Nischan v. Stratosphere Quality, LLC
865 F.3d 922
7th Cir.2017Background
- Nischan was hired by Stratosphere (a third-party inspection contractor) as a team lead/project supervisor working on Chrysler’s Belvidere lot; Sabbah was a Chrysler liaison working onsite, not a Stratosphere employee.
- Nischan alleges repeated sexual harassment by Sabbah (groping, rubbing erect penis on her, sexually explicit comments and propositions); Sabbah denies the allegations.
- An alleged trailer incident occurred where Nischan says Sabbah rubbed himself on her in the presence of two Stratosphere employees (Michelle Blackman and Jim Harris); Blackman attested she consoled Nischan afterward; Harris’s testimony conflicted about what he saw.
- Nischan made performance errors and was removed from the lot at Sabbah’s request in late September 2012; she filed an internal harassment complaint on October 8, 2012, and later sued Stratosphere, Chrysler, and Sabbah under Title VII, the IHRA, and state tort law.
- The district court dismissed most federal and state claims; on appeal the Seventh Circuit affirmed dismissal as to Chrysler and Sabbah, but reversed as to Nischan’s sexual-harassment claim against Stratosphere (holding there was a triable issue of constructive notice) and remanded that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chrysler was an employer/joint employer | Chrysler exercised control over Nischan (via Sabbah) and influenced her removal, so it should be liable as a joint employer | Chrysler lacked hiring/firing authority, paid no wages, provided limited oversight—thus not an employer | Chrysler was not Nischan’s employer; no joint-employer liability (claim dismissed) |
| Whether Sabbah (individual) is liable under Title VII/IHRA | Sabbah’s conduct injured Nischan; IHRA permits individual liability | Under Title VII no individual liability; under IHRA individual liability requires employer/agent status | Title VII claim against Sabbah dismissed; IHRA claim failed because Sabbah was not an employee/agent of Nischan’s employer (dismissed) |
| Whether Stratosphere is strictly liable or negligent for harassment by nonemployee Sabbah | Sabbah’s onsite authority made him effectively a supervisor; Stratosphere knew or should have known (constructive notice) and failed to remedy | Sabbah lacked power to change Nischan’s employment terms; Stratosphere did not have actual notice and had no obligation until complaint | Not strictly liable (Sabbah not a Stratosphere supervisor); but triable issue exists on negligence/constructive notice because supervisors witnessed or should have reported the trailer incident—claim against Stratosphere survives summary judgment |
| Whether retaliation claim survives (removed from lot because she complained) | Removal was retaliatory in response to harassment complaints/raising concerns | Nischan filed her complaint only after removal; no protected activity preceded the adverse action | Retaliation claim fails—no evidence she engaged in protected activity before removal |
| Whether intentional infliction of emotional distress (IIED) is barred | Sabbah’s conduct was outrageous and caused severe distress; tort claim allowed | IHRA is the exclusive remedy for civil-rights workplace harassment claims, preempting inextricably linked torts | IIED claim preempted by IHRA (dismissed) |
| Whether battery claim against Stratosphere survives workers’ comp exclusivity | Battery was intentional, non-accidental, outside workers’ comp exclusivity | The injury occurred at work in course of employment and is compensable—so exclusivity applies | Battery claim barred by Illinois Workers’ Compensation Act (dismissed) |
Key Cases Cited
- Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010) (elements of hostile-work-environment claim)
- Love v. JP Cullen & Sons, Inc., 779 F.3d 697 (7th Cir. 2015) (joint-employer/control test; hiring/firing as key factor)
- Vance v. Ball State Univ., 646 F.3d 461 (7th Cir. 2011) (definition of "supervisor" and employer liability rules)
- Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998) (employer constructive notice and affirmative defense framework)
- Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377 (7th Cir. 1991) (multi-factor test for employment relationship)
- Sangamon County Sheriff’s Dep’t v. Ill. Human Rights Comm’n, 233 Ill.2d 125 (Ill. 2009) (IHRA strict liability discussion for supervisory harassers)
- Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (Ill. 1990) (Workers’ Compensation Act exclusivity principles)
- Quantock v. Shared Mktg. Servs., Inc., 312 F.3d 899 (7th Cir. 2002) (IHRA preemption of tort claims that are inextricably linked to civil-rights allegations)