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EAGER v. COMMONWEALTH EDISON COMPANY

February 20, 2002

KRISTEN EAGER, PLAINTIFF,
V.
COMMONWEALTH EDISON COMPANY, A DOMESTIC AND FOREIGN CORPORATION, AND ITS PARENT EXELON CORPORATION, A FOREIGN CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo, Judge

MEMORANDUM OPINION AND ORDER

Karen Eager was hired by Commonwealth Edison and its parent Excelon (collectively "ComEd") as a meter reader in 1990, but since September 1991, she worked as an electrical lineman in ComEd's Overhead Department at its University Park facility in Kankakee, Illinois. Her job involved climbing poles and doing overhead electric work. She was one of two women among the non-supervisory employees at the University Park facility. She says that she was subject to sexual harassment and retaliation from 1993 to 1999, when she took a disability leave of absence because she was electrocuted when she was compelled to work while exhausted, and then sexually harassed and retaliated against her since she returned this year. She sues under Title VII and several state common law causes of action. ComEd moves to dismiss. I deny the motion in part and grant it in part.

I.

According to Eager's complaint, which I must credit for the purpose of this motion, she has not been treated well by her male co-workers or the management at ComEd. in 1992-95, co-workers told her that women should not be performing overhead or electrical work; that the men would "break" her, and made statements and jokes about the size of her nipples. In 1993, coworkers showed her pornographic pictures, asked her if she would warm her hands on their private parts, and told her she should be performing in the manner depicted in Playboy. In 1998, a coworker ripped a pad from a chair and told Eager to stick it in her pants. In July 1998, she testified in a sexual harassment investigation involving another woman, stating that she had seen pornography in ComEd trucks; that she was assigned by a supervisor to vacuum, and was told, "This is what [you] are supposed to be doing for a living"; and that her supervisor remarked on her breasts. As a result of the response to this investigation, ComEd told her that they were "sorry for opening another can of worms." In late 1998, various male employees told Eager to bend over so that they could see down her shirt; one stated that his chest was bigger than hers; and, despite Eager's requests to stop, they joked about visiting "titty bars" after work. Between January and June 1999, co-workers asked Eager if she "cuddled after sex," remarked about her body parts, and said they wanted to her have their baby. Between January and June 1999, in retaliation for her complaints, male co-workers began to call Eager names, such as "bitch," and "stuck-up bitch." Eager again complained to management, who told her that they would set up a meeting to address the problem. Male coworkers began taunting her, telling her that she was "starting trouble," and one stated that he would "pimp-slap" her. In October 2000, some of her male co-workers said falsely that she did not do her work and that men had to do her work. On October 10, 2000, Eager filed an EEOC charge alleging sexual harassment and discrimination.

Meanwhile, on June 11, 1999, Eager was electrocuted and burned while working on an overhead power line, after ComEd compelled her to work for 23 1/2 hours the previous day. She was seriously injured. Her right index finger had to be amputated; she had to undergo skin grafts and other recovery, and she suffers from permanent physical and emotional injuries, including post-traumatic stress disorder ("PTSD"). From June 1999 through early March 2001, Eager was placed on a disability leave of absence. She returned to full employment in March 2001.

On about March 20, 2001, Eager was assigned to a truck that contained pornographic materials, which exacerbated her PTSD. She complained to management and had to leave work ill. Management told the male employees that they should not have "inappropriate" materials, but the workers laughed, joked, and dared management to define "inappropriate." Management took no further action. On about March 30, Eager's male coworkers said at work and in her presence that women were "bitches," "pussies," "played games by not giving up pussy," were "fucking bitches," and would "cut your dick off." Eager became ill, required medical treatment, and again had to leave work early. She reported the harassment and illness to management, and asked that she not be identified as the complaining party. But shortly after Eager returned to work in April 2001, and through the filing of this lawsuit, her male coworkers have taunted 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 and VII).

II.

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 ...


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