emacs ee

the court denied a motion to dismiss, holding that by alleging the basic substance
of the statements the plaintiff had pleaded with sufficient specificity. See id.
Similarly, in Chisolm, the plaintiff failed to specify the name of the person who
made the statement or the date on which it was said. See 940 F. Supp. at 1280.
However, the court denied the defendant’s motion to dismiss because it held that
by alleging the basis substance of the statements, the plaintiff had pleaded with
sufficient specificity. See id.

In light of these authorities, we find that Luttrell sets forth with sufficient
specificity the alleged defamatory statements. As quoted above, she attributes
two specific alleged statements to Defendants. Those statements furnish
Defendants sufficient information with which to formulate responsive pleadings.

Defendants appear to concede this point, yet they fear that the words “but
not limited to” may allege different defamatory statements. What we can
conclude on the present pleadings is that the two specifically alleged statements
are actionable. Construing Luttrell’s Complaint in the light most favorable to
her, as is required, whatever additional statements she may be referring to are
substantially identical to those stated in the Complaint. For example, “but not
limited to” could very probably mean that the alleged statement, “sleeping with

the dealer,” may actually have been phrased, “Luttrell was having sexual

-1B-


to dismiss, the Court must construe the complaint’s allegations in the light most
favorable to the plaintiff and accept as true all well-pleaded facts and allegations. See

Bontkowski v. First Nat’l Bank of Cicero, 998 F.2d 459, 461 (7" Cir. 1993). The

allegations of a complaint should not be dismissed for failure to state a claim “anless
it appears beyond a doubt that the plaintiff can 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 setting forth the essential elements of the cause of action. See Lucien v.

Preiner, 967 F.2d 1116, 1168 (7" Cir. 1992). In reviewing a Rule 12(b)(6) motion to
dismiss for failure to state a claim, the Court must limit itself to the allegations .
contained in the pleadings themselves.

Rule 12(6)(1) provides for dismissal of claims over which 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 (7" Cir. 1986). In reviewing a 12(6)(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 exists. See United Transp. Union v.

Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7" Cir. 1996) (citing Bowyer v. United
States Dep’t of Air Force, 874 F.2d 632, 635 (7" Cir. 1989)). The plaintiff bears the



Timothy O’Connor was otherwise acting within the scope of his employment or
furthering his employer’s business when he sexually assaulted her. Even assuming the

Complaint did allege that Timothy O’Connor was acting within the scope of his

employment when he allegedly sexually assaulted her, Illinois courts have long held
that sexual misconduct of employees is outside the scope of their employment a asa
matter of law, thereby relieving the employer of any liability. We therefore grant
O’Connor Chevrolet’s motion to dismiss Count V.
II. Negligent Training, Supervision and Retention

Invoking Geise once again, O’Connor Chevrolet argues that the claim of
negligent training, supervision and retention must be dismissed because. it is
“inextricably linked” to the IHRA and therefore divests this Court of subject matter.

jurisdiction. In Geise, the Illinois Supreme Court established that an action for

negligent retention predicated on the same facts as a sexual harassment claim is is

preempted by the IHRA because the claims are inextricably linked. 639 N.E.2d at

1277. The Illinois Supreme Court’s later holding in Maksimovic qualified the rule in

Geise, but nonetheless agreed with Geise’s holding that a cause of action for negligent

retention premised solely on a duty grounded in the IHRA is preempted by the JIHRA.

See Maksimovic, 687 N.E.2d at 23.



The IHRA preempts state tort claims whose 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). However, where a plaintiff establishes a cause of
action independent from the IHRA, the cause of action is not preempted by the IHRA.
See Maksimovic v. Tsogalis, 687 N.E.2d 21, 24 (Il. 1997). In Geise, the plaintiff was
sexually harassed by a co-worker and sued her employer for negli gent retention. Geise,
639 N.E.2d at 1274. The Court found that because the IHIRA created the duty to the
plaintiff's negligence claim, the claim was inextricably linked the IHRA, See id. at
1277. Consequently, the Court’s subject matter jurisdiction was stripped. Id, at 1277.
In Maksimovic, the plaintiff was sexually harassed by her co-worker and sued the co-
worker for assault and battery and false imprisonment. Maksimovic, 687 N.E.2d at 22.

