United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, Senior District Judge.
All of the defendants - City of Des Plaines ("Des Plaines") and five of its officials or former officials - in this action brought against them by Des Plaines employee Lori Matula ("Matula") have joined in a motion that in part seeks dismissal from Counts III and IV of Matula's First Amended Complaint ("FAC"). With that aspect of the dismissal motion now fully briefed, it is ripe for decision.
First, Des Plaines seeks its dismissal from FAC Count IV, which seeks recovery on a state law theory of assault and battery against Des Plaines and co-defendant Police Sergeant Ronny Smith ("Smith"). Matula charges Smith with sexual assault, an allegation that Smith does not attempt to avoid on pleading grounds, while she attempts to target Des Plaines via respondeat superior principles.
Although Matula's counsel tries to call upon Judge Posner's opinion for the panel in Doe v. City of Chicago , 360 F.3d 667, 671-72 (7th Cir. 2004) for the proposition that the scope-of-employment limitation on respondeat superior claims "should be interpreted more broadly when the employee is a police officer" (id. at 671), Doe, id. at 674 actually reconfirmed the obvious principle that the substantive decision on that score is for the state courts and not the federal courts to make. And in that respect it has far more recently been reconfirmed there, after citations to an "established line of case law, " that "sexual assault by its very nature precludes a conclusion that it occurred within the employee's scope of employment under the doctrine of respondeat superior" ( Doe v. Lawrence Hall Youth Servs. , 2012 IL App (1st) 103758 ¶ 30, 966 N.E.2d 867, 877 (2012) (emphasis in original)). And that opinion went on to explain (id.) that as a matter of law sexual assault "cannot be said to have furthered defendant's business."
That does it. As the Seventh Circuit's Doe opinion reconfirms, if the sensible prohibition against vicarious responsibility for sexual assault is to be changed, it is for the Illinois state courts and not the federal courts to do so. Des Plaines is accordingly dismissed from FAC Count IV.
Matula fares no better on the motion brought by all defendants for the dismissal on preemption grounds of FAC Count III, which advances a state law intentional infliction of emotional distress theory against all defendants. Where as here that contention is based on allegations identical to those assertedly supporting Matula's sexual harassment claim, which is itself a civil rights violation encompassed within the private enforcement provision of the Illinois Human Rights Act ("Act, " 775 ILCS 5/8-111(C)), the Act bars such a separate contention of intentional infliction of emotional distress. Although the cases - both from the Illinois state courts and from federal courts applying the state law - are legion in that respect, they stem from Maksimovic v. Tsogalis , 177 Ill.2d 511, 687 N.E.2d 21 (1997) - and the careful discussion by Judge Kenneth Ripple, speaking for ...