the court in Quela cites to Cline and Mobley which as indicated above are
distinguishable from the instant case./d. Also, unlike in the instant case, in Quela
the miscreant employee was the supervisor of the plaintiff. /d.

We note that our position on the ratification and alter ego issues, that an
employer’s inaction, in the face of knowledge of the menacing propensities of an
employee, is preempted by the IWCA, is consistent with the language used in the
Tilinois Supreme Court case Meerbrey v. Marshall Field and Co., Inc, 564 N.E.2d
1222,1229-30 (Ill. 1990). As stated above the court in Meerbrey stated that he
IWCA exclusivity provisions does “not bar a common law cause of action against an
employer . . . for injuries which the employer or its alter ego intentionally inflicts
upon an employee or which were commanded orexpressly authorized by the
employer.” Jd. (emphasis added). The words “expressly authorized” do not suggest
that the Court intended the exception to be extended to include situations where
there is an implied ratification based upon inaction by the employer.

Our position on the ratification and alter ego issues is also consistent with the
case law, that is not disputed by Santos, that holds that claims based upon negligence
are preempted by the IWCA. See e.g. Id.; Simmons, 860 F.Supp. at 493-94,
Although the IWCA makes reference to covering “accidental injuries,” 820 ILCS

. 305/11, the recognition by the courts that negligent conduct causing injuries falls
within the scope of “accidental injuries” that are preempted by the IWCA clearly

shows that the phrase is not intended to mean accidental injuries that occur without

13


DISCUSSION
Boeing argues that we should dismiss the negligent retention claim (Count
VII) because: 1) the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/1-10let
seq., preempts Santos’ negligent retention claim, and 2) the Illinois Workers’
Compensation Act (“IWCA”), 820 ILCS 305/let seq., bars Santos’ negligent

retention claim.

LIilinois Human Rights Act Preemption

Boeing argues that the IHRA preempts Santos’ negligent retention count.
The IHRA provides that “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). Under the IHRA, it is unlawful to discriminate against an
individual “ because of his or her race, color, religion, sex, national origin, ancestry,
age, marital status, physical or mental handicap, military status, or unfavorable
discharge from military service in connection with employment, real estate
transactions, access to financial credit, and the availability of public
accommodations.” 775 ILCS 5/1-102. The Illinois Supreme Court has determined
that the IHRA prohibits employer liability for state common Jaw claims that are
“inextricably linked to a civil rights violation such that there is no independent basis

for the action apart from the Act itself.” Maksimovic v. Tsogalis, 687 N.E.2d 21, 23


aware that Delilio had a propensity to assault and cause harm to his co-workers.”
(SA Compl. 90). Another example is an allegation that “Richards ignored Santos’
initial complaint about Delilio.” (SA Compl. 76). Such alleged actions are clearly
only negligent conduct. Santos does not allege that Boeing committed an
intentional tort or that Delilio was the alter ego of Boeing or was commanded to
perform the alleged misconduct by Boeing or that he was authorized to do so by
Boeing.

Santos cites Cline v. General Electric Capital Auto Lease, Inc, 757 F Supp.
923, 931 (N.D. Ill. 1991) and Thomas v, Habitat Co. 213 F.Supp.2d 887, 892 (N.D.
Ill. 2002) in which the courts held that it is possible that an employer’s knowledge of
an employee’s potential misconduct that could harm other employees combined with
inaction by the employer could constitute ratification by the employer of the
miscreant employee’s intentional misconduct. However, in both of those cases cited
by Santos the employees that engaged in the alleged wrongful conduct harming other
employees were supervisors. Thomas, 213 F.Supp.2d at 892; Cline, 757 F.Supp. at
931. Those cases are therefore distinguishable from the instant case in which Delilio
is merely a co-worker of Santos. Ratification can be more readily found and the
miscreant employee can more readily be found to be the alter ego of his employer
when the miscreant employee acted with supervisory authority given to him or her
by the employer. See e.g. Walker, 110 F.Supp.2d at 715(indicating that not even a

