United States District Court, N.D. Illinois, Eastern Division
August 5, 2004.
KENNETH McDOWELL, Plaintiff,
J.B. HUNT TRANSPORT, INC. Defendant.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth McDowell brings this action against Defendant
J.B. Hunt Transport, Inc. alleging discrimination on the basis of
race in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000(e) et seq. (Count I); violations of the
Federal Motor Carrier Safety Regulations, 49 C.F.R. Part 40 and
49 C.F.R. §§ 382, 391 (Count II); discrimination in violation of
42 U.S.C. §§ 1981 and 1988 (Count III); intentional infliction of
emotional distress (Count IV); intentional interference with
actual and prospective economic relationships (Count V);
negligent supervision and retention (Count VI); and defamation
Defendant moves to dismiss Counts II, IV, V, and VI of the
Second Amended Complaint ("Complaint") for failure to state a
claim upon which relief may be granted pursuant to Federal Rules
of Civil Procedure ("Rule") 12(b)(6) and Counts IV and VI for a
lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
For the reasons set forth below, Defendant's motion to dismiss
Counts II, IV, V, and VI is granted in part and denied in part. BACKGROUND
The following facts of the Complaint are assumed to be true for
purposes of this motion to dismiss. Albany Bank & Tr. v. Exxon
Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). Plaintiff is an
African-American who was employed by Defendant from June 2001
through November 19, 2001. (Second Am. Compl. ¶¶ 9, 15, 17.)
While employed, Plaintiff alleges he was forced to drive an
unsafe vehicle, but newly hired Caucasian employees were given
newer, safer vehicles to drive. (Id. ¶ 32.) Plaintiff's
complaints about his vehicle were "mostly ignored." (Id. ¶ 10.)
Plaintiff eventually was terminated for violating Defendant's
Controlled Substance Abuse Policy for taking medication
prescribed to his wife. (Id. ¶¶ 14, 17.)
Plaintiff alleges his termination and Defendant's treatment of
African-American drivers as it relates to both vehicle assignment
and the application of its substance abuse policy was
discriminatory based on race. (Id. ¶ 19.) Plaintiff alleges
that he never refused to take a drug test and should not have
been terminated by Defendant without a reasonable suspicion drug
test required by 49 C.F.R. § 382.307(b) (2004). (Second Am.
Compl. ¶ 40.) Plaintiff further alleges that after his
termination, Defendant published false information about his
alleged drug use to others in the business of Defendant. (Id. ¶
22.) Plaintiff claims that as a result of Defendant's actions, he
has been unable to secure regular employment as a truck driver.
(Id. ¶ 23.)
Plaintiff alleges that he has suffered lost wages, continuing
injury to his career and employment, humiliation, mental anguish,
invasion of privacy, damage to reputation, pain, and suffering.
(Id. at 13, ¶ C.) DISCUSSION
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the sufficiency, not the merits,
of the complaint. Autry v. N.W. Premium Servs., Inc.,
144 F.3d 1037, 1039 (7th Cir. 1998). When reviewing a motion to dismiss,
the Court accepts all well-pleaded facts as true and views any
reasonable inferences from them in the light most favorable to
the plaintiff. Albany Bank, 310 F.3d at 971. Dismissal is
proper when it "appears beyond 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).
Federal courts require notice, not fact, pleading, in which the
complaint must include a "short and plain statement of the
claim." Leatherman v. Tarrant Co. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993). However, while "the
Federal Rules of Civil Procedure do not require a plaintiff `to
set out in detail the facts upon which he bases his claim,' . . .
he must `set out sufficient factual matter to outline the
elements of his cause of action or claim, proof of which is
essential to his recovery." Menard Inc. v. U.S. Equities Dev.,
Inc., No. 01 C 7142, 2002 WL 31050160, at *1 (N.D. Ill. Sept.
13, 2002) (quoting Benson v. Cady, 761 F.2d 335, 338 (7th Cir.
1985)). If the complaint fails to allege an element required to
obtain relief, dismissal may be proper. R.J.R. Servs., Inc. v.
Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).
Rule 12(b)(1) provides for dismissal of claims over which the
federal court lacks subject matter jurisdiction. See Shelton v.
