The opinion of the court was delivered by: LINDBERG
GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE
Plaintiff, Tamara Class, filed a two count complaint against defendants, New Jersey Life Insurance Company ("the company"), and its employee, William Winsberg. Count I alleges that defendants engaged in sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections 2000e et seq. The gravamen of Count II of plaintiff's complaint is whether she may recover for the alleged aggravation due to stress of a pre-existing condition on the theory of the intentional infliction of emotional distress where her company terminated her after she complained to the company about the salacious behavior of her superior. Count II alleges that Winsberg's conduct was so extreme and outrageous as to warrant liability for the tort of intentional infliction of emotional distress for which the company and Winsberg are jointly and severally liable to plaintiff under respondeat superior. Defendants have moved for summary judgment on Count II.
This Court has jurisdiction of Count I pursuant to Title VII of the Civil Rights Act, 42 U.S.C. section 2000e-5(f)(3). Count II is properly before this Court under the doctrine of pendent jurisdiction.
Summary judgment is appropriate where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial". Teamsters Local 282 Pension Trust Fund v. Angelos, 839 F.2d 366, 369 (7th Cir. 1988); quoting, Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If a material issue of fact remains, summary judgment should be denied.
Defendants argue that they are entitled to summary judgment on Count II because plaintiff has failed to state a claim for intentional infliction of emotional distress, see FRCP 12(h) and 56, and even if plaintiff has stated a claim, she cannot prove damages since her temporomandibular joint syndrome existed prior to Winsberg's employment. Alternatively, defendants argue that they are entitled to judgment in that plaintiff alleges a respondeat superior claim which is pre-empted by the Illinois Worker's Compensation Act.
In order to state a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts which establish: (1) the defendant's conduct was extreme and outrageous; (2) the emotional distress suffered by the plaintiff was severe; and (3) the defendant knew that severe emotional distress was certain or substantially certain to result from such conduct. McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809, 127 Ill. Dec. 724 (1988); Public Finance Corp. v. Davis, 66 Ill. 2d 85, 90, 360 N.E.2d 765, 767, 4 Ill. Dec. 652 (1976); Miller v. Equitable Life Assur. Soc., 181 Ill.App.3d 954, , 537 N.E.2d 887, 888, 130 Ill. Dec. 558 (1st Dist. 1989).
Under Illinois law, the first prong of the tort is satisfied if the defendants' conduct is "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency'". Public Finance Corp. v. Davis, 66 Ill. 2d 85, 90, 360 N.E.2d 765, 767, 4 Ill. Dec. 652 (1976), quoting Restatement (Second) of Torts, section 46, comment d (1965). The tort does not extend to "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Restatement (Second) of Torts, section 46, comment d (1965).
With regard to the first element, defendants contend that Winsberg's conduct was no more than ordinary banter between co-workers and therefore does not meet the high standard of extreme and outrageous conduct. Plaintiff contends that after Winsberg stopped the sexual harassment, his motive became one of retaliation against her for reporting his inappropriate behavior to higher officers of the company.
In support of her claim, plaintiff alleges that, during an eight week period, Winsberg regularly subjected her to sex-related jokes on a daily basis; twice told her in detail a sexual episode involving himself and two women, and another episode involving himself, a male friend and a woman; announced to the entire office staff, including plaintiff, that he would like to have sex with his girlfriend and another woman at the same time; invited plaintiff and two other women to his residence for a weekend for the implied purpose of having sex; invited plaintiff alone to his residence for a weekend for the implied purpose of having sex; asked plaintiff if she swallowed when engaging in oral sex; told plaintiff and another woman employee that he likes to engage in anal sex but that his girlfriend would not let him; and described to plaintiff and two other women how big his sex organ was.
Plaintiff also complains that Winsberg engaged in retaliatory conduct after she telephoned a vice president of the company about his behavior. Specifically, plaintiff alleges that Winsberg left the office clerk in charge of the office in his absence; tried to cause friction between plaintiff and other employees; refused to let plaintiff deal with agents who came to the office by taking the files away from her and personally dealing with the agent; failed to keep plaintiff informed about new products being offered by the company; teased plaintiff about her dental appliance after she asked him to stop; kept her less informed about changes in office procedures; and told plaintiff that he was going to get even with her.
While Winsberg's conduct with regard to the sexual statements may have been "inconsiderate, rude, vulgar, uncooperative, unprofessional and unfair", see, Miller v. Equitable Life Insurance Society, 181 Ill. App. 3d 954, 957, 537 N.E.2d 887, 889, 130 Ill. Dec. 558 (1st Dist. 1989), it does not rise to intentional infliction of emotional distress on its own. Had the chain of events ended at this point there would be no cause of action, as argued by defendants. However, it is alleged that Winsberg engaged in a pattern of behavior to retaliate against plaintiff for her complaint about his prior conduct. Plaintiff acted reasonably by telephoning the company headquarters in New Jersey to complain about Winsberg's alleged salacious conduct. Winsberg then allegedly retaliated by undermining plaintiff's authority within the office and generally making it more difficult to do her job. Thereafter, she was terminated by the defendant insurance company. It would be reasonable for a jury to find that Winsberg's alleged retaliatory conduct faciliated plaintiff's termination by the company. Furthermore, it cannot be disputed that Winsberg's alleged threat to "get even" with plaintiff was realized when her employment was terminated. See, Oxman v. WLS-TV, 846 F.2d 448 (7th Cir. 1988). Winsberg's alleged retaliatory conduct is that type of extreme and outrageous conduct which, together with the other elements of the tort, constitutes intentional infliction of emotional distress. Therefore, this Court finds that plaintiff has alleged facts which, if proven, 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. ...