Intentional Infliction of Emotional Distress –
A New Weapon for Employment Lawyers
Plaintiff’s 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”).1Other 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. In Naeem v. McKesson Drug Company,2 the Seventh Circuit Court of Appeals 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 the federal court.
Employment at Will and Remedies Available to the Employee
In Illinois, as in most jurisdictions, the employer may enter a relationship with an employee in one of the following ways: 1) as an independent contractor, 2) through an “at-will” relationship, or 3) through an express or implied contract. If the employee is an independent contractor or is employed “at-will,” the employee or employer may terminate the employment relationship at any time for any reason.3 “At-will” means that, in the absence of an employment contract or collective bargaining agreement defining grounds for discharge or a definite term of employment, an employer can generally discharge an employee with or without notice, for any reason, or for no reason at all.4Congress, the Illinois legislature, and the courts have created a number of exceptions to the at-will employment rule. For instance, an employer may not fire an at-will employee for a discriminatory reason, if that employee claims protection as a member of a protected class because of his or her gender, age, religion, ethnicity, national origin, race,5 age,6or disability.7In 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, in some circumstances, front pay, and attorney’s fees and costs. In those cases that allow for compensatory and punitive damages,8 the maximum that a Plaintiff may recover against his employer for those types of damages is $300,000.9It is for this reason that many Plaintiffs resort to pendent state law claims to skirt the statutory cap.
Another exception to the at-will doctrine is that the employer cannot retaliate against an employee if he engages in protected activity for pursuing rights guaranteed by these laws or for public policy. Traditionally, this action has been limited to the employee’s assertion of rights under the Illinois Workers’ Compensation Act.10While some courts have expanded the cause of action, it is a narrow exception to the rule, and most courts have refused to extend it any further.11
In addition to the above employment claims, some Plaintiffs have asserted breach of contract claims against their former employer. An employment contract can be established through an express written or oral contract, or alternatively, through certain express or implied promises made by the employer to the employee. Depending upon the language of the employer’s handbook or policies and procedures, the Plaintiff may be able to establish that the handbook constitutes an enforceable contract.12 Naturally, the employee’s recovery will be limited to the compensation promised by the express contract, or back pay for a breach of a promise set forth in the handbook, and will not be able to seek tort damages.
Preemption by the Illinois Human Rights Act
The IHRA provides that the Illinois Human Rights Commission shall have exclusive jurisdiction over civil rights violations. The IHRA encompasses employment discrimination claims.13 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.”14
The Supreme Court of Illinois has addressed the doctrine of IHRA preemption twice. In Geise v. Phoenix Co. of Chicago, Inc.,15Plaintiff 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 court reasoned that the conduct which Geise complained of fell within the definition of a “civil rights violation.”16Plaintiff 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.17The 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.18The court held that the claims were barred by the IHRA.19
Three years later, the supreme court considered the case of Maksimovic v. Tsogalis.20 In Maksimovic, Plaintiff worked as a waitress at a restaurant owned by the Defendant. She quit after Defendant made sexual advances toward her. Plaintiff filed a complaint with the Illinois Department of Human Rights for sexual harassment, and later filed a complaint in the Circuit Court of Cook County alleging that 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 as the sexual harassment was merely incidental to the battery, assault and false imprisonment.21The court held that since Plaintiff sufficiently alleged the elements of the torts which stood wholly separate and apart from the allegations under the IHRA, the circuit court had subject matter jurisdiction over the claims.22 Two other post-Maksimovic cases on the state appellate level turned out with mixed results.23
The Naeem Facts
Plaintiff Sally Naeem 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. Plaintiff was eventually promoted to the position of Operations Manager at McKesson’s Houston, Texas, Distribution Center. In March, 1992, Naeem was transferred to McKesson’s distribution center in Romeoville, Illinois 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 certain McKesson employees testified at trial about various performance deficiencies, Plaintiff nonetheless received merit based increases in 1993 and 1994.
In March, 1994, Plaintiff’s manager, Jerry Moultry, made a sexual proposition to her, which she rejected. Plaintiff complained, and human resources wrote up her manager. In July, 1994, Plaintiff applied for the position of Operations Manager, and was passed over in favor of a male employee. Plaintiff filed a charge of discrimination with the EEOC in October, 1994. Plaintiff alleged an unlawful failure to promote on the basis of sex discrimination and retaliation.
In early, 1995, Naeem became pregnant with her fourth child. She experienced a difficult pregnancy and suffered from complications. In May, 1995, Plaintiff’s manager was replaced by Dan Montreuil. Plaintiff claimed that after Montreuil became her supervisor, her workload increased significantly – she had to take calls from drivers around the clock and was given many responsibilities for a pending warehouse configuration. As part of the configuration project, Naeem was required to climb up a metal stairway onto a raised mezzanine level and crawled under furniture to set up computers. Because of her pregnancy, this was difficult for her.
Plaintiff told human resources and the Operations Manager that the work was overwhelming and that she did not feel well. On July 17, 1995, Plaintiff prepared a grievance memo about her concerns. Several days later, Naeem met with Montreuil, the Operations Manager and a human resources representative. At trial, Naeem testified that Montreuil yelled that she would receive no help. Plaintiff 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, Plaintiff 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, Plaintiff testified that the transportation office was relocated and that 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. Plaintiff testified that after she returned from leave, Montreuil reprimanded and humiliated her at management staff meetings. Plaintiff completed her first PIP, but was given a second PIP on December 27, 1999. Plaintiff thought it would be very difficult to fulfill the PIP requirements, which caused her among other things, to travel to Indiana for training truck drivers. Plaintiff testified that Montreuil tampered with her computer while she was away and changed the password so that she could not access her computer.
