United States District Court, N.D. Illinois
March 25, 2004.
ANNE RODI, Plaintiff,
TARGET CORPORATION, Defendant
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Plaintiff Ann
Rodi for leave to mend her complaint pursuant to Fed.R.Civ.Proc. 15.
For the reasons set forth below, the motion is denied.
According to the complaint, Rodi was formerly employed as a sales
associate at Marshall Field's, a chain of department stores owned and
operated by Defendant Target Corporation ("Target"). Her manager at
Field's was a woman named Laura Gans. In December 2001, Rodi's husband
became seriously ill. Over a period of several months, Rodi requested
time off from work or to reduce her schedule to allow her to care for
him. She also developed medical problems of her own from the stress
and anxiety she experienced about her husband's condition, which
contributed to her requests for time away from work. Rodi alleges that
Gans repeatedly refused to allow her to take time off or to decrease the
number of days she worked per week. In October 2002, Rodi resigned her
position at Field's.
On October 21, 2003, Rodi filed a complaint that contained two counts
of violations of the Family Medical Leave Act ("FMLA").
29 U.S.C. § 2601-54.*fn1 Target filed its answer to the initial
complaint on December 12, 2003. The proposed amended complaint, filed on
February 26, 2004, seeks to add some factual material to the preexisting
allegations as well as a new state-law claim for intentional infliction
of emotional distress ("IIED").
Pursuant to Fed.R.Civ.Proc. 15(a), a plaintiff may amend a complaint
once as a matter of course at any time before a responsive pleading is
served. Rule 15(a) provides that leave to amend a complaint "shall be
freely given when justice so requires," but if there is an apparent
reason not to permit the amendment, such as "undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment., [or]
futility of amendment," Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct 227,
230 (1962), the motion may be denied. See, e.g., Payne v. Churchich,
161 F.3d 1030, 1036-37 (7th Cir. 1998). The decision whether to grant or
deny a motion for leave to amend is committed to the sound discretion of
the district court. Perrian v. O'Grady, 958 F.2d 192 (7th Cir. 1992).
Target contends that the amendment is fufile for three reasons: it is
preempted by the Illinois Workers' Compensation Act ("IWCA"), its
allegations are insufficient to support a claim for relief under Illinois
law, and it is preempted by the Family Medical Leave Act. We address each
of these arguments in turn.
A. Preemption by the Illinois Workers' Compensation Act
Target initially challenges Rodi's IIED claim on the basis that it is
barred by Section 5(a) of the IWCA. That section provides, inter alia,
that an employee cannot bring a statutory or common-law suit for injuries
against his or her employer for injuries sustained by the employee while
engaged in the line of duty. 820 ILCS 305/5. The Illinois Supreme Court
has recognized four exceptions to this general rule: 1) the injury was
not accidental, 2) the injury did not arise from the plaintiff's
3) the injury was not received during the course of the employment, or
4) the injury is not compensable under the IWCA. See Meerbrey v.
Marshall Field & Co., Inc., 564 N.E.2d 1222, 1226 (Ill. 1990).
Rodi does not claim that her injury did not arise from her employment,
nor does she contend that it was not received during the course of her
employment. She also does not, nor could she, argue that her alleged IIED
injuries are not compensable under the IWCA. See Collier v. Wagner
Castings Co., 408 N.E.2d 198 (1980). Rodi hangs her hat solely on the
first of the Meerbrey exceptions. As Meerbrey and other Illinois cases
make clear, in determining whether an injury inflicted by a coworker is
"accidental," a court must consider whether the injury was expected or
foreseeable from the standpoint of the employee-victim and the employer.
See, e.g., Meerbrey, 564 N.E.2d at 1226; Collier, 408 N.E.2d at 202-03.
Whether the coworker-tortfeasor acted intentionally is not relevant. See
For the most part, Rodi implicitly concedes that an employer is
generally entitled to invoke the protections of the IWCA in suits
involving intentional torts by coworkers*fn2 but argues that this
general rule does not apply in this case because Target
commanded or expressly authorized the conduct of Gans. The case law has
recognized that, in such a scenario, the injury cannot be deemed
"accidental" from the employer's point of view, thus bringing the first
Meerbrey exception back into play. Meerbrey, 564 N.E.2d at 1226; Glowacki
v. Moldtronics, Inc., 636 N.E.2d 1138, 1140 (Ill.App. Ct. 1994).
However, Rodi's complaint is devoid of any allegation that Target
commanded or explicitly authorized Gans to act as she did. Cf. Bruce v.
South Stickney Sanitary Dist, 2001 WL 789225 (N.D. Ill. Jul. 12, 2001);
Fondriliak v. Commonwealth Edison, 1999 WL 51804 at *5 (N.D. Ill. Jan.
