harassment and retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and tortious
interference with business expectancy. The defendants move to
dismiss on various grounds. For the following reasons, the motion
to dismiss is granted in part and denied in part.
Beverly Bowers was recruited by Dana Davis, the assistant
executive director of the Radiological Society, for the position
of manager in the office of research development at the
Radiological Society. Ms. Davis had previously made sexual
advances toward Ms. Bowers while they were both working for the
American School Health Association, and Ms. Davis assured Ms.
Bowers that this would not happen at the Radiological Society.
After moving to the Chicago area for the position with the
Radiological Society, Ms. Bowers stayed with Ms. Davis and
another co-worker in Ms. Davis' townhouse. During this time Ms.
Davis again made advances toward Ms. Bowers, which Ms. Bowers
rejected. In May 1995 Ms. Bowers moved out of the townhouse.
After Ms. Bowers rejected the advances, Ms. Davis avoided
interacting with her and in June 1995 gave her a performance
review that Ms. Bowers thought was unfairly negative. When Ms.
Bowers tried to discuss the review with Ms. Davis, Ms. Davis
became angry and told Ms. Bowers she needed to learn to get along
with her. In July 1995, Ms. Davis replaced Ms. Bowers with a male
employee who was less qualified. Ms. Bowers continued to work at
the Radiological Society in the office of research development,
and in January 1997 Ms. Davis gave Ms. Bowers another performance
evaluation that Ms. Bowers felt was unfair. Ms. Bowers did not
complain because of the previous, negative response. In August
1997, Ms. Davis discouraged Ms. Bowers from applying for the
position of assistant director of the office of research
development, a position that Ms. Bowers had just created. In
February 1998 Ms. Bowers was discharged, on the ground that her
position was going to be eliminated.*fn2
The complaint alleges that Ms. Davis created a hostile and
abusive work environment by verbal and physical conduct, that she
encouraged her subordinates to engage in offensive behavior, and
that she made disparaging remarks about sexual harassment. The
complaint further alleges that the Radiological Society was aware
of the conduct and failed to take corrective action. Count I of
the complaint alleges that Ms. Bowers was subjected to a hostile
work environment and quid pro quo sexual harassment. Count II
alleges retaliation, and count III alleges tortious interference
with business expectancy. The defendants move to dismiss the
Motion to Dismiss Count I
The defendants first argue that the bulk of the allegations in
count I are untimely. Under Title VII, a charge of employment
discrimination must be filed within 300 days of the alleged
violation, or the claims are barred. Speer v. Rand McNally &
Co., 123 F.3d 658, 662 (7th Cir. 1997) Ms. Bowers filed her EEOC
charge on May 1, 1998, and the defendants argue that any
allegations regarding events that took place before July 5, 1997
Ms. Bowers relies on the continuing violation doctrine to bring
her claims within the applicable time period. Specifically, Ms.
Bowers argues that she realized she was a victim of
only after a series of actions took place. In such a situation,
the 300-day filing period begins to run when the plaintiff knew,
or with the exercise of due diligence should have known, of the
discrimination. Jones v. Merchants Nat'l Bank & Trust Co. of
Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994). The purpose of
allowing a plaintiff to bring an action under the continuing
violation doctrine "is to permit the inclusion of acts whose
character as discriminatory acts was not apparent at the time
they occurred." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439,
446 (7th Cir. 1994). Ms. Bowers alleges in the complaint that,
throughout her employment with the Radiological Society, she was
subjected to various forms of sexual harassment. Whether Ms.
Bowers knew or should have known that the acts of which she
complains were discriminatory at the time they occurred cannot be
determined on a motion to dismiss. It is therefore premature to
determine whether allegations relating to events before July 5,
1997 are untimely.
The defendants next argue that the allegations relating to the
replacement of Ms. Bowers with David Laubert in the position of
manager of the office of research development are outside the
scope of the EEOC charge and should be stricken from the
complaint. A plaintiff may include a claim in a federal complaint
that was not brought in charges filed with the EEOC if a
two-prong test is satisfied: "(1) the claim is like or reasonably
related to the EEOC charges, and (2) the claim in the complaint
reasonably could develop from the EEOC investigation into the
original charges." Harper v. Godfrey Co., 45 F.3d 143, 148 (7th
Cir. 1995). A claim is reasonably related to allegations in an
EEOC charge if a factual relationship exits. Id. at 148. "This
means that the EEOC charge and the complaint must, at minimum,
describe the same conduct and implicate the same
individuals." Id. (quoting Cheek v. Western & S. Life Ins.