Here, unlike Geise, the Court found that the plaintiff stated claims independent of the

THRA because assault and battery and false imprisonment have long been recognized
as independent causes of action, even when they are based on factual allegations of
sexual harassment. See id. at 23. Thus, whether or not a cause of action is inextricably
linked to the IHRA depends on the plaintiff's ability to allege the elements of a tort
without reference to the legal duties created by the THRA, and not on whether the facts
of the case contain allegations of sexual harassment. See Bruce v. South Stickney

Sanitary Dist., 2001 U.S. Dist. LEXIS 9815 (N.D. Il. July 11, 2001).


burden of establishing that the jurisdictional requirements have been met. See Kontos
v. United States Dep’t of Labor, 826 F.2d 573, 576 (7" Cir. 1987). When a party
moves for dismissal pursuant to Rule 12(b)(1), the nonmoving party must support its
allegations with competent proof of jurisdictional 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

I. Assault and Battery

A. Defendant Timothy O’Connor

Under the Illinois Human Rights Act (“IHRA”), “no Court of this state shall
have jurisdiction over the subject to an alleged civil rights violation other than as set
forth in this Act.” 775 ILCS 5/8-111(C) (West 2001). The IHRA makes ita “civil
rights violation” for any employer or employee “to engage in sexual harassment.” 775
ILCS 5/2-102(D) (West 2001). Sexual 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 working

environment.” 775 ILCS 5/2-101(E) (West 2001).



of employment. See id. Because of this deficiency, the plaintiff failed to state a cause
of action for battery against the employer through vicarious liability. See id.
Indeed, a long line of cases applying Illinois law hold that acts of sexual
misconduct are outside the scope of employment as a matter of law. See Hughley v.
Hudgins, 1997 U.S. Dist. LEXIS 7442 (N.D. Ill. May 23, 1 997) (granting defendant’s
motion to dismiss because sexual assault of a minor by CHA officer is clearly beyond

the scope of his employment as a matter of law); Dockter v. Rudolf Wolff Futures Inc.,

684 F.Supp. 532 (N.D. Ill. 1988) (sexual harassment of an employee by a supervisor
was committed solely for the benefit of the employee); Randi F. v. Hi gh Ridge YMCA,
524 N.E.2d 966 (Ill. App. Ct. 1988) (affirming trial court’s decision to grant
defendant’s motion to dismiss because sexual assault of child by day care teacher is a
deviation from the scope of employment as a matter of law); Dorsey v. Givens, 2001
US. Dist. LEXIS 7735 (N.D. Ill. June 5, 2001) (granting defendant’s motion for
summary judgment because employee’s inappropriate touching is outside the scope of
employment as a matter of law).

In the case at bar, Luttrell wishes to extend liability for Tim O’Connor’s alleged
battery to his employer, O’Connor Chevrolet, through a theory of vicarious liability.
However, the Complaint does not allege that Timothy O’Connor’s job description

included sexually assaulting female employees. Nor does the Complaint allege that


d
Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 01 C979 DATE 9/18/2001
CASE Luttrell et al vs. O’Connor Chevrolet, Inc. et al
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:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
(3) im Answer brief to motion due . Reply to answer brief due
(4) oO Ruling/Hearing on _ set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a Trial{set for/re-set for] on at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to at
(9) ai This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) General Rule 21 CIFRCP41(a)(1) CIFRCP41(a)(2).
ao) «of [Other docket entry] ENTER MEMORANDUM OPINION: Defendants’ motion (Doc 23-1) to
dismiss is granted in part and denied in part. We dismiss Counts III and IV pursuant to Plaintiffs’
voluntary dismissal. We grant the motion to dismiss Count V (assault and battery) as to O’Connor
Chevrolet but deny it as to Timothy O’Connor. In addition, we dismiss Count VI (negligent training,
supervision and retention) as to O’Connor Chevrolet because it is preempted. Count VII (slander) stands
as to all Defendants.
(il) of [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge's staff.
Notified counsel by telephone.
wo | Docketing to mail notices. yy
Mail AO 450 form.
Copy to jufhermagistyate judge.
N i
courtroom :
SCT deputy’s
initials
Date/time received in
central Clerk's Office mailing deputy initials



