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Doe v. Toys R Us

August 5, 2010


Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge


Plaintiff John Doe's motion to file a surreply [39-1] and the defendants' motion to file a surrebuttal [45-1] are granted. The motion to dismiss of defendant Toys R Us [16-1] is granted in part and denied in part as follows: the motion to dismiss Counts VI, VII, and VIII are denied; the motion to dismiss Count IX is granted; and the motion to strike plaintiff John Doe's request for compensatory and punitive damages in Counts I, II, and III is granted. The motion to dismiss of defendant Alfred Arizmendi [23-1] is denied. The defendants shall answer the counts not already answered no later than August 27, 2010. In addition, the parties are directed to file a joint status report with proposed deadlines for discovery and dispositive motions by August 27, 2010. They shall report for a status hearing before this court on October 28, 2010, at 11:00 a.m.

O [ For further details see text below.] Docketing to mail notices.


Plaintiff John Doe did not allow a developmental delay to deter him. To that end, he worked with an organization that trains and obtains employment for persons with disabilities, and was eventually hired by defendant Toys R Us. According to the allegations of Doe's complaint, which the courts accepts as true for purposes of the motion to dismiss, Toys R Us and Doe were well-suited to each other for his first four years on the job. But during his fifth year, cruel co-workers began to torment him through frequent teasing. According to Doe's allegations, the teasing including hiding his lunch and name tag, teaching him dance moves and then laughing at him while he performed them, coaxing him to engage in "sexual gestures" with stuffed animals, and calling him names like "stupid" and "f**kup." Then on April 15, 2007, Doe alleges that a co-worker, defendant Alfredo Arizmendi, pinned Doe to a wall and began pressing his genitals into Doe's buttocks, which Doe refers to as "humping." Doe's supervisor, assistant manager Cesar Sanchez, witnessed the humping but did not report the incident or reprimand Arizmendi.

Later that day, Doe's mother called the store manager to complain about the humping, which she said had occurred on more than one occasion. An investigation ensued and Toys R Us learned that several co-workers, including Sanchez himself, had engaged in inappropriate teasing and touching of Doe. Sanchez was placed on unpaid leave for two weeks but, when he returned, continued on as Doe's supervisor. Upon Sanchez's return, Doe's mother asked that Doe be allowed to work elsewhere so that he would no longer be supervised by Sanchez, but her request was refused.

After Sanchez's return, Doe began to receive write ups for inappropriate behavior, culminating in his termination on May 27, 2008. On March 16, 2009, Doe filed a charge of discrimination with the EEOC, and received a right-to-sue letter on March 26, 2010. He initiated this suit on April 6, 2010, through his next friend, his mother. In the complaint, he alleges the following claims against Toys R Us: violations of the Americans with Disabilities Act by maintaining a hostile work environment (Count I), retaliation for opposing its discriminatory conduct (Count II), and a failure to accommodate his disability (Count III), as well as state law claims of assault (Count VI), battery (Count VII), negligent supervision (Count VIII), and negligence based upon a special relationship (Count IX). He also alleges the following two claims against co-worker Arizmendi: assault (Count IV) and battery (Count V). Toys R Us has filed a motion to dismiss Counts VI through IX, as well as Doe's requests for compensatory and punitive damages under the Americans with Disabilities Act as requested in Counts I through III. Arizmendi has moved to dismiss Counts IV and V.


A. Motion to Dismiss Standard

A plaintiff's complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief" and "fair notice" of the plaintiff's claims and the basis for those claims. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). According to the Seventh Circuit, this language imposes two hurdles. First, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." E.E.O.C. v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555). Second, the factual allegations must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court." Id.; Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (to survive a motion to dismiss, a complaint's request for relief must be facially plausible).

However, "[a] complaint need not allege all, or any, of the facts logically entailed by the claim, and it certainly need not include evidence." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Instead, a complaint contains enough details if it includes allegations that show that "it is plausible, rather than merely speculative, that he is entitled to relief." Id. at 1083 (internal quotations and citations omitted); Iqbal, 129 S.Ct. at 1949 (the alleged facts must "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" so "naked assertions devoid of further factual enhancement" are insufficient). Meanwhile, the court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. See Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992).

B. Toys R Us Motion to Dismiss

1. Statute of Limitations on State Law Claims of Assault (Count VI) and Battery (Count VII)

Toys R Us contends that Doe's claims for assault (Count VI) and battery (VII) must be dismissed because of Illinois' two-year statue of limitations. See 735 Ill. Comp. Stat. 5/13-202. According to Toys R Us, the claims for assault and battery are untimely because the conduct occurred on April 15, ...

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