Ernst & Young, LLP, 143 F. Supp. 2d 982, 986 (N.D. Ill. 2001).
When reviewing a Rule 12(b)(1) motion to dismiss, the Court must
accept all well-pleaded facts as true and draw reasonable
inferences from those allegations in the plaintiff's favor. See
United Transp. Union v. Gateway Western Ry. Co., 78 F.3d 1208, 1210
(7th Cir. 1996). The Court also may look beyond the complaint and
view whatever evidence has been submitted by the parties to
determine whether subject matter jurisdiction exists. Id.
(citing Bowyer v. U.S. Dep't of Air Force, 875 F.2d 632, 635
(7th Cir. 1989)). The plaintiff bears the burden of proving that
the jurisdictional requirements have been met. See NLFC, Inc. v.
Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995).
In Count II, Plaintiff asserts a claim for violations of the
Federal Motor Carrier Safety Regulations ("FMCSRs"), 49 C.F.R.
Part 350 et seq. (Second Am. Compl. § 34.) Specifically,
Plaintiff alleges that his termination based on a violation of
the company's Alcohol and Controlled Substances Abuse Policy
without the administration of a drug test violated the
"reasonable suspicion" drug test "required" by
49 C.F.R. § 382.307(b). (Id. ¶¶ 37, 40.) Plaintiff also asserts that
Defendant's suspicion of Plaintiff's drug use was not reasonable
under 49 C.F.R. § 382.307(b). (Id. ¶ 38.)
Defendant argues that Plaintiff's claim is barred as a matter
of law because no private right of action exists to enforce such
Department of Transportation regulations. Plaintiff responds that
although the FMSCRs do not explicitly create a private right of
action, Congress's silence on the issue does not indicate that it
is not available. Furthermore, Plaintiff argues, because truck
drivers' rights are protected under the regulations, the FMCSRs
reveal an intention to benefit drivers.
"The question whether a statute creates a cause of action,
either expressly or by implication, is basically a matter of
statutory construction. Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. 11, 15-16 (1979); see Parry v. Mohawk Motors of Mich.,
Inc., 236 F.3d 299, 309 (6th Cir. 2000), cert. denied,
533 U.S. 951 (2001) ("[F]ederal regulations in and of themselves
cannot create a private cause of action unless the action is at
least implied from the applicable statute."). The relevant
statute in this case is the Federal Omnibus Transportation
Employee Testing Act of 1991 ("FOTETA"), 49 U.S.C. § 31306
(2004), pursuant to which the FMCSRs were promulgated. FOTETA
amended the Federal Commercial Motor Vehicle Safety Act and other
federal statutes to require drug testing of certain
transportation workers in safety-sensitive positions. See Drake
v. Delta Airlines, Inc., 923 F. Supp. 387, 390-93 (E.D.N.Y.
1996), vacated in part on other grounds, 147 F.3d 169 (2d Cir.
1998). FOTETA provides, in part:
In the interest of commercial vehicle safety, the
Secretary of Transportation shall prescribe
regulations that establish a program requiring motor
carriers to conduct preemployment, reasonable
suspicion, random and post-accident testing of
operators of commercial motor vehicles for the use of
a controlled substance in violation of law or a
United States Government regulation and to conduct
reasonable suspicion, random and post-accident
testing of such operators for the use of alcohol in
violation of law or a United States Government
regulation. The regulations shall permit such motor
carriers to conduct preemployment testing of such
employees for the use of alcohol.
49 U.S.C. § 31306(b)(1)(A).
FOTETA is framed as a general mandate statute, expressly
authorizing the Secretary of Transportation to prescribe
regulations relating to the establishment of drug testing
programs for commercial vehicle transportation. See
49 U.S.C. § 31306(b)(1)(B); Parry, 236 F.3d at 308. Pursuant to the
statute, the Secretary promulgated regulations including the
FMCSRs for the "purpose of . . . establish[ing] programs designed
to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by
drivers of commercial motor vehicles." 49 C.F.R. § 382.101. The
Secretary also has promulgated the Department of Health and Human
Services Procedures for Transportation Workplace Drug and Alcohol
Testing Programs regulations. See 49 C.F.R. Part 40.
