Carla Boston v. United States Steel Corporati

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-2795

CARLA BOSTON,

Plaintiff-Appellant,

v.

U.S. STEEL CORPORATION,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 13-cv-00532 — David R. Herndon, Judge.

____________________

ARGUED FEBRUARY 10, 2016 — DECIDED MARCH 4, 2016

____________________

Before BAUER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge. Plaintiff-appellant Carla Boston

worked at defendant-appellee U.S. Steel Corporation (“U.S.

Steel”) for eighteen years before she was laid off in Decem-

ber 2008, along with a number of other employees. While on

layoff status, Boston remained eligible to bid on posted posi-

tions for which she was qualified. Between September 2010

and January 2012, Boston was awarded, and subsequently

2 No. 15-2795

disqualified from, three different clerical positions at the

plant.

On April 10, 2012, Boston filed a complaint with the

Equal Employment Opportunity Commission (“EEOC”) as-

serting that she was laid off on January 10, 2012 in retaliation

for an earlier EEOC discrimination charge she had filed in

October 2010. She filed suit in federal court on June 3, 2013,

seeking relief for retaliation under Title VII and the Age Dis-

crimination and Employment Act (“ADEA”). She also as-

serted a common law claim for intentional infliction of emo-

tional distress (“IIED”). The district court granted U.S.

Steel’s motion for summary judgment as to both claims. We

affirm.

I. Background

Carla Boston worked for U.S. Steel (formerly the National

Steel Corporation) at Granite City Works from January 1991

until she was laid off in December 2008. She was hired ini-

tially as a Secretary in the Engineering Department. Labor

employees at Granite City Works, including Boston, are rep-

resented by the United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service Work-

ers International Union (“the Union”). The Basic Labor

Agreement (“BLA”) negotiated by U.S. Steel and the Union

governs the terms of employment for these employees.

During her first eighteen years of employment, Boston

performed engineering requests for vendors, ordered sup-

plies, ensured that computers and printers were functioning

properly, and used various computer systems to keep notes

and spreadsheets and place orders. There is no indication

that Boston was anything other than a capable and compe-

No. 15-2795 3

tent employee during this period. On December 7, 2008, Bos-

ton was laid off from her position in the Engineering De-

partment along with a number of other employees at the

plant.

A. October 2010 Disqualification

Boston remained on layoff status until she bid on a Cleri-

cal II position in the Basic Oxygen Furnace (“BOF”) Depart-

ment. Boston was awarded the job and started work on Sep-

tember 13, 2010. The BLA provided a thirty-day training pe-

riod for the new position.

There is a dispute over Boston’s performance in the BOF

position. U.S. Steel asserts that it quickly became apparent to

Boston’s supervisors that she was not showing sufficient

progress. Boston, for her part, offers a different account of

her time in the BOF Department. She notes that Neil Witt, a

division manager, claimed her computer skills were defi-

cient but that Witt was not responsible for evaluating her.

One of Boston’s direct supervisors, Tom Kurilla, also stated

that she lacked Microsoft Excel skills. But when Kurilla was

asked whether Boston’s computer skills impeded the com-

pletion of projects, he replied, “No, that I’m aware of.”

Additionally, Witt allegedly told Boston he was sur-

prised to learn that she was sixty-one years old. He asked

how long she planned to work and said he did not want to

train her if she was going to leave. Boston also contends that

Witt and Kurilla came into her office one evening, stood over

her in a threating manner, and told her there was a young

man in engineering who had bid for her job. Witt purported-

ly said: “[W]e are very gun shy here about a woman being

on this job. The last two women had walked off the job.” On

4 No. 15-2795

October 1, another supervisor, Doug Wood, who Boston

claims was complicit in failing to train her, allegedly threat-

ened Boston that if she told anyone he was not training her,

he would “throw her to the wolves.”

At the end of the thirty-day training period, Boston’s su-

pervisors in the BOF Department recommended returning

Boston to her previous position. Boston claims that Witt dis-

qualified her around October 8, 2010, without writing up a

report detailing the reasons for this action. According to Bos-

ton, a male was hired to fill Boston’s position after she left.

