United States District Court, Northern District of Illinois, Eastern Division
February 17, 2000
ANNAMARIE QUELA, SHELBY MIGNAULT, TABATHA IRVIN, AND MICHAEL HAKIM, PLAINTIFFS,
PAYCO-GENERAL AMERICAN CREDITS, INC. AND OUTSOURCING SOLUTIONS, INC., DEFENDANTS.
The opinion of the court was delivered by: Castillo, District Judge.
MEMORANDUM OPINION AND ORDER
Annamarie Quela, Shelby Mignault, Tabatha Irvin, and Michael
Hakim ("Plaintiffs") sued Payco-General American Credits, Inc.
and Outsourcing Solutions, Inc. ("Defendants"), alleging sexual
harassment and retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C.
§ 2000e et seq. ("Title VII"), harassment under the Cook County
Human Rights Ordinance ("Ordinance"), assault, and battery.*fn1
Defendants filed a motion to dismiss the three state claims,
which we grant in part and deny in part.
In November 1997, Hakim began work as a collector at Payco, a
debt collection company. Hakim alleges that, shortly after he
began working at Payco, Defendants, through Payco manager, George
Chaharbakhski, and other employees, began verbally and physically
harassing him because of his perceived sexual orientation. As a
result, Hakim filed a charge with the Cook County Human Rights
Commission ("Commission"), alleging that Defendants discriminated
against him in violation of the Ordinance. The Commission granted
him the right to proceed to civil court in accordance with the
Ordinance. Subsequently, Hakim brought the claim as Count III in
Plaintiffs' amended complaint filed in this Court. In addition,
he presents claims for assault (Count V) and battery (Count IV).
Currently pending before the Court is Defendants' motion to
dismiss Counts III, IV, and V.
I. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure does not test whether the plaintiff will
prevail on the merits, but instead whether the plaintiff has
properly stated a claim for which relief may be granted. Pickrel
v. City of Springfield, Ill., 45 F.3d 1115, 1118 (7th Cir.
1995). In ruling on a motion to dismiss, the court must presume
all of the well-pleaded allegations of the complaint to be true.
Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53
L.Ed.2d 557 (1977). We also presume "that general allegations
embrace those specific facts that are necessary to support the
claim." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889,
110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Dismissal under Rule
12(b)(6) is proper only if it appears "beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Panaras v.
Liquid Carbonic Indus. Corp., 74 F.3d 786, 791 (7th Cir. 1996).
II. Count III: Discrimination under the Ordinance
In Count III, Hakim alleges discrimination under the Ordinance,
based on perceived sexual orientation. Defendants move to dismiss
this claim, arguing that Cook County's attempt to vest original
subject matter jurisdiction over claims involving the Ordinance
in the civil courts was an unconstitutional attempt to exercise
authority over state-wide institutions. Specifically, Defendants
assert that the Ordinance provision authorizing Hakim to bring
his claim before this Court via our supplemental jurisdiction
over certain state law claims is unconstitutional because it
places a prohibited burden on the judicial system.
Hakim argues that the Ordinance is a valid exercise of Cook
County's home rule authority under Section 6(a) of Article VII of
the 1970 Illinois Constitution. That section of the 1970
Constitution provides that:
Except as limited by this Section, a home rule unit
may exercise any power and perform any function
pertaining to its government and affairs including,
but not limited to, the power to regulate for the
protection of the public health, safety, morals and
welfare; to license; to tax; and to incur debt.
This constitutional grant of power to home rule units is "broad
and imprecise and . . . purposely left without definition."
Ampersand, Inc. v. Finley, 61 Ill.2d 537
, 338 N.E.2d 15
(1975); Ill. Const. art. VII,
§ 6(m) (the Illinois Constitution provides that the "powers and
functions of home rule units shall be construed liberally"). Home
rule units' powers, however, are not unlimited and should "relate
to their own problems, not to those of the state or the nation,"
Ampersand, 338 N.E.2d at 18 (quoting Report of Local Government
Committee, 7 Proceedings 1621). Thus, while "mindful of the
liberal construction mandate," the Illinois Supreme Court has
struck down home rule ordinances that "did not pertain to the
government or affairs of the local unit." Id. at 18.
