The opinion of the court was delivered by: Murphy, District Judge
Defendants move to dismiss Plaintiffs' negligent retention, negligent supervision, and intentional infliction of emotional distress claims on the basis that those claims are preempted by the Illinois Human Rights Act (IHRA). 775 ILCS 5/1-101 et seq. Because Plaintiffs' state law tort claims have legal bases that are independent from legal duties arising under the IHRA, Defendants' motions to dismiss are DENIED.
Plaintiff Christy French's Complaint against Defendants STL Distribution Services, LLC, and Aaron Seward was removed to this Court on July 14, 2010. French claims a violation of the IHRA, retaliation, negligent retention, negligent supervision, assault, battery, and intentional infliction of emotional distress (IIED). Plaintiff Dawn Light's Complaint against Defendants STL Distribution Services, LLC, Aaron Seward, and Zachary Hedges alleges a violation of the IHRA, retaliation, negligent retention, negligent supervision, IIED, assault, and battery. French's and Light's Complaints were consolidated on November 3, 2010. (Doc. 38). Plaintiff French's case, number 10-511-GPM is now the lead case. Prior to consolidation, Defendants filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). These motions (Doc. 5, 10-511; Doc. 11, 10-660) raise identical issues of IHRA preemption on each Plaintiff's negligent retention, negligent supervision, and IIED claims, and will thus be analyzed together.
On a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court must determine whether Plaintiffs have pled facts sufficient to establish "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Towmbly, 550 U.S. 544, 570 (2007). Under Iqbal, "a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id., citing Twombly, 550 U.S. at 556. Further, other than unsupported legal conclusions, "a court must accept as true all of the allegations contained in a complaint." Iqbal, 129 S.Ct. At 1949. A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint, not the merits of a claim. See Triad Assoc., Inc. v. Chicago Hous. Authl, 892 F.2d 583, 586 (7th Cir. 1989). Here, in order to survive this motion to dismiss, Plaintiffs must allege claims that are not preempted by Illinois law.
Preemption may be proper ground for a dismissal pursuant to Rule 12(b)(6). See Green v. Charter One Bank, N.A., No. 08-C-1684, 2010 WL 1031907, at *1 (N.D. Ill. March 16, 2010), citing Currie v. Diamond Mortgage Corp. Of Ill., 859 F.2d 1538, 1542 (7th Cir. 1988). The Seventh Circuit has succinctly stated when state law tort claims, such as Plaintiffs' negligent retention, negligent supervision, and IIED claims, are preempted by the IHRA:
Whether a state-law tort claim is preempted depends on whether the IHRA furnishes the legal duty that the defendant was alleged to have breached. If the plaintiff's allegations against the defendant implicate only a duty provided by the IHRA, such as the duty of employers to refrain from discriminating against employees on the basis of their race or national origin, then the plaintiff's claim is preempted.
Bannon et al. v. University of Chicago, 503 F.3d 623, 630 (7th Cir. 2007) (emphasis added) (citations and quotations omitted). In Naeem v. McKesson Drug Company, the Seventh Circuit considered whether an IIED claim was preempted by an IHRA sexual harassment suit. 444 F.3d 593, 604 (7th Cir. 2006). Per the Naeem Court, the proper inquiry is whether a plaintiff can prove the elements of her state law claim "independent of legal duties furnished by the IHRA," not whether the facts that support the tort claim "could also have supported a discrimination claim." 503 F.3d at 604. "[I]f the conduct would be actionable even aside from its character as a civil rights violation because the IHRA did not furnish the legal duty that the defendant was alleged to have breached, the IHRA does not preempt a state law claim seeking recovery for it." Id., quoting Krocka v. City of Chicago, 203 F.3d 507, 516-17 (7th Cir. 2000). Following the rationale of Naeem and Bannon, the proper inquiry here is whether or not there is an independent basis for Plaintiffs' state law claims, apart from the legal duties created by the IHRA.*fn1
Here, Plaintiffs' allegations of negligent retention, negligent supervision, and IIED have bases that do not solely rely on the legal duties created by the IHRA. Therefore, Defendants' motions to dismiss are denied.
Plaintiffs' Negligent Retention Claim
The elements of an Illinois claim for negligent retention are "(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's . retention; and (3) that this particular unfitness proximately caused the plaintiff's injury." Van Horne v. Muller, 705 N.E.2d 898, 904 (Ill. 1998). Proof of these elements is not necessarily inextricably linked to a civil rights violation under the IHRA. See Naeem 444 F.3d at 602. Plaintiff French alleges that Defendant STL Distribution knew or should have known that an alleged pattern of sexual harassment, assault, and battery by Defendant Aaron Seward resulted in sexual harassment, assault, battery, emotional distress, lost wages, and medical expenses (Doc. 2-1 at 6-7).
"Sexual harassment" under the IHRA is defined as:
[A]ny unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. 775 ILCS 5/2-101(E). That the facts alleged in the IHRA claim may be duplicative of facts alleged for the negligent retention claim is not dispositive. See Naeem, 503 F.3d at 604. Further, French alleges that Seward's "unfitness" was based on assault and battery in addition to sexual harassment. These allegations, in no way related to "sexual harassment" as defined in the IHRA, are sufficient to establish a plausible claim of negligent retention that is not preempted. Plaintiff Light's claims of negligent retention also allege unfitness based on assault and battery, and are ...