A tort can be loosely defined as “a non-contractual civil wrong.” Some torts, including negligence and some forms of product liability, do not require any particular intent on the part of a wrongdoer. Others, most of which are collected under the heading of intentional torts, require that the wrongdoer act with impermissible intent. Battery and intentional infliction of emotional distress are intentional torts.
A recent case from Illinois illustrates how the law of torts integrates with statutes forbidding sexual harassment. The lawsuit was brought by Melissa Rosa, a police officer for the University of Illinois Police Department against the Department and Sergeant Aaron Murauskas, who was Rosa’s supervisor.
In her lawsuit, Rosa alleged that at a training event in May 2017, Murauskas made unwelcome sexual advances and remarks to Rosa. On August 24, 2017, Murauskas directed Rosa to accompany him on a patrol ride. During the ride, Rosa alleged, Murauskas launched into a volley of sexually explicit and offensive comments – including that Rosa did not have a problem “getting fucked,” she “could get fucked whenever she wanted,” and “with lips like hers, he knew she could suck a really good dick.”
Rosa also claimed that Murauskas then grabbed her hand and placed it on his pants over his groin. He attempted to hold her hand there as Rosa pulled it away. According to Rosa, after shouting at him and protesting his advances, Murauskas laughed and told her “to stop acting like she had never sucked dick at work before and one more wouldn’t kill her.”
Rosa contended that Murauskas threatened to have a lieutenant write her up and suspend her if she refused. Rosa told him to stop, asked him to never to speak to her like that again, and requested that he drop her off at the police station. Murauskas stated that she was not going anywhere. As she cried, he warned her that he would make sure she was fired if she told anyone about this incident.
When the Department concluded that Murauskas had not violated the sexual misconduct policy, Rosa sued, claiming (among other things) that she was the victim of “battery” and “intentional infliction of emotional distress” on the August 24 patrol ride. The Department filed a motion to dismiss both claims, contending that Rosa had not alleged enough facts to allow the lawsuit to proceed.
The Court rejected the Department’s arguments. As to the battery claim, the Court noted that “battery is the unauthorized touching of the person of another. The allegations of Rosa’s complaint, taken as true for purposes of this motion, are more than adequate to state a viable claim for battery under Illinois common law.
“It bears noting that the Illinois Human Rights Act (IHRA) does not preempt Rosa’s claim to the extent it is based on a battery theory. The IHRA stipulates that ‘no other court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.’ Workplace sexual harassment constitutes a civil rights violation under the IHRA. The Illinois Supreme Court has concluded, however, that common law tort claims are not ‘inextricably linked with a civil rights violation where a plaintiff can establish the necessary elements of the tort independent of any legal duties created by the Illinois Human Rights Act.’
“Put simply, if the plaintiff does not rely on the IHRA in framing her cause of action, then the two are not inextricably linked. Here, Rosa does not rely on the IHRA in her battery count, nor do defendants raise IHRA preemption as a bar. The IHRA therefore does not preempt Rosa’s count of battery under Illinois common law, and the defendants’ motion to dismiss is denied as to this claim.
“Rosa also alleges intentional infliction of emotional distress against Murauskas. To prevail on an intentional infliction of emotional distress claim under Illinois law, the plaintiff must demonstrate that the conduct at issue was truly extreme and outrageous, the defendant either intended that his conduct inflict severe emotional distress, or knew that there was at least a high probability that his conduct would cause severe emotional distress; and the conduct in fact caused severe emotional distress. Like the battery count, however, IHRA preemption does not present an issue because Rosa did not invoke the IHRA in pleading this count.
“Defendants further argue that this count fails because Rosa has not shown extreme and outrageous conduct on Murauskas’s part. The case law says otherwise. Rosa alleges simply that Murauskas’s conduct was intentional, extreme, and outrageous and caused her severe emotional distress as well as mental and physical pain. At this stage, Rosa’s allegations are also adequate to plausibly state a claim for relief against Murauskas based on the events of August 24, 2017.”
Rosa v. Board of Trustees, 2020 WL 7319574 (N.D. Ill. 2020).