Fred Honaker v. Gary Smith, Mayor, Individually and as Mayor of the Village of Lovington and as Fire Chief of the Lovington Fire Department

Fred Honaker filed a complaint against Gary Smith, the Mayor and Fire Chief of the Village of Lovington, Illinois (“the Village”), regarding the events surrounding a fire that consumed Mr. Honaker’s house in Lovington. Two counts of the complaint, as amended, are before us on this appeal. In Count I, the complaint maintained that Mr. Smith, in his official capacity and under color of state law, had violated Mr. Honaker’s rights under 42 U.S.C. § 1983 (“Section 1983”) by causing the fire that burned down Mr. Honaker’s house. Count I also alleged that Mr. Smith, in his role as the Village’s Fire Chief, violated Mr. Ho-naker’s rights under Section 1983 by failing to use his best efforts to extinguish that fire. Count IV of the complaint consisted of an Illinois common law claim against Mr. Smith, alleging the intentional infliction of emotional distress. At the close of all of the evidence, the district court granted Mr. Smith judgment as a matter of law on the intentional infliction of emotional distress claim. A jury returned a verdict for Mr. Honaker in the amount of $45,000 on the Section 1983 claims; however, the' district court then entered judgment as a matter of law notwithstanding the verdict on that count in favor of Mr. Smith. For the reasons set forth in the following opinion, we affirm the judgment of the district court regarding Mr. Honaker’s claims under Section 1983. We reverse and remand with respect to the intentional infliction of emotional distress claim.

I

BACKGROUND

A. Facts

Mr. Honaker owned a house in Loving-ton that was not his primary residence, but *481 where he would occasionally stay overnight. The utilities were kept on in the house, though the gas and electricity were not activated. Mr. Honaker had begun extensive remodeling on the house including the removal of an interior wall. Because of this ongoing construction, the house was in very poor condition.

Mr. Honaker earned a living by rebuilding pallets 1 on the property where this house was located. As a consequence of that business, wood and other debris were often strewn around the property. Despite the fact that building pallets often creates a great deal of noise, Mr. Honaker kept unusual hours in his work and would occasionally toil into the early morning. Residents often complained about the state of the property to Lovington’s City Council, and Mr. Honaker received citations from local police officers due to the property’s poor condition. One resident in particular, Mr. Honaker’s neighbor Ed Grafton, had a long-running feud with Mr. Honaker. Crafton made a number of formal and informal complaints regarding the noise emanating from Mr. Honaker’s property and the physical state of that property to members of the Village government. Members of the City Council often discussed these complaints and expressed their displeasure with the property’s condition. As mayor, Mr. Smith was a member of the City Council.

Mr. Honaker had an acrimonious history with the Village. He had filed a civil rights suit against it in 1995, which was settled the next year. Village personnel also often made derogatory comments to him about the state of his property. Moreover, Mr. Honaker testified that, at some point near Thanksgiving in 1996, he had a rancorous encounter with Mr. Smith outside of a local bar. Mr. Honaker claimed that, on that occasion, Mr. Smith approached him and “told [him] to get [his] stuff and get out of town.... [or Mr. Smith would] burn [him] out.” R.70 at 76. Mr. Honaker asserted that he told his lawyer about this threat immediately, but did not report it to any law enforcement agency. Mr. Smith denies that the conversation ever took place.

On the night of March 1, 1997, Mr. Honaker’s house caught fire. The Village’s volunteer Fire Department responded to the call regarding the fire, which came in at 1:51 a.m., within minutes. In total, four fire trucks and twenty volunteer firefighters from the Fire Department arrived at the scene. Additionally, one fire truck and several firefighters were called in from the neighboring Sullivan, Illinois, Fire Department to help extinguish the blaze. As the Village’s Fire Chief, Mr. Smith arrived at the scene soon after the call and led the fighting of the fire. He immediately determined that the house’s structure was already badly damaged and noticed that a number of floor joists and beams supporting the second floor were cracked and bowed. As a result, Mr. Smith decided that the firefighters should not enter the house to battle the fire because the house’s structure was too unstable to risk such entry. 2 After three hours *482 the fire was extinguished; however, it rekindled twice during that day, requiring the firefighters to return each time to quench the flames.

