the full context of the conversations and the circumstances under which the parties spoke will be fully developed.
Additionally, Wilkes' has alleged enough facts to establish the existence of an agency relationship between Unichema and Chambers. Title VII prohibits "employers" from discriminating against individuals on the basis of, inter alia, sex. 42 U.S.C. §§ 2000e-2(a), (b). An "employer" is defined as "a person engaged in industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or proceeding year, and any agent of such person. . . ." Id. § 2000e(b) (emphasis added).
In the case sub judice, Wilkes alleged enough facts to establish that Chambers was a supervisory agent of Unichema and that his conduct forming the basis for sexual harassment occurred within the scope of his employment. Chambers had the authority to hire and fire employees. Chambers also had the supervisory power to grant or eliminate economic privileges of the employees.
Accordingly, the motion to dismiss is denied.
In addition to the issue of whether Count III states a cause of action under Title VII, Unichema in its 12(b)(6) motion raises the issues of whether a jury trial is available for Wilkes' sexual harassment claim and whether she may recover damages for "pain and suffering, and for the humiliation caused by [Unichema's] unlawful treatment." Complt. P 28b. The answers to those issues turn on whether the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071-1099 ("Civil Rights Act of 1991") is applicable to Count III. The court answers the issue in the affirmative.
Pursuant to the Civil Rights Act of 1991, jury trials are available in Title VII claims. See 42 U.S.C. § 1981a(c)(1). The Seventh Circuit has promulgated a bright-line test to determine whether the amended provisions of the Civil Rights Act of 1991 applies to a particular Title VII claim. Mojica v. Gannett Co., Inc., 7 F.3d 552, 559 (7th Cir. 1993). If the unlawful employment conduct occurred prior to November 21, 1991, the Civil Rights Act of 1991 is inapplicable. Id. Applying the Mojica test to the facts of Count III, the Civil Rights Act of 1991 governs Count III because the unlawful employment conduct occurred after November 21, 1991. Unichema contends that the wrongful conduct of Chambers occurred prior to November 21, 1991. This interpretation ignores Wilkes' allegations of wrongful conduct occurring in October, November, and December 1991 and until February 28, 1992. Furthermore, the termination from employment giving rise to Wilkes' sexual harassment action did not occur until February 28, 1992. Thus, under Mojica, Wilkes' claim of sexual harassment detailed in Count III may be submitted to the jury.
Additionally, Wilkes may recover compensatory damages for pain, suffering and humiliation. Prior to the enactment of the Civil Rights Act of 1991, compensatory and punitive damages were not available under Title VII claims. Trautvetter v. Quick, 916 F.2d 1140, 1147-48 (7th Cir. 1990). Title VII only provided for equitable relief such as reinstatement or hiring of employees and back pay. See Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g).
With the advent of the Civil Rights Act of 1991, however, the limitation of recoverable damages to equitable relief in a Title VII claim was removed. The relevant portion of 42 U.S.C. § 1981a provides that:
In an action brought by a complaining party under [ 42 U.S.C. 2000e-5] . . . against a respondent who engaged in unlawful intentional discrimination . . . prohibited under [ 42 U.S.C. § 2000e-2] . . . the complaining party may recover compensatory and punitive damages . . . .
42 U.S.C. § 1981a(a)(1). Moreover, compensatory damages as used in § 1981a, include damages for "emotional pain, suffering . . . [and] mental anguish . . . ." 42 U.S.C. § 1981a(b)(3). Thus, Wilkes may recover damages for pain, suffering and humiliation as a result of Chambers' harassment.
Unichema argues that damages for pain and suffering are barred by the exclusive-remedy provision of the Illinois Worker's Compensation Act, 820 ILCS 305/1 et seq.4 In support, Unichema cites Juarez v. American Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992). The Seventh Circuit held in Juarez that emotional distress caused by sexual harassment in the work place is an injury arising from employment, and therefore, affirmed the dismissal of the plaintiff's claim of intentional infliction of emotional distress as being barred by the Illinois Worker's Compensation Act. Id. Juarez, however, is inapposite to the case in controversy for two reasons. First, the plaintiff in Juarez alleged discrimination that occurred in 1986 and 1987; prior to the enactment of the Civil Rights Act of 1991. Second, the claim for intentional infliction of emotional distress dismissed by the Juarez trial court was a state tort claim subject to the Illinois Worker's Compensation Act. In the instant action, Wilkes does not maintain a state tort claim, rather a federal claim for discrimination. Thus, Unichema's argument is without merit.
The court will now turn its attention addressing Unichema's second motion which raises the issue of whether the claims of Johnson and Wilkes are properly joined under Rule 20(a) of the Federal Rules of Civil Procedure. Pursuant to Fed. R. Civ. P. 20(a), joinder of persons as plaintiffs in one action is permitted under certain circumstances. The relevant portion of Rule 20(a) provides that:
All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.