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May 10, 2004.


The opinion of the court was delivered by: 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.


  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 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 hosfile work environment claim alleging violations of 42 U.S.C § 2000e et seq. ("Title VII") (Count I), a race discrimination claim alleging violations of 42 U.S.C. § 1981 ("Section 1981")(Count II), 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).


  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. DISCUSSION

  Boeing argues that we should dismiss the negligent retention claim (Count VII) because: 1) the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1-101 et seq., preempts Santos' negligent retention claim, and 2) the Illinois Workers' Compensation Act ("IWCA"), 820 ILCS 305/1 et seq., bars Santos' negligent retention claim.

 I. Illinois 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 law 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 (Ill. 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." Id. 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." Id. 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. Id. 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. 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 ...

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