a pail of urine on a plaintiff, and, "if proved, could be found
to be extreme and outrageous." Id. The plaintiffs also allege
numerous incidents of unwanted touching. Further, the complaint
alleges that Ford was aware of the alleged conduct and that Ford
permitted it. Like the plaintiffs in the related case, the
plaintiffs in the case at bar have made allegations that
constitute common law torts independently of civil rights laws.
Based on the allegations of the complaint, I have subject matter
jurisdiction over the intentional infliction of emotional
distress claim and the negligent supervision and retention claims
to the extent that those claims are based on unwanted touching
and infliction of emotional distress rather than allegations of
sexual harassment, sex discrimination, and retaliation.
In support of its motion to dismiss for lack of subject matter
jurisdiction, Ford cites to Smith v. Chicago School Reform Bd.
of Trustees, 165 F.3d 1142 (7th Cir. 1999), decided after
Warnell. The district court in Smith dismissed the
plaintiff's intentional infliction of emotional distress claim
after trial, ruling that the plaintiff "had pitched her entire
case on the theory that she is a victim of racial harassment and
retaliation. . . ." Smith, 165 F.3d at 1151. Affirming this
ruling, the Seventh Circuit explained that "Maksimovic holds
that torts independent of any civil-rights claims remain subject
to judicial rather than administrative adjudication, but like the
district court we think it clear that [the plaintiff's] state-law
theories sound primarily in racial discrimination and thus are
not independent of civil rights law." Id. The court does not
discuss the details of the plaintiff's emotional distress claim
other than to say that racial discrimination was the core of her
theory. Id. As discussed above, the plaintiffs in the case at
bar have adequately alleged their tort claims without relying on
civil rights law; it is premature to speculate whether, after
discovery, the evidence will support the tort claims
independently of the civil rights claims. Therefore Ford's motion
to dismiss the tort claims for lack of subject matter
jurisdiction is denied.
Motion to Dismiss for Failure to State a Claim
Ford also moves to dismiss the negligent supervision and
retention claims for failure to state a claim. Essentially Ford
argues that these claims should be dismissed because the facts
alleged in the complaint do not support the allegation that Ford
was aware of any employee's unfitness. Whether Ford knew or
should have known of an employee's unfitness, however, is a
question that cannot be resolved on a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss.
On a Rule 12(b)(6) motion to dismiss, allegations in the
complaint must be construed liberally, in the light most
favorable to the plaintiff. Harrell v. Cook, 169 F.3d 428, 431
(7th Cir. 1999). The plaintiffs have adequately put Ford on
notice of their claims for negligent supervision and hiring by
alleging that Ford employees, managers, and supervisors subjected
the plaintiffs to conduct including infliction of emotional
distress and unwanted touching, that Ford knew or should have
known of the conduct but retained the employees and permitted the
conduct, and that as a proximate cause the plaintiffs were
harmed. The complaint names numerous specific employees.
Furthermore, plaintiffs are not required to allege all of the
facts underlying their claims in the complaint, which "limns the
claim[s]; details of both fact and law come later, in other
documents." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078
(7th Cir. 1992). A determination of whether the evidence
ultimately will support the claims — independently of sexual
harassment, discrimination, or retaliation — is premature.
Therefore Ford's motion to dismiss the negligent supervision and
retention claims for failure to state a claim is denied.
For the reasons discussed above, Ford's motion to dismiss all
of the plaintiffs' common law claims for lack of subject matter
jurisdiction, and the negligent supervision and retention claims
for failure to state a claim, is denied.