The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On April 27, 2004, Plaintiff Debra Mazeika, an employee of Architectural Specialty Products, Inc. ("ASP"), had an odd encounter with a co-worker and his wife, during which she learned that her co-worker had falsely told his wife he had a sexual relationship with Plaintiff. A month later, Plaintiff was terminated from her accounting job at ASP. On January 24, 2005, she filed a thirteen-count complaint against ASP; Patrick Walsh ("Patrick"), her co-worker at ASP; and Patrick's wife, Renata Walsh. Against ASP, Plaintiff seeks damages for sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (Count I), sexual harassment/hostile work environment (Count II), retaliation in violation of Title VII (Count III), intentional infliction of emotional distress (Count IV), and violation of the Employee Retirement and Income Security Act, ("ERISA"), 29 U.S.C. § 1132 et seq. (Count V). Against the Walsh Defendants, Plaintiff seeks damages for intentional infliction of emotional distress (Counts VII and XII), negligent infliction of emotional distress (Counts VIII and XIII), defamation (Counts IX and X), and assault (Count XI, against Renata only). In an order dated July 26, 2005, the court dismissed a state law defamation claim against ASP (Count IV). All three Defendants now move this court for summary judgment on the twelve remaining counts of Plaintiff's complaint. For the reasons explained below, Defendant ASP's motion for summary judgment is granted as to Counts I, II, III, and V. Plaintiff's state law claims (Counts IV, VII, VIII, IX, X, XI, XII, and XIII) are dismissed without prejudice. Plaintiff's Motion to Strike Defendant ASP's Affidavits/Declarations of Rena Jahn and Loren Jahn is granted in part and denied in part.*fn1
The relevant facts, based upon the parties' Local Rule 56.1 statements and attachments, are as follows.
A. Plaintiff's Employment at ASP
Plaintiff Debra Mazeika is a former employee of ASP, an Illinois company owned by Rena Jahn and Loren Jahn. (ASP LR 56.1 Stmt. ¶ 2; Pl.'s LR 56.1 Stmt. ¶ 4.)*fn2 ASP manufactures "custom metal panels" for industrial clients and employs a small office staff in addition to its manufacturing-plant personnel. (R. Jahn Dep. at 14--16.) Rena serves as president and Loren as vice president and corporate secretary. (ASP LR 56.1 Stmt. ¶¶ 7-8.) As corporate secretary, Loren, a CPA, was responsible for handling administration, banking relationships, funding, and insurance. (Pl. LR 56.1 Stmt. ¶ 5.)*fn3
On or about July 6, 1998, Plaintiff was hired as an accountant by Loren and Scotty Scollon, ASP's general manager. (Pl. LR 56.1 Stmt. ¶ 1--3; ASP's LR 56.1 Stmt. ¶¶ 9, 10.) Plaintiff's starting salary was $36,000 and she initially reported to Mr. Scollon. (R. Jahn Dep. at 53; ASP's LR 56.1 Stmt. ¶ 10.) The parties agree that Plaintiff performed basic accounting duties, including accounts payable/receivable, (ASP LR 56.1 Stmt. ¶ 9; Pl.'s LR 56.1 Stmt. ¶ 13), but they dispute the scope of her duties beyond these accounting functions.*fn4 According to ASP, Mazeika was not responsible for "profit and loss, the hiring and firing of employees, or conducting performance reviews of employees." (ASP LR 56.1 Stmt. ¶ 11.) Plaintiff disagrees and claims that, together with Yoksas, she hired employees.*fn5 (Pl. LR 56.1 Stmt. ¶ 11.)*fn6 Plaintiff claims that she and two other employees, Warren Yoksas and Defendant Patrick Walsh,*fn7 formed a three-person team that "ran the company for the offsite owners, doing whatever was necessary to keep the doors open and the company moving ahead." (Pl. LR 56.1 Stmt. ¶ 8.)*fn8
Plaintiff describes her role on the team, in addition to accounting, as that of office manager, and in that role she "sat in on disciplinary actions." (Id. ¶¶ 10, 15.) Indeed, Plaintiff describes herself as the head of the accounting and human resources ("HR") department at ASP. (Id. ¶ 12.) Although ASP admits that Plaintiff performed certain HR duties in addition to her accounting duties, (ASP LR 56.1 Resp.¶ 16), ASP maintains that she acted in both capacities only at Loren's and Rena's direction and denies that Plaintiff had any management responsibilities. (Id. ¶ 12; R. Jahn 2nd Decl. ¶¶ 2--3.) According to ASP, Plaintiff, Patrick, and Yoksas did not "run the company"; they each performed distinct roles and the Jahns were the ultimate decision-makers. (R. Jahn 2nd Decl. ¶¶ 2--3; see also Yoksas Dep. at 19) (testifying that when Rena and Loren were not present, Plaintiff, Patrick, and Yoksas were "in charge of day-to-day operations.").
