worsened after Plaintiff's complaints to Mr. Passi's supervisor.
Ms. Small's complaints resulted in various retaliatory actions. When Plaintiff advised Mr. Passi of her intent to take legal action, he threatened to suspend her if she contacted an attorney. In addition, Plaintiff was denied use of the restroom facilities, denied a promised salary increase, and demoted. Plaintiff resigned in August 1991 because she was unable to perform her duties as a result of the alleged conduct. Plaintiff filed this action in federal court on June 4, 1993.
Count I of Plaintiff's complaint alleges that CHC's conduct "created a hostile working environment where gender-based discrimination was permitted and encouraged." (Compl. at P 25.) Plaintiff alleges further that CHC failed to remedy the harassment despite being notified by Plaintiff of the complained-of conduct, and that the conduct caused Plaintiff to suffer severe emotional distress. (Compl. at P 26.) Plaintiff alleges that CHC's actions were intentional. (Compl. at P 28.) Plaintiff seeks compensatory damages under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991.
Count II alleges that CHC is liable, under the doctrine of respondeat superior, for negligent infliction of emotional distress. Plaintiff alleges that CHC had a duty to treat Plaintiff fairly and to provide an appropriate work environment, and breached that duty by harassing Plaintiff and by failing to prevent the conduct of its managing agents and employees. (Compl. at P 31.) Plaintiff alleges that CHC's negligence proximately caused Plaintiff to suffer severe emotional distress. (Compl. at PP 32-33.) Plaintiff seeks $ 100,000 as compensation for that emotional distress.
Count III alleges that CHC is liable for intentional infliction of emotional distress under the doctrine of respondeat superior. Plaintiff's intentional infliction of emotional distress claim is based on the same conduct underlying her negligent infliction of emotional distress claim. Plaintiff alleges that such conduct was intentional and "extremely outrageous," and was the proximate cause of her severe emotional distress. (Compl. at PP 37-39.) Plaintiff seeks $ 100,000 in damages under her intentional infliction claim.
Defendant filed its motion to dismiss on August 6, 1993.
On a motion to dismiss, the court views the allegations of the complaint as true, along with reasonable inferences therefrom, and views these in the light most favorable to the plaintiff. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). Plaintiff's complaint should not be dismissed "unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle the plaintiff to relief . . . . Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986) (citations omitted).
I. Plaintiff's Title VII Claim2
Defendant first maintains that Plaintiff's claim for compensatory damages in Count I should be stricken because the compensatory relief made available under the 1991 Civil Rights Act is not available when the conduct giving rise to the claim occurred prior to enactment of the Act.
According to Defendant, a prevailing plaintiff is entitled to equitable remedies, not compensatory damages, under the pre-1991 version of the Civil Rights Act. (Mot. to Dismiss at P 4(a).) Defendant argues that the 1991 amendments to the Civil Rights Act that made available compensatory damages cannot be applied retroactively to cover damages caused by conduct occurring before the 1991 Act's November 21, 1991 effective date. (Id. at P 4(b).)
The Seventh Circuit's recent decision in Mojica v. Gannett Company, Inc. leaves no room for doubt that the law in this Circuit is that the Civil Rights Act of 1991 is not to be applied retroactively to cases arising out of conduct that occurred prior to the enactment of the 1991 Act. 7 F.3d 552 (7th Cir. 1993). There, the Seventh Circuit held that
courts should look to the time of the conduct giving rise to the claim to determine the statute's applicability. Simply put, if the conduct took place before the statutes's enactment, it is not covered; if after, it is covered.