from May 2000 to December 2000, alleges
that during her employment she was also subjected to sexual harassment and a hostile work
environment. Among other things, she claims that DeSanto subjected her to unwanted sexual
advances and touching, and offensive and inappropriate sexual comments, including frequent
comments that she should “wear her hair down” instead of in a “ponytail.” (/d. | 102.) Other
male IQPC employees made similar, unwanted advances. On December 6, 2000, IQPC’s in-
house counsel, Brooke Shannon, questioned her about Spahn’s complaints, whereupon Schneider
told Shannon that DeSanto had sexually harassed her. Schneider claims that six days after
complaining to IQPC she was terminated. Based on these allegations, Schneider brings six
claims which mirror Spahn’s.

Pelouze, a Conference Director for IQPC from July 2000 to December 2000, alleges that
during her employment she was subjected to a hostile, offensive, and discriminatory work
environment. Pelouze alleges that she was told on numerous occasions by IQPC supervisors that
she was acting “bitchy” and that she should “use [her] womanly ways” to perform her job. Ud. {
119.) These supervisors also referred to her and others, including Spahn and Schneider, as “the
bitchy sorority girls.” (Jd. 4 131.) On numerous occasions, DeSanto subjected Pelouze to
unwanted touching, including patting her on the back and rubbing her shoulders. Pelouze further

alleges that because she was friendly with Spahn and Schneider, she was pressured by IQPC into