United States District Court, N.D. Illinois
January 28, 2004.
JOSEPHINE CATALAN, Plaintiff,
SCHIELE GRAPHICS, JOHN KONTEK, and SAM PUGLISI, Defendants
The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Josephine Catalan has brought this action against her
former employer, Schiele Graphics ("Schiele"), and two of her
supervisors, alleging violations of Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., Intentional
Infliction of Emotional Distress ("HED"), and Battery. Defendants Schiele
and John Kontek have moved to dismiss parts of Catalan's Complaint. For
the reasons stated below, defendants' respective motions to dismiss are
each granted in part and denied in part. Count I of Catalan's Complaint
(Sexual Harassment) is dismissed as to defendants Kontek and Puglisi, and
Count II (Retaliation) is dismissed as to all defendants. Defendants'
respective motions to dismiss Count III (IIED) are denied.
At all times relevant to her claims, plaintiff Josephine Catalan was
employed as a maintenance worker for defendant Schiele. Catalan alleges
that during her employment she was sexually harassed by her supervisors
and that her employment was terminated when she complained of the
harassment to Schiele's president.
Specifically, Catalan alleges that, during the first year of her
employment, her supervisor, John Kontek, repeatedly directed sexually
offensive remarks at her "while leering at her body," and arranged
private meetings with Catalan during which he attempted to discuss
sexually explicit topics with her. Catalan claims that when she rejected
Kontek's advances, Kontek forced her to take on additional tasks at
Schiele's bindery without additional pay.
Catalan alleges that the harassment continued under Kontek's
replacement, defendant Sam Puglisi. Catalan alleges that Puglisi
continually asked Catalan if she "wanted to sit on his lap," and that he
frequently pinched her breasts and snapped her bra strap. When Catalan
confronted Puglisi regarding his conduct, Puglisi continued to assign her
tasks beyond her normally assigned duties and warned her that she would
lose her job if she complained.
Catalan claims that she repeatedly complained to Schiele's president
regarding Kontek's and Puglisi's conduct. She alleges that Schiele did
nothing to remedy the harassment and refused to compensate her for her
additional duties. Catalan further alleges that on December 13, 2001,
shortly after she complained of Puglisi's conduct, Schiele terminated her
On August 13, 2002, Catalan filed a gender discrimination charge with
the Equal Employment Opportunity Commission. The factual narration in her
EEOC charge details her allegations of sex discrimination but makes no
express mention of retaliation by Schiele. In filling out the EEOC charge
form, Catalan checked the box indicating a charge of "Sex" discrimination
but did not check the available "Retaliation" box. The EEOC issued a
right to sue letter to Catalan on April 29, 2003.
Catalan has brought four claims based on the allegations in her
Complaint: Sexual Harassment in violation of Title VII against each
defendant (Count I), Retaliation in violation of
Title VII against each defendant (Count II), Intentional Infliction
of Emotional Distress against each defendant (Count III), and Battery
against Puglisi (Count IV).
I. Catalan's Title VII Claims Against Kontek (Counts I and II).
Catalan concedes in her response that her former supervisor, Kontek, is
not an "employer" within the meaning of Title VII. (Pl. Resp. at 2, n. 1.)
Since Title VII does not impose individual liability on an employer's
agents, Williams v. Banning, 72 F.3d 552, 553-54 (7th Cir.
1995), the court finds that Catalan cannot state any facts which would
enable her to recover under Title VII against her individual supervisors.
Defendant Kontek's motion to dismiss Counts I and II of Catalan's
Complaint is granted. Although defendant Puglisi has not appeared in this
case, Catalan's Title VII claims against Puglisi are dismissed for the
II. Catalan's Retaliation Claim Against Schiele (Count II).
Defendant Schiele argues that Count II of Catalan's Complaint
(Retaliation) should be dismissed because the retaliation claim is beyond
the scope of her August 13, 2002 EEOC charge.
Before filing suit under Title VII, a plaintiff must file an EEOC
charge concerning the alleged misconduct in an attempt to resolve the
dispute without litigation. See Chambers v, American Trans Air,
Inc., 17 F.3d 998, 1003 (7th Cir. 1994). A plaintiff may not
litigate a Title VII claim if the allegations in litigation do not fall
within the scope of the EEOC charge. Id. This rule serves two
purposes. It affords an opportunity for the EEOC to settle the dispute
between the employee and the employer and it provides the employer notice
of the charges against it. See Babrocky v. Jewel Food Co.,
773 F.2d 857, 863 (7th Cir. 1985). A plaintiff may assert a claim not
contained in the EEOC
charge only if the claim is "like or reasonably related" to the
allegations of that charge. Jenkins v. Blue Cross Mut. Hosp. Ins.,
Inc., 538 F.2d 164, 167 (7th Cir. 1976).
