SAVAGE v. BRADLEY UNIVERSITY

BYRON G. CUDMORE, U.S. Magistrate Judge.

This cause is before the Court on Defendants' Motions to Dismiss (d/e 8, 15).

Because this case is at the pleading stage on these two motions to dismiss, the Court will briefly set out the allegations in the Complaint prior to considering the merits of the motions.

Plaintiff Kathy Savage (Savage) was employed by Defendant Bradley University (Bradley) at all relevant times, and from November 1993 to April 23, 1999, Defendant Jay Glatz (Glatz) was her immediate supervisor at Bradley. Savage generally alleges that during the time Glatz was her supervisor he would physically embrace or touch her, make unwanted advances, and would make inappropriate and offensive comments about women, specifically their physical characteristics.

More specifically, Savage alleges in Count 1 that Glatz "leered and glared" at her during a trip in 1996. In addition, she alleges that Glatz attempted to kiss her, would not leave when requested, and, would repeatedly phone her hotel room and attempt to enter her room.

Savage asserts that in 1996 and 1997, Glatz made inappropriate and offensive comments about Savage's body and about a co-worker. In 1998, during a trip to Chicago, Glatz allegedly called Savage's hotel room, asked her out for drinks, and repeatedly knocked on her door when his invitation was denied. Also in 1998, Glatz allegedly again made comments about Savage's body and indicated that it was unfortunate that her shorts were not shorter. He also allegedly made inappropriate remarks about the physical attributes of his daughter-in-law.

In August, 1998, Glatz allegedly told Savage that her dress was sexy, he attempted to embrace her, and told her that he wished he could see her in a bathing suit. He also again asked her out for drinks and made sexual comments to Savage.

After the August, 1998 events, Savage allegedly stopped going to alumni events and stayed at home to do her work, going to the office only when necessary. In addition, after his advances were refused in August 1998, Glatz allegedly became angry at Savage and started criticizing her work.

Savage asserts that she became disturbed after Glatz's August 1998 advances and used sick time and vacation time to avoid being in Glatz's company. Glatz was critical of her use of sick time and vacation time. In November, 1998, Glatz allegedly again made an offensive sexual remark.

Savage alleges that this conduct created a sexually hostile work environment. She also alleges that she was unable to continue working in the environment and thus resigned from Bradley on April 23, 1999.

In Count 2, Savage alleges that she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and after her resignation she began doing freelance work for Bradley's Regional Alumni Office. Her freelance services were terminated, she alleges, in retaliation for the filing of charge with the EEOC.

In Count 3, Savage reasserts her allegations in Count 1, but additionally claims that Glatz was vested with power to damage Savage's career and that Glatz believed that there was no legitimate objective for his behavior toward Savage. In addition, Savage alleges that she felt vulnerable when she took overnight trips and stayed in the same hotel as Glatz. She further contends that Glatz knew of this vulnerability, knew that his conduct would cause Savage extreme emotional distress, and that his conduct did in fact cause her extreme emotional distress.

Both Defendants have filed motions to dismiss. Glatz seeks dismissal of Count 3, intentional infliction of emotional distress (IIED), pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that it is preempted by the Illinois Human Rights Act and, alternatively, because it fails to state a claim. Bradley seeks to have Count 2, the retaliation claim, dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6)because Savage fails to allege any actions by Bradley that impinged on Savage's future employment prospects or any other "nexus" to Savage's employment, and thereby fails to state a claim of retaliation.

I. Standard for Motions to Dismiss

A motion to dismiss under Rule 12(b)(6) should be allowed when a plaintiff can prove no set of facts in support of his claim. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The well-pleaded allegations in the complaint are taken as true and all reasonable inferences are drawn in favor of the plaintiff. See Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996).

Glatz does not seem to recognize it, but one basis for his dismissal request is that this Court lacks subject matter jurisdiction based on preemption. That is, Defendant argues that the claim of intentional infliction of emotion distress could not be heard in an Illinois state court, so it cannot be heard in this Court either. This is an attack on the Court's subject matter jurisdiction and, as such, is properly brought under Fed. Rule C. P. 12(b)(1) rather than 12(b)(6). Since this is a facial attack on the existence of subject matter jurisdiction and the standards for such motions are identical to motions under 12(b)(6), the Court will treat the motion as one made under Fed.R.Civ.P. 12(b)(1). See Brown v. Keystone Consolidated Industries, Inc., 680 F. Supp. 1212, 1215 (N.D.Ill. 1988).

II. Count 3 — Preemption and Failure to State a Claim

A. Preemption

The Illinois Human Rights Act (the Act) provides that "[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than set forth in this Act." 775 ILCS 5/8-111(C). The Supreme Court of Illinois has determined that state common law tort claims are thus preempted if they are "inextricably intertwined" with the allegation of discrimination. See Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507, 516-17, 639 N.E.2d 1273, 1277, 203 Ill. Dec. 454, 458 (Ill. 1994).

