United States District Court, Northern District of Illinois, E.D
August 17, 1983
RENEE CURTIS, PLAINTIFF,
CONTINENTAL ILLINOIS NATIONAL BANK AND ROBERT COTHARD, DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
Plaintiff has filed a complaint against Defendants
Continental Illinois National Bank and Trust Company of
Chicago ("Continental") and Robert Cothard, an employee of
Continental and plaintiff's former supervisor. In Part I of
the complaint plaintiff charges Continental with 1) subjecting
plaintiff to sexual harassment and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (Title VII); 2) committing an undefined "intentional tort"
as to plaintiff; and, 3) discriminating against plaintiff in
violation of Article I, § 17 of the Illinois Constitution. In
Part II, plaintiff makes two non-federal claims against
Defendant Cothard, who is charged with 1) assault and battery;
and, 2) intentional infliction of emotional distress. Plaintiff
also claims in her memorandum that her complaint includes a
Title VII claim against defendant Cothard (Plaintiff's Brief at
10), although this is by no means clear from the pleading
submitted to the court.
Defendants have moved to dismiss the "pendant state law
claims" against Continental and the entire count dealing with
Mr. Cothard. The motion to dismiss is granted in its entirety.
I. The "State Law Claims" Against Continental
Plaintiff's claims against Continental are divided into
three sections entitled
"Count[s]" I, II, and III.*fn1 The bulk of the complaint
against this defendant contains allegations purporting to
state a claim for violations of Title VII. Plaintiff then
asserts what is labeled "Count II" (as to Continental, see n.
1) claiming that "[t]he described conduct of Continental
Illinois Bank was intentional, within the meaning of
42 U.S.C. § 2000e-5(9)." Although "Count II" is subtitled "Intentional
Tort," the Court fails to see how this portion of the complaint
in any way can be said to state a separate and independent
state law tort claim. Rather, by its clear wording, "Count II"
is an amplification of plaintiff's Title VII claim and will be
treated as such.
Plaintiff next pleads "Count III," which contains a third
claim against Continental for alleged violations of the
Illinois Constitution, specifically Art. I, § 17. Although
plaintiff purports to state a cause of action directly under
the Illinois Constitution, that attempt must be denied for two
First, this Court is extremely reluctant to construe Art. I,
§ 17 as permitting a direct private right of action for damages
arising out of alleged employment discrimination. No case can
be located which establishes such a right, and it is the
Court's belief that such complicated and important issues of
state law are best left for the State courts. United Mine
Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966).
Secondly, even if this Court were inclined to allow such a
suit, analogous federal case law would militate strongly
against it. Article I, § 17 of the Illinois Constitution is
implemented by a comprehensive Illinois statute entitled the
Illinois Human Rights Act. Ill.Rev.Stat., ch. 68, ¶ 1-101 et
seq., (1981) (the "Act"). In a similar context, the U.S.
Supreme Court has ruled that where an employee is entitled to
the benefits of an elaborate administrative scheme designed to
protect individuals from arbitrary actions by their
supervisors, it is inappropriate to thwart that scheme by
permitting a direct cause of action for damages based directly
on the Constitution. Bush v. Lucas, ___ U.S. ___, 103 S.Ct.
3081, 76 L.Ed.2d ___ (1983), aff'g., 647 F.2d 573 (5th Cir.
1981). By analogy, where there exists a comprehensive
legislative scheme, like the Illinois Human Rights Act, which
is specifically designed to implement Art. I, § 17 of the
Illinois Constitution, see Ill.Rev.Stat. ch. 68, ¶ 1-102(C), it
would be improper to permit a direct suit which bypasses the
procedural plan established by the legislature, and instead
looks directly to the constitution.
In sum, in light of both 1) this Court's hesitancy to permit
a direct suit for damages under the Illinois Constitution, and
2) the fact that even if the Court were inclined to permit
such a suit, that inclination would be countered by the
availability to plaintiff of a comprehensive statutory remedy
for her claims, plaintiff's request for damages under the
Illinois Constitution must be rejected, and that portion of
the complaint is dismissed.
One final note is in order. Plaintiff has not indicated that
she has made any attempt to utilize the statutory procedures
provided by the Illinois Human Rights Act. Therefore, even if
she wished to amend her complaint to plead a claim pursuant to
that Act, this Court would be presented with the question of
whether that claim could go forward despite plaintiff's
failure to exhaust her Illinois administrative remedies. Upon
review of the Act, it is the Court's belief that plaintiff's
failure to exhaust would be fatal to any claim brought under
the Act at this time.