Thus, the IHRA did not preempt those courts from having subject matter jurisdiction
and the motions to dismiss were denied as to those negligence claims that were
predicated on assault and battery. See id.
In the case at bar, the Complaint states that
[c]oncerning the subject of sexual harassment, O’Connor Chevrolet,
through its officers, employees and/or agents . . . failed to monitor and/or
train its employee/agent Tim O’Connor, and as a result, Plaintiffs suffered
from the illegal treatment described in the foregoing Paragraphs of this
Complaint.
(Amd. Compl. { 82.) This paragraph refers only the defendant’s duty to prevent
sexual harassment. Thus, Plaintiffs have expressly predicated their negligence
claim on the defendant’s duty to protect against sexual harassment, and not the
assault and battery. Because the IHRA imposes on the defendant employer the
duty to protect its employees from sexual harassment, this claim is inextricably
linked to the IHRA and is preempted. We therefore grant O’Connor Chevrolet’s
motion to dismiss Count VI, negligent training, supervision and retention.
TIL. Slander
A. Specificity
Defendants argue that Count VII (slander) should be dismissed because

it is lacking in specificity. According to that Count, the allegedly false

statements

-ll-


Assuming that the Complaint alleges all of the elements of negligent training,
supervision and retention, the question becomes whether this claim is based on sexual
harassment or an independent tort. If it is based on sexual harassment, the only duty
required of the defendant employer is created by the THRA and the claim is inextricably
linked to the THRA. See Geise, 639 N.E.2d at 1274; Thomas, 13 F.Supp.2d at 809.
However, if the claim is based on some other independent tort, like assault and battery,
then the duty is created by the employer’s failure to protect its employees from assault

and battery and the claim is not inextricably linked. See Finnane v. Pentel of America.

Ltd., 43 F. Supp. 2d 891, 903 (N.D. Ill. 1999); Warnell v. Ford Motor Company, 1998

USS. Dist. LEXIS 16952 (N.D. Ill. October 21, 1998); Ofama v. Armour, 1998 U.S.

Dist. LEXIS 11052 (N.D. Ill. June 25, 1998).

In both Geise and Thomas, the plaintiffs’ claims of negligent retention were

based on the employers’ failure to protect the plaintiffs from sexual harassment, a duty

imposed by the IHRA. Geise, 639 N.E.2d at 1274; Thomas, 13 F. Supp. 2d at 809.

Thus, the IHRA preempted those courts from having subject matter jurisdiction and the

motions to dismiss were granted. See id. By contrast, in Finnane, Warnell and Ofama,

the plaintiffs’ claims of negligent retention were based on common law torts of assault

and battery, which created a duty independent of the HRA. Finnane, 43 F. Supp. 2d

at 903; Warnell, 1998 U.S. Dist. LEXIS 16952; Ofama, 1998 U.S. Dist. LEXIS 11952.

-10-


In the case at bar, Luttrell alleges that on numerous occasions Timothy
O’Connor rubbed up against her shoulder and hip while making inappropriate sexual
comments and requests. Under Illinois law, causing bodily harm or “making physical
contact of an insulting nature” constitutes a battery. Jenkins v. Nelson, 157 F.3d 485,
497 (7" Cir. 1998); 720 ILCS § 5/12-3 (2001). Thus, the facts alleged in the complaint
state a cause of action long recognized in Illinois that is independent of any duties
imposed on defendant Timothy O’Connor by the IHRA. We therefore deny Timothy
O’Connor’s motion to dismiss Count V for assault and battery.

B. Defendant O’Connor Chevrolet

O’Connor Chevrolet also seeks dismissal of Count V. It contends it cannot be
held vicariously liable for the intentional torts of employee Timothy O’Connor because
O’Connor acted outside the scope of his employment. In support of this argument

defendant relies on Thomas v. L’Eggs Product, Inc., 13 F.Supp. 2d 806 (C.D. Ill.

