United States District Court, N.D. Illinois
July 8, 2004.
SWANK EDUCATIONAL ENTERPRISES, INC., et al.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Julie Morris, filed a four-count complaint against
defendants, Swank Educational Enterprises, Inc., (hereinafter
referred to as "Swank"), American Higher Education Development
Corporation and AHED of Illinois, Inc., (hereinafter collectively
referred to as "AHED"), seeking redress for several violations of
Title VII, including sexual discrimination on the basis of gender
and pregnancy, sexual harassment and retaliation, as well as a
state law claim for intentional infliction of emotional distress
(hereinafter "IIED"). The court has jurisdiction over the federal
claims pursuant to 28 U.S.C. § 1331 and 1343(a)(3) and (4) and
supplemental jurisdiction over the state law claim under
28 U.S.C. § 1367(a). Defendants have filed separate motions to
dismiss Count IV, the IIED claim, under Fed.R.Civ.P. 12(b)(6),
contending that the claim is preempted by the Illinois Human
Rights Act (hereinafter "IHRA"), or in the alternative, that
plaintiff has failed to sufficiently plead the elements of IIED.
Plaintiff has moved to strike defendants' affirmative defenses.
Defendants contend that Count IV must be dismissed because it
is preempted by the IHRA, a state statutory scheme designed to
prevent sexual harassment in employment and to provide an
exclusive means of redress for civil rights violations as defined
under the Act. Corluka v. Bridgford Foods of Illinois,
284 Ill. App.3d 190, 193 (Ill.App. Ct. 1996). 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," 775 ILCS 5/8-111(C), where "civil rights
violations" include sexual harassment, 775 ILCS 5/2-102(D), and
retaliation for opposition to unlawful discrimination or sexual
harassment, 775 ILCS 5/6-101(A). The conduct of which plaintiff
complains falls squarely within these definitions.
Under the IHRA, no state court has jurisdiction to entertain a
civil rights violation because such claims must be litigated
exclusively before the Illinois Human Rights Commission,
Maksimovic v. Tsogalis, 177 Ill.2d 511, 513 (Ill. 1997). See
also Thomas v. L'Eggs Prods., Inc., 13 F. Supp.2d 806, 808
(C.D. Ill. 1998) (stating that where Illinois courts lack
jurisdiction to hear a claim, so too does the federal court
sitting in Illinois). This does not mean that the IHRA precludes
the court from exercising jurisdiction over all tort claims
factually related to incidents of sexual harassment, but rather
it prohibits jurisdiction only where the tort claim is found to
be "inextricably linked" to the allegations of sexual harassment
such that there is no independent basis for the action.
Maksimovic, 177 Ill.2d at 517. Where the plaintiff can
establish the necessary elements of the tort without reference to
any legal duties created by the IHRA, she has established a basis
for imposing liability on the defendant independent of any
statutory cause of action under the Act and the court has
jurisdiction to adjudicate plaintiff's tort claim. Maksimovic,
177 Ill.2d at 519. The pivotal question is whether the conduct is
actionable even aside from its character as a civil rights
violation because the IHRA does not furnish the legal duty that
the defendant was alleged to have breached. Krocka v. City of
Chicago, 203 F.3d 507, 516-17 (7th Cir. 2000).
Where the allegations plaintiff presents to support her IIED
claim are identical to those made in support of her claim of
sexual harassment, the two claims are inextricably linked and the
tort claim is therefore preempted by the IHRA. See Quantock v.
Shared Marketing Services, Inc., 312 F.3d 899 (7th Cir.
2002). Here, plaintiff has merely realleged the facts stated in
her Title VII claims as the basis for her claim of IIED and has
presented no new facts other than conclusory allegations that
plead the elements of IIED under Illinois law. In this
circumstance, it is clear that plaintiff's IIED claim is
inextricably linked with her claims of sexual discrimination,
sexual harassment and retaliation and she cannot establish a
basis for defendants' liability independent of any statutory
cause of action under the Act. Thus, plaintiff's state law IIED
claim is preempted by the IHRA and must be dismissed. See
Whittaker v. Northern Illinois University, No. 00C50447, 2001
WL 910098, 2001 U.S. Dist. LEXIS 9361 (N.D. Ill. July 9, 2001)
Plaintiff's motion to strike defendants' affirmative defenses
Federal Rule of Civil Procedure 8(c) requires a party to set
forth affirmative defenses in a responsive pleading, which means
affirmative defenses are subject to all of the pleading
requirements of the Federal Rules of Civil Procedure. Heller
Financial Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294
(7th Cir. 1989). Thus, defendants must set forth a `short and
plain statement' of the defense sufficient to give the party
notice of the defense and a chance to rebut it. Sauber Painting
& Decorating, Inc., 2004 U.S. Dist. Lexis 10258, *4 (N.D. Ill.
