The opinion of the court was delivered by: Herndon, Chief Judge:
Before this Court is defendant Donald W. Brown, Inc., d/b/a Coldwell Banker Brown Realtors' motion to dismiss plaintiff Jamie Engler's complaint regarding a state law claim of intentional infliction of emotional distress (IIED), a claim for violation of the Illinois Human Rights Act (IHRA), and a claim for violation of the Americans with Disabilities Act (ADA). Defendant argues that the complaint should be dismissed based on two grounds: 1) count II (the IHRA violation) fails to state a cause of action due to plaintiff's failure to show an exhaustion of remedies under the IHRA; and 2) count I (IIED) fails to state a cause of action. Defendant further argues that this Court does not have jurisdiction over the IIED claim because that cause cannot stand independent of the IHRA. Plaintiff contends she has exhausted her administrative remedies and therefore defendant's motion must be denied as to plaintiff's IIED claim. Plaintiff asserts that she has alleged that defendant's actions far exceed "mere insults, indignities, threats, annoyances, petty oppression, or other trivialities" that are part of a complex society and an average member of the community would be lead to exclaim that defendant's conduct was in fact "Outrageous!" Additionally, plaintiff contends that her IIED claim exists independently from her IHRA violation claim. For the reasons that follow, defendant's motion is denied.
On October 13, 2011, plaintiff instituted a civil action against defendant in the circuit court of Madison County, Illinois. On November 9, 2011, defendant filed a notice of removal (Doc. 2) asserting that this Court had original jurisdiction based upon a federal question, i.e., the ADA claim, pursuant to 28 U.S.C. § 1331 and § 1441. In her complaint, plaintiff alleges the following: On February 24, 2011, plaintiff was informed that she had breast cancer and she notified her employer Coldwell Banker Brown of the diagnosis that same day. Plaintiff underwent treatment for breast cancer, including surgeries, chemotherapy, and radiation. During plaintiff's treatment, defendant refused to allow her to use accrued sick leave, use the work phone for medical necessities, and informed her that her job was in jeopardy. On June 3, 2011, defendant telephoned plaintiff in the hospital while she was recovering from a medical procedure to inform her that her employment had been terminated. Based on the alleged facts plaintiff has brought the following three counts: 1) IIED; 2) violation of the IHRA; and 3) violation of the ADA. On December 6, 2011, defendant filed this motion to dismiss plaintiff's complaint. As mentioned above, defendant argues that the complaint should be dismissed based on two grounds: 1) count II (the IHRA violation) fails to state a cause of action due to plaintiff's failure to show an exhaustion of remedies under the IHRA; and 2) count I (IIED) fails to state a cause of action. Defendant further argues that this Court does not have jurisdiction over the IIED claim because that cause cannot stand independent of the IHRA. The Court will address each argument in turn.
Rule 12(b)(6) of the Federal Rule of Civil Procedure permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. E.E.O.C. v. Concentra Health Servs. Inc., 496 F.3d 773, 776 (7th Cir. 2007). In applying the standard for Rule 12(b)(6) motions to dismiss, courts must accept well-pleaded factual allegations as true, although it is not bound by the legal characterizations plaintiff gives those facts. Republic Steel Corp. v. PA Eng'r Corp., 785 F.2d 174, 182 (7th Cir. 1986). Additionally, according to the Supreme Court in Bell Atl. Corp v. Twombly,550 U.S. 554 (2007), there are two clear hurdles to clear: first, the complaint must describe the claim in sufficient detail to give the defendant '"fair notice of what the . . . claim is and the grounds upon which it rests,"' (quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)), and second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a "speculative level." Twombly, 550 U.S. at 555.
Plaintiff alleges she was dismissed from employment due to her breast cancer thus violating the IHRA. Defendant argues that plaintiff has failed to first file a charge with the Human Rights Commission as required by the IHRA. For the reasons that follow, defendant's motion to dismiss the IHRA count is denied.
The IHRA provides a comprehensive scheme of remedies and administrative procedures to redress human rights violations, and claims under the IHRA fall within the exclusive jurisdiction of the Illinois Human Rights Commission. Talley v. Washington Inventory Serv., 37 F.3d 310, 311 (7th Cir. 1994). Courts have no jurisdiction to hear independent actions for alleged human rights violations; "[r]ather, judicial review is only available under the IHRA after Illinois Human Rights Commission has issued a final order on a complaint." Id. at 312.
Despite defendant's arguments, plaintiff alleges and shows in her motion in opposition to defendant's motion to dismiss and attachments thereto that she did in fact first file this complaint with the Human Rights Commission and the United States Equal Employment Opportunity Commission. See Doc. 17, p. 17-19. Accordingly, defendant's motion to dismiss plaintiff's complaint based on failure to comply with administrative procedure is denied.
1. Failure to Plead IIED Elements
Defendant argues that plaintiff failed to make factual allegations from which the level of severity needed for a claim of IIED could be inferred. Defendant claims plaintiff merely faces everyday work-place stress and has not been subjected to emotional distress. On the other hand, plaintiff argues that defendant knew about her condition, intended ...