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JASKOWSKI v. RODMAN & RENSHAW

February 18, 1993

SUSAN JASKOWSKI, Plaintiff,
v.
RODMAN & RENSHAW, INC., NORMAN MAINS, GREGORY P. QUINLIVAN and KURT KARMIN, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, District Judge:

 This action stems from alleged sexual harassment and discrimination by defendants Rodman & Renshaw, Inc. ("Rodman & Renshaw"), Norman Mains, Gregory Quinlivan, and Kurt Karmin (collectively "defendants") against plaintiff Susan Jaskowski ("Jaskowski"). Defendants move to dismiss Count II of the complaint, which alleges sexual discrimination in violation of the Civil Rights Act of 1964 and the Civil Rights Act of 1991, arguing that the Civil Rights Act of 1991 does not apply to this action. Additionally, defendants seek to dismiss Count V, which alleges intentional infliction of emotional distress, claiming that the Count is preempted by the Illinois Workers' Compensation Act. For the following reasons, we grant in part and deny in part defendants' motion to dismiss.

 I. Factual Background1

 Jaskowski worked for Rodman & Renshaw, a stock brokerage firm, from 1981 until October of 1991, when she took a pregnancy leave of absence. Having started as a clerk in the mail room, Jaskowski worked her way up through the ranks at Rodman & Renshaw to become Vice President, Director of Human Resources. Mains was President of Rodman & Renshaw, Quinlivan was Executive Vice President and General Counsel, and Karmin was Chairman of the Board and a member of the Executive Committee.

 After Jaskowski became pregnant, several co-workers made objectionable comments about her condition. In addition to rubbing Jaskowski's stomach uninvited, Mark Grant, an Executive Vice President, commented on the enlargement of pregnant women's breasts, and remarked that he wanted to work with young, attractive females. Lawrence Helfand, another Executive Vice President, stated that Jaskowski "should have stayed at [her] desk rather than out getting pregnant," and suggested that he was "going to have to tell [plaintiff's husband] to keep his penis in his pants." Cmplt. at P 13(c). Finally, two other Executive Vice Presidents, not named as defendants, told Jaskowski that they suspected she had tried to get pregnant, while Karmin commented that his pregnant secretary would not return to work, as her place was at home with her baby.

 After Jaskowski became pregnant, Mains and Quinlivan assured her, on several occasions, that when she returned from maternity leave, her position, or one of comparable pay and responsibility, would be available. Jaskowski began her leave of absence in October, 1991, and in December, Rodman & Renshaw hired a man to fill her position. The replacement received a forty percent higher salary than Jaskowski had received.

 When Jaskowski returned from her maternity leave, Rodman & Renshaw offered her a job as a mutual funds clerk -- a position which paid less than half the salary she had earned as a Vice President. Later, the firm offered her the position of Assistant Director of Human Resources. Again, the job paid less than her former salary.

 II. Discussion

 A. Count II

 In Count II, Jaskowski charges defendants with sex discrimination in the terms, conditions, and privileges of employment in violation of 42 U.S.C. ยง 2000(e). She further alleges that by condoning offensive touching and remarks, defendants created a hostile work environment in violation of Title VII and the Civil Rights Act of 1991. Defendants contend that the Civil Rights Act of 1991, effective, in relevant part, as of November 21, 1991, does not apply retroactively, and therefore does not apply to Jaskowski's claim. Jaskowski maintains that even if the Civil Rights Act of 1991 does not apply to those parts of her claim arising out of conduct engaged in prior to November 21, 1991, she has still made out a claim under the Civil Rights Act of 1964, and therefore, Count II should not be dismissed. We agree.

 Although the Supreme Court has not addressed the retroactivity of the Civil Rights Act of 1991, which, among other things, amended the Civil Rights Act of 1964 to allow plaintiffs to recover compensatory and punitive damages, the rule in this circuit is that the Civil Rights Act of 1991 applies prospectively. See Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 229 (7th Cir. 1992) ("We hold that the new act is applicable only to conduct engaged in after the effective dates (plural because several sections carry different effective dates) in the act, at least if the suit has been brought before the effective date."); Simon v. Ravenswood Hospital Medical Ctr., 814 F. Supp. 33, 1992 U.S. Dist. LEXIS 12430 (N.D. Ill. 1992) (this Court held that the Civil Rights Act of 1991 did not apply to conduct occurring before the effective dates of the Act, even if the suit was filed after November 21, 1991). Accordingly, the Civil Rights Act of 1991 does not apply to those actions alleged to have taken place prior to November 21, 1991. *fn2"

 The inapplicability of the 1991 Act, however, does not eliminate Jaskowski's claim. It simply means that for those actions taken prior to November 21, 1991, Jaskowski cannot recover compensatory or punitive damages. The underlying claims of sexual discrimination and harassment, in the form of a hostile work environment, are still actionable under Title VII of the Civil Rights Act of 1964. *fn3" See Meritor Savings Bank v. Vinson, 47 ...


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