The Ordinance at issue in this case grants plaintiffs a private
right of action to bring their complaints before a state
tribunal. The Ordinance authorizes the Commission to determine,
inter alia, when a complainant can file suit in a court of
general jurisdiction and the time limits on a complainant's right
to bring suit. A Cook County trial court, considering the same
Ordinance at issue in this case, found it to be unconstitutional
because it created a private right of action for sexual
harassment and impermissibly burdened the judiciary by attempting
to control or dictate procedures to the state judiciary. See
Lucas v. Zeta Int'l, No. 96 M3 2687 (Cook Cy. Cir. Ct. Jan. 26,
1998) (attached to R. 19, Defs.' Mot. to Dismiss, Ex. B). The
Lucas court relied on Ampersand, which explained that the
administration of justice in Illinois is a matter of state, and
not local, concern. Ampersand, 338 N.E.2d at 18. In
Ampersand, the Illinois Supreme Court struck down a home rule
county's ordinance that imposed filing fees in civil suits, which
were used to finance the county law library. The court was unable
to "accept defendants' argument that since the operation of the
library is a local function so also is the imposition of the fee
to support it. The payment of the fee under the ordinance is the
price of admission to the courts of the State of Illinois and not
to the Cook County Law Library." Id. at 18-19. The court stated
that "[a]rticle VI of the 1970 Constitution does not contemplate
nor does it authorize the exercise of any control over or permit
the imposition of a burden on the judicial system by any local
entity." Id. at 18.
The Lucas court also relied on City of Carbondale, in which
the Illinois Supreme Court stated that, while the concerns
underlying a home-rule city's eminent domain ordinances were
local in character, enforcement of the ordinance attempted to
dictate procedures that state courts were to follow and therefore
"impermissibly interfere[d] with the State judiciary system."
City of Carbondale v. Yehling, 96 Ill.2d 495, 71 Ill.Dec. 683,
451 N.E.2d 837, 840 (1983). Applying these cases to the
Ordinance, the Lucas court held that enforcement of the
Ordinance impermissibly burdened the state judicial system. We
agree with the well-reasoned opinion of our state court colleague
in Lucas. Therefore, Count III is dismissed with prejudice.
In their response, Plaintiffs argue that, because sexual
orientation discrimination is not within the scope of the
Illinois Human Rights Act ("IHRA"), it is not preempted by the
limitations found in the IHRA. Defendants, however, do not argue
preemption and do not take issue with Cook County's ability to
pass the Ordinance, only that the enforcement mechanism is
invalid because it is unduly burdensome on the judiciary. In any
case, we need not reach that issue. See id. at 841 ("It is
unnecessary for us to discuss the question of the State's
preemption since we have found that the method of enforcement . .
. goes beyond [the city's] home rule authority.").
III. Assault and Battery Counts
A. Illinois Workers' Compensation Act
Defendants argue that Hakim's assault and battery claims are
barred by the exclusivity provision of the Illinois Workers'
Compensation Act ("IWCA"). Section 5(a) of the IWCA provides
No common law or statutory right to recover damages
from the employer . . .
