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SMALL v. CHICAGO HEALTH CLUBS

January 19, 1994

DANIELLE SMALL, Plaintiff,
v.
CHICAGO HEALTH CLUBS, INC., Defendant.


Plunkett


The opinion of the court was delivered by: PAUL E. PLUNKETT

This matter is before the Court on Defendant Chicago Health Clubs, Inc.'s ("CHC") motion to dismiss, or in the alternative, to strike portions of Plaintiff Danielle Small's ("Small") Complaint. For the reasons discussed below, Defendant's motion to strike paragraphs 11 and 26 of Plaintiff's Complaint and to dismiss Counts II and III is granted.

 Background

 This case arises out of a series of incidents that allegedly occurred at a CHC facility in Glendale Heights, Illinois, during May and June 1991. The incidents complained of involve the Plaintiff, who was at the time employed as the head receptionist at the facility, James Passi, who is the general manager of the facility, and various other individuals employed at the facility. Because we take the plaintiff's allegations as true on a motion to dismiss, we present the facts here as alleged by Plaintiff in her Complaint.

 On or about May 11, 1993, Ms. Small met with Mr. Passi to request permission to abstain from wearing the usually-required attire of spandex tights. At Mr. Passi's insistence, she advised him, in confidence, of the nature of the health problem that necessitated her request. Mr. Passi breached this confidence by disclosing the nature of her health problem to her co-workers.

 The conduct that grew out of Mr. Passi's indiscretion at best can be described as juvenile. Other employees began harassing Ms. Small about having an illness or disease. In the presence of other coworkers, she was asked by Assistant Manager Frank Price about her condition. Mr. Passi, Mr. Price, a manager by the name of Mr. Orlando Silva, and an assistant manager by the name of Joseph Madonna jointly placed a telephone call to the CHC facility during which they asked to speak with Plaintiff, identifying her by a nickname based on her health problem. The managers and other employees at the facility then referred to Ms. Small by that nickname for a period of at least four weeks. The events escalated to the point that Ms. Small was paged over the loudspeaker system using a related nickname. Several managers broadcast the nickname over the telephone intercom.

 According to Ms. Small, she complained about these activities on three occasions. She confronted Mr. Passi about the telephone call incident on May 14, 1993, and about the continuing telephone conduct on June 11, 1991. She also complained to Mr. Passi's supervisor. Ms. Small's complaints did not stop the conduct. In fact, the conduct worsened after Plaintiff's complaints to Mr. Passi's supervisor.

 Ms. Small's complaints resulted in various retaliatory actions. When Plaintiff advised Mr. Passi of her intent to take legal action, he threatened to suspend her if she contacted an attorney. In addition, Plaintiff was denied use of the restroom facilities, denied a promised salary increase, and demoted. Plaintiff resigned in August 1991 because she was unable to perform her duties as a result of the alleged conduct. Plaintiff filed this action in federal court on June 4, 1993.

 Count I of Plaintiff's complaint alleges that CHC's conduct "created a hostile working environment where gender-based discrimination was permitted and encouraged." (Compl. at P 25.) Plaintiff alleges further that CHC failed to remedy the harassment despite being notified by Plaintiff of the complained-of conduct, and that the conduct caused Plaintiff to suffer severe emotional distress. (Compl. at P 26.) Plaintiff alleges that CHC's actions were intentional. (Compl. at P 28.) Plaintiff seeks compensatory damages under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991.

 Count II alleges that CHC is liable, under the doctrine of respondeat superior, for negligent infliction of emotional distress. Plaintiff alleges that CHC had a duty to treat Plaintiff fairly and to provide an appropriate work environment, and breached that duty by harassing Plaintiff and by failing to prevent the conduct of its managing agents and employees. (Compl. at P 31.) Plaintiff alleges that CHC's negligence proximately caused Plaintiff to suffer severe emotional distress. (Compl. at PP 32-33.) Plaintiff seeks $ 100,000 as compensation for that emotional distress.

 Count III alleges that CHC is liable for intentional infliction of emotional distress under the doctrine of respondeat superior. Plaintiff's intentional infliction of emotional distress claim is based on the same conduct underlying her negligent infliction of emotional distress claim. Plaintiff alleges that such conduct was intentional and "extremely outrageous," and was the proximate cause of her severe emotional distress. (Compl. at PP 37-39.) Plaintiff seeks $ 100,000 in damages under her intentional infliction claim. *fn1"

 Defendant filed its motion to dismiss on August 6, 1993.

 Discussion

 On a motion to dismiss, the court views the allegations of the complaint as true, along with reasonable inferences therefrom, and views these in the light most favorable to the plaintiff. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). Plaintiff's complaint should not be dismissed "unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle the plaintiff to relief . . . . Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery." Ellsworth ...


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