It is undisputed that FOTETA does not provide an express right
of action, so the question is whether a private right of action
is implied in the statute. See Statland v. Am. Airlines, Inc.,
998 F.2d 539, 540 (7th Cir. 1993). The Court concludes that no
private right of action is implied.
In Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court
described a four-part test to determine whether an implied right
of action exists in a federal statute: (1) whether the plaintiff
is among the class of persons intended to benefit from the
enactment of the statute; (2) whether there is any evidence of
legislative intent to provide or deny a private remedy; (3)
whether a private remedy would be consistent with the underlying
purposes of the legislative scheme; and (4) whether the action is
one traditionally delegated to state law so it would be
inappropriate to imply a federal remedy. Id. at 78. The Supreme
Court has since refined this inquiry, and the central question is
whether Congress intended to create a private cause of action.
See Transamerica, 444 U.S. at 15-16; see also Statland,
998 F.2d at 540 ("Of late courts seldom imply a private right of
action where none appears in the statute, for a strong
presumption exists against their creation.") (alteration and
Plaintiff argues first that commercial drivers should have a
private right to enforce FOTETA against employers because
administrative procedures cannot address wrongs committed against employees and second that the FMCSRs reveal an intention to
protect and benefit drivers. Plaintiff's arguments are
First, the FMCSRs include enforcement provisions, including
civil and/or criminal penalties for an employer's non-compliance,
see 49 C.F.R. § 382.507, so a private right of action is not
necessary to further FOTETA's purposes. See Transamerica,
444 U.S. at 19 ("[I]t is an elemental canon of statutory construction
that where a statute expressly provides a particular remedy or
remedies, a court must be chary of reading others into it.").
Second, while drivers may indirectly benefit from uniform
procedures, and the statute and regulations include protections
for employees affected by drug testing requirements, (see
49 U.S.C. § 31306(c); 49 C.F.R. § 382.60), this does not mean
commercial drivers are a class of persons for whose benefit
FOTETA was enacted. See Parry, 236 F.3d at 309 (holding that
FOTETA's "regulatory scheme does not evince a concern for the
protection of drivers who believe they have been aggrieved
through the drug testing process"); see also Transamerica,
444 U.S. at 24 ("[T]he mere fact that the statute was designed to
protect [certain persons] does not require the implication of a
private cause of action for damages on their behalf."); First
Pac. Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1122 (9th Cir.
2000) (contrasting statutes that expressly name intended
beneficiaries from "laws enacted for the protection of the
general public") (citation and quotation omitted); Statland,
998 F.2d at 540 ("[A] private cause of action is seldom implied
for statutes framed as general commands to a federal agency or
for statutes that do not create rights for a specific class of
persons."). Prior cases analyzing FOTETA and regulations promulgated
thereunder have uniformly found that the statute does not
expressly or impliedly create a private right of action. See
Drake, 923 F. Supp. at 392 ("[I]t is clear that Congress in
enacting [FOTETA] intended to provide a general benefit to the
public by increasing the level of passenger safety, and did not
intend to establish a private right of action for the
transportation industry's employees."); see also Parry,
236 F.3d at 309; Abate v. S. Pac. Transp. Co., 928 F.2d 167, 169-70
(5th Cir. 1991); Howell v. Lab One, Inc., 243 F.Supp. 2d 987,
990 (D. Neb. 2003); Byrne v. Mass. Bay Transp. Auth.,
196 F. Supp. 2d 77, 86-87 (D. Mass. 2002); Salomon v. Roche Compuchem
Labs., Inc., 909 F. Supp. 126, 128 (E.D.N.Y. 1995); Mayo v. USF
Holland, Inc., No. 1:03-CV-4, 2003 WL 21788853, at *8 (W.D.Mich.
Feb. 12, 2003).
Because FOTETA neither expressly nor impliedly creates a
private right of action, Count II fails to allege a claim upon
which relief can be granted. Accordingly, the Court grants
Defendant's motion to dismiss Count II of the Second Amended
Complaint with prejudice.
