Del Real v. LaCosta Inc

Filing 16

OPINION AND ORDER granting 10 Motion to Dismiss Counts IV and V of the complaint. Signed by Judge Rudy Lozano on 2/14/2014. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARIA G. DEL REAL,

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)
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)
)
)
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Plaintiff,
vs.
LACOSTA, INC.,
Defendant.

NO. 2:12-CV-474

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to
Dismiss Counts IV and V, filed on August 27, 2013.
reasons set forth below, this motion is GRANTED.

For

the

Accordingly,

Counts IV and V of the complaint are dismissed.

BACKGROUND
Plaintiff, Maria G. Del Real, brought suit against her former
employer, Defendant, LaCosta, Inc., alleging that she was sexually
harassed,

discriminated

against

based

on

her

sex,

retaliated

against for asserting her rights, was not paid for all of the work
she performed, and was assaulted and battered, while employed at
LaCosta.
alleges

Pertinent to the instant motion are Count IV, which
LaCosta

did

not

pay

Del

Real

for

all

the

work

she

performed, and Count V, which alleges that Del Real’s supervisor
assaulted and battered her.

During the briefing, Del Real has
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voluntarily withdrawn Count IV of her complaint, leaving only the
viability of Count V at issue. (DE# 12). LaCosta seeks dismissal of
Count V for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Thus, the remaining question is,
“has Plaintiff alleged an assault and battery claim against LaCosta
upon which relief can be granted?”

Facts
According to the complaint:
On Thursday, September 15, 2011, between 10:30 and 11:00
a.m. Plaintiff was cleaning an office when Supervisor
John came in that office and closed the blinds. Then
Supervisor John went behind Plaintiff and started
touching and massaging Plaintiff - he was physically
touching, battering and attacking Plaintiff. Supervisor
John told Plaintiff to “Just relax.”
Plaintiff told
Supervisor John to stop but he would not. Plaintiff was
very afraid because there was no one else around and
Supervisor John had closed the blinds so no one could
witness his attack. Plaintiff kept telling Supervisor
John to “Stop!”, but Supervisor John just kept telling
Plaintiff, “Come on. Relax . . . relax.”
(Cmpt. ¶ 18).
Despite Plaintiff telling Supervisor John to stop, he
continued to grab, touch and rub Plaintiff’s body.
Finally, Plaintiff broke loose and escaped.
She
immediately walked out of the office. Since Plaintiff
was aware of Supervisor John’s similar physical attack
and sexual harassment of [another female employee]
several weeks before, Plaintiff was extremely frightened.
. . ..
(Cmplt. ¶ 19).

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DISCUSSION
In determining the propriety of dismissal under Federal Rule
of Civil Procedure 12(b)(6), the Court must accept all facts
alleged in the complaint as true and draw all reasonable inferences
in the light most favorable to the plaintiff.
272 F.3d 519, 520 (7th Cir. 2001).

Johnson v. Rivera,

A complaint is not required to

contain detailed factual allegations, but it is not enough merely
that there might be some conceivable set of facts that entitles the
plaintiff to relief.

Bell Atlantic Corp. v. Twombly, 127 S.Ct.

1955, 1964-65 (2007), abrogating in part Conley v. Gibson, 355 U.S.
41, 45-46 (1957). A plaintiff has an obligation under Rule 8(a)(2)
to provide grounds of his entitlement to relief, which requires
more

than

labels

and

conclusions.

Id.

at

1965.

Factual

allegations, taken as true, must be enough to raise a right to
relief above the speculative level. Id. Moreover, a plaintiff may
plead himself out of court if the complaint includes allegations
that show he cannot possibly be entitled to the relief sought.
Jefferson v. Ambroz, 90 F.3d 1291, 1296-97 (7th Cir. 1996).

The Complaint Adequately Pleads the Elements of Assault and Battery
The Indiana Supreme Court, citing the Restatement (Second) of
Torts has stated, “[a]n actor is subject to liability to another
for battery if (a) he acts intending to cause a harmful or
offensive contact with the other person . . ., or an imminent

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apprehension of such contact, and (b) a harmful contact with the
person of the other directly or indirectly results.”
Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007).

Mullins v.
Moreover,

“[a] touching, however slight, may constitute an assault and
battery.”

Knight v. Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind. Ct.