“low-level supervisory employee” is typically found to be “the employer's alter


In his negligent retention Count Santos alleges that Delilio suffered from fits
of rage in which he would throw items across the mailroom, kick furniture, and
scream and shout at Santos and his co-workers. (SA Compl. Par. 73). Santos further
alleges that Boeing knew about these incidents and did not investigate or resolve the
problem, which led to Plaintiff's injury. (SA Compl. Par. 83, 91-92). These
allegations are never alleged in Santos’ Title VII Counts. Although Santos’
negligent retention Count includes allegations that support Santos’ Title VII claim,
these allegations are not necessary to establish the elements of negligent retention.
Santos has sufficiently shown that his negligent retention claim based on a duty
other than one created by the IHRA. See Ishkhanian v. Forrester Clinic S.C., 2003
WL 21479072, at *4 (N.D. Ill. 2003)(holding that plaintiff's “claim for negligent
retention d[id] not rely entirely on rights established by the IHRA, but is instead
predicated on an independent common law duty to protect an employee from assault
and battery. . . [and] [e]ven though the assault and battery might also be part of a
claim of sexual harassment, the claim has a foundation separate from the IHRA and
thus is not preempted.”). Thus, we find the IHRA does not preempt Santos’
negligent retention claim. We note that Boeing also attempts to argue in its reply
that Santos has not pleaded all of the elements for the negligent retention claim.
However, although it the negligent retention claim is a state common law claim, the
federal pleading standard applies to pleadings before federal court and under such a

standard a plaintiff is not required to plead all of the elements of a cause of action.


(ll.1997). Thus, a plaintiff may proceed with a common law tort claim only if he
alleges the elements of that claim without relying on the “legal duties created by the
Illinois Human Rights Act.” Jd. at 24. If an Illinois court lacks jurisdiction over the
state claim, “so too does a federal court sitting in Illinois.” Arnold v. Janssen
Pharmaceutical, Inc., 215 F.Supp.2d 951, 955 (N.D. Ill. 2002).

Boeing argues the IHRA preempts Santos’ negligent retention claim because
Santos alleges the same facts in his negligent retention Count that he alleges in the
Counts that contain Title VII claims. However, “mere factual overlap is not
decisive.” Jd. at 955. As stated above, preemption is contingent on whether “a
plaintiff can establish the necessary elements of the tort independent of any legal
duties created by the Illinois Human Rights Act.” Maksimovic, 687 N.E.2d at 24.

Boeing relies on Wington v. Ellis, 2003 WL 21037874 (N.D. Ill), contending
that a common law claim is inextricably linked to a civil rights claim when the
plaintiff repeats and realleges the allegations forming the civil rights count.
However, Wington is distinguishable because the plaintiff in that case supported her
intentional infliction of emotional distress claim solely on the duty to protect
employees from sexual harassment, repeating and realleging all of the allegations
that were contained in her Title VII count. Jd. at *5. In contrast, Santos’ negligent
retention claim is distinct from his civil rights claims relying on the duty to protect
employees from assault by co-workers rather than protection from civil rights

violations.


Jaw cause of action against an employer .. for injuries which the employer or its
alter ego intentionally inflicts upon an employee or which were commanded or
expressly authorized by the employer.” Jd. A plaintiff may escape the IWCA
exclusivity provision bar for claims, by showing “(1) the injury was not accidental;
(2) the injury did not arise from [] employment; (3) the injury was not received
during the course of [] employment; [or] (4) the injury is not compensable under the
Act.” Hunt-Golliday, 104 F.3d at 1016. See also Walker v. Doctors Hosp. of Hyde
Park, 110 F.Supp.2d 704, 714 (N.D. Ill. 2000)(explaining that “if the employer, or
its alter ego, acts with a specific intent to injure the employee through the acts of the
employee's coworkers, the injury that results no longer remains an
accident.”)(emphasis added).

Santos’ argues that Boeing intentionally retained Delilio and that the injury
was thus not accidental and the tort is an intentional tort. However, Illinois does not
recognize an intentional retention tort claim. See Arnold v. Janssen Pharmaceutica,
Inc., 215 F.Supp.2d 951, 958 (N.D.IIl. 2002)(stating that there is “no such thing as
intentionally wrongful retention, training, or supervision.”). Even if Illinois did
recognize such a claim, Santos has not alleged such a claim. Santos chose to
proceed under a theory of negligence stating that Boeing “is liable under Illinois law
for negligently retaining employee Bob Delilio.” (SA Compl. 70). The allegations
in the negligent retention count (Count VID) also indicate negligence rather than

intentional wrongdoing by Boeing. For instance, Santos alleges that Boeing “was


* inate Order Fora (0457)

