Opinion
Case No. 01-4307-JPG
February 13, 2002
ORDER
This matter is before the Court on Defendant Ben Latifi's Motion to Dismiss. (Doc. No. 4). Plaintiff, Robert Hilliard, has responded to the motion. (Doc. No. 17). For the reasons stated below, this Court will grant Defendant Latifi's Motion to Dismiss (Doc. No. 4).
I. STANDARD OF REVIEW
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations as true and draws all reasonable inferences in favor of the plaintiff. Holman v. Indiana, 211 F.3d 399, 402 (7th Cir.), cert. denied, 121 S.Ct. 191 (2000). The Court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the complaint. Id. at 405.
II. PLAINTIFF'S ALLEGATIONS
In the Complaint, Robert Hilliard alleges that he was an employee of Defendant, Denny's Inc. (a restaurant chain), at all times relevant until he resigned sometime in early 2001. Complaint, ¶ 3. Specifically, Hilliard alleges that in January 1999 he was hired as a busboy at Denny's Carbondale, Illinois restaurant. Id., ¶ 9. Hilliard alleges that he was 17 years-old at the time that he was hired. Id. Hilliard alleges that, at all relevant times, Ben Latifi was the general manager and highest ranking supervisor at the Denny's Carbondale restaurant. Id., ¶¶ 6, 10.
Hilliard alleges that, in April 2000, his sixteen-year-old sister, Becky Hilliard ("Becky"), was hired as a waitress at the Carbondale Denny's. Id., ¶ 12. Hilliard alleges that, at this time, Denny's also employed Gary Cox. Id., ¶ 13. According to the Complaint, Cox "made sexually offensive comments and gestures at work" . . . "in full view of supervisors and other employees." Id., ¶¶ 14, 15.
Plaintiff alleges that Latifi also engaged in offensive conduct. Specifically, Hilliard alleges that Latifi "routinely slapped waitresses, including Becky, on the butt, touched their breast and breast areas, played with their blouses under the pretense of adjusting their uniforms, placed his hand in their apron pockets near private areas under the pretense of placing candy in their pockets." Id., ¶ 19.
Allegedly, Hilliard complained about the sexually hostile environment to managers, including Latifi. Id., ¶ 16. Plaintiff alleges that as a result of his complaints he suffered several acts of retaliation, including a reduction in hours, denial of a promotion and threats of being fired. Id., ¶ 22.
The Complaint has three counts. Count I asserts a retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, against Latifi, as general manager and as an individual, and against Denny's, apparently under a respondeat superior theory. Count II asserts a claim for negligent retention and supervision against Latifi, alleging that Latifi should not have hired Cox and / or should have better supervised Cox. Count III asserts a claim for negligent retention and supervision against Denny's, alleging that Denny's should not have hired Latifi and / or should have better supervised Latifi.
III. PARTIES' POSITIONS
Defendant Latifi has moved that this Court dismiss Counts I and II as to him. If his motion is granted, the claim against Denny's in Count I will remain. Because Latifi is the only defendant named in Count II, if the motion is granted, Count II will be dismissed in its entirety. The instant motion does not address Count III, which asserts a claim only against Denny's.
A. COUNT I
Defendant argues that Count I should be dismissed as to Latifi because individuals cannot be held personally liable under Title VII. Defendant's Memorandum in Support, p. 3 (Doc. No. 5). Defendant relies on Sattar v. Motorola, 138 F.3d 1164 (7th Cir. 1998) and Williams v. Banning, 72 F.3d 552 (7th Cir. 1995) for support of that proposition. Id.
In this case, Defendant correctly notes that Plaintiff has not alleged that Latifi was his "employer." Defendant's Memorandum, p. 3. Rather, Defendant notes, Plaintiff has alleged only that Latifi was Plaintiff's supervisor. Id.
Plaintiff concedes that a supervisor cannot be held individually liable under Title VII. Plaintiff's Response, p. 1 (Doc. No. 17). Plaintiff contends, however, that Latifi can still be sued as an "agent" of Denny's. Id. at 1-2. Plaintiff directs this Court's attention to the language of Title VII, which provides that "[t]he term `employer' means a person engaged in an industry affecting commerce . . . and any agent of such person." 42 U.S.C. § 2000e(b). Plaintiff also directs the Court's attention to Paroline v. Unisys, 879 F.2d 100, 104 (4th Cir. 1989) and Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993). Plaintiff, however, fails to tell the Court how these sources support the continuance of a the Title VII suit against Latifi.
