Mobley v. Kelly Kean Nissan, Inc.

• Decision Date: 08 September 1993
• Docket Number: No. 93 C 2625.,93 C 2625.
• Citation: 864 F. Supp. 726
• Parties: Monica MOBLEY, Debbie DiFonzo, Jacquelyn Marzano Zullo and Susan Krauss-Calhoun, Plaintiffs, v. KELLY KEAN NISSAN, INC., Arthur Kelly, individually and d/b/a Kelly Kean Nissan, Inc., Hugo Meraz, individually and as Agent of Kelly Kean Nissan, Inc., Bob Breuer, individually and as Agent of Kelly Kean Nissan, Inc., and Anthony Skrapits, individually and as Agent of Kelly Kean Nissan, Inc., Defendants.
• Court: U.S. District Court — Northern District of Illinois

864 F. Supp. 726

Monica MOBLEY, Debbie DiFonzo, Jacquelyn Marzano Zullo and Susan Krauss-Calhoun, Plaintiffs, v. KELLY KEAN NISSAN, INC., Arthur Kelly, individually and d/b/a Kelly Kean Nissan, Inc., Hugo Meraz, individually and as Agent of Kelly Kean Nissan, Inc., Bob Breuer, individually and as Agent of Kelly Kean Nissan, Inc., and Anthony Skrapits, individually and as Agent of Kelly Kean Nissan, Inc., Defendants.

No. 93 C 2625.

United States District Court, N.D. Illinois, Eastern Division.

September 8, 1993.

Steven Neal Fritzshall, Curtis Burke, Gleason & Fritzshall, Chicago, IL, for plaintiffs Monica Mobley, Debbie DiFonzo, Jacquelyn Marzano Zullo, Susan Krauss-Calhoun.

Dale Lehman Schlafer, Jack Steven Craven, Kiesler & Berman, Chicago, IL, for defendants Kelly Kean Nissan, Inc., Arthur Kelly, individually and dba Kelly Kean Nissan, Inc.

Mark D. DeBofsky, DeBofsky & DeBofsky, Chicago, IL, for defendant Anthony Skrapits, individually, and as agent of Kelly Kean Nissan, Inc.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge.

Plaintiffs Monica Mobley ("Mobley"), Debbie DiFonzo ("DiFonzo"), Jacquelyn Marzano Zullo ("Zullo"), and Susan Krauss-Calhoun ("Calhoun") bring this 80-count sexual harassment and discrimination claim against Kelly Kean Nissan, Inc. ("Kelly Kean"), Arthur Kelly ("Kelly"), a co-owner of Kelly Kean, and various employees of the car dealership. Presently before us are Kelly and Kelly Kean's motions to dismiss and motion for a more definite statement, defendant Anthony Skrapits' motion to dismiss, and plaintiffs' motion to strike certain affirmative defenses. For the following reasons, we grant in part and deny in part defendants' motions to dismiss and deny plaintiffs' motion to strike.

I. Factual Background

Mobley, DiFonzo, and Zullo each worked for Kelly Kean in the Sales Department, and each complains of sexual harassment and discrimination at the hands of Hugo Meraz.¹ Although details differ, the harassment each describes follows a certain pattern. Meraz, the direct supervisor of both Mobley and Zullo and DiFonzo's co-worker, routinely asked plaintiffs to sleep with him and described the type of sexual activity he had in mind. His advances included offers to buy plaintiffs lingerie, sexually explicit messages, requests that plaintiffs wear tight clothes to work, and phone calls to plaintiffs at their homes. Even more seriously, Meraz allegedly threatened not to approve plaintiffs' sales deals if they did not sleep with him, and touched and fondled the women's breasts, buttocks, and arms.

In addition to Meraz' unwanted attention, Zullo alleges that defendant Anthony Skrapits, the Service Manager, sexually harassed her. Skrapits allegedly directed offensive language and gestures at Zullo, whistled as she walked by, and frequently grabbed and tickled her in front of other employees and customers. Although Zullo complained to management about Skrapits' and Meraz' conduct, she charges that nothing was done.

Each of the women complained about the sexual harassment to office personnel. Mobley spoke to Bob Breuer, a Lease Manager at Kelly Kean, as well as Kelly himself. Neither took any action, and Kelly reportedly laughed when he learned of Meraz' conduct. Shortly after she complained, Mobley alleges that she was assigned to make coffee and copies—tasks that previously had not been among her duties. Additionally, she did not receive a promised promotion to the sales floor or a raise. As a result of her treatment, Mobley resigned.

DiFonzo and Zullo also complained to Kelly about Meraz' harassment. Despite frequent objections nothing was done, and both women eventually felt compelled to resign.

Calhoun worked as a receptionist at Kelly Kean under the supervision of defendants Breuer and Skrapits. Calhoun alleges that the two supervisors made crude comments to her and used hand motions to simulate oral sex. Additionally, Skrapits persistently asked Calhoun to sit on his lap and, on more than one occasion, touched and fondled her buttocks. Apparently more aggressive than Skrapits, Breuer frequently pulled Calhoun onto his lap, held her there against her will, and fondled her legs. Unhappy with her treatment, Calhoun made numerous complaints to Kelly Kean management. When Calhoun objected to Skrapits, he replied that "boys will be boys." Nothing was done to stop the harassment.