In Count IV, Plaintiff alleges a state law claim of intentional
infliction of emotional distress ("IIED"). Defendant argues this
claim is preempted by the Illinois Human Rights Act ("IHRA"), 775
ILL. COMP. STAT. § 5/1-101 et seq. (2004), and the Illinois
Workers Compensation Act ("IWCA"), 820 ILL. COMP. STAT. § 305/1
et seq. (2004), and therefore should be dismissed pursuant to
Rule 12(b)(1). In the alternative, Defendant asserts that the
allegations in the Complaint do not constitute IIED as a matter
of law. A. The Illinois Human Rights Act
The IHRA provides that "[e]xcept as otherwise provided by law,
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."*fn1 775 ILL. COMP. STAT. § 5/8-111(C). Therefore,
the IHRA preempts any state or 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);
see Beard v. City of Chi., 299 F. Supp. 2d 872, 874 (N.D. Ill.
2004); see also Jones v. Sabis Educ. Sys., Inc., No. 98 C 4252,
1999 WL 1206955, at *9 (N.D. Ill. Dec. 13, 1999) (explaining that
"Illinois state courts and federal courts exercising supplemental
jurisdiction over Illinois state claims lack subject matter
jurisdiction over" claims preempted by the IHRA).
Defendant argues that because Plaintiff's IIED claim
incorporates by reference the earlier allegations in the
Complaint, i.e., allegations relating to discrimination, and
does not state any other specific factual basis for the IIED
claim, it is "inextricably linked" to the discrimination claim.
The Court agrees that to the extent the IIED claim is based upon
alleged discrimination, it is preempted by the IHRA. Indeed,
Plaintiff does not argue to the contrary. Plaintiff responds
instead that the IIED claim "arises from actions taken by the
Defendant outside of the course of employment," namely providing
false information to Plaintiff's subsequent actual and/or
potential employers. (Pl.'s Resp. Def.'s Mot. Dismiss ["Pl.'s
Resp."] at 6-7.) Although these allegations are not expressly included in Count VI, "a plaintiff is free, in defending against
a motion to dismiss, to allege without evidentiary support any
facts he pleases that are consistent with the complaint, in order
to show that there is a state of facts within the scope of the
complaint that if proved (a matter for trial) would entitle him
to judgment." Early v. Bankers Life & Cas. Co., 959 F.2d 75, 79
(7th Cir. 1992). And although Plaintiff is under no obligation to
plead those facts, see id., the Court notes that the substance
of the defamation allegations are included elsewhere in the
Therefore, the Court finds that Plaintiff's allegations of IIED
for acts occurring after his employment was terminated state a
claim that is not inextricably linked to the alleged civil rights
violation, and those allegations are not preempted by the IHRA.
B. The Illinois Workers Compensation Act
The IWCA contains an exclusivity provision which provides: "No
common law or statutory right to recover damages from the
employer . . . for injury or death sustained by any employee
while engaged in the line of his duty as such employee, other
than the compensation herein provided, is available to any
employee who is covered by the provisions of this Act. . . ." 820
ILL.COMP.STAT. § 305/5(a); see Hunt-Golliday v. Metro. Water
Reclamation Dist., 104 F.3d 1004, 1016 (7th Cir. 1997) (holding
that the IWCA provides the exclusive remedy for accidental
injuries that occur in the course of employment); Socorro v. IMI
Data Search, Inc., No. 02 C 8120, 2003 WL 1964269, at *5 (N.D.
Ill. Apr. 28, 2003) (citing Collier v. Wagner Castings Co.,
408 N.E.2d 198, 201-02 (Ill. 1980)) (explaining that the IWCA bars
IIED claims arising out of and in the course of employment).
Therefore, to the extent the Complaint may attempt to state a
claim for injuries sustained during his employment, it is
preempted by the IWCA. However, as with his response to Defendant's IHRA preemption
argument, Plaintiff argues that the IWCA does not preempt his
claim for IIED based on false information given to an actual
and/or prospective employer after his termination. (Pl.'s Resp.
at 7-8.) In order for a claim not to be preempted, an employee
must prove that the injury (1) was not accidental; (2) did not
arise from the plaintiff's employment; (3) was not received
during the course of employment; or (4) was not compensable under
the Act. Hunt-Golliday, 104 F.3d at 1016. Taking Plaintiff's
allegations as true, Defendant's communication with the third
party occurred after Plaintiff was terminated. Therefore, any
injury caused by the communication did not arise from Plaintiff's
employment and was received outside the scope of employment.
