United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
an employment action by Michelle Friday against her former
employer, Magnifique Parfumes and Cosmetics, Inc., d/b/a
Perfumania. Ms. Friday alleges that she is disabled under the
Americans with Disabilities Act due to a condition in her
hands, and that when her supervisor became aware of that
condition, he began treating her less favorably and
eventually caused her employment to be terminated because of
it. She further alleges that her supervisor treated her in
that way because of her sex. She thus asserted claims against
Perfumania under the Americans with Disabilities Act (Count
1) and Title VII of the Civil Rights Act of 1964 (Count 2).
However, her complaint also asserts a claim under Indiana law
for negligent hiring, training, or supervision, and vicarious
liability (Count 3). This count apparently seeks to hold
Perfumania liable for any misconduct by the supervisor.
answering the complaint, Perfumania filed a motion for
judgment on the pleadings as to Count 3, arguing that it
fails to state a valid claim under Indiana law. A motion for
judgment on the pleadings under Rule 12(c) is subject to the
same standard of review as a motion to dismiss under Rule
12(b)(6). Gill v. City of Milwaukee, 850 F.3d 335,
339 (7th Cir. 2017). Therefore, the Court must take the facts
alleged in the complaint as true and draw all reasonable
inferences in favor of the non-moving party. Matrix IV,
Inc. v. Am. Nat'l Bank & Trust Co. of Chi., 649
F.3d 539, 547 (7th Cir.2011). To survive the motion, the
complaint must contain enough facts to state a claim for
relief that is plausible on its face. Brooks v.
Ross, 578 F.3d 574, 580-81 (7th Cir. 2009) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
argues that Ms. Friday failed to plead a claim for negligent
hiring, training, or supervision because she failed to allege
that her supervisor committed any of the acts in question
outside the scope of his employment. The Court agrees.
Indiana has adopted section 317 of the Restatement (Second)
of Torts as to claims for negligent hiring, training, or
supervision. Sedam v. 2JR Pizza Enters., LLC, 84
N.E.3d 1174, 1179 (Ind. 2017); Hansen v. Bd. of Trs. of
Hamilton Se. Sch. Corp., 551 F.3d 599, 609 (7th Cir.
2008). Under that provision, an employer has a duty under
certain circumstances to exercise reasonable care to control
an employee “acting outside the scope of his
employment.” Restatement (Second) of Torts § 317.
Thus, as the Indiana Supreme Court recently reiterated, this
claim is “‘applicable only when the [employee] is
acting outside the scope of his employment.'”
Sedam, 84 N.E.3d at 1179 (quoting § 317 cmt.
a). Here, the complaint does not allege that the supervisor
was ever acting outside the scope of his employment; to the
contrary, it expressly alleges that he was acting at all
times “within the full course, scope and
authority” of his position. [DE 1 ¶ 87]. Thus, Ms.
Friday has failed to state a claim for negligent hiring,
training, or supervision.
count also asserts a theory of vicarious liability.
“Under the doctrine of respondeat superior, vicarious
liability will be imposed upon an employer whose employee
commits a tort while acting within the scope of
employment.” Ali v. Alliance Home Health Care,
LLC, 53 N.E.3d 420, 434 (Ind.Ct.App. 2016). “By
definition, respondeat superior requires that there be an
underlying tort in the first place . . . .”
Id. Ms. Friday's complaint does not allege that
her supervisor committed any underlying tort, though. Rather,
her theory appears to be that, to the extent her supervisor
violated her rights under applicable employment laws,
Perfumania should be held liable for that conduct. The
Americans with Disabilities Act and Title VII already include
their own standards for holding employers liable, however,
see Vance v. Ball State Univ., 133 S.Ct. 2434
(2013), and state tort law does not displace those standards.
Thus, this count does not state a claim on that theory,
response to the motion, Ms. Friday argues that this count
should not be dismissed because she has requested punitive
damages, which makes it “appropriate to consider
evidence of negligent hiring/training/supervision.” [DE
19 p. 3]. However, this argument conflates the relevance or
admissibility of evidence with the availability of a
standalone cause of action. Ms. Friday has requested punitive
damages in connection with her first two counts, and at the
appropriate stage, she can seek to offer evidence in support
of those requests. However, she need not plead evidence in
her complaint in order to do so, nor does that request
transform this evidence into its own claim.
Friday also cites cases that address whether a plaintiff
should be permitted to proceed on a negligent supervision
theory or present evidence on that topic once the defendant
has admitted that the employee was acting within the scope of
its employment. E.g., Levinson v. Citizens
Nat'l of Evansville, 644 N.E.2d 1264 (Ind.Ct.App.
1994); Lange v. B&P Motor Express, Inc., 257
F.Supp. 319 (N.D. Ind. 1966). In most circumstances,
negligent supervision and vicarious liability are alternative
theories for holding an employer liable for the torts of its
employees-the former applies when the employee acts outside
the scope of its employment, and the latter applies when the
employee acts within the scope of its employment. See
Sedam, 84 N.E.3d at 1178; Hansen, 551 F.3d at
612 n.2. Thus, when an employer admits that the employee was
acting within the scope of its employment, the basis for
employer liability is established, so the
negligent-supervision theory becomes superfluous and the
evidence in support of that theory becomes irrelevant.
Sedam, 84 N.E.3d at 1178. In limited circumstances,
however, the relief under those two theories can differ, such
as when a plaintiff requests punitive damages.
Levinson, 644 N.E.2d at 1269-70. In those
circumstances, courts have held than an admission that the
employee was acting within the scope of its employment will
not bar a plaintiff from pursuing a negligent-supervision
claim or presenting evidence on that topic. Id.
however, the question is not whether Ms. Friday is barred
from pursuing a negligent-supervision claim based on
Perfumania's admission that Ms. Friday's supervisor
was acting within the scope of his employment. Instead, the
question is only whether she has adequately pled the elements
of that claim. As discussed above, she has not done so, as
she does not allege that her supervisor acted outside the
scope of his employment, as is required to sustain a claim
for negligent hiring, training, or supervision.
Sedam, 84 N.E.3d at 1179; Hansen, 551 F.3d
at 612 n.2 (noting that a claim for negligent hiring,
supervision, and retention requires a plaintiff to plead that
the employee's actions were “outside the scope of
his employment”); Gordon v. Bank of N.Y. Mellon
Corp., No. 4:12-cv-18, 2017 WL 662856, at *8 (N.D. Ind.
Feb. 17, 2017) (“The tort of negligent hiring and
supervision is inapplicable when a employee is acting within
the scope of his employment.”).
the Court GRANTS the motion for judgment on the pleadings as
to Count 3. [DE 16]. This action ...