that the parties intended to contract for something other than employment at will in the Mergers & Acquisitions Group. The complaint here is devoid of any allegations of promises regarding the duration of Piech's employment in the Mergers & Acquisitions Groups or any procedures which must be followed prior to terminating her employment. Consequently, there are no allegations from which this Court can reasonably conclude that AA & Co. offered Piech something other than employment at will. The defendant's motion to dismiss the breach of contract claim is granted.
IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendants next move to dismiss Piech's state-law claim for intentional infliction of emotional distress. To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege that: (1) the defendant's conduct was extreme and outrageous; (2) the plaintiff suffered severe emotional distress; and (3) the defendant knew severe emotional distress was certain or substantially certain to result. Public Finance Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765, 4 Ill. Dec. 652 (Ill. 1976). The disputed issue here is whether the alleged conduct by the defendants is of such an "extreme and outrageous" nature to form the basis for recovery under intentional infliction of emotional distress. The defendants maintain that the alleged acts of sex discrimination and harassment are not so outrageous that they "go beyond the bounds of decency" in the workplace and do not form a pattern or level of abuse sufficient to state a claim for intentional infliction of emotional distress.
"Extreme and outrageous" is a difficult term to label with a precise definition. Liability for "extreme and outrageous" conduct has been found only where the conduct is so outrageous in nature and so extreme in degree that it goes beyond all possible bounds of human decency and is intolerable in a civilized society. Id. at 654 (quoting Restatement (Second) of Torts § 46, Comment d (1965)). Liability under the theory of intentional infliction of emotional distress "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Id. When, as here, the defendant has some degree of power over the plaintiff, the severity of the conduct that plaintiff need allege decreases as the defendant's level of control increases. McGrath v. Fahey, 126 Ill. 2d 78, 533 N.E.2d 806, 809, 127 Ill. Dec. 724 (Ill. 1988). Nonetheless, in the employment setting, the conduct complained of must be particularly outrageous. Clay v. Quartet Mfg. Co., 644 F. Supp. 56, 61 (ND. Ill. 1986). The work setting contemplates a degree of teasing and taunting that in other circumstances might be considered cruel and outrageous. Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991). Furthermore, personality conflicts and job transfers are unavoidable aspects of the modern work place and may cause stress for the employee. Clay, 644 F. Supp. at 61. Allegations of job-related stress, however, do not state a claim for intentional infliction of emotional distress; otherwise, nearly all employees would have a cause of action. Id. at 62.
Piech alleges that she was: (1) repeatedly discriminated against for taking disability leave for her pregnancies; (2) continually exposed to a work atmosphere consisting of offensive and tasteless humor of a sexual nature, references to the female anatomy, and rumors of male partner sexual misconduct; (3) given demeaning work assignments; (4) sexually harassed and discriminated against regarding promotions and transfers; and (5) forced to endure retribution and harassment designed to prevent women from attaining the status of partner. These allegations are sufficient to state a Title VII sex discrimination claim. A claim for intentional infliction of emotional distress, however, requires more than what is required for sexual harassment. See Pavilon v. Kaferly, 204 Ill. App. 3d 235, 561 N.E.2d 1245, 149 Ill. Dec. 549 (Ill. App. Ct. 1990); Bailey v. Unocal Corp., 700 F. Supp. 396 (ND. Ill. 1988); accord Monarch Paper, 939 F.2d at 1141 (more is required to prove intentional infliction of emotional distress than usual ADEA claim).
Claims for intentional infliction of emotional distress in the employment setting have generally involved circumstances beyond what can be considered a typical employment dispute better addressed in a Title VII or equivalent suit. See, e.g., Dean v. Ford Motor Credit Co., 885 F.2d 300 (5th Cir. 1989) (supervisor intentionally placed checks in plaintiff's purse so she would appear as a thief and fear criminal charges); Monarch Paper, 939 F.2d at 1141 (former vice-president and assistant to the president with thirty years experience demoted to housekeeping chores and menial janitorial jobs under supervisors formerly his subordinates); Bailey, 700 F. Supp. at 399 (defendant exposed himself to plaintiff and subjected plaintiff to unwelcome sexual advances, sexual comments containing sexual innuendos, and repeated requests and propositions for sexual behavior); Pavilon v. Kaferly, 204 Ill. App. 3d 235, 561 N.E.2d 1245, 149 Ill. Dec. 549 (Ill. App. Ct. 1990) (defendant knew plaintiff was susceptible to emotional distress, pressured plaintiff for dates, offered plaintiff money for sex, threatened to kill and rape plaintiff and threatened to challenge custody of her child); Milton v. Illinois Bell Telephone Co., 101 Ill. App. 3d 75, 427 N.E.2d 829, 56 Ill. Dec. 497 (Ill. App. Ct. 1981) (plaintiff coerced to falsify work reports, an illegal activity); Clay, 644 F. Supp. at 61 (coercive sexual relationship). Illinois Appellate Courts have affirmed dismissals of intentional infliction of emotional distress claims alleging facts even more "outrageous" than here. See, e.g., Miller v. Equitable Life Assurance Soc'y, 181 Ill. App. 3d 954, 537 N.E.2d 887, 130 Ill. Dec. 558 (Ill. App. Ct. 1989) (plaintiff alleged she was surrounded by supervisors and co-workers who were inconsiderate, rude, vulgar, uncooperative, unprofessional, and unfair; agent touched plaintiff's breast; another agent stated that he wanted her; and a manager suggested she use sex to sell insurance); Morrison v. Sandell, 112 Ill. App. 3d 1057, 446 N.E.2d 290, 68 Ill. Dec. 556 (Ill. App. Ct. 1983) (toilet tissue and human waste matter was placed in a drawer the plaintiff would open).
