United States District Court, N.D. Illinois
February 24, 2004.
ANGELINE HORAITIS, Plaintiff,
GARY MAZUR and AIR PRODUCTS EQUIPMENT CO., an Illinois corporation, Defendants
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
As a result of the exercise by this Court's colleague Honorable John
F. Grady of his 28 U.S.C. § 294(b)prerogative as a senior judge, this
action has been reassigned at random from his calendar to that of this
Court. That reassignment is accompanied by pending motions that had been
noticed up and presented last week by co-defendants Gary Mazur ("Mazur")
and Air Products Equipment Co. ("Air Products"). Because neither motion
requires any input from counsel for Angelina Horaitis ("Horaitis") or,
for that matter, any further input from either movant this memorandum
opinion and order will promptly dispatch them.
For Mazur's part, he has targeted Counts I, II and IV of Horaitis'
Complaint for dismissal. That motion is principally but not entirely
1. Count I, an employment discrimination claim that
Horaitis brings under Title VII, is dismissed as to
Mazur because he is not within the Title VII
of "employer" (as is Air Products).
2. Count II, which sounds in assault and battery, is
not dismissed. In that respect experienced counsel
such as Mazur's should know better than to cite
Geise v. Phoenix Co. of Chicago, 159 Ill.2d 507,
639 N.E.2d 1273 (1994) and if they did not know
better to begin with, they should have learned
better by the simple act of Shepardizing Geise (as
every lawyer should do before citing any case).
That 1994 decision was expressly distinguished just
three years later by Maksimovic v. Tsogalis,
177 Ill.2d 511, 687 N.E.2d 21 (1997), which upheld
such common law tort claims as assault and battery
as outside the scope of the exclusive remedy
provision of the Illinois Human Rights Act.
3. By contrast, Count IV (which sounds in the asserted
intentional infliction of emotional distress) is
preempted by that Illinois statute (see, e.g.,
Quantock v. Shared Mktg. Servs., Inc., 312 F.3d 899,
905 (7th Cir. 2002)).
Air Products fares better than Mazur: It succeeds in knocking out not
only Count IV (for the same reason just discussed as to Mazur) but also
Count III, by which Horaitis seeks to stake out a common law claim of
retaliatory discharge. In that latter respect, the exclusivity of the
Rights Act bars judicial adjudication of such a claim (see 775 ILCS
5/6-101(A), which creates a statutory claim of retaliatory conduct that
must be pursued before the Illinois Department of Human Rights).
Accordingly Mazur must file his answer to surviving Count II in this
Court's chambers on or before March 8, 2004. As for Air Products, it has
already answered Count I, which is the single claim ascribable to it.
Finally, this Court is contemporaneously issuing its customary initial
scheduling order, and counsel for all parties are expected to comply with
the requirements of that order that precede the next status hearing date.
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