Sims v. Connolly et al

Filing 58

MEMORANDUM Opinion, Signed by the Honorable Samuel Der-Yeghiayan on 11/13/2013. Mailed notice. (ea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RODERICK SIMS,

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Plaintiff,
v.
A-ALERT EXTERMINATING
SERVICES, INC., et al.,
Defendants.

No. 13 C 2254

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ partial motion to dismiss. For
the reasons stated below, the partial motion to dismiss Counts III, V, and VI is
granted.

BACKGROUND
Plaintiff Roderick Sims (Sims) alleges that in August 2012, he applied for a
position with Defendant A-Alert Exterminating Services, Inc. (AAE), which is a pest
extermination company. Sims contends that in August 2012, he received a call from
AAE asking him to come in and interview for a position. Sims claims that on August
30, 2012, he went to AAE for an interview where he was interviewed by Defendant
Kevin Connolly (Connolly), who is allegedly part of management at AAE. The next
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day Sims was allegedly extended a job offer. Sims contends, however, that upon
realizing Sims’ age and race at his interview, Connolly decided to pay Sims a salary
lower than he had previously promised. Sims also contends that in the afternoon on
September 4, 2012, he was listening to Connolly “expound upon the history of
extermination while sitting at the head of the table,” and that “[w]ithout any warning
or explanation, [Connolly] reached and grabbed [Sims’] right arm and violently
pulled [Sims] across the table.” (Compl. Par. 21-22). Sims contends that he was
“shocked and scared at [that] point,” but was “able to compose[] [himself] and
smile[]. . . .” (Compl. Par. 22-23). Sims also contends that after his interview on
August 30, 2012, Connolly began making statements to Sims indicating that Sims
would be earning less than allegedly promised to Sims before his interview. After
working at AAE for approximately a week, AAE allegedly terminated Sims’
employment. Sims includes in his complaint a claim alleging race discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e
et seq. (Count I), a claim alleging race discrimination in violation of 42 U.S.C. §
1981 (Count II), breach of contract claims (Count III), a claim alleging age
discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq. (Count IV), assault and battery claims (Count V), and intentional
infliction of emotional distress (IIED) claims (Count VI). Defendants now move to
dismiss the claims in Counts III, V, and VI.

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LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive
a motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[a] claim 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”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted).

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DISCUSSION

I. Breach of Contract Claims (Count III)
Defendants argue that Sims has failed to state a valid breach of contract claim
since Sims fails to allege facts that would indicate other than that Sims was an at-will
employee. Under Illinois law, “an at-will employee may be discharged for any
reason or no reason.” Lucas v. County of Cook, 987 N.E.2d 56, 68 (Ill. App. Ct.
2013)(internal quotations omitted)(quoting Turner v. Memorial Medical Center, 911
N.E.2d 369 (Ill. 2009)); see also Swenson v. Salient Management Co., 2013 WL
4401323, at *2-3 (N.D. Ill. 2013)(quoting Duldulao v. Saint Mary of Nazareth Hosp.
Ctr., 505 N.E.2d 314, 318 (Ill. 1987) for proposition that “employment at will is
‘only a presumption that a hiring without a fixed term is at will . . . which can be
overcome by demonstrating that the parties contracted otherwise’”). In the instant
action, Sims alleges that he applied for an “exterminating job position opening of
technician.” (Compl. Par. 6). Such allegations do not suggest that a formal contract
would have been prepared for such a position. Nor does Sims allege that the parties
signed any formal employment contract. Sims’ allegations suggest only that he was
an at-will employee and that Defendants owed no contractual obligations to Sims
regarding his employment. Therefore, Defendants’ motion to dismiss the breach of
contract claims (Count III) is granted.

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II. Assault and Battery Claims (Count V)
Defendants argue that Sims fails to allege sufficient facts to state valid assault
and battery claims. For a claim of battery a plaintiff must establish: (1) that the
defendant made harmful or offensive contact with the plaintiff, and (2) that the
defendant “intend[ed] to cause a harmful or offensive contact.” Bakes v. St. Alexius
Medical Center, 955 N.E.2d 78, 85-86 (Ill. App. Ct. 2011). Defendants argue that
Sims has not alleged facts that suggest that he was harmed when Connolly allegedly
grabbed him. Defendants also point out that Sims acknowledges in his complaint
that after the alleged contact by Connolly, Sims was able to smile. However, a
battery claim may be premised on an offensive contact, not just harmful contact. Id.
Sims alleges that Connolly unexpectedly grabbed Sims’ right arm. (Compl. Par. 22).
There is no indication that there was any contact that involved a confrontation or
argument or that it was anything other than a normal social interaction at a meeting.
The mere fact that Sims claims now that he was shocked, does not mean that he
suffered a battery based on the facts presented by Sims. Also, Sims contends that he
composed himself and smiled, suggests that he did not suffer a battery. The
allegations in the complaint also indicate further employment interactions between
Sims and Connolly. Therefore, Defendants’ motion to dismiss the assault and
battery claims (Count V) are granted.

III. IIED Claims (Count VI)
Defendants argue that Sims fails to allege sufficient facts to state a valid IIED
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claim. For an IIED claim brought under Illinois law, a plaintiff must establish: (1)
that “the defendants’ conduct was extreme and outrageous,” (2) that “the defendants
knew that there was a high probability that their conduct would cause severe
emotional distress,” and (3) that “the conduct in fact caused severe emotional
distress.” Swearnigen-El v. Cook County Sheriff’s Dept., 602 F.3d 852, 863-64 (7th
Cir. 2010). Defendants argue that Sims has failed to allege conduct that would
suggest extreme and outrageous conduct. Extreme and outrageous conduct is defined
as conduct that is “so extreme as to go beyond all possible bounds of decency, and to
be regarded as intolerable in a civilized community.” Id. (internal quotations
omitted)(quoting Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992). In
the instant action, Sims merely alleges that on one occasion Connolly reached out and
grabbed Sims. Sims does not allege any physical harm as a result of the conduct. As
the court indicated earlier, the allegations by Sims do not reflect battery and that
there is no indication that there was any contact that involved a confrontation or
argument or that it was anything other than a normal social interaction at a meeting.
Even when viewing the allegations in a light most favorable to Sims, such conduct
would not qualify as extreme misconduct that could be characterized as being beyond
all bounds of decency that cannot be tolerated in a civilized society. Nor does Sims
allege any other conduct by Defendants that could conceivably constitute extreme and
outrageous conduct. Sims has thus failed to allege facts that suggest extreme and
outrageous conduct. Therefore, Defendants’ motion to dismiss the IIED claims
(Count VI) is granted.
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CONCLUSION
Based on the foregoing analysis, Defendants’ motion to dismiss the breach of
contract claims (Count V), the IIED claims (Count VI), and the assault and battery
claims (Count V) is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: November 13, 2013

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