29, 1999). Her only contention in this regard is found in her reply
brief, which states that discovery will show that she attempted to notify
Target of Gans' behavior and received no response. Aside from the fact
that a party cannot flesh out an otherwise deficient pleading through a
response brief, Harrell v. United States, 13 F.3d 232, 236 (7th Cir.
1993), even If discovery showed precisely what Rodi asserts, that would
not rise to the level of a "command" or "express authorization" as
required by Meerbrey and its progeny.
Rodi also makes a halfhearted allusion to the possibility that Gans'
behavior can be directly attributed to Target because they are "alter
egos at this stage of the
proceedings." She apparently refers to the fact that, in deciding a facial
challenge to the sufficiency of a pleading, a court must make all
reasonable inferences in favor of the plaintiff. Galdikas v. Fagan,
342 F.3d 684, 688 (7th Cir. 2003). However, the proposed amended
complaint refers to Gans only as a manager of a Marshall Field's store.
See ¶¶ 8, 10, 12, 13, 15, 17, 30. The above standard does not mandate that
a district court make every imaginable inference in plaintiff's favor;
only reasonable inferences are required. See Coates v. Illinois State
Bd. of Ed., 559 F.2d 445, 447 (7th Cir. 1977). It is patently
unreasonable to infer that Gans, a manager at a single Marshall Field's
store, is for all intents and purposes interchangeable with Target
Corporation, an entity operating more than a thousand stores, under three
different chain names, in nearly every state, employing hundreds of
thousands of people. See Jablonski v. Multack, 380 N.E.2d 924, 927-28
(Ill.App. Ct. 1978). Thus, the procedural posture of this case has no
impact on our conclusion that Gans cannot be considered Target's alter
In sum, none of the Meerbrey exceptions applies to this case, and the
IWCA provides Rodi's sole state-law remedy against her employer for the
injuries she alleges within Count III of the proposed amended complaint.
As such, it would not survive a motion to dismiss, and the proposed
amendment would be fufile. For this reason, the motion for leave to amend
pursuant to Rule 15(a) is denied.
B. Failure to State a Claim
Even if Rodi had successfully avoided the IWCA bar of her common-law
claim, the allegations of Count III would not survive a motion to dismiss
for failure to state a claim. To state a cause of action for IIED in
Illinois, a plaintiff must allege that the defendant 1) engaged in
conduct that was extreme and outrageous; 2) intended to inflict severe
emotional distress or knew that there was a high probability that the
plaintiff would suffer the same as a result of its conduct; and 3) actually
caused the plaintiff to endure severe emotional distress. Welsh v.
Commonwealth Edison Co., 713 N.E.2d 679, 683 (Ill. App. Ct. 1999). Though
federal complaints, even for state-law claims, are assessed under a
notice pleading standard, mere rote recital of elements of claim is
insufficient to underpin a claim for IIED. See Hamros v. Bethany Homes,
894 F. Supp. 1176, 1180-81 (N.D. Ill. 1995). Rodi alleges that her
manager would not allow her to miss work to care for her ailing husband
or to attend to her own medical needs. While this is not admirable
conduct if it took place, neither is it sufficiently extreme and
outrageous so as to give rise to a claim for IIED. See Welsh, 713 N.E.2d
at 684 (noting that Illinois courts generally require conduct from an
employer analogous to coercing an employee to commit illegal acts); Van
Stan v. Fancy Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997):
Stansberry v. Uhlich Children's Home,
264 F. Supp.2d 681, 690 (N.D. Ill. 2003). Thus, Count III fails to
satisfy even the first element required of an IIED claim. It would doubly
fail a 12(b)(6) challenge.
C. Preemption by the Family Medical Leave Act
Finally, Target contends that Rodi's amendment is fufile because her
IIED claim is preempted by the FMLA. However, none of the cases they cite
support that proposition. As Rodi points out, two discuss an entirely
different cause of action and the third does not even discuss
preemption. Horwitz v. Bd. of Ed. of Avoca Sch. Dist. 260 F.3d 602, 616
(7th Cir. 2001) (no mention of preemption); Hamros, 894 F. Supp. at 1179
(discussing preemption of state-law claim for retaliatory discharge);
Handel v. Belvedere USA Corp., 2001 WL 1286842 at *3-*4 (N.D. Ill. Oct.
10, 2001) (same). Moreover, other courts considering the issue, albeit
not in the context of Illinois law, have concluded that the FMLA does not
preempt claims of IIED. See Buser v. Southern Food Serv., Inc.,
73 F. Supp.2d 556, 571-72 (M.D.N.C. 1999) and cases cited therein. But in
light of our other conclusions and the lack of adequate development of
this issue by the parties, we do not expressly consider the question of
preemption under the FMLA.
Based on the foregoing analysis, Rodi's motion for leave to file an
amended complaint is denied.