Bristow v. Drake Street Inc.

• Citation: 41 F.3d 345
• Decision Date: 01 February 1995
• Docket Number: 92-1409 and 92-1497,Nos. 92-1381,s. 92-1381
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 739 Susan BRISTOW, Plaintiff-Counterdefendant, Appellant-Cross-Appellee, v. DRAKE STREET INCORPORATED, Drake Street/Chicago Shoes, John Powers, et al., Defendants-Counterplaintiffs, Appellees-Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 345

41 F.3d 345

66 Fair Empl.Prac.Cas. (BNA) 739

Susan BRISTOW, Plaintiff-Counterdefendant, Appellant-Cross-Appellee, v. DRAKE STREET INCORPORATED, Drake Street/Chicago Shoes, John Powers, et al., Defendants-Counterplaintiffs Appellees-Cross-Appellants.

Nos. 92-1381, 92-1409 and 92-1497.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 1994.

Decided Dec. 1, 1994.

Rehearing Denied Feb. 1, 1995.

Nancy G. Lischer, Michael J. Leech (argued), D. Kendall Griffith, Hinshaw & Culbertson, Penny Nathan Kahan, Lori D. Ecker, Chicago, IL, for plaintiff-appellant.

Margaret M. Basch (argued), Schaumberg, IL, for defendants-appellees.

Before POSNER, Chief Judge, and GODBOLD ^* and FLAUM, Circuit Judges.

POSNER, Chief Judge.

John Powers is the author and producer of the play Do Black Patent Leather Shoes Really Reflect Up? After its initial run, he took the show on the road between 1984 and 1987. Susan Bristow, whom Powers employed as associate producer of the play throughout its second run but fired before the expiration of her contract, brought this suit against him and two companies that he controls (we can ignore the companies). Contending that he fired her because she refused to yield to his sexual importunings, Bristow charges sex discrimination in violation of Title VII of the Civil Rights Act of 1964, breach of contract, and tortious infliction of emotional distress. The jury awarded $30,000 on the tort claim but returned a verdict for Powers on the contract claim. The Title VII charge was tried to the judge, who found that Bristow had been fired not because of sex but because Powers had decided to close the show because it was losing money. The judge further found, however, that Powers had denied Bristow two weeks of post-closing employment (in which she would have been dealing with the odds and ends incident to shutting down the show) on sexual grounds. But the judge ruled that Bristow had waived any claim for damages arising out of that denial, and he therefore awarded her only $1--nominal damages--for the violation of her rights under Title VII.

The judge's ruling that Bristow had waived her claim for damages for the denial of employment after the show closed was error. She returned the check for two weeks' pay that Powers sent her because she was afraid that by cashing it she would be conceding that her termination was not a breach of contract. The fear was groundless; a creditor does not, merely by accepting partial payment of the amount that he claims is due him, waive his entitlement to the rest. Hepperly v. Bosch, 172 Ill.App.3d 1017, 123 Ill.Dec. 70, 74-75, 527 N.E.2d 533, 537-38 (1988). Since the check did not contain a notation that it was an offer to settle all outstanding disputes between the parties, there was no danger that by cashing it Bristow would be deemed to have entered into an accord and satisfaction, as in A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill.App.3d 905, 183 Ill.Dec. 356, 360-61, 611 N.E.2d 619, 623-24 (1993). But no reason is suggested why a groundless fear of losing one's claim should be deemed a waiver of that claim. Nor do any of the circumstances surrounding Bristow's refusal to cash the check create the elements of a waiver, estoppel, or other mode of forfeiture. Quite the contrary. It was plain that Bristow wanted to be paid and that she received no consideration for surrendering a right to be paid; there is no indication that Powers was prejudiced in his defense of this suit or otherwise by her refusing to cash the check; and there was doubtless some possibility that if she accepted it Powers would attempt to use that acceptance in some way in defense against her suit. Her entitlement to interest might be affected by her refusal to accept the check, but that has not been made an issue.

An amendment to Title VII made in 1991 allows the award of common law damages for sexual harassment of an employee, 42 U.S.C. Sec. 1981(a), thus enabling the employee to obtain monetary relief even if she was not fired on account of sex and therefore has no claim for back pay or reinstatement. Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir.1989). Applying the amendment retroactively, the district judge held that Bristow would have been entitled to such damages had the jury not already awarded them for tortious infliction of emotional distress. The judge's ruling that the 1991 amendment applies retroactively was error, because the harassment ended before the amendments became effective. The judge ruled on the question of retroactivity before this court and later the Supreme Court decided against retroactivity. Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992); Luddington v. Indiana Bell Tel. Co., 966 F.2d 225 (7th Cir.1992); Landgraf v. USI Film Products, --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Rivers v. Roadway Express, Inc., --- U.S. ----, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994).

