Hunter an additional 14 days to file a new complaint under a new docket number, the court's September 27 order equitably extended the tolling of the 90-day period to October 11, 1988. The 90-day period did not begin to run again until October 12, the day Hunter filed the complaint currently before the court. Due to equitable tolling, October 12 represents the 78th day of the 90-day period. Therefore, Hunter's Title VII claim is not time-barred.
B. Relief Requested
Hunter's Title VII claim contains a request for four separate forms of relief: punitive damages, compensatory damages, attorneys' fees, and "such further equitable and injunctive relief as the court deems appropriate and necessary to correct the violations complained of . . ." In response to these requests, Countryside argues that damages are not available under Title VII. Countryside further contends that Hunter's prayer for equitable and injunctive relief is vague and unsubstantiated. Therefore, Countryside urges this court to dismiss Hunter's Title VII claim on the grounds that it fails to state a claim upon which this court could grant any relief available under Title VII.
Title VII provides that where a court finds an unlawful employment practice exists, "the court may enjoin . . . such . . . practice and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g). Interpreting this language, the Seventh Circuit has held that ". . . no damages are available under Title VII. If Congress wishes to amend the provisions of Title VII to provide a remedy for damages, it can do so. Until then, this court may only enforce the statute as written, and as currently written Title VII does not contemplate damages." Bohen v. City of East Chicago, 799 F.2d 1180, 1184 (7th Cir. 1986). See also Hale v. Marsh, 808 F.2d 616, 620 (7th Cir. 1986); Germane v. Heckler, 804 F.2d 366, 370 (7th Cir. 1986). Under this interpretation of Title VII, Hunter's prayer for compensatory and punitive damages under Title VII cannot survive. Therefore, her requests for such relief are dismissed.
Nevertheless, the court finds that Hunter's request for equitable relief is sufficient to permit Hunter's Title VII claim to withstand Countryside's motion to dismiss. Countryside argues that the complaint should be dismissed because it does not clearly set forth the specific equitable relief Hunter seeks to obtain. However, in the context of a motion to dismiss, this court must read the complaint in the light most favorable to Hunter. Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir. 1977). Reading the complaint in that light, the court construes Hunter's prayer for relief as requesting the equitable remedies of reinstatement with back pay
or, alternatively, front pay. The former is clearly available under the plain language of Title VII. See 42 U.S.C. § 2000e-5(g). The latter, front pay, although not expressly authorized by Title VII, has been held to be recoverable under Title VII.
See Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir. 1986); Shore v. Federal Express Corp., 777 F.2d 1155, 1159 (6th Cir. 1985); Goss v. Exxon Office Systems Co., 747 F.2d 885, 889 (3d Cir. 1984); Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1167 (9th Cir. 1984); White v. Carolina Paperboard Corp., 564 F.2d 1073, 1091 (4th Cir. 1977).
Countryside further argues, however, that even if Hunter's prayer for relief sufficiently sets forth a request for equitable remedies, the complaint contains no factual basis upon which the court could grant such remedies. Countryside maintains that the remedies of reinstatement, back pay and front pay are only available where plaintiff has been discharged, and Hunter does not allege that she was discharged.
The court rejects the argument that Hunter fails to allege she was discharged. Count Two of Hunter's complaint contains the allegation that she was ". . . unable to continue her employment with . . . Countryside . . . because of the acts committed against her by . . . Hemphill . . . and the failure to allow [her] to cease working with . . . Hemphill." This allegation is sufficient to state a constructive discharge claim. Constructive discharge in a Title VII action is established where plaintiff shows that "the working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980).
Hunter's allegations, construed in the light most favorable to her, aver that she felt compelled to resign due to the sexual harassment she allegedly received, and that her feeling was reasonable. Therefore, based on a constructive discharge theory, Hunter's complaint states a claim on which she can recover the equitable remedies available under Title VII.
Countryside's final argument with respect to Count Two asks the court to treat its motion as requesting summary judgment. Countryside maintains that even if Hunter's complaint states a claim for equitable remedies under Title VII, facts outside the complaint show that Hunter cannot recover on her Title VII claim. Specifically, Countryside notes that in Hunter's handwritten resignation letter to Countryside, she does not claim that the alleged rape is the cause of her resignation. Instead, she informed Countryside that she had taken a new job. Countryside argues that Hunter's letter establishes that she was not constructively discharged.
This argument is without merit. While the resignation letter may be probative on the issue of whether Hunter resigned involuntarily, it does not conclusively establish that Hunter was not constructively discharged. Since Hunter may have omitted reference to the alleged rape for a variety of reasons, Countryside is not entitled to judgment as a matter of law. Therefore, with the exception of Hunter's requests for punitive and compensatory damages, which are dismissed, Count Two survives Countryside's motion to dismiss and alternative motion for summary judgment.
II. Count Six
In Count Six, Hunter alleges that Countryside is liable for the injuries she suffered from the torts committed by Hemphill because Hemphill's actions "were . . . taken while acting as an agent of . . . Countryside" and because "[Countryside] is liable for the acts of its supervisors or agents." These allegations purport to state a claim against Countryside based on a theory of respondeat superior.
To hold an employer liable for the intentional torts of his employees under the doctrine of respondeat superior, plaintiff must show that the torts were committed in furtherance of the employment. Hunter v. Allis-Chalmers Corp., Engine Division, 797 F.2d 1417, 1421 (7th Cir. 1986). "The tortfeasing employee must think, however misguidedly, that he is doing the employer's business in committing the wrong." Id. at 1421-22. See also Lancaster v. Norfolk & Western Railway, 773 F.2d 807, 817 (7th Cir. 1985). In the instant case, Hemphill's alleged sexual assault can in no way be interpreted as furthering Countryside's business. See Padilla v. d' Avis, 580 F. Supp. 403, 409 (N.D. Ill. 1984) (employee's sexual assault of plaintiff-patient not committed in the course of the business of defendant, a city health department facility). Hemphill's alleged attack was committed "solely for the benefit of the [employee]." Hoover v. University of Chicago Hospitals, 51 Ill. App. 3d 263, 267, 366 N.E.2d 925, 929, 9 Ill. Dec. 414 (1985). Therefore, Count Six fails to state a claim for respondeat superior liability.
Accordingly, it must be dismissed.
Countryside's motion to dismiss is granted in part and denied in part. With respect to Count Two, Countryside's motion is granted only to the extent that it requests this court to dismiss Hunter's prayer for punitive and compensatory damages under Title VII. As to the remainder of Count Two, Countryside's motion is denied. Regarding Count Six, Countryside's motion to dismiss is granted.
IT IS SO ORDERED.