Therefore, the IWCA does not preempt Plaintiff's claims of IIED
injuries resulting from actions that took place after Plaintiff's
C. IIED as a Matter of Law
Having determined that Plaintiff's IIED claim for injuries
allegedly sustained after his termination is not preempted, the
Court turns to the question of whether these allegations state a
claim upon which relief can be granted.
To state a cause of action for IIED, a plaintiff must plead:
(1) the defendant's conduct was extreme and outrageous; (2) the
defendant intended to inflict severe emotional distress or knew
there was at least a high probability that his conduct would
inflict severe emotional distress; and (3) the defendant's
conduct caused severe emotional distress. See Honaker v. Smith,
256 F.3d 477, 490 (7th Cir. 2001). Whether conduct is extreme and
outrageous is judged on an objective standard based on all the
facts and circumstances of a particular case. See McGrath v.
Fahey, 533 N.E.2d 806, 811 (Ill. 1988). Defendant argues that the conduct Plaintiff complains of does
not qualify as "extreme and outrageous" as a matter of law.
"`Liability [for IIED] has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency.'" Pub. Fin. Corp. v.
Davis, 360 N.E.2d 765, 767 (Ill. 1976) (quoting RESTATEMENT
(SECOND) OF TORTS § 46, cmt. d (1965)). Liability "does not
extend to mere insults, indignities, threats, annoyances, petty
oppressions, or trivialities." Id.
Plaintiff has expressly argued that the sole basis for his IIED
claim is Defendant's alleged defamatory statement to a subsequent
employer "communicating suspicion of drug use without positive
proof." (Pl.'s Resp. at 9.) Allegations of defamation, however,
do not rise to the level of extreme and outrageous conduct. See
Cook v. Winfrey, 141 F.3d 322, 331-32 (7th Cir. 1998) (affirming
dismissal of IIED claim, explaining that "[a] number of Illinois
courts have dismissed claims of [IIED] based upon defamation, on
the ground that the conduct was not `extreme and outrageous'").
The facts of this case are remarkably similar to Socorro v. IMI
Data Search, Inc., 2003 WL 1964269, in which the defendant
company fired the plaintiff based on false information about his
criminal history and then repeated the false information to
others, making the plaintiff unable to secure new employment.
Id. at *1. The district court dismissed the IIED claim, noting
that although the allegations were "deplorable if proven," they
were not sufficient to sustain an IIED claim. Id. at *5
("[Plaintiff's] naked statement that the conduct was `outrageous'
does not make it so."). Plaintiff's attempts to distinguish
Socorro are not persuasive. Therefore, Count VI must be
dismissed with prejudice. COUNT V
In Count V, Plaintiff alleges intentional interference with
actual and prospective economic relationships ("IIAPER") related
to his contract with both Defendant and a subsequent employer.
To state a claim for interference with an existing contractual
right under Illinois law, a plaintiff must allege: (1) the
existence of a valid and enforceable contract between the
plaintiff and another; (2) the defendant's awareness of this
contractual relationship; (3) the defendant's intentional and
unjustified inducement of a breach of that contract; (4) a
subsequent breach by the other caused by the defendant's wrongful
conduct; and (5) damages. See Accurso v. United Airlines, Inc.,
109 F.Supp.2d 953, 962 (N.D. Ill. 2000).
Where the plaintiff's economic expectancy has yet to solidify
into a contractual relationship, the plaintiff must allege: (1) a
reasonable expectation of entering into a valid business
relationship; (2) the defendant's knowledge of the plaintiff's
expectancy; (3) an intentional and unjustified interference by
the defendant that caused a breach or termination of the
expectancy; and (4) damages to the plaintiff resulting from such
interference. See Walker v. Braes Feed Ingredients, Inc., No.
