Plaintiffs' employment lawyers have long been limited to litigating unfair employment practices claims under various federal employment laws or their Illinois state law counterparts under the Illinois human rights act, ("IHRA"). (1) other than breach of contract or common law retaliatory discharge,

aggrieved employees have generally been foreclosed from litigating claims for assault, battery, or other state law claims. Employment lawyers, without much success, would attempt to plead these causes of action to circumvent the statutory cap on compensatory or punitive damages. (2)

In Naeem v McKesson Drug Co, (3) however, the United States Seventh Circuit Court of Appeals allowed just such a state law claim. The Naeem court affirmed a jury verdict for a plaintiff for the tort of intentional infliction of emotional distress for outrageous conduct that occurred in the workplace. This article reviews the Naeem case, along with the doctrine of preemption of tort law claims as enunciated by the Illinois Supreme Court, and discusses the practical implications of pleading and litigating these claims in federal court.

Background: Preemption by the Illinois human rights act

The IHRA provides that the Illinois human rights Commission has exclusive jurisdiction over civil rights violations. The IHRA encompasses employment discrimination claims. (4) The IHRA further defines employment discrimination as incidents in which an employer acts with respect to "promotion, renewal of employment ... discharge, discipline, tenure or terms, privileges, or conditions of employment on the basis of unlawful discrimination or citizenship status." (5)

The Illinois Supreme Court has addressed the doctrine of IHRA preemption twice. In Geise v Phoenix Co of Chicago, Inc, (6) the plaintiff brought claims of negligent hiring and retention against her employer for actions stemming out of sexual harassment on the job. The Circuit Court of DuPage County dismissed the claims, and the matter was presented to the supreme court.

The supreme court reasoned that the conduct which Geise complained of fell within the definition of a "civil rights violation." (7) The plaintiff argued that the claims of sexual harassment were separate and distinct from her claims against her employer. The court rejected that argument and held that Geise's pleading "inextricably linked" the concept of sexual harassment to her negligence claims. (8)

The court further observed that styling her claims as "negligent hiring" or negligent retention did not alter the fundamental nature of her cause of action and that the employer would be strictly liable for the tortfeasor's sexual harassment. (9) The court held that the claim was barred by the IHRA. (10)

Three years later, the supreme court considered the case of Maksimovic v Tsogalis. (11) In Maksimovic, the plaintiff worked as a waitress at a restaurant owned by the defendant. She quit after the defendant made sexual advances toward her.

She filed a complaint with the Illinois Department of human rights for sexual harassment and later with the Circuit Court of Cook County alleging the defendant committed the intentional torts of assault, battery, and false imprisonment. The circuit court held that it lacked subject matter jurisdiction because her tort claims sounded in sexual harassment. The appellate court affirmed on the basis of the IHRA and Geise.

The supreme court concluded that the allegations of sexual harassment were not inextricably linked to the intentional torts, because the sexual harassment was merely incidental to the battery, assault, and false imprisonment. (12) The court held that since the plaintiff sufficiently alleged the elements of the torts that stood wholly separate and apart from the allegations under the IHRA, the circuit court had subject matter jurisdiction over the claims. (13) Two other post-Maksimovic cases on the state appellate level produced mixed results, one finding the state claim preempted, the other not. (14)

The Naeem case

Facts. Plaintiff began her employment with McKesson in 1978 as a keypunch operator. McKesson is a wholesale distributor of pharmaceuticals, over-the-counter drugs, and other products. The plaintiff was eventually promoted to the position of operations manager at McKesson's Houston distribution center.

In March 1992, Naeem was transferred to McKesson's distribution center in Romeoville and worked there as a computer room supervisor. Naeem had hoped to become the operations manager in Romeoville, and in 1993 agreed to become the transportation coordinator in addition to fulfilling her other duties. While McKesson employees testified at trial about various performance deficiencies, the plaintiff nonetheless received merit-based increases in 1993 and 1994.

In March 1994, plaintiff Sally Naeem's manager made a sexual proposition to her, which she rejected. She complained, and human resources wrote up her manager. In July 1994, she applied for the position of operations manager and was passed over in favor of a male employee. She filed a charge of discrimination with the EEOC in October 1994, alleging an unlawful failure to promote based on sex discrimination and retaliation.

In early 1995, Naeem became pregnant with her fourth child. She had a difficult pregnancy and suffered complications. In May 1995, her manager was replaced by a new supervisor. She claimed that after that her workload increased significantly--she had to take calls from drivers around the clock and was required to climb up a metal stairway onto a raised mezzanine level and crawl under furniture to set up computers. Because of her pregnancy, this was difficult for her.

On July 17, 1995, she prepared a grievance memo about her concerns. Several days later, Naeem met with her supervisor, the operations manager, and a human resources representative. At trial, Naeem testified that the supervisor yelled that she would receive no help. She saw her doctor the following Monday, and following her physician's advice went on short term disability for just over three months.