Jun. 2, 2004). See also Fed.R.Civ.P. 8(a). Under Rule 12(f),
a court may strike from any pleading any insufficient defense.
See Fed.R.Civ.P. 12(f).
In general, motions to strike are disfavored as they
potentially serve only to delay. Heller, 883 F.2d at 1294.
Ordinarily, defenses will not be struck if they are sufficient as
a matter of law or if they present questions of law or fact.
Heller, 883 F.2d at 1294.
Defendants first contend that plaintiff's motion to strike must
be denied because it was not timely filed under Rule 12(f), which
requires plaintiff to file her motion to strike within 20 days
after service of defendant's answer upon her. See Fed.R. Civ.
P. 12(f). However, the record reveals the motion was timely
In their separate answers to plaintiff's complaint, Swank and
AHED plead four affirmative defenses in common. AHED also pleads
three affirmative defenses unique to its own case. The court will
first respond to defendants' four shared affirmative defenses.
Shared affirmative defenses
Plaintiff has failed to plead any claim upon which relief may
be granted Plaintiff argues that this defense is "no more than
a recitation of the standard for pleading under a motion to
dismiss, [which does] not provide any specific infirmities within
the complaint" and which therefore must be stricken. Form 20 of
the Federal Rules of Civil Procedure's Appendix of Forms sets
forth a list of model defenses, including this one cited almost
verbatim by defendants. Rule 84 then specifically states that
"the forms contained in the Appendix of Forms are sufficient
under the rules." See Fed.R.Civ.P. 84. Moreover,
Rule 12 contemplates that the defense of failure to state a claim upon
which relief can be granted may be made either by motion or as
an affirmative defense. See Fed.R.Civ.P. 12(b)(6), 12(h)(2).
See also Brown v. County of Winnebago No. 97C50211, 2001 WL
1570818, *1 (N.D. Ill. Dec. 6, 2001) (Reinhard, J.).
Plaintiff has failed to act reasonably to mitigate damages;
Plaintiff has failed to exhaust administrative remedies before
filing suit in the U.S. District Court; Some or all of the acts
alleged by plaintiff to have occurred in violation of Title VII,
occurred more than 300 days prior to the filing of her charge of
discrimination in the [EEOC] and are therefore, time barred by
the applicable statute of limitations Each of these defenses
sufficiently informs plaintiff of the issue raised and the manner
in which defendants will conduct the defense in the future. See
e.g. Yash Raj Films, Inc. v. Atlantic Video, No. 03C7069,
2004, WL 1200184, at *4, 2004 U.S. Dist. LEXIS 9739, at *12 (N.D.
Ill. May 28, 2004). Defendants may be able to prove facts in
support of each defense and, at this point in the litigation, the
court must accept all well-pleaded allegations as true. Renalds
v. S.R.G. Restaurant Group, 119 F. Supp.2d 800, 805 (N.D. Ill.
AHED's three remaining affirmative defenses
Defendants are not now and never were an employer of
plaintiff Defenses will not be struck if they present
questions of law or fact. Heller, 883 F.2d at 1294. This is a
factual question that cannot be resolved at this point in the
Pursuant to the Asset Purchase Agreement, defendants are not
proper parties to this lawsuit and are not liable for any adverse
actions taken against plaintiff This defense sufficiently
informs plaintiff of the issue raised and the document upon which
AHED will rely in moving forward. It is properly plead as an
affirmative defense under Rule 8(c) as a "matter constituting an
avoidance" of defendants' liability. Despite plaintiff's
contention otherwise, it is not necessary that AHED have supplied
a copy of the agreement at this point.
Plaintiff's failure to name defendants in her Charge of
Discrimination bars her federal claims against them Defenses
will not be struck if they present questions of law or fact.
Heller, 883 F.2d at 1294. This defense presents questions of
law or fact.
For the foregoing reasons, defendants' motions to dismiss Count
IV are hereby granted. Plaintiff's motion to strike is denied.
While it seems unlikely plaintiff can allege an IIED claim that
is not pre-empted by IHRA, her request for 14 days to amend her
complaint for this purpose is granted.
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