her that she "turned them in" to management and that they cannot
have "potty mouth" in her presence. Eager again reported the incidents
that had happened since March 2001, but ComEd told her that the
commentary was not directed at her; the men were discussing a cable TV
program on prostitution.
On May 4, 2001, Eager filed a second EEOC charge, and received a right
to sue letter on July 19, 2001. Eager filed this lawsuit on May 1, 2001,
and her second amended complaint in August 2001. She sues under Title VII
for sexual harassment (count I) and retaliation (count II), as well as
under state law counts of assault and battery (count III), assault (count
IV), and intentional (count V) and negligent (count VIII) infliction of
emotional distress. (I follow Eager's numbering; there are no counts VI
On a motion to dismiss, I accept all well-pleaded factual allegations
of the plaintiff and draw all reasonable inferences in her favor. Colfax
Corp. v. Illinois State Toll Hwy. Auth., 79 F.3d 631, 632 (7th Cir.
1996). Dismissal is only appropriate if it appears beyond doubt that she
can prove no set of facts that would entitle her to relief. Id. ComEd
argues that Eager's Title VII claims should be dismissed for procedural
reasons because her claims based on events occurring before December
15th, 1999, 300 days before the filing of her first EEOC charge on
October 10, 2000, are untimely, and therefore that I should not exercise
jurisdiction over her state law claims.
In response, Eager invokes the continuing violations doctrine, under
which conduct that falls outside the limitations period is actionable if
it is linked with related acts that fall within the period. Selan v.
Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The doctrine is applicable when
the conduct can be recognized as actionable only in the light of later
events that occurred within the limitations period, Filipovic v. K & R
Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999), because the
plaintiff had no reason to believe that she had been subject to actionable
conduct when the events outside the limitations period occurred. Selan,
969 F.2d at 565-66. For the doctrine to apply, a plaintiff must allege
some act occurring within the limitations period. Young v. Will County
Dep't. of Public Aid, 882 F.2d 290, 292 (7th Cir. 1989). ComEd says that
Eager was not even at the workplace from June 11, 1999, through March
2001, and so no such act is alleged. This is not in fact clear from the
face of the complaint, but Eager does not dispute it. However, the
argument presupposes that the events occurring after March 5, 2001 cannot
be considered. ComEd says that Eager failed to allege that she received a
right-to-sue letter on charges based on those events. This defect,
however, has been corrected in the second amended complaint.
By itself that emendation would not be enough if the contested events
could have been recognized as actionable when they occurred. Galloway v.
G.M. Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996) ("The
plaintiff may not base her . . . suit on conduct that occurred outside the
. . . limitations [period] unless it would have been unreasonable to
expect the plaintiff to sue before the statute ran on that conduct, as in
a case in which the conduct could constitute, or be recognized, as
actionable harassment only in the light of events that occurred later,
within th[at] period."). But if the conduct could be recognized as a
violation, it would not be reasonable for the plaintiff to sue.
The question is, how bad were the events before December 15, 1999? As I
have explained in connection with the continuing violations doctrine:
The logic of the . . . doctrine reverses the normal
stances of the parties. A Defendant who wishes to
argue that the events it wants excluded fall outside
the limitations period has to argue that, if the facts
were as the plaintiff said, they would have
constituted actionable harassment, and that the
plaintiff unreasonably failed to complain when her
cause of action accrued. Meanwhile a plaintiff who
wants to bring in events . . . has to argue that they
did not constitute actionable harassment, and could
only later be recognized as forming a pattern of
illegal conduct. In short, the defendant must say: "We
were really awful, but it's too late"; while the
plaintiff must say: "Oh, they weren't that bad
— until less than 300 days before I filed." The
law does put the defendant opposing the application of
the . . . doctrine in a delicate position, but that is
because the alternative is to put the plaintiff
invoking the doctrine in an impossible position.
Bowers v. Radiological Soc. of N. Am., Inc., 98 F. Supp.2d 951, 955-56
(N.D. Ill. 2000). However, "if the earlier acts were the serious ones and
the later acts were not essential to make it apparent to the victim that
she had a claim for sexual harassment, she can still sue within 300 days
of the last act, but she cannot reach back and impose liability for the
earlier acts." Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th
Sexual harassment is "the form of sex discrimination in the terms or
conditions of employment that consists of efforts either by coworkers or
supervisors to make the workplace intolerable or at least severely and
discriminatorily uncongenial to women ("hostile work environment"
harassment), and also efforts (normally by supervisors) to extract sexual
favors by threats or promises ("quid pro quo" harassment). Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998). This a hostile working
environment case. To be actionable under this theory, a plaintiff must
show the harassment to be "sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working environment."
Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) The standard for
such harassment in this circuit is fairly hard to meet. Under the hostile
environment theory, "[t]he concept of sexual harassment is designed to
protect working women from the kind of male attentions that can make the
workplace hellish for women. . . . It is not designed to purge the
workplace of vulgarity." Baskerville v. Culligan Int'l. Co., 50 F.3d 428,
430 (7th Cir. 1995). There, the appeals court held that the following
conduct, over a period of seven months, amounted to mere "occasional
vulgar banter, tinged with sexual innuendo, of coarse or boorish
workers," id., and was not actionable harassment: calling the plaintiff
"pretty girl"; grunting when she wore a leather skirt; suggesting she
heated up his office, telling her that a P.A. system "attention"
announcement meant that "All pretty girls run around naked"; implying
that "pretty girls" at the office party might make him "lose control";
insinuating that she and he had been "dancing, like in a nightclub"; and
mentioning that it was lonely in his hotel and stating, with a gesture
suggesting masturbation, that all he had for company was his pillow. Id.
In other cases, the appeals court, applying the "severe and pervasive"
standard, held that it was not sexual harassment for a defendant to ask
the plaintiff for dates on repeated occasions, place signs which read "I
love you" in her work area, and attempt twice to kiss her, Weiss v.
Coca-Cola Bottling Co. of Chicago,
990 F.2d 333, 337 (7th Cir. 1993)
(incidents were too isolated and insufficiently severe); accord Saxton
v. ATT Co., 10 F.3d 526 (7th Cir. 1993) (not actionable when the
defendant had on one occasion put his hand on the plaintiff's leg, later
kissed her until she pushed him away, and a few weeks later jumped out at
her from behind some bushes and tried to grab her). The Seventh Circuit
has said that "although sporadic behavior, if sufficiently abusive, may
support a [hostile environment] claim, success often requires repetitive
misconduct." Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1345 (7th Cir.
In view of this case law, and drawing (as the law requires) all
reasonable inferences in favor of Eager, a reasonable person in Eager's
position could conclude that her cause of action for sexual harassment had
not accrued until after December 15, 1999. She presents allegations of
sporadic resentment towards women doing the job in 1992-95, along with
some vulgar comments about her nipple size; in 1993, some coworkers
showed her some pornographic pictures and made a few vulgar and
suggestive remarks. Then there is nothing until 1998, when there is the
ambiguous gesture with the chair. Misconduct escalated in 1998, with more
comments expressing resentment that she was doing a "manes job," comments
about her breasts and other sexual vulgarities, and threats of violence
when she reported the problems to management. However, since the Seventh
Circuit has held in Saxton that sometimes even actual unwanted physical
contact (kissing and folding) is not actionable, a reasonable person
might think that Eager did not have a sexual harassment claim that she
could bring. Whether she did I need not decide here; the question is
whether a reasonable person would have thought she did.
Eager, of course, did think she had such a claim by October 1999, when
she filed her first EEOC charge, but the standard for a continuing
violation is objective. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439,
446 (7th Cir. 1994) (citing Martin v. Nannie & Newborns, Inc., 3 F.3d 1410,
1415 n.E (10th Cir. 1993) ("[T]he continuing violation theory is premised
on the equitable notion that the statute of limitations should not begin
to run until a reasonable person would be aware that h[er] rights have
been violated."). What Eager actually thought is therefore irrelevant if
a reasonable person could have thought otherwise, and I must draw the
inferences in her favor, which here means finding, for the purposes of
this motion, that a reasonable person would think that she was mistaken
to think that her cause of action had accrued by October 1999, when she
filed her first EEOC complaint.
To invoke the continuing violations theory, Eager also needs an
allegation of actionable conduct within the limitations period, but the
defendants do not argue that she lacks such allegations; they only argue
that pre-limitations period conduct should be excluded. In any event, she
does indeed present sufficient allegations of misconduct within the
limitations period: pornographic materials being displayed in the vehicle
to which she was assigned, crude sexual taunts, and the like, combined
with failure of management to restrain this conduct when she complained.
Because I allow the earlier allegations of misconduct in on the
continuing violations theory, Eager may sue for damages on all the sexual
harassment alleged, not just on the post-limitations facts.
