ofjurisdictional facts. See Thomson v. Gaskill, 315 U.S. 442, 446 (1942). It is with these principles

in mind that we address the motion before us.

DISCUSSION

Verizon argues that the negligent retention claim is preempted by the Illinois Human Rights
Act (“IHRA”). Under the IHRA “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.” 775 ILCS 5/8-111(C) (West
2001). Under the IHRA it is a “civil rights violation” for an employer or employee “to engage in
sexual harassment.” 775 ILCS 5/2-102(D) (West 2001). Sexui! harassment is defined as “any
unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when...
such conduct has the purpose or effect of substantially interfering with an individual’s work
performance or creating an intimidating, hostile or offensive work environment.” 775 ILCS
5/2-101(E) (West 2001). State tort claims are preempted by the IHRA where the facts are
“inextricably linked” to civil rights violations listed in the IHRA, Geise v. Phoenix Co. of Chicago,
Inc., 639 N.E.2d 1273, 1276-78 (Ill. 1994), but a state tort claim is not “inextricably linked” to the
THRA if the plaintiff sufficiently pleads the elements of the tort claim without relying on the legal
duties that arise under the civil rights of the IHRA. Maksimovic v. Tsogalis, 687 N.E.2d 21, 22-24
(Ill. 1997).

Verizon argues that since Jaslowski bases her negligent retention claim on the exact same
facts as her sexual harassment claim the negligent retention claim is preempted by the IHRA.
Whether there is preemption by the IHRA cannot be ascertained merely by a comparison of alleged

facts. The same conduct that can “support an IHRA claim” cin also support a tort claim that is

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constitutes battery and rises far above the sexual advances that “interfer[e] with an individual’s work
performance” that are within the scope of the duties created under the IHRA. 775 ILCS 5/2-101(E)
(West 2001). Thus, Jaslowski’s battery claim is not preempted by the IHRA. See Luttrell, 2001 WL
1105125 at *3 (holding that battery claim was not preempted by IHRA); Fondrliak, 1999 WL 51804
at *4 (holding that battery claim was not preempted by IHRA) Therefore, we deny Verizon’s
motion to dismiss the negligent retention claim in Count V. This court has jurisdiction over the Title
VII claim pursuant to 28 U.S.C. § 1331 and jurisdiction over the battery and negligent retention

claims under supplemental jurisdiction pursuant to 28 U.S.C. $ 1367.

CONCLUSION
Based on the foregoing analysis we grant Verizon’s mot:on to dismiss Count IV against
Verizon but not against Steve Columbus. We also deny Verizon’s motion to dismiss Count V and

grant Verizon’s motion to dismiss Count VI.

ce Qea Ploeg ea

Charles P. Kocoras
Chief Judge
United States District Court

Dated: _September 16, 2002



LEGAL STANDARD

The purpose of a motion to dismiss under Rule 12(b){6) is to test the legal sufficiency of a

complaint. Triad Associates, Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In
ruling on a motion to dismiss, the court must construe the allegations of the complaint in the light
most favorable to the plaintiff, and all well-pleaded facts and allezations in the complaint must be
accepted as true. Bontkowsi v. First Nat'l Bank of Cicero, 998 F.2:d 459, 461 (7th Cir. 1993). The
allegations of a complaint should not be dismissed for a failure to state a claim “unless it appears
beyond a doubt that the plaintiffcan prove no set of facts in support of his claim which would entitle
him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a
motion to dismiss, a complaint must allege facts sufficiently se:ting forth the essential elements of
the cause of action. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992).

Rule 12(b)(1) provides for dismissal of claims over whic1 the federal court lacks subject
matter jurisdiction. Jurisdiction is the “power to decide” and must be conferred upon the federal
court. In re Chicago, Rock Island & Pacific R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). In
reviewing a 12(b)(1) motion to dismiss, the Court may look beyond the complaint and view any
extraneous evidence submitted by the parties to determine whether subject matter jurisdiction exits.
See United Transp. Union v. Gateway Western Ry. Co., 78 F.3d 12:08, 1210 (7th Cir. 1996) (citing
Bowyer v. United States Dep’! of Air Force, 874 F.2d 632, 635 (7th Cir. 1989)). The plaintiff bears
the burden of establishing that {he jurisdictional requirements have been met. See Kontos v. United
States Dep’t of Labor, 826 F.2d 573, 576 (7th Cir. 1987). When a party moves for dismissal

pursuant to Rule 12(b)(1), the nonmoving party must support its allegations with competent proof



independent of the IHRA. Spahn v. International Quality & Productivity Center, 2002 WL 1559578
(N.D. Ill. 2002). An inquiry regarding preemption must also focus on the duties that each claim
derives from. Jd.

