Al-Dabbagh v. Greenpeace, Inc., 94 C 4941.

• Decision Date: 21 December 1994
• Docket Number: No. 94 C 4941.,94 C 4941.
• Parties: Yasmin AL-DABBAGH, Plaintiff, v. GREENPEACE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

873 F. Supp. 1105

Yasmin AL-DABBAGH, Plaintiff, v. GREENPEACE, INC., et al., Defendants.

No. 94 C 4941.

United States District Court, N.D. Illinois, Eastern Division.

December 19, 1994.

Opinion Supplementing Decision December 21, 1994.

COPYRIGHT MATERIAL OMITTED

Allen W. Dub, Chicago, IL, for plaintiff.

Matthew J. Piers, Eric A. Bers, Jennifer L. Fischer, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Yasmin Al-Dabbagh ("Al-Dabbagh") brings this action against her former employer Greenpeace, Inc. ("Greenpeace") and ex-Greenpeace employee Jimmie Mitchell ("Mitchell"), asserting in Count I that Mitchell's brutal rape of Al-Dabbagh at Greenpeace's Chicago offices on December 26, 1992 constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17) ("Title VII"). Al-Dabbagh also advances six pendent Illinois state law claims, to which the Complaint has attached these Roman numerals and labels:

II. Battery

III. Assault

IV. Intentional Infliction of Emotional Distress

V. Negligent Retention

VI. Negligent Supervision

VII. Negligent Entrustment

Each of Counts I through IV is asserted against both Greenpeace and Mitchell, while Counts V through VII target only Greenpeace.

Greenpeace has moved under Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss the Complaint against it for failure to state even one viable claim. For the reasons stated in this memorandum opinion and order, the motion is denied as to Count I and granted as to Counts II through VII.

Facts¹

Greenpeace is a non-profit California corporation with offices throughout the United States. As of late 1992 the employees at Greenpeace's Chicago office (most of them of college age, with the management employees also being well under the age of 40) enjoyed what may readily be described as a loose work atmosphere (perhaps an understatement). Employees (including management and supervisory people) were free to and did (1) wear blue jeans, (2) drink beer openly during business hours (the beer was kept in a Greenpeace-provided refrigerator) and (3) smoke marijuana as well as drink beer outside on the fire escape — an area known as "party lane."

But Mitchell took Greenpeace's tolerance of the use of alcohol and "recreational" drugs to extremes. He had a history of reporting to work intoxicated, and he added cocaine to the list of substances used (abused?) in the workplace — both of those things being known to Greenpeace's supervisory personnel. Mitchell also had a reputation as a "womanizer" and engaged in inappropriate conduct of a sexual nature toward, and made unwelcome sexual overtures to, female employees. Although Greenpeace knew about Mitchell's drug and alcohol abuse and sexual misconduct, the only action that it took against him was an oral reprimand about December 23, 1992 for Mitchell's having reported to work in an intoxicated state.

On December 21, 1992 20-year-old Al-Dabbagh began work at Greenpeace's Chicago office as a telephone donation solicitor and was trained under the supervision of Bruce Kripner ("Kripner") for three or four days. Kripner was an "employee and managerial agent" of Greenpeace, while Mitchell was an "employee."

On Al-Dabbagh's arrival at work on December 26 (a Saturday), Mitchell introduced himself as her shift supervisor (he was the only supervisory person on duty that day) and monitored her telephone sales "rap." That day Mitchell had keys to the office and was responsible for opening and closing the facilities. Toward the end of the day, as Al-Dabbagh was gathering her personal belongings and preparing to leave, Mitchell suddenly attempted to kiss her. When Al-Dabbagh rejected his actions as unwelcome and said that she was leaving immediately, Mitchell slapped her, tore off her shirt, beat her, hit her on the head with a radio, choked her with a phone cord and ultimately forced her to have sex with him. In the early hours of December 27 Al-Dabbagh escaped and telephoned the police. She was then treated for her injuries at a local hospital. Mitchell was arrested and charged with aggravated criminal sexual assault.²

