slurs. However, Rush is correct in stating that Paragraph 8 improperly complains of wrongs beyond the dates listed in the EEOC charge. As such, the denial of Rush's motion is limited to the dates listed on the charge of discrimination.
Rush's reliance on Whitehead v. AM Int'l, Inc., 860 F. Supp. 1280 (N.D. Ill. 1994) is misplaced. In Whitehead, this court found that the claim was outside of the scope of the allegations of the EEOC charge. There the plaintiff's EEOC charge contained allegations of racial discrimination. In describing the disparate treatment in her EEOC charge, the Whitehead plaintiff compared her treatment to that of white employees. Yet, in her complaint the plaintiff claimed sexual discrimination and harassment. The allegations in that complaint were not reasonably related to or growing out of the charge. In the case at bar, Fernando's EEOC charge complains that he was subject to different treatment and received negative evaluations because of his race. This claim is reasonably related to Fernando's complaint that he has been effectively denied the opportunity to continue his residence at Rush because of racial discrimination. Accordingly, mindful of the liberal standard district courts are charged to follow, Rush's motion to dismiss Count I, as to the dates listed in the EEOC charge, is denied.
Rush also moved to dismiss the Count II claim of retaliation. However, in its reply brief, Rush appropriately limited the scope of its motion. The Seventh Circuit Court of Appeals considered the retaliation issue in Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th Cir. 1988) cert. denied, 491 U.S. 907, 105 L. Ed. 2d 699, 109 S. Ct. 3191 (1989). In Steffen, the plaintiff failed to allege retaliation in his EEOC charge and instead alleged age discrimination. However, in his complaint the plaintiff alleged retaliation. The Seventh Circuit held that the retaliatory discharge claim, where the retaliation occurred before the filing of EEOC claim, was outside the scope of the EEOC charge. Id. at 544. Similarly, in the case at bar, any claims which allege retaliation prior to the filing of the EEOC claim are outside the scope of Fernando's EEOC charge. Accordingly, such claims are dismissed.
As Rush correctly recognizes, any retaliation claims referring to the time period after the filing of the EEOC charge are proper. The law of this circuit allows a retaliatory discharge claim to proceed without mention of that claim in the EEOC charge where the retaliation occurs after the filing of the charge. Id. at 545 n.2. Therefore, any claims of retaliation occurring after January 26, 1994, are proper and are not dismissed.
Rush also moves the court to dismiss Count III of Fernando's complaint. In Count III Fernando makes a claim against Rush for intentional infliction of emotional distress. Under Illinois law to state a cause of action for intentional infliction of emotional distress, the complaint must satisfy following elements: (1) the conduct involved must be truly extreme and outrageous; (2) the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that the conduct will cause severe emotional distress; and (3) the conduct must in fact cause severe emotional distress. Whitehead v. Am International, 860 F. Supp. 1280, 1290.
This court has said, "Illinois courts have consistently portrayed the tort of intentional infliction of emotional distress as an intentional tort requiring a heightened level of egregiousness in comparison to other intentional torts such as assault and battery." Id. The tort does not assess liability for mere insults, indignities, threats, annoyances, or trivialities. Public Finance Corp. v. Davis, 66 Ill. 2d 85, 4 Ill. Dec. 652, 360 N.E.2d 765 (1977). Rather, liability will be imposed only where the distress inflicted is so severe that no reasonable person could be expected to endure it. Id.; Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993); Whitehead, 860 F. Supp. at 1291.
The court finds that Fernando fails to state a viable claim for intentional infliction of emotional distress. Fernando claims that he was subject to extreme verbal abuse. The court recognizes that these allegations of verbal abuse, if true, are inappropriate and offensive. However, these allegations, as articulated in the complaint, do not rise to the level of extreme and outrageous conduct. See Whitehead, 860 F. Supp. at 1291. Therefore, Count III fails to satisfy the first of the aforementioned requirements. In addition, Count III also fails to satisfy the second requirement. The complaint does not allege that Rush either specifically intended to cause, or knew that such verbal abuse had a high probability of causing, Fernando emotional distress. Id. Accordingly, Count III is dismissed.
For the foregoing reasons Rush's motion to dismiss is granted in part and denied in part.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court