Verizon also argues that in the complaint Jaslowski based the negligent retention claim solely
on the duty to protect employees from sexual harassment, which is a duty that is encompassed by
the JHRA. See Luttrell v. O’Connor Chevrolet, Inc., 2001 WL 1105125, *5(N.D. Ill. 2001) (holding
that negligent retention claim was preempted because negligent retention claim in complaint
specifically relied on duty to protect employees from sexual harass nent and did not mention battery
upon plaintiff); Crandall v. Hard Rock Café International, Inc., 1999 WL 1285864, *1, *6 (N.D. ILL.
1999) (holding that negligence claim against employer was preernp:ed where complaint relied solely
on employer’s failure to deal with sexual harassment of plaintil?).

This case, however, is distinguishable from Luttrell and Crandall because in Count V of her
complaint Jaslowski makes allegations that refer to a duty to protect employees from harm which
is connected to battery. In Count V Jaslowski states: that Verizon “had a duty to protect Plaintiff
from unfit employees it knew or should have known posed a risk of harm,” that Steve Columbus
“posed a risk of harm,” and that Verizon “[fJailed to protect Plaintilf from Steve Columbus.” Thus,
Jaslowski has sufficiently alleged that the negligent retention claim is based on a duty other than a
duty to protect employees from sexual harassment.

Verizon also argues that the negligent retention claim is preempted if it is based on the
battery claim in Count V, because a battery claim involving sexual harassment is preempted by the
THRA unless the allegations include threats of violence or physical harm. To support this assertion

Verizon cites Finnane v. Pentel of America, Ltd., 43 F. Supp.26 81 (N.D. Ill. 1999), in which the

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Minate Ordex Form (06/97)

United States District Court, Northern. District of Mlinois

Name of Assigned Judge 25 5 Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 02 € 3601 DATE 9/16/2002
CASE Jaslowski vs. Cellco Partnership et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plain:ift, eyendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) 0 Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due . Reply to answer briefdue_
(4) a Ruling/Hearing on __ set for at _
6) | Status hearing set for 10/2/2002 at 9:30 A.M..
(6) Oo Pretrial conference[held’continued to] [set for/re-set for] on _____ set for __at
(7) oO Trial[set for/re-set for] on at
(8) oO ([Bench/Jury trial) [Hearing] held/continued to __ at _
(9) oOo This case is dismissed [with/without] prejudice and without costs[b:/agreement/pursuant to]
OFRCP4(m) Cl Local Rule 41.1. OO FRCP41(a)(1) O FRCI41(a)(2).
| [Other docket entry] ENTER MEMORANDUM OPINION: Defendants’ motion (Doc 8-1) to
dismiss is granted in part and denied in part. We grant Verizor’s motion to dismiss Count IV against
Verizon but not against Steve Columbus. We also deny Verizon’s motion to dismiss Count V and grant
Verizon’s motion to dismiss Count VI.
(il) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
. . Number
No notices required. umber of notices
Notices mailed by judge's staff. SEP 1 q 2002
Notified counsel by telephone. date dockeed
j
oY | Docketing to mail notices
Mail AO 450 form. [yeoe ~
Copy to jugtfmagistrate judge
ff
; courtroom date mailed noice
SCT deputy's
initials 4
Date/timne received in
central Clerk's Office mailing deputy initials



