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Bryan Zuidema v. Raymond Christopher

June 30, 2011

BRYAN ZUIDEMA, PLAINTIFF,
v.
RAYMOND CHRISTOPHER, INC., A MICHIGAN CORPORATION D/B/A CINNABON,
DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant's motion to dismiss [13] Counts III and IV of Plaintiff's complaint [1] pursuant to Federal Rule of Civil Procedure 12(b)(6). Count III of the complaint is a claim for battery and Count IV is a claim for intentional infliction of emotional distress ("IIED"). For the reasons stated below, Defendant's motion to dismiss is respectfully denied.

I. Background*fn1

Plaintiff Bryan Zudeima ("Zudeima" or "Plaintiff") was formerly employed by Defendant Raymond Christopher, Inc., d/b/a Cinnabon ("Cinnabon"). ¶ 1. Plaintiff alleges that he was "harassed based on his gender" while working at Cinnabon's Chicago Ridge Mall location. ¶ 7. Between September 18 and October 2, 2009, Jonathan Ackerman ("Ackerman"), Cinnabon's corporate trainer, made comments to Plaintiff about bending over; called him "sexy;" said that he would have his way with him out in the back of the shed; and commented about how he likes "rugged men." ¶ 8. Additionally, Ackerman brushed his hand across Plaintiff's face, and came up from behind him and started to rub his shoulders, all without Plaintiff's consent. Id. Plaintiff rejected Ackerman's advances and found the conduct to be offensive and unwelcomed. ¶ 9.

Plaintiff reported the alleged sexual harassment to Wendy Koslowski ("Koslowski"), Cinnabon's Vice President of Operations, "in September, 2009." ¶ 10. Plaintiff alleges that Koslowski did not take corrective action to remedy to the sexual harassment. ¶ 16. As a result of Ackerman's conduct, Plaintiff found the working conditions at the Cinnabon to be intolerable and quit on October 2, 2009. ¶ 16. On December 24, 2009, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights. ¶ 13. On December 23, 2010, the EEOC issued a Notice of Right to Sue. Ex. A to Cmplt.

In his four-count complaint, Plaintiff asserts claims under 42 U.S.C. § 2000e-2(a) for sexual harassment (Count I), constructive discharge (Count II), battery (Count III), and intentional infliction of emotional distress (Count IV).*fn2 Defendant has answered Counts I and II of the complaint [12], and has moved to dismiss Counts III and IV.

II. Legal Standard on Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F. 2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). The factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 569 n.14). In other words, the pleading must allege facts that plausibly suggest the claim asserted. Twombly, 550 U.S. at 570. "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). As noted above, the Court accepts as true all well-pleaded facts alleged by Plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

Defendant advances three principal arguments in support of its motion to dismiss. First, Defendant argues that Plaintiff's complaint establishes that Plaintiff cannot hold Cinnabon responsible for Ackerman's tortious conduct under the theory of respondeat superior. (Mot. to Dismiss [13] at 2). Second, Defendant argues that Plaintiff's common law claims of battery (Count III) and intentional infliction of emotional distress (Count IV) are preempted by the Illinois Human Rights Act which precludes civil litigation for matters related to civil rights violations. (Id. at 4). And third, Defendant argues that Plaintiff's claim for intentional infliction of emotional distress is inadequate and should be dismissed. (Id. at 4-5).

A. Vicarious Liability

The only Defendant in this lawsuit is Cinnabon; Plaintiff has not sued Ackerman, the Cinnabon employee alleged to have harassed him. Defendant claims that Plaintiff's complaint establishes that Plaintiff cannot hold Cinnabon responsible for battery and IIED under the theory of respondeat superior.

Under traditional principles of respondeat superior, an employer may be held liable for the torts of its employee if the tort is committed within the scope of employment. Krause v. Turnberry Country Club,571 F. Supp. 2d 851, 864 (N.D. Ill. 2008) (citing Pyne v. Witmer, 543 N.E. 2d 1304, 1308 (Ill. 1989)). Respondeat superior can apply even if the conduct is negligent, willful, malicious, or even criminal, so long as it is committed within the scope of employment. Id. (citing Bagent v. Blessing Care Corp.,862 N.E. 2d 985, 991 (Ill. 2007)). Conduct is considered within the scope of employment, if the conduct is "(1) of the kind the employee is employed to perform; (2) occurs substantially within the authorized time and space limits; and (3) is actuated, at least in part, by a purpose to serve the master." Id. (citing Bagent, 862 N.E.2d at 992). When the motive for the employee's tort is personal and solely for the benefit of the employee, the employer is not subject to liability. Wright v. City of Danville, 675 N.E.2d 110, 118 (Ill. 1996). If, however, the employee acts to further his employer's interests as well as his own interests, the employer may be held liable under the doctrine of respondent superior. Bagent, 862 N.E.2d at 995.

As a general matter, Illinois courts have consistently held that acts of sexual assault, misconduct, and harassment are outside the scope of employment as a matter of law. See Deloney v. Bd. of Edu. of Thornton Township, 666 N.E.2d 792, 797-98 (Ill. App. Ct. 1st Dist. 1996) (collecting cases); Krause v. Turnberry Country Club, 571 F. Supp. 2d at 864 (collecting cases); Hayes v. White, 1998 WL 142450, 1998 U.S. Dist. LEXIS 3652 (N.D. Ill. Mar. 23, 1998) ("Illinois courts have held that acts of sexual misconduct are outside the scope of employment as a matter of law."). Underlying these cases is the rationale that sexually-harassing behavior is undertaken specifically for the benefit of the employee and is "necessarily unrelated to his employer's objectives." Krause, 571 F. Supp. 2d at 864. Plaintiff's arguments that Ackerman's behavior "may have been part of [his] duties to make employees feel at ease and comfortable in the workplace" and that "Ackerman's intentions may have been good and in furtherance of [Defendant's] goal of maintaining a collegial workforce" (Pl. Mem. [18] at 6) must fail in the face of the "long line of cases applying Illinois law [that] hold that acts of sexual misconduct are outside the ...


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