On January 23, 1996, Plaintiff was suspended for three days for failing to order post-accident drug testing of a driver following an accident. Plaintiff claimed that such testing was not required as Department of Transportation (“DOT”) guidelines did not require it as the truck was too small. When Naeem returned to work, she was given until the end of the week to complete the tasks on the PIP. Plaintiff testified that she worked around the clock to get the tasks done, but that it was impossible. Plaintiff was unable to complete the tasks, and she was terminated.
At trial, Plaintiff presented evidence of her emotional distress. She testified that she worked constantly, got into arguments with her family, and suffered from physical symptoms such as recurring headaches and an upset stomach. Plaintiff’s husband and son offered corroborating testimony that Plaintiff experienced crying spells, was unable to breast feed her newborn, and refused sexual relations with her husband. Plaintiff testified that she initially did not seek psychiatric help because she was ashamed and it was too expensive. Plaintiff considered suicide and ultimately saw a psychiatrist, who diagnosed her with post-traumatic stress disorder and major depressive disorder. Following her discharge, Plaintiff was unable to find a job, and ran a convenience store owned by her family where she was robbed at gunpoint.24 Plaintiff eventually obtained an entry level computer job.
District Court Proceedings
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, Defendants25 moved for a directed verdict, arguing that Plaintiff 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 a total of $495,000.26 Post-trial, 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, and reasoned that the “Defendants’ behavior toward Plaintiff is actionable in tort apart from Defendants’ duty as an employer not to discriminate in the workplace.”27
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.28Relying 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.29The Seventh Circuit 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.30The Court 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.31The 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.”32
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.33The 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.34The Court set forth the elements that Naeem had to establish a claim 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 a high probability that his conduct would inflict severe emotional distress, and (3) the defendant’s conduct did cause severe emotional distress.35Based 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.36
The Court reasoned that:
The conduct that she alleges is not just sexually harassing conduct; instead, 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 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.37
The Court also concluded that Naeem established her intentional infliction of emotional distress claim by a sufficiency of the evidence.38The Seventh Circuit also rejected other arguments raised by the Defendants and affirmed the jury verdict.39
Practice Pointers In Light of Naeem
Following Naeem, we can expect future 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:
- Plaintiffs will need to focus on the legal duty breached by the employer/defendants in order to withstand a motion to dismiss or motion for summary judgment.
- Notwithstanding No. 1 above, in Plaintiff’s pleading, Plaintiff should detail facts which clearly support an independent tort, separate and apart from any discrimination or harassment claim.
- Plaintiffs should set forth evidence in Plaintiff’s deposition to set up facts which do not depend upon, for example, a sexual harassment claim, to defeat an anticipated summary judgment motion.
- 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, post-trial if there is a verdict, and on appeal.
Eugene 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. © 2003 James Publishing Company.
2 __ F.3d __ (7th Cir. 2006).
3 Illinois has long been an “at-will” state. Kemp v. Division No. 241, Amalgamated Association of Street and Electrical Railway Employees of America, 255 Ill. 213, 228, 99 N.E. 389, 395 (1912).
4Palmateer v. International Harvester Co., 85 Ill. 2d 124, 128, 421 N.E.2d 876, 878 (1981).
5See, 42 U.S.C. § 2000e-2(k)(1)(A)(i).
8In age discrimination cases, and those brought under the Family and Medical Leave Act, Plaintiffs may not recover compensatory damages.
9 42 U.S.C. § 1981(b) provides a sliding schedule of the combined amount of compensatory and punitive damages that an employee may recover, depending on the size of the employer. For employers with 100 employees or less, the employee may recover $50,000; $100,000 for companies with 200 or fewer employees; $200,000 for 500 employees or less, and $300,000 for companies with more than 500 employees.
10Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978).
11See, Clemons v. Mechanical Devices Co., 184 Ill. 2d 328, 704 N.E.2d 403 (1998); Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877 (1994).
12Duldulao v. Saint Mary of Nazareth Hospital Ctr., 115 Ill.2d. 482, 505 N.E.2d 314 (1987); Doyle v. Holy Cross Hospital, 186 Ill.2d 104, 111, 708 N.E.2d 1140, 1144 (1999).
15159 Ill. 2d 507, 639 N.E.2d 1273 (1994).
16 Id. at 516; 639 N.E.2d at 1277.
17 Id. at 516-517; 639 N.E.2d at 1277.
18Id. at 517-518; 639 N.E.2d at 1277.
19Id. at 518-519; 639 N.E.2d at 1278.
20177 Ill. 2d 511, 687 N.E.2d 21 (1997).
21Id. at 517, 687 N.E.2d at 23.
22Id. 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.”
23In Benitez v. KFC Management Co., 714 N.E.2d 1002 (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, 779 N.E.2d 364 (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.
24Defendants contended that this was the source of Plaintiff’s severe emotional distress.
25McKesson, her supervisor Montreuil, and the Operations Manager, were also named as Defendants under the intentional infliction of emotional distress claim.
26The 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.
27Naeem, slip. op. at 10.
28Spahn v. International Quality & Productivity, 211 F. Supp. 2d 1072, 1075 (N.D. Ill. 2002) (indicating no preemption); Simon v. City of Naperville, 71 F. Supp. 2d 882, 884 (N.D. Ill. 1999) (tort is “surely preempted”); Temores v. SG Cowen, 289 F. Supp. 2d 996, 1006-1007 (N.D. 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 (N.D. Ill.1998) (tort preempted by the Americans with Disabilities Act.)
32Id. at 16, citing, Krocka v. City of Chicago, 203 F.3d 507-516-517 (7th Cir. 2000).
35Van Stan v. Fancy Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997).
38 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 18-19, citing, Patterson v. Xerox Corp., 901 F. Supp. 274, 279 (N.D. Ill. 1995).
39Defendants 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.