Don Tankersly, an investigator from the Illinois State Fire Marshall’s Office, arrived at the scene of the fire at 3:30 a.m. He saw the firefighters actively engaged in attempting to put out the fire, and he believed that they were making every effort to extinguish the blaze. He also noticed that ceiling joists from the first floor of the house appeared to be cracking and that the second floor of the house looked to be sagging downward. Tankersly later completed his investigation of the fire and determined that it was set intentionally, but found no evidence to demonstrate that Mr. Smith or anyone else was specifically responsible for its origin.

Mr. Honaker arrived at his property on the morning of the fire and was visibly upset and distraught; at one point he even began to cry. He was also extremely angry and began yelling and screaming. However, Mr. Honaker did not seek medical treatment at any point for emotional distress that he may have suffered due to the fire.

The Honaker fire was not the first time that dilapidated buildings owned by a Lov-ington resident had burned down under suspicious circumstances. A few months before the fire to Mr. Honaker’s house, buildings in poor condition that belonged to Lovington resident Tom Brewer also had caught fire. As in Mr. Honaker’s case, the poor condition of Brewer’s property had been discussed in the City Council before the fire, and the Village had asked Brewer to tear down those buildings. Before Brewer took any action, the buildings burned down, and the cause of that fire never was determined.

After the Honaker fire, a great deal of speculation in the Village focused on its possible cause. Mr. Honaker initially suspected that either Crafton or Mr. Smith was involved in setting the blaze. Additionally, rumors soon spread that Doug Thomas, a member of the Village government and of its Fire Department, may have had a role in starting the conflagration, allegations that Thomas denied. Jokes regarding the fact that Mr. Honaker’s house had burned down, not long after many members of the community had expressed displeasure about the state of his property, were also prevalent around the Village and were made by some residents at City Council meetings. Mr. Smith denied' taking part in those jokes; he also consistently maintained that he had nothing to do with starting the fire and that he made every effort as fire chief to put the fire out as quickly as possible.

B. District Court Proceedings

On December 16, 1998, Mr. Honaker filed a First Amended Complaint (“the complaint”) in this matter, which alleged four causes of action against Mr. Smith. Count I maintained that Mr. Smith, in his official capacity as Mayor of Lovington and Fire Chief of the Lovington Fire Department, was liable under Section 1983 for setting the fire at Mr. Honaker’s house and for intentionally failing to properly extinguish the fire. Count IV alleged that Mr. Smith was hable under Illinois law for the intentional infliction of emotional distress. 3 A jury trial began on February 14, *483 2000. At the close of all of the evidence, Mr. Smith filed a motion for judgment as a matter of law on all of the claims in the complaint. With regard to Count I’s Section 1983 claims, the court took the motion under advisement, but allowed the action to be submitted to the jury. However, the court granted the motion as to Count IV’s emotional distress claim. It did so because it found that Mr. Honaker presented “no evidence of emotional distress ... other than the mere claim that [he] was upset” and “no evidence of any medical treatment ... [or] any follow-up whatsoever with counseling in any way.” R.70 at 418.

After its deliberations, the jury returned a verdict on Count I in favor of Mr. Ho-naker in the amount of $45,000. Mr. Smith then filed a renewed motion for judgment as a matter of law, and on May 4, 2000, the district court granted that motion and entered judgment as a matter of law notwithstanding the verdict on Count I. The court determined that, as to the claim that Mr. Smith was involved in setting fire to Mr. Honaker’s house, there was no evidence to support that assertion because Mr. Honaker had put forward only unsupported speculation and conjecture on that point. It also ruled that, even assuming the evidence was sufficient to support a finding that Mr. Smith had set the fire, there was no evidence that he did so “under color of state law,” a requirement of all Section 1983 claims. The court explained that in no way could Mr. Smith’s action in setting such a fire relate to the performance of his official duties as mayor because any such action “would have involved sneaking around in the late night or early morning hours with some kind of incendiary material.” R.61 at 8. Next, the court determined that no evidence supported Mr. Honaker’s claim that Mr. Smith failed to extinguish properly the fire in his capacity as Lovington Fire Chief. This was because “[ejverjr witness who testified on this subject at trial ... stated that the firefighters did everything they could to put out the fire.” Id. at 9. Additionally, the court noted that Mr. Honaker presented no evidence to support his assertions that alternative methods should have been used to fight the fire or that the Fire Department should have taken far less time than the three hours it needed to initially extinguish the blaze. As a result, the district court determined that no rational jury could have found in favor of Mr. Honaker on Count I and granted Mr.' Smith’s motion for judgment as a matter of law on that cause of action.