"United States District Court, Northern District of Minois

Name of Assigned Jud; _ i Sitting Judge if Oth
mor Magitrate Judge | Samuel Der-Yeghiayan than Assigned Judge
CASE NUMBER 02 € 9310 DATE 5/10/2004
| CASE Santos vs. Boeing
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented]

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

@) Oj Answer brief to motion due . Reply to answer brief due. .

|

(4) Oo} Ruling/Hearing on set for at

(5) 0 Status hearingfheld/continued to] [set for/re-set for] on set for at

|

(()) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :

) a) Trial[set for/re-set for] on at

(8) a [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo | This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

| OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

(10) Mi_| [Otherdocketentry] For the reasons stated in the attached memorandum opinion, the Court hereby
grants defendant’s motion to dismiss Count VII of the plaintiff's second amended complaint. Enter
ee Opinion.

(11) a [For further detail see order attached to the original minute order.]

No not}ces required, advised in open court.
required.

mmumber of notices

7 1 a a

Notices mailed by judge's staff. :
Notifi eounsel by telephone. MAY 41 2004
VY | doo fo mall ner wee AAT

all $0 form. a PTE octet wii 4
Copy/td jtdge/magistrate judge. Y :

| | courtroom _ date mailed notice

MW | depury's Cl.

{ initials

i | Date/time received in - 7

ian i central Clerk's Office roiling deputy iia

fi


commanded Mr. Passett's alleged behavior.”).

In Thomas, which is cited by Santos, the court held that knowledge by
management combined with “lack of follow-up action is equivalent to express
authorization of injurious conduct.” 213 F.Supp.2d 887, 892 (N.D. Ill.
2002)(quoting Quela v. Payco-general Am. Credits, Inc, 84 F.Supp.2d 956, 960
(N.D. 2000). As indicated above, this ratification argument may be more true if the
miscreant employee has some sort of supervisory authority. However, to the extent
that Cline seeks to apply such a rule to all co-worker misconduct we cannot agree.
An employer could possibly engage in intentional wrongdoing, if for example, the
employer kept the miscreant employee in the position or placed the employee in the
position and did nothing to curb the miscreant employee’s propensities, while
intending that the miscreant employee cause harm other employees. Perhaps, for
example, an employer wants to get rid of an employee and it puts a dangerous or
menacing employee in an area to scare the other employee into quitting. There are
no allegations of such conduct in this case.

An employer could possibly ratify the conduct of the miscreant employee if,
for example, the miscreant employee engaged in wrongful conduct harming a co-
worker and the employer indicated satisfaction with the result and indicated that the
miscreant employee had unknowingly served the employer’s intended purpose. That
was the situation in the Cline case, which is cited by Santos and is heavily relied

upon by other cases cited by Santos. In the C/ine case the court, in finding that the

i


ego.”); Arnold, 215 F.Supp.2d at *957(stating that “[a]lthough mere supervisory
status is insufficient, a co-employee qualifies as an ‘alter ego’ for purposes of the
IWCA if the co-employee, ‘in a practical sense, speaks for the company.’")(quoting
Crissman v. Healthco Int'l, Inc., 1992 WL 223820, at *7 (N.D. Ill. 1992)).

If an employer knows, based upon past conduct by an employee, that the
employee has a propensity for a certain type of misconduct, and the employer allows
the employee to continue to work and does not make reasonable efforts to prevent
future harms to other employees, then the employer is negligent. The employee’s
intentional misconduct does not make the employer’s lack of action intentional
wrongdoing. The employer simply allowed the employee to proceed unchecked and
the propensity of the miscreant employee made potential harm to co-workers a likely
possibility. That is the essence of a negligence claim. There is a sufficient risk, the
employer has a duty to the other employees, but ignores the risk to them, and there is
a breach of that duty resulting in damages. Such conduct is not intentional in any
way shape or form. This conduct is analogous to leaving a dangerous animal in the
proximity of persons that you owe a duty to. See Walker, 110 F.Supp.2d at
714(stating when determining that the claim against the employer was preempted by
the [WCA that “specific intent” is required by an employer and also stating: “[the
plaintiff] argues only that Ms, Honeysucker knew of Mr. Passett's racist tendencies.
However, there is absolutely no evidence on the record that [defendant] Doctors

Hospital or Ms. Honeysucker had in any way authorized, directed, encouraged, or

10



Head v, Chicago School Reform Bad. of Trustees. 225 F.3d 794, 801 (7* Cir. 2000).

