January 10, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 7125 - Jorge
L. Alonso, Judge.
Wood, Chief Judge, and Rovner and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
tragic case tests the scope of Illinois employers' tort
liability for intentional torts committed by their
supervisory employees against other employees where the
employer has been negligent. Plaintiff's complaint
alleges that the defendants jointly employed as a supervisor
a man with a known history of sexually harassing, verbally
abusing, and physically intimidating his female subordinates.
The complaint also alleges that the joint employers failed to
take reasonable steps in response to female employees'
complaints and to misbehavior that more senior managers
supervisor's treatment of one subordinate, Alisha
Bromfield, included verbally abusing her while throwing
things, controlling and monitoring her both during and
outside her work hours, and requiring her to come with him on
business trips. After five years of that treatment, he used
his supervisory authority to require Alisha to come on a
personal trip with him-to an out-of-state family wedding-by
threatening to fire her or cut her hours if she refused. She
went. After the wedding, he killed and raped her.
mother, acting as the administrator of the estates of Alisha
and Alisha's unborn daughter, has sued the employers. The
defendant-employers persuaded the district court that they
had no duty to control this supervisor's behavior. We
respectfully disagree. Illinois law permits recovery from
employers whose negligent hiring, supervision, or retention
of their employees causes injury. The unusually detailed
complaint plausibly states such claims. We believe the
Illinois courts would apply this general principle to the
claims arising from Alisha's murder.
Factual and Procedural Background
defendant-employers moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. By that strategic choice, they
have asked us to treat the allegations in the complaint as
true and to give the plaintiff the benefit of any reasonable
and favorable inferences from those allegations. Reynolds
v. CB Sports Bar, Inc., 623 F.3d 1143, 1146
(7th Cir. 2010). In its general outline, the complaint's
story is all too familiar: defendants employed as a
supervisor a man with a history of sexually harassing his
young female subordinates. He fixated on one. He began making
advances on her and calling her his girlfriend. His behavior
escalated over time, from such inappropriate comments to
verbal abuse, public outbursts, throwing and slamming
objects, and finally, to deadly violence.
specifics, the complaint's story is tragic, ending in the
deaths of Alisha and her unborn daughter at the hands of
Brian Cooper, a regional manager for the defendant-employers.
The three defendants are Home Depot U.S.A., Inc., Grand
Service, LLC, and Grand Flower Growers, Inc., which managed
garden centers for Home Depot stores. Am. Compl. ¶ 9.
All three defendants jointly employed Brian Cooper as a
regional manager. ¶ 11.
had a history of sexually harassing his young female
subordinates. He fixated for a while on a recent high school
graduate named Jessica. ¶ 18. He would introduce her as
his girlfriend, make comments about his genitals to her, and
rub himself against her. ¶ 19. He once required her to
ride alone with him from Joliet to Chicago while he made such
comments. ¶ 20. Jessica complained to her group leader,
who told her that other employees had complained about Cooper
and that even the group leader herself felt uncomfortable
working with him. ¶ 21. Cooper became increasingly loud
and abusive with Jessica, yelling and swearing at her. ¶
22. Ultimately, Jessica quit her job. ¶ 23.
then shifted his attention to Alisha Bromfield. Alisha was a
teenager when she began working for the defendants in 2006,
and she worked seasonally for them until her death in 2012.
¶ 14. Cooper's behavior toward her at first
resembled his behavior towards Jessica. He would call her his
girlfriend. ¶ 27. He started swearing and yelling at
her, calling her names like "bitch, " "slut,
" and "whore" in front of customers.
