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AL-DABBAGH v. GREENPEACE

December 19, 1994

YASMIN AL-DABBAGH, Plaintiff,
v.
GREENPEACE, INC., et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 Yasmin Al-Dabbagh ("Al-Dabbagh") brings this action against her former employer Greenpeace, Inc. ("Greenpeace") and ex-Greenpeace employee Jimmie Mitchell ("Mitchell"), asserting in Count I that Mitchell's brutal rape of Al-Dabbagh at Greenpeace's Chicago offices on December 26, 1992 constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. ยงยง 2000e to 2000e-17) ("Title VII"). Al-Dabbagh also advances six pendent Illinois state law claims, to which the Complaint has attached these Roman numerals and labels:

 
II. Battery
 
III. Assault
 
IV. Intentional Infliction of Emotional Distress
 
V. Negligent Retention
 
VI. Negligent Supervision
 
VII. Negligent Entrustment

 Each of Counts I through IV is asserted against both Greenpeace and Mitchell, while Counts V through VII target only Greenpeace.

 Greenpeace has moved under Fed. R. Civ. P. ("Rule") 12(b)(6) to dismiss the Complaint against it for failure to state even one viable claim. For the reasons stated in this memorandum opinion and order, the motion is denied as to Count I and granted as to Counts II through VII.

 Facts1

 Greenpeace is a non-profit California corporation with offices throughout the United States. As of late 1992 the employees at Greenpeace's Chicago office (most of them of college age, with the management employees also being well under the age of 40) enjoyed what may readily be described as a loose work atmosphere (perhaps an understatement). Employees (including management and supervisory people) were free to and did (1) wear blue jeans, (2) drink beer openly during business hours (the beer was kept in a Greenpeace-provided refrigerator) and (3) smoke marijuana as well as drink beer outside on the fire escape--an area known as "party lane."

 On December 21, 1992 20-year-old Al-Dabbagh began work at Greenpeace's Chicago office as a telephone donation solicitor and was trained under the supervision of Bruce Kripner ("Kripner") for three or four days. Kripner was an "employee and managerial agent" of Greenpeace, while Mitchell was an "employee."

 On Al-Dabbagh's arrival at work on December 26 (a Saturday), Mitchell introduced himself as her shift supervisor (he was the only supervisory person on duty that day) and monitored her telephone sales "rap." That day Mitchell had keys to the office and was responsible for opening and closing the facilities. Toward the end of the day, as Al-Dabbagh was gathering her personal belongings and preparing to leave, Mitchell suddenly attempted to kiss her. When Al-Dabbagh rejected his actions as unwelcome and said that she was leaving immediately, Mitchell slapped her, tore off her shirt, beat her, hit her on the head with a radio, choked her with a phone cord and ultimately forced her to have sex with him. In the early hours of December 27 Al-Dabbagh escaped and telephoned the police. She was then treated for her injuries at a local hospital. Mitchell was arrested and charged with aggravated criminal sexual assault. *fn2"

 On December 28 Al-Dabbagh informed Greenpeace management personnel of the rape and expressed an interest in returning to work as soon as possible. Her efforts to resume employment were delayed until January 6 or 7, 1993, when she was permitted to do so. But the reunion proved short-lived. On January 9 Al-Dabbagh reported the incident to Greenpeace's executive offices in Washington, D.C. On January 18 a female member of Greenpeace's Board of Directors questioned Al-Dabbagh about whether she intended to file charges of discrimination or a lawsuit concerning the rape. Al-Dabbagh told the Board member that she did not know what she would do and was uncomfortable talking about it then. After that meeting, Greenpeace management became "aloof and unresponsive" to Al-Dabbagh. Indeed, rumors circulated in the workplace that Al-Dabbagh had fabricated the rape story--an effort to discredit and ostracize her. On January 20, citing an atmosphere of distrust and tension and constant encouragement by Greenpeace to seek other employment, Al-Dabbagh quit her job by telephone.

 Operative Legal Principles

 At the outset it is worth taking what in some respects is a side excursion into the nature of Al-Dabbagh's Complaint and its impact on the current motion. For Rule 12(b)(6) purposes the standard for a complaint's survival are really undemanding ( Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)):

 
A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.

 And consistently with that standard and with the notice-pleading regime enacted by the Rules (see, e.g., Rules 8(a)(2) and 8(e)(1)), the original design of Rules 8(e)(2) *fn3" and 10(b) *fn4" contemplated a quite different and more limited use of separate counts ...


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