In December 1999, ASP fired Scollon. (See R. Jahn Dep. at 9; R. Jahn Decl. ¶ 32.) Plaintiff testified that, shortly before Scollon was fired, Loren informed her that Scollon's termination was planned, and Plaintiff asked Loren who was going to take over Scollon's position. (Pl. LR 56.1 Stmt. ¶ 17; Mazeika Dep. at 38.) According to Plaintiff, Loren responded, "what's the difference, you already do his job." (Id.) Plaintiff also testified about a subsequent conversation with Loren, after Scollon had left, during which Plaintiff asked whether she could work her way up to Scollon's salary range, and Loren responded affirmatively. (Pl's LR 56.1 Stmt. ¶ 18; Mazeika Dep. at 79.) Citing only Loren's Second Declaration, ASP denies that either conversation took place. (ASP LR 56.1 Resp. ¶¶ 17--18.)*fn9 In any event, Plaintiff maintains that after Scollon left the company she performed "all" the duties that he had performed as general manager and "[ran] the company for the Jahns who were not there" though she admits she does not know what all of his responsibilities were. (Pl. LR 56.1 Stmt. ¶ 20; Mazeika Dep. at 40--41, 44) (testifying that she performed "some" of Scollon's duties). ASP admits that Plaintiff did perform some of Scollon's tasks after he was fired, including: processing payroll, for a third party payroll service, a largely ministerial task (ASP LR 56.1 Resp. ¶ 26); fielding applications for new employees (Pl. LR 56.1 Stmt. ¶ 28); processing employee insurance benefits (Id. ¶ 29); and prioritizing and paying ASP's bills (Id. ¶ 31). But ASP contends that these were basic functions, (ASP LR 56.1 Stmt. ¶ 72), and that Plaintiff did not perform Scollon's broader responsibilities as General Manager, including "authority over virtually all day-to-day decisions." (Id. ¶¶ 11, 68.) According to ASP, Rena, not Plaintiff, assumed these broader responsibilities after ASP fired Scollon. (ASP LR 56.1 Resp. ¶ 21; R. Jahn Dep. at 9--10) (testifying that she "assumed the general manager role" after Scollon's termination).
When Scollon left the company, he had been General Manager for four years and Plaintiff estimates (presumably based on her experience with ASP's payroll) that he was earning approximately $72,000.00 per year.*fn10 (Pl. LR 56.1 Stmt. ¶ 202.) According to ASP, though, Scollon's relatively high salary is deceptive. First, the Jahns did not initially set his salary: Scollon was already employed by the company when the Jahns purchased ASP from its previous owners in 1997. (ASP LR 56.1 Stmt. ¶¶ 69--70.) After they purchased ASP, the Jahns reduced his salary by $19,225. (Id. ¶ 71). According to the Defendants, Scollons' high salary was the reason for his discharge. (R. Jahn Dec. ¶ 12.) Plaintiff denies this, but the only evidence she cites is her testimony that "[a]fter Scotty was gone probably," Loren told Plaintiff that the company would save money on its employee health insurance because Scollon and another employee, both of whom had heart problems, were no longer with the company. (Mazeika Dep. at 66.) The fact, if true, that Scollon's termination decreased ASP's health insurance premium is not inconsistent with ASP's assertion that it fired Scollon to save ASP money. Moreover, it is undisputed that ASP significantly downsized its workforce in the years leading up to Plaintiff's termination. (Pl. LR 56.1 Resp. (ASP) ¶ 17.) Plaintiff herself contends that Scollon was fired because his position was "redundant," as Plaintiff already performed his job. (Id. ¶ 20.) ASP denies that Loren made the statement Plaintiff cites as evidence for this assertion, (ASP LR 56.1 Resp. ¶ 17), but in any event, the notion that ASP did not need Scollon's services is consistent with ASP's assertion that Scollon earned too much money. (ASP LR 56.1 Stmt. ¶ 70.)
