United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge
Gregory Jackson (“Plaintiff”), a former conductor
for Defendant BNSF Railway Company (“BNSF” or
“Defendant”), alleges multiple unlawful
employment practices on the part of his former employer.
Compl. . As it relates to the present motion, Plaintiff
claims liability against Defendant under the Federal
Employers' Liability Act (“FELA”), 45 U.S.C.
§ 51 et seq., for injuries sustained as a
result of a physical altercation with Plaintiff's former
co-worker, Roy Nicholas (“Nicholas”).
Id. On July 5, 2016, Defendant filed a motion to
dismiss Plaintiff's FELA claim on the grounds that
Plaintiff fails to state a claim for which relief can be
granted. Def.'s Mot. Dismiss . For the reasons
explained below, Defendant's motion is granted.
February 26, 2015, Plaintiff was working as a conductor
aboard a Metra commuter train operating between Chicago and
Aurora, Illinois. Compl.  ¶ 11. Plaintiff carpooled
to the Aurora train station for the start of his shift with
Nicholas, a fellow BNSF conductor. Id. ¶ 13.
While Plaintiff's complaint lacks sufficient detail to
form a complete picture of the altercation between Plaintiff
and Nicholas, it generally alleges that sometime around 6:00
a.m., shortly after arriving at the train station, Nicholas
“asked for a radio check for the engineer.”
Id. ¶ 14. Plaintiff told Nicholas that
“the engineer had arrived and was heading toward the
train, ” to which Nicholas replied that Plaintiff did
not “know what he was talking about.”
Id. ¶ 15.
alleges that at that point, Nicholas began a “verbal
assault.” Id. According to Plaintiff, Nicholas
then punched Plaintiff twice in the face, causing him to fall
to the ground. Id. ¶ 16. Plaintiff sustained
contusions to his face, jaw, and eye, shattered his
eyeglasses, and broke his watch. Id. Although
Defendant does not stipulate to the exact number of punches
or the nature of Plaintiff's injuries, it concedes the
existence of a physical assault of Plaintiff by Nicholas.
Def.'s Answer  ¶ 16.
24, 2016, Plaintiff filed a seven-count complaint against
Defendant. Compl. . In Count I-the subject of this
decision-Plaintiff alleges that Defendant is liable under the
FELA for his injuries from Nicholas'
assault. Id. ¶¶ 11-19.
Plaintiff asserts that he suffered “serious and
permanent injuries to his head and face” which were
caused, in whole or in part, “by the negligent and
intentional acts” of Nicholas and Defendant.
Id. ¶¶ 17-18. Defendant denies liability
for any wrongdoing. Def.'s Answer  ¶ 18.
purpose of a Rule 12(b)(6) motion “is not to decide the
merits of the case.” Coleman v. Depke, No.
14-CV-02015, 2014 WL 6563814, at *1 (N.D. Ill. Nov. 20,
2014). Rather, a motion to dismiss “challenges the
sufficiency of the complaint for failure to state a claim
upon which relief may be granted.” Gen. Elec.
Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,
1080 (7th Cir. 1997). To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). That is, the allegations must raise
the possibility of relief above the “speculative
level.” E.E.O.C. v. Concentra Health Servs.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007).
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.” Iqbal, 556 U.S. at 678. The
plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. Where a complaint
“pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Twombly, 550 U.S. at 577).
whether a complaint states a plausible claim for relief is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. In making this
determination, the Court accepts all well-pleaded allegations
in the complaint as true and draws all reasonable inferences
in favor of Plaintiff. Id.
first argues that Count I fails on its face because under the
FELA, an employer is responsible only for negligent conduct
and cannot be liable for intentional torts. Def.'s Mot.
Dismiss  1, 3-4. Defendant argues that, by
Plaintiff's own admission, his injuries were caused by
“the negligent and intentional acts of
Nicholas.” Id. at 2 (emphasis in original)
(citing Compl.  ¶ 18). Additionally, Defendant
asserts that, to support employer liability, an
employee's negligent acts must either be foreseeable or
occur within the course of employment. Id. at 4-8.
Defendant contends that Count I fails to properly plead a
claim for either vicarious or direct liability on the part of
BNSF. Id. This Court addresses both issues in turn.
Recovery For Intentional Torts Under The FELA
preliminary matter, the Court must assess Defendant's
claim that, as a matter of law, Plaintiff cannot state a FELA
cause of action for the intentional tort of a co-worker.