Opinion
No. 02 C 3675
May 24, 2002
MEMORANDUM ORDER
Patricia Romero ("Patricia") has filed an eight-count Complaint against Microplastics, Inc. ("Microplastics"), The Agency, Inc. ("Agency") and Salvador Romero ("Salvador"), asserting a battery of grievances stemming from asserted sexual harassment by Salvador while Patricia was working as a temporary employee at Microplastics on a farm-out by Agency (which, as its name suggests, was an employment agency of that type). This memorandum order is issued sua sponte at the same time as the issuance of this Court's customary order setting an initial status hearing date.
Patricia's claims are advanced in the alternative, some on the premise that she was an employee of both Microplastics and Agency for Title VII purposes, while others take the approach that she was not an employee of either. That type of alternative pleading is of course permissible under Fed.R.Civ.P. 8(e)(2).
But as to the first approach, Patricia's own allegations appear to defeat her Count I employment discrimination claim against Agency (see the excellent analysis of the legal consequences that flow from temporary employee situations such as this one in Mullis v. Mechanics Farmers Bank, 994 F. Supp. 680 (M.D. N.C. 1997)— Complaint ¶ 12 reflects that when Patricia reported Salvador's sexual assault to Agency, that led to Salvador's arrest and his consequent conviction of criminal sexual assault. Nothing there or elsewhere in the Complaint suffices to lay any responsibility for sex-based employment discrimination at Agency's doorstep.
It appears that Patricia has also pleaded herself out of Court (or should have done so) in the two "non-employee" counts in which she has joined Agency as a defendant: Count V labeled "Negligent Supervision, Training and Retention" and Count VII labeled "Negligent Infliction of Emotional Distress." It is really inconsistent with the relationships among (1) an employment agency that hires out temps, (2) the hiring party and (3) the temps themselves to impose on the employment agency the types of duties that form the legitimate gravamina of claims of that nature.
Accordingly this Court contemplates dismissing Counts I, V and VII against Agency at the time of the initial status hearing unless Patricia's counsel then (or earlier) proffers an acceptable predicate for retaining Agency as a defendant to one or more of those claims. This would not however call for Agency's total dismissal from this action, for Patricia's Count II retaliation claim is facially sufficient against Agency as well as Microplastics.
No view is expressed here, of course, as to whether Patricia can actually prove such retaliation on the part of Agency.
One other thing should be mentioned at this threshold stage of the litigation. Complaint ¶ 8 alleges in general terms that Patricia has complied with all of the preconditions to suit under Title VII, but her counsel has not provided copies of her charge of discrimination or of the EEOC right-to-sue letter. Copies of both of those documents should be provided to this Court promptly, as well as being transmitted to each defendant together with or shortly after the service of process.
That delivery to each defendant should be accompanied by a photocopy of this memorandum order.