II

DISCUSSION

Mr. Honaker now appeals the district court’s rulings with regard to Count I and Count IV. He alleges that, as to Count I, the district court erred in granting judgment as a matter of law notwithstanding the jury’s verdict. He claims that there was sufficient evidence for the jury to have found that Mr. Smith caused Mr. Honaker’s house to be set on fire and that he did so under color of state law. He also maintains that he put forward adequate evidence for a jury to find that Mr. Smith failed to use his best efforts to put out the fire in his capacity as Lovington Fire Chief. Additionally, Mr. Honaker asserts that the district court erred in granting judgment as a matter of law on Count IV’s intentional infliction of emotional distress claim because sufficient evidence existed to prove the elements of that tort under Illi *484 nois law. We shall address each of these arguments in turn.

A. Mr. Honaker’s Section 1983 Claims

With respect to Mr. Honaker’s claims in Count I, the district court, pursuant to Federal Rule of Civil Procedure 50 (“Rule 50”), granted Mr. Smith’s motion for judgment as a matter of law after the jury had returned a verdict for Mr. Ho-naker. 4 Pursuant to Rule 50, a district court may grant judgment as a matter of law when “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fed. R.Civ.P. 50(a)(1). We review a district court’s grant of judgment as a matter of law de novo. See Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir.2000); Futrell v. J.I. Case, 38 F.3d 342, 346 (7th Cir.1994). After a jury has rendered its verdict, we must engage in this review not to determine “whether the jury believed the right people, but only whether it was presented with a legally sufficient amount of evidence from which it could reasonably derive its verdict.” Massey, 226 F.3d at 924. In that regard, we must judge whether the evidence in support of the verdict is substantial; the party opposing the motion must have put forward more than a “mere scintilla” of evidence to support that jury verdict. Willis v. Marion County Auditor’s Office, 118 F.3d 542, 545 (7th Cir.1997); see also Futrell, 38 F.3d at 346. In reviewing the totality of the evidence in the record, we draw all inferences in the light most favorable to the party against whom the motion is directed. See Willis, 118 F.3d at 545; Cygnar v. City of Chicago, 865 F.2d 827, 834 (7th Cir.1989). If, after reviewing all of the evidence in the case, the nonmoving party did not introduce enough evidence to support his claim, then judgment as a matter of law is appropriate. See Massey, 226 F.3d at 924.

1. Setting the Fire

Mr. Honaker first contends that there was sufficient evidence for a jury to conclude that Mr. Smith played a role in setting fire to his house. As we have noted, Mr. Honaker’s claim in this regard was filed under Section 1983. As a result, he must demonstrate not only that Mr. Smith was in fact involved in setting the fire, but also that Mr. Smith did so “under color of state law” and deprived Mr. Honaker of a federally guaranteed right. See 42 U.S.C. § 1983; see also Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir.1995); Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir.1989) (citing West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). We have emphasized that “[n]ot every action by a state official or employee is to be deemed as occurring ‘under color’ of state law.” Hughes, 880 F.2d at 971. Action is taken under color of state law when it involves a misuse of power, “ ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” Walker v. Taylorville Corr. Ctr., 129 F.3d *485 410, 413 (7th Cir.1997) (quoting West, 487 U.S. at 49, 108 S.Ct. 2250); see also Hughes, 880 F.2d at 971. As a result, acts by a state officer are not made under color of state law unless they are related in some way to the performance of the duties of the state office. See Gibson v. City of Chicago, 910 F.2d 1510, 1516 (7th Cir. 1990); Briscoe v. LaHue, 663 F.2d 713, 721 n. 4 (7th Cir.1981).

In Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir.1989), for example, we determined that a warden of the Wisconsin Department of Natural Resources did not act under color of state law when he provided local sheriffs with information regarding an alleged criminal act undertaken by the defendants. The warden’s authority as an official who enforced the state’s game laws did not extend to the general enforcement of state law. See id. Thus, when he provided information regarding the alleged criminal act, he was not doing so by virtue of the authority granted to him by his state employment. See id. In contrast, in Pickrel v. City of Springfield, 45 F.3d 1115, 1116-18 (7th Cir.1995), we held, in the context of reviewing a motion for dismissal under Federal Rule of Civil Procedure 12(b)(6), that an off-duty police officer could have been acting under color of state law when he arrested the plaintiff after an altercation between the two at a restaurant. We made this determination because the officer, although off-duty, was attired in his police uniform which displayed his badge, was wearing his gun and had his marked squad car parked just outside the restaurant. See id. at 1118. We determined that these facts demonstrated that the officer was acting while displaying signs of state authority and advertising the presence of a state actor to those around him. See id. But see Latuszkin v. City of Chicago, 250 F.3d 502, 505-06 (7th Cir.2001) (off-duty police officer had not acted under color of state law where disputed action occurred while officer was driving his own car outside of his police jurisdiction and where there was “no allegation that [the officer] was engaged in police activity, that he displayed any police power, or that he possessed any indicia of his office at the time of the accident”).

We agree with the district court’s conclusion that, on this record, any action taken by Mr. Smith to cause Mr. Honaker’s house to burn to the ground was not effectuated under color of state law. Mr. Honaker does not explain how such an act was related to any official duty or activity of Mr. Smith as Mayor of Lovington or as its Fire Chief. 5 Moreover, Mr. Honaker makes no substantive contention that Mr. Smith used the cloak of his authority as mayor or fire chief or any indicia of his office to set such a fire. In one of his briefs, Mr. Honaker appears to suggest that Mr. Smith may have paid Thomas to set the fire. See Appellant’s Reply Br. at 4. This allegation is not well-formed and, more importantly, Mr. Honaker again does not explain how such an act would be related in any way to the performance of Mr. Smith’s duties as a state officer. 6 Un *486 der these circumstances, we agree with the district court that there was no basis upon which a reasonable jury could conclude that Mr. Smith violated Section 1983 by causing Mr. Honaker’s house to be set afire.

2. Extinguishing the Fire

Mr. Honaker also asserts that the district court erred when it ruled that no reasonable jury could have found that Mr. Smith, in his role as fire chief, failed to extinguish properly the fire at Mr. Honaker’s house. After extensively reviewing the evidence in the record, we must agree with the district court’s conclusion. The record does not contain a legally sufficient amount of evidence from which a jury reasonably could have inferred that Mr. Smith and the firefighters on the scene used anything less than their best efforts to extinguish the fire.

As an initial matter, the evidence overwhelmingly demonstrated that, after receiving the call informing them of the fire on March 1, 1997, the Lovington Fire Department arrived at Mr. Honaker’s house within minutes. Fire Department records show that the call was received at 1:51 a.m. and that the first Lovington fire truck arrived at 1:56 a.m., two more trucks arrived at 1:57 a.m., and a fourth arrived at 2:09 a.m. See Def. Ex.7. Additionally, a number of firefighters corroborated the swift arrival time of the Fire Department. 7 Moreover, despite the fact that the fire occurred in the early morning hours, the Fire Department responded with four fire trucks and twenty volunteer firefighters. Pursuant to a “mutual aid” agreement with the neighboring Sullivan Fire Department, *487 which employs paid personnel, the Loving-ton firefighters also called for assistance from Sullivan. Lovington firefighter Steven Fleming testified that Sullivan would not have responded automatically to a fire in Lovington; instead, the Lovington Fire Department must affirmatively have requested their help. As a result of this call for assistance, Sullivan dispatched, in addition to several firefighters, an aerial fire truck which enables firefighters to direct ladders and water to the upper floors of homes. Lovington’s Fire Department did not own this type of truck.