II. Illinois Workers’ Compensation Act Bar
Boeing argues the IWCA’s exclusivity provision bars Santos’ negligent

retention claim. 820 ILCS 305/S(a), 305/11. The IWCA’s exclusivity provision
bars employees from bringing any common law or statutory claims for accidental
injuries while engaged in the line of his duty as such an employee.” 820 ILCS
305/5(a), 305/11; Hunt-Golliday v. Metropolitan Water Reclamation Dist. of Greater
Chicago, 104 F.3d 1004, 1016 (7th Cir. 1997);Simmons v. Chicago Public Library,
860 F.Supp. 490, at *493 (N.D.IIl. 1994). The IWCA’s exclusivity provision bars
state common law suits based upon negligence. See Arnold, 215 F.Supp.2d at 957;
Walker v. Doctors Hospital of Hyde Park, 110 F.Supp. 2d 704, 714 (N.D.III. 2000)
(holding the “IWCA abrogates employer liability for all common law negligence
claims, including negligent retention claims”); Small v. Chicago Health Clubs, Inc.,
843 F.Supp. 398, 403 (N.D.II1.1994) (holding that the intention of the IWCA was to
bar all common law negligence claims); Simmons v. Chicago Public Library, 860
F.Supp. 490, 493-94 (N.D. Ill. 1994)(holding the IWCA bars a claim of negligent
retention); Meerbrey v. Marshall Field and Co., Inc, 564 N.E.2d 1222,1229-30 (Ill.
1990)(stating that IWCA bars negligence tort claims).

However, the IWCA does not bar claims based upon certain torts. Meerbrey,

564 N.E.2d at 1229-30. The IWCA exclusivity provisions does “not bar a common



discrimination claim alleging violations of 42 U.S.C.§ 1981 (“Section 1981")(Count
ID, Title VII retaliation claims (Counts III, IX, and X), Section 1981 retaliation
claims (Counts IV and V), a Fair Labor Standards Act claim, 29 U.S.C.§ 201 et seq.
(Count VI), a negligent retention claim (Count VII), and a Title VII race and
national origin claim (Count VIII). Boeing’s motion to dismiss is solely limited to

the negligent retention claim (Count VII).

LEGAL STANDARD

Federal Rule of Civil Procedure 12 (b)(1) requires a court to dismiss an action
when it lacks subject matter jurisdiction. United Phosphorus, Ltd. v. Angus
Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). When reviewing a motion to
dismiss brought under Rule 12(b)(1), this court “must accept as true all well-pleaded
factual allegations, and draw reasonable inferences in favor of the plaintiff.” Ezekiel
v. Michel, 66 F.3d 894, 897 (7th Cir. 1995) (citing Rueth v. United States
Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993)). This court
“may properly look beyond the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine whether in fact
subject matter jurisdiction exists." Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing
Co. v, Federal Deposit Insurance Corp.,999 F.2d 188, 191 (7th Cir.1993)).
However, the burden of proof in a Rule 12 (b)(1) motion lies with “the party
asserting jurisdiction.” United Phosphorus, Ltd., 322 F.3d at 946.


the fault of the employer. See Walker, 110 F.Supp.2d at 714{indicating when
deciding whether the IWCA preempted a claim that “if the employer, or its alter ego,
acts with a specific intent to injure the employee through the acts of the employee's
coworkers, the injury that results no longer remains an accident.”)(emphasis added).

Our position on the ratification and alter ego issues is also consistent with
other caselaw in the Northern District as well. See Fortenberry v. United Air Lines,

1997 WL 457499, at *5 (N.D. Ill. 1997)(holding that the defendant employer could
not “be said to have specifically commanded or expressly authorized the intentional
torts of co-workers simply because it knew or should have known that [the
supervisor] was harassing [the plaintiff.]”); Simmons v. Chicago Public Library, 860
F.Supp. 490, 493-94 (N.D. Ill. 1994)(holding the IWCA bars a claim of negligent
retention); A/-Dabbagh v. Greenpeace, Inc., 873 F.Supp. 1105, 1112 (N.D. Ili.
1994)(indicating when determining whether a claim was preempted by IWCA that
“[t]o state a claim against an employer for authorizing the injurious conduct of a co-
worker, an employee must assert that the employer possessed a specific intent to
inflict injury on the employee.” (emphasis added).

