Bailey v. Unocal Corp.

• Citation: 700 F. Supp. 396
• Decision Date: 29 November 1988
• Docket Number: No. 88 C 1807.,88 C 1807.
• Parties: Suzanne BAILEY, Plaintiff, v. UNOCAL CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

700 F. Supp. 396

Suzanne BAILEY, Plaintiff, v. UNOCAL CORPORATION, et al., Defendants.

No. 88 C 1807.

United States District Court, N.D. Illinois, E.D.

November 29, 1988.

Jeffrey M. Morris, McCoy Morris & Kula, Robert J. Zaideman, Francine Kaplan, Epstein Zaideman & Esrig, Chicago, Ill., for plaintiff.

Mark A. Lies, II, Catherine E. Carpenter, Seyfarth Shaw Fairweather & Geraldson, Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

MORAN, District Judge.

Defendants move pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to strike and dismiss the plaintiff's complaint. In such circumstances, any inference drawn must be favorable to the plaintiff, United Milk Products Co. v. Michigan Avenue National Bank of Chicago, 401 F.2d 14, 17 (7th Cir.1968), and the allegations contained in the complaint are to be accepted as true. National Van Lines, Inc. v. United States, 326 F.2d 362, 372 (7th Cir.1964); 5 Wright, Miller & Cooper, Federal Practice and Procedure § 1363 at 656 (1969).

FACTS

Plaintiff Suzanne Bailey ("Bailey") was employed by defendant Unocal Corporation ("Unocal") between December 1, 1974 and approximately July 31, 1987. During this period, Bailey alleges that she was subject to sexual harassment from her supervisor at Unocal, the individual defendant ("supervisor"). In particular, Bailey complains of a hostile and abusive work environment created by her supervisor's repeatedly requesting and proposing sexual relations with her, using sexual innuendoes, subjecting Bailey to unwelcome sexual advances, and exposing himself to her. Bailey also alleges that Unocal either had knowledge of the supervisor's actions and thereby implicitly approved, or that it acquiesced in the conduct by deliberately electing not to inquire.

Bailey subsequently filed charges with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC") on or about June 15, 1987. In her filings Bailey failed to allege that the supervisor had exposed himself to her, but she did describe how he demanded that when traveling together on business they should register separately but should nonetheless stay together. The filings also describe a meeting between Bailey and the supervisor's boss, Bill Murphy ("Murphy"). Upon hearing her description of the supervisor's actions Murphy purportedly told Bailey he didn't want to hear her complaints because she and the supervisor were adults who could resolve their own personal problems. On December 10, 1987, Bailey received a right-to-sue letter from the EEOC. Soon thereafter she filed this action.

Count I alleges sexual discrimination by Unocal pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Count II alleges a pendent state law claim for intentional infliction of emotional distress against the supervisor, and count III alleges the same cause of action against Unocal. We deny defendants' motion with respect to counts I and II, and dismiss count III.

DISCUSSION

Defendants contend that this court should strike a portion of count I and should dismiss counts II and III for want of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

I. Paragraph 10(b)

The dispute here arises because Bailey's filings before the EEOC and the IDHR did not include the allegations contained in paragraph 10(b) of the complaint's first count, which accuse the supervisor of "exposing himself to plaintiff." The defendants contend that 10(b) should be stricken because the allegations contained therein do not appear in the administrative filings.

Defendants argue that striking ¶ 10(b) would further the "statutory policy embodied in Title VII that potential defendants must become aware of charges against them so that good faith negotiation and an opportunity to conciliate the charge can be obtained" (def.mem. at 3). We think defendants' own interpretation of the reasons why claims of first impression cannot be alleged in the complaint makes clear that their motion to strike should be denied: the allegations in the IDHR and EEOC filings gave the defendants ample notice of the charges against them, and negotiations should have been commenced regardless of the particularized allegation in ¶ 10(b).

Adequate notice is afforded defendants where the complaint alleges claims reasonably related to the EEOC charges. See, e.g., Box v. A. & P. Tea Co., 772 F.2d 1372 (7th Cir.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986); Jenkins v. Blue Cross Mutual Hospital Insurance Incorporated, 538 F.2d 164, 167 (7th Cir.1976) (en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); Danner v. Phillips Petroleum Company, 447 F.2d 159 (5th Cir.1971). This standard is interpreted liberally — most EEOC charges are brought by lay people and not lawyers. Babrocky v. Jewel Food Company, 773 F.2d 857, 864 (7th Cir.1985).

