By Marjorie Johnson, J.D.
Though an employee could proceed to the discovery phase of her sexual harassment claims under the pseudonym "Jane Doe," her retaliation claims were dismissed without prejudice since resisting her supervisor’s sexual advances did not constitute a protected activity under Title VII or the Illinois Human Rights Act. A federal district court in Illinois similarly dismissed the employee’s claims of assault, battery, IIED, and negligent supervision since these tort claims were preempted by the Illinois workers’ compensation law (Doe v. TRP Acquisition Inc. dba The Roomplace
, July 11, 2016, Leinenweber, H.).
The employee, who worked as an assembler at one of her employer’s plants, used a false name when she was hired in order to prevent the company from discovering details about her prior work history. She was supervised by the plant manager, who allegedly sexually assaulted her on a regular basis from May to October 2015. When she attempted to resist him, he threatened to terminate her or any employee who helped her report him. She didn’t initially report his conduct due to her fear of losing her job, her poor English-speaking abilities, and his threats of revealing her true identity. However, in October 2015, she reported the assaults and harassment to management and the police. The following month, she was placed on leave due to an unrelated injury. She subsequently filed the instant action anonymously under the pseudonym "Jane Doe" because of the "extremely personal and humiliating nature of the allegations."
Anonymity OK for now.
The court rejected the employer’s contention that the employee’s complaint should be dismissed in its entirety because the law did not permit her to proceed anonymously. Notably, claims must contain a party’s real name unless the plaintiff shows "exceptional circumstances" that warrant anonymity. And while the Seventh Circuit disfavors anonymity in legal proceedings, "fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses." On the other hand, the court generally opposes allowing sexual harassment claimants to proceed anonymously.
The employer argued that courts have rejected anonymous claims with facts "gamier" than those alleged by the employee here. However, the court found it had little basis to make such a comparison based only on the facts alleged. It emphasized that she alleged sexual assault, which is typically more serious than harassment, and there was no indication that she meant to conflate the terms. Thus, the underlying facts could be shocking and very embarrassing to her. There was also the possibility that she might suffer retaliation if her name were made public, assuming she returned to work following her leave.
In sum, it was too early in the proceedings to conclude with any certainty that anonymity was inappropriate. Accordingly, the employee could proceed to the next phase of litigation anonymously, with the court being able to revisit the issue as the case developed.
Resisting advances not protected.
However, the employee’s retaliation claims were dismissed because she failed to plausibly allege that she engaged in protected activity. Though she claimed that her rejection of the plant manager’s sexual harassment was protected, the district court disagreed. Notably, the circuits are split on the issue of whether resisting a supervisor’s sexual advances amounts to protected activity, and the Seventh Circuit had not spoken. However, most courts in the Northern District of Illinois have not been convinced that such activity is protected under Title VII, and the court here adopted that majority position.
Tort claims preempted.
The employee’s tort claims were preempted by the Illinois Workers Compensation Act (IWCA). She sought to hold the employer liable for the actions of the plant manager for assault, battery, IIED, and negligent supervision. However, employees cannot seek damages outside of the IWCA for "accidental" injuries occurring in the course of their employment. And an injury caused intentionally by a coworker is considered accidental for purposes of the IWCA unless the employer "directed or expressly authorized" the coworker to commit the acts that caused the injury.
Simply alleging that the coworker was a manager doesn’t impute intent from the manager to employer. Rather, where the coworker is a member of management, his action can only be equated with the employer for IWCA purposes if he "had the authority to make decisions and set policy on behalf of the employer." Here, the employee claimed that the harasser represented her employer as a plant manager and as her supervisor, and that he had authority to terminate her. However, she did not allege facts suggesting that he had any additional authority or that any other members of management were aware of or authorized his alleged conduct. Because the employer "did not direct, encourage or commit" his conduct, her tort claims were preempted, and the court therefore dismissed them.