Boston returned to layoff status.

At some point after the BOF disqualification, Boston was

hired as a data entry employee for Bechtel Engineering at the

Wood River Refinery. Boston alleges that her new employer

was satisfied with her performance. Boston says she left this

position to bid on a position in U.S. Steel’s Human Resource

Security, or Pass Control, Department.

B. October 2010 EEOC Discrimination Charge

Boston filed an EEOC charge on October 26, 2010 alleging

that she was disqualified from the BOF Clerk position be-

cause of her age and sex. The EEOC dismissed Boston’s 2010

charge and she received a Notice of Suit Rights on December

28, 2011. Boston did not file suit against U.S. Steel based on

the conduct alleged in the October 2010 EEOC charge within

the prescribed ninety-day filing period.

No. 15-2795 5

C. May 2011 Disqualification

Boston bid on a Clerical II position in the Pass Control

Department and was awarded the position on April 11, 2011.

U.S. Steel asserts that Boston again failed to demonstrate

an ability to fulfill the job requirements. But Boston claims

that no one gave her a copy of the Pass Control Manual for

her own use and study, and that the department adminis-

tered an exam based on this manual. She also contends that

she was not trained for various tasks she was asked to carry

out, such as changing cartridges in a badging machine. Bos-

ton was tested on the cartridge change and could not com-

plete the task. She was also tested on various computer sys-

tems to which she was not granted access.

Boston was disqualified from the Pass Control position

after the thirty-day period. She returned to layoff status. Fol-

lowing the Pass Control disqualification, the Union filed a

grievance on Boston’s behalf asserting that she was not ade-

quately trained to perform the job. The grievance was de-

nied.

D. January 2012 Disqualification

Boston then bid on another Clerical II position in

Maintenance and Operations in the Ironmaking Department

(“Ironworks”). She was awarded the position and started

work on December 12, 2011. Michelle Fields, an Ironworks

Manager, was Boston’s supervisor. An Administrative Assis-

tant in Ironworks, Marcia Graham, was assigned to train

Boston. Graham was the only other clerical staffer in Iron-

works at that time. Graham was tasked with training Boston

to perform the various duties of the clerical position, includ-

ing “missed list procedures.” The missed list is a list of

6 No. 15-2795

missed inspections that are to be performed in the plant, in-

cluding maintenance and electrical inspections. According to

U.S. Steel, mistakes associated with the missed list put the

department at risk of being written up by auditors. U.S. Steel

asserts that during training, Boston had access to a computer

in her office and was provided with at least fifty-eight pages

of computer “screen prints” so Boston could take notes as

she and Graham worked through tasks. However, Boston

claims that she was not provided with computer access and

was not trained on any computer program.

Graham kept notes on Boston’s training and, in late De-

cember, expressed concern that “[Boston] wasn’t learning.”

On December 21, 2011, Boston left Graham a voicemail stat-

ing, in part:

I just wanted to tell you don’t give up on me. I

know it’s been kind of a little rough day today.

But uh, we’ll get that computer up and run-

ning and I will sit down and figure this job out

I promise you … [W]e’ll hit it hard when I get

back and thanks a lot and thanks for your pa-

tience.

The plant was closed during the week of Christmas and no

training took place.

According to Graham, Boston was still making mistakes

when sending out requests for missed inspections after

Christmas. Boston alleges that Graham only let Boston ob-

serve her once or twice and that she never completed the

missed list training and thus could not move on to train for

other parts of the job. Boston also states that she was not

given access to the U.S. Steel computer system until the day

No. 15-2795 7

she left and that Graham had denied her access although

Boston had requested it. Boston did not report to Fields that

Graham was not training her or denying her computer ac-

cess. She also did not contact anyone responsible for labor

relations at the plant to report that she was not being trained

by Graham.

Boston was disqualified from the Ironworks position on

January 10, 2012. Graham reported to Fields that Boston was

missing procedures and failing to complete tasks, was una-

ble to move past the missed list training to train for other

parts of the job, and that Graham had to watch Boston to

make sure she was completing tasks properly. Fields con-

cluded that Boston could not fulfill the requirements of the

Ironworks position. Boston again returned to layoff status.