The allegations of ¶ 10(b) meet this criterion. The EEOC complaint alleged "sexual harassment," including "suggestions and advances" which "created an environment that made it impossible to work" and which resulted in "extreme emotional and physical distress and anxiety" (def. mo. exh. A at 1-2). The complaint merely elaborates on the sexual harassment by detailing one of the "advances." The allegations of exposure, if proven, are no less appropriate than other reasonably related details merely because they appear to strengthen the plaintiff's case.

II. Intentional Infliction of Emotional Distress

Counts II and III both allege the tort of intentional infliction of emotional distress. Count II alleges a claim against the supervisor, while count III alleges a claim against Unocal.

A. Elements of the Cause of Action

To state a cause of action for the tort of intentional infliction of emotional distress in Illinois, the plaintiff must allege, among other things, that the alleged conduct was extreme and outrageous. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Public Finance Corp. v. Davis, 66 Ill.2d 85, 88, 360 N.E.2d 765, 767, 4 Ill.Dec. 652, 654 (1976), quoting Restatement (Second) of Torts, § 46, comment d (1965). The defendants urge us to dismiss counts II and III, claiming the alleged conduct does not meet this requirement.

Defendants' motion rests, ultimately, on the contention that the plaintiff must plead facts which clearly would establish that the conduct was indeed extreme and outrageous. But a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The Federal Rules of Civil Procedure "do not require claimant to set out in detail the facts upon which he bases his claim," but rather ask only for a "short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 47, 78 S.Ct. at 103.

We have previously taken note of the importance of the relationship between the parties as a factor in determining whether particular conduct is extreme and outrageous. In Bahr v. Ellis & Robertson, Inc., No. 85 C 956, slip op. (N.D.Ill. October 15, 1985) 1985 WL 3074, we denied defendant's motion to dismiss where plaintiff alleged repeated sexual harassment, including "verbal and physical sexual advances," "repeatedly touching the derriere and the breast," and "sexual insinuations and invitations to be intimate" (slip op. at 2). Bahr discussed the relevance of the employer-employee relationship. After noting how "racial or ethnic slurs ordinarily do not provide grounds for an emotional distress claim but they can when an employer directs them at an employee," id. at 7 (citations omitted), we found that Illinois courts have recognized a lower threshold of liability for emotional distress where the defendant has abused or exploited a relationship. Id. at 8, citing Public Finance, 66 Ill.2d at 90, 360 N.E.2d at 767, 4 Ill.Dec. at 654; Geist v. Martin, 675 F.2d 859 (7th Cir.1982); Robertson v. Travelers Insurance Co., 100 Ill. App.3d 845, 427 N.E.2d 302, 56 Ill.Dec. 222 (5th Dist.1981). With this in mind, we denied the defendant's motion to dismiss.

We recognize today, as we did in Bahr, that Illinois has a very high standard for what constitutes "extreme and outrageous" conduct. Nonetheless, we will not dismiss plaintiff's complaint on the pleadings. The complaint alleges that

the defendant unlawfully subjected plaintiff to a hostile and abusive work environment, thereby altering the terms and conditions of plaintiff's employment, by:

(a) subjecting plaintiff to unwelcome sexual advances;

(b) exposing himself to plaintiff;

(c) subjecting plaintiff to unwelcome comments containing sexual innuendos;

(d) subjecting plaintiff to repeated requests and propositions for sexual behavior.

(Cplt. at ¶ 10.) We cannot presently conclude that the alleged course of sexual harassment, with its various forms ranging from innuendo to exposure, is not extreme and outrageous.¹ Rather, we choose to await the fruits of discovery and will revisit the issue on summary judgment if asked.

Count III raises a different issue — can Unocal be liable for the alleged intentional infliction of emotional distress by its employee? Such liability might be found either derivatively or directly. But derivative claims stemming from the conduct of employees under respondeat superior are exactly those types of claims preempted by the Illinois Workers' Compensation Act ("WCA"), Ill.Rev.Stat.1985 ch. 48, § 138.1 et seq. The injury is deemed accidental with respect to the employer and the WCA provides the exclusive remedy.

Bailey instead alleges the culpability of Unocal itself in that "the defe...