Upon her return to work, Naeem was given a disciplinary warning for failing to complete assignments on time and was placed on a performance improvement plan ("PIP"). At trial, she testified that the PIP was very onerous and that she had to work long hours to meet plan deadlines. The human resources manager conceded that the PIP was implemented to "affect her mental processes." During her short term disability leave, Naeem testified, the transportation office was relocated and many of the records were lost in the process, making it difficult to complete projects.

Naeem received a second written disciplinary warning on December 7, 1995, for failing to complete truck inspections properly. She testified that after she returned from leave, her supervisor reprimanded and humiliated her at management staff meetings. She completed her first PIP, but was given a second one later in December (Sic). (15)

She thought it would be difficult to fulfill the PIP requirements, which caused her, among other things, to travel to Indiana to train truck drivers. She testified that her supervisor tampered with her computer while she was away and changed the password so that she could not access it.

On January 23, 1996, she was suspended for three days for failing to order post-accident drug testing of a driver following an accident. She claimed that such testing was not required, because Illinois Department of Transportation guidelines did not require it for a truck that small. When she returned to work, she was given until the end of the week to complete the tasks on the PIP. She testified that she worked around the clock to get the tasks done but was unable to finish and was terminated.

District court proceedings. The plaintiff tried claims of sexual discrimination under Title VII and intentional infliction of emotional distress to a jury. At the close of Naeem's case, the defendants (16) moved for a directed verdict, arguing that she failed to present sufficient evidence that the defendants' conduct rose to the level of extreme or outrageous. The district court denied the motion. The jury found against the plaintiff on the Title VII claim but found in her favor on the intentional infliction claim and awarded her $495,000. (17)

Post-trial, the defendants argued that there was insufficient evidence to support the intentional infliction claim and that it was preempted by the IHRA. The district court denied the motion, reasoning that the "defendants' behavior toward plaintiff is actionable in tort apart from defendants' duty as an employer not to discriminate in the workplace." (18)

The seventh circuit opinion. On appeal, the defendants argued that plaintiff's intentional infliction of emotional distress claim was preempted by the IHRA because she based her claim on the same course of behavior that gave rise to her Title VII claim. The seventh circuit considered other cases from a number of district courts, which indicated a fairly wide split of authority as to whether the tort of intentional infliction of emotional distress was preempted by the IHRA. (19)

Relying upon Maksimovic, the seventh circuit reasoned that the IHRA does not preclude courts from exercising jurisdiction over all tort claims factually related to sexual harassment. (20) The court observed that where the sexual harassment aspect of the case is "merely incidental to what are otherwise ordinary common law tort claims," the claim is not preempted. (21)

The seventh circuit further noted that the proper focus of the inquiry should be an examination of the source of the legal duty allegedly breached, as opposed to the factual basis of the claims. (22) The court summed it up by stating that "'if the conduct would be actionable even aside from its character as a civil rights violation because the IHRA did not "furnish the legal duty that the defendant was alleged to have breached," the IHRA does not preempt a state law claim seeking recovery for it.'" (23)

Applying these principles to the facts at bar, the seventh circuit held that the district court ruled correctly that the claim for intentional infliction of emotional distress was not preempted. (24) The court reasoned that the proper inquiry was not whether the facts that supported Naeem's intentional infliction of emotional distress claim could also have supported a discrimination claim, but instead whether Naeem could independently establish the elements of an intentional infliction of emotional distress claim. (25)

The court set forth the elements that Naeem had to establish to recover damages for intentional infliction of emotional distress: (1) that the defendant's conduct was extreme and outrageous, (2) that defendant intended to inflict severe emotional distress or knew that there was at least a high probability that his conduct would inflict severe emotional distress, and (3) the defendant's conduct did cause severe emotional distress. (26) Based upon the extreme behavior outlined by the district court, the seventh circuit concluded that the defendants committed a tort independent of any duties not to discriminate against Naeem. (27)

The court reasoned as follows:

   The conduct that she alleges is not just
   sexually harassing conduct; instead, she
   alleges a pattern of behavior by the defendants
   that created impossible deadlines,
   set up obstacles to her performing her job,
   and sabotaged her work.... it is clear that
   her claim rests not just on behavior that
   is sexually harassing, but rather behavior
   that would be a tort no matter what the
   motives of the defendant. Therefore, her
   claim is not preempted by the IHRA. (28)

The court also concluded that Naeem established her intentional infliction of emotional distress claim by a sufficiency of the evidence. (29) The seventh circuit also rejected other arguments raised by the defendants and affirmed the jury verdict. (30)

Post-Naeem practice pointers

Following Naeem, we can expect litigants to plead not only intentional infliction of emotional distress but other state law torts to circumvent the statutory cap on damages. The following tips can be gleaned in light of the latest seventh circuit opinion.

1. Plaintiffs must focus on the legal duty breached by the employer/defendants if they are to withstand a motion to dismiss or motion for summary judgment.

2. Beyond that, plaintiffs in their pleadings should detail facts that clearly support an independent tort, apart from any discrimination or harassment claim.

3. Plaintiffs should set forth facts in their depositions such that they need not depend upon, for example, a sexual harassment claim to defeat an anticipated summary judgment motion.

