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Intent matters, but a city worker’s perceived invincibility was not a shield

October 17th, 2012  |  Sheryl Allenson

Intent to inflict requisite severe emotional distress is an element of an intentional inflectional of emotional distress claim in Illinois. One defendant tried to use that requirement – unsuccessfully – as a shield against an IIED claim by asserting that had not planned on getting caught after taking semi-nude pictures of a worker contracted to provide services to the city. The city worker filed a motion to dismiss the IIED claim, suggesting that because he did not intend to get caught, he lacked the requisite intent for liability. Though an Illinois  federal district court in Papastefan v Triad Consulting Services refused to sign off on the city worker’s ploy, it did acknowledge that intent was a fact question to be resolved after discovery.

The female employee worked for Triad Consulting Services, a company that contracted to provide building maintenance services to the City of Chicago Department of General Services. Because Triad did not provide any changing facility for its employees, a city worker allowed the Triad employee to change into her work attire in his office. The city worker secretly took semi-nude pictures of her on his cell phone. Although she was told about the photos by another city employee, the Triad employee was not allowed to transfer from the location and was required to clean the city worker’s office. Ultimately, she was suspended, and she filed suit against Triad for sexual harassment and retaliation and against the city worker for IIED. The city worker filed a motion to dismiss the claim.

After noting that many of his arguments relied on facts extraneous to the complaint, the court found one contention that did not exceed the scope of his motion to dismiss. Specifically, the city worker claimed that the Triad employee could not assert that he took the photos or disseminated them with the intent to inflict the requisite severe emotional distress because “there is no evidence that Defendant [city worker’s] conduct was intended to reach Plaintiff.”

Rejecting the defendant’s logic — he sought to evade liability based on his contention that he did not intend to get caught — the court denied his motion to dismiss. Rather, the employee alleged that the city worker knew that his actions had a high probability of causing severe emotional distress, the court noted. Whether his conduct actually led to such distress, and whether he knew that it would, were factual questions based on the circumstances, and thus were “better addressed at the conclusion of fact discovery,” ruled the court.

This, it seems, was a generous statement in light of the city worker’s tortured interpretation of the law.