The opinion of the court was delivered by: Norgle, District Judge.
Before the court is Defendant Pentel of America, Ltd.'s
("Pentel") Motion to Dismiss and to Strike portions of Count I
of Plaintiffs' Amended Complaint and to Dismiss Counts II-V.
For the reasons stated below, the motion is granted in part and
denied in part.
In 1991, Pentel, an office supply distribution company with
its principal place of business in Elk Grove Village, Illinois,
hired Plaintiff Susan Finnane ("Finnane") as a consumer
representative. Four years later in 1995, Pentel promoted
Finnane to the position of sales representative. As part of her
duties, in September 1995, Finnane was required to attend
Pentel's National Sales Meeting, which Pentel held over several
days at a hotel in Newport Beach, California. On one evening
during the conference, Paul Ventimiglia ("Ventimiglia"),
Pentel's National Sales Manager, summoned Finnane to his hotel
room to discuss business. After Finnane entered, Ventimiglia
asked her to sit on his bed. He then sat next to her and told
her that during the previous night he envisioned her "in a
black bra and underwear" and told Finnane that he had "sat
masturbating thinking of [her]." (Amend.Compl., at ¶ 16.)
Ventimiglia proceeded to grope Finnane during which time he
exposed his penis. He then began masturbating and "requested
and pleaded with [her] to have sexual intercourse with him."
(Id. at ¶ 17.) "[Finnane] immediately pushed Ventimiglia away,
requesting that he stop his unwelcome behavior and advances"
and fled from the room. (Id. at ¶ 18.)
The following evening Finnane met with a supervisor, Tim
Fallihee ("Fallihee"), Pentel's Director of Sales. During the
discussion, he informed her that he knew of the previous
night's events and recommended that Finnane "keep her mouth
shut." (Id. at ¶ 19.) Pentel took no steps to investigate the
incident, and a month later, Ventimiglia contacted Finnane to
apologize for his conduct.
In November 1995, Ventimiglia contacted Finnane again and
informed her that he would be traveling to Illinois on business
and that he wanted to meet with her to discuss business over
dinner. Finnane agreed. After Ventimiglia's arrival, Finnane
accompanied him on what he said would be a business dinner to
an Italian restaurant. Ventimiglia, however, spent most of the
time inquiring about Finnane's personal and family life. After
dinner, Ventimiglia asked Finnane to escort him to his hotel
room. She agreed to walk with him to the door. After entering
an elevator in the hotel lobby, Ventimiglia forced himself upon
Finnane. He groped and fondled her in the elevator and demanded
that she submit to his sexual desires. That evening, Finnane
submitted to "an unwelcome act of sexual intercourse."
(Id. at ¶ 27.)
After this incident, Ventimiglia made repeated obscene phone
calls to Finnane between November 1995 and July 1996. The
repeated calls were attempts to engage in "phone sex" and would
occur as often as four times per day. (Id. at ¶ 28.) During the
calls, Ventimiglia would suggest, among other things, that he
wanted to: engage Finnane in anal sex; watch Finnane engage in
sexual relations with other women; and see and suck on her "big
nipples." (Id.) Further, Ventimiglia wanted Finnane to describe
the color of her underwear; and he described how he was
masturbating while talking to her. (See id.) In May 1996, after
Finnane rejected Ventimiglia's repeated attempts to engage in
phone sex, he threatened her "with the
loss of her job." (Id. at ¶ 29.) Again in June 1996, while at a
trade show in Chicago, "Ventimiglia cornered [Finnane] and
touched and groped her against her will, despite her insistence
that he not touch her." (Id. at ¶ 30.)
The following month, after Finnane insisted that Ventimiglia
cease his unwanted sexual advances, he cautioned her that if
she disclosed his behavior she would be terminated as soon as
she failed to reach her sales quota. A year later, in August
1997, Ventimiglia cornered Finnane during a national sales
meeting in California and "felt and grabbed [her] buttocks."
(Id. at ¶ 32.) When she attempted to push him away, Ventimiglia
told her that if she told anyone about his conduct, she would
not only lose her job, but he would also "kill her." (Id.)
Between the Fall of 1995 and March 1998, Finnane repeatedly
informed her supervisors and other management personnel of
Ventimiglia's conduct. In doing so, Finnane followed the
procedures described in Pentel's Employee Handbook. However,
despite her repeated complaints, Pentel did not take any action
to investigate or reprimand Ventimiglia. For instance, Finnane
informed her regional manager, Al Homesley ("Homesley"), of
Ventimiglia's conduct and the effect it was having on her.
Rather than investigate, Homesley recommended that she leave
In October 1997, she was subjected to verbal ridicule by her
new regional manager, Gary Poillucci ("Poillucci"), who
commented in a joking manner before Finnane and her
co-employees that she "[gave] Pentel a bad name." (Id. at ¶
39.) Finnane, however, was among Pentel's top sales people and
received achievement awards in prior years.
