The opinion of the court was delivered by: Reagan, District Judge:
The question before the Court is whether Defendants can properly be held liable for punitive damages on the 6 Counts remaining in this action: Count 1, common law assault; Count 2, common law battery; Count 5, negligent supervision; Count 8, intentional infliction of emotional distress; Count 11, retaliation under Title VII; and Count 12, sexual harassment. Having carefully and thoroughly considered this issue, the Court now rules as follows.
Counts 1, 2, 5 and 8 state causes of action under Illinois law, so the availability of punitive damages is governed by Illinois law. See Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714 (7th Cir. 2003). Under Illinois law, the Court must initially decide "whether the facts of a particular case justify the imposition of punitive damages[.]" Kelsay v. Motorola, Inc., 384 N.E.2d 353, 359 (Ill. 1978). To make this determination, the Court examines plaintiff's supported allegations and the evidence of record. See Roboserve, Inc. v. Kato Kagaku Co., 78 F.3d 266, 273 (7th Cir. 1996); see also Varilek v. Mitchell Engineering Co., 558 N.E.2d 365, 382 (Ill. App. Ct. 1991). Punitive damages may be recovered in cases where the wrongful act constitutes "fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others." Kelsay, 384 N.E.2d at 359.
In Counts 1 and 2, Ashley Alford alleges assault and battery, respectively, against Richard Moore. As Alford indicates in her Memorandum in Support of Punitive Damages ("Alford's Memorandum"), these counts are based on willful verbal and physical sexual conduct by Richard Moore. Alford's Memorandum, pp.2-3. Moore's conduct, as alleged by Alford, meets the elements set forth in Kelsay, supra, and warrants submitting the issue of punitive damages as to these Counts to the jury for its consideration. See Knierim v. Izzo, 174 N.E.2d 157, 165 (Ill. 1961) (The "outrageous nature" of the defendant's alleged conduct was sufficient to allow the jury to make an award of punitive damages).
In Count 5, Alford seeks damages against Aaron's for improperly supervising or failing to supervise Moore.
A claim for negligent supervision requires a plaintiff to establish:
(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 hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff's injury. HelfersBeitz v. Degelman, 939 N.E.2d 1087, 1091 (Ill.AppCt. 2010) (citing Van Horne v. Muller, 705 N.E.2d 898, 904 (1998).
The conduct of which Alford complains goes beyond Moore's conduct to impute liability to Aaron's for, inter alia, failing to make adequate inquiries regarding allegations of sexual harassment despite knowledge of the same by its agent Regional Manager Brad Martin; deliberately covering up sexual harassment through Martin; and failing to suspend Moore while allowing known sexual harassment to continue. First Amended Complaint (FAC), ¶¶ 85 -95.
Alford testified that Martin questioned her about harassment in front of Moore and later told Moore to "watch [his] back." From this testimony, a reasonable trier of fact could find that Martin intended to conceal harassment or to remain willfully ignorant of it. This alleged intentional cover-up and disregard of sexual harassment is sufficiently willful or grossly negligent to support submitting the issue of punitive damages to the jury for its consideration. See Kelsay, 384 N.E.2d at 359; see alsoKnierim, 174 N.E.2d 165 (Ill. 1961) (finding that punitive damages may be justified by actions "characterized by wantonness, malice, [and] oppression.").
Alford's claim in Count 8 alleges intentional infliction of emotional distress, which under Illinois law does not permit punitive damages. Casey-Beich v. United Parcel Service, Inc., 2008 WL 4471362, at *1 (7th Cir. 2008) ...