Additionally, all of the testimony at trial suggested that, upon arriving at Mr. Ho-naker’s house, the firefighters consistently and vigorously fought the fire to the best of their ability. Particularly on point was the testimony of Tankersly, the investigator from the Illinois State Fire Marshall’s Office, who was called to the scene to determine the cause of the fire. Tankersly, who had 15 years of experience and who had investigated over 1,000 fires in his career, testified that when he arrived at 3:30 a.m., “[fjirefighters were actively engaged in putting out hot spot fires within the structure.” R.70 at 275. He also said that the firefighters had made every effort to put out the fire and that they could not have done anything more than what they did. He also corroborated Mr. Smith’s view that structural problems had rendered the house unsafe for entry by firefighters. A number of the firefighters themselves corroborated that the fire had been fought vigorously. They explained that, when they arrived at the scene, they immediately put water on the fire and began actively combating the blaze. See, e.g., id. at 217-20 (testimony of Doug Thomas); id. at 294-98 (testimony of Harold White); id. at 404-08 (testimony of Mr. Smith). Even James Webb, a neighbor and friend of Mr. Honaker’s, testified that, when he first noticed the fire at 2:10 a.m., he saw at least twenty members of the Lovington Fire Department fighting the flames. Mr. Webb’s testimony bore witness to the significant scope of firefighters’ response when he explained that “I walked outside, and I saw the fire trucks. They were halfway down the block on Railroad Street [the street on which Mr. Honaker’s house was located] and almost all the way down the block on Middle Street.” Id. at 304.

Mr. Honaker points to three facts to support his assertion that Mr. Smith and the firefighters did not use their best efforts in combating the fire. First, he notes that it initially took the firefighters three hours to conquer the flames, a length of time that he suggests was far too great. Next, he submits that the fact that the firefighters did not enter his house to combat the fire suggests that they did not perform their duties properly. Lastly, he cites a piece of trial testimony in which Mr. Smith made the assertion that he did not let the firefighters enter the house because “that house wasn’t worth getting hurt for.” Id. at 167. Mr. Honaker claims that this statement demonstrates that Mr. Smith’s animus towards him was the reason why the firefighters did not enter the structure.

As to the amount of time that it took to combat the fire, we have already noted that substantial testimony supported the conclusion that the firefighters made every effort to control the blaze and that Tank-ersly, an experienced fire investigator, testified that there was nothing more that could have been done. On the other hand, as the district court noted, Mr. Honaker presented “no evidence that three hours was too long a time to put out this type of fire.” R.61 at 9 (emphasis in original). Mr. Smith had explained that the fire raged for that period of time because the firefighters had difficulty in identifying the *488 proper heat source on which to train their hoses and because the great amount of debris in and around the house made it difficult to quickly develop an entryway through which the water could attack the fire. Mr. Honaker did nothing to contest this explanation or to suggest that the firefighters lingered unnecessarily at the fire scene. A jury would have no eviden-tiary basis from which to infer reasonably that the Fire Department took an unreasonable amount of time to extinguish the fire.