Co., 31 F.3d 497, 501 (7th Cir. 1994)).
According to Ms. Bowers' EEOC charge, she was employed by the
Radiological Society as a manager of the office of research
development from November 1994 until February 1998. The EEOC
charge does not mention that she was ever replaced in her
position, much less that she was replaced by Mr. Laubert, a male
with fewer qualifications. Allowing Ms. Bowers to bring this
claim in federal court "would frustrate the EEOC's investigatory
and conciliatory role, as well as deprive the charged party of
notice of the charge." Cheek, 31 F.3d at 500. Because Ms.
Bowers' EEOC charge does not mention that she was replaced in her
position as manager or implicate Mr. Laubert, the allegations in
the complaint involving her replacement with Mr. Laubert are
outside the EEOC charge and are stricken from the complaint.
The defendants next argue that Ms. Bowers has complained of
conduct by Ms. Davis that does not constitute adverse employment
action. First, the defendants object to the allegation that Ms.
Bowers received unfair performance reviews. In support of their
argument defendants cite Smart v. Ball State Univ., 89 F.3d 437
(7th Cir. 1996). In Smart, the Seventh Circuit held that
negative performance evaluations standing alone cannot constitute
adverse employment action. Id. at 442-43. The court
distinguished cases where negative reviews were not the sole
claimed adverse action. Id. at 442. Ms. Bowers has alleged that
as a result of the harassment, she was discharged. Therefore,
although the negative reviews standing alone do not constitute
adverse action, the complaint sufficiently alleges adverse
action. The defendants also object to the allegation that Ms.
Bowers was discouraged from applying for the position of
assistant director of the office of research development. Looking
at the facts in the light most favorable to Ms. Bowers, however,
the complaint alleges that Ms. Bowers was discouraged from
applying for a viable position within the office of research
when her own position was being eliminated; she was then
discharged. These allegations are sufficient to survive the
defendant's motion to dismiss.*fn3
The defendants further argue that count I should be dismissed
because Ms. Bowers has failed to allege a nexus between the
sexual harassment and her termination. The complaint, however,
alleges that as a result of the harassment by Ms. Davis, Ms.
Bowers was discharged. The exact circumstances of the discharge,
and the true reasons behind the discharge, cannot be determined
on a motion to dismiss. The complaint sufficiently alleges
causation, and it is premature to dismiss count I in its
Motion to Dismiss Count II
In count II, Ms. Bowers alleges that she was retaliated against
for rejecting Ms. Davis' sexual advances and for refusing to
participate in the hostile work environment. To state a claim for
retaliation, Ms. Bowers must allege 1) that she was engaged in
statutorily protected activity, 2) that she suffered an adverse
employment action, and 3) that there is a causal link between the
protected activity and the adverse action. Brenner v. Brown,
36 F.3d 18, 19 (7th Cir. 1994).
The defendants first argue that Ms. Bowers has not alleged that
she was engaged in protected activity. Under
42 U.S.C. § 2000e-3(a), a plaintiff may bring a claim for retaliation for
protesting an unlawful employment practice under Title VII, for
filing a complaint or charge regarding the unlawful employment
practice, or for participating in an investigation regarding the
unlawful employment practice. Opposition clearly includes filing
a charge with the EEOC, bringing a lawsuit in court, or
submitting a complaint to management. Informal methods of
opposition can also constitute protected activity. See, e.g.,
Alexander v. Gerhardt Enters., 40 F.3d 187, 195 (7th Cir. 1994)
(sending a "professional and noninflammatory memorandum" to
management is sufficient for a retaliation claim). Ms. Bowers,
however, has not alleged that she engaged in any form of
opposition. Instead, she alleges that she refused Ms. Davis'
advances and that she did not participate in the conduct. See
Finley v. Rodman & Renshaw, Inc., 1993 WL 512608, *3 (N.D.Ill.
1993) (holding that refusal of advances falls under a sexual
harassment claim rather than a retaliation claim).
Ms. Davis argues that nonetheless she should be given the
opportunity to develop her retaliation claim. In the EEOC charge,
however, Ms. Bowers alleged that she was subject to sexual
harassment, not retaliation. The EEOC charge contains no factual
allegations that would indicate she was retaliated against for
opposing unlawful employment practices; instead, it alleges that
she was selected for discharge because she rejected Ms. Davis'
advances and because she would not participate in the conduct.