Piech's most extreme allegation is that she was subjected to one isolated proposition or "advance" over four years. A single isolated incident is not extreme and outrageous conduct. Morrison, 446 N.E.2d at 558. Otherwise, Piech was subjected to sexual humor, references to female anatomy, and general discriminatory conduct. Although not condoned, such conduct does not shock the conscience of a reasonable employee. If true, Piech states a claim for sexual harassment but not intentional infliction of emotional distress. Piech's allegations lack the systematic and intentional actions designed to humiliate the plaintiff in Monarch and the check incident in Dean. Likewise, Piech's allegations lack the coercion to engage in illegal activity like Milton or the coercive sexual relationship of Clay or the pattern of threats of rape or death or offers of money for sex as in Pavilon. The defendants' motion to dismiss this claim is granted.
V. CONSTRUCTIVE DISCHARGE
Finally, the defendants move to strike all allegations of constructive discharge. A constructive discharge constitutes an adverse employment decision for purposes of establishing a prima facie case of discrimination under Title VII and, if proved, entitles a plaintiff to back pay. Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989). An employee is constructively discharged when the conditions surrounding his job assignment are so untenable that they render his continued employment an impossibility and effectively force the employee into an involuntary resignation. Henn v. National Geographic Soc'y, 819 F.2d 824, 829 (7th Cir. 1987). Piech says that her transfer from the Mergers & Acquisitions Group to the State & Local Tax Group was a de facto demotion and virtually eliminated any chance of her making partner. She alleges that AA & Co. made clear that if she did not accept the reassignment "she would be effectively terminated." She further alleges that once transferred, she was not given appropriate work assignments. Piech claims that the "onerous and demeaning conditions," which include the sexual jokes and harassment, compelled her to resign.
Although Piech may be sincere when she says that the conditions forced her to resign, constructive discharge is established only if the conditions would compel a reasonable person to resign. Brooms, 881 F.2d at 423. "An employee may not be unreasonably sensitive to his working environment." Id. (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981)). This Circuit requires a reasonable employee to remain on the job and seek legal redress "unless confronted with an 'aggravated situation' beyond 'ordinary' discrimination." 881 at 423. The complaint is devoid of offensive conduct outside the realm of "ordinary" discrimination. Piech, however, insists that the transfer to the State & Local Tax Group was a materially adverse change in the terms and conditions of her employment, not just an inconvenience or alteration of job responsibilities, which is actionable under Title VII. Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).
In Crady, the Seventh Circuit affirmed a district court's finding as a matter of law that the employee's transfer to a management-level position with the same salary and benefits was not a materially adverse employment action for purposes of ADEA. Id. at 135-36. The court noted that a materially adverse change may be indicated by "a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id. at 136. The court, however, did not decide whether the new job assignment constructively discharged the plaintiff. Rather, the court noted in a footnote that "the clear trend of authority is to require that a transfer with no change in wages or benefits amount to a 'constructive discharge' to be actionable as an 'adverse employment action.'" Id. at 135 n.1.
As this Court reads Crady, not all materially adverse employment actions (though actionable under Title VII) amount to a constructive discharge. Piech sufficiently alleges "indicia" of a materially adverse change in employment resulting from her transfer. Piech also claims that any reasonable employee would have resigned under the circumstances. Whether the circumstances complained of go "beyond 'ordinary' discrimination" and would compel a reasonable employee in Piech's position to contemplate immediate resignation is a question more appropriately answered by a trier of fact. This Court will await the fruits of discovery and revisit the issue if raised on summary judgment. The motion to strike the allegations of constructive discharge is denied.
Defendants' motion to dismiss the Title VII quid pro quo claim is denied, as is the motion to strike the allegations of constructive discharge. The motion to dismiss the breach of contract and intentional infliction of emotional distress claims is granted.
James B. Zagel
United States District Judge
Date: 5 Jan. 1994