United States District Court, N.D. Illinois
March 17, 2004.
FRANK and LESLIE VENEZIA, Plaintiffs,
GOTTLIEB MEMORIAL HOSPITAL, INC., a not-for-profit Illinois corporation, Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, Frank and Leslie Venezia, filed suit against Defendant,
Gottlieb Memorial Hospital, alleging violations of Title VII,
42 U.S.C. § 2000(e)(f). Presently pending before the Court is the Defendant's
Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v.
Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000)
(Marshall-Mosby). A plaintiff is not required to plead the facts
or the elements of a claim, with the exceptions found in Federal Rule of
Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506, 511
(2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002).
A filing under Federal Rules of Civil Procedure need not contain all the
facts that will be necessary to prevail. It should be "short and plain,"
and it suffices if it notifies the defendant of the principal events.
Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003).
Dismissal is warranted only if "it appears beyond a doubt that the
prove no set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The
simplified notice pleading relies upon liberal discovery and summary
judgment motions to define disputed issues and facts and to dispose of
unmeritorious claims. Swierkiewicz, 534 U.S. at 513.
A reading of the Complaint supports the following summary of the
alleged operative conduct of the parties.
Gottlieb employed Frank Venezia as a maintenance worker. From May 1,
2001 to February 25, 2002, Mr. Venezia's coworkers subjected him to a
sexually hosfile work environment by conduct which included: receipt of a
nude photograph of a female with a reference to his wife, nude
photographs of men, derogatory notes and statements alleging Mr. Venezia
obtained his job because his wife had engaged in sexual conduct with her
supervisor, and other notes and statements regarding Mr. Venezia's wife
and the couple's sexual relationship. Furthermore, Mr. Venezia's
supervisor questioned him about his attitude and, in a subsequent
maintenance department meeting, sat him in the center of the room while
his coworkers commented on the problems that they had with Mr. Venezia.
Mr. Venezia's coworkers also subjected him to other childish behavior,
such as spitting on his belongings, not letting him sit with them at a
Christmas party, not talking to him, and blaming him for damage to a
Gottlieb employed Mrs. Venezia as the education director of its daycare
center. In December 2001, Mrs. Venezia discovered the notes and
photographs that her husband received from his coworkers that are
discussed above. Mrs. Venezia accompanied her husband to report the notes
and photographs to Gottlieb's Human Resources Department. Gottlieb
conducted an investigation but
did not take corrective action. Mrs. Venezia argues that her husband's
coworkers, in retribution for her refusal to terminate an employee, told
Gottlieb employees that she had sat on an employee's lap. Mrs. Venezia's
tires were slashed after she complained about $35.00 being taken from a
coworker's office. On July 12, 2002, Mrs. Venezia resigned from Gottlieb.
On October 24, 2002, Mr. Venezia resigned from Gottlieb because it would
not extend him a medical leave of absence with a job guarantee.
Mr. Venezia argues that the failure to extend him an extension of a
medical leave of absence constituted a coerced resignation or firing. In
addition, his coworker's conduct created a hosfile work environment in
violation of Title VII; and he was discriminated against on the basis of
his sex by Gottlieb's failure to take corrective action of his coworker's
conduct. Mrs. Venezia argues she was subject to a hosfile work
environment in violation of Title VII and discriminated against on the
basis of her sex by Gottlieb's failure to undertake corrective action.
To establish a prima facie case of hosfile environment sexual
harassment, a plaintiff must demonstrate that: (1) he/she was subjected
to unwelcome sexual harassment; (2) the harassment was based on sex; (3)
the sexual harassment had the effect of unreasonable interfering with the
plaintiffs work performance in creating an intimidating, hosfile or
offensive working environment that seriously affected the psychological
well-being of the plaintiff; and (4) there is a basis for employer
liability. Robinson v. Sappington, 351 F.3d 317, 328-29 (7th
In this case, Plaintiffs have failed to establish the second prong,
that the harassment was based on sex, "[B]ecause Title VII is premised on
eliminating discrimination, inappropriate conduct that is inflicted on
both sexes, or is inflicted regardless of sex is outside the statute's
Holman v. State of Indiana, 211 F.3d 399, 403 (7ih Cir. 2000).
"Harassment that is inflicted without regard to gender, that is, where
males and females in the same setting do not receive disparate treatment,
is not actionable because the harassment is not based on sex." Pasqua
v. Metropolitan Life Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996).
In Holman, a married couple alleged that their supervisor had
sexually harassed each of them individually and on separate occasions.
Holman, 211 F.3d at 401. The plaintiffs alleged that when they
rejected the supervisor's sexual solicitations, the supervisor retaliated
against each of them with certain deprivations. Holman, 211 F.3d
at 401. The court held that "because plaintiffs were alleging sexual
harassment by the same supervisor, they both, as a matter of law, could
not provide that the harassment occurred because of sex."
Holman, 211 F.3d at 399.
In Pasqua, co. workers spread rumors that Mr. Pasqua and Mrs.
Vukanic were engaged in an intimate relationship. Pasqua, 101
F.3d at 514. After Mr. Pasqua confronted the offender and denied the
rumors, the rumors continued to be spread by both men and women.
Pasqua, 101 F.3d at 514. Mr. Pasqua sued his employer, claiming
that he had been subject to sexual harassment in having to work in a
hosfile work environment and that he was demoted in retaliation for
complaining about the rumors. Pasqua, 101 F.3d at 514. The Court
of Appeals affirmed the grant of summary judgment for the employer
because the court found that the harassment was not based on sex.
Pasqua, 101 F.3d at 516. The court noted that by the very nature
of the gossip, both Pasqua and Vukanic were made subject matter of the
gossip and that the rumors spread for a number of reasons having nothing
to do with gender discrimination. Pasqua, 101 F.3d at 517.
Based on the above, Plaintiffs have failed to establish that the
harassment was based on sex. First, the conduct that they both claim to
suffer (i.e. the notes, nude photographs and comments from
co. workers referencing Mrs. Venezia) is similar to the type of conduct
that both the Holman and Pasqua courts found
insufficient to support a Title VII claim. An "equal opportunity"
harasser is not covered by Title VII. Holman, 21 1 F.3d at 403.
Plaintiffs try to distinguish their case from Pasqua by alleging
that the discriminatory conduct that they were subject to was physically
threatening and humiliating. However, the question is not whether the
Plaintiffs were subject to conduct which was physically threatening and
humiliating; the question is "whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the
other sex are not exposed." Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 80 (1998). Further, the conduct to which Mr. and
Mrs. Venezia individually allege they were subjected (i.e., the tire
slashing, the spitting on Mr. Venezia's personal belongings) does not
support the allegation that the alleged harassment or discrimination was
based on sex.
Therefore, Counts I and n are dismissed without prejudice under Federal
Rule of Civil Procedure 12(b)(6) because they are insufficient as a
matter of law.
For the foregoing reasons, Gottlieb Memorial Hospital, Inc.'s Motion to
Dismiss is granted.
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