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
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
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
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 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 ...