Additionally, as to the claim that the firefighters should have entered the house, Mr. Smith explained that he did not allow them to do so due to the precarious nature of the house’s structure. Every witness who testified on the subject confirmed that, during and after the fire, the floor joists supporting the second floor of the house were cracked and that the second floor itself was sagging — presenting the serious threat that, if the firefighters had entered the burning building, the house might have collapsed around them. For example, Tankersly noted that, after the fire was extinguished, “the floor joists or the ceiling joists from the first floor were actually starting to crack or sag inward” and agreed that it appeared that the second floor itself was actually sagging. R.70 at 276. 8 Even Mr. Honaker agreed that, after the fire, one floor joist was broken and that the second floor was sagging downward. Additionally, overwhelming evidence established that the dwelling was in great disrepair because Mr. Honaker had been in the process of “gutting the inside of the house.” Id. at 307. Since he had purchased the house, Mr. Honaker had removed a non-load-bearing wall, had torn the kitchen ceiling out and even had experienced part of the chimney falling down on top of him. Lastly, witnesses with experience in investigating and fighting fires testified that, under the circumstances, it was not improper for the firefighters to combat the flames from outside the building. Tankersly explained that during his investigation, he saw that the collapse of the second floor “shows major cracks beginning to show in the floor joists” and that these cracks “made the structure pretty much unsafe to even be in.” Id. at 278. Mr. Smith explained that the classes in which he and the other firefighters were trained taught that a fire should be fought “from the outside in” and that if the structure is in danger of Collapse, they should not enter the building. Id. at 407.

In contrast, no witness, with or without firefighting experience, testified that the Lovington Fire Department should have entered the house under such circumstances. Mr. Honaker argues that, because the frame of the house continued to stand after the fire and because the firefighters later entered the building to hose down fire that had rekindled, the house was not in such precarious condition that the Fire Department could not have entered it when they first arrived. We do not believe that these facts, without more, are sufficient for a reasonable jury to conclude that the firefighters should have entered a burning building that, by all accounts, appeared to be in serious jeopardy of collapsing. 9

*489 Ultimately, Lovington’s volunteer Fire Department responded to a substantial fire in the early morning hours with four trucks, twenty firefighters and significant assistance from a neighboring fire department. Moreover, not only was substantial evidence presented that the firefighters actively fought the flames with their best efforts, but Mr. Honaker offered no testimony from any witness to demonstrate that the firefighters should have or could have done anything differently. As a result, we must agree with the district court’s ruling that there was insufficient evidence for a jury to find that Mr. Smith, in his capacity as Lovington’s Fire Chief, failed to fight the fire with his best efforts. Therefore, the district court properly granted judgment as a matter of law on Count I.

B. Intentional Infliction of Emotional Distress

Mr. Honaker’s final contention is that the district court erred when it entered judgment as a matter of law at the close of all of the evidence on Count IV, which alleged an Illinois state law claim of intentional infliction of emotional distress. In ruling, the court explained:

[Tjhere is no evidence of emotional distress that has been presented in this case other than the mere claim that Mr. Honaker was upset. There is no evidence of any medical treatment, any, any follow-up whatsoever with counseling in any way. So, as to the argument relative to emotional distress, the Court finds no evidence presented and on that issue will be entering judgment in favor of the defendant.

R.70 at 418. Later, the court reiterated that, although Mr. Honaker produced “some evidence” that he was upset and distraught on the day of the fire, it did not believe that “mere emotional distress [on] the day ... of the fire with nothing more is sufficient [to sustain a cause of action on this claim].” Id. at 422. Additionally, in its Order after the jury’s verdict, the court explained that although Mr. Honaker “testified that he was very upset about the fire ... he did not seek any treatment for emotional distress.”- R.61 at 3. For these reasons, the court ruled that “the evidence was insufficient to show that Plaintiff suffered severe emotional distress,” and it did not allow the claim to be heard by the jury. Id. at 4. Mr. Honaker asserts that the district court’s conclusion in this regard was in error.

We review de novo the district court’s decision to grant judgment as a *490 matter of law at the close of all the evidence. See Canedy v. Boardman, 91 F.3d 30, 33 (7th Cir.1996). The district court may grant judgment as a matter of law in such a circumstance when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1); see also Lane v. Hardee’s Food Sys., Inc., 184 F.3d 705, 706 (7th Cir.1999). The district court may not resolve any conflicts in the testimony nor weigh the evidence, except to the extent of determining whether substantial evidence could support a jury verdict — a mere scintilla of evidence will not suffice. See Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1471 (7th Cir. 1993). We shall reverse the district court’s judgment “ ‘only if enough evidence exists that might sustain a verdict for the nonmoving party.’ ” Lane, 184 F.3d at 707 (quoting Continental Bank N.A. v. Modansky, 997 F.2d 309, 312 (7th Cir.1993)).