or the agents or employees of . . . [the employer]
for injury or death sustained by any employee while
engaged in the line of his duty as such 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(a). The IWCA, therefore, bars an employee from
bringing a common law cause of action against his employer unless
he can prove that (1) the injury was not accidental; (2) the
injury did not arise from his employment; (3) the injury was not
received during the course of employment; or (4) the injury was
not compensable under the IWCA. Hunt-Golliday v. Metropolitan
Water Reclamation Dist. of Greater Chicago, 104 F.3d 1004, 1016
(7th Cir. 1997) (citing Meerbrey v. Marshall Field and Co.,
Inc., 139 Ill.2d 455
, 151 Ill.Dec. 560
, 564 N.E.2d 1222
(1990)). Hakim argues that, because the injury was not
accidental, his assault and battery claims are not barred. We
Although a co-employee's intentional infliction of injuries may
qualify as "accidental" within the meaning of the IWCA, "injuries
which the employer or its alter ego intentionally inflicts upon
an employee or which were commanded or expressly authorized by
the employer" do not and, thus, are not barred. Meerbrey, 151
Ill.Dec. 560, 564 N.E.2d at 1226. In this case, Hakim alleges
that Chaharbakhski was his manager, (Am. Compl. at Count III, ¶
19) and intentionally committed assault and battery, "in
furtherance of the defendants' business," (id. at Count IV, ¶
31, Count V ¶ 30.) In addition, Hakim alleges that
Chaharbakhski's actions were "subsequently ratified by the
defendants who failed to take any action against Chaharbakhski
after having knowledge of the conduct." (Id.) Furthermore,
Hakim claims that Defendants acted with malice and a total
disregard for Hakim's right to be free from the assault and
battery. (Id. at Count IV, ¶ 32, Count V, ¶ 32.) Courts have
recognized that management's knowledge coupled with lack of
follow-up action is equivalent to express authorization of
injurious conduct. Mobley v. Kelly Kean Nissan, Inc.,
864 F. Supp. 726, 730 (N.D.Ill. 1993); Cline v. General Elec. Capital
Auto Lease, Inc., 757 F. Supp. 923, 931 (N.D.Ill. 1991).
Therefore, the IWCA does not bar Counts IV and V and Defendants'
motion to dismiss these counts is denied.*fn3
B. Preemption by the Ordinance
As seen above, the Ordinance unconstitutionally burdens the
judiciary, and, thus, its enforcement provisions are invalid.
Therefore, the Ordinance has no application in this case, and
cannot preempt the assault and battery claims.
IV. Supplemental Jurisdiction
Finally, Defendants argue that Hakim's assault and battery
claims and the Title VII claims do not arise out of a common
nucleus of operative fact and therefore we should not exercise
supplemental jurisdiction over these state claims. As long as a
federal court has original jurisdiction of a claim,
28 U.S.C. § 1367(a) dictates that the court "shall have supplemental
jurisdiction over all other claims that are so related to claims
in the action within such original jurisdiction that they form
part of the same case or controversy." "A loose factual
connection between the claims is generally sufficient." Ammerman
v. Sween, 54 F.3d 423, 424 (7th Cir. 1995). In the instant case,
that requirement is met. The factual allegations underlying
Hakim's assault and battery claims are relevant to his
retaliation claim under Title VII. In his retaliation claim,
Hakim alleges that, because he prepared and presented a statement
regarding the hostile work environment to management, he "was
subjected to physical threats, intimidation and verbal abuse from
his manager, Chaharbakhski, who threatened Hakim with physical
harm unless he immediately
recanted his statement." (Am. Compl. at Count II, ¶ 34.)
Similarly, his assault and battery claims are based on his
allegation that Chaharbakhski engaged in a pattern of physically
and verbally abusing him for two years. Thus, Hakim's claims
exhibit the "loose factual connection" required for supplemental
For these reasons, we grant the defendants' motion to dismiss
Count III (violation of the Ordinance) and deny the motion to
dismiss Counts IV (battery) and V (assault). (R. 0-0; 18-1 and
32-2.) Defendants' answer will be due on or before February 28,
2000. The date for the filing of the joint status report is
hereby reset to February 27, 2000. The parties are specifically
requested to address whether it is appropriate to have all
Plaintiffs' claims joined in one lawsuit in their status report.
A status hearing will be held in open court on February 29, 2000
at 9:45 a.m.