Catalan argues that, although she did not check the "Retaliation" box
on the EEOC charge form, her retaliation claim is "reasonably related" to
her August 13, 2002 EEOC discrimination charge and, therefore, should not
be dismissed. Catalan correctly points out that claims under Title VII
should not be automatically dismissed based solely on a plaintiff's
failure to "check the right box." See Noreuil v. Peabody Coal
Co., 96 F.3d 254, 259 (7th Cir. 1996). However, in this case,
Catalan not only failed to check the box for retaliation on the EEOC
charge form, she also failed to include any reference to retaliation in
the description of her charge. "Retaliation" means "adverse consequence
deliberately attached to the exercise of a right protected by law."
Catalan's EEOC charge contains no allegation implying that she "exercised
a right protected by law" e.g. complained regarding her
supervisors' conduct or that she suffered an adverse consequence
as a result.*fn1 Under similar circumstances, the Seventh Circuit has
consistently held that retaliation claims and discrimination claims under
Title VII are sufficiently dissimilar that absent allegations in
the charge that imply retaliation an administrative charge of
discrimination will not support a subsequent civil suit for retaliation.
E.g., O'Rourke v. Continental Cas. Co., 983 F.2d 94, 97 (7th
Cir. 1993); Steffen v. Meridian Life Ins. Co., 859 F.2d 534,
544-45 (7th Cir. 1988); see also Angevine v. Watersaver Faucet
Co., 02 C 8114, 2003 WL 221 18927, *8-9 (N.D. Ill. Sept. 12, 2003).
Consequently, the court finds that Catalan's retaliation claim does not
fall within the scope
of her EEOC charge and, therefore, she cannot raise that claim in
this litigation. Defendant Schiele's motion to dismiss Count II of
Catalan's Complaint is granted.
III. Catalan's Intentional Infliction of Emotional Distress
Claims Against Defendants Schiele and Kontek (Count III).
Defendants Schiele and Kontek argue that Catalan's IIED claim (Count
III) is preempted by the Illinois Human Rights Act ("IHRA"), 775 ILCS
§ 5/8-111(C).*fn2 Though defendants do not directly say so, the
court interprets their motions as arguing for the dismissal of Catalan's
claim for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1). See
Porter v. International Profit Assocs., Inc., 01 C 4427, 2003 WL
22956004, *1 (N.D. Ill. Dec. 11, 2003).
Defendants argue that Catalan's IIED claim is preempted because it
arises from the same set of facts as her Title VII claims. The IHRA
states that "[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 this Act." 775 ILCS § 5/8-111
(C). The IHRA preempts state law tort claims that are "inextricably
linked" to a civil rights violation. Maksimovic v. Tsogalis,
687 N.E.2d 21, 22 (Ill. 1997). However, the Supreme Court of Illinois has
clarified that the proper inquiry in cases like this is "whether the tort
claim is inextricably linked to a civil rights violation such that there
is no independent basis for the action apart from the Act itself."
Id. at 23. Under this approach, the IHRA will not preempt a tort
action where the plaintiff alleges elements of a tort that exist
separately from a cause of action under the IHRA, without referring to
the legal duties created by the IHRA. Id.
The court finds in this case that Catalan's IIED claim is not preempted
because her tort action can exist separately from the legal duties
created by the IHRA. Catalan claims that defendants committed IIED,
acting in an extreme and outrageous manner with intent to cause her
severe emotional harm. The duty not to intentionally and knowingly
inflict severe emotional distress on another derives from the common law
and exists quite separately from the statutory prohibitions of Title VII.
The fact that Catalan's allegations of IIED might also constitute sexual
harassment under state or local laws does not affect the viability of her
tort claim for IIED. Under the facts of this case, the court finds that
Catalan has alleged sufficient facts to plead a claim for IIED
independent of the legal duties furnished by the IHRA.
Defendants' respective motions to dismiss Count III are denied.*fn3
For the foregoing reasons, defendants' respective motions to dismiss
are each granted in part and denied in part. Count I of the Complaint is
dismissed with prejudice as to defendants Kontek and Puglisi, and Count
II of the Complaint is dismissed with prejudice as to all defendants.