April 13, 2017
from the United States District Court for the Northern
District of Illinois, Western Division. No. 13-CV-50389 -
Frederick J. Kapala, Judge.
POSNER, Manion, and Kanne, Circuit Judges.
Nischan alleges that she was fired from her job for filing a
sexual-harassment complaint. Consequently, she brought a
litany of claims in the Northern District of Illinois, suing
three defendants: Stratosphere Quality, LLC-her employer;
Chrysler Group LLC- her employer's client; and Abbas
Sabbah-her purported harasser. The district court dismissed
respectfully disagree with the court's decision regarding
Nischan's sexual-harassment claim against Stratosphere:
Nischan offered sufficient evidence supporting that claim to
avert Stratosphere's motion for summary judgment. And to
that extent, we reverse and remand the case. But we otherwise
provides third-party inspection and quality-control services
to car manufacturers. One of Stratosphere's major clients
was Chrysler. As relevant here, Chrysler hired Stratosphere
to inspect thousands of cars at a large parking lot in
Belvidere, Illinois. Stratosphere also provided services to
six other companies in the Belvidere area.
5, 2012, Stratosphere hired Nischan as a car inspector. Her
formal position was "team lead." A month later,
Stratosphere promoted her to "project supervisor."
As a project supervisor, Nischan reported directly to her
supervisor Davina Turluck. Turluck, in turn, reported to Jim
Harris-an "operations manager" whose job entailed
planning for project costs, overseeing and reviewing
projects, and responding to customer complaints.
work at Stratosphere required frequent contact with a
coworker named Sabbah. Sabbah was not a Stratosphere
employee. Instead, he worked for Chrysler as a liaison to
claims that Sabbah sexually harassed her, and did so
relentlessly. The alleged harassment includes Sabbah
routinely rubbing his penis on her hip and buttocks; hugging
her, while moaning; pressing himself against her breasts,
while moaning; commenting that her breasts were really firm;
asking her if her breasts were real and what size they were;
asking her whether she liked small, medium, or large penises;
asking her on dates, and once promising her a night that she
would never forget; putting his arm around her; rubbing her
thigh; staring at her breasts; and making uncomfortable eye
contact with her.
further contends that high-level Stratosphere employees knew
about the harassment, having witnessed it firsthand.
Specifically, she claims that Sabbah once rubbed his erect
penis on her in a work trailer in front of Harris and a
project supervisor named Michelle Blackman. Nischan says that
she then ran out of the trailer crying and that Blackman came
out to console her.
last alleged instance of sexual harassment occurred on
September 22, 2012. Nischan claims that Sabbah made a comment
about how she would be a lonely empty nester soon because her
son was going to leave home and join the Navy. Sabbah
allegedly then propositioned her and asked for her phone
number. According to Nischan, this was the straw that broke
the camel's back: she loudly rebuffed his advance,
demanding that he stop bothering her.
denies all of these allegations.
from this purported harassment, Nischan had other problems at
work, namely with her performance. In August 2012, she made
numerous mistakes, causing Turluck and Harris to intervene
and provide direction. By September 2012, Turluck and Harris
had "completely lost faith in [Nischan's] ability to
perform the tasks associated with being a [project
supervisor]." (R. 83-10 at 2.) So they decided to demote
her back to the position of team lead.
September 24, 2012, Nischan had another slipup that caused
Turluck and Harris to "change the course of action [they
had] decided on." (R. 83-16 at 3.) While on the lot,
Nischan was demonstrating to her crew how to inspect a
vehicle's brake-line clips for defects. But instead of
checking near the wheels (where the clips are located), she
popped the hood. She admitted that this was a "pretty
serious" mistake and a major safety issue. (R. 106-1 at
worse, she made this mistake in front of Sabbah.
Consequently, Sabbah demanded that Stratosphere remove her
from the lot because he did not "trust her inspecting
vehicles." (R. 83-16 at 2.) It took two days and
multiple protests, but on September 26, 2012, Stratosphere
complied with Sabbah's request.
however, did not fire Nischan; rather, Turluck told her to
contact the scheduling department to see if there was work at
another lot in Belvidere. But she chose to file for
October 8, 2012, Nischan lodged a sexual-harassment complaint
with Stratosphere. Stratosphere subsequently turned the
matter over to its legal counsel.
December 20, 2013, Nischan sued Stratosphere, Chrysler, and
Sabbah in the Northern District of Illinois. Her complaint
charges the defendants with sexual harassment, sex
discrimination, and retaliation in violation of both Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. and the Illinois Human Rights
Act, 775 ILCS 5/1-101 et seq. ("IHRA").
The complaint also asserts Illinois common-law claims for
intentional infliction of emotional distress and battery.
September 23, 2014, the district court partially granted the
defendants' motions to dismiss under Federal Rule of
Civil Procedure 12(b)(6), disposing of all Title VII claims
against Sabbah, the IHRA sexual-harassment and
sex-discrimination claims against Sabbah, the battery claim
against Stratosphere, and the
intentional-infliction-of-emotional-distress claims against
all of the defendants. The court subsequently reinstated the
IHRA sexual-harassment claim against Sabbah.
January 11, 2016, the court granted the defendants'
motions for summary judgment under Federal Rule of Civil
Procedure 56, dismissing the remaining Title VII and IHRA
claims. The court then relinquished jurisdiction over the
state-law battery claims against Chrysler and Sabbah.
appeal, Nischan challenges the district court's grant of
the defendants' motions to dismiss and for summary
judgment, disposing of her claims for sexual harassment, sex
discrimination, retaliation, intentional infliction of
emotional distress, and battery.
review these decisions de novo. Rockwell Automation, Inc.
v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 544
F.3d 752, 756 (7th Cir. 2008). Regarding the claims dismissed
under Rule 12(b)(6), we accept all well-pled facts as true
and construe all inferences in the nonmovant's favor,
granting the motion only when the complaint fails to allege
facts sufficient to "state a claim to relief that is
plausible on its face." Berger v. Nat'l
Collegiate Athletic Ass'n, 843 F.3d 285, 289-90 (7th
Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). And regarding the claims dismissed under Rule
56, we construe all facts and reasonable inferences in the
non-movant's favor, granting summary judgment only when
"the admissible evidence shows that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Tapley v.
Chambers, 840 F.3d 370, 376 (7th Cir. 2016) (quoting
Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791
(7th Cir. 2014)).
these standards in mind, we address each of Nis-chan's
dismissed claims in turn.