B. COUNT II
Defendant argues that Count II should be dismissed because this Court lacks subject matter jurisdiction over the claim asserted in that Count. In Count II, Plaintiff has asserted negligent retention and supervision claims against Latifi. Defendant argues that Section 5/8-111 of the Illinois Human Rights Act, 775 ILCS 5/8-101 et seq. ("IHRA"), preempts state common law tort claims where the tort claims are "inextricably linked" to claimed civil rights violations. Defendant relies on Geise v. Phoenix Company of Chicago, Inc., 639 N.E.2d 1273, 1277, 159 Ill.2d 507, 516 (1994), where the Court found the plaintiff's negligent retention and negligent hiring claims to be "inextricably linked" to the plaintiff's sexual harassment claims and, thus, preempted by the IHRA.
Defendant argues that in this case, "[t]he facts providing the basis for Plaintiff's tort claims against Latifi are, in essence, the same as those plead in support of his claimed retaliation." Defendant's Memorandum, p. 5.
Plaintiff concedes that "[i]f a tort claim filed by a plaintiff is in essence one that seeks redress for a civil rights action defined by the [IHRA], this Court will lack jurisdiction to adjudicate the claim." Plaintiff's Response, p. 2. Plaintiff argues, however, that he has stated a tort claim independent of the IHRA. Id. at 4. Plaintiff contends that Latifi had a general duty to supervise Cox so as to provide a "safe environment" for minor employees, such as Plaintiff. Id. at 3. Plaintiff argues that because this general duty arose independent of the IHRA, the tort claims based on that duty are not preempted by the IHRA. Id.
IV. DISCUSSION
A. COUNT I
In Williams v. Banning, 72 F.3d 552, 552 (7th Cir. 1995), the plaintiff filed a Title VII action solely against his former supervisor, alleging sexual harassment in the workplace. The district court dismissed the defendant under Rule 12(b)(6) because a supervisor, in his individual capacity, does not fall within Title VII's definition of employer. Id. at 555. The Seventh Circuit affirmed. Id. at 552, 555.
In Williams, the Seventh Circuit acknowledged that Title VII's definition of "employer" includes "agents" but stated that the definition "is simply an expression of traditional respondeat superior liability and imposes no individual liability on agents." Id. at 553 (citing EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1279-82 (7th Cir. 1995)); see also Sattar v. Motorola, 138 F.3d 1164, 1168 (7th Cir. 1998) ("It is by now well established in this court that a `supervisor does not, in his individual capacity, fall within Title VII's definition of employer'") quoting Williams, 72 F.3d at 555.
In this case, Plaintiff concedes that Latifi may not be held individually liable under Title VII. Nevertheless, Plaintiff urges that Count I not be dismissed as to Latifi in his "official capacity" as general manager of Denny's Carbondale restaurant. Plaintiff's Response, p. 2. Plaintiff, however, has failed to provide the Court with any reason for continuing the "official capacity" suit against Latifi.
Plaintiff directs this Court's attention to two cases. First, Plaintiff cites Paroline v. Unisys, 879 F.2d 100, 104 (4th Cir. 1989) for the proposition that an individual supervisor does qualify as an employer under Title VII. To the extent that Paroline is inconsistent with the Seventh Circuit cases discussed above this Court must disregard it and follow Seventh Circuit precedent. Paroline, however, does not even address the distinction between a supervisor's individual capacity and official capacity that Plaintiff urges this Court to adopt. Therefore, Paroline offers no support for Plaintiff's position.
Next, Plaintiff directs this Court's attention to Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993). In Sauers, the plaintiff's original Title VII complaint named the Salt Lake County attorney as the sole defendant. Sauers, 1 F.3d at 1125. Defendant Salt Lake County argued that the original complaint did not constitute a claim against the County for the purposes of the statute of limitations. Id. The Tenth Circuit disagreed, holding that "because the suit against [the county attorney] could proceed only in his official capacity, it operated as a suit against Salt Lake County itself." Id. Sauers provides no support for Plaintiff's position in this case. Rather, Sauers supports the conclusion that this Court has reached.
This Court has concluded that any action against Latifi in his capacity as general manager is identical to the action against Denny's, which will remain even if Latifi is dismissed. The proper defendant for Plaintiff's respondeat superior or "official capacity" theory is Denny's, not Latifi. See Bryson v. Chicago State University, 96 F.3d 912, 917 (7th Cir. 1996) (a Title VII sexual harassment case where the Seventh Circuit concluded that it was inappropriate to continue an official capacity suit against an individual defendant after he had been dismissed in his individual capacity). Accordingly, the motion to dismiss Count I as to Defendant Latifi will be granted.
