Skiba v. Illinois Central Railroad, Co.

Filing 44

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 12/13/2018: For the reasons stated below, the Court denies Defendant's motion to dismiss 31 . [For further details see Statement]. Mailed notice(is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Mark M. Skiba,
Plaintiff,
v.
Illinois Central Railroad Company,
Defendant.

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Case No. 18 C 3381
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies Defendant’s motion to dismiss [31].
STATEMENT
Facts
The following facts as alleged in Plaintiff’s amended complaint are taken as true for
purposes of the instant motion to dismiss. Plaintiff held several positions at Illinois Central after
being hired in July 2008, and was assigned to the position of Clerk in October 2013.
Subsequently, Plaintiff’s manager directed Plaintiff to submit to a drug test pursuant to
Department of Transportation (“DOT”) regulations. Plaintiff objected, but took the test after
being told he would be suspended for insubordination if he did not. Despite having taken the
test, he was suspended for two weeks for insubordination. During his suspension, he received a
letter from Illinois Central stating that the drug-test result was positive and that his suspension
had been extended to six months. On November 20, 2013, hearings were conducted on the
insubordination and positive drug-test charges. On December 2, 2013, Doug Townsend, a
manager for Illinois Central, reviewed the hearing transcript and imposed a six-month
suspension for the positive drug test and a two-week suspension for insubordination, which were
to run consecutively.
Plaintiff was cleared to return to his Clerk position on May 9, 2014 and was advised by a
Senior Manager that prior to returning to his job, he had to submit to a “return-to-duty directobservation strip-search test” – apparently to test for drugs. Plaintiff believed he did not need to
submit to the test because his Clerk position was not DOT regulated, but he complied, and the
drug test came back negative. On May 14, 2013, Plaintiff reported to his Senior Manager for his
first day back on the job. She told him to “go back to the clinic for another DOT preemployment test, direct observation and strip search.” (Am. Compl., Dkt. # 26, ¶ 30.) Plaintiff
asked his Senior Manager why he needed to take the test again given that his job was not a DOT
safety-sensitive position. After some conversation back and forth, the senior Manager told

Plaintiff that if he did not take another test, he would be terminated. Plaintiff alleges that he
submitted to the test under protest, and the results came back negative. Plaintiff reported the
Senior Manager’s actions to the Federal Railway Administration (“FRA”), which conducted an
investigation and cited and fined Illinois Central for violating unspecified FRA and DOT
regulations.
In October 2014, Plaintiff moved within Illinois Central to a position as a material
handler, which required him to operate a forklift and inventory parts. Between October 2014
and July 2016, Plaintiff was subjected to 23 direct-observation strip-search tests even though his
position was not safety sensitive, according to DOT regulations. In addition, starting in January
2016, Plaintiff was required to undergo monthly alcohol tests. After again complaining to the
FRA, Illinois Central was cited with four violations and fined. Each time Plaintiff underwent a
strip search, he was required, in front of a male employee who was conducting the test, to pull
down his pants and underwear, raise his shirt above his chest, and turn 360 degrees so the
collector could purportedly search him for prosthetic devices. The collector then watched as
Plaintiff urinated in a cup. Plaintiff sues Illinois Central, alleging a state-law claim of intrusion
upon seclusion.
Standard
“To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough
factual information to state a claim to relief that is plausible on its face and raise a right to relief
above the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 333
(7th Cir. 2018) (citation and internal quotation marks omitted). When deciding a Rule 12(b)(6)
motion, the court accepts as true all of the complaint’s factual allegations, “drawing all
permissible inferences in the plaintiffs’ favor.” Cmty. Bank of Trenton v. Schnuck Markets, Inc.,
887 F.3d 803, 811 (7th Cir. 2018).
Analysis
In holding that Illinois recognizes the tort of intrusion upon seclusion, the Illinois
Supreme Court defined it as follows: “One who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability
to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable
person.” Lawlor v. N. Am. Corp. of Ill., 983 N.E.2d 414, 424 (Ill. 2012) (quoting Restatement
(Second) of Torts § 652B (1977)) (internal quotation marks omitted). Illinois Central contends
that Plaintiff cannot state a claim because Plaintiff essentially consented to the intrusion by
continuing to subject himself to the drug tests knowing what they entailed. Illinois Central
analogizes Plaintiff’s claim to the purported false imprisonment of an employee, where
“[v]oluntary consent to confinement nullifies a claim of false imprisonment,” and “consent is not
invalidated even if an employee is threatened with discharge.” Hanna v. Marshall Field & Co.,
665 N.E.2d 343, 349 (Ill. App. Ct. 1996). The Court, however, is unwilling to apply this
principle to the recently-recognized claim of intrusion upon seclusion without a more fulsome
discussion of the applicable law and further development of the record.
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Illinois Central also contends that even assuming Plaintiff has stated a claim for intrusion
upon seclusion, certain of the alleged conduct is barred by the statute of limitations. “Illinois
courts have not definitively established the proper statute of limitations applicable to intrusion
upon seclusion claims.” Meehan v. Loyola Univ. of Chi., No. 16 C 10481, 2017 WL 2424225, at
*5 (N.D. Ill. June 5, 2017). Illinois Central argues it should be two years because intrusion upon
seclusion is a form of personal injury, which in Illinois has a two-year limitations period. See
Jordan v. United States, No. 18 C 1100, 2018 WL 5024054, at *2 (S.D. Ill. Oct. 17, 2018).
Plaintiff disagrees and contends that a five-year limitations period applies. See Johnson v.
Northshore Univ. Healthsystem, No. 1-10-0399, 2011 WL 10069086, at *2 (Ill. App. Ct. Mar.
31, 2011) (rejecting contention that the one-year limitations period applicable to “[a]ctions for
slander, libel or for publication of matter violating the right of privacy” applied to intrusion upon
seclusion claims and implying, but not holding, that the catch-all five-year limitations period
applied to intrusion upon seclusion) (citing 735 ILCS 5/13–205 (“[A]ll civil actions not
otherwise provided for shall be commended within 5 years next after the cause of action
accrued.”)).
Again, the parties have not engaged in an in-depth analysis of the issue in their briefs.
Moreover, the statute of limitations is an affirmative defense that need not be anticipated in a
complaint. See Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928
(7th Cir. 2015) (“Dismissing a complaint as untimely at the pleading stage is an unusual step,
since a complaint need not anticipate and overcome affirmative defenses, such as the statute of
limitations.”) (citation and internal quotation marks omitted). Given the uncertain state of the
law, the parties’ relatively superficial discussion of the issue, and the procedural posture of the
case, the Court denies, at this time, the motion to dismiss certain aspects of Plaintiff’s claim as
time-barred.

Date: December 13, 2018

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Ronald A. Guzmán
United States District Judge

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