Jackson v. BNSF Railway Company
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 10/18/2016. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 16-cv-5518
Judge John Robert Blakey
BNSF RAILWAY COMPANY,
MEMORANDUM OPINION AND ORDER
Plaintiff 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.
On 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.
Plaintiff 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.
On May 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. 1 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
Plaintiff’s other counts allege violations of the Federal Rail Safety Act, 42 U.S.C. § 20101, et seq.;
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; Americans With Disabilities Act, 42 U.S.C. §
12101, et seq.; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. None of
Plaintiff’s other counts are the subject of Defendant’s Motion to Dismiss. Therefore, they will not be
acts” of Nicholas and Defendant. Id. ¶¶ 17-18. Defendant denies liability for any
wrongdoing. Def.’s Answer  ¶ 18.
The 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).
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.” 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.
Determining 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.
Discussion 2, 3
Defendant 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
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.
Plaintiff argues that Defendant’s motion is premature because Defendant attached extrinsic
materials to its Answer to Plaintiff’s Complaint. Pl.’s Resp. Def.’s Mot. Dismiss  2. Plaintiff,
however, improperly conflates two separate issues: (1) permissibly attaching additional materials to
a responsive pleading in order to prove or disprove certain allegations, see Cagan v. Intervest
Midwest Real Estate Corp., 774 F. Supp. 1089, 1091 n.2 (N.D. Ill. 1991); Fed. R. Civ. P. 10(c); and (2)
impermissibly presenting additional materials outside of the complaint to support a Rule 12(b)(6)
motion to dismiss. See Dawson v. W. & H. Voortman, Ltd., 853 F. Supp. 1038, 1042-43 (N.D. Ill.
1994). Here, Defendant’s motion considers only the Complaint and does not reference any
documents attached to its Answer.
Defendant claims that Plaintiff improperly attempted to amend Count I by asserting new facts in
his response to Defendant’s Motion to Dismiss. Def.’s Reply  5. The Seventh Circuit has
consistently held that a plaintiff may not use responsive briefs as a vehicle for amending the
complaint. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Accordingly,
the Court limits its analysis to the factual allegations set forth in Plaintiff’s Complaint.
Recovery For Intentional Torts Under The FELA
As a 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. Defendant grounds its argument on the text of the FELA statute:
Every common carrier by railroad . . . shall be liable in damages to any
person suffering injury while he is employed by such carrier . . . for
such injury or death resulting in whole or in part from the negligence
of any of the officers, agents, or employees of such carrier . . . .
45 U.S.C. § 51 (emphasis added).
Defendant’s reading, however, fails to recognize controlling precedent and the
remedial purposes for which the FELA was enacted. Congress designed the FELA
to “stimulate carriers to greater diligence for the safety of their employees.” Id.
Therefore, courts have “liberally construed [the FELA’s] requirements in favor of
plaintiffs because FELA was designed for the benefit and protection of railroad
employees.” Sowards v. Chesapeake & O. Ry. Co., 580 F.2d 713, 714 (4th Cir. 1978);
CSX Transp., Inc. v. McBride, 564 U.S. 685, 692 (2011) (noting “a relaxed standard
of causation applies under FELA”) (quoting Consol. Rail Corp. v. Gottshall, 512 U.S.
532, 542-43 (1994)); Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557,
562 (1987) (recognizing the FELA as “a broad remedial statute” and adopting a
“standard of liberal construction in order to accomplish Congress’ objects”) (internal
quotations omitted); Crompton v. BNSF Ry. Co., 745 F.3d 292, 296 (7th Cir. 2014)
(“The FELA . . . should be construed liberally to effectuate congressional intent.”).
Thus, the applicability of the FELA “to (at least some) intentional torts” is
well settled. Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807, 818 (7th Cir. 1985).
Under Lancaster’s statutory construction, a plaintiff suing under the FELA “may
prevail in an intentional tort case by showing either that the intentional tort was
committed in furtherance of the employer’s objectives or that the employer was
negligent in hiring, supervising, or failing to fire the employee.” Id. In other words,
a plaintiff can establish an employer’s liability for the intentional acts of its
employees using one of two theories: (1) vicarious liability; or (2) direct negligence.
Therefore, the Court rejects Defendant’s argument that Count I must be
summarily dismissed on the grounds that the FELA does not compensate for any
intentional torts. Instead, pursuant to Lancaster, the probative inquiry is whether
Plaintiff’s allegations are sufficient to allow the Court to draw the reasonable
inference that Defendant is liable for Nicholas’ intentional assault on the basis of
either vicarious liability or direct negligence in hiring, supervising, or failing to fire
Vicarious liability may extend to FELA employers under the traditional
doctrine of respondeat superior. That is, an employer “may be vicariously liable for
its employee’s negligence (or intentional tort) committed within the course or scope
of employment.” Sobieski v. Ispat Island, Inc., 413 F.3d 628, 631-32 (7th Cir. 2005).
