could permit a recovery for the tort of intentional infliction of emotional distress.
Defendant urges this Court to follow Miller v. Equitable Life Assur. Soc., 181 Ill. App. 3d 954, 537 N.E.2d 887, 130 Ill. Dec. 558 (1st Dist. 1989), in which the Illinois Appellate Court dealt with intentional infliction of emotional distress in an employment setting. The conduct at issue in Miller was similar to that alleged by plaintiff in the instant case. The Court found that personality conflicts among co-workers are not only unavoidable but often result in stress. Id. at 957, 537 N.E.2d at 889. The Miller Court refused to allow this stress to form the basis for this tort because virtually every employee would have a cause of action. Id. at 957, 537 N.E.2d at 889. While the Miller Court described the conduct as "inconsiderate, rude, vulgar, uncooperative, unprofessional and unfair", the court found that the defendants' conduct was not so outrageous and extreme as to go beyond all bounds of human decency. Id. at 957, 537 N.E.2d at 889.
The decision in Miller is not binding on this Court. When a federal court applies state law, its duty is to apply the law that the Supreme Court of that state would apply in the same context. Green v. J.C. Penney Auto Ins. Co., Inc., 806 F.2d 759 (7th Cir. 1986). "Intermediate appellate court cases are useful but not binding evidence of what the Illinois Supreme Court would do in a similar case". Id. This Court finds that the rationale of Johnson v. Federal Reserve Bank of Chicago, 199 Ill. App. 3d 427, 5I ER CAS 633, 557 N.E.2d 328, 145 Ill. Dec. 558 (1st Dist. 1990), the more recent statement of the First District of the Illinois Appellate Court, would more likely be followed by the Illinois Supreme Court.
In Johnson, the plaintiff accused defendant of engaging in a pattern of abusive conduct designed to retaliate against and punish plaintiff for informing the United States Treasury Department that the Bank did not comply with federally mandated banking procedures. Id. at 431-32. The Court found that the conduct, though not extreme and outrageous per se, became so by its retaliatory and punitive nature, thus satisfying the first prong of the tort. Id. Likewise, this Court finds that a jury could reasonably conclude that Winsberg's conduct was designed to punish plaintiff, who followed the proper channels to register a complaint.
Defendants then argue that plaintiff has no damages since her temporomandibular joint syndrome existed as early as February 20, 1988 and Winsberg had not started working for the company until March 14, 1988. It is well established that "the tortfeasor takes his victim as he finds him (in this case her), so if the victim has a preexisting condition which the tort aggravates, the tortfeasor is liable for the full consequences." Pieczynski v. Duffy, 875 F.2d 1331, 1336 (7th Cir. 1989). Therefore, it is not determinative that plaintiff suffered from temporomandibular joint syndrome prior to Winsberg's arrival as she may recover for any aggravation of her pre-existing condition.
This Court finds that plaintiff has alleged facts which, if proven, state a cause of action for intentional infliction of emotional distress. Moreover, whether plaintiff's injury to her jaw worsened as a result of Winsberg's conduct is a genuine issue of fact for the jury. Since plaintiff has stated a cause of action and there exists an issue of fact, summary judgment is not appropriate.
Defendant company contends that it is entitled to summary judgment since respondeat superior claims are pre-empted by the Illinois Workers' Compensation Act (WCA). The company relies on Bailey v. Unocal Corp., 700 F. Supp. 396 (N.D. Ill. 1988), in which a former employee brought suit against her employer and supervisor for sexual harassment and intentional infliction of emotional distress allegedly caused by the supervisor's actions. To avoid preemption under the WCA, plaintiff must allege the "direction, encouragement or committal of the intentional infliction" by the corporate employer. Id. at 400. In Bailey, the court found that "derivative claims stemming from the conduct of employees under respondeat superior are exactly those types of claims preempted by the Illinois Workers' Compensation Act". Id. Thus, the threshold question is whether the company directed, encouraged or committed the alleged intentional infliction. In the instant case, the company would have this Court hold that it was not directly involved in the alleged sexual harassment which plaintiff claims caused her distress. However, this Court has found that it was the retaliatory nature of Winsberg's conduct after plaintiff complained of his previous conduct that is extreme and outrageous. Further, this Court finds that there is a question of fact as to the role of the company in this chain of events. It cannot be disputed that the company, not Winsberg, had the power to fire plaintiff. It would not be unreasonable for a jury to find that the company knew that Winsberg requested plaintiff's employment termination after she complained of his previous conduct. See, Oxman v. WLS-TV, 846 F.2d 448, 457 (7th Cir. 1988). Since the threshold question, whether the company directed, encouraged or committed the alleged intentional infliction, is within the province of the jury, the company's motion for summary judgment as to Count II must be denied.
The company's motion for summary judgment is grounded upon the theory that plaintiff fails to state a claim for intentional infliction of emotional distress. See FRCP 12(h). While there exists an issue of material fact sufficient to preclude summary judgment, this Court finds that plaintiff's complaint is defective. Plaintiff's complaint, paragraph 24, states that "New Jersey Life and Winsberg are jointly and severally liable for the damages which plaintiff has suffered and is continuing to suffer as a result of Winsberg's actions." (emphasis added). There can be no doubt that plaintiff has alleged respondeat superior liability on the part of the company, and therefore, this Court will dismiss Count II with respect to the company. Because it appears that plaintiff could state an intentional infliction of emotional distress claim, plaintiff will be allowed until and including September 21, 1990 to amend her complaint.
ORDERED: Defendant's motion for summary judgment on Count II is denied. Count II is dismissed with respect to New Jersey Life Insurance Company. Plaintiff is granted leave to amend her complaint until and including September 21, 1990.
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