Raymond v. Thomas Industrial Coatings, Inc.
ORDER granting 4 Motion to Dismiss. For the reasons stated in the attached Memorandum & Order, Defendant's motion to dismiss is GRANTED. Count I and Count IV remain pending. Signed by Magistrate Judge Gilbert C. Sison on 9/9/2020. (kll)
Case 3:20-cv-00732-GCS Document 14 Filed 09/09/20 Page 1 of 4 Page ID #124
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
THOMAS INDUSTRIAL COATINGS, )
Cause No. 3:20-cv-00732-GCS
MEMORANDUM & ORDER
SISON, Magistrate Judge:
On July 16, 2020, Plaintiff Leslie Raymond filed suit in the Circuit Court of the
Third Judicial Circuit, Madison County, Illinois in Case No. 20-L-978. Defendant Thomas
Industrial Coatings, Inc. timely removed the action to this Court on July 28, 2020. Now
before the Court is Defendant’s motion to dismiss (Doc. 4) filed on July 28, 2020. The
August 31, 2020 deadline for Plaintiff’s response has come and gone, and she has not
responded to Defendant’s motion. Accordingly, for the reasons delineated below,
Defendant’s motion to dismiss is granted.
Pursuant to Local Rule 7.1(c), the failure to file a timely response to a motion may,
in the Court’s discretion, be considered an admission of the merits of the motion.
Nonetheless, a brief recitation of the facts is of assistance in demonstrating that the
exercise of that discretion is appropriate here. Plaintiff Leslie Raymond alleges that, while
she was employed by Defendant Thomas Industrial Coatings, Inc., her supervisor,
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Ronnie Bloodworth, who is not a party to this action, sexually harassed her verbally and
through text messages of a sexual nature (Count I). Raymond claims that Bloodworth
stalked and harassed her, both at work and at her home, and that Defendant had notice
of Bloodworth’s conduct, which Raymond alleges rises to the level of sexual assault
under Illinois law (Count II). She alleges that Defendant is responsible for a sexual battery
that Bloodworth committed by masturbating and performing other sexual acts on or
around her (Count III). After Bloodworth’s conduct, Raymond alleges that Defendant
retaliated against her by reducing her hours and requiring her to travel to distant
locations to maintain her employment (Count IV). Raymond further alleges that
Bloodworth’s conduct was intentional and caused her emotional distress, bringing a
claim of infliction of emotional distress against Defendant (Count V).
A complaint must include enough factual content to give the opposing party
notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009). To satisfy the
notice-pleading standard of Rule 8, a complaint must provide a “short and plain
statement of the claim showing that the pleader is entitled to relief” in a manner that
provides the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus, 551
U.S. 89, 93 (2007)(citing Twombly, 550 U.S. at 555 and quoting FED. R. CIV. PROC. 8(a)(2)).
In ruling on a motion to dismiss for failure to state a claim, a court must “examine
whether the allegations in the complaint state a ‘plausible’ claim for relief.” Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011)(citing Iqbal, 556 U.S. at 677-678). A complaint
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“must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face,” rather than providing allegations that do not rise above the
speculative level. Id.
Defendant moves to dismiss Counts II, III, and V of Raymond’s complaint for
failure to state a claim, arguing that Raymond does not allege that Bloodworth’s conduct
occurred within the scope of his employment. Defendant further argues that Illinois law
is clear that sexual misconduct can never be considered within the course and scope of a
person’s employment. Illinois recognizes the doctrine of respondeat superior and allows
employers to be held liable for torts committed by employees within the scope of
employment. See Adames v. Sheahan, 909 N.E.2d 742, 754-755 (Ill. 2009). However, Illinois
courts have held, as a matter of law, that sexual assault is not within the scope of
employment. See Doe v. Lawrence Hall Youth Servs., 966 N.E.2d 52, 62 (Ill. Ct. App. 2012).
Raymond does not allege that Bloodworth’s conduct occurred within the scope of
his employment at Thomas Industrial Coatings, Inc., and Illinois law is clear that his
sexual misconduct and stalking behavior cannot give rise to liability for Defendant under
the doctrine of respondeat superior because it cannot be considered within the scope of his
employment.1 Having reviewed Defendant’s motion, the Court finds that it is
appropriate to exercise its discretion to deem Plaintiff’s failure to respond as an
Because Defendant’s motion is unopposed and seeks dismissal of Counts II, III, and V based on the
doctrine of respondeat superior, which is appropriate here, the Court declines to reach Defendant’s additional
argument that Count V is preempted by Section 8-111(D) of the Illinois Human Rights Act. See Richards v.
U.S. Steel, 869 F.3d 557, 563-564 (7th Cir. 2017)(noting that Section 8-111(D) has been called a preemption
provision but that “misconduct that arises in the employment context might still form the basis for a
sustainable common-law tort”).
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admission of the merits of the motion.
For the above-stated reasons, Defendant’s motion to dismiss Counts II, III, and V
(Doc. 4) is GRANTED. Count I and Count IV remain pending.
IT IS SO ORDERED.
by Judge Sison 2
GILBERT C. SISON
United States Magistrate Judge
Dated: September 9, 2020.
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