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Creighton v. Pollmann North America

December 18, 2008


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Denise Creighton ("Creighton") filed suit against Defendant Pollmann North America, Inc. ("Pollmann") alleging: (1) disability discrimination in violation of the American with Disabilities Act ("ADA") (Count I); (2) retaliation and unlawful discharge in violation of the ADA (Count II); (3) intentional infliction of emotional distress ("IIED") (Count III); (4) retaliatory discharge under Illinois law for reporting safety concerns (Count IV); (5)retaliatory discharge under Illinois law for filing a worker's compensation claim (Count V); and (6) violation of the Illinois Whistleblower Act ('IWA") (Count VI). Pollmann moves to dismiss Counts III, IV and VI of the Complaint. For the reasons stated herein, Pollmann's Motion to Dismiss is denied in its entirety.


The following facts are taken from the allegations in Plaintiff's Complaint, which are accepted as true for purposes of deciding Defendant's Motion to Dismiss.Creighton was an employee of Pollmann from March 2005 through her termination on or about May 31, 2007. Compl. ¶ 9. She worked in the Business Development and Materials Management departments, and performed additional job functions outside of these departments. Compl. ¶ 10. Throughout her employment with Pollmann, Creighton performed her job responsibilities in a manner that met or exceeded Pollmann's legitimate business expectations. Compl. ¶ ¶ 3, 47. Around September 9, 2006, Creighton was transferred to Pollmann's new work site. Compl. ¶ 17. Conditions at the new work site were toxic and exposed Creighton to harmful chemicals, odor from the new carpet and furniture, dust and debris. Compl. ¶ 18. Due to this exposure, Creighton experienced headaches and nausea, had trouble breathing, and began vomiting in the office bathroom. Compl. ¶ 19. On a daily basis, Creighton complained about the air conditions at the worksite to Mr. Roland Kuhtreiber, the Manager of Production and Development & Design. Compl. ¶ 20. On numerous occasions from September 9, 2006, through May 31, 2007, Creighton also complained to Pollmann's managerial and supervisory personnel, about her sick building syndrome, her potential chemical exposure, and violations of the regulations of the Occupational Safety and Health Administration ("OSHA"). Compl. ¶ 73. Despite these complaints, Pollmann took no action to remedy the situation. Compl. ¶ 20. Throughout September and October of 2006, construction, painting, sanding and electrical wiring continued. Compl. ¶ 21. Starting in November 2006, Creighton sought medical assistance for her ailments. Compl. ¶ 23.By December 2006, Creighton suffered from irritation of sinus passages, ringing of ears, pressure on eardrums and extreme migraines. Compl. ¶ 24. On March 23, 2007, after her attending physician told her that she needed more specialized medical care, Creighton sought assistance from the University of Illinois at Chicago ("UIC"). Compl. ¶ 25. To improve Creighton's treatment, the health care professionals at UIC made repeated requests to Pollmann, from March 23, 2007 through May 3, 2007, for its Material Safety Data Sheets ("MSDS"). Compl. ¶ ¶ 26, 74. Creighton also sought the MSDS from Pollmann by requesting them from Mr. Andreas Miloczki, the Human Resources ("HR") Manager. Compl. ¶ 26. Despite these requests, Pollmann failed to provide the MSDS to Creighton or to the medical staff at UIC. Compl. ¶ 27. Additionally, although she tried, Creighton was unable to access the MSDS herself at Pollmann's facility. Compl. ¶ 28. On March 23, 2007, Creighton received a physician's note from UIC which stated, "no work at 950 Chicago Tube Drive, Romeoville, IL." Compl. ¶ 29. A copy of this doctor's note was also sent to Pollmann's HR department. Compl. ¶ 29. On March 26, 2007, Dr. McFarlene gave Creighton a doctor's note which stated, "Under doctor's care, will be able to return to work on 07/01/07." Compl. ¶ 30. A copy of this note was also sent to Pollmann's HR department. Compl. ¶ 30. On May 29, 2007, Mr. Miloczki, the HR Manager, arranged to meet with Creighton. Compl. ¶ 31. During this meeting she was informed by Mr. Miloczki that she would be terminated from her position at Pollmann. Compl. ¶ 32. Creighton was subsequently terminated around May 31, 2007. Creighton alleges that she was terminated because of her perceived impairment, and her complaints to Pollmann about their conduct. Compl. ¶ 32, 45.Creighton alleges that Pollmann had no reasonable or legitimate reason for terminating her. Compl. ¶ 58. Creighton further alleges that she was terminated in retaliation for her internal complaints about safety violations and OSHA violations, for notifying the health care professionals at UIC of her health concerns and providing them with information about Pollmann's work site that she thought violated state and/or federal laws, rules and regulations, and for filing a workers' compensation claim. Compl. ¶ ¶ 59, 66, 77.

