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06/28/96 RADA MAKSIMOVIC v. WILLIAM T. TSOGALIS

June 28, 1996

RADA MAKSIMOVIC, PLAINTIFF-APPELLANT,
v.
WILLIAM T. TSOGALIS, WILLIAM T. INC., AND ILLINOIS CORPORATION D/B/A TIFFANY'S RESTAURANT, AND P.C. PARTNERS D/B/A COMFORT INN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Jacqueline P. Cox, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice Rakowski delivers the opinion of the court: McNAMARA and Egan, JJ., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivers the opinion of the court:

Plaintiff, Rada Maksimovic, filed suit against defendants, William T. Tsogalis, William T. Inc., an Illinois corporation doing business as Tiffany's Restaurant, and P.C. Partners doing business as Comfort Inn. Plaintiff's complaint contains five counts, only three of which are relevant here. These counts are directed at William T. Tsogalis and allege causes of action for assault, battery, and false imprisonment. The circuit court granted defendants' *fn1 motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1994)) or in the alternative section 2-619(a) (735 ILCS 5/2-619(a) (West 1994)), finding it lacked subject matter jurisdiction pursuant to Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 203 Ill. Dec. 454, 639 N.E.2d 1273 (1994). Plaintiff appeals contending Geise does not apply and the Human Rights Act (the Act) (775 ILCS 5/1-101 et seq. (West 1994)) does not preempt her claims. We affirm.

I. FACTS

Plaintiff began working for defendant on October 14, 1992, as a waitress in his restaurant. From the beginning, he verbally assaulted her and began making improper, unsolicited sexual advances. In Count III (assault), plaintiff alleges defendant made verbal threats, threatened to "give her a stiff one up the ass," told her to perform oral sex on him, made comments about her breasts, and said she was too friendly to customers and not to him. In Count IV (battery), plaintiff alleges defendant placed his hand under her skirt and grabbed her leg, grabbed her buttocks, and attempted to kiss her. In Count V (false imprisonment), plaintiff alleges defendant confined her in a walk-in cooler and told another waitress to leave. He made sexual advances, including touching her body, and would not allow her to leave although she attempted to.

As a result of the above, plaintiff was forced to quit on August 9, 1993. On November 1, 1993, plaintiff filed a complaint with the Illinois Human Rights Commission and on March 9, 1994, she filed the instant complaint.

II. ANALYSIS

The sole question presented is whether plaintiff's claims for assault, battery, and false imprisonment are preempted by the Illinois Human Rights Act.

Section 5/8-111(C) of the Act 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 this Act." 775 ILCS 5/8-111(C) (West 1994).

In Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 203 Ill. Dec. 454, 639 N.E.2d 1273 (1994), plaintiff filed suit against employer and employee. The counts against employer alleged negligent retention and negligent hiring. The counts against employee alleged battery and intentional infliction of emotional distress. In Geise, plaintiff alleged her manager made numerous non-consensual sexual advances towards her and she repeatedly reported this conduct to her supervisors. She averred employee attempted to kiss her, touch her body, placed his hand on her body, placed objects down her shirt, and misled plaintiff into thinking lunch engagements were for business purposes when they were used to make sexual advances. Plaintiff also alleged employee had a history of such conduct. The counts against employee were not before the supreme court.

Before the supreme court, employer contended that plaintiff's claims were barred by the exclusivity provision of the Act because the claims were tantamount to a charge of sexual harassment. The supreme court agreed finding that plaintiff's claims could be construed as seeking redress for a "civil rights violation" which remedy lies exclusively within the Act. It relied on Mein v. Masonite Corp., 109 Ill. 2d 1, 7, 92 Ill. Dec. 501, 485 N.E.2d 312 (1985). *fn2 The court stated:

"The concept of sexual harassment is inextricably linked to the claims made by [plaintiff] in counts III and IV. Absent the allegations of sexual harassment, [plaintiff] would have no independent basis for imposing liability on her former employer under the facts present here. Counts III and IV depend on the prohibitions against sexual harassment for their viability." Geise, 159 Ill. 2d at 516-17.

Plaintiff contends that the trial court erred in dismissing her claims because the Act does not abrogate recovery for common law torts of assault, battery, or false imprisonment. Plaintiff relies on a number of cases ( Sutton v. Overcash, 251 Ill. App. 3d 737, 191 Ill. Dec. 230, 623 N.E.2d 820 (1993); Pavilon v. Kaferly, 204 Ill. App. 3d 235, 149 Ill. Dec. 549, 561 N.E.2d 1245 (1990); Ritzheimer v. Insurance Counselors, Inc., 173 Ill. App. 3d 953, 527 N.E.2d 1281 (1988); Bailey v. Unocal Corp., 700 F. Supp. 396 (N.D. Ill. 1988); Clay v. Quartet Manufacturing Co., 644 F. Supp. 56 (N.D. Ill. 1986)) and states that the test of whether a common law action is preempted is "whether the Human Rights claim and the cause at bar are so substantially similar that to allow both cases to be litigated is to encourage multiplicity of law suits and the possibility of inconsistent judgments." According to plaintiff, her sexual harassment claim and the claims before this court are not substantially similar. She contends she is seeking different recoveries and the causes are factually different since the elements are different. Additionally, she states that "recovery in one forum would not necessarily preclude or mandate recovery in the other forum." Finally, she alleges the trial court misapplied Geise because in Geise the only counts ...


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