Case Information
*1 Before W ILLIAMS H AMILTON Circuit Judges , C HANG District Judge .
C HANG District Judge
. Mary filed lawsuit against employer, Steel. As case comes us, all remains state intentional Of Northern District Illinois, sitting designation. ‐
fliction emotional distress. On that claim, district court entered summary judgment against Richards on ground that preempted by Act, ILCS 5/8 111(D). Although our analysis preemption issue differs district court’s take on it, we agree that emotional distress fails matter law. U.S. Steel can be held responsible only subset factual allegations Richard relies on, on that set facts, U.S. Steel did engage in “extreme outrageous” be havior law. We thus affirm entry summary judgment against plaintiff claim.
I. Background
A. Facts
Because court granted summary judgment Steel, we recite facts in light most favorable Richards. Richards hired by National Steel Corporation she continued work company follow ing its sale Steel 2003. At some point ear ly did four month rotation “learner electrician” department supervised Daniel Harris. R. Harris Dep. During rotation, told Harris she wanted be best electrician she be. Harris Dep. But response, Harris told she never able meet his standards.
After learner electrician stint, moved different department, namely, Basic Oxygen Furnace De partment, where she worked from April to January 2011. R. – 1, Richards Dep. at 15, 28. There, Jesse Byrd was one her supervisors. R. – Byrd Dep. at 11. Richards had several negative experiences—most involving Byrd— during nine months she worked Furnace De partment.
For example, her first day at Furnace Department, Richards met with Byrd his office. Richards Dep. at 36. During meeting, Byrd asked Richards whether she draw motor circuit and what she had learned blueprint class. Id. at – 37. Richards was only learner electrician asked those questions. Richards Dep. at – 38. In May (the month after she started Furnace Depart ment), Richards lost work glove. Richards Dep. at – 46. On her break, she approached Byrd, who was talking four five men at time, and she asked new pair gloves. at – 46. In response, Byrd asked her she want ed one glove two—and then made comment about competent people. Richards Dep. 46. June Richards had another encounter Byrd.
Richards was walking from patio back work area when Byrd approached her, jerked her jacket open, said “I like that” while staring her. Richards Dep. 39. Richards shocked scared, she “got hell away from” Byrd. Dep.
Around three months later, one Richards’s coworkers succumbed heat exhaustion. took coworker break room, called started administer first aid. Dep. When Byrd showed up, offered retrieve coworker’s tools job site, but Byrd went “b[ers]erk” and told her to stay put. Richards Dep. at 88. After around minutes, Richards left break room to go back to job site to “see what was going on,” and she ran into Byrd. Id. Richards just asked Byrd if was ok her to retrieve tools, but Byrd “screamed at [her] again,” she walked away, returned to break room, and sat down at a table. Id. at 89. Byrd walked in, towered over Richards, and told her tell him that her boss (which was him) was a prick. Id. Byrd then stood behind Richards and said “[m]atter fact, tell your boss he’s a prick.” Id. Richards replied, “I don’t to, you already did.” Id.
Later same day, Richards breakroom when Area Manager Lowery McBride (Byrd’s supervisor) came into room. Richards Dep. at 206. Without saying anything, McBride grabbed Richards’s radio off chest make call. 207. radio had been hooked Rich ards’s bra. Id .
Toward end December Richards had several more run ins Byrd. In one incident, Richards had stand bucket order reach some screws she needed fix light. Dep. 43. Byrd saw do ing this said, “You think bucket will hold all that?” Richards’ Dep. 43. Two other electricians were room. Dep. same time period, Rich ards several coworkers were gathered break room when Byrd came told sexual joke. Dep.