Courts have defined “course of employment” to require a plaintiff to show “that the
employee’s tort” was in “furtherance of the employer’s business,” such as where the
“employee assaults the plaintiff to collect a debt owed the employer.” Lancaster,
773 F.2d at 817. In contrast, when an employee assaults another employee “for the
sole purpose of satisfying his own temper or spite, the employer cannot be held
liable for such a wanton act.” Sowards, 580 F.2d at 715 (citing Davis v. Green, 260
U.S. 349, 351-52 (1922)); Higgins v. Metro-N. R. Co., 318 F.3d 422, 426 (2d Cir.
2003) (“[U]nder the doctrine of respondeat superior . . . no liability attaches when an
employee acts entirely upon his own impulse, for his own amusement, and for no
purpose of or benefit to the defendant employer.”) (internal quotation omitted).
Ultimately, “regardless of how individual courts have stated the tests, in order for
an activity to qualify as being within the scope of employment, it must be a
necessary incident of the day’s work or be essential to the performance of the work.”
Sobieski, 413 F.3d at 634.
In Sobieski, the plaintiff, a crewman on a merchant vessel, was sitting in a
chair when another crewman snuck up behind him and “cracked” the plaintiff’s
neck “chiropractor style.” Id. at 629-30. The plaintiff sued his employer under the
Jones Act, alleging that he suffered ongoing physical problems as a result of the
unrequested neck traction. 4 Id. at 630.
The district court granted summary
judgment in favor of the employer. Id. On appeal, the Seventh Circuit affirmed
that the plaintiff was required to show that the injuring crewman “acted in
furtherance of the ship’s business before [the employer] may be held vicariously
liable for his actions.” Id. at 634. According to the court, the plaintiff failed this
Congress enacted the Jones Act “to create a federal negligence claim for seamen injured in the
course of employment.” Sobieski, 413 F.3d at 631. By its terms, the act extends the protections of the
FELA to seamen; thus, “FELA caselaw is broadly applicable in the Jones Act context” and vice versa.
test. The crewman’s official duties “were to work on deck, steer the ship, and act as
a lookout”; he possessed “no express authorization to crack anyone’s neck, nor was
such neck-tractioning part of his official duties.” Id. The plaintiff argued that,
despite these facts, the injuring crewman’s “subjective belief that he was helping
[the plaintiff]” brought his neck-tractioning within the scope of employment
“because it was somehow beneficial to the operation of the ship.” Id. The court
disagreed, stating that “to the extent [the injuring employee’s] subjective beliefs
may be relevant to the scope of employment inquiry, those beliefs should be
reasonable and the resulting action somehow related to the ship’s business.” Id.
Here, as in Sobieski, Plaintiff fails to allege any facts demonstrating that
Nicholas acted in furtherance of Defendant’s business at the time of his assault.
Plaintiff’s Complaint is silent regarding Nicholas’ official duties, but it cannot be
reasonably inferred from the record here that punching co-workers in the face falls
within a conductor’s job description. The complaint is equally devoid of allegations
that Defendant “knew of or condoned” Nicholas’ actions, or that Nicholas reasonably
believed his act furthered Defendant’s mission. See id. Instead, as in Sobieski,
Nicholas’ assault “clearly falls within that category of acts commonly held to be
outside the scope of employment—those undertaken by an employee for a private
purpose and having no causal relationship with his employment.” Id. at 634-35.
Contrary to the present controversy, FELA cases that do find vicarious
liability for intentional assaults typically involve incidents between a supervisor
and a subordinate. For example, in Lancaster, a railroad worker brought a FELA
claim against the railroad after suffering multiple assaults at the hands of several
unruly supervisors. 773 F.2d at 810. Specifically, Lachrone, a “short-tempered”
foreman, became angry at Lancaster and several other employees who he thought
were “soldiering on the job.” Id. at 811. After flipping over a table and smashing a
bench, Lachrone screamed at Lancaster and menacingly shook a broom handle in
his face. Id.
Over the next few years, Lancaster suffered additional assaults from other
Eventually, Lancaster found himself working under Tynan,
another “hot-tempered” foreman, who one day became enraged at Lancaster for
delivering papers to him that were “folded” (apparently against his request). Id.
Enraged, Tynan charged at Lancaster with a pickax handle in hand and struck the
doorframe over Lancaster’s head. Id. This incident, on top of the previous conflicts,
sent Lancaster into a mental tailspin.
Two weeks later, a psychiatrist
diagnosed Lancaster as schizophrenic. Id. Lancaster never returned to work. Id.
A trial court awarded Lancaster $850,000 in damages.
