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U.S. Steel employee’s emotional distress claim preempted by Illinois human rights law

By Kathleen Kapusta, J.D.

U.S. Steel could be held responsible for only a subset of the facts alleged by an employee, and on those facts it did not engage in extreme and outrageous behavior under Illinois common law, the Seventh Circuit ruled, affirming summary judgment against her intentional infliction of emotional distress claim on the ground that it was preempted by the Illinois Human Rights Act. Its analysis of the preemption issue differed from that of the lower court, but both agreed that the claim failed as a matter of law (Richards v. U.S. Steel, August 28, 2017, Chang, E.).

I like that. During a 2009 rotation as a “learner-electrician” at U.S. Steel, the employee told her supervisor she wanted to be the best electrician she could. In response, he told her she would never be able to meet his standards. After that stint, she moved on to the Furnace Department where she worked for nine months. During that time, she had several negative experiences with her supervisor, including on one occasion when he approached her, jerked open her jacket, and said “I like that” while staring at her.

Among other things, he also purportedly yelled and screamed at her; told her “you think that bucket will hold all that” when he saw her standing on a bucket to reach some screws; told a sexual joke in front of her; remarked that “before I let you work the overtime, I’ll jump off the bridge,” and told her to tell him he was a “prick.” She also alleged that an area manager grabbed a radio off her chest that had been hooked to her bra.

It’s not him, it’s you. Although she complained to HR, one HR rep speculated that the supervisor had opened up her jacket to look at an inside pocket and told her she needed to adjust to his rough management style. Feeling that her concerns were not adequately addressed, she called U.S. Steel’s hotline and met with a different HR rep, who told her when she started crying about the jacket incident that she was too emotional and should see a psychiatrist.

She was fired when she failed to show up or call off for a scheduled overtime shift. Although her discharge was overturned by an arbitrator, she was later evaluated by a psychiatrist who diagnosed her with PTSD and Dysthymic Disorder resulting from the traumatic experiences encountered at work.

Preempted. She then sued, asserting claims of retaliation, sexual harassment, and intentional infliction of emotional distress. The district court dismissed the retaliation and sexual harassment claims as time-barred and declined to exercise supplemental jurisdiction over the remaining claim. She then refiled her IIED claim in state court, and U.S. Steel removed the case to federal court, which found that her emotional-distress claim was preempted because it was “‘inextricably linked’ to her claims of retaliation and sexual harassment.”

Illinois Human Rights Act. On appeal, the employee argued that the Illinois Human Rights Act did not preempt her common-law IIED claim. Pursuant to Section 8-111(D) of the Act: “[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” In the context of employment cases, observed the court, the Act defines “civil rights violation” to include sex discrimination and specifically bans sexual harassment in employment. It is also a civil rights violation to retaliate against an employee for complaining about either sexual harassment or unlawful discrimination.

However, misconduct that arises in the employment context might still form the basis for a sustainable common-law tort under Illinois law, said the appeals court, noting that the Act’s preemption provision is narrow. Citing to precedent from the state’s high court, the appeals court explained that the key to preemption is not whether the facts that support a common-law tort claim (like intentional infliction of emotional distress) would also support a claim under the Act, but rather whether the plaintiff can prove the elements of the tort “independent of any legal duties created by the Illinois Human Rights Act.”

Insurmountable hurdles. In this case, said the court, the alleged misconduct on which the employee could rely in asserting the emotional-distress claim was restricted only to that which the Illinois common law would attribute to U.S. Steel, as although the Act imposes strict liability on an employer for a supervisor’s misconduct, “not so with the common law.” Instead, under Illinois common law, an employer may be held vicariously liable for the tort of an employee if the tort is committed within the scope of the employment.

Not in employer’s interest. Turning to Section 228 of the Restatement (Second) of Agency, the court observed an employer is not liable for the acts of an employee where the acts complained of were committed solely for the benefit of the employee. And in the specific context of sexual assault, observed the court, the sexual nature of the misconduct generally disqualifies the employee’s act as being taken in furtherance of the employer’s interest.

Under these principle, U.S. Steel could not be held liable for two of the instances of alleged misconduct: the incident in which her supervisor jerked her jacket open and said “I like that,” and the incident in which he told the off-color joke in front of her. Even though offensive, neither incident had any apparent relation to his supervisory duties or could be said to further U.S. Steel’s interests.

Not extreme or outrageous. Further, said the court, under Illinois law, a plaintiff may recover damages for intentional infliction of emotional distress only if she establishes that the defendant’s conduct was truly extreme and outrageous, and here the alleged misconduct didn’t qualify. While her supervisor made comments about her lack of workplace competency, insulted her weight, and dared her to call him an insulting name to his face, and another manager grabbed a radio off her chest, none of these actions, either alone or in combination, amounted to extreme and outrageous conduct under Illinois law. This, said the court, was especially true given that this all took place in the workplace, where Illinois common law pays special care to avoid transforming employer-employee “disagreements” into an emotional-distress claim. Because the same was true of the actions of the HR personnel who allegedly made insensitive remarks to the employee, her emotional distress claim failed as a matter of law.