1998). In Thomas, the plaintiff alleged she was sexually harassed at work and filed a

complaint against her employer for negligent retention and battery. See id. at 810.
With regard to the battery count, the court noted that the plaintiff failed to allege that
her co-worker acted within the scope of his employment when he committed the

battery, and even if that were alleged, sexual misconduct is clearly outside the scope


ee tose eoomemeene sete escent ft

action to correct it. Both women were fired as a result of their complaints regarding
Timothy O’Connor’s behavior. After Luttrell was fired, she alleges Timothy O’Connor
commented that Luttrell was “sleeping with the dealer” and had stolen money from the
dealership.

Luttrell and Olson filed an amended seven-count Complaint against the
Defendants. Counts J and II allege sexual harassment and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Counts III and IV
assert sexual harassment and retaliation in violation of the Illinois Human Rights Act,
775 ILCS 5/2-102(D). Count V claims common law assault and battery, Count VI
negligent and/or willful training, supervision and retention, and Count VII slander.

Defendants have moved to dismiss Counts Il, IV, V, VI and VII of the
Complaint. In their response brief, Plaintiffs agreed to voluntarily dismiss Counts III
and IV. We are left with Defendants’ challenges to Counts V and VI on the grounds

of preemption by the Illinois Human Rights Act or, in the alternative, of lack of

vicarious liability. We must also decide whether, as Defendants contend, Count VII
lacks specificity and is barred by the statute of limitations.
LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the

sufficiency of the complaint, not to decide the merits of the case. In ruling on a motion


intercourse with the boss.” Similarly, the alleged statement, “stealing from the
company,” may actually have been phrased, “Luttrell was robbing the dealer
blind.” Because Luttrell has specified two alleged defamatory statements, the
mere fact that Defendants can construe the Complaint to possibly mean
something else does not mean Luttrell has failed to state a claim. Should Luttrell
assert at a later date any additional allegedly defamatory statements that
Defendants find improper, we can entertain the objections at that time. We
therefore deny Defendants’ motion to dismiss Count VII for lack of specificity.
We expect that the discovery available to Defendants will clarify the present
uncertainty as to the scope of this claim.

B. Statute of Limitations

Defendants also argues that the slander count should be dismissed because
the one-year statute of limitations has expired. Under Illinois law, a one-year
statute of limitations applies to slander actions, 735 ILCS § 5/13-210 (West
2001). The cause of action generally accrues and the statute of limitation begins
to run on the date of publication of the defamatory material. See Tom Olesker’s

Exciting World of Fashion, Inc., v. Dun & Bradstreet Ind., 334 N.E.2d 160, 161

(1975). In defamation actions, courts have applied the discovery rule. See id.

This rule asks when a plaintiff knew or should have known of the existence of

-14-


nn SA RR i era

March 2000. By filing her Complaint on February 21, 2001, Luttrell appears to

have acted within the statute of limitations. We therefore deny Defendants’
motion to dismiss the slander count on statute of limitations grounds.
‘e eA NE id ie ATS

CONCLUSION

In sum, we dismiss Counts III and IV pursuant to Plaintiffs’ voluntary

dismissal. We grant the motion to dismiss Count V (assault and battery) as to

O’Connor Chevrolet but deny it as to Timothy O’Connor. In addition, we

dismiss Count VI (negligent training, supervision and retention) as to O’Connor

Chevrolet is granted because it is preempted. Count VII (slander) stands as to

all Defendants.

Charles P. Kocoras
United States District Judge

‘Peas weet:

ee

Dated: _ September 18, 2001

-16-


BACKGROUND
For purposes of the instant motion to dismiss, we accept as true the well-pleaded

allegations of Plaintiffs’ Complaint as we are obligated to do. See Bontkowski v. First

National Bank of Cicero, 998 F.2d 459, 461 (7" Cir. 1993). Defendant O’Connor
Group does business as O’Connor Chevrolet, Evergreen Finance Company, and
Quality Hyundai, Inc.. The president, secretary, sole director and controlling
shareholder of the O’Connor Group is Defendant Caryl O’Connor. Her son, Defendant
Timothy O’Connor, is the Sales Manager of O’Connor Chevrolet. Plaintiff Debra
Luttrell (“Luttrell”) worked for O’Connor Chevrolet as an Office Manager and
Comptroller from September 1998 until December 1999. Plaintiff Kimberly Olson
(“Olson”) worked for The O’Connor Group from January 1998 until January 2000 as
its Business Development Manager. Both Luttrell and Olson worked under Timothy
O’Connor.