The parties also dispute the scope of other employees' responsibilities at ASP. Specifically, Plaintiff maintains that the two other members of the three-person team that "ran the company," Patrick and Yoksas, were paid more that she was even though they shared the same level of responsibility as Plaintiff. (Mazeika Dep. at 79.)*fn11 It is undisputed, however, that each employee performed a distinct function. (Pl. LR 56.1 Resp. (ASP) ¶ 75.) Patrick, ASP's "Project Manager," performed more technical functions for the company (e.g., "reviewing and approving material requisitions" and "providing technical assistance for sale [sic] and customers"). (Id. ¶ 76.) Yoksas, ASP's "Estimating/Sales Manager," created project estimates and liaised with the company's clients. (Id. ¶ 77.) Plaintiff acknowledged that she did not have the training to perform either Patrick's or Yoksas's job. (Mazeika Dep. at 82--85.) According to ASP, Walsh and Yoksas were paid more because their "specialized expertise" was more valuable to the company, whereas Plaintiff's basic accounting skills were fungible. (R. Jahn Decl. ¶¶ 21--22; L Jahn Decl. ¶ 11.)
When Plaintiff was fired in May 2004, she was earning $45,000 a year. (R. Jahn Dep. at 85.)*fn12 Yoksas' starting salary in 1996 was approximately $40,000 a year; by 2005, he was earning $55,000 a year. (Yoksas Dep. at 8.) Patrick began working at ASP in December of 1999 making 58,000; he testified that he had been making $57,000 at his previous job, and in his job interview with Loren and Mr. Scollon requested "at least . . . a lateral move if not more money." (P. Walsh Dep. at 160). In 2001, however, Patrick's pay was reduced by $10,000 when he made a mistake that cost the company money. (Id. at 14, 160--61.) Then in or around 2003, ASP resumed paying Patrick $58,000 per year. (Id.)
The parties also dispute Patrick's managerial responsibility at ASP. Plaintiff testified that Patrick had the authority to hire and fire plant employees, (Pl. LR 56.1 Stmt. ¶ 38; Mazeika Dep. at 26, 255), and that Patrick and another employee, Rubin Navarro, recommended salaries for new plant employees. (Id. ¶ 39.) ASP denies that Patrick had any authority to hire plant employees or played any role in setting their salaries. (ASP LR 56.1 Resp. ¶¶ 38--39.) Plaintiff claims that, as Project Manager, Patrick supervised and controlled his "department," which included Navarro, the shop foreman, and other plant employees. (Pl. LR 56.1 Stmt. ¶¶ 40--41, 43.)*fn13
ASP contends that Walsh's "department" consisted of himself and, in part, a draftsman, and that Walsh managed plant employees only if Navarro-who occupied the same level on ASP's organizational chart-was on vacation. (ASP LR 56.1 Resp. ¶¶ 40--42.) Plaintiff further claims that Patrick was able to give her instructions, a fact that Patrick admits while maintaining that he and Plaintiff nevertheless functioned on the same level. (Walsh LR 56.1 Resp. ¶ 7.) The Jahns both denied that Patrick had authority to give Plaintiff instructions. (R. Jahn 2nd Decl. ¶ 1; L. Jahn 2nd Decl. ¶ 1.)