App. 2007).
Defendant

argues

that

Plaintiff

has

not

alleged

that

Supervisor John (Hardesty) caused any harmful or offensive contact.
This Court disagrees.

A fair reading of the complaint shows

Plaintiff alleged that Supervisor John came into the office, closed
the blinds and began to touch Plaintiff. Plaintiff told Supervisor
John to stop, but that he nevertheless continued to grab, touch and
rub her body.

This is clearly offensive contact that Supervisor

John intended to make. Thus, this Court finds that the allegations
are sufficient to establish the elements of battery.

There is no Respondeat Superior Liability
Plaintiff asserts that LaCosta is vicariously liable on the
theory of respondeat superior for Supervisor John’s alleged assault
and battery.

Defendant argues that, even if Plaintiff adequately

alleged that Supervisor John assaulted and battered her, LaCosta is
not liable under respondeat superior.

The parties agree that, in

Indiana, “[t]he general rule is that vicarious liability will be
imposed upon an employer under the doctrine of respondeat superior

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where the employee has inflicted harm while acting ‘within the
scope of employment.”

Barnett v. Clark, 889 N.E.2d 281, 283 (Ind.

2008)(citations omitted).

“[I]n order for an employee’s act to

fall ‘within the scope of employment,’ the injurious act must be
incidental to the conduct authorized or it must, to an appreciable
extent, further the employer’s business.”

Id.

(citations and

quotations omitted).
Indiana has embraced the Restatement of Agency, which advises
that “[a]n employee is subject to vicarious liability for a tort
committed by its employees acting within the scope of employment.
Id. at 284(citing Restatement (Third) of Agency, § 7.07(1) (2006)).
The Restatement teaches that “[a]n employee acts within the scope
of employment when performing work assigned by the employer or
engaging in a course of conduct subject to the employer’s control.
An employee’s act is not within the scope of employment when it
occurs with an independent course of conduct not intended by the
employee to serve any purpose of the employer.”

Restatement

(Third) of Agency, § 7.07(2) (2006).
Indiana courts have found that assault are generally outside
the scope of employment.

Barnett, 889 N.E.2d at 223.

It is not

enough that an assault take place at work or take place between coworkers to invoke vicarious liability on an employer.

Instead,

they impose respondeat superior liability based on physical battery
by an employee only when the battery is deemed sufficiently related

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to the employee’s authorized duties.

For example, an employer was

found vicariously liable for sexual assault when an employee’s
duties included bathing, undressing and, in the course of bathing
the patient, touching the genitals of a disabled individual.
Stropes v. Heritage House Children’s Center, 547 N.E.2d 244 (Ind.
1989).

In another case, the employee was authorized to help fit

boys for their Little League uniforms, which involved being present
when the boys undressed, measuring the boys, and helping them get
dressed in the appropriate uniform.

A court found sexual assault

was incidental or sufficiently related to that authorized physical
conduct.

Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind.

Ct. App. 2000).
Here, based on the allegations of the complaint, Supervisor
John’s assault of plaintiff is not sufficiently associated with his
employment duties so as to fall within the scope of employment by
LaCosta.

In

fact,

consistent

with

the

allegations

of

the

complaint, Supervisor John’s assault was not related to his duties.
Indeed, LaCosta performs cleaning and janitorial work.

There are

no allegations that Supervisor John was authorized to physically
touch any employee at LaCosta or that he touched Plaintiff within
the scope of his employment.

Nor is there any allegation that

touching employees would further LaCosta’s interests in any way.
Plaintiff attempts to establish the association between Supervisor
John’s authorized duties and alleged assault by simply asserting -

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without any argument or citations to case law- “the supervisor and
the plaintiff employee were on the job at their regular places, and
the degree of physical contact would depend upon any assignment and
whether assistance would be necessary.”
there

are

no

inferences

consistent

(DE# 13, p. 6).
with

the

However,

complaint

that

Supervisor John’s assault of Plaintiff was similar to his duties as
Supervisor or that he was engaging in authorized acts or serving
his employer’s interests when the alleged assault occurred.
arrive at such a conclusion would require speculation.

To

As such,

there can be no vicarious liability based upon these allegations.

CONCLUSION
For the reasons set forth above, this motion is GRANTED.
Accordingly, Counts IV and V of the complaint are dismissed.

DATED:

February 14, 2014

/s/RUDY LOZANO, Judge
United States District Court

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