of the Illinois Workers Compensation Act.
But it is fundamental that the definition of Illinois state law is to be found in what the Illinois courts say, not in what the federal courts (however prestigious) say that it is. And in this instance the recent opinion in Juarez is at least partially at odds with the Illinois Supreme Court's prior decision in Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463, 564 N.E.2d 1222, 1226, 151 Ill. Dec. 560 (1990) (surprisingly not cited, let alone discussed, in Juarez) and with the even more recent and directly relevant decision in Fitzgerald v. Pratt, 223 Ill. App. 3d 785, 786-89, 585 N.E.2d 1222, 1224-25, 166 Ill. Dec. 200 (5th Dist. 1992).
It is unnecessary to rehearse the plain teaching of Meerbrey, Fitzgerald and Johnson (see n.8 as to the latter). In summary those cases unequivocally reject any notion that the Workers Compensation Act preempts either (1) a claim for severe emotional distress against Rafique and Sabato
or (2) a like claim brought against Bionetics that rests on the premise of Bionetics' intentional (as contrasted with merely respondeat-superior-ascribed) conduct. Because Complaint P 86(a) sounds in that concept of Bionetics' intentional infliction of such distress,
both it and Count IV survive. But the alternative that is advanced in Complaint P 86(b) (a pure respondeat superior allegation) is stricken, and the same action is taken as to the alternative set out in Complaint P 86(c), with its highly attenuated causal connection.
Defendants also assert a second threshold defense, one that claims preemption of the intentional-infliction cause of action by the Illinois Human Rights Act, Ill. Rev. Stat. ch. 68, P 2-102(D). To that end defendants seek to rely on Anderson v. Pistner, 148 Ill. App. 3d 616, 618-20, 499 N.E.2d 566, 568-69, 102 Ill. Dec. 9 (1st Dist. 1986) (where an age discrimination claim was at issue). But on that score too Zakutansky has the better of it by far, for both Pavilon v. Kaferly, 204 Ill. App. 3d 235, 241-44, 561 N.E.2d 1245, 1249-50, 149 Ill. Dec. 549 (1st Dist. 1990) and the earlier decision in Ritzheimer v. Insurance Counselors, Inc., 173 Ill. App. 3d 953, 962-64, 527 N.E.2d 1281, 1288-89, 123 Ill. App. 506 (5th Dist. 1988) come much closer to the mark than Anderson. No such Human Rights Act preemption bars the claims here.
Once the Count III and Count IV claims have thus survived defendants' initial conceptual attacks, the inquiry shifts to whether the conduct ascribed to defendants in those counts meets the outrageous level demanded by such cases as McGrath v. Fahey, 126 Ill. 2d 78, 533 N.E.2d 806, 127 Ill. Dec. 724 (1988). Anyone who reads the cases that the parties have cited ( McGrath, Johnson, 199 Ill. App. 3d at 430-33, 557 N.E.2d at 330-31 and Milton v. Illinois Bell Tel. Co., 101 Ill. App. 3d 75, 79, 427 N.E.2d 829, 832, 56 Ill. Dec. 497 (1st Dist. 1981) on Zakutansky's behalf, as against Miller v. Equitable Life Assurance Soc'y of the United States, 181 Ill. App. 3d 954, 537 N.E.2d 887, 130 Ill. Dec. 558 (1st Dist. 1989) on defendants') has to conclude that those cases look in totally different directions. It is extraordinarily difficult, if not impossible, to distinguish the rejection of the cause of action in Miller from its express acceptance in the other three cases. Under those circumstances this Court will not dispatch Zakutansky's claims at the pleading stage. Of course it remains to be seen whether the facts, as they become fleshed out, will support those claims.
One last point must be dealt with. With Count I having survived against Bionetics and only marginally against Parks, and with Counts II and V having gone by the boards, the question of preservation of any state law claim against Rafique and Sabato in this federal court requires brief attention. In that respect, what was formerly the problematic concept of "pendent party jurisdiction" has now been supplanted by the "supplemental jurisdiction" enactment of 28 U.S.C. § 1367, under which this Court is granted such jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." That is certainly an apt description of both Counts III and IV, thus confirming the appropriateness of retaining those claims.
When all of the parties' multifarious arguments are sorted out, two of Zakutansky's claims--those advanced in Counts II and V--must be and are dismissed. This Court also dismisses Sabato as a Count I defendant and dispatches from that count Zakutansky's prayers for remedies that would have been available only under the Civil Rights Act of 1991. Finally in terms of the flawed portions of Zakutansky's pleading, Complaint PP 86(b) and (c) are stricken.
In all other respects the Complaint stands. All defendants are ordered to file their answers to the surviving portions of the Complaint on or before November 19, 1992. And given that requirement, the previously-set November 10, 1992 status hearing is vacated and the status hearing is rescheduled to 9 a.m. December 2, 1992.
Milton I. Shadur
Senior United States District Judge
Date: November 5, 1992