B. Incident Between Walsh Defendants and Plaintiff
Several of Plaintiff's claims in this lawsuit grow out of an incident that occurred on April 27, 2004, involving Defendants Patrick Walsh and Renata Walsh, his wife. Prior to the incident, Plaintiff had spoken to Renata on several occasions over the phone when Renata called to speak with her husband. (Pl. LR 56.1 Stmt. ¶ 45.) Although Plaintiff and the Walsh Defendants give conflicting accounts about how cordial those interactions were, (Id. ¶¶ 45--48; R. Walsh Dep. 38-39), it is undisputed that Plaintiff's and Renata's interaction was limited. (Pl. LR 56.1 Stmt. ¶¶ 45--48.) Then, on April 27, 2004, Renata visited ASP's office and sought Plaintiff out in her office. (Walsh LR 56.1 Stmt. ¶¶ 21--23.) The parties dispute whether the tone of the encounter was initially confrontational, (Pl. LR 56.1 Stmt. ¶ 53; Walsh LR 56.1 Resp. ¶ 54), but agree that at Renata's request, Plaintiff called Patrick from her office to let him know that he had a "visitor," and that Patrick stated that he would "be right there." (Pl. LR 56.1 Stmt. ¶ 56.)
While Patrick was en route, Plaintiff spilled coffee and excused herself to use the washroom. (Id. ¶¶ 59--60.) When she returned, Patrick was in her office, leaning against a file cabinet in front of Plaintiff's desk, and Plaintiff proceeded to sit down at her desk. (Id. ¶¶ 61, 63.) Plaintiff testified that Mrs. Walsh then asked her husband, in Plaintiff's presence, "[w]hat did you say to me last night?", (Mazeika Dep. at 101), and that he responded, "I said I was fucking her." (Id.) In the accounts of the Walsh Defendants, Patrick volunteered to Plaintiff, "Do you want to tell my wife nothing is going on?" and Renata then repeated an assertion Patrick had made to her previously, that he had had an affair with Plaintiff. (P. Walsh Dep. at 80, 82-83; R. Walsh Dep. at 45-46, 65-66.) Even in Plaintiff's account, though, Patrick made only one statement during the conversation. (Mazeika Dep. at 101-102, 104, 234.) The parties all agree that the statement was untrue and that Patrick and Plaintiff did not have a sexual or romantic relationship. (Walsh LR 56.1 Resp. ¶¶ 67--69.) Plaintiff denied Renata's allegation, (Pl. LR 56.1 Stmt. ¶¶ 70--71), and testified that as she tried to convince Renata that she was not involved in an affair with Patrick, Renata "kept leaning on Plaintiff's desk." (Id. ¶¶ 71--73.) Renata, for her part, denies that she ever leaned over the desk and claims that Plaintiff was not within her reach from where she was sitting. (R. Walsh Dep. at 100.) Plaintiff testified that she felt trapped and threatened, though she testified that the volume of the conversation was "normal" and acknowledged that she never asked Renata or Patrick to leave. (Pl. LR 56.1 Stmt. ¶¶ 80, 82.) The parties disagree on the length of this conversation. Plaintiff claims it lasted for 45 minutes, (id. ¶ 80), while Renata claims it was just five minutes long. (Walsh LR 56.1 Resp. ¶ 81.) Another ASP employee, Robert Grousnick, witnessed the incident through the glass walls of Plaintiff's office, and heard voices but he "couldn't make anything out" that was actually said during the conversation. (Grousnick Dep. at 21--24, 37.) No other ASP employee testified to having heard the conversation. According to Mr. Grousnick, the incident lasted "maybe" 20 or 25 minutes. (Id. at 45.) It is undisputed that the conversation in Plaintiff's office ended when Plaintiff stated that she needed a cigarette and offered to Renata, and possibly Patrick, that they could continue the conversation outside. (Pl. LR 56.1 Stmt. ¶ 79.) Neither of the Walshes did anything to prevent Plaintiff from leaving the room or otherwise obstruct her exit. (Pl. LR 56.1 Resp. (Walsh) ¶ 55; Mazeika Dep. at 105.)
Either before or after Plaintiff left the room-Plaintiff claims both Defendants were in her office when she left, whereas Renata claims Patrick left first-Patrick was summoned by another employee to another part of the plant. (Pl. LR 56.1 Stmt. ¶¶ 83--84.) Renata, meanwhile, followed Plaintiff outside the building, where Plaintiff was smoking a cigarette and crying. (Id. ¶ 79, 86.) At this point, the parties' description of events again diverge. Plaintiff claims that Renata insisted on continuing the conversation about Patrick (id. ¶ 86); Renata claims that Plaintiff stated that she was upset about her workload and denies that there was any further conversation about Patrick. (Walsh LR 56.1 Resp. ¶ 86; R. Walsh Dep. at 78--79.) Plaintiff recalls that Renata was standing at arms length away, which was "too close . . . for comfort," (Pl. LR 56.1 Stmt. ¶ 88), while Renata claims she was standing approximately five feet from Plaintiff so as to avoid Plaintiff's cigarette smoke.