4. Defendants should move to dismiss the tort claim at the outset of litigation on the basis of preemption and, if unsuccessful, raise the motion at the end of plaintiff's case at trial, after the trial if there is a verdict, and on appeal.

(1.) 775 ILCS 5/8-111(c).

(2.) In the event that a plaintiff brings a discrimination claim and is successful at trial, he may be able to recover back pay, compensatory or punitive damages, and in some circumstances, front pay, and attorney's fees and costs. In those cases that allow for compensatory and punitive damages--in age discrimination cases, and those brought under the Family and Medical Leave Act, plaintiffs may not recover compensatory damages--the maximum that a plaintiff may recover against his employer for those types of damages is $300,000. See 42 USC [section]1981a (b) (3). It is for this reason that many plaintiffs resort to pendent state law claims to skirt the statutory cap.

(3.) 444 F3d 593 (7th Cir 2006).

(4.) 775 ILCS 5/1-103(I).

(5.) 775 ILCS 5/2-102(A).

(6.) 159 Ill 2d 507, 639 NE2d 1273 (1994).

(7.) Id at 516, 639 NE2d at 1276-77.

(8.) Id at 516-517, 639 NE2d at 1277.

(9.) Id at 517-518, 639 NE2d at 1277.

(10.) Id at 518-519, 639 NE2d at 1278.

(11.) 177 Ill 2d 511, 687 NE2d 21 (1997).

(12.) Id at 517, 687 NE2d at 23.

(13.) Id. The basis of this holding was the court's reasoning that, "The rule from Geise is not that the Act precludes the circuit court from exercising jurisdiction over all tort claims related to sexual harassment. rather, whether the circuit court may exercise jurisdiction over a tort claim depends upon whether the tort claim is inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the Act itself." Maksimovic at 517, 687 NE2d at 23.

(14.) In Benitez v KFC National Mgmt Co, 305 Ill App 3d 1027, 714 NE2d 1002 (2d D 1999), restaurant employees sued their employer for intentional infliction of emotional distress after they discovered that their supervisor and other employees poked holes into the ceiling of the restroom to watch them undress. The court held that there was no preemption. In Veazey v LaSalle Telecommunications, Inc, 334 Ill App 3d 926, 779 NE2d 364 (1st D 2002), the appellate court held that an employee who raised claims against his employer for terminating him "because he was Black" had no tort basis independent of the IHRA, and concluded that the claim was preempted.

(15.) Although the case states Naeem was given a second PIP on December 27, 1999, the chronology of events indicates that she actually received the second PIP on December 27, 1995.

(16.) McKesson, her supervisor Montreuil, and the operations Manager, were also named as defendants under the intentional infliction of emotional distress claim.

(17.) The breakdown of the jury verdict was: $235,000 for pain and suffering, $35,000 for past and future medical care, $150,000 for lost earnings and benefits to date, and $75,000 for future lost earnings and benefits. Naeem, 444 F3d at 601.

(18.) Id.

(19.) Spahn v International Quality & Productivity Center, 211 F Supp 2d 1072, 1075 (ND Ill 2002) (indicating no preemption); Simon v City of Naperville, 71 F Supp 2d 882, 884 (ND Ill 1999) (tort is "surely preempted"); Temores v SG Cowen, 289 F Supp 2d 996, 1006-07 (ND Ill 2003) (no preemption even when the plaintiff also claims discrimination or retaliation based on sex); Haswell v Marshall Field & Co, 16 F Supp 2d 952, 965 (ND Ill 1998) (tort preempted by the Americans with Disabilities Act.)

(20.) Naeem, 444 F3d at 602.

(21.) Id at 603, quoting Maksimovic at 517, 687 NE2d at 23.

(22.) Naeem, 444 F3d at 603, FN4.

(23.) Id at 604, quoting Krocka v City of Chicago, 203 F3d 507, 516-17 (7th Cir 2000), quoting Maksimovic at 517, 687 NE2d at 21.

(24.) Naeem, 444 F3d at 605.

(25.) Id.

(26.) Id at 604-05, quoting Van Stan v Fancy Colours & Co, 125 F3d 563, 567 (7th Cir 1997).

(27.) Naeem, 444 F3d at 605.

(28.) Id.

(29.) Id at 605-06. The court noted that the evidence at hand went far beyond typical on-the-job disagreements. A significant factor that the court pointed out was that the defendants knew that the plaintiff was pregnant at the time, and was particularly susceptible to emotional distress. Id at 606, relying on Patterson v Xerox Corp, 901 F Supp 274, 279 (ND Ill 1995). 30. Naeem, 444 F2d at 613. Defendants contended that the district court erroneously admitted the testimony of two experts--a human resources expert and a DOT expert. The seventh circuit agreed that the testimony should not have been admitted, but concluded any error was harmless. Id at 608-09.

Eugene K. Hollander <ehollander@ekhlaw.com> heads his own litigation practice at The Law Offices of Eugene K. Hollander, where he concentrates his practice in civil rights and personal injury litigation. He is the author of Employment Evidence (James Pub Co 2003).