It is clear that the statutory scheme of the Illinois Human
Rights Act contemplates that a complainant will exhaust the
administrative procedures established by the act prior to
seeking judicial review. Paragraphs 8-101 through 8-110 detail
the powers, duties, and procedures of the Illinois
Human Rights Commission ("the Commission"), the administrative
body primarily responsible for adjudicating alleged violations
of the Act. Paragraph 8-111 provides for judicial review of
those Commission orders with which the parties disagree and
for judicial enforcement of orders with which the parties have
failed to comply. It is beyond dispute that this statutory
section reflects the legislature's intention that the
administrative body review the complaint brought by an
aggrieved party or the Department of Human Rights
before that complaint is considered by the Court. For example,
the statute clearly provides for "judicial review of an order
of the Commission." Ill.Rev.Stat. ch. 68, ¶ 8-111(A)(1)(1981)
(emphasis added). Such review must be sought by application to
the Commission. Id. There is no provision for initial
consideration by a court. Furthermore, ¶ 8-111(A)(2) provides
that "[i]n any proceeding brought for judicial review, the
Commission's findings of fact shall be sustained unless the
court determines that such findings are contrary to the
manifest weight of the evidence." Obviously, this provision
contemplates collateral review of the Commission's action,
rather than fact-finding on the part of the Court. Finally, ¶
8-111(B) provides for judicial enforcement of Commission orders
in the event that those orders are not voluntarily followed.
This adds additional support to the conclusion that the
legislature's goal was that administrative proceedings would be
fully exhausted prior to the institution of court action.
In light of the foregoing, plaintiff's sole remaining claim
against Continental is its Title VII claim. "Counts" II and
III of the portion of plaintiff's complaint which is addressed
to this defendant are therefore dismissed in their entirety.
II. Claims Against Robert Cothard
As has already been stated, the charges made against Mr.
Cothard are state law claims for damages based on assault and
battery ("Count I")*fn2 and intentional infliction of
emotional distress ("Count II"). Plaintiff states in her
memorandum that the complaint also makes a Title VII claim
against Cothard (Plaintiff's Brief at 10), although the
complaint's organization virtually hides that claim from the
view of even the most careful observer. Furthermore, at one
point in plaintiff's brief she contradicts her later assertion
that a Title VII claim is included against Cothard by stating:
All claims in plaintiff's complaint arise from
her employment and defendants' subsequent
harassment of her. Sexual harassment and
retaliation is alleged against plaintiff's
employer. Assault and battery and intentional
infliction of emotional distress is alleged
against plaintiff's supervisor.
Plaintiff's Brief at 4.
This morass, although confusing, in no way affects this
Court's decision. Whether or not plaintiff desired to assert
a Title VII claim against Cothard, this Court holds that such
a claim cannot be made at this time. And, for the reasons that
follow, dismissal of plaintiff's federal claim requires that
plaintiff's pendant claims also be dismissed.
It is well settled that a non-federal claim is an
insufficient basis for joinder of a party "over whom no
independent federal jurisdiction exists." Aldinger v. Howard,
427 U.S. 1, 9, 96 S.Ct. 2413, 2418, 49 L.Ed.2d 276 (1976). This
is the case even though the claim is "derived from the `common
nucleus of operative fact' giving rise to the dispute between
the parties to the federal claim." Id.
In this case there exists no independent basis for federal
jurisdiction over defendant Cothard. Cothard was not a
respondent in plaintiff's charge before the EEOC, a normal
prerequisite to filing suit in federal court on a Title VII
claim. 42 U.S.C. § 2000e-5(f)(1). Although there are situations
where this requirement will not be strictly enforced, Maxey v.
Thompson, 680 F.2d 524 (7th Cir. 1982); Eggleston v. Chicago
Journeymen Plumbers, etc., 657 F.2d 890, 905-908 (7th Cir.
1981), this is not such
a case. Mr. Cothard did not appear in the EEOC fact-finding
conference, and has been given no opportunity to attempt to
deal administratively with the charges against him. The
conciliation process is a crucial element of the congressional
scheme set up by Title VII. To allow a claim against Cothard
to stand at this point would be to thwart that scheme in a
Furthermore, it would be improper to hold that, on the facts
of this case plaintiff's failure to name Cothard was of no
serious consequence, because he is, in some sense,
"substantially identical" to the respondent appearing in the
EEOC proceeding. Cothard is a first-level supervisor in a
single area of Continental Bank's Security Division. It can
hardly be said that while Cothard was in this capacity,
service of an EEOC charge upon the Bank's Legal or Personnel
Departments would put him on notice that he faced a possible
federal lawsuit and needed to consider whether to enter into
a settlement of plaintiff's EEOC charges. Thus, this Court
declines to allow plaintiff's Title VII claim, if it exists,
In light of the foregoing, plaintiff's pendant claims
against Cothard must fail as well. As has already been stated,
state law claims alone cannot support pendant party
jurisdiction. Here, where no independent federal jurisdiction
exists, that portion of the complaint claiming against and
seeking damages from defendant Cothard must be dismissed in
its entirety. See also Dickey v. Greene, 710 F.2d 1003, 1005
(4th Cir. 1983); Kiss v. Tamarac Utilities, Inc., 463 F. Supp. 951
In light of the foregoing, the trial of this cause will deal
solely with plaintiff's Title VII claim against Continental
IT IS SO ORDERED.