(R. Walsh Dep. at 77.) According to Plaintiff, the conversation continued after Renata followed Plaintiff back into the building. (Pl. LR 56.1 Stmt. ¶¶ 90, 92.) Renata claims that she returned to the office first, to look for Patrick, and that the conversation ended at that point. (R. Walsh Dep. at 80-81.) Renata retrieved her purse from Plaintiff's office, either at Plaintiff's invitation (Renata's account) or on her own (Plaintiff's account), at which point Plaintiff claims Renata made one final statement about her husband-words to the effect of "is that my husband?"-as Plaintiff answered her phone. (Pl. LR 56.1 Stmt. ¶¶ 91--94.) According to Mr. Grousnick, who observed Plaintiff after she returned to her office, Plaintiff "didn't look upset, but she was shuffling a lot of papers around very quickly." (Grousnick Dep. at 30--31.) This ended the incident and neither Patrick nor Renata discussed the incident or raised the subject with Plaintiff again. (Mazeika Dep. at 141, 234.) Plaintiff admits that, in the course of these events, Renata never told Plaintiff she was going to hurt or touch her, and that Renata never did hurt or touch Plaintiff. (Pl. LR 56.1 Resp. (Walsh) ¶¶ 67-68.)
After Renata left Plaintiff's office, Plaintiff called Loren and told him about the confrontation. (ASP LR 56.1 Stmt. ¶ 62.) Plaintiff claims that she told Loren the "whole story" of "everything that happened," including "what both Patrick and Renata said" to her. (Pl. LR 56.1 ¶ 121; Mazeika Dep. at 119-20.) Loren claims that Plaintiff recounted that Renata came in and accused Plaintiff of having an affair with Patrick. (ASP LR 56.1 Resp. ¶ 121.) According to Loren, Plaintiff was "pretty hysterical" when she called him about the incident. (L. Jahn Dep. at 57.) Loren advised Plaintiff that she should leave the office for awhile; Plaintiff at first resisted, stating she had too much work to do, but eventually agreed and left the office to visit her father. (Id. at 59-60) She was gone for approximately one hour and fifteen minutes before returning. (Id.)
Rena later sought Plaintiff out to determine if everything was okay. (ASP LR 56.1 Stmt. ¶¶ 63--64; R. Jahn Decl. ¶ 53.) According to Plaintiff, her meeting with Rena took place one or two days after the incident. (Mazeika Dep. at 126--27.) Rena claims she became aware of the incident when Plaintiff told her about it, and recalls the conversation occurring "[a] couple weeks after" the incident. (R. Jahn Dep. at 98.)*fn14 After Plaintiff told Rena about the confrontation, Rena advised Plaintiff to "immediately call the police" if Renata showed up at the office again. (Mazeika Dep. at 128; R. Jahn Dep. at 102.) According to Plaintiff, Rena spoke with Plaintiff again one or two days after this first conversation and told Plaintiff that she had a "sexual harassment case and that [Rena] would help [Plaintiff] with it," explaining to Plaintiff that sexual harassment "does not have to be only physical, it can be verbal." (Pl. LR 56.1 Stmt. ¶ 130.) During this second conversation, or "counseling" session, Plaintiff claims that Rena told her that "she would never put up with a single woman having an affair with a married man in her company." (Id. ¶ 132.)*fn15 Rena claims she only had one conversation with Plaintiff, denies making this statement, and denies ever discussing a potential "sexual harassment" claim with Plaintiff. (ASP LR 56.1 Resp. ¶¶ 128-30, 132; R. Jahn Dep. at 102; R. Jahn 2nd Decl. ¶¶ 13--14.)*fn16 ASP for its part, acknowledges that at a second meeting, Plaintiff told Rena that Plaintiff "did not want to get anybody in trouble, I don't want anybody fired, I just want everybody to keep their jobs and keep working." (ASP LR 56.1 Resp. ¶ 131.) ...