I do, however, in part dismiss Eager's state law claims for lack of
subject matter jurisdiction. In a federal question case, I have
jurisdiction over state claims that share a "common nucleus of
facts" with the federal claims. United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 725 (1966); Myers v. County of Lake, 30 F.3d 847,
850 (7th Cir. 1994). Eager's claims connected to her electrocution
accident share no such common nucleus. There is no suggestion that ComEd
compelled Eager to work excessively long hours, and so to incur serious
injury, as a form of sexual discrimination, or that this unfortunate
event is in any way related to Eager's Title VII claims except by way of
temporal coincidence. It may have been inhumane for ComEd to insist that
Eager work on the line while she was exhausted, but the federal
discrimination laws do not prohibit even oppressive employment practices
if they are not imposed because of the plaintiff's membership in a
protected category. The occupational safety laws are the federal statutes
that deal with unsafe working conditions.
Here, therefore, unlike Mobley v. Kelly Kean Nissan, Inc.,
864 F. Supp. 726 (N.D. Ill. 1993), which Eager cites, the federal claims
do not "involve the same set of facts that animate the state claims."
Id. at 731. "A loose factual connection between the [state and federal]
claims is generally sufficient" for supplemental jurisdiction. Ammerman
v. Sween, 54 F.3d 423, 424 (7th Cir. 1995). But unlike Ammerman, where
the Seventh Circuit found that there was supplemental jurisdiction
because, "without reference to the facts surrounding the assault, there
could have been no sexual harassment claim against the employer," id.,
here, Eager's Title VII claims would be unaffected if the electrocution
claims were dismissed. With respect to those claims, therefore, it is not
the case that the "factual allegations regarding incidents of physical
assault and battery . . . are highly relevant to the determination of
whether a hostile work environment existed." Lynam v. Foot First Podiatry
Centers, P.C., 919 F. Supp. 1141, 1148 (N.D. Ill. 1996). Counts III
(assault and battery) and VIII (negligent infliction of emotional
distress), insofar as they state claims relating to the electrocution,
are dismissed for lack of subject matter jurisdiction.
However, Eager argues persuasively that count IV (assault) seeks relief
for injuries directly related to the sexual harassment, including threats
that Eager would be "pimp-slapped," and even of sexual assault (see,
e.g., second amended complaint ¶ 41). indeed, if the misconduct is
sufficiently "severe," sexual harassment may implicate the common law
torts of assault and (where there is physical contact) battery, as well
as violate antidiscrimination laws, and thus render at least the
immediate harassers liable for intentional torts, and under the
appropriate circumstances, perhaps the employer as well. Count IV stands.
ComEd argues that Eager's count V, alleging intentional infliction of
emotional distress, is preempted by the Illinois Worker's Compensation
Act, 820 ILCS 305/1 et seq. ("IWCA"). Eager's response that, in other
contexts, I have held that sexual harassment claims are not preempted by
the Illinois Human Rights Act, is not to the point. The IWCA is a
different statute. More promising is her invocation of Meerbrey v.
Marshall Field and Co., 564 N.E.2d 1222 (Ill. 1990), for the proposition
that if a plaintiff can prove that "the injury (1) was not accidental,
(2) did not arise from his or her employment, (3) was not received during
the course of employment or (4) was noncompensable under the Act," the
negligent infliction of emotional distress claim is not barred by the
IWCA. Id. at 1226 (citation omitted). Meerbrey "involved claims of
intentional torts, not claims of negligent infliction of emotional
distress. . . . [I] conclude that the four exceptions do not apply to
claims of negligent
infliction of emotional distress." Porter v. IBM
Corp., 21 F. Supp.2d 829, 833 (N.D. Ill. 1998). However, an intentional
infliction claim is clearly a claim of intentional tort, alleging conduct
that is not accidental, and so falls under the first prong of Meerbrey.
Eager's claim of intentional infliction of emotional distress is not
preempted by the IWCA.
I DENY ComEd's motion to dismiss counts I and II (Title VII) and IV
(assault). I GRANT the motion to dismiss with respect to count III
(assault and battery), and I GRANT in part (with respect to the
electrocution claims) to motion to dismiss count VIII (as Eager reckons
it) but I DENY the motion with respect to the sexual harassment claims
under those counts. The intentional infliction of emotional distress
claim in count V is not preempted, and the motion to dismiss is DENIED.
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