The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Lauren Hobson has filed a five-count second amended complaint against her previous employer, Tishman Speyer Properties, L.P., ("Tishman Speyer"), and her direct supervisor, Lenny Sciascia ("Sciascia"), in his individual capacity. The complaint alleges sexual harassment and gender discrimination by Tishman Speyer in violation of plaintiff's rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. (Count I); retaliation by Tishman Speyer in violation of plaintiff's rights under Title VII of the Civil Rights Act of 1964 (Count II); common-law assault and battery by Tishman Speyer and Sciascia (Count III); common-law intentional infliction of emotional distress ("IIED") by Tishman Speyer and Sciascia (Count IV); and retaliatory discharge by Tishman Speyer in violation of public policy under Illinois law (Count V).*fn1 Tishman Speyer has moved to dismiss Counts III through V under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the reasons discussed below, Tishman Speyer's motion to dismiss is denied as to Counts III and IV, and granted as to Count V.
Tishman Speyer is a Delaware limited partnership that manages dozens of buildings in cities throughout the world, including Chicago, Illinois. From around January 31, 2005, to December 9, 2005, Tishman Speyer employed plaintiff. The complaint does not state her position. In the fall of that year, Tishman Speyer transferred plaintiff to a building it managed at 55 East Monroe in Chicago. Sciascia was the supervisor of this building and became plaintiff's direct supervisor. Plaintiff alleges Sciascia sexually harassed her by making lewd and offensive comments, pulled on her ponytail and touched her hair against her will, and engaged in other conduct that the complaint alleges created a hostile work environment. Among her numerous allegations, plaintiff states that Sciascia: repeatedly commented on plaintiff's appearance and that of other female employees; made jokes of a sexual nature related to plaintiff's status as a newlywed; commented about her weight in a negative fashion; often questioned plaintiff about whether her underwear was matching; and told her she was "emotionally unstable," a "stupid little girl," "weird," and "insecure." Plaintiff did not invite or welcome any of these comments. When she complained to Sciascia about his behavior, he threatened her with termination.
On December 7, 2005, plaintiff contacted Tishman Speyer's human resources department to report the hostile work environment and sexual harassment to which she was being subjected. The following day, on December 8, 2005, Sciascia confronted and challenged her about the report she had made. In a subsequent meeting that day with Sciascia and his supervisor, Michael Norton, plaintiff was presented with three options: resign effective immediately; agree to transfer to a different property that would leave her without a job once its pending sale was completed; or continue what Sciascia or Norton called her "bad date" with Tishman Speyer. Plaintiff interpreted the latter option to be a metaphor for her employment relationship with Tishman Speyer. When she returned to work December 9, 2005, and before being given an opportunity to announce which option she had chosen, plaintiff was terminated.
Tishman Speyer has moved to dismiss Counts III-V of plaintiff's second amended complaint for their failure to state a claim under Fed. R. Civ. P. 12(b)(6). The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint, not decide the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Federal notice pleading "requires only a short and plain statement of the claim showing that the pleader is entitled to relief." Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955 (2007)). The court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in the light most favorable to plaintiff. Moranski v. Gen. Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005). Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate if plaintiff's factual allegations are not sufficient enough to raise a right to relief above the speculative level. Bell Atlantic Corp., 127 S.Ct. at 1965.
As a preliminary matter, this court rejects Tishman Speyer's argument that plaintiff's state law assault and battery and IIED claims are time-barred. On December 3, 2007, the court dismissed plaintiff's Title VII claims without prejudice because she had not yet received a right-to-sue letter from the Equal Employment Opportunity Commission, a prerequisite to suit in this court under Title VII, and declined supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c)(3). After plaintiff obtained the right-to-sue letter, she re-filed the complaint and again included the state law claims. By this point, more than two years had passed since she had stopped working at Tishman Speyer. Given that both the assault and battery and IIED claims have a two-year statute of limitations, Tishman Speyer argues these claims are now time-barred, citing Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000), which holds that, "a suit dismissed without prejudice is treated for statute of limitations purposes as if it had never been filed." Elmore, however, was not referring to a dismissal under § 1367, and the statute itself explicitly addresses how tolling should be handled ("the period of limitations . . . shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period). 28 U.S.C. § 1367(d). Thus, plaintiff's suit was tolled from October 10, 2007 -- the date of filing -- to December 3, 2007 -- the date of dismissal, plus an additional 30 days. Although plaintiff did not re-file until February 5, 2008, she still fell well within the statute of limitations thanks to the earlier tolling. Tishman Speyer's motion to dismiss on these grounds is therefore denied.
Count III -- Assault and Battery
Tishman Speyer argues that the assault and battery claims are barred by the exclusivity provision of the Illinois Workers' Compensation Act ("IWCA"). Under the statute, "no common law or statutory right to recover damages from the employer. . . . other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act." 820 ILCS 305/5(a). The parties do not dispute that plaintiff is covered by the IWCA. The Act also states, "The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer . . . . for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act." 820 ILCS 305/11. Thus, as explained in Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463 (Ill. 1990) (quoting Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237 (Ill. 1980)):
These sections bar an employee from bringing a common law cause of action against his or her employer unless the employee-plaintiff proves: (1) that the injury was not accidental; (2) that the injury did not arise from his or her employment; (3) that the injury was not received during the course of employment; or (4) that the injury was not compensable under the Act.
The first exception to the exclusivity bar is relevant here. It is well settled under Illinois law that the term "accidental" in the Act is not "a technical legal term but encompasses anything that happens without design or an event which is unforeseen by the person to whom it happens." Id. at 463. In other words, although Sciascia intentionally committed his acts of sexual harassment, these acts ordinarily would be considered "accidental" because plaintiff did not foresee them. As stated in Meerbrey, however, if the employer or its alter ego intentionally inflicts the injuries upon an employee or the employer commands or expressly authorizes the injuries, the injury is not considered accidental and the claim will not be barred. Id. at 464. The rationale behind this rule is that an employer, or an employee acting as its alter ego, should not be permitted to commit an injury, then claim it was "accidental" under the exclusive provisions of the Act, when he himself committed the act. Id. The question is thus whether Sciascia could be considered as acting as Tishman Speyer's alter ego.
Tishman Speyer points out that plaintiff does not allege in her complaint that Sciascia represented the alter ego of Tishman Speyer, and further describes Sciascia as a "low-level" supervisor of one of Tishman Speyer's dozens of properties around the world. As such, Tishman Speyer argues that the assault and battery claim against it is based on nothing more than a garden-variety respondeat superior theory. If Tishman Speyer is correct, the claims are barred, because "Collier implicitly decided that the Act's exclusivity provisions ...