Upon her disqualification from the Ironworks job, the

Union filed a grievance on Boston’s behalf asserting that

Boston was not given sufficient time to learn the job. The

grievance was denied.

E. April 2012 EEOC Retaliation Charge

On April 10, 2012, Boston filed a new EEOC charge as-

serting that she was laid off in retaliation for her earlier

EEOC discrimination charge from October 2010. The April

2012 EEOC retaliation charge states, in relevant part:

I was hired by the above referenced employer

on January 5, 1991. My most recent position

was Clerk earning $21.40/hour. My direct su-

pervisor was Michelle Fields, Iron Works Man-

ager, and her supervisor was Rick Veech, Plant

Manager. I returned to work from being laid

off on December 9, 2011. I filed EEOC charge

8 No. 15-2795

#846-2011-06647, which was closed on Decem-

ber 28, 2011. I was laid off in retaliation on Jan-

uary 10, 2012.

Boston also stated that the earliest date of discrimination

was January 10, 2012 and the latest date of discrimination

was January 10, 2012. She did not check the box indicating

“Continuing Action.” The April 2012 EEOC retaliation

charge did not reference the May 2011 Pass Control disquali-

fication.

Between January 10, 2012 and August 31, 2012, U.S. Steel

posted five job vacancy notices for Clerical II positions. Bos-

ton did not bid on any of these jobs. Rather, she voluntarily

retired on August 31, 2012, pursuant to the rules of the

Steelworker’s Pension Trust. By voluntarily retiring on Au-

gust 31, Boston met the requirements under a 2008 Union

agreement to receive a payment of $7,500. She would not

have been eligible for the payment had she not retired by

August 31. Boston claims that, had she not been laid off, she

would have planned to work until she reached full retire-

ment age around September 2015.

Boston received a Notice of Suit Rights in connection

with the 2012 EEOC retaliation charge on April 19, 2013. She

filed suit on June 3, 2013, alleging retaliation for her 2010

EEOC charge in violation of Title VII and the ADEA. She al-

so asserted a common law claim for IIED. On November 4,

2013, a psychologist assessed Boston and diagnosed her with

major depressive disorder and generalized anxiety disorder.

Symptoms of these disorders reportedly appeared in 2010,

around the time of the job disqualifications.

No. 15-2795 9

Following discovery, U.S. Steel filed a motion for sum-

mary judgment on both of Boston’s claims. The district court

initially denied U.S. Steel’s motion. It held, however, that

Boston could not pursue a claim of age or sex discrimination

arising out of her 2010 employment in the BOF Department

or a retaliation claim arising out of her May 2011 disqualifi-

cation from Pass Control because these claims were time

barred.

U.S. Steel then filed a motion to alter or amend the

court’s order denying the motion for summary judgment.

The district court construed this as a motion for reconsidera-

tion and reconsidered the issues raised in the motion for

summary judgment. On July 22, 2015, the district court

granted U.S. Steel’s motion for reconsideration as well as the

motion for summary judgment as to both counts. Boston ap-

peals.

II. Discussion

We review de novo a district court’s grant of a motion for

summary judgment, construing facts and drawing inferences

in the light most favorable to the non-moving party. Lucero v.

Nettle Creek Sch. Corp., 566 F.3d 720, 728 (7th Cir. 2009).

Summary judgment is proper when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. Matters Properly Before This Court

We first address which matters are properly before this

Court. Boston argues that she was retaliated against by U.S.

Steel for filing an EEOC complaint, and that retaliation took

the form of poor training and repeated disqualifications. She

claims that U.S. Steel engaged in a pattern of conduct of re-

10 No. 15-2795

taliation, and that this pattern is encompassed by her dis-

qualification from the Ironworks position.

U.S. Steel, however, contends that Boston impermissibly

broadens her retaliation claim to include claims of alleged

age or sex discrimination arising from the October 2010 BOF

disqualification, as well as purported retaliation arising from

the May 2011 Pass Control disqualification. U.S. Steel asserts

that these claims were never properly before the district

court and are not part of Boston’s current retaliation claim.