Santos alleges that Boeing knew that Delilio had a propensity to act
inappropriately when angry and was a risk to co-workers and that Boeing did not
take steps to protect other employees. Boeing’s alleged misconduct is, at best, an
allegation of negligence and thus the negligent retention claim is barred by the

IWCA.

14


Delilio made numerous comments regarding his racial and national origin. Santos
complained about the comments to Boeing supervisors and Santos claims that
Boeing retaliated against Santos by demoting him from the lead mailroom position
and taking away his office. Santos also claims that Boeing ultimately terminated
him because of his race and national origin.

In addition, Santos claims that Boeing failed to protect its employees,
including Santos, from the alleged fits of rage by Delilio at work. Santos claims that
Delilio threw items across the mailroom, kicked furniture, and screamed and shouted
at Santos and other co-workers. Santos claims that he informed Richards that he
feared for his physical safety around Delilio, but Richards ignored Santos’s
complaints. In December of 2001 Santos complained about Delilio’s alleged
tantrums to Dave Komendat (“Komendat”), Boeing’s Director of Security. Santos
claims that Komendat assured Santos that he would investigate the matter, but that
Boeing did not-conduct any investigation. Around January 15, 2002 Santos once
again reported Delilio’s conduct after Delilio became enraged and began yelling at
Santos, Santos claims that Delilio received a telephone call, apparently regarding
Santos’ complaint, and after Delilio hung up the telephone, he yelled at Santos and
turned and allegedly grabbed for a box cutter. Santos claims that he feared that
Delilio would use the knife to harm him and ran out of the mailroom.

Santos’ second amended complaint contains a hostile work environment claim

alleging violations of 42 U.S.C § 20006 et seg. (“Title VII”) (Count I, a race



oy eee

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MICHAEL SANTOS, )
)
Plaintiff, )
)
v. ) No. 02 C 9310
)
THE BOEING COMPANY, )
) ry)
Defendant. ) Obi,
May | ar)
i 2004
{e) OPI

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant The Boeing Company’s
(“Boeing”) motion to dismiss Count VII of the second amended complaint. For the

reasons stated below, we grant the motion to dismiss.

BACKGROUND
Plaintiff Michael Santos (“Santos”) worked for Boeing as a Mailroom
Specialist in its Chicago, Illinois office between September 17, 2001, and October
21, 2002. Steve Richards (“Richards”) was the direct supervisor for Santos and one

of Santos’ co-workers was Bob Delilio (“Delilio”). Santos alleges that Richards and

Uf


alleged employer wrongdoing was intentional, noted that the defendant employer
tolerated the supervisor’s misconduct because the department “performed so well”
and thus the employer was benefitting from the misconduct. Cline, 757 F.Supp. at
931. There is no such allegation in the instant case. Delilio was not a supervisor
and there is not allegation that Boeing benefitted from his anger around his co-
workers. Thus, for several reasons Cline is clearly not applicable in the instant case.

Santos also cites Reynolds v. Hitachi Seiki U.S.A., Inc., 1993 WL 384535, at
*3 (N.D. Ill. 1993) and Mobley v, Kelly Kean Nissan, Inc., 864 F.Supp. 726, 728
(N.D.IIL. 1993) for the proposition that an employer’s knowledge and inaction can
become ratification. However, the courts in Reynolds and in Mobley, in finding
ratification, cite solely to Cline which as indicated above in distinguishable from the
instant action. 1993 WL 384535, at *3; 864 F.Supp. at 728. Also, unlike the instant
case, in both the cases the alleged miscreant employees were supervisors of the
plaintiffs. 1993 WL 384535, at *1; 864 F.Supp. at 728. InMobley the court noted
that some of the alleged miscreant employees were “management-level employees”
and “constituted alter-egos” of the defendant employer. 864 F.Supp. at 729. Since
the miscreant employees in Reynolds and in Mobley were supervisors alter ego
arguments and ratification arguments were more palatable arguments.

Santos also cites Quela v. Payco-General American Credits, Inc, 84
F.Supp.2d 956, 960 (N.D.IL. 2000) for the proposition that an employer’s

knowledge and inaction can become ratification. However, in making such a finding

12


CONCLUSION
Based on the foregoing analysis, we grant Boeing’s motion to dismiss Santos’

negligent retention claim (Count VII) in the second amended complaint.

Samuel Der-Yeghiayan Z ‘

United States District Court Judge

Dated: May 10, 2004

15