Then, December Byrd asked call coworker ask coworker he work over time. Richards Dep. at – 69. During call, the coworker asked Richards if she work overtime instead. Rich ‐ ards Dep. at 69. When Byrd heard he told Richards to get off phone and said “[b]efore I let you work over ‐ time, I’ll jump off bridge.” Richards Dep. at 69. Richards retorted, “I’ll take you to bridge.” Id. Richards ended up working overtime shift, and Byrd placed her on trash de tail (though Richards’s coworker ended up taking out most trash, Richards Dep.
During Richards’s nine months Furnace Depart ment, Byrd also (1) criticized her front her coworkers for putting a box on floor instead on a shelf; (2) asked Richards she was listening him and said “[w]hat, are you scared me?”; (3) threatened fire Richards after she called him for help a unit breakdown; and (4) ominous ly told her she was sitting chair where coworker had sat when he was fired. According Richards, Byrd also give her tools she needed do her job, de spite providing tools other Department employees. Rich ards Dep. 15. When asked for specifics during her deposi tion, however, Richards remembered only two instances. Once, Richards asked for two stick rulers—one for her one her coworker—but she received only one, which she gave coworker. Dep. 33. second time, out office leave, Byrd gave everyone Furnace Department flashlight Christmas gift. Id. When returned leave, Byrd did flashlight her. left Furnace Department January began working Maintenance Services Depart
ment. After she left, Byrd followed attempted speak with her twice. Richards Dep. at 157, 159. Richards does know what Byrd tried to say to her because she “just ran away him.” Richards Dep. at 159.
On January 28, 2011, Richards filed discrimination complaint with Steel about some Byrd’s conduct. Richards Dep. 279. Shortly thereafter, human resources personnel Lydia Kachigan and Nic Krasucki met with Rich ards and her union representatives to discuss complaint. At meeting, Kachigan speculated that Byrd had opened Richards’s jacket to look an inside pocket, told Rich ards she needed adjust to Byrd’s rough management style.
A couple weeks later, February 12, 2011, feeling like Kachigan had adequately addressed her concerns, Rich ards called an Steel employee hotline report inappro priate comments made Byrd, well jacket inci dent. Richards Dep. 60. A few days later, Richards met human resources personnel Mark Tade David Coombes address phone call. When Tade asked Rich ards about jacket incident, she became upset started crying. Tade told she was too should see psychiatrist.
Several months later, while working Maintenance Services Department, failed show up call off overtime shift she was scheduled work. Rich ards Dep. was suspended, pending hearing, failure call off. Following hearing, suspension was converted discharge. Dep. After arbitration, discharge overturned. ‐
Richards evaluated a psychologist 2013. R. – 5, Jewell Report. The psychologist diagnosed Richards with Post ‐ traumatic Stress Disorder and Dysthymic Disorder. Jewell Report 5. He noted “the symptoms these disorders seem appeared result [the] traumat ic experiences [Richards] encountered while job” U.S. Steel. Id.
B. Procedural History
Initially, Richards filed three count complaint U.S. District Court for Southern District No vember 2012. R. – 1, Richards I Complaint. The complaint alleged (1) retaliation, (2) sexual harassment, (3) tentional infliction emotional distress. Id. U.S. Steel filed motion for summary judgment, asserting retaliation sexual harassment claims were time barred Richards had failed state claim intentional infliction emotional distress. I WL *8, *10. The district court dismissed retaliation sexual har assment claims time barred. Id. *10. court held had stated claim intentional inflic tion emotional distress, but federal claims dismissed, court declined exercise supplemental juris diction over remaining claim. refiled intentional infliction Circuit Court Madison County
May R. II Complaint. Steel re moved case—on basis diversity jurisdiction—to District Court Southern District Illinois. No. ‐ U.S. Steel then filed another motion for summary judgment, time asserting three grounds dismissal Rich ‐ ard’s emotional ‐ distress claim: (1) Human Rights Act preemption, (2) untimeliness, and (3) failure state claim. See R. 26, U.S. Steel SJ Mot. U.S. Steel also argued that it be held vicariously liable some conduct that is claiming caused severe emotional dis tress. Id. n.8. The district court granted U.S. Steel’s summary judgment motion and dismissed claim tentional infliction emotional distress ground it is preempted by Act. v. Steel cv ‐ JPG ‐ SCW, WL *3 (S.D. Ill. May 2016) ( II ). district court held is preempted because is “’inextri cably linked’ claims retaliation sexual harass ment.” *2; see also id. (“[A] review complaint dicates all allegations relate hostile work envi ronment retaliatory discharge.”). appeals grant summary judgment Steel’s favor.