In initially rejecting U.S. Steel’s motion for summary

judgment, the district court found that the alleged age or sex

discrimination arising from the BOF disqualification was not

actionable. The court noted that Boston’s April 2012 EEOC

complaint did not assert a claim for age or sex discrimina-

tion, and that she could not raise such claims for the first

time in response to U.S. Steel’s summary judgment motion.

The district court also determined that these age or sex dis-

crimination claims were time barred because Boston did not

file a lawsuit against U.S. Steel based on the conduct alleged

in the October 2010 EEOC discrimination charge within the

prescribed ninety-day filing period.

Additionally, the district court found that any claim for

retaliation arising from the Pass Control disqualification was

time barred. The court noted that the Pass Control disquali-

fication was a discrete act of termination and that Boston did

not timely file a retaliation claim with the EEOC related to

this action. Since the April 2012 retaliation charge only alleg-

es retaliation arising from the Ironworks disqualification—

and does not mention the Pass Control disqualification—the

court concluded that any retaliation claim relating to the

Pass Control disqualification was not actionable.

No. 15-2795 11

We agree with the district court on this threshold issue.

Under Title VII and Illinois law, Boston was required to file a

charge with the EEOC within 300 days of the alleged unlaw-

ful employment practice. 42 U.S.C. § 2000e-5(e)(1); Filipovic v.

K & R Exp. Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999). She

filed neither a lawsuit against U.S. Steel pursuant to the Oc-

tober 2010 EEOC discrimination charge, nor any charge with

respect to the Pass Control disqualification. Indeed, Boston’s

April 2012 retaliation charge indicates that she was com-

plaining of a distinct act: Boston represented that the earliest

date of discrimination was “1-10-2012” and did not mark the

“Continuing Action” box. And “each discrete discriminatory

act starts a new clock for filing charges alleging that act … –

.” Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860 (7th

Cir. 2005) (citation and internal quotation marks omitted).

On appeal, Boston raises no counterargument to the find-

ing that her two previous disqualifications are not actiona-

ble. Instead, she attempts to fold these additional disqualifi-

cations into her current retaliation claim. The BOF and Pass

Control disqualifications are only relevant to the extent they

are offered in support of Boston’s sole actionable claim be-

fore this Court, namely the Ironworks disqualification. See

Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 786

n.4 (7th Cir. 2004) (courts may look to time-barred acts as

support for timely claims).

12 No. 15-2795

B. Retaliation Claim

To establish a prima facie case of retaliation, Boston at-

tempts to meet her burden under the direct method of proof,

the indirect method of proof, as well as the “cat’s paw” theo-

ry of liability. We consider each argument in turn.

1. Direct Method of Proof

Boston may proceed under the direct method of proof to

avoid summary judgment on a retaliation claim under Title

VII or the ADEA. Atanus v. Perry, 520 F.3d 662, 671, 677 (7th

Cir. 2008). Boston must show that: (1) she engaged in statu-

torily protected activity; (2) she suffered an adverse em-

ployment action; and (3) there was a causal connection be-

tween the two. Tomanovich v. City of Indianapolis, 457 F.3d

656, 663 (7th Cir. 2006). She may prove retaliation by either

direct or circumstantial evidence. See id. at 664–65. In other

words, Boston must provide evidence from which a reason-

able jury could conclude that the protected conduct—her fil-

ing of the 2010 EEOC charge—“was a ‘substantial’ or ‘moti-

vating’ factor in the defendant’s action.” Patton v. Indianapo-

lis Pub. Sch. Bd., 276 F.3d 334, 340 (7th Cir. 2002) (citation and

internal quotation marks omitted).

The evidence in the record suggests that Boston was

treated unfairly during her training period at Ironworks.

However, Boston does not meet her burden of showing that

her 2010 EEOC charge was a substantial or motivating factor

in her supervisor’s termination decision. Indeed, Boston

does not cite any evidence that demonstrates that her super-

visor knew about the 2010 EEOC charge or decided to dis-

qualify Boston based on that charge.