In December 1997, Poillucci also made unwelcome sexual
advances upon Finnane and informed her that he had "envisioned
doing this for the last year." (Id. at ¶ 40.) He also told her
that he "didn't know whether [he] would rather go to dinner
with [her] or take [her] to bed." (Id.) On January 13, 1998,
Poillucci directed Finnane to meet him at a hotel room to
discuss business. After she arrived, Poillucci proceeded to
kiss and grope her. When she rebuffed these advances, Poillucci
commented that he knew she had been the subject of
Ventimiglia's advances and threats. He also stated that he
often joked about the situation with Fallihee. Shortly
thereafter, in May 1998, Pentel placed Finnane on a leave of
absence and changed her employment status from active to
inactive. As of the date this action was filed, Finnane
remained on the leave of absence.
On May 18, 1998, Finnane filed a charge of discrimination
against Pentel with the Equal Employment Opportunity Commission
("EEOC"). The EEOC issued a "right to sue" letter on July 24,
1998, and Finnane filed this action on August 20, 1998.
Finnane's Amended Complaint, filed on January 13, 1999,
contains five Counts. Count I alleges Civil Rights violations
under Title VII of the Civil Rights Act of 1964 ("Title VII"),
as amended, see 42 U.S.C. § 2000e et seq., based upon the
conduct described above which took place between 1995 and 1998.
Count II is a breach of contract claim which alleges that
Pentel breached its agreement to promptly investigate reports
of harassment and discipline offenders, as allegedly promised
in its Employee Handbook. Count III alleges negligent
supervision based upon Pentel's failure to adequately supervise
Ventimiglia and Poillucci. Count IV alleges that Pentel was
negligent in that it had a duty not to retain such employees.
Count V is a loss of consortium action by Finnane's husband,
In deciding a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of
Civil Procedure, the court merely looks at the sufficiency of
the complaint, see Autry v. Northwest Prem. Serv., Inc.,
144 F.3d 1037, 1039 (7th Cir. 1998); the court does not decide
whether the plaintiff has a winning claim. See Herdrich v.
Pegram, 154 F.3d 362, 369 (7th Cir. 1998). The court will deny
the motion unless "it is impossible [for the plaintiff] to
prevail `under any set of facts that could be proved consistent
with her allegations.'" Albiero v. City of Kankakee,
122 F.3d 417, 419 (7th Cir. 1997) (quoting Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The
court "must look to see whether there is any possible
interpretation of the complaint under which it can state a
claim." Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998).
When reviewing the complaint, the court must accept all
well-pleaded factual allegations in the complaint as true, and
draw all reasonable inferences therefrom in the light most
favorable to the plaintiff. See Fredrick v. Simmons Airlines,
Inc., 144 F.3d 500, 502 (7th Cir. 1998).
A. COUNT I — CIVIL RIGHTS
Count I of Finnane's Amended Complaint alleges sexual
harassment in violation of Title VII. Pentel claims that a
majority of the allegations of harassment are time-barred and
thus should be dismissed and stricken. The court agrees.
Sexual harassment is a recognized subset of gender
discrimination. See Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 63-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Title VII
deems unwelcome sexual advances as unlawful sex discrimination
because they create an offensive or hostile working
environment. See Hartman v. Pena, 914 F. Supp. 225, 228
(N.D.Ill. 1995). "`When the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment,
Title VII is violated.'" Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, ___, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201
(1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,
114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). With respect to
harassment by a co-worker, an employer may be held responsible,
but only if it knew or should have known of the conduct and did
not take proper remedial action. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, ___, 118 S.Ct. 2257, 2267, 141 L.Ed.2d
633 (1998) (citing McKenzie v. Illinois Dept. of Transp.,
92 F.3d 473, 480 (7th Cir. 1996)).
To bring an action in federal court for sexual harassment
under Title VII, a plaintiff must have filed her EEOC charge
within 300 days of the occurrence of the allegedly illegal
conduct. See 42 U.S.C. § 2000e-5(e)(1); Hentosh v. Herman M.
Finch Univ. Health Sciences, 167 F.3d 1170, 1174 (7th Cir.
1999) (citing EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963,
970 (7th Cir. 1996) ("Illinois is a `deferral state,' and so
the limitation period runs for 300 days from the date of the
alleged discrimination.")). The 300-day limitations period
"starts to run with `the discriminatory act, not the point at
which the consequences of the act become painful.'" Lever v.
Northwestern Univ., 979 F.2d 552, 553 (7th Cir. 1992) (quoting
Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 70 L.Ed.2d 6
(1981)). With few exceptions ...