This rather vague standard has been clarified to mean that a common law tort claim will not be preempted where the tort is "independent" from an action under the Act. More specifically, where Plaintiff "can establish the elements of a tort claim independently of any legal duties created by the Illinois Human Rights Act" the tort claim is not preempted. Maksimovic v. Tsogalis, 177 Ill.2d 511, 519, 687 N.E.2d 21, 24, 227 Ill. Dec. 98, 101 (Ill. 1997). In Maksimovic, the plaintiff's supervisor requested oral sex, made comments about her breasts, grabbed the plaintiff's legs and buttocks, attempted to kiss her, and threatened to sexually assault her. Id. at 515, 687 N.E.2d at 22, 227 Ill. Dec. at 99. Though all of these actions could be thought of as sexual in nature, the Illinois Supreme Court held that plaintiff's tort claims were not preempted by the Act. The fairly clear significance of Maksimovic is that the very same actions can constitute both a tort and a claim of discrimination. However, if the tort claim cannot exist apart from the discrimination or harassment claim, the Act preempts the tort claim. The reason for this perhaps somewhat narrow interpretation of preemption is that there is no indication in the Act that the legislature intended to broadly preempt all previously existing torts simply because the conduct constituting the tort also happens to constitute a violation of the Act.

The proper focus, then, is not simply to compare the actions that constitute a tort and see if they overlap with the actions that constitute the sexual harassment claim. Rather, the inquiry is whether the elements of the specific tort claim at issue can be proved without reference to any duty imposed under the Act.

One of the published cases cited by Plaintiff, Guy v. State of Illinois, 958 F. Supp. 1300 (N.D.Ill., 1997), states that the proper focus is on the factual overlap of the claims rather than the independence of the tort claim from a claim under the Act. But the Guy Court relied on the Illinois Appellate Court opinion that was later reversed by the Illinois Supreme Court. See Maksimovic v. Tsogalis, 668 N.E.2d 166, 172-73, 282 Ill. App.3d 576, 585-86, 218 Ill. Dec. 3, 9-10 (1996) (reversed by Maksimovic v. Tsogalis, 177 Ill.2d 511, 519, 687 N.E.2d 21, 24, 227 Ill. Dec. 98, 101 (Ill. 1997)). This overruling should have been noted in Savage's response, since the reference to Guy is misleading and suggests that Guy remains a correct statement of the law.

Here, the claim of intentional infliction of emotional distress does appear to overlap factually to a great extent with the sexual harassment claim. However, this is not the proper focus, and the Court cannot conclude that the tort claim is preempted at this stage of the case. It does not appear that duties imposed under the Act play any necessary role in the claim of intentional infliction of emotional distress. Stated differently, it appears that the tort claim in Count 3 exists without reference to any duties imposed under the Act. Though much of Glatz's behavior could be broadly characterized as sexual in nature, his behavior may also constitute intentional infliction of emotional distress, apart from any duties imposed under the Act. Under Maksimovic, this suffices to conclude that the tort claim is not preempted.

B. Does Count 3 State a Claim of IIED?

This leads to the second requested basis for dismissal. Glatz contends that Savage fails to allege "extreme and outrageous" conduct as required to state a claim of intentional infliction of emotional distress. Plaintiff responds that the power and control that Glatz possessed due to his supervisory position, coupled with the relative isolation in which the acts may have occurred — on trips out of town — suffice to render his conduct extreme and outrageous.

Under Illinois law, it is clear that mere threats, indignities, or insults do not reach the level of extreme and outrageous conduct. See Public Finance Corp. v. Davis 66 Ill.2d 85, 88-89, 360 N.E.2d 765, 767, 4 Ill. Dec. 652, 654 (1976). In addition, fright, shame and humiliation do not reach that level. Id.

But these routine observations about this tort do not exhaust its scope. A factor that must be considered is the power exercised by the defendant over plaintiff and the relationship between plaintiff and defendant. In the employment setting, while mere everyday stress and ordinary job conflicts are generally not deemed severe, see Grey v. First Nat'l Bank, 169 Ill. App.3d 936, 945 523 N.E.2d 1138, 1144, 120 Ill. Dec. 227, 233 (1988), conduct such as drugging and raping an employee, not surprisingly, reaches the requisite severity. See Gilardi v. Schroeder, 672 F. Supp.2d 1043, 1046 (N.D.Ill. 1986).