No. 15-2795 13

At the time of her discharge, Michelle Fields was Bos-

ton’s supervisor. Boston testified that Fields never said any-

thing to her about the 2010 EEOC charge. Boston also testi-

fied that no one told her that Fields had ever made any

comment about the filing of an EEOC claim or lawsuit. Ac-

cording to Boston, co-worker and trainer Marcia Graham

“supposedly went into [Fields’s] office and told her every-

thing [Graham] was doing with [Boston].” But Boston testi-

fied that she did “not know for a fact” that Fields knew that

Graham was denying her access to a computer. Boston did

testify that Graham made comments related to her EEOC

claim, stating that “[s]he wasn’t going to train me so that I

could take her job on the next layoff.” In any event, Boston

“personally believe[d]” that “[m]anagement all knew that

[she] filed an EEOC claim.”

Even after drawing all reasonable inferences in Boston’s

favor, Boston does not demonstrate a causal connection be-

tween her protected action of filing an EEOC charge in 2010

and her disqualification by Fields. It is plausible that Fields

relied on Graham’s reports describing Boston’s performance

as mediocre; yet, Boston does not present any evidence that

suggests Fields knew about the 2010 EEOC charge. The evi-

dence therefore points to unfair treatment by Graham, rather

than retaliatory termination.

2. Indirect Method of Proof

Likewise, Boston cannot succeed under the indirect

method of proof. To prove retaliation under the indirect

method, Boston must show that: (1) she engaged in statutori-

ly protected activity; (2) she met her employer’s legitimate

expectations; (3) she suffered an adverse employment action;

and (4) she was treated less favorably than similarly situated

14 No. 15-2795

employees who did not engage in statutorily protected activ-

ity. Tomanovich, 457 F.3d at 666. If Boston establishes a prima

facie case, the burden of production shifts to U.S. Steel to ar-

ticulate some nondiscriminatory reason for its employment

action. Id. at 663. Then, if U.S. Steel meets its burden, the

burden shifts back to Boston to demonstrate that U.S. Steel’s

reason is pretextual. Id.

We are unable to conclude based on the record that Bos-

ton was, in fact, meeting her employer’s legitimate expecta-

tions or that she was treated less favorably than similarly

situated employees. Boston claims that Graham provided

superior training to at least one other Ironworks employee.

Her sole support for this contention is that an individual

hired after her must have received better training because

that person remains in the job. Without more, this concluso-

ry allegation cannot stand. See Harper v. C.R. England, Inc.,

687 F.3d 297, 306 (7th Cir. 2012) (explaining that a court’s fa-

vor toward the non-moving party in considering a motion

for summary judgment does not extend to inferences sup-

ported by only speculation or conjecture).

Even assuming arguendo that Boston has satisfied all of

the criteria under the indirect method, she fails to offer proof

that U.S. Steel’s proffered nondiscriminatory basis for its

January 10, 2012 disqualification of Boston from Ironworks

was “mere pretext” for retaliation. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 798 (1973). Pretext requires “[p]roof

that the defendant’s explanation is unworthy of credence.”

Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008)

(alteration in original) (citation and internal quotation marks

omitted).

No. 15-2795 15

Boston does not meet her burden to show that U.S. Steel

lacked a good faith basis to disqualify her. Tomanovich, 457

F.3d at 663. The evidence in the record suggests that Boston

actually was struggling with the job, since she acknowl-

edged in a voicemail to Graham that she was trying to “fig-

ure this job out” and appreciated Graham’s patience. There

is also no evidence that Fields or the officials responsible for

labor relations at the plant were aware that Boston was not

being properly trained. Boston admitted she never told

Fields that Graham was not training her or allowing her ac-

cess to the computer.

As we noted in Green v. National Steel Corporation, Mid-

west Division, “[t]his Court has long championed an employ-

er’s right to make its own business decisions, even if they are

wrong or bad. Therefore, regardless of whether it is correct

in its beliefs, if an employer acted in good faith and with an

honest belief, we will not second-guess its decisions.” 197

F.3d 894, 899 (7th Cir. 1999). In the absence of evidence of

pretext or bad faith, we will not second-guess U.S. Steel’s

decision to disqualify Boston.