B. COUNT II
The Illinois Human Rights Act ("IHRA") states that "[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction on the subject of an alleged civil rights violation other than that set forth in [the] Act." Under the IHRA, sexual harassment, unlawful discrimination and retaliation against a person for opposing sexual harassment or unlawful discrimination are civil rights violations. 775 ILCS § 5/2-102(D); 775 ILCS § 5/2-102(A); 775 ILCS 5/6-101(A). Sexual harassment is defined by the Act as:
any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.775 ILCS 5/2-101(E)(3). The Illinois Supreme Court has interpreted the jurisdictional restriction of the IHRA to include state common law claims that are "inextricably linked" to sexual harassment claims. Geise v. Phoenix Company of Chicago, 159 Ill.2d 507, 203 Ill.Dec. 454, 639 N.E.2d 1273, 1277 (1994).
If an Illinois state court lacks jurisdiction to hear such a claim, so does a federal district court sitting in Illinois. Jansen v. Packaging Corp. of America, 123 F.3d 490, 493 (7th Cir. 1997); Thomas v. L'Eggs Products, Inc., 13 F. Supp.2d 806 (C.D.Ill. 1998).
In Geise, the Illinois Supreme Court held that a claim of negligent hiring and retention of an employee predicated upon the same facts as a sexual harassment claim was preempted by the IHRA. Geise, 639 N.E.2d at 1277. Accordingly, the Illinois Supreme Court affirmed the circuit court's dismissal with prejudice of the counts alleging negligent hiring and retention because these claims were inextricably linked to the sexual harassment claim. In Maksimovic v. Tsogalis, 177 Ill.2d 511, 227 Ill.Dec. 98, 687 N.E.2d 21, 23 (1997), the Illinois Supreme Court explained that in Geise, "the Act furnished the legal duty that the defendant was alleged to have breached" and that "[a]bsent the Act's prohibition of sexual harassment, the employer's hiring and retention of an employee whose conduct created a hostile work environment would not have been an actionable tort."
In this case, Plaintiff concedes that "[i]f a tort claim filed by a plaintiff is in essence one that seeks redress for a civil rights action defined by the [IHRA], this Court will lack jurisdiction to adjudicate the claim." Plaintiff's Response, p. 2. Nevertheless, Plaintiff contends that his claims for negligent supervision and retention against Defendant Latifi are independent of any duty imposed by the IHRA. Specifically, Plaintiff argues that because Latifi hired Plaintiff when Plaintiff was a minor, Latifi had a special duty (independent of the IHRA) to provide a safe work environment. Plaintiff argues that by failing to make any attempt to prevent Gary Cox's allegedly obvious sexual harassment of female co-workers, Latifi breached his duty to provide a safe work environment.
This Court finds Plaintiff's argument unpersuasive. The only "dangers" that Latifi allegedly failed to protect Plaintiff from were acts specifically prohibited by the IHRA, namely the "danger" of exposure to a hostile work environment and the "danger" of retaliation for opposing sexual harassment in the workplace.
Plaintiff alleges the following in Count II: (1) "Latifi failed to stop Cox's sexually hostile behavior," (Complaint, ¶ 27), (2) "Latifi knew or should have known that continued retention of Cox created a severe or pervasive sexually hostile environment," (Complaint, ¶ 28), and (3) "Latifi retained Gary Cox and failed to take proper action to prevent a sexually hostile work environment for employees . . . ." (Complaint, ¶ 29).
Clearly, Plaintiff's claims for negligent retention and supervision arise from the underlying allegations of sexual harassment. The claims are based on the same facts, and absent the prohibition of sexual harassment, Latifi's alleged failure to prevent sexual harassment in the workplace would not be actionable. Therefore, this Court will grant the motion to dismiss Count
II.
This decision is consistent with the interpretation that other federal courts in this circuit have given to the IHRA's preemption provision. See Jansen v. Packaging Corp. of America, 123 F.3d 490, 493 (7th Cir. 1997) (relying on Geise and holding that the plaintiff's state common law claim was preempted by the IHRA because the claim was "supported by the identical factual allegations of her Title VII claims"); Thomas v. L'Eggs Products, Inc., 13 F. Supp.2d 806, 809 (C.D.Ill. 1998) (relying on Geise and holding that, despite the fact that the plaintiff had properly alleged the elements of negligent hiring, the tort claim was preempted by the IHRA where the claim was "predicated upon the same facts as [the plaintiff's] sexual harassment claim").
V. CONCLUSION
For the reasons discussed above the Court hereby GRANTS Defendant Latifi's motion to dismiss (Doc. No. 4), in its entirety.
For clarification, in Count I, Plaintiff's Title VII claim against Defendant Denny's, Inc. remains. Count II is dismissed in its entirety. Count III remains.
All claims against Defendant Latifi have been resolved. Accordingly, Defendant Latifi is DISMISSED as a party defendant. The Clerk of the Court is DIRECTED to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.