On December 28 Al-Dabbagh informed Greenpeace management personnel of the rape and expressed an interest in returning to work as soon as possible. Her efforts to resume employment were delayed until January 6 or 7, 1993, when she was permitted to do so. But the reunion proved short-lived. On January 9 Al-Dabbagh reported the incident to Greenpeace's executive offices in Washington, D.C. On January 18 a female member of Greenpeace's Board of Directors questioned Al-Dabbagh about whether she intended to file charges of discrimination or a lawsuit concerning the rape. Al-Dabbagh told the Board member that she did not know what she would do and was uncomfortable talking about it then. After that meeting, Greenpeace management became "aloof and unresponsive" to Al-Dabbagh. Indeed, rumors circulated in the workplace that Al-Dabbagh had fabricated the rape story — an effort to discredit and ostracize her. On January 20, citing an atmosphere of distrust and tension and constant encouragement by Greenpeace to seek other employment, Al-Dabbagh quit her job by telephone.

Operative Legal Principles

At the outset it is worth taking what in some respects is a side excursion into the nature of Al-Dabbagh's Complaint and its impact on the current motion. For Rule 12(b)(6) purposes the standard for a complaint's survival are really undemanding (Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)):

A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.

And consistently with that standard and with the notice-pleading regime enacted by the Rules (see, e.g., Rules 8(a)(2) and 8(e)(1)), the original design of Rules 8(e)(2)³ and 10(b)⁴ contemplated a quite different and more limited use of separate counts than what has come to be the widespread (or it might even be termed near-universal) practice today.

Instead Al-Dabbagh's Complaint typifies what is seen in many such pleadings every day: the splintering of a claim "founded upon a single transaction or occurrence" into multiple so-called "counts" simply because those counts assert different theories of recovery. Whatever may be said in favor of that near-epidemic practice, it certainly harbors the potential for considerable mischief. Frequently it leads to misguided Rule 12(b)(6) motions (and sometimes even to misguided Rule 12(b)(6) rulings) — something that has required our Court of Appeals to announce in a closely related context (NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-92 (7th Cir.1992) (citations omitted)):

Plaintiffs' complaint begins with 66 paragraphs and then states five "claims," each of which incorporates these paragraphs and asserts one reason why the conduct is wrongful.... Perhaps the judge was led astray by the structure of the complaint. Identifying legal theories may assist defendants and the court in seeing how the plaintiff hopes to prevail, but this organization does not track the idea of "claim for relief" in the federal rules. Putting each legal theory in a separate count is a throwback to code pleading, perhaps all the way back to the forms of action;⁵ in both, legal theory and facts together created a "cause of action." The Rules of Civil Procedure divorced factual from legal aspects of the claim and replaced "cause of action" with "claim for relief" to signify the difference. A complaint should limn the grievance and demand relief. It need not identify the law on which the claim rests, and different legal theories therefore do not multiply the number of claims for relief.

One set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate.

To be sure, there are sometimes affirmative reasons for a plaintiffs reliance on different theories of liability. One obvious example is the typical coupling of (1) a 42 U.S.C. § 1983 claim for an unlawful Fourth Amendment⁶ "seizure" stemming from a policeman's arrest of the plaintiff without probable cause with (2) a state law claim for false arrest based on the identical incident. That distinction makes a substantive difference: In the Section 1983 claim the employer municipality cannot be sued because of the unavailability of the respondeat superior doctrine (Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978)), while in the state law claim the municipality may be joined under supplemental jurisdiction principles (28 U.S.C. § 1367) and may thus be directly subject to a verdict for recovery of the same damages.⁷

But all too often the multiplication of socalled counts amounts only to plowing the same factual field over and over again, and that is frequently counterproductive. Even apart from extending that "plowing" metaphor to liken the process to the exhaustion of soil through attempted overproduction, thus potentially rendering the soil barren, the resulting proliferation of jury instructions to cover each possible theory of recovery regularly creates confusion and the potential for error. Relatedly, devising verdict forms to minimize any potential for duplicative recovery, or sometimes to avoid the potential for less than full recovery, consistently taxes the ingenuity of counsel and courts alike. And there is no question that the resulting complex verdict forms have a strong tendency to confuse jurors, as well as creating complications for counsel in dealing with the subject of damages in their closing arguments.

All of that having been said, however, this opinion must perforce deal with Al-Dabbagh's Complaint as it has been drafted, just as the parties have done in their briefs. As will be seen from the ensuing discussion, the Complaint itself...