3. “Cat’s Paw” Theory of Liability“

Although a plaintiff must generally provide evidence

that the decisionmaker acted for a prohibited reason to es-

tablish a prima facie case of retaliation, courts have imputed

the retaliatory intent of a subordinate to an employer in situ-

ations where the subordinate exerts significant influence

over the employment decision.” Long v. Teachers’ Retirement

Sys. of Illinois, 585 F.3d 344, 351 (7th Cir. 2009). This theory of

liability is known as the “cat’s paw” doctrine. Id.

16 No. 15-2795

Boston relies on a recent U.S. Supreme Court case, Staub

v. Proctor Hospital,1 to support her cat’s paw theory based on

the alleged retaliatory actions of Graham, a co-worker who

did not have the authority to disqualify Boston. 562 U.S. 411

(2011). In Staub, the Supreme Court observed that an “em-

ployer’s authority to reward, punish, or dismiss is often allo-

cated among multiple agents. The one who makes the ulti-

mate decision does so on the basis of performance assess-

ments by other supervisors.” Id. at 420. Thus, an employer is

liable where “one of its agents committed an action based on

discriminatory animus that was intended to cause, and did

in fact cause, an adverse employment decision.” Id. at 421.

Boston claims that U.S. Steel wishes to insulate itself and

Graham from any responsibility for “setting up [Boston] for

failure in Iron Works and the obvious fact that [U.S. Steel]

had notice of the EEOC filings.” As in Staub, there is suffi-

cient evidence to support a finding that Graham was, in ef-

fect, delegated some of Fields’s disqualification authority

since Fields relied on Graham’s training reports. The ques-

tion, therefore, is whether Graham acted with discriminatory

animus that was intended to result in Boston’s disqualifica-

tion.

Boston argues that Graham “knew exactly what she was

doing.” According to Boston, Graham purposefully set her

up to fail by withholding computer access, providing no

more than thirteen days of training, and taking notes regard-

ing Boston’s lack of progress. Boston testified that Graham

1 Although Staub concerns a different statute, the Uniformed Services

Employment and Reemployment Rights Act, the Supreme Court’s analy-

sis of the cat’s paw theory is equally relevant in this context.

No. 15-2795 17

made a direct comment to Boston regarding her filing of an

EEOC complaint, stating: “I’m not going to train somebody

so the next time that we … get laid off, I get laid off. I’m not

training a union person for that. I don’t care what you filed.”

Graham testified that [Graham] was non-union and salaried.

Boston claims that Graham was angry that she had to train a

union employee because, in 2008, Graham was laid off and

replaced by a union employee.

Nevertheless, even after drawing all reasonable infer-

ences in Boston’s favor, Boston fails to meet her burden of

proof to establish a basis for the application of cat’s paw the-

ory to her Title VII and ADEA retaliation claims. Notwith-

standing Graham’s stray remark, the evidence in the record

as a whole is insufficient to show that Graham had a retalia-

tory motive or animus based on Boston’s filing of the Octo-

ber 2010 EEOC discrimination charge. Boston is not entitled

to inferences supported only by speculation or conjecture.

Harper, 687 F.3d at 306.

The evidence Boston presents is hardly “significant pro-

bative evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). For one, the statement “I don’t care what you

filed” is not an obvious reference to Boston’s 2010 EEOC

claim. It could, for instance, refer to a grievance filed by the

Union. There is also no other evidence that Graham knew

about the October 2010 EEOC charge. In any event, the cir-

cumstantial evidence is insufficient to support an inference

of retaliatory animus. The timing of Graham’s actions is not

suspicious, as the training was provided more than fifteen

months after Boston filed the 2010 EEOC charge. See Long,

585 F.3d at 350 (“Circumstantial evidence may include sus-

picious timing, ambiguous oral or written statements, or be-

18 No. 15-2795

havior toward or comments directed at other employees in

the protected group.“). And there is no proof that Graham

trained or treated differently other employees who had not

engaged in protected activity. Id.

