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Volling v. Squad

United States District Court, N.D. Illinois, Eastern Division

December 3, 2013


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For Shannon Volling, Julie Banser, Plaintiffs: Margaret Megan O'Malley, LEAD ATTORNEY, John Paul Madden, Lindsey Erin Goldberg, O'Malley & Madden, P.C., Chicago, IL.

For April Soulak, Plaintiff: Margaret Megan O'Malley, LEAD ATTORNEY, O'Malley & Madden, P.C., Chicago, IL.

For Antioch Rescue Squad, Defendant: Martin K. LaPointe, LEAD ATTORNEY, Susan Marie Troester, LaPointe Law, P.C., Northbrook, IL.

For Metro Paramedic Services, Inc., Defendant: Steven Michael Hartmann, LEAD ATTORNEY, Rachel Elisabeth Anne Atterberry, Freeborn & Peters, Chicago, IL.


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John J. Tharp, Jr., United States District Judge.

Plaintiffs Sharon Volling, Julie Banser, and April Soulak allege that they were subjected to sexual harassment, sex discrimination, retaliation, and assault and battery at the hands of co-workers and supervisors while they worked for the Antioch Rescue Squad, a private, non-profit provider of emergency medical and ambulance services in the Village of Antioch, Illinois. The squad is jointly operated and staffed by the two defendants. In an earlier decision, with which the Court assumes the reader's familiarity, the Court dismissed the counts brought under 42 U.S.C. § 1983 with prejudice and their state-law counts, alleging negligent retention and supervision, without prejudice. In the Third Amended Complaint (Dkt. # 80), the plaintiffs re-plead their negligence counts and add counts of assault and battery; they also reprise their allegations of sexual harassment, sex discrimination, and retaliation under Title VII and the Illinois Human Rights Act (" IHRA" ). Only plaintiff Banser brings claims against ARS, the other plaintiffs having satisfied their claims pursuant to an offer of judgment; with this distinction in mind, the Court will refer to the " plaintiffs" collectively throughout this decision. Each defendant now moves to dismiss the Third Amended Complaint; Metro furthers moves to strike what it claims are inflammatory and irrelevant allegations. The motions are granted in part and denied in part for the reasons set forth below.


A motion under Rule 12(b)(6) challenges a complaint's sufficiency to state a claim upon which relief may be granted. Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). To survive a motion to dismiss, a complaint must set forth enough factual detail give the defendant fair notice of the claims and the grounds upon which they rest, and the allegations must add up to a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell A. v. Twombly, 550 U.S. 544, 545, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Engel v. Buchan, 710 F.3d 698, 709 (7th Cir. 2013). For purposes of the motions to dismiss, " [a]ll well-pleaded allegations in the plaintiffs' complaint are accepted as true, and all reasonable inferences are drawn in their favor." Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013). The Court will not attempt to summarize the factual allegations in the 223-paragraph Third Amended Complaint, and instead will refer the plaintiffs' specific allegations as necessary to address the defendants' arguments.

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I. State-Law Tort Claims

In Counts XIII(a) and XIII(b),[1] XIV, XV, the plaintiffs allege that the defendants were negligent because they knew of but failed to prevent or stop misconduct by their employees--including assault, battery, and harassment--that caused harm to the plaintiffs and others, and retained and failed to discipline the " unfit" employees after becoming aware of their misconduct. The defendants challenge the negligence counts on several grounds: lack of standing, preemption, timeliness, and (for lack of a better term) double-pleading. The Third Amended Complaint also adds state-law counts of assault and battery (Counts XVI-XVIII [2]) premised on the plaintiffs' allegations that the defendants' employees, including Kyle Shouse and Chris McBrady, grabbed, touched, groped, slapped, or otherwise offensively touched them, and placed them in reasonable fear of imminent offensive contact. The defendants move to dismiss these counts because, they argue: (1) they cannot be held vicariously liable for conduct outside of the scope of employment; and (2) the claims are preempted.

A. Pleading Requirements

Although the plaintiffs have divided their allegations into separate counts corresponding to various legal theories, and the defendants attack the complaint count by count, it bears noting at the outset that this common approach to litigating motions to dismiss tends to obscure the critical difference between " claims," which explain the plaintiff's grievance and demand relief, and " counts," which describe legal theories by which those facts purportedly give rise to liability and damages. See NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992). Pleading in counts, although common and frequently helpful, is not required unless " doing so would promote clarity" as to " each claim founded on a separate transaction or occurrence. " See F. R. Civ. P. 10(b) (emphasis added); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011). Indeed, it is axiomatic that a plaintiff is not required to plead legal theories, period. See Jajeh v. County of Cook, 678 F.3d 560, 567 (7th Cir. 2012) (hostile work environment claim pleaded where complaint never used that term). Nothing in Twombly or Iqbal changes that tenet: those cases " do not undermine the principle that plaintiffs in federal courts are not required to plead legal theories." Hatmaker v. Memorial Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); Alioto, 651 F.3d at 721 (" [W]e have stated repeatedly (and frequently) that a complaint need not plead legal theories, which can be learned during discovery." ).

That is why a motion to dismiss should be filed (and granted) when the facts in the plaintiff's complaint, taken as true, do not state a plausible claim under any " recognized legal theory." See Richards v. Mitcheff, 696 F.3d 635, 638 (7th Cir. 2012). That is true whether or not the plaintiff includes her theories of relief in the complaint; because plaintiffs are not required to do so, it follows that specifying an incorrect theory is not fatal. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). " Identifying legal theories may assist defendants and the court in seeing how the plaintiff hopes to prevail, but this organization does not track the idea of 'claim for relief' in the federal rules." NAACP, 978 F.2d at 292.

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The import of all this is that " [o]ne set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate." Id. And in this case, when it comes to various state-law " claims" that the defendants seek to vanquish in their motions to dismiss, the Court notes that these " claims" are all premised on the same core set of facts, as evidenced by the integration of all of the factual allegations into every count of the complaint. Thus, although it is true that a count based on a negligence theory is barred if preempted, as the defendants argue here, that does not mean that the facts on which that theory of liability is based fail to state a claim upon which relief can be granted. If there is another theory under which the same set of facts would entitle the plaintiff to relief, then dismissal of the complaint is improper. That is why attacking " counts" as if they were " claims" may confuse, rather than clarify; as here, litigants often devote substantial resources to disposing of putative " claims" which, at the motion to dismiss stage, are little more than non-dispositive labels subject to change as allegations yield to evidence over the course of discovery.

The Court previously ruled that Section 1983 did not provide a viable theory of relief because the defendants could not be considered state actors, but that Title VII and the IHRA provides a plausible theory of liability for sex discrimination, sexual harassment, and/or retaliation, based on essentially the same facts. The Court further held that the IHRA preempted the common-law claims to the extent they overlapped with the statutory claims, but left open the possibility that other types of misconduct ( i.e., non-gender-based) might provide a plausible basis for liability in tort. The tort theories the plaintiffs have advanced in the Third Amended Complaint are the focus of the defendants' present motions. Although, as will be seen, plaintiffs' negligence theories are not viable as to plaintiff Volling, the conduct on which those claims are based remains a plausible source of liability. ...

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