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Anicich v. Home Depot U.S.A., Inc.

United States Court of Appeals, Seventh Circuit

March 24, 2017

Sherry Anicich, Plaintiff-Appellant,
v.
Home Depot U.S.A., Inc., et al., Defendants-Appellees.

          Argued January 10, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 7125 - Jorge L. Alonso, Judge.

          Before Wood, Chief Judge, and Rovner and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         This 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 observed.

         The 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.

         Alisha's 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.

         I. Factual and Procedural Background

         The 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.

         In its 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.[1]

         Cooper 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.

         Cooper 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.

         Cooper 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.

         Cooper's 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.

         In 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 corpse.[2]

         Plaintiff 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.

         The 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 further.[3]

         II. Analysis

         We 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 reverse.

         Illinois 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 ...


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