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CURCIO v. CHINN ENTERPRISES

June 5, 1995

GAYLE CURCIO, PENNY VEREST, ELLEN WALTZ, and CONNIE WENG, Plaintiffs,
v.
CHINN ENTERPRISES, INC., d/b/a BOB CHINN'S CRAB HOUSE and BOB CHINN, Defendants.



The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 BACKGROUND *fn1"

 All four plaintiffs are employed by defendants as waitpersons. *fn2" The Crab House is one of the largest independent restaurants in the United States, employing over 200 persons and generating revenues in 1993 of more than $ 18 million. Chinn is the president and controlling shareholder of the Crab House. At all times during plaintiffs' employment, Chinn was head of management and had supervisory authority at the Crab House over all of the employees. According to plaintiffs, Chinn spoke for and was closely identified with the Crab House, often referring to it as "Bob's World."

 Plaintiffs allege that throughout their employment, Chinn repeatedly engaged in sexually offensive behavior and made lewd and sexually offensive remarks to and about plaintiffs, other female waitpersons, and female customers. Additionally, Chinn touched or threatened to touch plaintiffs in an offensive and unwelcome manner. He has referred to the plaintiffs and other female employees as "c--nts" and "c/--suckers," has made degrading and humiliating sexual innuendoes to plaintiffs, often in the presence of customers, and has made racial and religious slurs. Chinn has pulled the hands of female employees to his crotch in the presence of plaintiffs. Chinn has threatened plaintiffs and other employees with physical harm, such as stating that he would "punch in the face" anyone who littered in the parking lot. He has threatened the plaintiffs with various punishments, which plaintiffs allege were meted out arbitrarily in order to harass and intimidate employees.

 Some of the specific incidents that plaintiffs allege include: Waltz observed Chinn being taken away from a table where he had crawled under to look up a woman's skirt; Chinn asked Weng whether she wanted to go upstairs for a "quickie" and "maybe she wasn't getting it at home"; Chinn has leaned his midsection against Weng's back on a number of occasions and rubbed against her while she was working; Chinn has often told Waltz, who is the mother of seven, that she should keep her legs crossed and that he could show her how not to get pregnant; Chinn told Curcio on several occasions in front of customers and other employees that she should lose weight; Verest encountered Chinn and two customers in a stairwell, and Chinn pulled at his crotch and said to her "this is what you really want"; Chinn has called the plaintiffs "stupid" and "f/--ing stupid" in front of customers; Chinn told Curcio that her sister, who was very ill and awaiting a bone marrow transplant, was "the biggest f/--ing c--t that worked here."

 Plaintiffs allege that the Crab House has no posted or written sexual harassment policy and the Crab House has never informed plaintiffs aware of any policy at the Crab House of prohibiting sexual harassment. No manager, supervisor, or agent of the Crab House has taken any action to stop Chinn's conduct.

 Between November 1994 and January 1995, all of the plaintiffs filed charges of sexual harassment with the Equal Employment Opportunity Commission ("EEOC") against both defendants. *fn3" Following notification of these EEOC charges, plaintiffs Curcio, Waltz, and Weng allege that Chinn began to retaliate against them. Chinn singled out Curcio on several occasions for particular scrutiny and punishment while she was working. Chinn would question Curcio on how she was performing her job and threatened her with "gate duty." *fn4" Waltz, who had not engaged in any misconduct, was given the punishment of gate duty one Saturday night, causing her to lose money and humiliating her. Additionally, Weng was denied a trainer's bonus that she had received the previous year, and a day manager at the Crab House stated to her that Weng and another trainer who had filed EEOC charges would not get a 1994 bonus because they were "unhappy" with Chinn.

 Plaintiffs, upon receiving their Right to Sue notices from the EEOC, filed this four-count compliant: Count I alleges a violation of Title VII based upon sexual harassment; Count II alleges retaliation against three of the plaintiffs; and, Counts III and IV allege assault and battery and intentional infliction of emotional distress under Illinois law. Plaintiffs allege that they have suffered from anxiety, depression, sleeplessness, humiliation, and other mental and emotional injuries as a result of all of Chinn's actions.

 In response, defendant Chinn has moved to dismiss Counts I and II, arguing that he is not liable either as an employer or individually under Title VII. Chinn argues that the court, after dismissing Counts I and II, should then decline supplemental jurisdiction of Counts III and IV. Both defendants have also moved to dismiss Count IV, arguing that plaintiff has not alleged sufficiently a claim for intentional infliction of emotional distress under Illinois law.

 STANDARD OF REVIEW

 In ruling on a motion to dismiss, the court must presume all of the well-pleaded allegations of the complaint to be true, Miree v. DeKalb County Ga., 433 U.S. 25, 27 N.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977), and must view those allegations in the light most favorable to plaintiff. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1034 (7th Cir. 1987). Dismissal is proper only if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 ANALYSIS

 I. Defendant ...


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