By Brandi O. Brown, J.D.
Three female employees of the Catholic Charities of the City of Chicago who alleged a variety of claims based on unchecked sexual harassment and retaliation at the hands of the same male coworker proceeded in part on the claims asserted in their amended complaint. While they were unsuccessful in adding a claim under the Illinois Gender Violence Act (IGVA), they successfully added claims against the male coworker and this time around successfully pleaded claims for intentional infliction of emotional distress (Brownlee v. Catholic Charities of the Archdiocese of Chicago, March 28, 2018, Gottschall, J.).
Harassment and battery. Each of the plaintiffs made similar allegations. The first, who drove for one month delivering meals with the male coworker who instigated the hostile environment, alleged that he rubbed her shoulders and thighs, though she pushed his hand away each time and told him to stop. He also said their supervisor “would like to f*ck you” and said, “[i]f I was your man, you wouldn’t talk unless I told you to.” She complained to their supervisor, who she said responded: “[W]e put you with him because you can handle him.” The coworker was not investigated or disciplined. One day the coworker allegedly yelled at her as they were delivering a meal to a client, who refused to open the door as a result. They were ordered to return to the office and, during the drive, the coworker struck her on the arm and threatened to have someone hurt her. He also stopped the car and refused to drive until she spoke to him. He did not take her back to the office until she threatened to get out of the vehicle and walk to a police station.
Fruitless complaints. The second plaintiff alleged that the male coworker made similarly harassing comments to her. He allegedly showed her a pornographic video, referred to her as a prostitute (and himself as a pimp), and told her, “I like the way you’re a** is shaped.” Likewise, he made harassing comments to the third plaintiff and touched her on several occasions. He also made homophobic statements in front of her and, after she complained to a supervisor, began to call her “little gay girl” in front of other employees. All three plaintiffs alleged that their complaints about the coworker were fruitless.
The women filed suit against the employer, alleging violations of Title VII and state law, as well as tort claims. In prior proceedings, the court granted the employer’s motion to dismiss in part and gave the employees leave to amend the complaint. They did, fleshing out prior allegations and adding the male coworker as a defendant. They also added a claimed violation of the IGVA. The defendants moved to dismiss.
Ratification. On the first plaintiff’s claims, which were the primary focus of the motions, additional gains were made. The court had previously dismissed her battery and intentional infliction of emotional distress (IIED) claims, concluding that the first amended complaint had not adequately pleaded the predicates for holding the employer liable under respondeat superior and also concluding that the battery and IIED claims were preempted as pleaded by the state human rights act. The second amended complaint, contrary to the employer’s assertion, cured those defects. The employee stated a claim that the employer ratified the male employee’s intentional torts. According to the allegations, the employer had knowledge of the behavior (her complaints) and it failed to follow-up, which is sufficient under state law to express authorization by the employer.
Extreme and outrageous. The third plaintiff’s IIED claims against the employer and coworker will proceed. In a light favorable to the employees, the court found their allegations “plausibly rise to the level of conditions so intolerable that an individual would be compelled to involuntarily resign.” The statements by the coworker, the court explained, “especially those about talking, blend sexual objectification and physical aggression laced with implications of domestic abuse. Together they dehumanize.” When considered alongside those statements, the repeated physical acts of rubbing the female employee’s thighs and shoulders “can be seen as a display of physical power designed to reinforce the message that Washington could and would transgress Brownlee’s boundaries so as to keep ever in the forefront of Brownlee’s mind the point at which sex and violence can collide—rape.” This is more than a conflict of personalities or a mere workplace dispute. “Summary judgment may tell a different story,” the court reiterated, but the complaint gave fair notice of a plausible claim.
No preemption. Moreover, the Illinois Human Rights Act did not preempt the first plaintiff’s battery and IIED claims as alleged in the second amended complaint. The key aspects of this changed analysis were that the male coworker was brought in as a defendant and the new complaint came “equipped with a ratification theory for imputing his intentional torts to Catholic Charities.” Nor was the battery claim preempted by the Illinois Workers Compensation Act, as the employer contended. She stated a plausible claim that her injuries were not “accidental” by claiming that the employer ratified them. For dismissal purposes, that was enough.
No IGVA claim against employer. However, the first plaintiff’s claim under the IGVA did not survive the motion. Deciding the motion on the narrowest ground, rather than on whether or not Catholic Charities was a “person” under the Act, and noting that the Illinois Supreme Court has not spoken on the issue of corporate liability under the Act, the court dismissed the claim. Under the guidance of Watkins v. Steiner, a case decided by an Illinois appeals court under the Act, knowledge and refusal to act are insufficient to state a claim that the employer supported or assisted gender violence.
Retaliation. The third employee was found to have adequately pleaded a retaliatory hostile work environment claim, rather than a retaliation claim based on a discrete act. Although her retaliatory hostile work environment claim overlapped factually with her other hostile work environment claim, the court explained that the “overlapping facts can support both claims.”
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