The tort of intentional infliction of emotional distress has been recognized in Illinois since 1961, when the Illinois Supreme Court explained that persons could be liable under the tort only for acts truly “outrageous,” that is, an “ ‘unwarranted intrusion ... calculated to cause severe emotional distress to a person of ordinary sensibilities.’ ” Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157, 164 (1961) (quoting Slocum v. Food Fair Stores of Fla., 100 So.2d 396 (Fla. 1958)). More recently, in McGrath v. Fahey, 126 Ill.2d 78, 127 Ill.Dec. 724, 533 N.E.2d 806, 809 (1988), the Illinois Supreme Court set forth three requirements necessary to demonstrate the intentional infliction of emotional distress: (1) the conduct involved must be truly extreme and outrageous; (2) the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause severe emotional distress and (3) the conduct must in fact cause severe emotional distress. See id. at 809 (emphasis in original). This tort does not require a contemporaneous physical impact or injury. See Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602, 609 (1991). It is clear, however, that “the tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” McGrath, 127 Ill.Dec. 724, 533 N.E.2d at 809 (quoting Restatement (Second) of Torts § 46, cmt. d (1965)). Instead, the conduct must go beyond all bounds of decency and be considered intolerable in a civilized community. See Kolegas v. Heftel Broad. Corp., 154 Ill.2d 1, 180 Ill.Dec. 307, 607 N.E.2d 201, 211 (1992); Campbell v. AC. Equip. Servs. Corp., Inc., 242 Ill.App.3d 707, 182 Ill.Dec. 876, 610 N.E.2d 745, 749 (1993). Thus, to serve as a basis for recovery, the defendant’s conduct must be such that the “ ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim[:] Outrageous!’ ” Doe v. Calumet City, 161 Ill.2d 374, 204 Ill.Dec. 274, 641 N.E.2d 498, 507 (1994) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)) (internal quotation marks omitted). Whether conduct is extreme and outrageous is judged on an objective standard, based on the facts of the particular case. See id.

1. Extreme and Outrageous Conduct

With regard to the first prong of this tort, whether the conduct alleged is extreme and outrageous, the Supreme Court of Illinois in McGrath described a number of non-exclusive factors that can inform this analysis. First, “the degree of power or authority which a defendant has over a plaintiff can impact ... whether *491 that defendant’s conduct is outrageous,” and the “more control which a defendant has over the plaintiff, the more likely that defendant’s conduct will be deemed outrageous, particularly when the alleged conduct involves either a veiled or explicit threat to exercise such authority or power to plaintiffs detriment.” McGrath, 127 Ill. Dec. 724, 533 N.E.2d at 809-10. In examining this factor, courts have noted that it is appropriate to consider not only the power and influence wielded by the harassing party, see Lopacich v. Falk, 5 F.3d 210, 212 (7th Cir.1993); Milton v. Illinois Bell Tel. Co., 101 Ill.App.3d 75, 56 Ill.Dec. 497, 427 N.E.2d 829, 832 (1981), but also the likelihood that the threatened action could be carried out, see Lopacich, 5 F.3d at 212; Plocar v. Dunkin’ Donuts of Am., Inc., 103 Ill.App.3d 740, 59 Ill.Dec. 418, 431 N.E.2d 1175, 1180 (1981). In doing so, courts have found extreme and outrageous behavior to exist in the employer/employee context where the employer clearly abuses the power it holds over an employee in a manner far more severe than the typical disagreements or job-related stress caused by the average work environment. 10 Such an abuse of power also has been found where defendants exercised great economic leverage over a plaintiff and attempted to defraud that plaintiff out of millions of dollars, see McGrath, 127 Ill.Dec. 724, 533 N.E.2d at 812; where disc jockeys used the medium of radio to belittle plaintiffs suffering from a disfiguring disease, see Kolegas, 180 Ill.Dec. 307,