In sum, Boston has not presented enough evidence to

prevail under the direct method, indirect method, or cat’s

paw theory. The district court properly granted U.S. Steel’s

motion for summary judgment as to the retaliation claim.

C. Intentional Infliction of Emotional Distress Claim

Boston next asserts a common law claim for IIED. She al-

leges that she suffered profound emotional distress due to

poor training and repeated disqualifications by U.S. Steel.

To survive summary judgment on an IIED claim under

Illinois law, a plaintiff must show that: (1) the defendant’s

conduct was extreme and outrageous; (2) the defendant in-

tended that his conduct would cause severe emotional dis-

tress, or knew that there was at least a high probability that

the conduct would inflict severe emotional distress; and (3)

the conduct did in fact cause severe emotional distress. Ho-

naker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing

McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988)). IIED re-

quires more than “mere insults, indignities, threats, annoy-

ances, petty oppressions, or other trivialities.” McGrath, 533

N.E.2d at 809 (citation and internal quotation marks omit-

ted). Under Illinois law, one factor that influences the ex-

treme and outrageous nature of the conduct is the degree of

power or authority that the actor has over the plaintiff. Id. at

809–10.

Courts have found extreme and outrageous behavior in

situations where an “employer clearly abuses the power it

No. 15-2795 19

holds over an employee in a manner far more severe than

the typical disagreements or job-related stress caused by the

average work environment.” Honaker, 256 F.3d at 491. Boston

notes that she has been diagnosed with major depressive

disorder and generalized anxiety disorder, which allegedly

stem from her treatment at U.S. Steel.

Upon reconsideration, the district court clarified that Bos-

ton’s claims are based on Graham’s alleged conduct and

granted U.S. Steel summary judgment as to the IIED claim.

Assuming arguendo that Boston established the elements of

IIED with respect to Graham, the district court found that

there was no evidence to warrant a finding that U.S. Steel

was vicariously liable for Graham’s conduct. According to

the district court, “the evidence indicates that Graham’s mo-

tivation for failing to train the plaintiff was personal. [Bos-

ton’s] testimony indicates that Graham was motivated by a

desire to retain her own position.”

An employer may be vicariously liable for the tort of an

employee if the tort is committed within the scope of the

employment. Bagent v. Blessing Care Corp., 862 N.E.2d 985,

991 (Ill. 2007). For conduct to be within the scope of em-

ployment it must: (1) be of the kind the employee is em-

ployed to perform; (2) occur substantially within the author-

ized time and space limits; and (3) be performed, at least in

part, by a purpose to serve the master. Id. at 992. Where the

motive for the employee’s tort is personal and solely for the

benefit of the employee, the employer is not subject to liabil-

ity. See Wright v. City of Danville, 675 N.E.2d 110, 118 (Ill.

1996).

It is clear that Graham was performing training—a type

of work she was employed to perform—and that this train-

20 No. 15-2795

ing took place during work hours within the office. The

question is whether Graham carried out the allegedly

botched training to serve her own personal interests or the

business interests of U.S. Steel.

We agree with the district court that Graham’s conduct

was personally, rather than professionally, motivated. Bos-

ton herself testified that Graham’s intention was to safe-

guard her own job. There is no evidence that Graham was

serving a commercial purpose for the benefit of U.S. Steel by

failing to adequately train Boston. In support of the fact that

Graham was motivated by a purpose to serve the master,

Boston merely states: “Graham was not on a lark. Graham

testified that she was ordered by her boss to do the training

as her boss would not be doing it.”

But this is insufficient to meet the third prong for vicari-

ous liability. Graham’s failure to train a fellow employee

does not, without further proof of U.S. Steel’s interest in sab-

otaging Boston, constitute the pursuit of U.S. Steel’s business

interest. To the contrary, Graham’s behavior undermines

U.S. Steel’s business interest in a well-trained, competent

workforce.

In the absence of vicarious liability, Boston cannot suc-

ceed on her IIED claim. The district court properly granted

U.S. Steel’s motion for summary judgment as to this claim.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.