II. Standard Review We review court’s grant summary judgment de novo construing all facts reasonable inferences non moving party’s favor. Melton Tippecanoe Cnty. Summary judgment proper “if movant shows there no genuine dispute as any ma terial fact movant entitled judgment matter law.” Fed. R. Civ. P. 56(a). And there may more than one basis affirm entry summary judgment: “[w]e can affirm any ground supported record long *9 9 16 ‐ 2436 issue was raised non ‐ moving party had fair opportunity to contest issue court.” Locke Haessig 662,
III. Preemption under Human Rights Act In this appeal, argues Human Rights Act does preempt tentional infliction of distress. The statutory source of preemption Section - 111(D) of Act: “[e]xcept as otherwise provided law, no court of this state shall jurisdiction over subject alleged civil rights vio lation other than as set forth Act.” ILCS 5/8 - 111(D) (emphases added). That statutory provision tells us “subject” alleged “civil rights violation” must heard procedures Act. context employment cases, Act defines “civil rights violation” include sex discrimina tion employment. Specifically, civil rights violation “[f]or any employer refuse hire, segregate, or act respect recruitment, hiring, promotion, renewal employment, selection training or apprenticeship, dis charge, discipline, tenure terms, privileges conditions employment basis unlawful discrimination,” ILCS 5/2 102(A), which includes discrimination against person because sex, see id. § – 103(Q). The Act also ‐ specifically bans sexual harassment in employment: it is a civil rights violation “any employer, employee, agent of any employer, employment agency or labor agency en ‐ gage in sexual harassment.” ILCS 5/2 ‐ 102(D). Sexual harassment turn is defined as “any unwelcome sexual ad ‐ vances or requests sexual favors or any conduct of a sex ual nature when … such conduct purpose or effect of substantially interfering an individual’s work perfor mance or creating an intimidating, hostile or offensive work ing environment.” § 101(E). Finally, it is a civil rights violation retaliate against an employee complaining about either sexual harassment unlawful discrimination. ILCS 5/6 ‐ 101(A).
With those statutory definitions “civil rights viola tions,” easy some instances figure out com mon ‐ law claim is, actuality, “subject” “civil rights violation” under Act, ILCS 5/8 111(D), thus preempted. For example, employer refused hire job applicant prohibited basis, such race sex, ILCS 5/1 103(Q), then would be civil rights violation under Act would not comprise elements emotion al claim (we discuss those elements more detail later). To be sure, sort discriminatory hiring practice illegal under Act (not mention under federal law, most circumstances), but sort egregious conduct courts deemed qualify inten tional infliction emotional distress. So unsuccessful job applicant pursue discrimination guise tort intentional infliction distress. ‐
But misconduct that arises in employment context might still form basis sustainable common law tort under law. It true that, past cases, we char ‐ acterized Section 111(D) “preemption” provision, e.g. , Naeem v. McKesson Drug Co. , 2006)—and indeed that statutory provision does require that “subject” of “civil rights action” be brought only Human Rights Act. But Act does call preemp ‐ tion broader sense that all claims arising out an em ployment relationship are precluded. That sort preemp tion sometimes found federal statutes that block state law claims relating to, or arising from, an entire category conduct or entire category injury. E.g. Northwest, Inc. v. Ginsberg S. Ct. (2014) (discussing scope federal statute preempts state laws “related to” “price, route, service air carrier,” U.S.C. § 41713(b)(1)); Bruesewitz Wyeth LLC (2011) (discussing scope federal statute preempts state law claims damages “arising” “from vaccine related injury,” U.S.C. § 300aa 22(b)(1)). contrast, Act’s preemption provi
sion narrower. As Supreme Court explained concluding claims may based some workplace misconduct: adjudication tort claims traditional
ly been within province our courts, we can find nothing language Act, policy underlying it, which indicates legislature intended pre clude … court[s] exercising jurisdiction 16 2436 over all tort claims related incidents sexu al harassment.
