worsened to the point that she was forced to quit. See Goodman v. Heitman Fin. Servs., 894 F. Supp. 1166, 1174 (N.D. Ill. 1995) (stating that a short time span between protected activity and adverse action may constitute indirect evidence of retaliatory intent for claim of retaliation.) As such, she has adequately established the third element of her retaliation claim against the dealership. Her retaliation claim against the dealership survives summary judgment. At trial, Frith may dispute, as he has, much of what Damato claims occurred.
Defendants next argue that the Illinois Human Rights Act preempts Damato's battery and hate crime claims. Damato's battery claim is based only on the touchings which occurred as part of her alleged sexual harassment (i.e., buttocks touching). Damato's allegations of national origin discrimination do not involve any touchings of Damato. Defendants argue that, because her battery claim turns on facts which are inextricably linked to her sexual harassment claim, Damato's battery claim is preempted by the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/8-111(C).
In Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 639 N.E.2d 1273, 203 Ill. Dec. 454 (1994), a former employee charged that her supervisor sexually harassed her and that she was terminated after reporting the harassment. Geise, 639 N.E.2d at 1274. The employee sued the employer, alleging in part sexual harassment as well as negligent hiring of her supervisor. Id.
The Illinois Supreme Court held that the trial court lacked jurisdiction over the negligence claim, as it was preempted by the IHRA. Id. at 1276-68. The IHRA states, "Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in [the IHRA]." 775 ILCS 5/8-111(C). Under the IHRA, sexual harassment is a "civil rights violation." 775 ILCS 5/2-102 (D). The Illinois Supreme Court found the Geise employee's negligence claim to be inextricably linked to her sexual harassment claim. Geise, 639 N.E.2d at 1277. Because Illinois law does not otherwise provide for jurisdiction over sexual harassment civil rights claims framed as negligence claims, the Illinois Supreme Court found that the state courts did not have jurisdiction over the negligence claim. Id. at 1278. See also, Schwitzenberg v. Lifeline, Ltd., No. 94 C 5123, 1994 U.S. Dist. LEXIS 17298, 1994 WL 684984 (N.D.Ill., Dec. 6, 1994) (determining that tort of intentional infliction of emotional distress is preempted by the exclusive remedy provision of the Act); Lemon v. Tucker, 625 F. Supp. 1110, 1117 (N.D. Ill. 1985) (holding the procedure provided by the IHRA is not an alternative to filing a private cause of action for the tort of retaliatory discharge in the context of employment discrimination, but the exclusive source of redress).
Damato argues that Geise should not be relied upon for the proposition that the IHRA preempts common law claims which are based on facts identical to a coordinating Title VII claim. She contends that her claims are different from those in Geise because battery, unlike intentional infliction of emotional distress, is not "inextricably linked" to sexual harassment.
The court disagrees. Where a claim for tortious battery rests on the exact same facts as a sexual harassment claim (i.e., an offensive touching of a sexual nature) the battery claim is preempted under Geise. Hannigan-Haas v. Bankers Life & Cas. Co., 1996 U.S. Dist. LEXIS 3618, No. 95 C 7408, 1996 WL 139402, at *7 (N.D. Ill., Mar. 26, 1996). "Where the elements of the tort require proof of nothing more than that proscribed by the Act, and where the tort merely furthers the same policies as the statute, the IHRA will preempt the tort action." Bailey v. Unocal Corp., 700 F. Supp. 396, 404 (N.D.Ill. 1988). See also Lynam v. Foot First Podiatry Centers, P.C., 886 F. Supp. 1443 (N.D. Ill. 1995) (refusing to dismiss battery count in Title VII case for preemption where it was unclear whether battery occurred in sexual context); Al-Dabbagh v. Greenpeace, Inc., 873 F. Supp. 1105, 1115 (N.D. Ill. 1994). This preemption extends to both employers and individual employees. Schwitzenberg v. Lifeline, Ltd., 1994 U.S. Dist. LEXIS 17298, No. 94 C 5123, 1994 WL 684984, at *5 (N.D. Ill. Dec. 6, 1994). Damato does not contend that Frith's touchings were anything but sexual in nature. As such, the Illinois Human Rights Act preempts her claim for battery against both Defendants.
Alternatively, the dealership argues that Damato's battery count is preempted by the exclusive remedy provision of the Illinois Workers' Compensation Act ("IWCA"). The IWCA provides, in relevant part:
(a) No common law or statutory right to recover damages from the employer . . . for injury or death sustained by any employee while engaged in the line of his duty as employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.
820 ILCS 305/5. The IWCA is the "measure of responsibility of any employer" for injury. 820 ILCS 305/11. There are exceptions to the exclusive remedy provisions of the IWCA where injury is not accidental. An injury is not accidental if it did not arise from employment, was not received during the course of employment, or is noncompensable under the IWCA. Small v. Chicago Health Clubs, Inc., 843 F. Supp. 398, 403 (N.D. Ill. 1994). Also, Damato may overcome the exclusive remedy provision if the dealership itself or its alter ego intentionally inflicted, commanded, or expressly authorized the conduct leading to her injury. Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 564 N.E.2d 1222, 1226, 151 Ill. Dec. 560 (Ill. S. Ct. 1990).
An "accident" need not be authorized by the employer. Id. Certainly, Damato's alleged injuries arose out of her employment and were received in the course of employment. Her supervisor acted during Damato's employment and "on the company premises and during the course of his employment." (Compl. at PP 8-10, 20.)
Workplace assaults and batteries are generally compensable under the IWCA, and, therefore, not actionable at common law. Rodriguez v. Industrial Com'n., 95 Ill. 2d 166, 447 N.E.2d 186, 68 Ill. Dec. 928 (Ill. S. Ct. 1982). In Rodriguez, the aggressor in an altercation between two employees fractured his co-employee's skull while shouting epithets about the co-employee's national origin. 447 N.E.2d at 189-90. The court determined that, although the attack may have been motivated by the co-employee's national origin, attacks are a work hazard faced by employees which are compensable under the IWCA. Id. Like attacks based on national origin, attacks based on gender are a work hazard faced by employees which are compensable under the IWCA.
Damato may also overcome IWCA preemption by demonstrating that the dealership itself or its alter ego intentionally inflicted, commanded, or expressly authorized the conduct leading to her injury. Meerbrey, 564 N.E.2d at 1226. However, Damato has not attempted to plead either of these alternative theories of liability. She alleges only that Frith was her supervisor, not that he was the alter ego of the dealership. Damato's assertion that Frith battered her while he was at work does not establish that the dealership authorized the battery. Carlson v. Northwestern Univ., 1994 U.S. Dist. LEXIS 4770, 65 Fair Empl. Prac. (BNA) 797, p. 13 (N.D. Ill. 1994) (determining that allegation of supervisor acting within discretionary authority is not the equivalent of alleging that employer authorized the conduct).
When the person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, but merely a foreman, supervisor or manager, both the legal and the moral reasons for permitting a common-law suit against the employer collapse, and a substantial majority of modern cases bar a damage suit against the employer.