court found that a battery claim was not preempted where a manager sexually assaulted the plaintiff
and threatened to kill her. Although threats of physical harm and sexual assault involve torts that
fall outside the duties created under the IHRA, such allegaticns are by no means a prerequisite for
aclaim to be independent of the IHRA. See Farfaras v. Citizens Bunk & Trust Co. of Chicago, 2002
WL 1008473 *1, *3 (N.D. III. 2002) (holding that battery claini was not preempted where plaintiff
was improperly fondled); Thomas v. Habitat Co., 2002 WL. 1800696, *1, *4 (N.D. Ill. 2002)
(holding that battery claim was not preempted where employee grabbed plaintiff's arms and put his
legs around her so that she could not get up from a chair and told her he loved her); Hardison v.
Galaxy Recovery Systems, Inc., 2000 WL 1847624, *1-2 (N.D. Ill. 2000) (holding that battery claim
was not preempted where employee blocked door so that plaintitfc uld not leave office and grabbed
and kissed plaintiff and ran his hand up her skirt); Fondrilak v. Commonwealth Edison, 1999 WL
51804, *4(N.D. Ill. 1999) (holding that battery claim was not preenipted where co-worker restrained
plaintiff against her will and kissed her); Robinson v. Oatman, Ivc., 1999 WL 1102694, *1-*13
(N.D. Il. 1999) (holding that battery claim was not preempted where supervisor repeatedly grabbed
testicles of plaintiff); Johnson v. St. Bernard Hospital, 1999 WL 731689, *1, *4 (N.D. Ill. 1999)
(holding that battery claim was not preempted where defendant touched plaintiff on her shoulders
and caressed her palms and buttocks).

Under Illinois law, causing “bodily harm” or “making physical contact of an insulting . . .
nature” constitutes battery. Jenkins v. Nelson, 157 F.3d 485, 497 (7th Cir. 1998); 720 ILCS 5/12-3
(2001). In this case Jaslowski includes allegations that Columbus ran his hand across her buttocks,
cupped her breast in his hand, and stood behind her and touched ker buttocks with an erect penis.

Such allegations are sufficient to establish the type of physical contact of an insulting nature that

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

STACY L. JASLOWSKI, ) SEP 17 2002
)
Plaintiff, )
)

vs. ) 02 C 3601

)
CELLCO PARTNERSHIP d/b/a Verizon Wireless, GTE )
WIRELESS OF THE MIDWEST, INC., d/b/a Verizon )
Wireless; and STEVE COLUMBUS, )
)
Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes be/ore the court on a motion to dismiss brought by Defendants Cellco
Partnership, d/b/a Verizon Wireless, GTE Wireless of the Midwest, Inc., d/b/a Verison Wireless
(collectively referred to as “Verizon”) seeking to dismiss Counts IV-VI of Plaintiff Stacy L.
Jasiowski’s (“‘Jaslowski”) complaint. For the reasons set forth be‘ow, we grant Verizon’s motion

to dismiss Counts IV and V1 and deny Verizon’s motion to disrniss Count V.

BACKGROUND
Stacy Jaslowski was employed by Defendant Verizon between January 2, 2001 and
September 21, 2001 as a customer service representative at the V eri on Wireless store in Villa Park,
Illinois. Defendant Steve Columbus(“Columbus”) was a supervisor at the Villa Park store.
Jaslowski alleges that Columbus made comments of a sexual nature to her and touched her in an

inappropriate manner on a regular basis. Specifically Jaslowski claims that Columbus told Jaslowski



that her breasts were getting huge, that she was not looking pretty enough because she did not wear
makeup, and that she should not wear a sweater that concealed her waist. Columbus allegedly
inquired into who Jaslowski was dating and made comments in the presence of Jaslowski about
female customers such as “look at the rack on her.” In addition, Columbus allegedly spied on
Jaslowski with the store video camera to determine the type of underwear that Jaslowski was
wearing and then discussed the subject with other employees. Fina ly, Jaslowski claims that she was
subjected to unwanted physical touching by Columbus. Specifically she alleges that Columbus
would intentionally stand close behind her until he came in contact with her. According to Jaslowski
on some occasions Columbus put his arms over her shoulders, ind on one occasion he touched
Jaslowski’s buttocks with an erect penis. According to Jaslowski, Columbus also intentionally
bumped into the front of her in order to make contact with her preasts, ran his hand across her
buttocks, and on one occasion cupped Jaslowski’s left breast in his hand. In July of 2001 Jaslowski
complained about Columbus to another supervisor. After her complaint Columbus continued his
inappropriate touching and comments.

Jaslowski has brought a six-count complaint. In Coun: | she brings a sexual harassment
claim against Verizon under Title VII of the Civil Rights Act of 1964. Count II contains a gender
discrimination claim against Verizon. Count III contains a pregnancy discrimination claim against
Verizon, Count IV contains a battery claim against Columbus and Verizon. Count V contains a
negligent retention claim against Verizon. Count VI contains a retaliation claim against Verizon.
Verizon has brought this motion to dismiss Counts IV, V, and VI. We note that Jaslowski agrees
in her answer that Count [V should be dismissed against Verizon, but not against Columbus. She

also agrees that Count VI should be dismissed.

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