¶¶ 26, 34. These outbursts came to include throwing
and slamming things. ¶ 39.
became increasingly controlling of Alisha's time away
from work. If she was going to spend a lunch break with a
man, he sometimes denied her lunch breaks. ¶ 33. Once,
when she asked him for a day off, he called her a
"whore." ¶ 34. He started calling and texting
her outside of work, pretending he wanted to talk about a
work-related issue in order to get her attention, to monitor
her, and to pressure her to spend time with him alone. ¶
38. And he required Alisha to come with him on business
trips, once insisting that they share a hotel room. ¶
46. In her last year working for the defendants, and the last
year of her life, Alisha became pregnant. Cooper reacted
angrily. ¶ 36.
behavior toward female subordinates in general and Alisha in
particular was known to more senior management. Throughout
her time working for the defendants, Alisha complained
repeatedly about Cooper to other supervisors and managers in
the defendants' hierarchies. ¶ 37. She told her
group leader that she did not want to be left alone with him.
¶ 27. One Home Depot manager saw Alisha crying after
Cooper denied her a break. ¶ 33. Another sent Cooper
home after he called Alisha a "slut" and a
"whore" in front of customers. ¶ 35. Grand
ordered him to take anger management classes, but he did not
complete the course. He confronted his human resources
manager about the requirement, and was ordered to attend
additional anger management classes, but neither employer
followed up to make sure he did so. ¶ 42.
Defendants' managers told Alisha that they knew about
Cooper's behavior. ¶ 39. Yet he remained
Alisha's supervisor. ¶30.
2012, when Alisha was about seven months pregnant, Cooper
began asking her to go to his sister's wedding in
Wisconsin with him. ¶¶ 49, 51. She refused. Then,
invoking the authority the defendants had entrusted to him as
a supervisor, he told her he would fire her or reduce her
hours if she did not go. ¶¶ 49-50. She went. After
the wedding, Cooper took Alisha to the hotel room he had
rented for the two of them. He asked her, again, to be in a
relationship with him. She refused, again. ¶ 53. Cooper
strangled her to death. He then raped her
Sherry Anicich is Alisha Bromfield's mother. She is the
administrator of the estates of both Alisha and her unborn
daughter. ¶¶ 1, 93. In her capacity as
administrator, Anicich sued Home Depot and Grand in state
court in Illinois. Defendants removed the case to federal
court based on diversity jurisdiction under 28 U.S.C.
§§ 1332 and 1441.
defendants then moved to dismiss the complaint under Rule
12(b)(6) for failure to state a claim. The district court
granted the original motions but correctly gave the plaintiff
leave to amend. See, e.g., Runnion v. Girl Scouts of
Greater Chicago, 786 F.3d 510, 519 (7th Cir. 2015)
(where Rule 12(b)(6) motion is granted, plaintiff should
ordinarily be given at least one opportunity to amend
complaint), citing Luevano v. Wal-Mart Stores, Inc.,
722 F.3d 1014, 1024 (7th Cir. 2013), among other cases. The
plaintiff filed her amended complaint, which we use for our
account of the facts. The amended complaint alleges the
defendants were negligent and that their negligence caused
Alisha's death at Cooper's hands. The defendants
again moved to dismiss on the ground that they did not owe a
duty of care to Alisha. The district court agreed and
dismissed the complaint, again granting leave to amend.
Anicich v. Home Depot, U.S.A., Inc., No. 14 C 7125,
2016 WL 930655, at *5 (N.D. Ill. Mar. 11, 2016). The
plaintiff chose to appeal, without trying to amend
review de novo the district court's decision to
dismiss, "construe [the complaint] in the light most
favorable to the nonmoving party, accept well-pleaded facts
as true, and draw all inferences in [that party's]
favor." Reynolds, 623 F.3d at 1146, quoting
Reger Development, LLC v. National City Bank, 592
F.3d 759, 763 (7th Cir. 2010). Applying that standard, we
tort law controls this case. See Erie Railroad Co. v.
Tompkins,304 U.S. 64, 78 (1938). There is no Illinois
case directly on point, but there are a number of indications
from related situations involving attempts to hold employers
liable for a wide range of torts committed by their
employees. Our task as a federal court interpreting state law
is "to determine how the state's highest court would
rule." Rodas v. Seidlin,656 F.3d 610, 626 (7th
Cir. 2011). We base our predictions on the decisions of the
state's highest court, and we consider ...