02 C 9236, 2003 WL 1956162, at *6 (N.D. Ill. Apr. 23, 2003).
Defendant is correct that Plaintiff cannot state a claim for
IIAPER as it relates to Plaintiff's contract with Defendant. A
claim of intentional interference generally can only be brought
against a third party, not an employer. See Drury v.
Sanofi-Synthelabo, Inc., 292 F.Supp. 2d 1068, 1071 (N.D.Ill.
2003); see also Cromeens, Holloman, Sibert, Inc., v. AB Volvo,
349 F.3d 376, 397 (7th Cir. 2003) ("A party may not be charged
with tortious interference with respect to its own contract."). The remaining issue, therefore, is whether Plaintiff states a
claim for IIAPER regarding actual or prospective contracts with
subsequent employers. Defendant first argues that Plaintiff has
essentially pleaded himself out of a claim for interference with
actual contractual relationships because the Complaint alleges
that "Plaintiff has been unable to secure regular employment as a
truck driver." (2d Am. Compl. ¶ 23.) However, the allegation that
Plaintiff could not secure "regular" employment does not
foreclose the possibility that he had in fact secured some
employment. Moreover, the Complaint also alleges that Plaintiff
may have had "actual contractual relationships" with others,
(id. ¶ 59), and "ambiguities in complaints in federal court
should be interpreted in favor of plaintiffs, not defendants,"
Early, 959 F.2d at 79.
Reading the allegations of the Complaint in the light most
favorable to Plaintiff, he alleges that he had a valid employment
contract with a third party; that Defendant was aware of this
relationship and purposely and intentionally intended to harm
Plaintiff by informing the third party employer of Plaintiff's
termination for alleged drug use; that absent Defendant's
conduct, Plaintiff would not have been terminated from his
employment; and that because of this conduct, he has been unable
to obtain regular employment as a truck driver, resulting in
In the alternative, Plaintiff also alleges the elements
required for stating a claim for intentional interference with
prospective economic relationships. Although the hope of
obtaining employment or even being a job candidate does not
constitute a "reasonable expectancy," see Walker, 2003 WL
1956162, at *6, Plaintiff argues in his response that he had been
hired by another company, which created a reasonable expectancy
of continuing an economic relationship. Plaintiff alleges he had
completed orientation and training for the company, and he was
reporting for his first day of assignments when he was terminated. Furthermore, because
Defendant allegedly initiated communications with this third
party, Defendant was aware of this expectancy. Finally, Plaintiff
contends that Defendant's intentional and false communications
with the third party caused the company to terminate its business
relationship with Plaintiff, and as a result, Plaintiff has been
damaged. Therefore, Defendant's motion to dismiss Count V is
In Count VI, Plaintiff attempts to state a negligent retention
and supervision claim. Defendant asserts this claim is preempted
by the IHRA and IWCA and should be dismissed pursuant to Rule
12(b)(1) on the grounds that Illinois state courts have exclusive
jurisdiction. See, e.g., Luttrell v. O'Connor Chevrolet, Inc.,
No. 01 C 979, 2001 WL 1105125, at *3 (N.D. Ill. Sept. 19, 2001)
(citing Maksimovic, 687 N.E.2d at 24) (holding that negligent
training, supervision, and training claims that are inextricably
linked to claims under the IHRA are preempted). The parties'
arguments mirror those in relation to preemption of the IIED
claim, discussed above, and the same conclusion applies. To the
extent the Complaint may allege negligent supervision for acts
occurring during Plaintiff's employment, those claims are
preempted and therefore must be dismissed pursuant to Rule
12(b)(1). However, the negligent retention and supervision claim
based on post-employment occurrences is not preempted and
survives dismissal. Defendant chose not to move to dismiss this
Count on other grounds, and thus, the Court need not analyze
whether Plaintiff's allegations in Count VI state a claim upon
which relief may be granted. CONCLUSION
For the reasons provided herein, the Court grants in part and
denies in part Defendant's motion to dismiss [doc. no. 29-1].
Count II and IV are dismissed with prejudice. Counts V and VI are
dismissed with prejudice to the extent they allege injuries
caused during the scope of employment. Counts V and VI survive to
the extent they allege injuries that occurred after Plaintiff's
employment was terminated.