Luttrell and Olson claim to have been subjected to constant sexual harassment
in the course of their employment, including exposure to pornography, sexually explicit
remarks and repeated sexual advances. Additionally, Luttrell alleges that Timothy
O’Connor threatened and physically touched her. Both Luttrell and Olson allegedly
reported this behavior numerous times to their superiors, yet no action was taken.

Luttrell and Olson believe that Caryl O’Connor knew of this behavior but took no



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DEBRA B. LUTTRELL and )
KIMBERLY A. OLSON, )
)
Plaintiffs, )
)
vs. ) 01 C979
)
O’CONNOR CHEVROLET, INC., an )
Illinois corporation, EVERGREEN )
FINANCE COMPANY, an Illinois )
corporation, collectively d/b/a )
THE O’CONNOR GROUP, CARYL ) °
STIPULIN O’CONNOR, individually, >) peor’ ete
and TIMOTHY O’CONNOR, individually, ) , ot
) ger 4.9.0
Defendants. )
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the Court on the motion to dismiss of Defendants
O’Connor Chevrolet, Inc., The O’Connor Group, Caryl O’Connor and Timothy
O’Connor. For the reasons set forth below, we deny the motion to dismiss Count V
(assault and battery) as to Timothy O’Connor but grant it as to O’Connor Chevrolet.
In addition, we grant the motion to dismiss Count VI (negligent training, supervision
and retention) as to O’Connor Chevrolet. Finally, we deny the motion to dismiss Count

VII (slander) as to all Defendants.


included, but were not limited to, falsely stating that Luttrell was

“sleeping with the dealer principal” and stealing from O’Connor

Chevrolet.

(Amd. Compl. { 86 (emphasis added).) Defendants argue that the phrase “but
were not limited to” implies that Luttrell might allege other slanderous
statements, and that if this is her intention, she must state with specificity what
those other statements are.

Because federal notice pleading standards are procedural rules, they apply
to Plaintiff's pendent state law claims under the Erie doctrine. See Vantassell-
Matin v. Nelson, 741 F. Supp. 698, 707 (N.D. Ill 1990). The federal rules
contain an “haec verba” pleading rule requiring defamation claims to set forth
the alleged defamatory words published or spoken by the defendant. Id. The
rationale ofthe requirement is that the defendant needs general knowledge of the
exact language in order to formulate a responsive pleading. See id. However,
verbatim quotes are not required. See id. at 707-08; see also Pelech v. Klaff-
Joss, LP, 828 F. Supp. 525, 534 (N.D. Ill. 1993); Chisolm v. Foothill Capital
Corp., 940 F. Supp. 1273, 1285 (N.D. Ill. 1996); Guy v. State of Ill, 958 F.
Supp. 1300, 1312 (N.D. Ill. 1997).

In Pelech, the plaintiff failed to allege who made the defamatory

statements and to whom they were made. See 828 F. Supp. at 534. However,

-12-


actionable conduct. See Swider v. Yeutter, 762 F. Supp. 225, 228 (N.D. Ill.

1991). Under the discovery rule, if the confidential nature of the defendant’s
publication prohibits the plaintiff from early discovery of the defamation, then
the statute of limitation begins to run from the point in time when the plaintiff
knew or should have known of the defamatory statements, not from the date of
publication. See id.

In the case at bar, Luttrell alleges that the defamatory statements were
made between January and March of 2000. She filed her Complaint on February
12,2001. Any defamatory statement of defendant made after February 12, 2000
would not be barred by the statute. The question here is whether any statements
alleged to have occurred before that date are barred. We think not.

The Complaint asserts that the Defendants made the alleged statements
to Luttrell’s prospective employers after she was fired. Because the statements
were made orally rather than in writing, Luttrell appears not to have had an
opportunity to learn of them until she secured alternative employment. That did
not happen until March 2000. Because the confidential nature of Defendant’s
alleged statements prohibited Luttrell from learning about them, the earliest
Luttrell could have known about them was March 2000. Therefore, applying the

discovery rule, her slander claim did not trigger the statute of limitations until

~15-