Maksimovic v. Tsogalis , N.E.2d 21, (Ill. To draw the line between preemption versus not, the Illinois Supreme Court boiled down the inquiry follows: whether a court “may exercise jurisdiction over a tort claim depends whether the tort claim is inextricably linked a civil rights violation such there is no independent basis the action apart the Act itself.” Id. at (emphasis added). Put another way, key preemption whether facts support common law tort claim (like intentional inflic tion distress) also support claim Human Rights Act, but rather whether plaintiff can prove elements tort “ independent any legal du ties created by Human Rights Act.” (em phasis added); see also Geise v. Phoenix Co. , N.E.2d (Ill. 1994) (on facts case, sexual harassment claim preempted because “no independent basis” common law claim); Naeem McKesson Drug Co. , 2006) (“if plaintiff can allege facts sufficient establish elements tort, tort preempted” by Act). So, although case law times refers broad concept formulations test, such whether claims are “in extricably linked,” “in essence” one same, Maksi movic N.E.2d concrete question ask whether plaintiff states valid out needing rely rights duties created Act, id. 24; Geise N.E.2d 1277; Naeem *13 13 ‐ 2436 F.3d – 03. Following the Illinois Supreme Court, we too emphasized the preemption test “rest[s] on examination legal duties, not on the factual” overlap between the claims. Naeem , F.3d n.4. Applied here, the factual overlap between Richards’s statutory emo tional ‐ distress claim does not matter, she can pursue tort claims free statutory preemption—as long she does rely rights or duties created by the Human Rights Act.
IV. Analysis Emotional ‐ Distress Claim
A. Respondeat Superior case, when we ask whether can state
valid common ‐ law claim without needing rely rights duties sourced Human Rights Act, our answer is no. Disarmed Human Rights Act, faces surmountable factual legal hurdles. First, set facts—that is, alleged misconduct—on which can rely asserting ‐ claim restricted only those attribute 16 2436 U.S. Steel. Although the Act imposes strict liability on an employer for supervisor’s misconduct, so the common law. Geise N.E.2d (under the common law, “[a]bsent the allegations sexual harassment, Geise no independent basis imposing liabil ity on former employer the facts present here”); id. (“the Act imposes strict liability on the employer”). Under law, an “employer may be held vicariously liable the tort an employee the tort is committed within scope employment.” Boston v. U.S. Steel Corp. courts look criteria identified Section Restatement (Sec ond) Agency determine whether employee’s conduct is within scope employment:
(1) Conduct servant within scope employment if, but only if: (a) it kind he employed per form;
(b) it occurs substantially within author ized time space limits; *15 15 2436 (c) it is actuated, least part, by pur pose serve the master, (d) if force is intentionally used by the serv ant against another, the use of force is not unexpectable by the master.
(2) Conduct of servant is within scope of employment it different kind authorized, far beyond authorized time space limits, too little actuated by purpose serve master.