Bristow's appeal challenges not only the judge's refusal to award her damages for breach of the post-closing term of her employment contract, but also his admission of parol evidence concerning Powers's contractual right to fire her and his finding that sex was not a cause of the firing. Powers's appeal challenges not only the retroactive application of Title VII but also the jury's verdict on tortious infliction of emotional distress; and let us turn to that verdict. The evidence, construed favorably to Bristow as it has to be in view of the verdict, shows that between the early months of 1985, when she terminated a sexual relationship with Powers that had begun shortly after she was hired, and her firing by him in April of 1987, he subjected her to a protracted series of outrages that included firing her between 12 and 40 times--the record is unclear--and promptly rehiring her (all but the last time), yelling at her, following her around at work, stalking her in nonworking hours, banging on the door of her apartment late at night, calling her ten to thirty times a night, and leaving messages on her telephone answering machine that he hated her and wished her dead. No one should have to put up with such abuse, and it would be surprising if the law of Illinois did not provide a tort remedy for it, which plainly it does.

But it is not enough that the defendant's conduct was outrageous; the emotional distress that it inflicted must be severe. It is true that the plaintiff is not required to prove that the defendant's conduct provoked a physical reaction, Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 494-96, 574 N.E.2d 602, 607-609 (1991); cf. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 180 Ill.Dec. 307, 319, 607 N.E.2d 201, 213 (1992); Restatement (Second) of Torts Sec. 46, comment j (1965), though Bristow actually did have a physical reaction--hives--and it was the jury's prerogative to exonerate the kitten on whom Powers ungallantly tried to pin the blame, and lay the blame squarely on Powers. Bristow testified that she had owned cats for many years without having any allergic reaction to them.

There is no fixed threshold of severity that purely emotional or psychological distress must cross in order to make the defendant's conduct actionable. But McGrath v. Fahey, 126 Ill.2d 78, 127 Ill.Dec. 724, 727, 533 N.E.2d 806, 809 (1988), quotes with approval the Restatement's formulation: "The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it." Restatement, supra, Sec. 46, comment j. Obviously, this is not a bright-line test. On one side, we have Swanson v. Swanson, 121 Ill.App.2d 182, 257 N.E.2d 194, 196 (1970), which held that evidence that the plaintiff "was nervous and had many sleepless nights and he thought he was going to have nightmares" about the incident (his brother's failure to tell him about their mother's death), did not establish the required severity. On the other side, we have Pavilon v. Kaferly, 204 Ill.App.3d 235, 149 Ill.Dec. 549, 556, 561 N.E.2d 1245, 1252 (1990), which held that evidence that the plaintiff "was forced to continue her psychotherapy treatment and ... [was] scared, angry, and unable to cope with her child, her work and her relationship with men generally" did. This case falls on Pavilon's side of the line. Even if hives alone are not enough to establish severe emotional distress--and probably they are not--there was much more here: evidence of stomach pains and vomiting, and evidence that Bristow had "shut down as a personality," an expression that witnesses elaborated by explaining that she had "stopped talking ... stopped eating ... lost weight ... did her job, but she was not functioning ... was not a happy person ... cried all the time ... was distraught ... too thin ... constantly crying ... inhibited ... appeared frightened."

Bristow did not consult a psychiatrist, but if that were a requirement for liability the only effect would be to increase psychiatrists' incomes. She did present medical evidence, though that was not required either. See Corgan v. Muehling, supra, 574 N.E.2d at 609. The cases, moreover--inelegantly but, because of the inherent vagueness of the concept of severe emotional distress and the difficulty of establishing its presence with any reliability, realistically--tend to merge the issue of the outrageousness of the defendant's conduct with the issue of the severity of the plaintiff's emotional distress, in effect requiring more evidence of outrageousness the weaker the evidence of distress, as in the recent case of Khan v. American Airlines, 266 Ill.App.3d 726, 203 Ill.Dec. 171, 176, 639 N.E.2d 210, 215 (1994). The Restatement noted this tendency. "Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed." Restatement, supra, Sec. 46, comment j, p. 78. Powers's...