Taking the allegations of the Complaint as true and drawing all reasonable inferences in her favor, as the Court must on this motion to dismiss, it appears that Savage has alleged conduct by Glatz that may constitute intentional infliction of emotional distress. His alleged behavior included such abusive conduct as physically grabbing and attempting to kiss Savage, refusing to leave her hotel room when asked to leave, and attempting to enter her hotel room after being rebuffed in his attempt to have Savage accompany him for drinks while out of town at a hotel. The alleged behavior also includes criticism of Savage's use of her sick time and vacation time. In sum, Glatz's conduct persisted after he was made aware of her desire that he cease his physical advances, touching, and his inappropriate comments. This course of conduct, drawing all reasonable inferences in favor of Savage, may rise to the level of extreme and outrageous conduct, depending upon the precise way in which it occurred. The Court therefore recommends that Count 3 not be dismissed.

II. Count 2

Bradley has requested dismissal of the retaliation claim in Count 2. In support of this motion, it has submitted a meager two-page memorandum, in which it contends that Savage has failed to allege any conduct by Bradley that impinges on Savage's future employment prospects or otherwise has a nexus to employment. It argues that since the alleged termination of Savage's services occurred after she had been terminated and when she was working as an independent contractor, there was no nexus to employment and she fails to state a claim.

Savage argues in response that post-termination retaliation may constitute an employment action. Thus, the retaliation claim does not depend on an existing employment relationship, but includes actions taken against a former employee.

Though Plaintiff asserts otherwise, the Seventh Circuit has not held that all post-employment acts of retaliation are actionable under Title VII, but instead has limited the scope of post-employment retaliation claims in accord with the language and purposes of the statute.

The retaliation section of Title VII provides as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter.

The Seventh Circuit, in accord with most other circuits, has held that a former employee may bring an action for retaliation under this provision, despite the lack of express language providing for such an action. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, (7th Cir. 1996). The Court noted in Veprinsky that a contrary holding would exclude from Title VII's coverage an employer who "blacklisted" former employees. Id. at 886. The Court in Veprinsky explicitly held that

"[w]e therefore conclude that former employees, in so far as they are complaining of retaliation that impinges on their future employment prospects or otherwise has a nexus to employment, do have the right to sue their former employers under section 704(a). This holding is true to Congress' goal of "achiev[ing] equality of employment opportunities."

Id. at 891. (citations omitted). Thus, the Court is puzzled by Savage's contention that in Veprinsky the Seventh Circuit "did not hold that for a former employee to state a retaliation claim, he must allege matters that impinge on future employment prospects or otherwise have an employment nexus, for the simple reason that this was not an issue in the case." (Plaintiff Memorandum in opposition to Bradley's motion to Dismiss at p. 3). Advocates should, if they can do so honestly, attempt to distinguish cases or show how their holding may be limited, but this sort of apparent misrepresentation to the Court falls below the standard of acceptable advocacy.

Plaintiff's dramatic assertion that the post-Veprinsky case of Aviles v. Cornell Forge Co., 183 F.3d 598 (7th Cir. 1999), "clearly disposes of [Bradley's] argument" as if Aviles somehow altered the rule expressed in Veprinsky, is also incorrect. In Aviles, the Seventh Circuit simply noted that retaliation need not be ostensibly job-related in order for a current employee to maintain an action under the retaliation provision of Title VII. Thus, an employer who shoots a current employee, for example, may have committed an act of retaliation even though the shooting is not technically job-related. See McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir. 1996).

But "former employees, in so far as they are complaining of retaliation that impinges on their future employment prospects or otherwise has a nexus to employment, do have the right to sue their former employers under section 704(a)." Veprinsky, 87 F.3d at 891(emphasis added). The question, then, is whether Savage has alleged any action by Bradley that impinges on her future employment prospects or otherwise has a nexus to her employment.

Read liberally, Savage's complaint meets this standard. She alleges that after she was terminated by Bradley, she began doing "freelance" work for the Chicago Regional Alumni Office of Bradley. She also alleges that Bradley instructed the Alumni Office to terminate her services in retaliation for her filing of a charge with the EEOC. The alleged termination deprived Savage of the benefits or opportunities provided by the freelance position in which she did work on a contract basis for the Alumni Office. This retaliatory action is akin to an employer affecting one's job prospects via the dissemination of negative information about the former employee. The difference is that in this case the adverse action is more direct. Rather than attempting to indirectly affect Savage's employment prospects, Bradley allegedly did so directly, by requiring the Alumni Office to stop using Savage's services. In the context of a former employee suing a former employer for retaliation under Title VII, this establishes the requisite nexus to employment. The Court recommends that Count 2 also not be dismissed.

The claim of Intentional Infliction of Emotional Distress in Count 3 of Savage's Complaint is not preempted by the IHRA and does allege conduct the may rise to the level of being extreme and outrageous. In addition, the claim of Retaliation in Count 2 alleges a sufficient nexus to Savage's employment. For the reasons given herein, it is my recommendation that both motions to dismiss (d/e 8, 15) be DENIED in their entirety.

The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.