Restatement (Second) of Agency § (1958) (cited by Bagent v. Blessing Care Corp. , N.E.2d 985, (Ill. 2007)). keep ing Section 228, employer liable acts of employee where acts complained were committed solely benefit employee. Boston 467; Wright v. City Danville N.E.2d (Ill. 1996). And specific context sexual assault, sexual nature misconduct generally disqualifies employee’s act being taken furtherance employer’s interest. Doe ex rel. Doe v. Lawrence Hall Youth Servs., N.E.2d (Ill. App. Ct. 2012) (collecting cases holding “sexual sault its very nature precludes conclusion occurred within employee’s scope employment doc trine respondeat superior ”) (emphasis original); Deloney Bd. Educ. Thornton Twp. N.E.2d (Ill. App. Ct. This even where employment provided opportunity for employee to engage in misconduct. Doe N.E.2d – 62; Deloney , N.E.2d at 788.
Applying these principles to this case, U.S. Steel cannot be held liable two instances misconduct Richards has alleged in support claim. The first happened in June when Richards walking a patio back to work area. Jesse Byrd (one supervisors in Furnace Department) approached Richards, jerked jacket open, said “I like that” while staring her. Richards Dep. 39. second happened in around December several coworkers were gathered in break room when Byrd came in told off color joke (described earlier this opinion) in volving his wife. Dep. Neither instance, even though offensive what should be a non discriminatory workplace, had any apparent relation to Byrd’s job duties supervisor or said further U.S. Steel’s interests. does reach so far attribute Byrd’s conduct those instances Steel.
B. “Extreme and Outrageous” Element
Moving beyond narrowing facts that can rely on, second hurdle successfully asserting for intentional infliction emotional distress high bar set by Illinois case law for that type claim. Under law, plaintiff may recover damages for intentional infliction emotional only she establishes that (1) defendant’s conduct was truly extreme and outrageous; (2) defendant intended inflict severe emotional dis tress (or knew there least high probability its conduct would cause severe emotional distress); and (3) defendant’s conduct did fact cause severe distress. Feltmeier v. Feltmeier , N.E.2d (Ill. defining first element, Supreme Court held “to qualify as outrageous, nature defend ant’s conduct must be extreme go beyond all possi ble bounds decency and regarded intolerable civilized society.” Feltmeier N.E.2d To avoid im posing liability rough tumble unpleasant—but breaking—behavior, case law instructs “‘mere insults, indignities, threats, annoyances, petty op pressions, other trivialities’ do amount extreme outrageous conduct, nor does conduct ‘characterized malice degree aggravation which entitle plaintiff punitive damages another tort.’” Van Stan v. Fancy Colours & Co. 1997) (quoting Pub. Fin. Corp. Davis N.E.2d (Ill. 1976)). And avoid imposing liability idiosyncratic individual ized reactions, “[w]hether conduct extreme outra geous judged objective standard based all *18 18 No. 16 2436 facts and circumstances of a particular case.” Franciski v. Univ. Chi. Hosps. , F.3d (7th Cir.
Liability emotional distress, tort, is even more constrained in employment context. “Illinois courts have limited recovery cases in which employ ‐ er’s conduct been truly egregious.” Van Stan , F.3d This because “personality conflicts and questioning job performance are unavoidable aspects employment … frequently, they produce concern and distress.” (internal quotation marks omitted). Indeed, there gen ‐ eral hesitation “to find intentional infliction emotional dis ‐ tress workplace because, everyday job stresses re ‐ sulting discipline, personality conflicts, job transfers even terminations give rise cause action ‐ tentional infliction emotional distress, nearly every em ployee cause action.” Naeem , F.3d (internal quotation marks omitted); see also Lewis School Dist. F.3d 2008) (“Employers ten necessarily take actions during course busi ness result distress, but those actions can classified ‘extreme outrageous’ unless they go well beyond parameters typical workplace dis pute.” (internal quotation marks omitted)). As result, courts are hesitant conclude conduct extreme outrageous employer employee context unless “employer clearly abuses power holds over em ployee manner far more severe than typical disa greements job related stress caused average work environment.” Naeem F.3d (internal quotation marks omitted); Lewis