When Creighton became sick, her physicians notified Pollmann that she could return to work with a reasonable restriction of a workplace free of exposure to respiratory sensitizers and respiratory irritants. Compl. ¶ 38. Creighton herself requested an opportunity to return to work on numerous occasions, andshe sought to be transferred and/or accommodated. Pollmann refused to accommodate her. Compl. ¶¶ 32, 39.During this same time period, other employees that worked for Pollmann were permitted to work part-time or from home during times of medically authorized illness; however, Creighton alleges that Pollmann required her to continue working in an unhealthy environment, and engaged in several other extreme and outrageous acts. Compl. ¶ ¶ 37, 52. Following this series of events, Creighton became depressed and was forced to see a mental health professional for her depression. Compl. ¶ 55. Creighton was also required to take medication for her depression. Compl. ¶ 55.


When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that the plaintiff is entitled to relief. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Such a set of facts must "raise a reasonable expectation that discovery will reveal evidence" of illegality. Id. at 1965.


Pollmann moves to dismiss Counts III, IV and VI of the Complaint. With respect to Count III, Pollmann asserts that the claim is preempted by the Illinois Human Rights Act ("IHRA") and the Illinois Workers Compensation Act ("IWCA") or, alternatively, that the Complaint fails to state a claim for IIED. With respect to Count IV, Pollmann asserts that the claim is preempted by the IWA, and with respect to Count VI, Pollmann asserts that the Complaint fails to state a claim under the IWA.

I. IIED Claim (Count III)

A. Preemption by IHRA

Relying on the IHRA's exclusivity provision, Pollmann argues that Creighton's IIED claim is preempted by the Act. The IHRA gives the Illinois Human Rights Commission exclusive jurisdiction over civil rights violations. Naeem v. McKesson Drug Co., 444 F.3d 593, 602 (7th Cir. 2006) (citing 775 ILCS 5/8-111(c)("Except 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.")). Under the IHRA, employers are prohibited from engaging in unlawful employment discrimination, including discrimination based on a perceived disability. 775 ILCS 5/2-102(A).

Pollmann claims that Creighton's common law claim for IIED is preempted by the IHRA because the claim is based on the exact same allegations as those that give rise to her disability discrimination claim and, therefore the IIED claim is "inextricably linked" to the discrimination claim. (Pollmann Mem. at 5.) The question of whether Creighton's IIED claim is preempted by the IHRA is not governed by whether the facts that support the IIED claim could also support a claim for disability discrimination. Naeem, 444 F.3d at 604; see also Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997). The question is whether Creighton can prove the elements of the IIED claim independent of legal duties furnished by the IHRA. Naeem, 444 F.3d at 604; Maksimovic, 687 N.E.2d at 22.

The Illinois Supreme Court has addressed the scope of IHRA preemption on two separate occasions. First, in Geise v. Phoenix Co. of Chicago, Inc., the Illinois Supreme Court held that the plaintiff's claims for negligent hiring and retention were preempted by the IHRA because they "depend[ed] on the prohibitions against sexual harassment for their viability" and, as such were "inextricably linked" to the concept of that particular civil rights violation. 639 N.E.2d 1273 (Ill. 1994). Subsequently, in Maksimovic, the Illinois Supreme Court clarified its previous holding in Geise when confronted with the question of whether the plaintiff's common law tort claims for assault, battery, and false imprisonment were "inextricably linked" to her sexual harassment claim. The Maksimovic court held that the common law claims were not "inextricably linked" with the claims of sexual harassment because the plaintiff could establish "the necessary elements of each tort independent of any legal duties created by the Act." 687 N.E. 2d at 22. Therefore, the IHRA does not preclude courts from exercising jurisdiction over IIED claims factually related to incidents ofunlawful discrimination if the plaintiff can allege facts sufficient to establish the elements of IIED. See e.g., Naeem, 444 F.3d at 602-03 (citing Maksimovic, 687 N.E.2d at 23-24) ("We conclude that a common law tort claim is not inextricably linked with a civil rights violation where a plaintiff can establish the necessary element of the tort independent of any legal duties created by the [IHRA]."); Spahn v. Int'l Quality & Productivity Ctr., 211 ...

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