Although the EEOC charge states that Ms. Bowers told Ms. Davis
she was not interested in a sexual relationship, the charge does
not allege that Ms. Bowers complained to anyone, including Ms.
Davis. Ms. Bowers' argument fails accordingly, for further
details she might allege would implicate conduct outside that
which was described in her EEOC charge. Therefore the defendants'
motion to dismiss count II is granted.
Motion to Dismiss Count III
The defendants move to dismiss count III for lack of subject
matter jurisdiction and for failure to state a claim. In count
III, Ms. Bowers alleges that she had an employment contract, or
in the alternative a continuing employment relationship, with
which Ms. Davis interfered. To establish intentional interference
with a contract, Ms. Bowers must show 1) a valid
contract, 2) that Ms. Davis was aware of the contract; 3) Ms.
Davis' intentional and unjustified inducement of a breach; 4) a
subsequent breach caused by Ms. Davis' wrongful conduct; and 5)
resulting damages. HPI Health Care Servs., Inc. v. Mt. Vernon
Hosp., Inc., 131 Ill.2d 145, 545 N.E.2d 672, 676, 137 Ill.Dec.
19, 23 (1989). To establish a tortious interference claim, Ms.
Bowers must show 1) the reasonable expectation of a valid
business relationship; 2) that Ms. Davis knew of the expectancy;
3) that Ms. Davis purposefully prevented the expectancy from
ripening; and 4) resulting damages. Fellhauer v. City of
Geneva, 142 Ill.2d 495, 568 N.E.2d 870, 878, 154 Ill.Dec. 649,
As Ms. Bowers' manager, Ms. Davis is protected by a qualified
privilege. See Hamros v. Bethany Homes & Methodist Hosp. of
Chicago, 894 F. Supp. 1176, 1181 (N.D.Ill. 1995) (recognizing
qualified privilege for manager of human resources department);
Vajda v. Arthur Andersen & Co., 253 Ill. App.3d 345,
624 N.E.2d 1343, 1351-52, 191 Ill.Dec. 965, 973-74 (1st Dist. 1993)
(recognizing qualified privilege for partner who evaluated
plaintiff's performance); Stewart v. Ost, 142 Ill. App.3d 373,
491 N.E.2d 1306, 96 Ill.Dec. 846 (1st Dist. 1986) (recognizing
qualified privilege for co-worker). It is therefore part of Ms.
Bowers' prima facie case to show that Ms. Davis' actions were
unjustified or malicious, regardless of whether her claim is for
interference with an existing contract or a prospective economic
advantage. Fellhauer, 568 N.E.2d at 878, 154 Ill.Dec. at 657.
"The term `malicious,' in the context of interference with
contractual relations cases, simply means that the interference
must have been intentional and without justification." HPI
Health Care, 545 N.E.2d at 677, 137 Ill.Dec. at 24.
The complaint alleges that Ms. Davis was motivated to interfere
with Ms. Bowers' employment by a malicious purpose other than the
Radiological Society's interest, and that Ms. Davis had strong
personal animosity toward Ms. Bowers. The only purpose alleged in
the complaint for Ms. Davis' actions, however, is sexual
harassment. Pursuant to the Illinois Human Rights Act ["IHRA"],
"[e]xcept 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). Sexual harassment is a civil rights violation. 775
ILCS § 5/2-102(D). A court has jurisdiction over a tort claim
only if the claim is not "inextricably linked to a civil rights
violation such that there is no independent basis for the action
apart from the [IHRA] itself." Maksimovic v. Tsogalis,
177 Ill.2d 511, 687 N.E.2d 21, 23, 227 Ill.Dec. 98, 100 (1997) This
means that a plaintiff must "establish the necessary elements of
the tort independent of any legal duties created by the [IHRA]."
Id. at 24, 227 Ill.Dec. at 101.
Based on the allegations in the complaint, Ms. Davis'
interference with Ms. Bowers' contract or business expectation
was wrongful and unjustified because it was conduct prohibited by
the IHRA, sexual harassment. Since the complaint does not
adequately allege each element of Ms. Bowers' tort claim without
relying on a legal duty created by the IHRA, the defendants'
motion to dismiss for lack of subject matter jurisdiction is
For the reasons discussed above, the defendants' motion to
dismiss count I is denied, but allegations relating to Ms.
Bowers' replacement with David Laubert are stricken because they
are outside the scope of the EEOC charge. The defendants' motion
to dismiss count II is granted for failure to state a claim, and
the motion to dismiss count III is granted for lack of subject