Under those governing legal principles, the misconduct that Richards advances as the premise of the does not qualify as “extreme outrageous,” even when viewed in the light most favorable to her. As dis cussed earlier in opinion, Jesse Byrd (a supervisor in Furnace Department) Daniel Harris (the supervisor in another department), made comments about Richards’s lack of workplace competency. Among other things, Byrd also made an insulting remark about Richards’s weight dared Richards to call him insulting name to his face. And, in one instance, Area Manager Lowery McBride (who Byrd’s supervisor) grabbed a radio off of Richards’s chest to make a call. Although none these instances are a credit to respectful workplace, none them, either alone in combination, amount to “extreme outrageous” misconduct under Illinois law. This is especially true given all took place workplace, where Illinois com ‐ mon (remember, Human Rights Act broader) pays special care avoid transforming employer employee disa greements into emotional distress claim. See Naeem same goes reactions human re sources personnel Lydia Kachigan Mark Tade, who al legedly made insensitive remarks response Richards’s complaints about Byrd. By time met Ka chigan (separately) Tade, already had left Furnace Department Byrd no longer supervisor. Nor were human resources personnel required believe Richards’s version events. It bears repeating again Human Rights Act might very well dictated different response human resources personnel. But different story under common law, where bar set much higher. Richards’s emotional distress fails matter law.
V. Conclusion
Constrained alleged misconduct possi bly attributed Steel, established, independent Act, Steel en gaged “extreme outrageous” behavior law. We thus AFFIRM court’s entry summary judgment against plaintiff claim.
[1] The preemption provision was previously designated subparagraph (C) Section earlier opinions refer provision Section 111(C) instead Section 111(D). redesignation effective January See Ill. Public Act §
[2] It worth noting that, resolving Steel’s summary judgment mo tion, court order referred “inextricably linked” formu lation were primarily factual overlap test, order quoted length Jansen Packaging Corp. America , WL *2 – But Jansen decided couple months before Maksimovic which Supreme Court made clear preemption test simply whether plaintiff established elements tort independent any duties supplied Act, rejected factual relatedness test. Maksimovic N.E.2d
[3] district court, U.S. Steel raised issue footnote, see U.S. Steel SJ Mot. n.8, did again appeal, Appellee’s Br. n.7. We often find arguments footnotes are insufficiently devel oped, but here Steel actually cited pertinent case law, also was Richards’s burden, plaintiff, establish first instance Steel held liable alleged misconduct. See Bagent Blessing Care Corp. N.E.2d (Ill. 2007) (to apply respondeat superior, plaintiff burden show employee’s tortious conduct within scope employment). Yet Richards’s briefing (both court appeal) made no meaningful effort do so.
[4] If seems too much constraint imposing liability on employ ers, remember Act provides much broader attribution misconduct employers, Geise N.E.2d but brought claims under Act too late. We also emphasize pursued claims (either resisting summary judg ment court or appeal) against Steel theory negligent hiring, supervision, retention Byrd other individuals who mistreated her, Cf. Anicich Home Depot U.S.A., Inc. 2017) (predicting recognize against employer supervisor’s murder subordinate where em ployer had reason foresee danger failed prevent misuse supervisory authority), we no occasion address those theories.
[5] We pause moment comment on bounds set facts that can rely on. First, worth noting again that, discussed earlier in opinion, two instances misconduct cannot attributed Steel respondeat superior. Second, we reject Steel’s ar gument limited only three acts that were expressly identified in complaint comprising intentional infliction emo tional distress. See Compl. ¶ 22; Appellee’s Br. Federal courts are not confined factual allegations complaint when considering motion summary judgment. See Fed. R. Civ. P. 56(c). Third (and other hand), we do limit set facts events actually discussed her brief appeal. See Albrechtsen Bd. Regents Univ. Wis. Sys. other words, deciding appeal, we considered conduct self did include brief, even other events were mentioned pleadings, depositions, other documents filed court. It outside federal judiciary’s duty comb through lengthy record divine additional facts might support appellant’s claim.