Id. at 810.
appeal, the railroad asserted that the suit should be dismissed on the grounds that
the supervisors’ misconduct occurred outside the scope of their employment. Id. at
812. The Seventh Circuit rejected the railroad’s argument, finding “the railroad’s
liability on the basis of respondeat superior to be plain with regard to Lachrone and
Tynan.” Id. at 819. According to the court,
[B]oth [Lachrone and Tynan] assaulted Lancaster out of exasperation
with Lancaster’s performance of his job. If a supervisor pursues his
official duties with an excess of zeal, the employer is liable for the torts
resulting from that excess; they are in furtherance of the employer’s
The court clarified, however, that “when the motive for the employee’s
intentional tort is personal—which is to say unrelated to his employer’s objectives
and therefore not in furtherance of those objectives—the employer is not liable
under a theory of respondeat superior.” Id. at 819-20 (emphasis added).
The assault alleged here, unlike in Lancaster, did not occur between a
supervisor and a subordinate employee; both Plaintiff and Nicholas were conductors
at the time of the incident.
As a result, Lancaster’s rationale for holding the
railroad liable for a supervisor’s misconduct does not apply. Plaintiff does not allege
that Nicholas acted “out of exasperation” with Plaintiff’s job performance, nor does
he assert that Nicholas was pursuing his official duties “with an excess of zeal.” Id.
Rather, the only reasonable inference to be drawn from Plaintiff’s
Complaint is that Nicholas assaulted Plaintiff “for the sole purpose of satisfying his
own temper or spite,” Sowards, 580 F.2d at 715; such a motive was “unrelated to his
employer’s objectives and therefore not in furtherance of those objectives.”
Lancaster, 773 F.2d at 819. As a result, Plaintiff fails to state a plausible claim for
relief under a theory of vicarious liability.
Liability may also extend to FELA employers based upon a theory of direct
negligence. See Lancaster, 773 F.2d at 818 (“[D]irect negligence by the employer . . .
[is] a basis that is independent of respondeat superior.”). Unlike vicarious liability,
this theory does not require that an employee act in furtherance of his employer’s
objectives; however, it does require proof of the railroad’s negligence. Id. at 820.
That is, “if the employer could ‘reasonably foresee’ that the plaintiff would be
assaulted, it is negligence to fail to prevent the assault whether or not the assault
was intentional or criminal misconduct.”
Sowards, 580 F.2d at 715.
reasonable foreseeability of harm is an essential ingredient, the fact that “the
foreseeable danger was from intentional or criminal misconduct is irrelevant;” an
employer nonetheless has “a duty to make reasonable provision against it.”
Harrison v. Missouri Pac. R. Co., 372 U.S. 248, 249 (1963).
Returning to Lancaster, while the Seventh Circuit found the railroad’s
vicarious liability for the acts of Lachrone and Tynan “to be plain,” the issue was
more difficult with regard to Funderburk, another supervising foreman. 773 F.2d
at 819. Funderburk, against Lancaster’s protests, “goosed” him, pulled his hair, hit
him on the arm, and “twice stuck his hand down the back of Lancaster’s pants—
once squeezing a buttock, the other time sticking his finger into Lancaster’s anus.”
Id. at 811. The court found that such actions were “not related to Funderburk’s
supervisory duties” but rather “the pure expression of perversion, infantilism, bad
taste, or some combination of these things.” Id. at 819. Nevertheless, the court
upheld the railroad’s liability on the theory of direct negligence, in other words,
“that the railroad had information about [Funderburk’s] propensities, and failed to
act on the information.” Id. at 820.
Similarly, in Harrison, a section foreman brought a FELA suit against the
railroad in Illinois state court for injuries resulting from an assault by his section
hand. 372 U.S. at 248. Although a jury awarded the foreman damages, the trial
judge granted the railroad’s motion for judgment notwithstanding the verdict. The
Illinois Appellate Court affirmed, holding that “there was no evidence sufficient to
support a finding that the railroad knew or should have known prior to the assault
of propensities of the assailant.” Id. Reversing the lower courts, the Supreme Court
pointed to evidence that the plaintiff’s immediate superior warned the plaintiff that
the section hand was “a bad actor and a trouble maker.” Id. Additionally, the
plaintiff complained to his supervisor “several times” about the assailant’s
misconduct and refusal to follow orders. Id. According to the Court, such evidence
constituted sufficient facts to support the jury’s finding of foreseeability. Id.
Here, unlike in Lancaster and Harrison, Plaintiff does not allege any facts
indicating Nicholas’ known propensity for, or history of, violence.
Nor does the
Plaintiff allege circumstances, such as previous complaints involving Nicholas’
conduct, from which the railroad should have reasonably foreseen the occurrence of
the assault. Therefore, Plaintiff fails to state a plausible claim for relief under a
theory of direct negligence.
For the reasons explained above, Defendant’s Motion to Dismiss Count I 
is granted. Counts II through VII of Plaintiff’s Complaint  stand.
Date: October 18, 2016
John Robert Blakey
United States District Judge
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