All four women lodged complaints with the EEOC and received right-to-sue letters.

II. Discussion

Kelly Kean and Kelly have moved jointly to dismiss over twenty counts of the complaint comprising three categories of claims—the sexual harassment claims deriving from Illinois law, the emotional distress claims, and the assault and battery claims. Skrapits has moved to dismiss all counts against him, arguing that he cannot properly be sued under Title VII, and that this Court has no subject matter jurisdiction over the remaining claims against him. Finally, plaintiffs move to strike several of Skrapits' affirmative defenses for vagueness. We address these motions in turn.

A. Motion to Dismiss State Discrimination Claims

(Counts 19, 20, 35, 36, 57, 58, 78 and 79)

In Counts 19, 20, 35, 36, 57, 58, 78 and 79, plaintiffs allege that Kelly and Kelly Kean engaged in unlawful discriminatory employment practices in violation of Illinois law.² Defendants argue that not only have plaintiffs failed to identify the state law which they allegedly contravened, but the Illinois Human Rights Commission ("IHRC") possesses exclusive jurisdiction to adjudicate claims involving discriminatory practices under Illinois law.

In their brief, plaintiffs explain that the Illinois Constitution prohibits sexual discrimination and harassment. Specifically, Article I Section 17 of the state constitution states that "all persons shall have the right to be free from discrimination on the basis of ... sex in the hiring and promotion practices of any employer...." However, plaintiffs fail to recognize that the Illinois Human Rights Act ("IHRA"), which codifies this constitutional provision and forbids discrimination and harassment by employers, does not give plaintiffs a right to litigate their claims in court, but vests exclusive jurisdiction in the IHRC. 775 ILCS 5/8-103, 8-111; Scott v. Sears, Roebuck & Co., 605 F.Supp. 1047 (N.D.Ill.1985) (the IHRA "vests in the IHRC exclusive jurisdiction over complaints by private parties."); Sanders v. A.J. Canfield Co., 635 F.Supp. 85 (N.D.Ill.1986) ("The IHRA provides the exclusive remedy for violations of § 17; no independent right of action exists."). The law is clear, and plaintiffs may not bring their state law discrimination claims in this Court. We therefore dismiss Counts 19, 20, 35, 36, 57, 58, 78, and 79.

B. Motion to Dismiss Emotional Distress Claims

(Counts 7, 8, 27, 28, 45, 46, 66, and 67)

Next, Kelly and Kelly Kean seek to dismiss plaintiffs' claims for emotional distress and loss of reputation, contending that the Illinois Workers' Compensation Act ("IWCA") preempts these counts. Indeed, the IWCA bars an employee from bringing a common law suit against his employer for accidental injuries sustained in the course of employment and compensable under the IWCA. Ill.Rev.Stat. ch 48, ¶ 138.5(a). An injury intentionally inflicted by a co-worker may still be "accidental" within the meaning of the IWCA if the employer did not direct, encourage, or expressly authorize the co-worker's conduct. See Meerbrey v. Marshall Field & Co., 139 Ill.2d 455, 564 N.E.2d 1222, 1226, 151 Ill.Dec. 560, 564 (1990).

Plaintiffs allege that the harassment here escapes preemption for several reasons. First, they point out that many of the incidents occurred outside the work place. Second, plaintiffs argue that Kelly's decision to do nothing in the face of frequent complaints about Meraz' behavior amounts, at the very least, to encouragement of the activity. Finally, plaintiffs maintain that some of the actors, as management-level employees, constituted alter-egos of Kelly Kean, making the company itself liable for deliberate acts of harassment.

While a garden variety incident of harassment by a co-worker generally arises out of employment and would be considered an accident compensable through Workers Compensation, plaintiffs here have alleged facts which distinguish their claim from the typical case of harassment. Some of the incidents occurred outside the workplace and, more importantly, management-level employees, including the co-owner of the dealership, had been notified of the harassment and chose to do nothing. Plaintiffs' allegations that defendants elected to stand idly by rather than attempt to prevent harassment of which they were aware amounts to an allegation that defendants encouraged and authorized the alleged conduct. See Cline v. General Electric Capital Auto Lease, Inc., 757 F.Supp. 923 (N.D.Ill.1991). Claims based on such behavior, in turn, are not preempted by the IWCA, and we therefore deny defendants' motion to dismiss these counts of the complaint.

C. Motion to Dismiss Assault and Battery Claims

(Counts 11, 12, 30, 31, 49, 50, 70, and 71)³

Each of the plaintiffs has charged Kelly and Kelly Kean with assault and battery. Defendants contend that these counts must be dismissed, since they cannot be held liable under respondeat superior for the torts of their employees. As plaintiffs point out, they do not seek to hold defendants liable under the theory of respondeat superior, but to hold them directly liable for the offensive conduct.

Both parties agree that Hunter v. Allis-Chalmers Corporation Engine Division, 797 F.2d 1417 (7th Cir.1986), controls this case. The Hunter court ruled that an employer can be held directly responsible for an intentional tort committed by one co-worker against another if management level employees knew, or in the exercise of reasonable care should have known, of such harassment, but failed to take reasonable steps to prevent the harassing conduct. Id....